Jump to content

Help With Motion to Strike


Bestbet
 Share

Recommended Posts

Hello All,

I am being sued by a Junk Debt Collector 2. The Junk Debt Collector 2 bought the debt from Junk Debt Collector 1 who bought debt from Chase. In the bill of particulars Junk Debt Collector 2 provided 3 sworn affidavits:

Affidavit 3 is from Junk Debt Collector 2 and states:

This affidavit is dated June 2011.

I am authorized representative and custodian of records for Junk Debt Collector 2 an in that capacity, I am authorized to make this affidavit.

That upon request, Chase did provide credit services to me via account number xxx and credit services were accepted by the Defendant without complaint as evidenced by the use and activation of said credit account.

That Junk Debt Collector 2 purchased credit account xxx and all rights, title, and interest to any outstanding balance were transferred to Junk Debt Collector 2.

The statement in this affidavit are based upon the original books and records of the original creditor, which were maintained in the ordinary course of business, Junk Debt Collector 2’s entries having been made in the regular course of business by a person with knowledge of the matters described in the entries, at or near the time of the events described in the entries; and in the books and records of the Original Creditor and any other predecessors-in-interest of Junk Debt Collector 2, all of which became part of the Junk Debt Collector 2 business records at the time of its acquisition of the account.

That junk debt collector 2 has maintained in its computerized database the opening date, ending balance and last payment on the account that were obtained from the records of the original creditor. That as of June 2011 the count shows a balance of $xxx and that to the best of the Affiant’s belief and knowledge, said amount is justly due and owing to Junk Debt Collector 2.

Affidavit 2 is from Junk Debt Collector 1 and states:

This affidavit is dated February 2011.

Affiant has knowledge of said account sold to Junk Debt Collector 2 and that the balance of said account indicated thereon is accurate to the best of Affiant’s knowledge and belief, based on the balance represented to Junk Debt Collector 1 by and through it’s acquisition of the accounts.

That the account has been charged-off and on information and belief based upon business records from Chase the charge-off balance remains unpaid.

That the correct amount owed by the Debtor at the time of charge-off on Account Number xxx which was purchased by Debt Collector 1 by as reflected in all records of the account which Junk Debt Collector 1 has knowledge is the sum of $xxx.

That the above balance may have been adjusted to reflect additional interest charges applied after the account was purchased.

Affidavit 1 from Chase states:

This affidavit was dated March 2011.

I am an officer of Chase Bankcard Services, an affiliate of Chase Bank USA, N.A. (“Chase”), and I am authorized by Chase to make this affidavit.

Based upon a review of Chase’s records, which records are made at or near the time of the occurrences set forth therein by, or from information transmitted by, a person having knowledge of those matters, and kept in the ordinary course of Chase’s business, me had a credit card account with Chase, account number xxx-3456. The account was sold and transferred to Junk Debt Collector 1 on or about December 2010. At the time of sale to Junk Debt Collector 1, the amount due on the account pursuant to the terms of the cardholder agreement between Chase and me was $xxx.

The records of Chase indicate that the last payment on the account was made on September 2010.

The records of Chase show no unaccredited payments or credits to the account or any disputes which were not resolved pursuant to Chase’s procedures and after a reasonable investigation when the account was sold.

Chase has no further interest in the said account for any purpose.

In addition to these three affidavits, Junk Debt Collector 2 provided two bill of sales. One bill of sale from Chase to Junk Debt Collector 1 is for 20,000 accounts and is dated December 2010. This bill of sale talks about receivables of Exhibit 1, which they did not provide. Also interestingly, the signature from Chase is from someone titles “Team Leader” but name not written out, the same for Junk Debt Collector 1 – signature , President, but not name.

Second Bill of Sale is from Junk Debt Collector 1 to Junk Debt Collector 2 for 400 accounts dsicribed in Exhibit 1, which is not provided. This time the signature line has name and title printed out. However this bill of sale is not dated.

I was also provided a few statements and a generic “Cardmember Agreement”.

What I would like to do is file a motion to strike the 3 affidavits. I think the motions from Junk Debt Collector 2 and Junk Debt Collector 1 are similar to the ones I have seen on this discussion board. However, can I file a similar motion for the affidavit from Chase? Also should I try and subpoena all three of the affiants?

Thank you so much in adavance for your help.

Bestbet:)++

Link to comment
Share on other sites

First question: How old is this alleged debt. Is it within sol to collect?

In Unifund CCR Partners v. Cavender, Bill of

Sale and the Assignments fail to sufficiently identify

the accounts that were assigned or sold to the Plaintiff. Neither the Bill of

Sale nor the Assignment indicate the account numbers or names of

account holders. They do not provide any information that would allow

the Court to determine if the alleged account of Defendant was one of the

accounts sold or assigned to the Plaintiff.

The bill of sale from Chase to Junk Debt Collector 1 is for 20,000 accounts and is dated December 2010. This bill of sale refers to receivables of Exhibit 1, Exhibit ! was not provided, since Exibit1 was not provided, the Plaintiff is relying on the testimony of their affidavit as proof. Since no actual proof was given with the affidavit the affidavit fails the best evidence rule, and therefore holds no merit, and should not be allowed as evidence..

Exhibits. If a claim or defense is founded upon a written

instrument, a copy thereof, or of so much of the same as is relevant,

must be attached to the pleading as an exhibit or recited therein.

A witness cannot testify that a file or business record shows that the defendant is in default. Such testimony is both hearsay (it is an out of court assertion by whoever prepared the records) and violates the best evidence (original document)rule (since it is an attempt to prove the contents of a document without introducing it). Wahad v. Federal Bureau of Investigation.

Nor can such testimony or affidavits be made sufficient by omitting the

fact that it is based on a review of loan records, if it appears that the witness or affiant did not personally observe the underlying transactions. Hawaii Community Federal Credit Union v. Keka,

Link to comment
Share on other sites

Standing is the first element in any debt-buyer suit. Under basic common-law principles, a party must establish title to a debt in order to have standing to sue and prevail on that claim. A debt buyer must prove purchase of the debt in order to prevail on a claim.

For debts assigned more than once, debt buyers must prove a transaction to which they were not party and so must produce third-party witnesses.

Typically a debt buyer produces a one-paragraph document entitled something like "bill of sale," which occasionally refers to an earlier agreement. This bill of sale generally makes no mention of the alleged debtor or the account and in-stead refers to a separate section, exhibit, or attachment that is not supplied.

At trial the bill of sale may be excluded as irrelevant on this basis alone since it has no tendency in reason to prove or disprove whether the original creditor sold or otherwise assigned the account.

The debt buyer occasionally produces a single line of text and claims that it is the exhibit or attachment to which the bill of sale refers. The document is usually produced for purposes of litigation and is not a valid business record.

You can attack the bill of sale or similar document as irrelevant if, as is common, the document does not refer to the account or debtor alleged. If the debt buyer produces no other evidence of standing, you have likely already won your case.

If the debt was assigned more than once, the debt buyer is unlikely to produce a witness to the first step of the assignment. In this case the court may exclude, as hearsay and for lack of foundation, the bill of sale or other documents that the debt buyer offers as evidence of assignment. The debt buyer at times attempts to paper over this issue with an affidavit or declaration, often from another state. An affidavit that refers to an assignment but is not a foundation for a written agreement to sell the account (the bill of sale) may be excluded under the best-evidence or similar rule.

An affidavit that contains statements regarding a specific document may be subject to challenge as hearsay. Your state may allow exclusion on this basis if the affiant is not available for cross-examination at trial since admission of the affidavit would deprive your client of any meaningful opportunity to face accusers. An affidavit or declaration may also be inadmissible as hearsay if it lacks certain required language, such as that it is sworn under penalty of perjury.

Edited by BTO429
Link to comment
Share on other sites

Hello All,

I am being sued by Junk Debt Collector 2. The Junk Debt Collector 2 bought the debt from Junk Debt Collector 1 who bought debt from Chase. In the bill of particulars Junk Debt Collector provided 3 sworn affidavits:

Affidavit 3 is from Junk Debt Collector 2 and states:

Dated June 2011

I am authorized representative and custodian of records for Junk Debt Collector 2 an in that capacity, I am authorized to make this affidavit.

That upon request, Chase did provide credit services to me via account number xxx and credit services were accepted by the Defendant without complaint as evidenced by the use and activation of said credit account.

That Junk Debt Collector 2 purchased credit account xxx and all rights, title, and interest to any outstanding balance were transferred to Junk Debt Collector 2.

The statement in this affidavit are based upon the original books and records of the original creditor, which were maintained in the ordinary course of business, Junk Debt Collector 2’s entries having been made in the regular course of business by a person with knowledge of the matters described in the entries, at or near the time of the events described in the entries; and in the books and records of the Original Creditor and any other predecessors-in-interest of Junk Debt Collector 2, all of which became part of the Junk Debt Collector 2 business records at the time of its acquisition of the account.

That junk debt collector 2 has maintained in its computerized database the opening date, ending balance and last payment on the account that were obtained from the records of the original creditor. That as of June 2011 the count shows a balance of $xxx and that to the best of the Affiant’s belief and knowledge, said amount is justly due and owing to Junk Debt Collector 2.

Affidavit 2 is from Junk Debt Collector 1 and states:

Dated Feb 2011

Affiant has knowledge of said account sold to Junk Debt Collector 2 and that the balance of said account indicated thereon is accurate to the best of Affiant’s knowledge and belief, based on the balance represented to Junk Debt Collector 1 by and through it’s acquisition of the accounts.

That the account has been charged-off and on information and belief based upon business records from Chase the charge-off balance remains unpaid.

That the correct amount owed by the Debtor at the time of charge-off on Account Number xxx which was purchased by Debt Collector 1 by as reflected in all records of the account which Junk Debt Collector 1 has knowledge is the sum of $xxx.

That the above balance may have been adjusted to reflect additional interest charges applied after the account was purchased.

Affidavit 1 from Chase states:

Dated March 2011

I am an officer of Chase Bankcard Services, an affiliate of Chase Bank USA, N.A. (“Chase”), and I am authorized by Chase to make this affidavit.

Based upon a review of Chase’s records, which records are made at or near the time of the occurrences set forth therein by, or from information transmitted by, a person having knowledge of those matters, and kept in the ordinary course of Chase’s business, me had a credit card account with Chase, account number xxx-3456. The account was sold and transferred to Junk Debt Collector 1 on or about December 2010. At the time of sale to Junk Debt Collector 1, the amount due on the account pursuant to the terms of the cardholder agreement between Chase and me was $xxx.

The records of Chase indicate that the last payment on the account was made on September 2010.

The records of Chase show no unaccredited payments or credits to the account or any disputes which were not resolved pursuant to Chase’s procedures and after a reasonable investigation when the account was sold.

Chase has no further interest in the said account for any purpose.

In addition to these three affidavits in the bill of particulers,Junk Debt Collector 2 has provided two bill of sales. One bill of sale from Chase to Junk Debt Collector 1 is for 20,000 accounts and is dated December 2010. This bill of sale talks about receivables of Exhibit 1, which they did not provide. Also interestingly, the signature from Chase is from someone titles “Team Leader” but name not written out, the same for Junk Debt Collector 1 – signature, President, but not name.

Second Bill of Sale is from Junk Debt Collector 1 to Junk Debt Collector 2 for 400 accounts described in Exhibit 1, which is not provided. This time the signature line has name and title printed out.

I was also provided a few statements and a generic “Cardmember Agreement”.

What I would like to do is file a motion to strike the 3 affidavits. I think the motions to stike the affidavits from Junk Debt Collector 2 and Junk Debt Collector 1 are similar to the ones I have seen on this discussion board. However, can I file a similar motion for the affidavit from Chase? Also should I try and subpoena all three of the affiants?

Thank you so much in advance for your help.

Bestbet:)++

Link to comment
Share on other sites

Hello All,

I am being sued by Junk Debt Collector 2. The Junk Debt Collector 2 bought the debt from Junk Debt Collector 1 who bought debt from Chase. In the bill of particulars Junk Debt Collector provided 3 sworn affidavits:

Affidavit 3 is from Junk Debt Collector 2 and states:

Dated June 2011

I am authorized representative and custodian of records for Junk Debt Collector 2 an in that capacity, I am authorized to make this affidavit.

That upon request, Chase did provide credit services to me via account number xxx and credit services were accepted by the Defendant without complaint as evidenced by the use and activation of said credit account.

That Junk Debt Collector 2 purchased credit account xxx and all rights, title, and interest to any outstanding balance were transferred to Junk Debt Collector 2.

The statement in this affidavit are based upon the original books and records of the original creditor, which were maintained in the ordinary course of business, Junk Debt Collector 2’s entries having been made in the regular course of business by a person with knowledge of the matters described in the entries, at or near the time of the events described in the entries; and in the books and records of the Original Creditor and any other predecessors-in-interest of Junk Debt Collector 2, all of which became part of the Junk Debt Collector 2 business records at the time of its acquisition of the account.

That junk debt collector 2 has maintained in its computerized database the opening date, ending balance and last payment on the account that were obtained from the records of the original creditor. That as of June 2011 the count shows a balance of $xxx and that to the best of the Affiant’s belief and knowledge, said amount is justly due and owing to Junk Debt Collector 2.

Affidavit 2 is from Junk Debt Collector 1 and states:

Dated Feb 2011

Affiant has knowledge of said account sold to Junk Debt Collector 2 and that the balance of said account indicated thereon is accurate to the best of Affiant’s knowledge and belief, based on the balance represented to Junk Debt Collector 1 by and through it’s acquisition of the accounts.

That the account has been charged-off and on information and belief based upon business records from Chase the charge-off balance remains unpaid.

That the correct amount owed by the Debtor at the time of charge-off on Account Number xxx which was purchased by Debt Collector 1 by as reflected in all records of the account which Junk Debt Collector 1 has knowledge is the sum of $xxx.

That the above balance may have been adjusted to reflect additional interest charges applied after the account was purchased.

Affidavit 1 from Chase states:

Dated March 2011

I am an officer of Chase Bankcard Services, an affiliate of Chase Bank USA, N.A. (“Chase”), and I am authorized by Chase to make this affidavit.

Based upon a review of Chase’s records, which records are made at or near the time of the occurrences set forth therein by, or from information transmitted by, a person having knowledge of those matters, and kept in the ordinary course of Chase’s business, me had a credit card account with Chase, account number xxx-3456. The account was sold and transferred to Junk Debt Collector 1 on or about December 2010. At the time of sale to Junk Debt Collector 1, the amount due on the account pursuant to the terms of the cardholder agreement between Chase and me was $xxx.

The records of Chase indicate that the last payment on the account was made on September 2010.

The records of Chase show no unaccredited payments or credits to the account or any disputes which were not resolved pursuant to Chase’s procedures and after a reasonable investigation when the account was sold.

Chase has no further interest in the said account for any purpose.

In addition to these three affidavits in the bill of particulers,Junk Debt Collector 2 has provided two bill of sales. One bill of sale from Chase to Junk Debt Collector 1 is for 20,000 accounts and is dated December 2010. This bill of sale talks about receivables of Exhibit 1, which they did not provide. Also interestingly, the signature from Chase is from someone titles “Team Leader” but name not written out, the same for Junk Debt Collector 1 – signature, President, but not name.

Second Bill of Sale is from Junk Debt Collector 1 to Junk Debt Collector 2 for 400 accounts described in Exhibit 1, which is not provided. This time the signature line has name and title printed out.

I was also provided a few statements and a generic “Cardmember Agreement”.

What I would like to do is file a motion to strike the 3 affidavits. I think the motions to stike the affidavits from Junk Debt Collector 2 and Junk Debt Collector 1 are similar to the ones I have seen on this discussion board. However, can I file a similar motion for the affidavit from Chase? Also should I try and subpoena all three of the affiants?

Thank you so much in advance for your help.

Bestbet:)++

It doesn't hurt to do it. I was going to do the same however, I found it more fun to point out all of the discrepancies in the affidavit in my Repy to Opposition from the Plaintiff's. When I outlined them, as well as site a case in which they have rubber stamped their affidavit's in the past, they judge dismissed their case and vacated the judgment with prejudice.

I suspect that pissed her off.

Link to comment
Share on other sites

Hello BTO429,

Thank you for the great analysis.

Do I understand you correctly, you think that Affidavit 1, the way it is written can be striken? I undersatand about striking the other 2 affidavits from the Junk Debt Collectors.

Also, should I try and subponea the affiant of Affidavit 1, as Chase is no longer part to the suit only the Junk Debt Collector is, I think I have to try and subponea him directly, correct?

Should I try and get the all the affiants at the hearing for the Mition to Stike, or leave that to the Junk Debt Collector's attorney?

A lot of procedural questions I know, but I am trying to work out tactics.

Thank you again for your help.

Bestbet:)++

Link to comment
Share on other sites

Hello BTO429,

Thank you for the great analysis.

Do I understand you correctly, you think that Affidavit 1, the way it is written can be striken? I undersatand about striking the other 2 affidavits from the Junk Debt Collectors.

Also, should I try and subponea the affiant of Affidavit 1, as Chase is no longer part to the suit only the Junk Debt Collector is, I think I have to try and subponea him directly, correct?

Should I try and get the all the affiants at the hearing for the Mition to Stike, or leave that to the Junk Debt Collector's attorney?

A lot of procedural questions I know, but I am trying to work out tactics.

Thank you again for your help.

Bestbet:)++

Just getting something straight.

1. Regarding the Chase affidavit and the 1st JDB affidavit, did the "Team Leader" at Chase and the President of the 1st JDB sign the documents? Are there actual signatures by those people?

2. Are they also signed by a notary?

3. In what states were the documents notarized?

Link to comment
Share on other sites

Hello BV 80,

The Case Affidavit is signed by a person identifying himself as an officer at chase. He is not the same person ("Team Leader") who signed the Bill of Sale to 1st JDB. The Affidavit from 1st JDB is signed by the a person identifying herself as director of operations at 1st JDB. This person is not the same as the President of 1st JDB who signed the bill of sale with Chase and the Bill of sale to 2nd JDB.

The Affidavits are signed by a notary. I am in Virginia. Affidavit 1 is signed by notary in Florida, Affidavit 2 is signed by notary in Texas, and Affidavit 3 is signed by notary in Virginia

I hope this is clear and answers your questions.

Appreciate any advice or help.

Thank you.

Bestbetxdancex

Link to comment
Share on other sites

Hello Tootsie88,

Thank you for your reply. Can you please clarify a little further? My questions were:

1. Can I file a similar motion for the affidavit from Chase?

2. Also should I try and subpoena all three of the affiants?

Can you provide guidance on the motion to strike for the OC (i.e. Chase)? How should I subpoena the affiants? Do I send the subpoena to the JDB's attorney or do I have to subpoena them each directly? They are in different states,

Thank you for you help and advice.

Bestbetxdancex

Link to comment
Share on other sites

Here in CT, Motions to Strike challenge the legal sufficiency of any pleading or any part thereof, not affidavits. Affidavits are evidence, not pleadings. They are submitted in support of the complaint or motion. The only way to challenge them that I know of is to file a motion to determine an affidavit made in bad faith. (they lied, used fake evidence, etc) Subpoenas are very tricky and expensive. The affiant may be in another stste, and you will have to pay to bring him here and house him during the trial. Depositions are even worse. If you could afford this, you could pay off the credit card and they know it. You need to do your homework and learn how to beat JDBs in court.

Link to comment
Share on other sites

Here in CT, Motions to Strike challenge the legal sufficiency of any pleading or any part thereof, not affidavits. Affidavits are evidence, not pleadings. They are submitted in support of the complaint or motion. The only way to challenge them that I know of is to file a motion to determine an affidavit made in bad faith. (they lied, used fake evidence, etc) Subpoenas are very tricky and expensive. The affiant may be in another stste, and you will have to pay to bring him here and house him during the trial. Depositions are even worse. If you could afford this, you could pay off the credit card and they know it. You need to do your homework and learn how to beat JDBs in court.

legaleagale, I am in the discovery phase now in CT. I have not received any Affidavit or Bill of Sale from the JDB. I have asked for it twice now while still in discovery. They sent me a copy of a contract that is not it's original size and unable to read, you would need the Huble Telescope to read it. I asked for a clearer copy. They sent me one same size, just lightened it up with a copy machine.

I am getting extreamly frustrated, but I am very new to this. Any input would help me alot. :smile:

Sorry Bestbet, I know this is off topic from your post. I am just curious as you are about this Affidavit thing. Since I never even got one attached to the complaint.

Thanks

Link to comment
Share on other sites

Why not just go to trial and say objection, hearsay, when they try to introduce.

If the rules require some denial or the affidavits are deemed correct, then why not an affidavit of your own.

I, XXXXX, do hereby dispute in it's entirety the information and allegations made in XXXX affidavits.

Then say see you at trial, hope you have all those witnesses flying in or I'm going fishing about five minutes after that trial starts.

Link to comment
Share on other sites

Hello BV80,

I am sorry, I think I have confused you.

All of the documents (i.e. bills of sale and affidavits) are signed. However the Bill of Sale from Chase does not have the name of the buyer or seller printed. For Chase they have a signature and title (i.e. Tead Lead) but no name printed, so you have no way of finding out who signed this becasue the signature is not legiable. For the Junk Debt Buyer you it is the same, a signature and title (i.e. President).

I do not know how important this is, but it does make it difficult to id the person at Chase.

Hope this answers your questions.

Thank you.

Bestbet:)++

Link to comment
Share on other sites

I'll be honest with you. This is more than one usually receives from a JDB.

Regarding the affidavit from Chase, since the affiant claims to be an officer, I'd look him up. Chase Bankcard Services has an office in FL. Also, I noticed 2 things in particular:

First, the "officer" states "Based upon a review of Chase's records". Then, he states, "The account was sold and transferred to Junk Debt Collector 1 on or about December 2010."

I find it strange that he implies he reviewed the records, but can't state the specific date the account was sold. It may not mean anything, but it still seems strange to me.

Secondly, the date of the affidavit is after the date of the 1st JDB's affidavit. I suppose that could be because JDB #2 contacted Chase and requested an affidavit. It would be interesting to know for sure.

Do the statements show any charges or payments? Have you checked your bank statements to make sure the last payment you made coincides with the date of last payment claimed by Chase?

BTW, don't apologize for confusing me. That's not difficult to do. :D

Link to comment
Share on other sites

Hello BV80,

Thank you for your thoughts. Will investigate. You are also correct that the JDC is providing a lot of documentation, based on what I have read on other peoples posts. I am guessing they may have lost some cases. But I think these documents have a lot of holes.

What is also interesting is that in the Chase Affidavit he never says that I reviewed records or that the records were reviewed by me. He says that "Based on a review of Chase's records... or from information transmitted by, a person having knowledge of those matters, ...". Doesn't this make his entire affidavit hearsay, since he is not basing it on personal knowledge?

Getting back to my original questions, should I subpoena all three affiants? Two of them are out of state. In my state for out of state people, the clerk of court will mail the subpoena, but they told me they have no way to enforce it if the people do not show up. Should I try this, and if the affiants don't show up, I can show the court that I made every effort to get them there? Should I try to get them to court for the hearing on the Motion to Strike or the trial?

Any advice from BV80 or anyone else is appreciated.

Bestbetxdancex

Link to comment
Share on other sites

Trial courts in considering motions to strike the plaintiff's evidence should in every

case where there is doubt on the question overrule the motion. The use

of the motion as a means to defeat the plaintiff's action should be confined

and applied only to those cases in which it is conclusively apparent

that the plaintiff has proven no cause of action against the defendant

Sounds pretty tough to get this one granted

Link to comment
Share on other sites

Getting back to my original questions, should I subpoena all three affiants?
Should I try to get them to court for the hearing on the Motion to Strike or the trial?

You correctly analyzed their affidavits as hearsay. It's not a toss up if it is hearsay. It's hearsay and the mother of all hearsay as this is the second JDB.

This is nothing personal, but how in the world does the above quotes even make into consideration as an option?

I really could use this being explained. At the worst, if it is required, to dispute the affidavit or it will be deemed correct, file a three sentence denail of the facts in their affidavit. That's at worst, depending on state laws.

They have provided you with a bunch of hearsay. It's inadmissible in court.

You want to subpoena the witness(s) that wrote the affidavit, and even worse they are out of state so you might still try to find a way to get them to your trial/hearing?

What's next going to the airport to pick them up as they get off the plane to ensure they don't get lost on the way to the courthouse.

Your even thinking about your speech to the Judge on how you tried to get the witnesses that will lose your case for you to court?:shock:

Can somebody please explain this logic. I see it posted, not all the time, but it's not an uncommon thread.

If I'm accussed of stealing a car, robbing a liquor store, and then running from the police, and for evidence the prosecutor hands me a stack of affidavits from the witnesses to my crime and I have a trial coming up.

Am I going to now subpoena the person I stole the car from, the clerk at the convience, and the officers that were chasing me while I was fleeing?

Oh wait Mr. Prosecutor, maybe you did not realize your evidence is inadmissible hearsay. However, not to worry, I have all the witnesses under subpoena and will have them hear for the trial.

You had prima facie evidence to get the case to trial, but did you forget there is now a different burden. Not to worry, got your back.

I have to be missing something. There is simply no logic to the strategy of demanding the witnesses for the other side show up. Your demanding the witnesses that will prove the other sides case show up for court and without those witnesses the other side can't even get out of the starting gates?

I've used the above strategy. Did I just get lucky, catch somebody way off guard. The trial gets ready to start, I tell the Judge, I don't care what amount they say I owe, I owe it 100%. However, I need them to prove they own the account.

Judge looks at them, they say business records exception to hearsay. Judge's exact quote, "You can't take somebody elses business records, open your file (as he opens up the case file), drop the records into your file, put your file back into the filing cabinet, and now call it your business records."

It's one case for sure, but what am I missing. If you say summary judgement, I beat that w/o even giving my oral arguments. The lawyer for the JDB went on for about 20 min. She was making comments as it was just undisputed fact, like the Supreme Court had already authenticated her evidence, talking about the affidavits, bill of sale, and all their other truck load of hearsay.

I walk to the podum and the judge puts his hand out to stop me from talking and says, "let me expidite this, their motion is denied." I had simply filed an affidavit and said I dispute each and every allegation the JDB has made and what their affidavits state. With that you now had dueling affidavits. Therefore, that was a material fact to determine who was right and the way to do that was with a trial.

What am I missing? xheadscratchx

Link to comment
Share on other sites

also these are not admissable as these are not plaintiff's records. It seems to me as if these "affidavits" are intended to scare and confuse "least sophisticated debtors" much like how JDB's telephone b****** hand the phone to another collector pretending to be the manager.

Motion to exclude or In limine motion might be a better way to go. They are going to have to list names and addresses of any witnesses' prior to trial. also work the admissibility angle near to trial. check all the affiants thoroughly and make sure the name of the president of that was even in the state it was made. There has been alot of robosigning going on where president of a major bank in addition to his other duties was able to sign 40,000 affidavits. so check that.

check how your judge has ruled in similar cases. go down to the court and look at those cases, also look at all the other case they filed in your court and look at the affidavits for the same signatures 10 to 1 the same guys signature doesn't match.

motion to strike will be denied because you have no evidence to prove it is not admissible. best to let them think they are getting away with it. then booyah a big fat exclusion motion with careful research.

So I am Going on the record now and saying that a motion to strike now will be denied by the court. If not then I will face certain ridicule which will only make me want to help people more:)

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.