Just Served? Strike Affidavit ?

[Elky1969]

Here's some back ground . I know I need to Answer but also Motion to strike ?(Missouri Statue on Affidavit linked) included with the copy of the Summons and Affidavet to. The Affidavit doesnt admit to knowing all the assignments/ accounting practices of the OC.

1. Who is the named plaintiff in the suit? JDB

2. What is the name of the law firm handling the suit? Big BAD WOLF

3. How much are you being sued for? $3500.00

4. Who is the original creditor? Hsbc / Metris )

5. How do you know you are being sued? I've been served

6. How were you served? In Person

7. Was the service legal as required by your state? yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Was contacted by Jacobs marsh Sept 2010 . tried to settle 2/10/11 for 1300.00 in writing no response.

9. What state and county do you live in? Missouri Greene county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) last payment 12/2009 then HSBC Charged off transfer/sold 12/09

11. What is the SOL on the debt? Missouri 5 years

12. What is the status of your case? Suit served? I have not answered yet. Trying to figure that out.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I never did.

14. Did you request debt validation before the suit was filed? Contacted by Mcnearney in June 2011 DV them only got back a copy of statement nothing else. (Sept 2011) .

15. How long do you have to respond to the suit? 30 days from 2/7/2012

16. What evidence did they send with the summons? Petition Breach of contract ( listed below)

An affidavit? Yes listed below Statements from the OC? None attached Contract? No

List anything else they attached as exhibits. copys of HSBC agreement from 12/2008 but no Arbs. I know there is Arbs because I have a copy of it.

No other exibits except what is below thats all I received.

Edited February 15, 2012 by Elky1969

[Elky1969]

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Edited February 18, 2012 by Elky1969

[Elky1969]

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Edited February 18, 2012 by Elky1969

[Elky1969]

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Edited February 18, 2012 by Elky1969

[Elky1969]

Section 490-692 Business records or copies admissible a

[BV80]

I'll let others defer to the answering of the Complaint. The wording is such that if you admit or deny, they'll use it against you.

It's probably too early to worry about a motion to strike. As soon as you file your answer, study up on your court's Rules of Civil Procedure regarding discovery. The affidavit states the account was purchased from HSBC by Square Two Financial and then sold to Marsh, yet there's no documents to prove those claims. There should be 2 bills of sale...one from HSBC to Square Two, and another from Square Two to Marsh.

He also states there are no uncredited payments, etc., yet there's no documentation showing payments or proving the amount of the claim. He has no personal knowledge of those claims.

These are the documents you will seek in discovery.

[usagi555]

I'll let others defer to the answering of the Complaint. The wording is such that if you admit or deny, they'll use it against you.

It's probably too early to worry about a motion to strike. As soon as you file your answer, study up on your court's Rules of Civil Procedure regarding discovery. The affidavit states the account was purchased from HSBC by Square Two Financial and then sold to Marsh, yet there's no documents to prove those claims. There should be 2 bills of sale...one from HSBC to Square Two, and another from Square Two to Marsh.

He also states there are no uncredited payments, etc., yet there's no documentation showing payments or proving the amount of the claim. He has no personal knowledge of those claims.

These are the documents you will seek in discovery.

I completely agree. People get sued and want it to be over soon. Unfortunately, that's not how court works.

There is no nice way to say this, but you need to settle in for the long haul. They may run from a simple response, but if they don't, you're going to have to fight. The good news is that you are dealing with a JDB, who when plopped in a court that follows the rules of evidence, will never, ever be able to prove that they own the debt. If you do everything properly, that means that you could win even after saying "I owe this debtt, just not to the plaintiff."

[Coltfan1972]

If you do everything properly, that means that you could win even after saying "I owe this debtt, just not to the plaintiff."

Very poor and reckless advice!! Why in the world would admit to owing the debt, that makes no sense. Who in their right mind would expect to walk into court, follow your advice and then walk out with a victory.

[Seadragon]

even same state.

so read that court opininion and understand it to see how to proceed.

[Elky1969]

I'll let others defer to the answering of the Complaint. The wording is such that if you admit or deny, they'll use it against you.

It's probably too early to worry about a motion to strike. As soon as you file your answer, study up on your court's Rules of Civil Procedure regarding discovery. The affidavit states the account was purchased from HSBC by Square Two Financial and then sold to Marsh, yet there's no documents to prove those claims. There should be 2 bills of sale...one from HSBC to Square Two, and another from Square Two to Marsh.

He also states there are no uncredited payments, etc., yet there's no documentation showing payments or proving the amount of the claim. He has no personal knowledge of those claims.

These are the documents you will seek in discovery.

Thanks, The Wording has me perplexed as to how to Answer, it's not like any others I have seen.

Anyone with thoughts on a proper answer on this one please chime in.

usagi555, coltfan1972, Seadragon, thank you to.

Looks like I'll be doing more Reading. will keep you all posted.

Edited February 10, 2012 by Elky1969

[Elky1969]

even same state.

so read that court opininion and understand it to see how to proceed.

Seadragon, I just read the cach llc vs askew, WOW! this one I'll be refering to.

question is do I keep this in my back pocket?

or reference it in my 1 st answers to the summons, as to the validity of the Affidavit to begin with?

I'm at a loss here.

[BV80]

Seadragon, I just read the cach llc vs askew, WOW! this one I'll be refering to.

question is do I keep this in my back pocket?

or reference it in my 1 st answers to the summons, as to the validity of the Affidavit to begin with?

I'm at a loss here.

You don't cite case law in your Answer to the Complaint. Save it for later, if need.

If it were me, I might answer the first 3 allegations with:

1. Denied.

2. Defendant has insufficient information to admit or deny and, therefore, denies. Plaintiff has provided no documentation to support the allegation.

3. Defendant has insufficient information to admit or deny and, therefore, denies. Plaintiff has provided no documentation to support the allegation.

As to the rest, let's see what other members suggest.

[Elky1969]

You don't cite case law in your Answer to the Complaint. Save it for later, if need.

If it were me, I might answer the first 3 allegations with:

1. Denied.

2. Defendant has insufficient information to admit or deny and, therefore, denies. Plaintiff has provided no documentation to support the allegation.

3. Defendant has insufficient information to admit or deny and, therefore, denies. Plaintiff has provided no documentation to support the allegation.

As to the rest, let's see what other members suggest.

Thank you very much.

The Hearing is set for March 12. so I do have some time to compile all this together.

Although I have just under 30 days to answer. (from 2/7 when served)

Off to work now. I'll be back on tonite.

[BTO429]

According to his affidavit his is stating you him, or ACCOUNT STATED, since he does not claim any personal knowledge of how the account came about or was handled.

Since he claims account stated you need to attack the chain of custody or the TITLE of the account. Be that as such he needs to prove to the court that YOU owe HIM. Just because there is a legal debt does not automatically give him legal right to the debt because he bought the the debt. This needs to be proved by the chain of custody, if it can not then he has failed to state a claim for which relief can be granted.

[Elky1969]

According to his affidavit his is stating you him, or ACCOUNT STATED, since he does not claim any personal knowledge of how the account came about or was handled.

Since he claims account stated you need to attack the chain of custody or the TITLE of the account. Be that as such he needs to prove to the court that YOU owe HIM. Just because there is a legal debt does not automatically give him legal right to the debt because he bought the the debt. This needs to be proved by the chain of custody, if it can not then he has failed to state a claim for which relief can be granted.

Thanks for the Post BTO429 .

I know I have to Object to the Affidavit, not doing so will make it relevant, and I won't be able to Strike it.

So How to Answer the Affidavit with out citing case law yet.

Just Deny The Affidavet?

or Defendant has insufficient information to admit or deny and, therefore, denies. Plaintiff has provided no documentation to support the allegation.

(stating Plaintiff has proved no documentation to support the allegation) To me it clues them into I'm going for Discovery on the Affidavit.

Not sure if I want to show my potential hand yet on this.

Any Thoughts?

[BV80]

Thanks for the Post BTO429 .

I know I have to Object to the Affidavit, not doing so will make it relevant, and I won't be able to Strike it.

So How to Answer the Affidavit with out citing case law yet.

Just Deny The Affidavet?

or Defendant has insufficient information to admit or deny and, therefore, denies. Plaintiff has provided no documentation to support the allegation.

(stating Plaintiff has proved no documentation to support the allegation) To me it clues them into I'm going for Discovery on the Affidavit.

Not sure if I want to show my potential hand yet on this.

Any Thoughts?

Your Answer to the Complaint is just that. An answer. You're not arguing the case. If the rules state that Plaintiffs must include an affidavit with the Complaint, that's why it was included.

By denying the allegations in the Complaint, you'll be denying the statements made in the affidavit. Read your rules carefully to see if you are supposed to include an opposing affidavit with your Answer to the Complaint.

[Coltfan1972]

Think criminal court plea and arraignment. You don't want to pull a Vinny and try to argue your case at plea and arraignment (civil lawsuit answer).

[Elky1969]

Your Answer to the Complaint is just that. An answer. You're not arguing the case. If the rules state that Plaintiffs must include an affidavit with the Complaint, that's why it was included.

By denying the allegations in the Complaint, you'll be denying the statements made in the affidavit. Read your rules carefully to see if you are supposed to include an opposing affidavit with your Answer to the Complaint.

I think in the Mo statute, you have to counteraffidavit. ? I think this is what I'm reading if I have the correct Statute.

Affidavit stating amount charged was reasonable and necessary, effect--restrictions--service--counteraffidavit, requirements--notice.

490.525.

1. This section shall apply to civil actions filed in any court of this state.

2. Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

3. The affidavit shall:

(1) Be taken before an officer with authority to administer oaths;

(2) Be made by the person or that person's designee who provided the service;

(3) Include an itemized statement of the service and charge.

4. The party offering the affidavit in evidence or the party's attorney shall file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least thirty days before the day on which evidence is first presented at the trial of the case.

5. A party intending to controvert a claim reflected by the affidavit shall file a counteraffidavit with the clerk of the court and serve a copy of the counteraffidavit on each other party or the party's attorney of record:

(1) Not later than:

(a) Thirty days after the day he receives a copy of the affidavit; and

( At least fourteen days before the day on which evidence is first presented at the trial of the case; or

(2) With leave of the court, at any time before the commencement of evidence at trial.

6. The counteraffidavit shall give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit shall be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit

[usagi555]

I think in the Mo statute, you have to counteraffidavit. ? I think this is what I'm reading if I have the correct Statute.

Affidavit stating amount charged was reasonable and necessary, effect--restrictions--service--counteraffidavit, requirements--notice.

490.525.

1. This section shall apply to civil actions filed in any court of this state.

2. Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

3. The affidavit shall:

(1) Be taken before an officer with authority to administer oaths;

(2) Be made by the person or that person's designee who provided the service;

(3) Include an itemized statement of the service and charge.

4. The party offering the affidavit in evidence or the party's attorney shall file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least thirty days before the day on which evidence is first presented at the trial of the case.

5. A party intending to controvert a claim reflected by the affidavit shall file a counteraffidavit with the clerk of the court and serve a copy of the counteraffidavit on each other party or the party's attorney of record:

(1) Not later than:

(a) Thirty days after the day he receives a copy of the affidavit; and

( At least fourteen days before the day on which evidence is first presented at the trial of the case; or

(2) With leave of the court, at any time before the commencement of evidence at trial.

6. The counteraffidavit shall give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit shall be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit

What's excellent here is that you are searching and trying to find the answer to your problems. You are so far ahead of most other people in your shoes that it isn't even funny.

If I were in your shoes, I would be filing an affidavit to stop any future MSJs in their tracks, but it looks as though the affidavit fails unless they provide an itemized accounting.

[Elky1969]

What's excellent here is that you are searching and trying to find the answer to your problems. You are so far ahead of most other people in your shoes that it isn't even funny.

If I were in your shoes, I would be filing an affidavit to stop any future MSJs in their tracks, but it looks as though the affidavit fails unless they provide an itemized accounting.

That's what I was thinking, But I want to make sure I have the correct Statute it's all I could find in reference to the subject matter.

I don't want to go on wild goose chase if I dont have to.

[usagi555]

That's what I was thinking, But I want to make sure I have the correct Statute it's all I could find in reference to the subject matter.

I don't want to go on wild goose chase if I dont have to.

Honestly, that's how I interpret it, but I could be totally wrong. Put that phrase into google scholar and see what comes up in the MO courts. Or maybe somebody with knowledge of MO's court system will chime in.

[Elky1969]

usagi555

Yeah I hoping for some chime in on this .

[BTO429]

Conclusory statement: A conclusory statement is one that does not provide the underlying facts to support the conclusion.

Conclusory statements in affidavits are insufficient to raise a fact issue. Ryland Group, Inc. v. Hood,924 S.W.2d 120, 122 (Tex. 1996)

To serve as competent summary judgment proof an affidavit of an interested party must be "clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted."Haynes v. City of Beaumont.

An affidavit that makes self-serving, conclusory statements without any underlying factual detail cannot support a summary judgment.

There are your arguments I say the affidavit makes self serving conclusory claims, these claims are not factual.

First of all in the affidavit he claims to have personal knowledge.

Personal knowledge means knowledge of a circumstance or fact gained through firsthand observation or experience. Generally, statements in affidavits are presumed to have been made on personal knowledge, unless it appears affirmatively, or by fair inference, that they could not have been, and were not on such knowledge. It is also called as firsthand knowledge.

In Valenzuela v. State & County Mut. Fire Ins. Co., 317 S.W.3d 550 (Tex. App. 2010), the court observed that “An affidavit not based on personal knowledge is legally insufficient.”

Further, in Shah v. Getz, 1994 Ohio App. LEXIS 2780 (Ohio Ct. App. 1994), the court observed that “Personal knowledge is knowledge of factual truth that does not depend on outside information or hearsay. An affidavit without an averment of personal knowledge must show personal knowledge specifically.”

Your questions to defeat this are, Did he work for MERIT and Square2 Financial? in a capacity as to see how either keeps records for accounts. THE answer is NO.

I would say the affidavit is moot and holds no merit and is not factual.

if he still claims personal knowledge ask him how he obtained this knowledge then when he answers that the other two parties explained how they keep their records then you say it is hearsay.

Edited February 11, 2012 by BTO429

[Elky1969]

BTO429 Thank you sir. Great Information.

[Elky1969]

I think in the Mo statute, you have to counteraffidavit. ? I think this is what I'm reading if I have the correct Statute.

Affidavit stating amount charged was reasonable and necessary, effect--restrictions--service--counteraffidavit, requirements--notice.

490.525.

1. This section shall apply to civil actions filed in any court of this state.

2. Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

3. The affidavit shall:

(1) Be taken before an officer with authority to administer oaths;

(2) Be made by the person or that person's designee who provided the service;

(3) Include an itemized statement of the service and charge.

4. The party offering the affidavit in evidence or the party's attorney shall file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least thirty days before the day on which evidence is first presented at the trial of the case.

5. A party intending to controvert a claim reflected by the affidavit shall file a counteraffidavit with the clerk of the court and serve a copy of the counteraffidavit on each other party or the party's attorney of record:

(1) Not later than:

(a) Thirty days after the day he receives a copy of the affidavit; and

( At least fourteen days before the day on which evidence is first presented at the trial of the case; or

(2) With leave of the court, at any time before the commencement of evidence at trial.

6. The counteraffidavit shall give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit shall be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit

Does anyone familiar with Missouri Know if I have to Answer the Affidavit with a counterAffidavit,

I found the Missouri statute on this but don't know if it applies, when anwsering this Summons.

Anyone ?