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Ridiculous Objection to Discovery


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After requesting Discovery for the address and phone number of the JDB's employee who signed the typical Affidavit of Account the attorney included this in the response:

"Plaintiff objects to definitions provided by Defendant for use in responding to these Requests in that said definitions attempt to modify what terms mean under the Texas Rules of Civil Procedure and commonly accepted English language interpretations. They are not legal terms requiring definitions."

On the next page he did include an address and phone number that happens to be the address of the plaintiff's headquarters, not the person's home address.

What is the point of such an objection and what significance does it hold in the case?

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Sounds like they are claiming you included definitions that modified the rules of discovery. If that is so, it's a legit objection. However, it's also very legit for you to be provided the contact info for the person that signed the affidavit.

I see where you are going with this, but it will be the duty of the other side to get this person to court, assuming you object to this affidavit. But, you can do a full blown deposition if you wish. That request would go through the other sides attorney.

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It was initially for the purpose of subpoenaing him (he lives over 1,000 miles from the court)

I thought a motion to strike the affidavit would look better if I had first subpoenaed the affiant assuming they would come up with an excuse so he wouldn't show up but the more I read about these generic affidavits the more I'm convinced that they are worthless in court if the plaintiff is not the original creditor.

Anyway how could I have included such definitions?

Exact wording:

1. Per Texas Rules of Civil Procedure 196, Defendant requests the discovery or production of the address and phone number of Jeff Hasenmiller, the Affiant of The Plaintiff's Affidavit of Claim which has recently been entered into evidence.

2. The Defendant requests that you make the requested address and phone number available by mailing them via certified US mail with return receipt to:

<my name and address>

He had included the same jargon on his response to my previous discovery requests also.

Edited by texasrocker
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They are going to block any attempt to get at the affiant, since that is the person that will ultimately make or break the case...

Try this:

Here's his LinkedIn profile...Jeff Hasenmiller | LinkedIn

Subpoena his previous employoer for employment information. Then send a request for production for his present job description.

If you get more flack, then file your motion to preclude since you can state that counsel has done everything to keep the witness from being cross examined.

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Hey! It's my buddy Jeff from Equable Ascent Financial. He's the keeper of records for over 35,000+ accounts they purchased from Chase.

Has he ever testified?

I would ask again and file a copy of the second request with the court. Don't cite the rule, just ask for contact information for the affiant.

They don't need to provide home address and phone number. Just the business address and phone number.

Anybody want my list of Cross examination questions for him? LOL

Edited by First Timer
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Hey! It's my buddy Jeff from Equable Ascent Financial. He's the keeper of records for over 35,000+ accounts they purchased from Chase.

Has he ever testified?

I would ask again and file a copy of the second request with the court. Don't cite the rule, just ask for contact information for the affiant.

They don't need to provide home address and phone number. Just the business address and phone number.

Anybody want my list of Cross examination questions for him? LOL

I would love to see the list!

He even states on the affidavit, "...and if called as a witness I could competently testify to to the matters stated herein"

Why send a second request?

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Because, they will not produce him short of a court order...and if you have to go that route, you want to show the judge you did everything you could before bringing a motion to the court's attention.

This. The court does not want the parties to waste it's time with petty squabbling. By filing your second request with the court, then if you have to file a motion to compel, you can show that you made a reasonable request, was denied, made the request again and was denied, thus you have no choice but to request the court compel them to release the contact information for their affiant.

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Here is my list of questions. I had a second sheet of possible objections by Plaintiff's counsel and practiced with someone.

These questions were related to my case, obviously as there was a gap in the chain of title when Hilco and Equable Ascent merged.

Cross exam questions

DC: How long have you worked for Equable Ascent Financial, LLC?

DC: Who is the alleged original Creditor in this case?

DC: Have you ever worked at Chase Bank?

DC: Do you have personal knowledge of Chase's business practices or accounting and billing procedures?

DC: I'd like to to draw your attention to Exhibit 1, the Cardmember agreement.

DC: Does the defendant's name appear on the document?

DC: Does the alleged account number appear on the document?

DC: Was Equable Ascent Financial the originator of this document?

DC: If I went out to the gallery and chose a person and gave him this same document and told him with 100% certainty that it was a card member agreement between the judge and Chase Bank, would that be true?

DC – If I then put that same person on the stand and put him under oath and asked him if to the best of his personal knowledge that this was a card member agreement was between the judge and Chase Bank and he said yes would that make it more true?

DC: So how then, since you were not the originator of this document, can you state that the cardmember agreement is 100% with certainty between the defendant and Chase Bank? Why does it work for the plaintiffs records, but not my records?

DC: I'd like to draw your attention to the Bill of Sale, marked Exhibit 2. According to this document, Hilco Receivables LLC purchased 38,062 accounts from Chase Bank, correct?

PW: Yes

DC: Were you the originator of this document?

DC: Were you present when this document was signed?

DC: Is the document notarized?

DC: Does the name of the Defendant appear anywhere on the document?

DC: Does the alleged account number appear anywhere on the document?

DC: Since there is no account number , then there is no alleged dollar amount on the document for the alleged account either, correct?

DC: Does the name of the Plaintiff appear anywhere on the document?

DC: So where on this document does it state that Equable Ascent purchased an account in the name of the defendant for the amount claimed?

DC: How would this court and the Defendant have any proof that Hilco is now Equable Ascent?

DC: So we just have to take your word for it?

DC: If The Defendant is going to testify later that he himself purchased the assets of Hilco Receivables. Would that testimony be true? Do you think it would be important for the Defendant to have authenticated documentation back up the testimony that he purchased the assets of Hilco Receivables?

DC: Yet you are asking the court once again to take your word for it.

DC: I have in my hands a fake Bill of Sale for demonstration purposes only. It says that I purchased 10,000 accounts from Wells Fargo. I want to collect from the judge 1 million dollars for an account which I say was transferred to me in the sale. Would that be sufficient enough for him to write me a check for a million dollars?

DC: Do you have selective authenticating skills? You just testified that the documents are accurate, but if I transfer my records from Wells Fargo to you, then you would not be able to authenticate them, would you, because you would have no personal knowledge since you did not originate the documents, correct?

DC: You testified that the alleged amount owed on the account was correct. What were you referencing to validate the alleged amount owed?

DC: You testified that there is an account with the defendant's name on it, correct?

DC: What were you referencing to validate that the information was correct?

DC: Prior to your testimony today, did you review any documents or records to refresh your memory of the the facts of this claim?

DC: What documents did you review?

DC: During your testimony today, did you review any documents or records to refresh your memory of the the facts of this claim?

DC: What documents did you review?

DC: So, to recap, you are testifying that you did not originate the the Bill of Sale and did not originate the cardmember agreement and have no true personal knowledge of either document, correct?

First Motion:

Your honor, witness has testified that he reviewed writings and records not in evidence prior to, and during his testimony.

Under Colorado Rules of Evidence , specifically rule 612 – Writing used to refresh memory -

If a witness uses a writing to refresh his memory for the purpose of testifying, either -

(1) while testifying, or

(2) before testifying, if

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. Being that no such writings have been produced, I move that this witness' testimony be struck from the record.

Second motion: Your honor, Witness has testified that they have no first hand knowledge of the validity of the original debt. In the absence of an affidavit or testimony of the original creditor to validate the existence of the debt and its assignment to Plaintiff, any testimony from the witness to the validity of the debt, or to the validity of the submitted exhibits is hearsay and thus inadmissable under Rule 802 Hearsay Evidence.

Objection by PC that exception is allowed for business practice.

Rebuttal: Your honor, Witness has already testified that he has no direct knowledge of the business practices and billing and collection practices of Chase Bank. Allowing testimony with no personal knowledge of Chase business and accounting practices constitutes hearsay within hearsay according Colorado Rule 805 – and requires each part of the testimony conform to exceptions under Rule 803. Since no evidence has been presented confirming first-hand knowledge of the original validity of the alleged debt, it must be ruled hearsay and absent that validation, all testimony from this witness would be hearsay.

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I like it !! And might I add you could work this argument in if they claim business records exception. Quoting the judge in my case when I objected to the original creditors records as hearsay and the other side said, business records exception.

"You can't take somebody else business records, drop those business records in your file (as the judge picks up a piece of paper and drops it in a file on the bench, guess he figured he really had to dumb it down for the other side and pretend we were playing Charades), put that file in your file cabinet, shut the file cabinet, and then claim those records are now your own business records, and are admissible under the business records exception to hearsay."

Objection sustained (with an almost shocked and disgusted look on his face they actually made that argument), go home losers. Okay I threw in the go home losers.

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This. The court does not want the parties to waste it's time with petty squabbling. By filing your second request with the court, then if you have to file a motion to compel, you can show that you made a reasonable request, was denied, made the request again and was denied, thus you have no choice but to request the court compel them to release the contact information for their affiant.

OK I'm confused now- Did y'all not see in my original post that he did give me the address and phone number of the Plaintiff's headquarters? Then you said, "They don't need to provide home address and phone number. Just the business address and phone number" so in essence they have already fulfilled the request, right?

Edit: After reviewing the Texas Rules of Civil Procedure he doesn't have to appear anyway because he resides over 150 miles from my county so it looks like I need to serve the attorney with a notice of oral deposition.

176.3 Limitations.

(a) Range. A person may not be required by subpoena to appear or produce documents or other

things in a county that is more than 150 miles from where the person resides or is served.

However, a person whose appearance or production at a deposition may be compelled by

notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents

or other things at any location permitted under Rules 199.2(B)(2).

199.3 Compelling Witness to Attend.

A party may compel the witness to attend the oral deposition by serving the witness with a subpoena

under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the

control of a party, however, service of the notice of oral deposition upon the party's attorney has the

same effect as a subpoena served on the witness.

200.2 Compelling Witness to Attend.

A party may compel the witness to attend the deposition on written questions by serving the witness

with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or

otherwise subject to the control of a party, however, service of the deposition notice upon the party's

attorney has the same effect as a subpoena served on the witness.

199.2 Procedure for Noticing Oral Depositions.

(B) Content of notice.

(2) Time and place. The notice must state a reasonable time and place for the oral

deposition. The place may be in:

(A) the county of the witness's residence;

(B) the county where the witness is employed or regularly transacts business in

person;

© the county of suit, if the witness is a party or a person designated by a party

under Rule 199.2(B)(1);

(D) the county where the witness was served with the subpoena, or within 150

miles of the place of service, if the witness is not a resident of Texas or is a

transient person; or

(E) subject to the foregoing, at any other convenient place directed by the court

in which the cause is pending.

Edited by texasrocker
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OK I'm confused now- Did y'all not see in my original post that he did give me the address and phone number of the Plaintiff's headquarters? Then you said, "They don't need to provide home address and phone number. Just the business address and phone number" so in essence they have already fulfilled the request, right?

Edit: After reviewing the Texas Rules of Civil Procedure he doesn't have to appear anyway because he resides over 150 miles from my county so it looks like I need to serve the attorney with a notice of oral deposition.

176.3 Limitations.

(a) Range. A person may not be required by subpoena to appear or produce documents or other

things in a county that is more than 150 miles from where the person resides or is served.

However, a person whose appearance or production at a deposition may be compelled by

notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents

or other things at any location permitted under Rules 199.2(B)(2).

199.3 Compelling Witness to Attend.

A party may compel the witness to attend the oral deposition by serving the witness with a subpoena

under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the

control of a party, however, service of the notice of oral deposition upon the party's attorney has the

same effect as a subpoena served on the witness.

200.2 Compelling Witness to Attend.

A party may compel the witness to attend the deposition on written questions by serving the witness

with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or

otherwise subject to the control of a party, however, service of the deposition notice upon the party's

attorney has the same effect as a subpoena served on the witness.

199.2 Procedure for Noticing Oral Depositions.

(B) Content of notice.

(2) Time and place. The notice must state a reasonable time and place for the oral

deposition. The place may be in:

(A) the county of the witness's residence;

(B) the county where the witness is employed or regularly transacts business in

person;

© the county of suit, if the witness is a party or a person designated by a party

under Rule 199.2(B)(1);

(D) the county where the witness was served with the subpoena, or within 150

miles of the place of service, if the witness is not a resident of Texas or is a

transient person; or

(E) subject to the foregoing, at any other convenient place directed by the court

in which the cause is pending.

In my case, they petitioned the court to allow Hasenmiller to testify by phone. Check your state's rules, but you may be able to subpoena testimony by phone.

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What is the point of such an objection and what significance does it hold in the case?

None, he's just trying to let you know he's a lawyer and you're not. The way around all these stupid instructions is simple, I use it and it never failed yet.

"These requests may be answered in accordance with the (fill in the state) Rules of Civl Procedure as set forth in (list the section for discovery)" Let them try to object to the court rules. Saves a lot of time, paper, and ink as well.

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Where you subpoena the witness, they show up to the designated place, are placed under oath and you ask them a bunch of questions and if the opposition's attorneys are there, they cross examine them, etc... You can also do depos over the phone, and many states have provisions for written depos.

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Depositions may be fun, but they can get very expensive. So can bringing the person to court by subpoena. You may find yourself footing the bills for transportation, lodging, and a daily stipend. There can also be a lot of problems if the person is in another state. You also have to hire a court reporter, and some states require that depositions be conducted by an officer of the court. That means a pro se doesn't get to grill the victim, he has to hire a lawyer to do it. Again, Rule 200 lets you do this by interrogatory. Either that or let the JDB bring their own guy to court.

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