Help, trial in a few hours and i hit a bump in road

[yellowdog]

I have an affidavit of assignment from the OC which was created about 8 months after the BOS.... Did my case just blow up in my face or can i still try and blow up the BOS ?

thanks

[usagi555]

Trial, as in trial trial and not a hearing? If it is at trial, I would object to the affidavit as hearsay. I couldn't find the equivalent of FRCP43 in Florida's rules that would cinch down what I'd be after. Unfortunately, while I could shred such an affidavit in my state at trial, I would have a tough time in FL if I had a trial tomorrow because of my lack of knowledge regarding FL's rules. I know that some of FL's rules match the Federal, but I don't think that all do. You had better find and learn the hearsay rules and hearsay exceptions (which I do believe mirror the federal rules) before trial, so you can object to the affidavit as hearsay. I would help more, but even states that very closely match the federal rules have their own little differences.

Just remember, you cannot cross examine that affidavit.

[yellowdog]

Because the affidavit of assignment wasn't produced until about 10 months after the BOS I thought i was good. I assumed the BOS had to have an affidavit attached to it, not one that pops up almost a year later. I guess just a huge rookie mistake, but i guess unless i can find a notary violation, I may be cooked.

thanks

[usagi555]

I'd bet that there is a rule that makes that affidavit complete crap as far as the court is concerned. The blasted problem is that I don't know what rule to use to inform the court that it should should pull out its affidavit-to-crap machine. If you aren't going to get much sleep tonight, dig hard into Florida's rules of evidence, specifically Florida's rules that say what hearsay is and Florida's rules specifying exceptions to the hearsay rule.

[usagi555]

Oh, and if the affidavit was created 8 months after the BOS, it was not made at or near the time of the event in question, and therefore was not made from personal knowledge. I'll bet this knocks it squarely out of an hearsay exception that Florida has. I think you can win, but only and I mean ONLY if you do YOUR part when it comes to properly objecting and raising issues.

[yellowdog]

BV80 is helping me try to blow up the notary, because it doesn't include a city or town, just the commonwealth of virginia and that is a NO NO.

I think your right dang it... can i hang my hat on that one ?

[Coltfan1972]

Would just depend on the rules in Florida and if your lack of objection during discovery deems the affidavit admissible. I would think the time frame would easily get this tossed.

I don't see any issues, but worth looking into for sure. I think you're getting a little to focused on standing. Obviously that is good and what I love to use and recommend. However, don't forget you have other challenges you can make. Nothing says you have to admit to the debt or say the figure is correct when challenging standing.

Standing is just one element of their case they must prove. Yes, in my opinion when dealing with a JDB, by far the most important element to challenge as without standing even if all other elements are met, the case is still a loser.

I don't see issues. However, take a machine gun loaded full of arguments and not just a single shot pistol worth.

An affidavit is hearsay. You just need to see what FL allows for the hearsay exception. In my state, we go by the federal rules for about 90% of things. Might need to get on the old Google and Google Scholar right now and don't let up until the trial. Good Luck !!!

[Coltfan1972]

You've got good help with BV80. I did a quick Google search using Florida Rules of Civil Procedure Affidavits.

Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

What was attached to the affidavit? If I read your post right it appears the bill of sale and the affidavit are eight months apart.

[yellowdog]

thanks coltsfan,

it looks like an all nighter for sure, just put on the java and have to leave house in four hours. cramming for finals

if anyone from FL can help with this issue, I need it.

OK, off to scholar land !!

[yellowdog]

actually the BOS and affidavit is 10 months apart.

[yellowdog]

Coltsfan,

I just went to the rules of civil procedure page and the one you pointed out applies i think. Is it basically saying that the affidavit has to be attached to whatever the affidavit is claiming to be valid ... i.e. the BOS..

is that correct ? this is one big huge riddle.

[Coltfan1972]

That is exactly what the rule is saying, but not just attached. Sworn or certified copies shall be attached.

I'd object for hearsay first. I think you get that, but if not, then attack the affidavit. Don't even hint there could be some legitimacy to the affidavit, just get it deemed inadmissible.

[BV80]

Actually, the affidavit doesn't have to be made at or near the time of the event. The affidavit has to state the record (in this case, the bill of sale) was made at or near the time of the event (sale of the account).

This is from a FL case:

"For Dr. Wingo's records to have been admissible, claimant would have had to show that they were. 1) made at or near the time of the event recorded..."

For instance, the bill of sale would have to have been made at or near the time of the sale.

The affidavit of assignment not reference the bill of sale. It states the OP's account was sold to Cach on or about such and such date. That, in itself, is not good. BUT, the affidavit, in my opinion, is not valid.

VA law states the 7 items are required on a notarial act. One of those items is inclusion of the city and state or county and state where the notarial act took place. The law doesn't say that one of those 7 items can be left out. They all must be there.

The city and state is not included on the affidavit. Therefore, it's not valid. As a result, it's just an unsworn statement from someone who claims to be an authorized agent of Cap1.

It mentions computerized records and the balance. Even it if were a valid affidavit, it doesn't state that those records were made at or near the time of the event. Therefore, it wouldn't authenticate the cc statements submitted by Cach.

"The business records exception to the hearsay rule, Section 90.803(6), Florida Statutes (1987), authorizes admission of certain written material

made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness."

Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369 - Fla: Dist. Court of Appeals, 1st Dist. 1992

Also, the affiant states she's an authorized representative. She made statements based upon computer records.

"In order to prove a fact of evidence of usual business practices, it must first be established that the witness is either in charge of the activity constituting the usual business practice or is well enough acquainted with the activity to give the testimony." Mastan Company v. American Custom Homes, Inc., 214 So. 2d 103 - Fla: Dist. Court of Appeals, 2nd Dist. 1968

Being an authorized representative doesn't mean she is well enough acquainted with the business practices to be considered a qualified witness.

[yellowdog]

wow, you are amazing !

how the heck can i break this down in newbie terms, i will check the message you sent and try to figure it out.

thanks

[BV80]

I'd point out that in the invalid affidavit, the affiant states she's an authorized agent. She doesn't claim to be the custodian of records. In fact, she doesn't state what her duties entail as an authorized agent.

She states the statements in the affidavit are based on the computerized and hard copy records of the Seller. She doesn't state she actually reviewed those computerized records. As far as we know, she simply signed a prepared affidavit and reviewed nothing herself.

"The affiant did not (nor could he) state that he had personal knowledge of the matters contained in Metro's business records, nor that the bank records were complete or correct and were kept under his supervision and control. See § 90.803(6), Fla. Stat. (1981)." Thompson v. CITIZENS NAT. BK., 433 So. 2d 32 - Fla: Dist. Court of Appeals, 5th Dist. 1983

I just want to make sure this is just a hearing. They haven't filed for summary judgment?

[rikkivs]

Good luck with your case tomorrow and write yourself up a cheat sheet in large printed letters with boldface type that way if you get nervous and have a hard time reading, it will be easier for you!

BV80 has helped so many people out on this board it is ridiculous!

[yellowdog]

You are a life saver, i will print this out and the information about the notary not being valid under VA law to add the mix. Win lose or draw i can not thank you enough ...!

It something comes to mind i will have iphone on until i enter the court in a few hours..

BV80 rules !:D:D:D

[yellowdog]

this is trial and summary judgement is what they are seeking ..

[rikkivs]

Keep up your faith that you are doing the right thing and try your hardest. That is all we can do. Let us know how it goes:)

Best wishes!!!

[BTO429]

made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness."

Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369 - Fla: Dist. Court of Appeals, 1st Dist. 1992

But if the person who signed the affidavit is not present in court to attest to the accuracy of the affidavit it is still moot and falls under the hearsay rule.

You can not cross examine a piece of paper,,regardless of how true the statements contained within the paper are, if the person who signed and attested that those statements are true can not be in court to back up what the paper says it is still hearsay.

[yellowdog]

so far i do not see a witness !!!

[BTO429]

than it is hearsay

[yellowdog]

two more to go ahead of me, and all i see is one CACH rep that took stand in other case. i think that is all they have, not the signee of the affidavit of assignment for OC

[BTO429]

Then you verbally make a motion to the court to strike the affidavit as hearsay

[usagi555]

Actually, the affidavit doesn't have to be made at or near the time of the event. The affidavit has to state the record (in this case, the bill of sale) was made at or near the time of the event (sale of the account).

My brain was in park, you are correct.