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Defendant's Affidavit


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You simply tell your side of the story with as many facts as you can bring into play and you present it as straightforward and as convincing as you can. You can do it point-by-point... such as... 1. On May 24, I did this. 2. I followed up by doing this. 3. Then, on May 25, this happened. 4. And lastly, I did this and then that happened. It has to be signed and notarized.

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You simply tell your side of the story with as many facts as you can bring into play and you present it as straightforward and as convincing as you can. You can do it point-by-point... such as... 1. On May 24, I did this. 2. I followed up by doing this. 3. Then, on May 25, this happened. 4. And lastly, I did this and then that happened. It has to be signed and notarized.

Pretty much, but you want to keep it focused to rebutting whatever their affidavit stated. You don't want to plead your whole case in an affidavit.

For example, if they say "our records indicate the Defendant owed Citibank 4K"

You could reply with, "After a careful review of the Defendant's records (I don't know you might not have to talk in 3rd person) the Defendant's records indicate the Defendant did not or does not owe Citibank 4K.

Keep it right to the point and make the affidavits cancel each other out and therefore live witness testimony will be required.

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Thanks for the reply. When you're up against an OC, isn't your only real shot at the affidavit? They submitted with their complaint a 'fill in the blanks' affidavit that identified me by first initial and last name, accnt # and balance due. The cc statement had a first initial only, and the charge off date.

I have answered their rogs with the standard denial, filed a MTS, which they countered with a motion to dismiss my strike stating that at trial, they'll prove their case. I pulled my CR and found not only did THEY pull it this far into court action, but I asked TU to verify the account and correct my name.

Too early to hear back.

At this point I think I have to file my own opposing affidavit, rogs, and possibly a MTC JAMS. This is assuming the OC can come up with whatever they need to, and all the pleadings and motions are above my pay grade.

I win or lose on the affidavit alone, true?

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I win or lose on the affidavit alone, true?
No, affidavits are worthless when challenged.

Affidavits win cases, usually summary judgement, when not challenged or not challenged properly.

Not saying they are going to win, but they used the correct argument when they said they would prove their case at trial. You've taken the easy option away from them so they no have to go at it the harder way, an actual trial.

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Who is the affiant by name? What OC is this?

Affiant , Legal Placement Accnt. Mgr.

OC is D

It's the poorest excuse for a legal doc I've ever seen. Undated, fill in the blanks - including where Affiant fills in her name.

Edited by shorebird
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See how it tears down the arguments from the affidavit.

you can see how it will work for you.

you use the guts and caption the affidavit to fit your states peculiarities.

so this was for a friend and it should be a good framework for you.

"a gentle nudge at the right time will make a meteor miss it's mark. the farther out the smaller the nudge" Seadragon

Affidavit denying plaintiff's claims.doc

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On a side note, if you are planning on JAMS, that ship might have sailed. I'd high tail it to Linda7 and see if you still have that option. I'm not saying the option is the way to go or not, just notice you stated JAMS.

I did follow Linda7's posts to elect JAMS, and I'm ready to send off all the certified letters.

What to do with all the CA's violations? Am I saving that for JAMS?

Would you include that in the letter to the partner at the CA lawfirm?

They owe me more than I owe them at this point!

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Thanks! I really appreciate you sharing that with me.

I did not do my own affidavit.... Heck, I didn't even submit an Answer.

I went right for MTS. I poked at her statements, line for line.

Doesn't explain how she came into business records, only that unnamed records represent a balance due OC.

Doesn't claim to know how records are kept, or how calculated, or that they are accurate and complete.

States her position as 'Legal Placement Accnt. Mgr.', but w/o further description does not demonstrate her to be competent.

Does not claim knowledge of docs attached to her affidavit.

At least my MTS didn't get struck down. Hearing on 6/14

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The title for these affiants are jokes. It's just part of their gestapo tactics to smack down an easy default win. But how credible would it sound if her title was "robo-signer of stuff that fell off the printer?"

We find the Affidavit does not comply with Civ. R. 56(E). The Affidavit fails

to establish the affiant's personal knowledge and fails to affirmatively show the affiant is competent to testify to those matters. Because the Affidavit did not comply with Civ. R. 56(E), we find the trial court should have granted Appellant’s motion to strike.

The footnote read "Affiant’s position as “Legal Placement Accounts Manager”, without further description, does not establish the affiant has personal knowledge or is competent to testify as to Appellant’s account."

See Discover Bank v Peters (Ohio)

I know exactly who you are dealing with. 5% cash back?

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You would think the judge would have some responsibility to actually look at the mess they submit

Unfortunately, this is your job, not his. They could submit an affidavit in crayon on a paper bag with no names on it, and it would be admitted unless somebody objects to it.

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God bless that affidavit! For those of us that have never been to the courthouse for anything other than a traffic ticket, this process is a bit intimidating. Feels like a public stoning.

Edited by shorebird
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Thankfully, Linda7's instructions included filing an answer, which I did yesterday. I thought my 'answer' was tearing off the bottom of the complaint and asking for exact proof. I filed that with the clerk and showed up at the pre trial.

The answer I filed yesterday included electing arbitration. MTC, the Jams Demand form, and affidavit's for the answer, the cc agreement (that included JAMS as an option), and the MTC were filed as well.

The only other motion I filed previously was the MTS their bogus affidavit.

My understanding was the more you participate in litigation, the riskier it becomes that the judge will automatically rule for arbitration.

My trial date is next Thurs. Hopefully, I 've covered my bases.

BTW, I took their complaint to two different lawyers. The first, a BK atty told me to 'pay 'em'. The pro bono guys told me it was an OC and I was gonna lose.

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They seem terrified of OC's and like to advise people to just let them get a judgment, and then fight the judgment with a claim of exemption (that's when you're collection-proof and it's not worth it to file BK). :(

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My CA has filed a new Affidavit! No blanks to fill in this time.

The Affidavit also comes with a BOLD title

She attaches the same Discover agreement, the same single cc statement from Aug. 2010 showing the charge-off, and this time she's included an Order

ORDERED that the certified record of regularly conducted business activity of the Defendant be and hereby is GRANTED.

She filed this the day after I filed my MTC.

Edited by shorebird
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This is motion recycling, submit the same crap hoping for a better outcome. Read those rules she cited and see if you can pick this apart. Then check the applicable Delaware statutes and see if they apply. After all, they insisted in the cardholder agreement that DE law applies. This would be under the rules of evidence in the code, not court rules.

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Legal, the Rule she's talking about is business records or other docs being self-authenticating, and having no need for a live witness. As in certified copies of public records.

She's going to have a small problem with the exception "...unless the sources of information, or the method, or circumstances of preparation indicate lack of trustworthiness" since she had to do a quick step to get a second Affidavit introduced.

Under the scribble that is supposed to be Affiant's signature, "An Employee of DB Servicing Corp."

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Yes, but my argument is that MD law does not apply due to the cardholder agreement which specifies Delaware law. They always pull this, they use their laws until yours look better.

The GRANTED thing may be a misinterpretation on the part of the OP; Every motion is accompanied by an order for the judge to sign. "The foregoing having been duly considered, it is hereby GRANTED / DENIED. The judge will check off the one he chooses and sign it, it doesn't mean you lost.

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I wasn't concerned about the 'ordered' or 'granted'.

She was certifing the record of regularly conducted business activing of the defendant. I thought she must have meant Plaintiff's record.

You're not happy about the Trustworthiness exception in her Rule?

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This would be a curable defect, a typo. You'd be surprised how many mistakes these law firms make, judges just let it go. It is up to the litigant to establsih lack of trustworthiness. "Unless" is the key word. this puts the burden on the other side, again, I would look at DE law.

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