jwsjohn01

Need Midland Advice in Missouri

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DEFENDANT'S FIRST SET OF 18 REQUESTS FOR ADMISSIONS DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

DEFENDANT'S FIRST SET OF 18 REQUESTS FOR DISCOVERY DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

DEFENDANT'S FIRST SET OF 18 REQUESTS FOR INTERROGATORIES DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

CERTIFICATION OF SERVICE

A copy of the DEFENDANT'S FIRST SET OF 18 REQUESTS FOR ADMISSIONS mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

CERTIFICATION OF SERVICE

A copy of the DEFENDANT’S MOTION TO STRIKE AFFIDAVIT mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

I didn't even bother with interrogatories either time.

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Here is my motion to STRIKE AFFIDAVIT. What do you think?

IN THE CIRCUIT COURT OF XXXX COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

)

MIDLAND FUNDING LLC, )

Plaintiff, ) Cause No. ########

)

v. ) Division No.

)

JWSJOHN01, ) Date July 03, 2012

Defendant. )

DEFENDANT’S MOTION TO STRIKE AFFIDAVIT AS HEARSAY

AFFIDAVIT OF XXXXX XXXXXXXXXX

COMES NOW Defendant, JWSJOHN01, and moves this court for an order striking AFFIDAVIT OF XXXXX XXXXXXXXXX submitted in PLAINTIFF’S PETITION, a copy of which is attached as an exhibit to this action. In support of motion, Defendant offers:

1. Plaintiff has submitted into evidence AFFIDAVIT OF XXXXX XXXXXXXX in support of PLAINTIFF’S PETITION (hereinafter “AFFIDAVIT”).

2. AFFIDAVIT concerns a contract that was allegedly formed between Defendant and a third party, CHASE BANK USA.

3. AFFIDAVIT fails to validate the alleged contract formed between Defendant and the original creditor, CHASE BANK USA.

4. AFFIDAVIT fails to establish XXXXX XXXXXXXXX witnessed the alleged contract formed between Defendant and the original creditor, CHASE BANK USA.

5. AFFIDAVIT fails to establish XXXXX XXXXXXXXXXX is or was at any time, employed by CHASE BANK USA. Therefore, signatory is an incompetent witness to the alleged contract formed between Defendant and CHASE BANK USA.

6. AFFIDAVIT, as such, is inadmissible as evidence as per the Hearsay Rule.

CERTIFICATION OF SERVICE

A copy of the foregoing mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

I think you need to qualify your statements a little more. Here's some suggestions:

1. Plaintiff has submitted into evidence an AFFIDAVIT OF [affiant's name], in support of Plaintiff’s Claim, hereinafter referred to as "Affidavit".

2. Plaintiff has no evidence to support that they are the owner of said debt. Ownership cannot be assumed without creating an unfair prejudice against the Defendant. (Again, this will make or break your case; hammer away at standing every chance you get)

3. Said Affidavit pertains to acts and events that allegedly occurred between Defendant and a third party, XXXXX BANK.

4. At no time was the creator of the Affidavit, or any of Plaintiffs employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and XXXXX BANK.

5. The information contained in the Affidavit is merely an accumulation of hearsay. As such, said Affidavit falls under the hearsay rule and is inadmissible as evidence.

6. Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events.

7. Upon information and belief, the creator of the document is not currently and has never been employed with XXXXX BANK, and therefore cannot have personal knowledge of how XXXXX BANK’s records were prepared and maintained.

8. Plaintiff is unqualified to testify as to the truth of the information contained in the Affidavit.

WHEREMORE, the Defendant prays this Honorable Court that Plaintiff’s Affidavit be stricken from evidence in the above action.

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Just one suggestions: I pinned them down with Admit that Plaintiff is unable to provide a true copy of any assignment, referencing the alleged debt, between the Original Creditor. and the Plaintiff.

This is where they buckle, because without this, they cannot show standing in the case, and when they cannot show standing, everything else is irrelevant. Otherwise, it looks great!

I think I included that in #4. I think most, if not all of these admissions, came from your earlier suggestion.

Thanks!!

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Most of your admissions have nothing to do with a JDB or are just plain irrelevant. 3,4,7,11,and 12 have some merit, the rest will just be objected to. The MTS the affidavit seems to be concentrating on the "contract." I didn't see the affidavit here, but most JDB affidavits address the balance and say that they have copies of the OC's records, etc, we swear they are accurate, that kind of BS. Generally speaking, courts do not require a contract for credit card cases. The most they ever require is a cardholder agreement, which isn't a real contract in the strict sense of the word.

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I would not use #5 and #6. An affidavit is not a business record. It also does not have to be made at or near the time of the event. Affidavits are made after the fact all the time.

In this case, it's being used to authenticate business records and to support the Plaintiff's allegations. It has to comply with the requirements of the hearsay rule by the information it contains and the language used.

Does the affiant state that he/she has personal knowledge? Does he/she mention the records provided by the JDB?

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I would not use #5 and #6. An affidavit is not a business record. It also does not have to be made at or near the time of the event. Affidavits are made after the fact all the time.

In this case, it's being used to authenticate business records and to support the Plaintiff's allegations. It has to comply with the requirements of the hearsay rule by the information it contains and the language used.

Does the affiant state that he/she has personal knowledge? Does he/she mention the records provided by the JDB?

To your questions-- YES and YES.

The affidavit contains (2) points.

1. Access to and "personal knowledge" of the Midland account records, and assertion that Plaintiff is the current owner of the account.

2. Account balance is correct.

Can you explain a little more about #5 and #6?

My thought process was:

1. The affiant is swearing to personal knowledge of the account and amount due.

2. If the affiant has never been employed by the OC then they are relying on information conveyed to them by another party.

3. Any information that the affiant states about the account records is, by definition, hearsay.

4. If the Plaintiff objects on the basis of Business Records Exception, then I believe too much time has expired for this exemption.

What am I missing?

Edited by jwsjohn01

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OK. Revised admissions. Any thoughts?

IN THE CIRCUIT COURT OF XXXX COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

)

MIDLAND FUNDING LLC, )

Plaintiff, ) Cause No. ########

)

v. ) Division No.

)

JWSJOHN01, ) Date July 03, 2012

Defendant. )

DEFENDANT”S FIRST SET OF 9 REQUESTS FOR ADMISSIONS

DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

A FAILURE TO TIMELY RESPOND TO REQUESTS FOR ADMISSIONS IN COMPLIANCE WITH RULE 59.01 SHALL RESULT IN EACH MATTER BEING ADMITTED BY YOU AND NOT SUBJECT TO FURTHER DISPUTE.

COMES NOW Defendant, JWSJOHN01, and requests Plaintiff, Midland Funding LLC, by and through its undersigned attorneys, to admit the following matters of fact, as required by Missouri Rule 59.01. The answers to these Requests for Admission should be signed by the person making them, and a copy of the answers should be mailed to Defendant's address, XXXX XXXXXX, and served on the Defendant no later than thirty (30) days subsequent to the service of these Requests for Admission.

DEFINITIONS

The following definitions are to be used in responding to the following Request for Admissions.

A. "Plaintiff," means Midland Funding LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, JWSJOHN01 an individual.

1. Admit that Plaintiff is unable to provide Defendant with a copy of any contract signed by Defendant.

2. Admit that Plaintiff is unable to provide Defendant with copies of bills of sale, containing information to establish its ownership of the particular alleged account.

3. Admit that Plaintiff is unable to provide a true copy of any assignment, referencing the alleged debt, between the original creditor and the Plaintiff.

4. Admit that Plaintiff is not a proper party to this action.

5. Admit that Plaintiff is unable to provide a complete accounting for the amount claimed as the alleged debt.

6. Admit that no employee, agent, or representative of Plaintiff is a custodian of records for the original creditor on the alleged account.

7. Admit that no employee, agent, or representative of Plaintiff has personal knowledge of original creditor's method or manner of record keeping of any records pertaining to Defendant that is the basis of this action.

8. Admit that Plaintiff does not intend to call any witness who has personal knowledge of said account at the time of its creation or knowledge of the account when it was allegedly breached.

9. Admit that Plaintiff is unable to provide admissible evidence to support the Suit on Contract, Money Had and Received, and Account Stated claims as stated in Plaintiff’s Petition.

CERTIFICATION OF SERVICE

A copy of the DEFENDANT’S FIRST SET OF 9 REQUESTS FOR ADMISSIONS mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

Edited by jwsjohn01

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You haven't posted the affidavit, so I'm playing this by ear. Most JDB affidavits state that the affiant has personal of records. They have personal knowledge of JDB records but not of OC records. However, personal knowledge of OC records isn't always required.

In Missouri, however, it might be a different story. The hearsay rule in many states is Rule of Evidence 803(6). In Missouri, it appears to be Missouri Revised Statute 490.680.

Missouri Revised Statues

Records, competent evidence, when.

490.680. A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

That rule mentions knowledge of the mode of preparation. A JDB's affiant may testify that they are the custodian of the JDB's records. But, they don't have knowledge of the mode of preparation of an OC's records. If you want to try to strike the affidavit or any OC documents, you need to include case law that supports your argument that the affiant has no knowledge of that mode of preparation.

"Before a document may be received in evidence, it must meet a number of foundational requirements including relevancy, authentication, the best evidence rule, and hearsay." Estate of West v. Moffatt, 32 S.W.3d 648, 653 (Mo.App. W.D. 2000).

In Asset Acceptance v. Lodge, "the legal director of Asset, a debt collection company, testified that Asset had purchased some accounts from a consumer lending company. Id. at 527. In support of this assertion, Asset attempted to use the legal director to establish a business records foundation for an assignment and bill of sale from the consumer lending company. Id. The legal director testified that "he had worked in the credit industry for nearly twenty years at the time of trial, and had worked for Asset for ten years." Id. He further testified that "he was familiar with how records were prepared in the industry." Based on the legal director's testimony, the trial court admitted the bill of sale. Id. However, the appellate court reversed the judgment on the basis that the legal director was not a "qualified witness" to a lay a proper business record foundation for the bill of sale produced by the consumer lending company because he "could not specifically testify to the mode of the documents preparation or the time of their preparation" given that the documents were not prepared by Asset." Asset Acceptance v. Lodge, 325 S.W.3d 525, 528 (Mo. App. 2010)

In CACH, LLC, v. Askew, Mo: Supreme Court 2012, Diana Eakins, the records custodian for Square Two Financial, which owns CACH, testified at the trial. The Supreme Court stated:

"In the current case, Eakins testified that she was neither the records custodian for Washington Mutual nor had she ever worked for Worldwide. In the light most favorable to the admission of the proffered exhibits, she testified that she had "bank training with most of the major banks" with which CACH worked. She did not testify that she had any bank training with Providian, Washington Mutual, or Worldwide. When asked how records were kept at Providian Bank, Washington Mutual, or Worldwide, Eakins testified, over objection based on hearsay, 'in the normal and ordinary course of business.' To have laid a proper foundation for the admission of Exhibit 7, she must have been a "qualified witness" as that term is used in § 490.680."

"To be a 'qualified witness' who can lay the foundation for a business record pursuant to § 490.680, Eakins must have 'sufficient knowledge of the business operation and methods of keeping records of the business to give the records probity.' Lodge, 325 S.W.3d at 528. Eakins' testimony was insufficient to meet this burden. As in C & W Asset, Eakins lacked sufficient knowledge of when or how Exhibit 7 was prepared. 136 S.W.3d at 140. To allow Eakins' testimony to satisfy § 490.680 would be contrary to the statute because it was insufficient to create the probability of trustworthiness on which the statute relies. Id. at 141; see also Kitchen v. Wilson, 335 S.W.2d 38, 44 (Mo. 1960).

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If you want to try to strike the affidavit or any OC documents, you need to include case law that supports your argument that the affiant has no knowledge of that mode of preparation.

All the example motions that I have found posted on the forums only contain charges/claims. Should I include supportive case law and arguments in my motion to strike or save that for the hearing?

Edited by jwsjohn01

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If you plan on filing a motion to strike, I know I would use case law if I were filing the motion. usually when you file a motion, the court needs more than our opinions on the reason for the motion. It's our opinion that the affiant has no personal knowledge of the account. But does the court require personal knowledge? You'd have to show the court through case law that it does require personal knowledge.

If the court does require personal knowledge, you'd have to show through case law that the affiant's personal knowledge doesn't meet court's standard of that knowledge.

The whole point is that the court needs more than our opinion. In any case, this is why some don't recommend a motion to strike. If the motion is granted, great. The cc statements or affidavit is thrown out. If the motion is denied and the documents remain, the JDB now knows your game plan.

I suppose you could file the motion without any case law. It would probably be denied, but your reasons for attempting to strike the documents would be on record.

Read some more opinions on the boards to make a more informed decision.

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OK. I have revised my Motion to Strike and added supportive case law. What are your thoughts?

IN THE CIRCUIT COURT OF XXXX COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

)

MIDLAND FUNDING LLC, )

Plaintiff, ) Cause No. ########

)

v. ) Division No.

)

JWSJOHN01, ) Date July 03, 2012

Defendant. )

DEFENDANT’S MOTION TO STRIKE AFFIDAVIT AS HEARSAY

AFFIDAVIT OF XXXXX XXXXXXXXXX

COMES NOW Defendant, JWSJOHN01, and moves this court for an order striking AFFIDAVIT OF XXXXX XXXXXXXXXX submitted in PLAINTIFF’S PETITION, a copy of which is attached as an exhibit to this action. In support of motion, Defendant offers:

1. Plaintiff has submitted into evidence the AFFIDAVIT OF XXXXX XXXXX in support of Plaintiff’s Claim (hereinafter “AFFIDAVIT”).

2. Said AFFIDAVIT pertains to acts and events that allegedly occurred between Defendant and a third party, CHASE BANK USA.

3. Said AFFIDAVIT fails to establish that affiant, XXXXX XXXXXXXXX, is or was at any time, employed by CHASE BANK USA.

4. At no time was the creator of the AFFIDAVIT present to witness any acts or creation of the records of transactions allegedly occurring between Defendant and CHASE BANK USA, and cannot have personal knowledge of how CHASE BANK USA’s records were prepared and maintained.

5. "Before a document may be received in evidence, it must meet a number of foundational requirements including: relevancy, authentication, the best evidence rule, and hearsay." Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). To satisfy these requirements, the records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997).

6. The information contained in the AFFIDAVIT falls under the hearsay rule under § 490.680, RSMo 1986, and is inadmissible as evidence. A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C & W Asset Acquisition LLC v. Somogyi, 136 S.W.3d at 140.

7. The AFFIDAVIT should not be admitted into evidence because the affiant, XXXXX XXXXXXXXXX, is “not qualified to lay a business records foundation” to support Plaintiff's claim, or her own claim that Plaintiff is the owner of the alleged debt. CACH, LLC v. Askew, (Mo. banc 2012).

CERTIFICATION OF SERVICE

A copy of the foregoing mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

Edited by jwsjohn01

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OK. Revised admissions. Any thoughts?

IN THE CIRCUIT COURT OF XXXX COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

)

MIDLAND FUNDING LLC, )

Plaintiff, ) Cause No. ########

)

v. ) Division No.

)

JWSJOHN01, ) Date July 03, 2012

Defendant. )

DEFENDANT”S FIRST SET OF 9 REQUESTS FOR ADMISSIONS

DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

A FAILURE TO TIMELY RESPOND TO REQUESTS FOR ADMISSIONS IN COMPLIANCE WITH RULE 59.01 SHALL RESULT IN EACH MATTER BEING ADMITTED BY YOU AND NOT SUBJECT TO FURTHER DISPUTE.

COMES NOW Defendant, JWSJOHN01, and requests Plaintiff, Midland Funding LLC, by and through its undersigned attorneys, to admit the following matters of fact, as required by Missouri Rule 59.01. The answers to these Requests for Admission should be signed by the person making them, and a copy of the answers should be mailed to Defendant's address, XXXX XXXXXX, and served on the Defendant no later than thirty (30) days subsequent to the service of these Requests for Admission.

DEFINITIONS

The following definitions are to be used in responding to the following Request for Admissions.

A. "Plaintiff," means Midland Funding LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, JWSJOHN01 an individual.

1. Admit that Plaintiff is unable to provide Defendant with a copy of any contract signed by Defendant.

2. Admit that Plaintiff is unable to provide Defendant with copies of bills of sale, containing information to establish its ownership of the particular alleged account.

3. Admit that Plaintiff is unable to provide a true copy of any assignment, referencing the alleged debt, between the original creditor and the Plaintiff.

4. Admit that Plaintiff is not a proper party to this action.

5. Admit that Plaintiff is unable to provide a complete accounting for the amount claimed as the alleged debt.

6. Admit that no employee, agent, or representative of Plaintiff is a custodian of records for the original creditor on the alleged account.

7. Admit that no employee, agent, or representative of Plaintiff has personal knowledge of original creditor's method or manner of record keeping of any records pertaining to Defendant that is the basis of this action.

8. Admit that Plaintiff does not intend to call any witness who has personal knowledge of said account at the time of its creation or knowledge of the account when it was allegedly breached.

9. Admit that Plaintiff is unable to provide admissible evidence to support the Suit on Contract, Money Had and Received, and Account Stated claims as stated in Plaintiff’s Petition.

CERTIFICATION OF SERVICE

A copy of the DEFENDANT’S FIRST SET OF 9 REQUESTS FOR ADMISSIONS mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

Any suggestions about the Admissions?

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1. Admit that Plaintiff is unable to provide Defendant with a copy of any contract signed by Defendant.

Denied (while not putting it in writing I'm thinking, I can provide it, I just won't).

2. Admit that Plaintiff is unable to provide Defendant with copies of bills of sale, containing information to establish its ownership of the particular alleged account.

Denied (while not putting it in writing I'm thinking, I can provide it, I just won't).

3. Admit that Plaintiff is unable to provide a true copy of any assignment, referencing the alleged debt, between the original creditor and the Plaintiff.

Denied (while not putting it in writing I'm thinking, I can provide it, I just won't).

4. Admit that Plaintiff is not a proper party to this action.

Denied. I guess I'd ask it just in case they don't answer and you can move to deem the admissions admitted and this would obviously win your case for you.

5. Admit that Plaintiff is unable to provide a complete accounting for the amount claimed as the alleged debt.

Denied for the same reasons.

6. Admit that no employee, agent, or representative of Plaintiff is a custodian of records for the original creditor on the alleged account.

Finally, a good one. Objection, overly broad and compound request.

8. Admit that Plaintiff does not intend to call any witness who has personal knowledge of said account at the time of its creation or knowledge of the account when it was allegedly breached.

Obviously denying. I plan to, my plans just happen to change about two minutes prior to trial.

9. Admit that Plaintiff is unable to provide admissible evidence to support the Suit on Contract, Money Had and Received, and Account Stated claims as stated in Plaintiff’s Petition.

Obviously denied.

In my opinion those admissions will only help you if the don't answer and you have them deemed admitted.

You're asking way to many "anything is possible questions"

Coltfan,

Admit you are not an astronaut.

Admitted

Admit you have never been an astronaut

Admitted

Admit that you never will be an astronaut

Admitted

Admit you don't work for NASA

Admitted

Admit you never are going to work for NASA

Admitted

Admit you don't own a space shuttle

Admit

Admit you know nobody that owns a space shuttle

Admit

and so on as long as you want to go.

Then the last admission.

Admit you will never fly to the moon.

Denied. I might win the lottery and fly to Russia, pay 20 million bucks like some guy did several years ago and let the Russian space program fly me to the moon.

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1. Admit that Plaintiff is unable to provide Defendant with a copy of any contract signed by Defendant.

Denied (while not putting it in writing I'm thinking, I can provide it, I just won't).

2. Admit that Plaintiff is unable to provide Defendant with copies of bills of sale, containing information to establish its ownership of the particular alleged account.

Denied (while not putting it in writing I'm thinking, I can provide it, I just won't).

3. Admit that Plaintiff is unable to provide a true copy of any assignment, referencing the alleged debt, between the original creditor and the Plaintiff.

Denied (while not putting it in writing I'm thinking, I can provide it, I just won't).

4. Admit that Plaintiff is not a proper party to this action.

Denied. I guess I'd ask it just in case they don't answer and you can move to deem the admissions admitted and this would obviously win your case for you.

5. Admit that Plaintiff is unable to provide a complete accounting for the amount claimed as the alleged debt.

Denied for the same reasons.

6. Admit that no employee, agent, or representative of Plaintiff is a custodian of records for the original creditor on the alleged account.

Finally, a good one. Objection, overly broad and compound request.

8. Admit that Plaintiff does not intend to call any witness who has personal knowledge of said account at the time of its creation or knowledge of the account when it was allegedly breached.

Obviously denying. I plan to, my plans just happen to change about two minutes prior to trial.

9. Admit that Plaintiff is unable to provide admissible evidence to support the Suit on Contract, Money Had and Received, and Account Stated claims as stated in Plaintiff’s Petition.

Obviously denied.

In my opinion those admissions will only help you if the don't answer and you have them deemed admitted.

You're asking way to many "anything is possible questions"

OK. I understand what you're saying, but I'm not sure the best way to go.

I am planning to file a Request for Documents for any document they Admit to possessing. My goal is to establish for the record what evidence they claim to have, and the next step is to ask them to produce that evidence.

Are you suggesting to eliminate most (or all) of the Admissions?

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Please admit that you do not have the assignment (or whatever) from (whoever) in your immediate custody and control.

Admit? Okay, great.

Deny? Okay, great

Request for production of document

Please provide the assignment (whatever) from (whoever) which you denied in admission request (whatever) that was not in your immediate custody and control?

They either produce or object, because they just denied it was not in their immediate custody and control so the opposite of it not being in your custody in control is that it is in your custody and control.

They object as irrelevant? Wonderful, they just objected to the assignment which would be needed to show proof of a new owner.

To much of a burden? Huh? you just admitted it is in your immediate custody and control.

Vague? I don't think so.

Not in our possession so can't produce? Great, would you like white or wheat bread with your perjury charge?

Above still has some loopholes you would have to close but that about 95% gets you where you need to be.

1. Admit that Plaintiff is unable to provide Defendant with a copy of any contract signed by Defendant.?

How about admit you do not have, in your immediate custody and control, the contract or a copy of the contract allegedly entered into (you probably did not sign anything) by the Defendant.

Then rinse and repeat above.

6. Admit that no employee, agent, or representative of Plaintiff is a custodian of records for the original creditor on the alleged account.?

How about;

Admit that XXXX is not an affiliate or subsidiary of whatever bank is alleged to loan you money.

Admit that XXXXX does not produce or originate any billing statement records on the behalf of XXXX

Admit that XXXXX at the time of the alleged default on the alleged account, which is the subject matter of this lawsuit, had no records in their possession and/or immediate custody and/or control with Defendant's name, address, phone number, or social security number on any such record.

Admit XXXXX has no personal, first hand knowledge of the record keeping procedures and/or practices of XXXXX (if they deny, then slam them with an interrogatory demanding the explain those procedures)

Admit that XXXXX never sent any billing statements, in reference to the alleged account which is the subject matter of this lawsuit, or demands to Defendant, prior to the date in which XXXX allegedly became the alleged successor in interest to XXXXX

And just keep painting them into the corner with ever possible loophole there is. I used 49 of them and they all said the same thing but just different enough they could not object (on a side note, Arkansas gets unlimited admissions).

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OK. I have revised my Motion to Strike and added supportive case law. What are your thoughts?

IN THE CIRCUIT COURT OF XXXX COUNTY

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

)

MIDLAND FUNDING LLC, )

Plaintiff, ) Cause No. ########

)

v. ) Division No.

)

JWSJOHN01, ) Date July 03, 2012

Defendant. )

DEFENDANT’S MOTION TO STRIKE AFFIDAVIT AS HEARSAY

AFFIDAVIT OF XXXXX XXXXXXXXXX

COMES NOW Defendant, JWSJOHN01, and moves this court for an order striking AFFIDAVIT OF XXXXX XXXXXXXXXX submitted in PLAINTIFF’S PETITION, a copy of which is attached as an exhibit to this action. In support of motion, Defendant offers:

1. Plaintiff has submitted into evidence the AFFIDAVIT OF XXXXX XXXXX in support of Plaintiff’s Claim (hereinafter “AFFIDAVIT”).

2. Said AFFIDAVIT pertains to acts and events that allegedly occurred between Defendant and a third party, CHASE BANK USA.

3. Said AFFIDAVIT fails to establish that affiant, XXXXX XXXXXXXXX, is or was at any time, employed by CHASE BANK USA.

4. At no time was the creator of the AFFIDAVIT present to witness any acts or creation of the records of transactions allegedly occurring between Defendant and CHASE BANK USA, and cannot have personal knowledge of how CHASE BANK USA’s records were prepared and maintained.

5. "Before a document may be received in evidence, it must meet a number of foundational requirements including: relevancy, authentication, the best evidence rule, and hearsay." Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). To satisfy these requirements, the records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997).

6. The information contained in the AFFIDAVIT falls under the hearsay rule under § 490.680, RSMo 1986, and is inadmissible as evidence. A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C & W Asset Acquisition LLC v. Somogyi, 136 S.W.3d at 140.

7. The AFFIDAVIT should not be admitted into evidence because the affiant, XXXXX XXXXXXXXXX, is “not qualified to lay a business records foundation” to support Plaintiff's claim, or her own claim that Plaintiff is the owner of the alleged debt. CACH, LLC v. Askew, (Mo. banc 2012).

CERTIFICATION OF SERVICE

A copy of the foregoing mailed by U.S. Mail this July 3rd, 2012, to: XXXX XXXXXXX, as attorney for Midland Funding LLC, 1000 Camera Ave-Suite A, St. Louis, MO 63126.

JWSJOHN01

By:_____________________

JWSJOHN01

Any feedback on my Motion to Strike before I file it?

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How about this?

In Asset Acceptance v. Lodge, the Missouri Court of Appeals stated that the trial court erred in allowing the admission of certain exhibits that were not created by Asset Acceptance.

"Although personal knowledge of the sponsoring witness as to the mode of preparation of the documents sought to be admitted as business records is not required for the admission of those documents, C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d at 137, these documents were not even prepared by Asset in its ordinary course of business. The documents prepared by HSBC were merely transferred to Asset by HSBC as part of the transaction between Asset and HSBC." Asset Acceptance v. Lodge, 325 SW 3d 525, 528 - Mo: Court of Appeals, Eastern Dist., 4th Div. 2010.

"In the present case, as in Zundel, Asset did not prepare the documents in question, but rather only received the documents from HSBC and held them in their files. Beach was not qualified to testify regarding documents not prepared by Asset. Thus, the documents do not fall under the business records exception. The trial court erred and abused its discretion in admitting Exhibits 1 and 2 into evidence under the business records exception. Point granted." Asset Acceptance v. Lodge, 325 SW 3d at 529.

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How about this?

In Asset Acceptance v. Lodge, the Missouri Court of Appeals stated that the trial court erred in allowing the admission of certain exhibits that were not created by Asset Acceptance.

"Although personal knowledge of the sponsoring witness as to the mode of preparation of the documents sought to be admitted as business records is not required for the admission of those documents, C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d at 137, these documents were not even prepared by Asset in its ordinary course of business. The documents prepared by HSBC were merely transferred to Asset by HSBC as part of the transaction between Asset and HSBC." Asset Acceptance v. Lodge, 325 SW 3d 525, 528 - Mo: Court of Appeals, Eastern Dist., 4th Div. 2010.

"In the present case, as in Zundel, Asset did not prepare the documents in question, but rather only received the documents from HSBC and held them in their files. Beach was not qualified to testify regarding documents not prepared by Asset. Thus, the documents do not fall under the business records exception. The trial court erred and abused its discretion in admitting Exhibits 1 and 2 into evidence under the business records exception. Point granted." Asset Acceptance v. Lodge, 325 SW 3d at 529.

Also, look at the more recent CACH vs. Askew. That's the one that swayed my Motion to Strike Affidavit. I filed mine in October 2011, and the judge put it on hold until that decision came down January 17, 2012.

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Also, look at the more recent CACH vs. Askew. That's the one that swayed my Motion to Strike Affidavit. I filed mine in October 2011, and the judge put it on hold until that decision came down January 17, 2012.

I believe he included Cach in his motion. I was just providing some more ammunition.

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At no time was the creator of the AFFIDAVIT present to witness any acts or creation of the records of transactions allegedly occurring between Defendant and CHASE BANK USA, and cannot have personal knowledge of how CHASE BANK USA’s records were prepared and maintained.

You are making an unsupported conclusion, which looks like you are asserting that you have personal knowledge of the affiant, which you do not unless you got it in discovery. Try this way:

At no time has the Plaintiff alleged or stated that the creator of the AFFIDAVIT either worked for Chase Bank or was present to witness any acts or creation of the records of transactions allegedly occurring between Defendant and CHASE BANK USA, Therefore, the Plaintiff has failed to establish a basis for reasonably believing that the affiant has, or ever had, personal knowledge of how CHASE BANK USA’s records were prepared and maintained.

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Received Plaintiff's Responses to First Request for Admissions. I have listed the Admissions along with a brief summary of Plaintiff's responses. My next step is to file a Request for Production of Documents and ask for everything that they claim can be provided.

Is it worth challenging Plaintiff's claim of Offer and Acceptance? If they are unable to provide a signed contract or unable to provide any signed credit slips, how can they prove the existence of a contract?

1. Admit that Plaintiff, Midland Funding LLC, is unable to provide Defendant with a copy of any contract signed by Defendant.

Objection: Offer and Acceptance.

2. Admit that Plaintiff is unable to provide Defendant with copies of bills of sale, containing information to establish its ownership of the particular alleged account.

Deny.

3. Admit that Plaintiff is unable to provide a true copy of any assignment, referencing the alleged debt, between CHASE BANK USA and the Defendant.

Deny.

4. Admit that Plaintiff is not a proper party to this action.

Deny.

5. Admit that Plaintiff is unable to provide a complete accounting for the amount claimed as the alleged debt.

Deny.

6. Admit that Midland Funding LLC is not an affiliate or subsidiary of CHASE BANK USA.

Admit.

7. Admit that Midland Funding LLC does not produce or originate any billing statements on behalf of CHASE BANK USA.

Admit.

8. Admit that Midland Funding LLC, at the time of the alleged default on the alleged account, which is the subject matter of this lawsuit, had no records in their possession and/or immediate custody and/or control with Defendant's name, address, phone number, or social security number on any such record.

Objection. Not relevant.

9. Admit that no employee of Midland Funding LLC has personal, first-hand knowledge of the record keeping procedures and/or practices of CHASE BANK USA.

Objection. Not relevant.

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9. Admit that no employee of Midland Funding LLC has personal, first-hand knowledge of the record keeping procedures and/or practices of CHASE BANK USA.

Objection. Not relevant.

:ROFLMAO2::ROFLMAO2::ROFLMAO2::ROFLMAO2::ROFLMAO2:

Now that is just too funny. I'm no big fan of motions to compel, but I'd even have to file one for this response.

They are suing you based on the records from Chase but if an employee of Midland has first-hand knowledge about those records is irrelevant. Oh that is just too good. :roflmao:

I wonder if it's because if they admit then their case ends right then and there basically and if they deny then you will hit them for the name of the employee that does have that knowledge and want to depose that employee.

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:ROFLMAO2::ROFLMAO2::ROFLMAO2::ROFLMAO2::ROFLMAO2:

Now that is just too funny. I'm no big fan of motions to compel, but I'd even have to file one for this response.

They are suing you based on the records from Chase but if an employee of Midland has first-hand knowledge about those records is irrelevant. Oh that is just too good. :roflmao:

I wonder if it's because if they admit then their case ends right then and there basically and if they deny then you will hit them for the name of the employee that does have that knowledge and want to depose that employee.

I did not think of a Motion to Compel. My first thought was to simply attack them in a Motion for Summary Judgement based on their inability to establish first-hand knowledge of the mode or method of preparation of CHASE BANK's business records. First appearance is scheduled for next week. Should I file Motion to Compel and Request for Production of Documents prior to (or during) our appearance?

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I don't know about the production of documents as that would be in the rules of procedure if you still have time to do that and under what conditions.

But I would not pass up an opportunity to try and compel them to actually admit or deny that admission. You would have to check your rules again and see if you have to try to work in good faith with the other side to resolve the issue prior to filing a motion to compel.

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I don't know about the production of documents as that would be in the rules of procedure if you still have time to do that and under what conditions.

But I would not pass up an opportunity to try and compel them to actually admit or deny that admission. You would have to check your rules again and see if you have to try to work in good faith with the other side to resolve the issue prior to filing a motion to compel.

I don't see anything in the rules that preclude either filing at this point.

How does this look for a Motion to Compel?

DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO ANSWER DEFENDANT’S REQUEST FOR ADMISSIONS

COMES NOW Defendant, XXXXX XXXXXXX, and moves the court for the entry of an order directing Plaintiff, Midland Funding LLC, by and through its undersigned attorneys, to completely respond to Defendant’s First Set of 9 Requests for Admissions.

On July 10, 2012, Defendant sent to Plaintiff’s Counsel via U.S. Mail, Defendant’s First Set of 9 Requests for Admissions. On August 7, 2012 Plaintiff did provide a partial response to Defendant’s Requests for Admissions. However, Plaintiff did specifically object to the following Request for Admission on the basis of relevancy.

“9. Admit that no employee of Midland Funding LLC has personal, first-hand knowledge of the record keeping procedures and/or practices of CHASE BANK USA.”

Defendant asserts that to establish the validity of the alleged debt, Plaintiff’s records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997).

Defendant hereby requests that this court enter an Order directing Plaintiff to provide a response as requested by Defendant in Defendant’s First Set of 9 Requests for Admissions, and provide to Defendant such other and further relief to which Defendant may be justly entitled.

CERTIFICATION OF SERVICE

A copy of the DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO ANSWER DEFENDANT’S REQUEST FOR ADMISSIONS mailed by U.S. Mail this August XXth, 2012, to: XXXX XXXXXX, as attorney for Midland Funding LLC, XXXXXXXXXX, XXXXXXXXXXXXXXX.

XXXXX XXXXXXX

By:_____________________

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