Slappy

Motion to Strike denied: Interesting reason from judge

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Hello all,

I have been researching my case a lot and with much help from people on here have filed a motion to strike the generic affidavit of account included in asset acceptances initial complaint against me. I wrote out the motion and then a reply after the prosecutions attorney filed their objection.

The judge recently denied my motion. Here is what he wrote:

"Motion is denied. The affidavit is not evidence but only an attachment to complaint."

That is all the prosecution has provided in terms of evidence and then a couple days later I get hit with a motion for summary judgement.

Can someone please help me figure out what is going on? I have not been able to find an answer. From what I have read, people win motions to strike on these affidavits all the time, why does the judge not consider this evidence? And if they have presented no evidence, how can they file a MSJ? How should I attack this?

Oh and I'm being sued in Arizona.

Thank you all so much,

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It was incorporated, by reference, into the complaint itself would be my guess. In other words, it was like you were trying to strike part of the complaint itself. Just because the motion was denied does not mean that the affidavit would be admitted into evidence at trial.

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It's what I'm always posting when people try to strike something that won't help the other side anyway. The judge just basically told you why are you bothering to strike something that is not evidence. It's a waste and the judge just confirmed that for you.

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to strike would mean that it has been admitted as evidence, since it has not yet been admitted as evidence there is nothing to strike. You should have motioned to preclude. No worries though you will have a chance to object to it and everything they try to admit as evidence if it even gets that far. I filed a motion to preclude evidence and it was granted as the plaintiff never responded to it.

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No worries though you will have a chance to object to it and everything they try to admit as evidence if it even gets that far.

100% dead on.

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Ok that makes sense.

How can I best fight this MSJ then? Should I file my own sworn affidavit? I have read differing advice on filing one and have held off but at this point it seems like I should have something on file so they cannot claim "there is no genuine issue of material fact in this case and the plaintiff is entitled to the entry of judgement as a matter of law"?

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1. Who is the named plaintiff in the suit? Asset Acceptance, LLC

2. What is the name of the law firm handling the suit? a law firm

3. How much are you being sued for? 7k

4. Who is the original creditor? B of A

5. How do you know you are being sued? served

6. How were you served? in person

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? First thing I heard was the summons. Never heard of asset acceptance before this.

9. What state and county do you live in? Arizona, Pima

10. When is the last time you paid on this account? unknown

11. What is the SOL on the debt? This is an answer I took from another recent poster from Arizona. I have the same confusion. It's a little complicated as the law was amended in June 2011 to specify 6 years. Before that it was ruled in a Superior court case to be 3 years. In addition, a.r.s. 12-505 specifies a change in the SOL does NOT retroactively apply to an already time barred case, therefore I officially don't know if I have a defense there. If it's 3 years it's passed, if it's 6 it's not.

12. What is the status of your case? Answered, filed motion to strike, was just sent a motion for summary judgement form plaintiffs attorney. Am currently working on answering this MSJ.

13. Have you disputed the debt with the credit bureaus: no

14. Did you request debt validation before the suit was filed? no

15. How long do you have to respond to the suit? 30 days

16. What evidence did they send with the summons? Affidavit of account signed by some woman that works for Asset in Michigan and that is all.

Complaint:

Count One - Breach of contract

I. Plaintiff is a Delaware limited liability Company and is the assignee of bank of America

II. That "Slappy" is a resident of Pima County

III. Venue is proper

IV. Defendant entered into a contract with Plaintiff's predecessor -in-interest, Bank of America

V. Defendant breached said contract by failing to pay as required.

VI. There is still due on said contract $7k+ interest + continuing interest at statutory rate from date of execution of this complaint till paid in full.

VII. Plaintiff has made demand upon plaintiff for such sums due and owing. The defendant however has failed and refused to pay.

VIII. pursuant to the contract referenced above, and or A.R.S. 12-341.01, plaintiff is entitled to recover reasonable attorneys fees arising from this litigation, as well as costs incurred herein, pursuant A.R.S. 12-341.

Count Two (Unjust enrichment)

IX. Plaintiff incorporates by reference the allegations contained in count one of the complaint as though fully set forth herein.

X. Plaintiffs assignor provided certain services and/or monies to defendant, but defendant has/have not paid in full for said services and/or monies as required by the contract between defendant and plaintiff predecessor-in-interest.

I'm very grateful if anyone can help me at all with how to get my defense started. I have no one I can even talk to about any of this, no one to help, and of course no money whatsoever to hire a professional to help me. Completely overwhelmed

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Ok that makes sense.

How can I best fight this MSJ then? .......so they cannot claim "there is no genuine issue of material fact in this case and the plaintiff is entitled to the entry of judgement as a matter of law"?

Find an issue of material fact in their pleadings and argue well against it.

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I'm very grateful if anyone can help me at all with how to get my defense started. I have no one I can even talk to about any of this, no one to help, and of course no money whatsoever to hire a professional to help me. Completely overwhelmed

Been there, done that. Found out later that some attorneys would have helped me, but it is what it is, and I was going against an OC, and I ****ing won anyway. Search these boards for standing, because Asset is a JDB. Beergoggles has been through the suck in AZ, so he knows some AZ specific stuff. Don't let his humbleness fool you. He's a spare rib BBQing, JDB attorney whipping machine.

The question is, how hard are you willing to fight? I can't go into the courtroom and argue for you. Beergoggles can't. Coltfan cant. It would be flat out illegal for us to do so. We can help, but in the end, you need to be able to speak up for yourself.

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Haha, good stuff. I'm very motivated to fight them every step of the way and put in the time necessary to research. However it's nice to have somewhere to go for advice when I read differing opinions.

I really appreciate this board and how helpful everyone here is. I've been on here A LOT since I was served. I hope to win my case and be a resource for others on this board and in my life. I was someone that knew nothing about consumer credit and I have already helped some friends get things removed from their credit reports and plan to continue to do so. I think the way these JDB's are permitted to conduct business is wrong. They show no evidence except an affidavit signed by one of their own employees and they are pursuing legal action based on this? They cold sue anyone! Now that I know about whats available to protect consumers, I want to stand up for myself and let them know I am not one of those people that will do nothing out of fear and let them obtain judgements without ever even having to step foot in a courtroom.

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One thing you can do is fire off discovery right away. i would also file a motion to preclude affidavit, outstanding motions and discovery usually hold off a msj here is my motion to preclude

IN THE JUSTICE COURT OF XXXX PRECINCT

COUNTY OF MARICOPA

STATE OF ARIZONA

MIDLAND FUNDING LLC

Case No:Beergoggles 1

Plaintiff MIDLAND FUNDING

vs

Defendant. Beergoggles

Motion to preclude evidence

The Defendant, appearing PRO SE, respectfully request this Court to preclude the Plaintiff’s Affidavit of Debt (hereafter “Affidavit”, see Exhibit 1) created and signed by Whatshername (hereafter “Affiant”) for the following reasons:

1. The Affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, Original Creditor (hereafter “OC”) .

2. The Affidavit submitted is the excat same Affidavit submitted in a ongoing case of Midland V Beergoggles (see Exhibit 2) in which Midland funding was ordered to no longer use false Affidavits in Midland V Brent, and is currently bieng sued in the State of Minnesota by its Attorney General, Lori Swanson vs MIDLAND FUNDING LLC, MIDLAND CREDIT MANAGEMENT INC for robo signed fraudlent Affidavits.

3. The Affiant is not currently and has never been employed with OC and therefore cannot have personal knowledge of how OC records were prepared and maintained and how they were transferred to MCM (Arizona Rules of Evidence, Rules 803(6)(B) and 803(6)©) . Therefore, at no time was the Affiant present to witness any alleged acts or creation of the records of transactions allegedly occurring between the Defendants and OC.

4. The Affiant does not state if she witnessed any document that the Plaintiff is authorized and licensed to collect claims for others in the State of Arizona, or solicit the right to collect or receive payment of a claim of another.

5. The Affiant does not state if she witnessed the original signed credit application between the Defendant and OC, bearing the signature of the Defendant.

6. The Affiant does not state if she witnessed any contract, agreement or bill of sale that could prove that the Plaintiff acquired specifically the alleged account from OC.

7. The Affiant does not state if she witnessed any documental evidence that the Plaintiff is the real successor-in-interest of the alleged debt, and any proof of ownership specifically that the alleged account is the legal property of the Plaintiff with all of the original creditor’s rights and privileges intact.

8. The Affiant does not state if she witnessed any authentic document which definitely says that the Defendant has contractual responsibility to the Plaintiff for the alleged debt, such as Contract(s) or agreement(s) in writing and signed by the Defendant.

9. The Affiant does not state if she witnessed any document that could support claims of actual damages caused by Defendant that the Plaintiff is seeking relief for.

10. The Affiant’s claims that she has “personal knowledge of those account records maintained…” and she is “familiar with the manner and method by which MCM creates and maintains its business records…” are questionable, because she avoids getting in any technical details of her daily usage “in the regular course of business” the MCM documents management system, such as:

a) how the MCM documentation storage and retrieval system is organized ?

B) is it computerized or paper-based ?

c) if this system is computerized, then is it “Legacy” Mainframe based (with “green-screen” text capabilities only) or is it modern computers based with Graphic User Interface screens and Internet capabilities ?

d) where is the system located ? is it in-house system (on the MCM site) or third-party outsourced (in the USA or offshore) ?

e) how many documents requests per a day (in average) this system processes, and how many requests per a day the Affiant herself processes ?

f) how many affidavits per a day the Affiant creates, prints out, reads, verifies/checks for accuracy and signs ?

g) is it assured that she verifies 100% of all affidavits she signs ?

h) if this system is computerized, then how all original documentation is entered to the MCM’s computer(s) ?

i) whether all original documentation retained or is it destroyed after entering to MCM computer(s) ?

j) how the MCM documentation’s accuracy, authenticity, integrity, consistency and completeness is assured ?

k) how the MCM’s documental system is protected against any kind of forgery, falsification or human error ?

11. As such said, Affidavit falls under the Hearsay rule (Arizona Rules of Evidence, Rule 801) and is inadmissible as evidence.

12. The Defendant further state that the Affidavit is not subject the Hearsay business records exemption because it was not made at or near the time of the alleged acts or events (Arizona Rules of Evidence, Rules 803(1), 803(6)(a)), and;

13. The information contained in the Affidavit is partial, vague, biased, insufficient and is merely an accumulation of Hearsay, and;

14. The Defendant believes that the Affiant is not qualified to testify as to the truth of the information contained in the Affidavit.

15. As such said, this Affidavit cannot substitute all that documentation that Defendant will demanded the Plaintiff to produce in their Discovery Request.

The Defendants pray the Plaintiff’s Affidavit be precluded from the evidence in the above action.

Attachments: Exhibit 1 – Affidavit of Debt

Exhibit 2 – Affidavit of Debt from On going case Midland V Beergoggles 2

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Beergogles! thanks. that gives me a great foundation to start my own.

Is there any chance the judge responds to this request, the same as my last motion with,

"Motion is denied. The affidavit is not evidence but only an attachment to complaint."

when I ask:

"The Defendants pray the Plaintiff’s Affidavit be precluded from the evidence in the above action"

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One thing you can do is fire off discovery right away. i would also file a motion to preclude affidavit, outstanding motions and discovery usually hold off a msj here is my motion to preclude

IN THE JUSTICE COURT OF XXXX PRECINCT

COUNTY OF MARICOPA

STATE OF ARIZONA

MIDLAND FUNDING LLC

Case No:Beergoggles 1

Plaintiff MIDLAND FUNDING

vs

Defendant. Beergoggles

Motion to preclude evidence

The Defendant, appearing PRO SE, respectfully request this Court to preclude the Plaintiff’s Affidavit of Debt (hereafter “Affidavit”, see Exhibit 1) created and signed by Whatshername (hereafter “Affiant”) for the following reasons:

1. The Affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, Original Creditor (hereafter “OC”) .

2. The Affidavit submitted is the excat same Affidavit submitted in a ongoing case of Midland V Beergoggles (see Exhibit 2) in which Midland funding was ordered to no longer use false Affidavits in Midland V Brent, and is currently bieng sued in the State of Minnesota by its Attorney General, Lori Swanson vs MIDLAND FUNDING LLC, MIDLAND CREDIT MANAGEMENT INC for robo signed fraudlent Affidavits.

3. The Affiant is not currently and has never been employed with OC and therefore cannot have personal knowledge of how OC records were prepared and maintained and how they were transferred to MCM (Arizona Rules of Evidence, Rules 803(6)(B) and 803(6)©) . Therefore, at no time was the Affiant present to witness any alleged acts or creation of the records of transactions allegedly occurring between the Defendants and OC.

4. The Affiant does not state if she witnessed any document that the Plaintiff is authorized and licensed to collect claims for others in the State of Arizona, or solicit the right to collect or receive payment of a claim of another.

5. The Affiant does not state if she witnessed the original signed credit application between the Defendant and OC, bearing the signature of the Defendant.

6. The Affiant does not state if she witnessed any contract, agreement or bill of sale that could prove that the Plaintiff acquired specifically the alleged account from OC.

7. The Affiant does not state if she witnessed any documental evidence that the Plaintiff is the real successor-in-interest of the alleged debt, and any proof of ownership specifically that the alleged account is the legal property of the Plaintiff with all of the original creditor’s rights and privileges intact.

8. The Affiant does not state if she witnessed any authentic document which definitely says that the Defendant has contractual responsibility to the Plaintiff for the alleged debt, such as Contract(s) or agreement(s) in writing and signed by the Defendant.

9. The Affiant does not state if she witnessed any document that could support claims of actual damages caused by Defendant that the Plaintiff is seeking relief for.

10. The Affiant’s claims that she has “personal knowledge of those account records maintained…” and she is “familiar with the manner and method by which MCM creates and maintains its business records…” are questionable, because she avoids getting in any technical details of her daily usage “in the regular course of business” the MCM documents management system, such as:

a) how the MCM documentation storage and retrieval system is organized ?

B) is it computerized or paper-based ?

c) if this system is computerized, then is it “Legacy” Mainframe based (with “green-screen” text capabilities only) or is it modern computers based with Graphic User Interface screens and Internet capabilities ?

d) where is the system located ? is it in-house system (on the MCM site) or third-party outsourced (in the USA or offshore) ?

e) how many documents requests per a day (in average) this system processes, and how many requests per a day the Affiant herself processes ?

f) how many affidavits per a day the Affiant creates, prints out, reads, verifies/checks for accuracy and signs ?

g) is it assured that she verifies 100% of all affidavits she signs ?

h) if this system is computerized, then how all original documentation is entered to the MCM’s computer(s) ?

i) whether all original documentation retained or is it destroyed after entering to MCM computer(s) ?

j) how the MCM documentation’s accuracy, authenticity, integrity, consistency and completeness is assured ?

k) how the MCM’s documental system is protected against any kind of forgery, falsification or human error ?

11. As such said, Affidavit falls under the Hearsay rule (Arizona Rules of Evidence, Rule 801) and is inadmissible as evidence.

12. The Defendant further state that the Affidavit is not subject the Hearsay business records exemption because it was not made at or near the time of the alleged acts or events (Arizona Rules of Evidence, Rules 803(1), 803(6)(a)), and;

13. The information contained in the Affidavit is partial, vague, biased, insufficient and is merely an accumulation of Hearsay, and;

14. The Defendant believes that the Affiant is not qualified to testify as to the truth of the information contained in the Affidavit.

15. As such said, this Affidavit cannot substitute all that documentation that Defendant will demanded the Plaintiff to produce in their Discovery Request.

The Defendants pray the Plaintiff’s Affidavit be precluded from the evidence in the above action.

Attachments: Exhibit 1 – Affidavit of Debt

Exhibit 2 – Affidavit of Debt from On going case Midland V Beergoggles 2

Nice motion to preclude (in liminie or other similar name).

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Nice motion to preclude evidence! I would also answer the msj right away....this type of issue might depend on the Judge. if it is early in the case then tell the judge that you also have not completed discovery yet

Edited by freddiemac
I can't spell!

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Hopefully this will get people to calm down with the motions to strike, 99 times out of 100 when people state they want to go ahead with that type of motion they are not doing so at the proper time or for the right reason.

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Hopefully this will get people to calm down with the motions to strike, 99 times out of 100 when people state they want to go ahead with that type of motion they are not doing so at the proper time or for the right reason.

I think that when you are first starting out to fight one of these things that it is very hard to wrap your head around the fact that this is a cat and mouse game, that it is a marathon and not a race.

It's hard to put it in the right perspective in part because it is your life and you are feeling the heat whether it be real or imagined and imagined is much worse.

So its easy to jump the gun, you want to make it go away with a snap of the fingers but it don't work that way.

The wheels of (in)justice crank exceedingly, painfully slow but they do move even if it doesn't feel that way or you can't see it.

People jump the gun with the wrong motions at the wrong time for the wrong reason for the most part because they don't understand the process, or that it is a process that must play itself out act by act.

Edited by antiquedave

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No worries though you will have a chance to object to it and everything they try to admit as evidence if it even gets that far.

Actually this is very jurisdiction specific. In Utah and a couple of other states, had there not been an objection via a pleading with the answer (you get just a few weeks to object), you would waive your ability to object later. The only out that would be available is if later through discovery you found issues with it and that issue was not detectable on the affidavits face (i.e. the affiant said they worked for OC and later was shown to work for JDB). It is very hard here to get affidavits, documents, etc struck if you do not act very quickly to raise an issue once it is filed in some form. The courts want cases to move along as quickly as possible and they view any delay in objecting to pleadings, evidence, etc as delaying and prejudicial to opposing side.

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Although the motion to preclude is elegant and sounds like a good thing to do at some point, I think a motion against summary judgment should be where you focus your attention.

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Although the motion to preclude is elegant and sounds like a good thing to do at some point, I think a motion against summary judgment should be where you focus your attention.

 

Is a 'motion against summary judgement' the same or different from 'Opposition to Plaintiff's Motion For Summary Judgement'?

 

Is that a matter of semantics, or a state specific thing?

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Is a 'motion against summary judgement' the same or different from 'Opposition to Plaintiff's Motion For Summary Judgement'?

 

Is that a matter of semantics, or a state specific thing?

The opposition is the arguments against whatever the motion is filed for. Do you need an opposition to summary judgment? Some states have different titling and formatting, the arguments are basically the same though.

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