Jump to content

Newbs, understand something about the docs they sent you.


Recommended Posts

The affidavit from the OC references a "bill of sale" to the JDB. The "bill of sale" is attached but nowhere on it does it specify the alleged account number. If this is the document that she reviewed then her affidavit is conclusory and has not layed a proper foundation for her statements. Also she nowhere claims to have personal knowledge of the event nor does she claim to have personal knowledge of the manners and methods of records which she attests are accurate and as a result, the affidavit must be rejected as a matter of law.

Adding the above couldn't hurt.

I'm hoping this complied with my counter-affidavits will be sufficient. The affidavits are the only "evidence" I can imagine you can submit to prove something doesn't exist or didn't happen.

It's like trying to prove there is no God.

Your affidavit can't simply attack their affidavit(s), you must put one or more of their Undisputed Material Facts in question. Perhaps by way of a denial.

Good luck,

rt

Link to comment
Share on other sites

By you winning on MSJ all that means is it can continue to trial where the Plaintiff might produce a live witness. You need to depose that witness and ask zillions of questions that can usually discredit the testimony. But it is far more work to prepare for trial and trial discovery if they continue after losing a MSJ.

You have the advantage in a MSJ since only have to prove their are facts in dispute - and therefore a trial is needed. On the other hand if you lose at MSJ your sunk other than an Appeal.

Oh I am in total comprehension of this. OF COURSE if affiant were called as witness at trial I would be totally prepared to ask VERY specific questions on cross such as what kind of software was used in the production and maintenance of records submitted as exhibit and even more specifically, can affiant identify which security mechanisms exist in aforementioned software to prevent nefarious changes in customer information from occuring. But what I am suggesting is that because in this case the MSJ was denied due to their affiant failing to provide any specific information such as the above, wouldn't trying to use that affiant again at trial prove to be just as much a losing strategy for them, whether merely submitted on the affidavit as was done for the MSJ OR if that same affiant were called to appear as a witness? And this is my point: barring the stupidity factor regarding plaintiff, it seems to me that since MSJ is expressly used in an attempt to avoid trial to save time and money, one would think that plaintiff would provide as much relevant specificity in their affidavit as possible, IF THEY WERE ABLE TO DO SO, consequently giving adequate validation of their choice of affiant, and in so doing increase their chances of moving the court to acknowledge and eliminate the need for a trial. (However, in my case since the court denied plaintiff's MSJ, plaintiff then announced their intention to file a second MSJ. That was back in July. As it turns out, they didn't. Once bitten, twice shy?:wink:)

Link to comment
Share on other sites

They fit two categories; pathetic old lawyers who never managed to make it in their field

This is what I got. Wrinkled suit, frazzled hair. I mean hell, the flipping judge had to flat ask the guy if he was a lawyer or some other representative of Midland.

Link to comment
Share on other sites

Calawyer pointed me to a book that could be found in the law library that had an entire chapter (over 150 pages) that dealt specifically with MSJ’s. Correct way to file, correct way to respond, timing for filings, specific way to show objections, etc.

Hi Rivertime, Can you point me to the book you refer to above? I want to be prepared in case this comes up for me. Thanks. :)

Link to comment
Share on other sites

  • 1 month later...

A point to consider about MSJ's and the affidavits. You MUST get your head around this. The affidavits in an MSJ are not viewed as what the affiant said. The affidavits are viewed as what the judge can expect to hear as testimony at trial

 

Read that again, it's important.  The reason affidavits are acceptable at an MSJ and the affiant is not needed is because the judge expects to hear them say it again at trial. At trial, when the affiant is not there, you can attack it more. With no witness to answer your beat down of their affidavit, it will carry less weight or better be deemed inadmissible.

 

What makes that attackable is what the affiant does not say.  If they don't claim personal knowledge (big point at an MSJ), then you can't assume they have any. If they don't lay a foundation, then their statements are conclusory. The can't just recite the requirements of an affidavit and say "yeah, we did that". They have to explain how they records were reviewed, how they have knowledge of the records, what their qualifications are as an "other qualified witness", etc.  But they only have to do this if the defendant argues it and makes it part of their defense through answers and affidavits. You can't just show up and say "It's hearsay", and get it thrown out. You have to tell the judge it's hearsay and here's where it fails according to the rules and here's why it doesn't meet the business records exception. 

 

Hope this makes sense.

Link to comment
Share on other sites

This is state specific, we have 50 different evidence codes to deal with. If that isn't bad enough, now you get judge specific.....some posters here can attest to the fact that judges will totally ignore the rules of evidence and rule against you. Documents that will be admitted in one state won't be admitted in another. Too bad there isn't one standard.

I can vouch for that personally, some ca's and jdb in my county go as far as to make sure they file in a court where certain judge presides, he is not debtor friendly and has even made the statement that their are three kinds of people, those who make bills, those who pay bills, and those who use the law to cheat a creditor out of what they owe.

Link to comment
Share on other sites

  • 3 weeks later...

Thanks for this post. It is reassuring and helpful when I feel my heart starting to race, hehehe. It's funny, but so many say (after they've gotten their initial steps done) how they are looking forward to what will happen next. I am starting to get that feeling, too, and this information is something I'll probably re-read later on. :)

Link to comment
Share on other sites

Thanks for this post. It is reassuring and helpful when I feel my heart starting to race, hehehe. It's funny, but so many say (after they've gotten their initial steps done) how they are looking forward to what will happen next. I am starting to get that feeling, too, and this information is something I'll probably re-read later on. :)

 

No problem.

 

Have you seen this other thread I wrote?

Link to comment
Share on other sites

Hi Rivertime, Can you point me to the book you refer to above? I want to be prepared in case this comes up for me. Thanks. :)

 

I sincerely apologize to all who are interested in the book I mentioned that has a chapter about MSJ’s.  I have not checked this thread until now so please forgive me.

 

The book is: Weil and Brown, Civil Procedure Before Trial

 

It is a reference book available at a law library.   I went to the law library, copied the chapter, went to staples and had it bound for about 6 bucks, and I have read and re-read it several times with highlighter in hand.

 

I hope this helps, good luck.

  • Like 2
Link to comment
Share on other sites

I sincerely apologize to all who are interested in the book I mentioned that has a chapter about MSJ’s.  I have not checked this thread until now so please forgive me.

 

The book is: Weil and Brown, Civil Procedure Before Trial

 

It is a reference book available at a law library.   I went to the law library, copied the chapter, went to staples and had it bound for about 6 bucks, and I have read and re-read it several times with highlighter in hand.

 

I hope this helps, good luck.

 

Good idea.

Link to comment
Share on other sites

  • 1 month later...


"You HAVE to challenge this affidavit by subpoenaing the affiant. Either they don't show and then the affidavit is hearsay or they show and you can then question them to prove they don't have FIRST HAND KNOWLEDGE of the documents. This is what breaks 90% of the JDB cases. Some cave sooner due to getting it through their thick skulls that this is going to cost them more than it's worth. This is also why some have been successful in winning with an OC. They just flat don't want to spend the money to win the case."
 

I received a declaration of authorized agent in lieu of live testimony and it is supposedly for a senior manager of the OC and a bill of sale not listed any accounts is attached. The signature on the declaration and the bill of sale are similar but don't match. The signature on the bill of sale is clearly a bad photocopy while the document itself is crisp like it was type and the signature added. How can I contest this in court? The OC agent purports to have first hand knowledge as a result of revieiwing the electronic documents held by OC. I'm new at this. How do I subpoena the individual in CA? Thank you.

Link to comment
Share on other sites

In California, They are supposed to make the affiant available to you during a time period prior to the hearing, within a specific distance from the court. I picked the one closest to me and served 11 days out, of course she wasn't there and no one had even heard of her, heck they wouldn't even let my server in the front door, the racist bastards! Object to everything, especially the Bill of Sale and the Declaration in lieu of Testimony! Hearsay! Very important that your "ducks are all in a row" when having a subpoena served on the affiant. My judge threw mine out because the info on the subpoena didn't reference the case (still can't figure that one out, because I thought it did, every judge is different), but the judge turned right around and tossed the "bill of sale" because my name or account number wasn't on it ::punk:: And dismissed the judgement in my favor, with prejudice!

  • Like 1
Link to comment
Share on other sites

 

Thank you for the information and encouragement!

"You HAVE to challenge this affidavit by subpoenaing the affiant. Either they don't show and then the affidavit is hearsay or they show and you can then question them to prove they don't have FIRST HAND KNOWLEDGE of the documents. This is what breaks 90% of the JDB cases. Some cave sooner due to getting it through their thick skulls that this is going to cost them more than it's worth. This is also why some have been successful in winning with an OC. They just flat don't want to spend the money to win the case."

 

I received a declaration of authorized agent in lieu of live testimony and it is supposedly for a senior manager of the OC and a bill of sale not listed any accounts is attached. The signature on the declaration and the bill of sale are similar but don't match. The signature on the bill of sale is clearly a bad photocopy while the document itself is crisp like it was type and the signature added. How can I contest this in court? The OC agent purports to have first hand knowledge as a result of revieiwing the electronic documents held by OC. I'm new at this. How do I subpoena the individual in CA? Thank you.

Link to comment
Share on other sites

In California, They are supposed to make the affiant available to you during a time period prior to the hearing, within a specific distance from the court. I picked the one closest to me and served 11 days out, of course she wasn't there and no one had even heard of her, heck they wouldn't even let my server in the front door, the racist bastards! Object to everything, especially the Bill of Sale and the Declaration in lieu of Testimony! Hearsay! Very important that your "ducks are all in a row" when having a subpoena served on the affiant. My judge threw mine out because the info on the subpoena didn't reference the case (still can't figure that one out, because I thought it did, every judge is different), but the judge turned right around and tossed the "bill of sale" because my name or account number wasn't on it ::punk:: And dismissed the judgement in my favor, with prejudice!

Yes but that didn't work for me. Here read this thread I started: Post #18 http://www.creditinfocenter.com/community/topic/319053-1-day-before-trialagainst-equable/ just to give you what may happen. We thought it was a slam dunk....woops not so fast...as you can see in my thread Judge told us to just leave the subpoena...

Link to comment
Share on other sites

  • 2 months later...
Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.