The use of affidavits.

[BTO429]

Lets start this way.

What does a judge look at in an affidavit? The first thing I learned in law school is that a Judge does not read an affidavit and consider what happened in the past, he looks into the future,,,,the future being a trial.

When a party uses an affidavit the are presenting to the court what they will use as evidence if there is a trial.

The first thing I hear on this forum most of the time is motion to preclude or strike the affidavit as hearsay.

Lets look at things a little closer. An affidavit says "your honor, if there is a trial this will be used as evidence in that trial."

Affidavits are, as a matter of law, an infallible guide as to what the adverse party can be expected to testify at a trial in the future.

Lets say, for sake of argument, they Plaintiff claims account stated and present there affidavits. The defendant files a motion to strike the affidavits as hearsay and the Judge agrees. The defendant thinks, "hey I just killed their evidence" while this may be true, it has also opened up the door for the Plaintiff to start claiming other counts, like breech of contract or others.

Now if you as a Defendant allow that affidavit to exist as evidence you have bound the Plaintiff to prove his account stated and the Plaintiff is bound by any affidavit and willnot be allowed to testify otherwise at trial.

Pay very close attention before you go running willy nilly and having all there affidavits stricken over hearsay. Use their affidavits against them. If that affidavit claims they have personal knowledge then let it exist, and at trial prove that the affiant indeed does not have that personal knowledge, this is called discrediting the witness, it what you as part of your defense needs to to do.

Any evidence that is presented to a court must be accompanied by an affidavit that attests to its accurateness, so if you let the affidavit exist and you prove that the affiant had no personal knowledge then and only then you ask for the evidence that the affidavit supports be stricken from the record.

Affidavits are not hard to prove incorrect, especially from a JDB. So after you kill the affiants affidavit in court and the evidence it supports you slowly dwindle there evidence down to nothing and then they have no case.

I will stop here for some replies.

[Flyerfan]

Nice. This is going to be a fun thread.

How about an affidavit that does not authenticate a document but an act?

Say an affidavit that references nothing specific, just "after review of records" stating that an account is sold. We all know its hearsay if the JDB tries to authenticate info from the OC's records. What if an employee of the OC submits an affidavit saying "the account was sold to JDB" but doesn't reference a specific document? Does that hold water without attaching the actual document reviewed to make that statement?

[Coltfan1972]

Keep in mind that even the other side is not going to argue an affidavit is not hearsay. Any document is hearsay. What you want to make sure you do is focus on making sure the other side is not able to use the business exception rule and have the affidavit admitted into evidence.

Don't focus so much on it's hearsay. Of course it's hearsay 100% of the time and no side is going to try and say it's not.

[Flyerfan]

Keep in mind that even the other side is not going to argue an affidavit is not hearsay. Any document is hearsay. What you want to make sure you do is focus on making sure the other side is not able to use the business exception rule and have the affidavit admitted into evidence.

Don't focus so much on it's hearsay. Of course it's hearsay 100% of the time and no side is going to try and say it's not.

Can they argue that an affidavit that does not reference a specific document be argued as a business exception? Well, they can argue it but is it a valid argument? If an affidavit is made "in the regular course of business blah blah", can the affidavit then be considered a business document?

[BTO429]

That is where you have to prove that the affidavit was not made in the regular course of business.

I have some case law somewhere on this i'll see if I can find it.

[BV80]

Can they argue that an affidavit that does not reference a specific document be argued as a business exception? Well, they can argue it but is it a valid argument? If an affidavit is made "in the regular course of business blah blah", can the affidavit then be considered a business document?

An affidavit is not a business record. Even if documents are referenced in the affidavit, it's still not a business record. It's not like an invoice that's created by a business on a regular basis.

It's a sworn statement that's made for a particular legal purpose. It is used to authenticate business records because 803(6) requires an affidavit to authenticate them, but the affidavit itself is not one of those business records.

If you were to write an affidavit stating that you never had an account with whoever, that would be your sworn statement. If you don't mention any documents, you don't have to have any documents attached.

An `affidavit' is a signed, written statement, made under oath before an officer authorized to administer an oath or affirmation in which the affiant vouches that what is stated is true. Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 19, 158 P.3d 232, 241 (App. 2007).

An affidavit has been defined as a written statement of fact which is sworn to as the truth before an authorized officer. Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind.1993).

Edited November 10, 2012 by BV80

[BTO429]

Affidavits should not be used for resolving the truth of the matter asserted in their statements, they should be used to determine, if there is a trial, what witnesses will will assert at a trial.

Lets look at this, where an affidavit is being considered on a summary judgment

motion and is based on the personal knowledge it is not hearsay,

either in content or form, even though the same affidavit will be

hearsay if it is later offered at trial to prove the truth of the events described

in the affidavit.

An affidavit presented in pretrial motions is not considered hearsay until that same affidavit is presented at trial, it then is hearsay if challenged properly. When crossing a witness you should have that persons affidavit in your hands, and questions should be drawn from the statements made in that affidavit.

[Flyerfan]

An affidavit presented in pretrial motions is not considered hearsay until that same affidavit is presented at trial, it then is hearsay if challenged properly. When crossing a witness you should have that persons affidavit in your hands, and questions should be drawn from the statements made in that affidavit.

So good case law for a Delaware Summary Judgment is:

KPAKIWA v. Brazos No. S10A-03-002 RFS DE Superior Court. – Since the trustworthiness of the evidence is the justification of the business record exception, the verification must provide a strong assurance of accuracy… No evidence was provided about verification measures routinely taken…Summary judgment is not appropriate where there are material questions of fact in dispute or where it is desirable to inquire more thoroughly into the facts to clarify the application of the law. Nor is it to be granted where the supporting affidavit contains or might contain hearsay.

That one line alone, while doesn't exclude use of the affidavit by the plaintiff, constitutes a material fact requiring a trial, which is really all the summary judgment is about.

[BV80]

So good case law for a Delaware Summary Judgment is:

KPAKIWA v. Brazos No. S10A-03-002 RFS DE Superior Court. – Since the trustworthiness of the evidence is the justification of the business record exception, the verification must provide a strong assurance of accuracy… No evidence was provided about verification measures routinely taken…Summary judgment is not appropriate where there are material questions of fact in dispute or where it is desirable to inquire more thoroughly into the facts to clarify the application of the law. Nor is it to be granted where the supporting affidavit contains or might contain hearsay.

That one line alone, while doesn't exclude use of the affidavit by the plaintiff, constitutes a material fact requiring a trial, which is really all the summary judgment is about.

The JDB's affidavit for summary judgment will state that they own the account. That claim will be based upon the bill of sale and the Chase affidavit.

You have to show why Chase's affidavit is insufficient. It MIGHT contain hearsay may not be enough for the judge. Hopefully, it would be, but it may not.

Notice BTO's last statement:

An affidavit presented in pretrial motions is not considered hearsay until that same affidavit is presented at trial, it then is hearsay if challenged properly. When crossing a witness you should have that persons affidavit in your hands, and questions should be drawn from the statements made in that affidavit.

You may have to do more than just suggest that the Chase affidavit is hearsay. You have to give the judge a reason to believe it's a possibility.

[1stStep]

Research the case Almonte v Chase - it basically was about Chase's sloppy record-keeping practices

[BTO429]

To answer the question of business records exception,,,An affidavit is a written statement made out of court and is relevant to a judicial proceeding.

With that said is the affidavit in front of you a daily and routine item that the company produces? NO,,,,they only produce that affidavit when there is a court case they may need it for.

[BV80]

To answer the question of business records exception,,,An affidavit is a written statement made out of court and is relevant to a judicial proceeding.

With that said is the affidavit in front of you a daily and routine item that the company produces? NO,,,,they only produce that affidavit when there is a court case they may need it for.

Exactly. That's a very good explanation that anyone can understand.

A business record is a document produced on a regular (or routine) basis. An affidavit doesn't fit that description. As I stated before, it's made for legal purposes.

[BTO429]

Exactly. That's a very good explanation that anyone can understand.

A business record is a document produced on a regular (or routine) basis. An affidavit doesn't fit that description. As I stated before, it's made for legal purposes.

Exactly,,,and that is how you dispose of their claim as a business record exception.

[Coltfan1972]

Exactly,,,and that is how you dispose of their claim as a business record exception.

If it's an OC, yes, if it's a junk debt buyer then there is no way, no matter when the affidavit was prepared or what it was based that it can be a business record.

In other words as the judge told the junk debt buyer in my case, while looking stunned and shaking his head, you can't take somebody else business records, pick them up, open your file, place them in your file, put it in the file cabinet, close the file cabinet and then it somehow turn into "your business records"

Great advice if dealing with an original creditor but don't over think it if you're dealing with a junk debt buyer. In fact, if dealing with a junk debt buyer trying to use affidavits, don't be so quick to try and get them excluded.

[Seadragon]

Don't be filing a bunch of motions that the court is going to deny. For the record in the early part of the case the court will allow an affidavit to support a prima facie case. It is up to us to file an affidavit refuting it. Then the battle lines are drawn.

The affidavits they try to use in a contested trial are mostly them trying to get that thing decided on paper. They also try to do an end run around the procedure so they don't have to answer the really ackward question of why they are suing with no standing.

So affidavits are merely air freshener for their excremental case. and wasting resources on them will not only fustrate the crap out of you, but make the judge shake their head that you are totally wasting time and don't see the big picture.

Make a counter affidavit it will help if you HAVE to make one by statute, otherwise subpoena the affiant and let them porky pig it in court.

How to get the judge on your side: Have one day when he can go home early by not having to hear a motion about an affidavit that every single judge in the country would deny because it is too early for that.

Remember the other side is happy when you help them get their billable hours up the judge gets none.

[BV80]

If it's an OC, yes, if it's a junk debt buyer then there is no way, no matter when the affidavit was prepared or what it was based that it can be a business record.

In other words as the judge told the junk debt buyer in my case, while looking stunned and shaking his head, you can't take somebody else business records, pick them up, open your file, place them in your file, put it in the file cabinet, close the file cabinet and then it somehow turn into "your business records"

Great advice if dealing with an original creditor but don't over think it if you're dealing with a junk debt buyer. In fact, if dealing with a junk debt buyer trying to use affidavits, don't be so quick to try and get them excluded.

In reference to the highlighted section, I agree that a JDB affidavit can argued successfully...depending upon the judge and court precedent. But an OC affidavit is a different story. If a judge accepts an OC affidavit that declares the JDB bought the debt, that's a problem.

[BrunoTheJDBkiller]

JDB affidavits are hearsay and easy to defeat. OC affidavits can be defeated but require a bit more creativity. You have to attack the witness as a paid hack who goes to court and swears to anything her boss tells her to swear to. Try not doing it and see if you still have a job. Attack them as an interested witness and hit them with the statistics. You sign how many of these each year? 60,000? Wow, I'm impressed. And you studied each and every one of these accounts in depth before signing the affidavit your boss handed you? Really? How many hours would it take to do this? That doesn't add up, sorry. And it just gets worse from there. Ask her if she ever refused to sign an affidavit for her company. That should be worth a laugh. Come on, lady, you're paid to come here and testify to exactly what bank X told you to, correct? You never read my account file, you have no idea what I supposedly purchased, you have no idea whether or not the entries are correct, and you have no idea if they followed the various cardholder agreements, do you? All you know is that if you go against Bank X you'll be an ex-spe******t, right? I got no more use for this witness. (Vinny)

[yarnaholic]

I have a business records affidavit from Capital One saying that the affiant is an "authorized agent" of Cap 1. It doesn't specify how she is a qualified witness other than to say that she knows from her personal knowlege and experience that the records are correct, etc. But nowhere does she state what her qualifications are or when she was hired as the "authorized agent" etc. Is being an "authorized agent" enough or can I get the judge to deny their MSJ based on the affidavit not meeting the prerequisites needed to meet the business records exception?

[Flyerfan]

I have a business records affidavit from Capital One saying that the affiant is an "authorized agent" of Cap 1. It doesn't specify how she is a qualified witness other than to say that she knows from her personal knowlege and experience that the records are correct, etc. But nowhere does she state what her qualifications are or when she was hired as the "authorized agent" etc. Is being an "authorized agent" enough or can I get the judge to deny their MSJ based on the affidavit not meeting the prerequisites needed to meet the business records exception?

I haven't been to my MSJ yet but in my opposition to their MSJ, that was one of the material facts I disputed. I disputed the affiant's qualifications stating that a trial was necessary to test his/her qualifications as an "other qualified witness". As the gentlemen above stated, the affidavit is garbage. It is just what testimony the judge can expect to hear at trial. If the affiant is not there to testify at trial, then the affidavit gets objected to as hearsay (by you) and it is a memory.

The vague and ambiguous, fell off the printer affidavits do not reference any specific documents so it helps to object to them as not qualifying under the business records exception. Business records exception? What business records?

[yarnaholic]

I haven't been to my MSJ yet but in my opposition to their MSJ, that was one of the material facts I disputed. I disputed the affiant's qualifications stating that a trial was necessary to test his/her qualifications as an "other qualified witness". As the gentlemen above stated, the affidavit is garbage. It is just what testimony the judge can expect to hear at trial. If the affiant is not there to testify at trial, then the affidavit gets objected to as hearsay (by you) and it is a memory.

The vague and ambiguous, fell off the printer affidavits do not reference any specific documents so it helps to object to them as not qualifying under the business records exception. Business records exception? What business records?

I wrote out the Plainfitt's business record's affidavit in a couple of other threads but this affidavit, while it does have some fill-in-the-blanks that specifically mention my account number and the number of pages included in the monthly statements, does not say in any way HOW the affiant is qualified to testify to the matters about the business records which to me is reason enough to challenge the affidavit (and the affiant).

[Flyerfan]

I wrote out the Plainfitt's business record's affidavit in a couple of other threads but this affidavit, while it does have some fill-in-the-blanks that specifically mention my account number and the number of pages included in the monthly statements, does not say in any way HOW the affiant is qualified to testify to the matters about the business records which to me is reason enough to challenge the affidavit (and the affiant).

I replied to that. Btw, don't hang your whole MSJ on this affidavit. Attack all of their "evidence". All you're trying to do at the MSJ is show there is a reason for trial. The best thing you can do is file an affidavit disputing their evidence and showing that it is faulty. If their affidavit has value at an MSJ, why not yours?

[yarnaholic]

I replied to that. Btw, don't hang your whole MSJ on this affidavit. Attack all of their "evidence". All you're trying to do at the MSJ is show there is a reason for trial. The best thing you can do is file an affidavit disputing their evidence and showing that it is faulty. If their affidavit has value at an MSJ, why not yours?

So in addition to my MOSJ I need to include an affidavit from me? Saying what?

[BTO429]

If it's an OC, yes, if it's a junk debt buyer then there is no way, no matter when the affidavit was prepared or what it was based that it can be a business record.

In other words as the judge told the junk debt buyer in my case, while looking stunned and shaking his head, you can't take somebody else business records, pick them up, open your file, place them in your file, put it in the file cabinet, close the file cabinet and then it somehow turn into "your business records"

Great advice if dealing with an original creditor but don't over think it if you're dealing with a junk debt buyer. In fact, if dealing with a junk debt buyer trying to use affidavits, don't be so quick to try and get them excluded.

Colt,,,that is my whole purpose with this thread....everyone wants to get their affidavits thrown out,,,,don't do that ,,,use them against them and limit their complaint to what the affidavits are claimed to support,,,if there is no supporting affidavit they have nill chance with there case, and they can't stop in the middle of the case and try to sue on a new claim.

[Flyerfan]

Yarnaholic is being sued by an OC.

And my suggestion was to file a counter-affidavit for the MSJ. He can attack the affiant all he wants at trial but has to avoid summary judgment to get there. I'm not saying strike the affidavit but you should file an affidavit disputing it for the MSJ.

[upsman40]

So the plaintiff has attached exhibits A,B, and C Exhibit A being an Assignment and Bill Of Sale from the OC(HSBC)

Exhibit A

Assignment and Bill of Sale

HSBC Consumer Lending (USA) Inc, on behalf of and as managing company for Beneficial Company LLC and HFC Company LLC and their respective subsidiaries (hereinafter called "seller") has entered into an Account Purchase and Sale Agreement dated March 15, 2011. ("Agreement") fpr the sale of accounts dated in the intitial paragraph of the agreement thereof to Asset Acceptance LLC, (herinafter called "Purchaser"), upon the terms and conditions set forth in that agreement.

NOW, THEREFORE, for good and valuable consideration, seller hereby sells, assigns, and transfers to purchaser, its successor and assigns, all Sellers rights, title, and interest in each and every one of the Accounts described in the Agreement and within exhibit B, attached hereto, and contained within the electronic meddia described therin,

Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement.

IN WITNESS WHEREOF, Seller has signed and delivered the instrument on the 15 day of March, 2011.

HSBC-Consumer Lending (USA) Inc.

By: K.M. Collier

Printed Name: Kevin Collier

Title Senior Vice President

Exhibit B is a claim Summary showing Client as Asset Acceptance with reference Numbers and account number also showing Name and Adress of myslef referencing Household Finance as the creditor dated August 10, 2012 with a File Number as well and the detail of how total owed has been derived....Does this mean I'm screwed??? Exhibit C is examples of bulk mailings Benficial sent to potential customers no reference on them just anonymous bulk mailing for credit

Edited November 15, 2012 by upsman40
Wrong Heading