How to object to Plaintiff Tendered Performance

[yarnaholic]

In my MOSJ, the Plaintiff references credit card statements as proof of performance tendered, however I'm challenging the admissability of these business records since the business records affidavit doesn't meet the required prerequisites to allow the business records admitted into evidence. How would I go about opposing the Plaintiff Tendered Performance, Defendant Breached the Contract for Credit, and the Damages Sustained As A Result of Breach sections of their MSJ? Do I simply say that since the business records don't qualify as an exception to the business records hearsay rule, there are no records to show that no performance was tendered? Do I basically use the same argument to argue each of their 4 elements for breach of contract?

[BrunoTheJDBkiller]

Performance is a garbage argument, strictly a diversion. They fulfilled their end of the bargain when they paid for the purchases you made with the card and sent you monthly billing statements. That's what they'll claim, anyway. If you want to get into it with them you can dispute the interest rates they used and demand all the applicable agreements.

the business records don't qualify as an exception to the business records hearsay rule,

Are you sure of this? Admissibility can be very lenient in some states. I will help you with strategy, but I'd rather turn you over to Texasrocker for statutes and rules. After you establish what is what, you can work on a plan of attack. Similar to the G2 in the military. Then it becomes a battle plan.

[Rivertime]

MSJ are quite a different animal. Affidavits, for example, are admissible for an MJS but are hearsay at trial. In MJS’s the burden of proof shifts to you to prove at least one of their Undisputed Material Facts (UMF) is in dispute. You might think, how do I do that? For example, do they claim you filled out and signed a credit card application? If you did not, you could provide your own affidavit stating you never filled out and signed a credit card application. Your affidavit becomes evidence that one of their UMF’s is in dispute.

I only use the credit card application as an example because many people have gotten their credit cards on line or through a phone conversation and the statement that “you never filled out and signed a credit card application” is in fact a fact.

I’m in California and the procedure for responding to an MSJ is very specific, make certain you follow your state and local rules.

I hope that helps, good luck.

rt

[BTO429]

For an msj the judge looks into the future, the future being a trial. Any affidavit will be looked at as "what will the plaintiff claim if there is a trial.

You attack their affidavits and make what the court calls issues of fact.Or in other words something that needs to be determined at a trial. The balance, the interest, or any other FACT not speculations.

[yarnaholic]

Performance is a garbage argument, strictly a diversion. They fulfilled their end of the bargain when they paid for the purchases you made with the card and sent you monthly billing statements. That's what they'll claim, anyway. If you want to get into it with them you can dispute the interest rates they used and demand all the applicable agreements.

the business records don't qualify as an exception to the business records hearsay rule,

Are you sure of this? Admissibility can be very lenient in some states. I will help you with strategy, but I'd rather turn you over to Texasrocker for statutes and rules. After you establish what is what, you can work on a plan of attack. Similar to the G2 in the military. Then it becomes a battle plan.

Hi Bruno -- I looked for the other posts you mentioned about attacking an OC but couldn't find them. I posted my MOSJ for reviews in a separate thread... would you mind looking it over?

[BrunoTheJDBkiller]

I believe I just looked at it this afternoon.