Template for Motion In Limine to exclude credit card statements

[Flyerfan]

Midland Funding case.

I have answered and I and the plaintiff have both had discovery.

The plaintiff filed for MSJ and that is coming up next week. The have the typical BS affidavits, one from the OC but it is crap. The only thing I'd really like to see go away is the credit card statements from OC.

I'm thinking of putting together a MIL to keep the credit card statements from the OC out. They are unauthenticated or even referenced in any OC affidavit. If I can keep them out, they can't prove the amount or reference any transactions in them.

Anyone had any luck with this? Is there a good template for a motion to keep these documents out?

Edited November 21, 2012 by Flyerfan

[Flyerfan]

Also, if at trial (or before if you all agree with the MIL) I object to the credit card statements as unauthenticated and they are deemed inadmissible, can I be questioned as to specific information contained in them?

What would be the grounds for my objection if they try?

[BV80]

It might depend on who questions you. If the JDB attorney questions you, I wouldn't recall anything. If you're allowed to object to certain questions, I'd object on the basis that the JDB is attempting to get you to authenticate documents because they can't. It's not your job to authenticate documents that the JDB can't authenticate.

If the judge questions you, you have to answer. Now, if he deems the documents are admissible, my argument would then be that the authenticity and admissibility of the documents are irrelevant when the plaintiff has failed to prove ownership of the account.

[Flyerfan]

I hate to sound naive but, is it possible that an unauthenticated document, if properly objected to as such, can be made admissible into evidence?

That seems like such a basic rule of evidence that I am having a hard time getting my head around how a judge can allow it?

Unauthenticated document from a third party = inadmissible.

[BV80]

I hate to sound naive but, is it possible that an unauthenticated document, if properly objected to as such, can be made admissible into evidence?

That seems like such a basic rule of evidence that I am having a hard time getting my head around how a judge can allow it?

Unauthenticated document from a third party = inadmissible.

I know exactly what you mean, but it depends upon how the courts in your state have ruled.

Some courts are very strict. Anyone offering testimony about business records under 803(6) in an attempt to authenticate those documents or lay the foundation for their admissibility has to have some knowledge about how the documents were prepared.

Other courts are not so strict. They've ruled that business records can be admissible as long as the records are shown to be what the Plaintiff claims them to be. The affiant doesn't have to have knowledge of how the documents were prepared. Therefore, an affidavit stating that the records were prepared in the regular course of business, etc. would be adequate to authenticate any business records.

[Flyerfan]

Other courts are not so strict. They've ruled that business records can be admissible as long as the records are shown to be what the Plaintiff claims them to be. The affiant doesn't have to have knowledge of how the documents were prepared. Therefore, an affidavit stating that the records were prepared in the regular course of business, etc. would be adequate to authenticate any business records.

Even in the "not so strict" courts...

Does the affidavit from the OC have to reference the specific document or is an affidavit stating "I have reviewed the records..." adequate to admit any document from the OC?

That is my ONLY concern. The affidavit from the OC references NOTHING specific.

[BV80]

Even in the "not so strict" courts...

Does the affidavit from the OC have to reference the specific document or is an affidavit stating "I have reviewed the records..." adequate to admit any document from the OC?

That is my ONLY concern. The affidavit from the OC references NOTHING specific.

In my opinion, that affidavit wouldn't be adequate in order to allow a JDB to submit OC records. But I doubt my opinion would carry much weight with your court. Although it should.

You need to find what your courts have stated is necessary in an affidavit under 803(6). Hopefully, that would be case law that shows an affidavit MUST reference the specific records...not just "the records".

If you can find such case law, your next step would be to attack the JDB's affidavit. You'd have to find out what your courts have ruled regarding an affidavit from a business attempting to authenticate the business records created by another business OR what the affiant is required or not required to know.

Edited November 21, 2012 by BV80

[BrunoTheJDBkiller]

These affidavits are all rather generic and use the same terminology. They usually reference business records, or records made in the normal course of business, or transferred to them by a person with knowledge, stuff like that. I've never seen one that mentions specific items like "Joe's credit card statements" or anything like that.

One way to go after them is to get the bill of sale or forward flow document. The OCs refuse to give any kind of warranties of any kind. That means they do NOT guarantee that any of the information / account balances / etc is accurate! How can Midland then claim that the amount sued for is accurate?

[1stStep]

Another thing you could ask for is the affiant's work history - just to show they have never worked for the OC, or have experience in that field.

There's a Midland affiant whose last job was at a taco place...

[Flyerfan]

Another thing you could ask for is the affiant's work history - just to show they have never worked for the OC, or have experience in that field.

There's a Midland affiant whose last job was at a taco place...

I requested the employer, job title etc. of the affiants. What's funny is Midland objected to it specifically stating it was improper according to DRCP 33.

Here's the funny part. That rule reads:

Delaware Rules of Civil Procedure Rule 33(5)

© Scope; use at trial. -- Interrogatories may relate to any matters which can be inquired into under Rule 26(, and the answers may be used to the extent permitted by the rules of evidence.

Delaware Rules of Civil Procedure Rule 26(

(1) In general. -- Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

I have sent them a courtesy letter stating that their objection is improper.

Then I will compel. There's my ace in the hole for the MSJ in a week. I am being denied discovery and have made a good faith effort to get it.

[BV80]

Another thing you could ask for is the affiant's work history - just to show they have never worked for the OC, or have experience in that field.

There's a Midland affiant whose last job was at a taco place...

That might be achieved in a request for admissions.

Admit _________ (name of the affiant) has never been employed by OC.

Admit __________ has no knowledge of the business practices of OC.

Admit __________ has no knowledge of the creation and maintenance of any records allegedly created by OC.

[Flyerfan]

Is it better that the plaintiff has objected to the discovery of their employment? Denying me information on this seems to be indicating they will not be called to testify therefore making their affidavit irrelevant.

[BV80]

Is it better that the plaintiff has objected to the discovery of their employment? Denying me information on this seems to be indicating they will not be called to testify therefore making their affidavit irrelevant.

Just because the affiant doesn't testify in person doesn't mean the affidavit is irrelevant. You have to show how it's irrelevant or insufficient. You can subpoena the affiant or send a request for admissions in reference to the affiant.

Unless your rules say otherwise, the JDB is not required to get the affiant to to appear in court.

[Flyerfan]

Unless your rules say otherwise, the JDB is not required to get the affiant to to appear in court.

I was under the impression that it was a right to confront your accuser or anyone testifying (via affidavit or otherwise) by cross-examination. How can I cross-examine an affidavit?

[BV80]

I was under the impression that it was a right to confront your accuser or anyone testifying (via affidavit or otherwise) by cross-examination. How can I cross-examine an affidavit?

Do your rules state that an affiant has to appear in court even without a subpoena? If not, you will have to issue a subpoena. The JDB's not going to do it for you.

Edited November 21, 2012 by BV80

[saytar]

I was under the impression that it was a right to confront your accuser or anyone testifying (via affidavit or otherwise) by cross-examination. How can I cross-examine an affidavit?

Do a Clint Eastwood. Set the affidavit in the witness chair and verbally ask it questions. When it doesn't answer just say, I take your lack of response as an affirmative answer.

Ask it the same interrogatory questions you would a real person. If it fails to answer then deem your interogatory question admitted. Ask directed question's.

At least the affidavit can't give you a dirty look, but I bet the attorney will!

Just saying....................

[Seadragon]

also I would be careful about the affiant. Subpoena them for trial. as for the MIL we have one here somewhere.

http://www.creditinfocenter.com/forums/1138246-post34.html

I hope that helps you have to lookup the rules of court and caselaw and formatting.

[Flyerfan]

I did oppose the MSJ and I filed an affidavit as well. I think I'm in good shape for the MSJ.

I really want to get rid of these statements though. They are not mentioned at all in the affidavit. No specific document is. My argument will be that if these can get admitted under the "affiant mentioned the word 'records' she reviewed" theory, then anything with a Chase logo can be admitted. Know what I mean?

[Coltfan1972]

There's a Midland affiant whose last job was at a taco place...

Give me three soft tacos with no lettuce, a bean burrito, two orders of cheese dip, and four robo signed affidavits.

[BrunoTheJDBkiller]

Oh, a health fanatic, eh? I can hear your arteries slamming shut from here!

[1stStep]

Give me three soft tacos with no lettuce, a bean burrito, two orders of cheese dip, and four robo signed affidavits.

Carne asada fries, extra guacamole, sour cream and cheese - 6 junk debt portfolios and 50 robosigned affidavits.

[BrunoTheJDBkiller]

100 junk affidavits, a heart transplant, and an emergency bypass at the drive up window where you buy this junk. What the heck is guacamole? It sounds like an std.

[Huey Pilot]

I did oppose the MSJ and I filed an affidavit as well. I think I'm in good shape for the MSJ.

I really want to get rid of these statements though. They are not mentioned at all in the affidavit. No specific document is. My argument will be that if these can get admitted under the "affiant mentioned the word 'records' she reviewed" theory, then anything with a Chase logo can be admitted. Know what I mean?

Here is the Template I used. Maybe you can edit or modify to suit your case. Sorry about the formatting.

Huey Pilot

123 Cirrus Street

Cumulous, OR 97200

THE CIRCUIT COURT OF THE STATE OF OREGON

FOR WASHINGTON COUNTY

Midland Funding, LLC,

Plaintiff,

vs.

Huey Pilot,

Defendant )

)

)

)

)

)

)

)

)

) Case No.: C999999999CV

STATUTORY DECLARATION IN LIEU

OF AFFIDAVIT STATING FACTS OPPOSING PLAINTIFF'S CARD

MEMBER AGREEMENT

STATUTORY DECLARATION

I, Huey Pilot, under "penalty of perjury" pursuant to the laws of the state or Oregon and

Oregon Rules of Civil Procedure 1E, herein after “Declarant”, “Defendant”, “Alleged

Borrower”, “Alleged Account Holder”, depose and declare, that the declaration used in lieu of

affidavit, allowed by these rules, avers that the submittal of the following statements, made

herein, are true and correct to the best of my knowledge, and not meant to mislead.

Plaintiffs Subject Card Member Agreement Lacks Propriety or Trustworthiness.

1.

Plaintiff has attempted to introduce into evidence a document entitled "Cardmember

Agreement" which does not name Defendant, contains no specific terms binding this

Defendant to any alleged account, and contains no signatures, and incorrectly claims that

Chase Bank N.A., USA sent it to Defendant. Defendant objects and furthers there is no

evidence that the "Cardmember Agreement" was ever offered to Defendant.

Defendant has examined the document and further objects on the grounds that the documentwas not his contract, or that any of the terms contained in alleged agreement apply, and thatDefendant has never received such a document from Chase Bank. There has been noexecution and delivery of any alleged contract with the intent that it be mutual and binding.This document was introduced to prove the truth of its contents, and Plaintiff failed to lay anadequate foundation for its admission as a business record. Defendant further objects thatPlaintiff is unable to offer evidence Defendant accepted the strict compliance of the terms of any offer or agreement between Chase Bank and Defendant or that valid evidence of an enforceable contract exists between the parties. There has never been an offer, there has been no meeting of the minds, nor any of the other required elements of acceptance for establishing that the agreement contains the terms of an enforceable contract.

2.

Plaintiff has failed to tender the actual provisions allegedly agreed to, including any and all

amendments and not simply a photocopy of general terms to which the original credit issuer

may currently demand debtors agree. Plaintiff's Exhibit labeled "Credit Card Agreement"

lacks Defendant's signature neither does it contain a date indicating when these terms were

adopted by Chase Bank nor how the terms were amended or changed, if at all, over the

years appear anywhere on the attached form letter overly reproduced non-original document.

Furthermore, the contract does not contain any name, account number or other identifying

statements which would connect the proffered agreement with the Defendant in this action. In

fact, Plaintiff appears to have attached the exact same photocopy, which as noted is not

specific to any particular consumer, to many of its previous actions. The burden nevertheless

remains with Plaintiff to tie the binding nature of its boiler-plate terms to the alleged user at

issue in this particular case and to show that those terms are binding. It must include an

affidavit sufficient to tender to the Court the original agreement as well as that any revision

there to, and that the affidavit must aver that the documents were mailed to the cardholder.

3.

Plaintiff has not provided proof identifying the class of accounts to which this alleged

agreement matches or applies. Plaintiff has not identified if the alleged terms apply to a Gold

Card, Platinum Card, Airlines Card or other identifying class in connection with the alleged

account. Accordingly, the Plaintiff cannot truthfully testify to those facts unless the credit card

issuer has maintained and the Plaintiff has reviewed records establishing 1) that the

particular agreement applied to the class of accounts that included the defendant’s alleged

account, 2) that the agreement applied to that class of accounts during the time that the

Defendant’s alleged account was open, and 3)that the particular agreement was actually

offered to the Defendant. It is essential to the validity of a contract that it be sufficiently certain

to define the nature and the extent of its material obligations. In a loan contract, the interest

rate and repayment schedule are material terms of the contract. If those terms are missing

the contract is not sufficiently definite to be enforced. A court may not supply the missing

terms. A credit card plaintiff must own a credit card account to have standing to sue on it.

Plaintiff falls well short of the standard required under Oregon law to prove the terms of an

enforceable agreement.

“I hereby declare that the above statement is true to the best of my knowledge and belief, and

that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

Dated this 28th day of October, 2012

/S/ Signature

Huey Pilot

[Huey Pilot]

I did oppose the MSJ and I filed an affidavit as well. I think I'm in good shape for the MSJ.

I really want to get rid of these statements though. They are not mentioned at all in the affidavit. No specific document is. My argument will be that if these can get admitted under the "affiant mentioned the word 'records' she reviewed" theory, then anything with a Chase logo can be admitted. Know what I mean?

Here is what I filed with a few notes and Ideals I gleaned from the Forum and other Declarations while in process of doing the same statement eliminations.

HUEY PILOT

123 AIRPORT WAY

CIRRUS, OR 97200

THE CIRCUIT COURT OF THE STATE OF OREGON

FOR WASHINGTON COUNTY

Midland Funding, LLC,

Plaintiff,

vs.

Huey Pilot,

Defendant

)

)

)

)

Case No.: C999999CV

STATUTORY DECLARATION IN LIEU OF

AFFIDAVIT STATING FACTS OPPOSING

PLAINTIFFS MONTHLY STATEMENTS

STATUTORY DECLARATION

I, Huey Pilot, under "penalty of perjury" pursuant to the laws of the state or Oregon and

Oregon Rules of Civil Procedure 1E, herein after “Declarant”, “Defendant”, “Alleged

Borrower”, “Alleged Account Holder”, depose and declare, that the declaration used in lieu of

affidavit, allowed by these rules, avers that the submittal of the following statements, made

herein, are true and correct to the best of my knowledge, and not meant to mislead.

Plaintiffs Subject Monthly Statements Lacks Propriety or Trustworthiness.

1.

The hearsay rule is based on the premise that out-of-court statements can be unreliable

because the Declarant (1) may not be telling the truth, (2) may have wrongly perceived the

events, (3) may have an imperfect memory, or (4) may have conveyed an unintended

meaning to the listener. The Hearsay evidence rule prohibits the admission into evidence of

statements – oral or written – made by an out-of-court witness offered to prove the truth of

the matters asserted because it denies the defendant the opportunity to cross examine.

Statutory Declaration in Lieu of Affidavit Stating Facts Opposing Plaintiff's Monthly Statements - Page 2

In the realm of credit card collection, the credit card agreement and billing statements are

both in fact written statements by out-of-court witnesses offered in attempt to prove the truth

of their contents and are inadmissible as evidence to prove the amount allegedly owed.

One cannot present billing statements in court because they are regarded as documents

made by an out of court witness that offered to prove the truth of the matter in dispute.

Where the central issue at bar is the very transactions recorded in the business record, pro

forma testimony will not suffice. Such testimony impairs the credibility of the document,

especially where the maker of the record has a strong motive to falsify. Therefore, monthly

credit card statements presented in Court lack credibility and inadmissibility as evidence and

are nothing more than pure hearsay

2.

A witness from the Original Bank must authenticate the documents by "laying a foundation" to

show that: 1) the documents were created in the regular course of business; 2) the bank's

regular course of business included making those documents; 3) the creator of the

documents had a business duty to create them; and 4) the documents were created at the

time that the transactions reflected took place, or a reasonable time thereafter. Plaintiff has

presented no testimony from any bank witnesses who possess first-hand knowledge of the

alleged Original Bank's record-keeping practices, or the accepting of payments, or have been

responsible for the generation of the third party bank statements or their authentication lacks

proper foundation, and are hearsay.

3.

"You simply can't take business records from another businesses files, place them in your

own files, and then claim them as your own records". The mere acceptance or incorporation

of electronically transferred data from the Original Creditor into Plaintiffs business records

is not enough to satisfy the trustworthiness requirements of ORS 40.510 902(i); hence the

need for ORS40.460.803(6). The source of information or the method or circumstances of

preparation indicate a lack of trustworthiness and reliability. Bank Statements are simply not

Plaintiffs records and are inadmissible.

Midland Funding, LLC vs. Huey Pilot

Statutory Declaration in Lieu of Affidavit Stating Facts Opposing Plaintiff's Monthly Statements - Page 3

4.

The bank statement documents offered as evidence by the Plaintiff are not autheniticated

original documents and are alleged Chase business records as indicated by their logo and

have been alledgedly compiled by Chase data processing employees or out sourced

contractors creating the electronic records on their behalf. This is a re-creation after the fact.

These records clearly state as a footnote that the are a Facsimile - Not and original and are

objected to as unauthenticated hearsay and are inadmissible. These are not original

documents, as stated in the individual footnotes, and no hearsay exception exists or

circumstantial guarantees of trustworthiness to allow them into evidence. Computer

generated copies can be easily altered or faked.

5.

The statute requires that three foundational requirements must be met. First, that the record

be made in the regular course of business, which reflects a routine, regularly conducted

business activity, and that it be needed and relied on in the performance of functions of the

business. Second, that it be the regular course of such business to make the record (a

double requirement of regularity), which means that the record be made pursuant to

established procedures for the routine, habitual, systematic making of such a record. Third,

that the record be made at or about the time of the event being recorded, which requires that

the recollection be fairly accurate and the habit or routine of making the entries assured.

With respect to the first two foundational requirements, the difference between them is largely

academic. However, the regularity required by these requirements are satisfied when a

business makes a record that is part of its operation, i.e. the record is needed for a legitimate

business purpose, and that it is the policy that the record be regularly made

pursuant to the established procedures that would tend to guarantee trustworthiness.

"The statutory requirement that the business record be prepared within a reasonable time

after the occurrence, i.e., while the memory of the event was still fresh enough to be fairly

Midland Funding, LLC vs. Huey Pilot

Statutory Declaration in Lieu of Affidavit Stating Facts Opposing Plaintiff's Monthly Statements - Page 4

reliable, should not be too rigidly applied". Ms. Paperman's alleged Affidavit specifically states

that "Chase has no further interest in said account for any purpose". Here, no specific

evidence was presented as to how much time elapsed between the alleged sale date, date

redacted, or what documents were reviewed, her alleged "review of Chase's Records"

leaving this Court only to presume that the statements were "not made at the time of the

event or within a reasonable time thereafter". The alleged bill of sale was endorsed March 23,

2011 and the Robo-signed form letter, AOS 2011.8, alleged Paperman's Affidavit notarized

on December 14th, 2011 is inadequate.

6.

In Plaintiff's attempt to prove their case, they have presented old credit card statements that

allegedly contain data not prepared after the fact as manufactured evidence to prove their

case. Every statement provided contains a disclaimer, in the footnote, attesting "This

Statement is a Facsimile - Not an original" and that it was prepared August 10th, 2010. The

alleged statement date range is from August 11th, 2008 through February 11th, 2010 clearly

indicating that documents are manufactured evidence prepared after the fact and are

inadmissible computer stored data that is irrelevant and incompetent.

“I hereby declare that the above statement is true to the best of my knowledge and belief, and

that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

/s/ Signature block & date

Dated this 25th day of April, 2012

HUEY PILOT

123 AIRPORT WAY

CIRRUS, OR 97200

Best,

HP

[1stStep]

100 junk affidavits, a heart transplant, and an emergency bypass at the drive up window where you buy this junk. What the heck is guacamole? It sounds like an std.

Bruno - you should expand your culinary horizons...these are so good, I had them for breakfast today.

OP - the statements are useless unless they can get someone from the OC to authenticate them...

Edited November 23, 2012 by 1stStep