Motion to Strike Affidavit - JDB Threatens Sanctions if Filed

[PwnTheJdb]

From JDB attorney (Colorado county court case):

 

I have briefly reviewed your motion. We do oppose it. After a brief review of the motion, my preliminary positions are: 1) the motion is legally improper, because it serves no legally justifiable purpose; and  2) it is sanctionable.

Please limit any further communication with my office to written form (ie email or mail) directed to my attention. I will be handling this case and have not authorized my staff to do anything except forward your communications to me. Additionally, because of the level of sophistication show by your pleadings and filings to date, I have a suspicion you are working with an attorney on this case. If you have been receiving assistance drafting your documents, I ask you file amended versions that identify the attorney(s) who have assisted in the drafting of any filings as required by the Rules. Because of this and other concerns I have, I want to be sure to have a record of every communication so that there is no room for interpretation or argument down the road.  I respond to email in a timely manner, so this should not have any impact on our negotiations or interactions moving forward, expect to protect all parties involved by maintaining a record of communications.

Additionally, in the event you are not working with an attorney, I would caution you that even though you are not an attorney, you are held to the same standards as attorneys admitted to practice in this jurisdiction and that ignorance of the law is not a defense to a claim for attorney fees and costs for the filing of sanctionable document, especially when it has been brought to your attention prior to the filing of your motion. “If a litigant, for whatever reason, sees fit to rely upon his own understanding of legal principles and the procedures involved in the courts, he must be prepared to accept the consequences of his mistakes and errors. One who attempts a major operation, without expert knowledge of the precautions essential to safety, cannot be heard to complain if tragedy results.” Viles v. Scofield, 261 P.2d 148, 149 (Colo. 1953).  “A litigant is permitted to present his own case, but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” Heikes v. Ft. Collins Production Credit Asso., 456 P.2d 274, 275 (Colo. 1969) (reaffirming the principle that a pro se defendant cannot be afforded additional leeway with the rules and law because of their pro se status) (quoting Viles, 261 P.2d at 149). Because of this, you can be held liable, just like an attorney, for any filings that are inadequately researched, unsupported by law and fact, or propounded for an improper purpose.  Because I believe your current motion is sanctionable, in the event you decide to file it, I will move for reasonable attorney fees.

Lastly, in the future if I fail to respond to an email, my silence is not acquiesence and should not be interpreted as such.

 

[shellieh98]

Looks to me like he is afraid of you.

[PwnTheJdb]

That was my take but I thought I'd see what others thought.

[usagi555]

The attorney could be bluffing.  Or not.  Nobody here can say without knowing the procedural history of the case.  If you're just trying to strike right off of the start, your motion will fail.  I don't see the courts imposing sanctions, but it very well could.  Now then, if you've hammered the affidavit with discovery, you may have something. 

[nascar]

Nonsense.

[Huey Pilot]

You are already costing this attorney money and valuable time. You didn't identify your motion but hopefully it was a motion for dismissal in lieu of answer.  Post your redacted motion and let's see what has got this guy so upset he's trying to rattle sabers to scare you off. Maybe more of us should do the same thing????  

 

If he's concerned about the professionalism of the documents and the accuracy of procedures, with the champs on this forum, this attorney has yet to see the beginning of the onslaught of events the defense has yet to file with the court. There is no free rides or easy defaults in the Plaintiff's future. 

 

Bring it on,

 

HP

[calawyer]

THis thread caught my eye, although I can't offer any advice about Colorado law.  But the juxtaposition of the following two sentences is odd:

 

"I respond to email in a timely manner, so this should not have any impact on our negotiations or interactions moving forward, expect [sic]  to protect all parties involved by maintaining a record of communications."

 

*                     *                    *                                      *

 

"Lastly, in the future if I fail to respond to an email, my silence is not acquiesence and should not be interpreted as such."

 

 

 

Also, it is interesting that the attorney cites cases for the proposition that a pro per can be sanctioned.

 

But not one case (or any argument for that matter) is cited to support the assertion that your motion is legally improper.

[gwheelock915]

I would like to see the motion in dispute as well. A well written motion to dimiss, however, normally results in drawing the ire and exposing the poor education of opposing counsel.

[PwnTheJdb]

But not one case (or any argument for that matter) is cited to support the assertion that your motion is legally improper.

 

I asked him for his basis for his claims and he refused to say.

[PwnTheJdb]

@gwheelock915

 

Here is the Motion to Strike:

 

COMES NOW defendant [Hero], in pro se, hereby requesting that the plaintiff’s Affidavit of [Affiant] is stricken from the record. As grounds for and in support of this Motion, the defendant states:

• C.R.C.P. Rule 56(e) requires that affidavits “be made on personal knowledge, shall set forth such facts as would be admissible in evidence”. [Affiant]'s affidavit is deficient of this requirement in the following ways:
  • [Affiant] asserts that a debt exists between defendant and [OC] but [Affiant] does not claim to have personal knowledge of the alleged debt, how that debt was created, the terms of such debt, or the record keeping practices of the original creditor. [Affiant] only claims to have reviewed pertinent records, which does not constitute personal knowledge of the debt.
  • [Affiant] asserts that plaintiff is the owner or successor of the alleged debt but does not claim to have personal knowledge of the assignment of the alleged debt to the plaintiff, including a valid chain of custody between the numerous intermediary owners of the debt. [Affiant] only claims to have reviewed pertinent records, which does not constitute personal knowledge of the assignment.
• C.R.C.P. Rule 56(e) requires that “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” [Affiant]’s affidavit is deficient of this requirements in the following ways:
  • [Affiant] refers to a [OC] account number but does not attach the document on which that number appears.
  • [Affiant] refers to an alleged balance owed but does not attach a copy of the document on which that balance appears or documentation for how the amount was calculated.
  • [Affiant] refers to a revolving credit agreement allegedly entered into between defendant and the original creditor but does not attach a copy of the agreement.
  • [Affiant] refers to an assignment of the alleged debt to the plaintiff but does not attach a copy of the document showing such assignment.
• An affidavit that sets forth only a conclusory assertion without factual allegations to support it is deficient on its face. See USA Leasing, Inc. v. Montelongo, 25 P.3d 1277 (Colo. App. 2001). [Affiant]’s affidavit sets forth only the conclusory allegation that defendant is indebted to plaintiff for certain amounts, but no factual allegations are set forth showing the basis for defendant's alleged indebtedness for such amount, or showing the method by which the specific amounts claimed were calculated. Additionally:
  • [Affiant] concludes that the alleged debt results from a revolving credit agreement but provides no evidence to support the claim.
  • [Affiant] concludes that the defendant allegedly used or authorized the use of the credit account but provides no evidence to support the claim.
  • [Affiant] concludes that the defendant allegedly failed to make payments pursuant to the agreement but provides no evidence of any such agreement or the agreed upon payment arrangement.
  • [Affiant] concludes that the plaintiff owns the obligation sued upon, and was assigned all the rights, title, and interest to the alleged debt, but provides no evidence to support such assignment.

Given the preceding, the plaintiff’s affidavit has no probative value and should be stricken from the record.

 

WHEREFORE the defendant requests that the Court issue an order granting the defendant’s Motion to Strike Affidavit of [Affiant].

[PwnTheJdb]

Some of those bullets lost their indentation but I think you can figure it out.

 

Update: fixed it.

[gwheelock915]

And they are going to sanction you over that?

 

The only thing that may be an issue, but one of form rather than substance is that I've never seen a motion that used bullets. Normally it would need to be numbered but I can't speak for you on that issue as I don't live in CO.

 

Also, I wouldn't agree to communication via letter or email only with them. If you do send him email, say please call me.

[shellieh98]

lol yep he is tucking his tail, you are going to have to make him work really really hard to produce all that stuff.  He might think he can, hence the letter, but more likey he doesn't want to have to do it. I would file it, but others may have a different view.  I wonder what his objection will be?  

[howucan2]

From JDB attorney (Colorado county court case):

 

I have briefly reviewed your motion. We do oppose it. After a brief review of the motion, my preliminary positions are: 1) the motion is legally improper, because it serves no legally justifiable purpose; and  2) it is sanctionable.

Please limit any further communication with my office to written form (ie email or mail) directed to my attention. I will be handling this case and have not authorized my staff to do anything except forward your communications to me. Additionally, because of the level of sophistication show by your pleadings and filings to date, I have a suspicion you are working with an attorney on this case. If you have been receiving assistance drafting your documents, I ask you file amended versions that identify the attorney(s) who have assisted in the drafting of any filings as required by the Rules. Because of this and other concerns I have, I want to be sure to have a record of every communication so that there is no room for interpretation or argument down the road.  I respond to email in a timely manner, so this should not have any impact on our negotiations or interactions moving forward, expect to protect all parties involved by maintaining a record of communications.

Additionally, in the event you are not working with an attorney, I would caution you that even though you are not an attorney, you are held to the same standards as attorneys admitted to practice in this jurisdiction and that ignorance of the law is not a defense to a claim for attorney fees and costs for the filing of sanctionable document, especially when it has been brought to your attention prior to the filing of your motion. “If a litigant, for whatever reason, sees fit to rely upon his own understanding of legal principles and the procedures involved in the courts, he must be prepared to accept the consequences of his mistakes and errors. One who attempts a major operation, without expert knowledge of the precautions essential to safety, cannot be heard to complain if tragedy results.” Viles v. Scofield, 261 P.2d 148, 149 (Colo. 1953).  “A litigant is permitted to present his own case, but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” Heikes v. Ft. Collins Production Credit Asso., 456 P.2d 274, 275 (Colo. 1969) (reaffirming the principle that a pro se defendant cannot be afforded additional leeway with the rules and law because of their pro se status) (quoting Viles, 261 P.2d at 149). Because of this, you can be held liable, just like an attorney, for any filings that are inadequately researched, unsupported by law and fact, or propounded for an improper purpose.  Because I believe your current motion is sanctionable, in the event you decide to file it, I will move for reasonable attorney fees.

Lastly, in the future if I fail to respond to an email, my silence is not acquiesence and should not be interpreted as such.

Is he giving legal advice ? phrase that starts with  " I would caution you ............"

 

If it was me I would email back  " Heintz vs Jenkins " SCOUTUS 1995,  If he is smart enough he'll know what it means (FDCPA which does not exempt attorneys)

[usagi555]

Well, seeing that, assuming that everything you've put in that motion is correct or at least arguably so, I would worry a lot less about it.  You might not win on the motion, but I don't see that as being frivolous or being submitted in bad faith. 

[gwheelock915]

One more thing....Why is it that they are threatening sanctions if you file the motion? What are you doing sending him rough drafts?

[PwnTheJdb]

One more thing....Why is it that they are threatening sanctions if you file the motion? What are you doing sending him rough drafts?

 

In Colorado, the parties have a duty to confer before submitting a motion. I called but the person who answered wouldn't put the attorney on the phone. So I emailed a copy and let him know I'd be submitting it tomorrow.

[howucan2]

Meet and confer is different than bullying. IMO If he wants to oppose the motion then he can do it through the court.

[Flyerfan]

So you haven't filed it yet? I agree that I also have never seen a motion formatted that way. Check for templates in Colorado and make sure you format it correctly before filing. It makes some very good point, though. 

 

That being said, motions to strike are 90% of the time, premature. The affidavit is not in evidence yet. I think this should more be a motion in limine which is where admissibility of evidence is determined before it is submitted as evidence. These are common and I believe you would have a better shot at that. JMO

[racecar]

Tell that JDB attorney you watch judge judy and judge mathis on a regular basis.

Almost forgot nice work.

[Credator]

...

 

Also, it is interesting that the attorney cites cases for the proposition that a pro per can be sanctioned.

 

But not one case (or any argument for that matter) is cited to support the assertion that your motion is legally improper.

Way too common from my experience. "We have no merits to our argument/case - Quick! Look at that squirrel!"

 

I find everything said by opposing around the phrase "this is not legal advice" is of course improper and often bad legal advice.

 

If opposing was as qualified as calawyer or other similarly competent and bright attorneys there would be a lot less of this ignorant behaviour. IMHO

 

I find that the less-than-best opposing attorneys make such a mess I have to spend time and resources straightening out the trial court record for the judge and the panel that will overturn any of his/her errors. Since their clients are mostly fraudulent lawbreakers it is hard to glean much of use from their pleadings and motions. Since I am not all that bright regarding litigation issues (I just never give up and will exploit your every weakness until you tap out) I like to look for any gems from opposing I can use to my advantage.

 

When opposing complains about something I am doing I like to review the applicable procedures and my game plan to make sure I am properly following (as well as enforcing on opposing) the civil procedures and that I am staying on target for achieving my win. Their complaining might be due to my putting the hurt on them or it could be that I need to change my approach.

 

It is interesting to me that the same jurisdictions that hold that a self-represented party must be held to the similar standards as an attorney typically don't permit a pro-se that prevails on their case to charge fees equal to or slightly more than the hourly rate that would be allowed by the losing attorney, had they prevailed. Ah, the benefits of cartel membership.