edc88 Posted June 19, 2013 Report Share Posted June 19, 2013 I'm looking for a case law that can help support a bogus affidavit. The affiant never claims it's of his personal knowledge, just the "to the best of my knowledge". I've been searching on google scholar with no such luck. Wondered if anyone new of MO case law if not, maybe federal? thank you so much in advance! Link to comment Share on other sites More sharing options...
Spikey Posted June 19, 2013 Report Share Posted June 19, 2013 Personal knowledge isn't always required to meet the law. It's usually for specific instances where it's required. Link to comment Share on other sites More sharing options...
edc88 Posted June 19, 2013 Author Report Share Posted June 19, 2013 yes you're correct, the law doesn't state anything about that, i guess i am more attacking that he's not a qualified witness Records, competent evidence, when.490.680. A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. Link to comment Share on other sites More sharing options...
BV80 Posted June 19, 2013 Report Share Posted June 19, 2013 @edc88 "The business records exception to the hearsay rule applies only to documents generated by the business itself.... Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. 1989). (the emphasis on the first sentence was mine).These documents were part of a file belonging to the bank, they were not generated by the bank and thus are not business records of the bank. Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680 RSMo 1986. Hamilton Music, Inc. v. York, 565 S.W.2d 838, 841 (Mo.App. 1978).Under section 490.680, "the records `custodian' or `other qualified witness' has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records." CACH, LLC v. Askew, 358 S.W.3d 58, 63 (Mo. banc 2012).A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C. & W. Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 140 (Mo.App. 2004). Link to comment Share on other sites More sharing options...
edc88 Posted June 19, 2013 Author Report Share Posted June 19, 2013 Ahhhh @BV80 you're wonderful!!! I actually have the first two case laws cited for the bill of sale and the lame excel spreadsheet they reprinted. the last two are exactly what I was looking for. THANK YOU THANK YOU THANK YOU!!!!!!!!!!!!!! Link to comment Share on other sites More sharing options...
BV80 Posted June 19, 2013 Report Share Posted June 19, 2013 @edc88 Ahhhh @BV80 you're wonderful!!! I actually have the first two case laws cited for the bill of sale and the lame excel spreadsheet they reprinted. the last two are exactly what I was looking for. THANK YOU THANK YOU THANK YOU!!!!!!!!!!!!!! You're more than welcome. If they provided credit card statements, I would also use the case law to show that those records are inadmissible due to the fact that they were not generated by the JDB. Look at the first citation. The business rule exception only applies to business records generated by the business itself. Link to comment Share on other sites More sharing options...
debtzapper Posted June 20, 2013 Report Share Posted June 20, 2013 BV80 does have an uncanny knack of finding excellent case law for whoever seeks advice here. She hit 10,000 posts yesterday, and while that sheer output is in itself quite an achievement, what is remarkable is that those 10,000 posts were not just casually dashed off her computer. They were all carefully researched, well-reasoned, and written with grace and clarity. OP's probably don't realize that it takes mental and physical effort to read, analyze, research, and compose an answer to a question There are other very fine regular posters here besides her, some who have their particular areas of speciality. But she is here day in and day out, commenting on just about everything. There is a wealth of talent here at CIC. I hope OP's are appreciative of that. 2 Link to comment Share on other sites More sharing options...
edc88 Posted June 20, 2013 Author Report Share Posted June 20, 2013 @BV80, can I use the same case law for two points? Or best to use two different? The first citation is wonderful and could be used for both the account summaries (printed off of PayPal) and the bogus excel spreadsheet, but wondered if I should just use this particular citation for one of the points. I have other citations for both of those as well. I'm wondering if I should limit the case laws, as to not overwhelm the judge or overkill...THANK YOU again for your help with this. @debtzapper, I cannot speak on the behalf of the other OP's but I'm so grateful to all the expert advice I've received from CIC. I am so glad I stumbled upon CIC so many months ago. Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2013 Report Share Posted June 20, 2013 @edc88 I would assume you could use the case law whereever it's applicable. Personally, I'd use the first 2 citations for any credit card statements that were provided. Credit card statements are not created by JDBs. Those 2 citations seems to fit that to a tee. I'd be wanting to knock out any cc statements a JDB would try to submit. If the credit card statements are inadmissible, they can't the prove the balance they're claiming. But I'm not an attorney. You know your case better than anyone else, so you do what you feel is best. I will suggest that you read the rulings from which the case law came. Carefully note why the courts made those rulings in order to determine if the circumstances were similar to yours so that you can make sure the case law is applicable to your case. You can also check other cases in which that case has been cited. Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2013 Report Share Posted June 20, 2013 @debtzapper Thank you for your kind words. I don't know that I have an uncanny knack. It's probably a combination of luck, the right search terms, and persistence. I've noticed you come up with some darn good case law, so it's very obvious that you spend time researching. Most, if not all, of the regulars here have been put through the wringer by OCs, CAs, and JDBs. Some of them may still be fighting their own battles, yet they still come here to help others. Those guys deserve extra thanks. This site has been a great help to me, and, in fact, I'm still learning from other posters. So, I come here becauseI want to give back. But, research and offering suggestions is also therapeutic. Rather than just stewing in my anger at JDBs who are trying to make money for doing nothing, I can be part of a great group of people who try to thwart the efforts of the bottomfeeders. 2 Link to comment Share on other sites More sharing options...
edc88 Posted June 21, 2013 Author Report Share Posted June 21, 2013 @BV80 thank you again for all your help...do you happen to know if the affidavit was signed 10 months after the bill of sale, can i claim it's untimely? I just happened to see someone state that claim on another case...didn't know if that would be a good defense too. Link to comment Share on other sites More sharing options...
BV80 Posted June 21, 2013 Report Share Posted June 21, 2013 @BV80 thank you again for all your help...do you happen to know if the affidavit was signed 10 months after the bill of sale, can i claim it's untimely? I just happened to see someone state that claim on another case...didn't know if that would be a good defense too. From what I understand, some states have a requirement regarding affidavits filed with a complaint. I believe Michigan is one of those states. If I understand it correctly, in Michigan, an affidavit is considered untimely if it's dated more than 10 days before a complaint is filed. It has nothing to do with the dates on the evidence referenced in the affidavit. To be honest, I don't believe an affidavit made 10 months after the date on the bill of sale is a problem. The purpose of the affidavit in that case is just to confirm that the sale took place. That being said, I don't know your state laws. See if your rules have anything about affidavits, dates, and evidence. Link to comment Share on other sites More sharing options...
edc88 Posted June 21, 2013 Author Report Share Posted June 21, 2013 @BV80, thank you again for explaining that...it does make sense what you've stated, it shouldn't matter when they signed or made the affidavit in correlation to the sale. Just didn't want to miss out on another opportunity to make them look like fools I will double check the state laws just to make sure though. thanks again! Link to comment Share on other sites More sharing options...
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