Objections for MSJ hearing

[Boostagusta]

I have my hearing to oppose JDB's MSJ this Thursday and need help ensuring I use the proper objections to JDB's affidavit and evidence.  I am already very prepared and have objections and case law locked & loaded, but I know the collective might of the CIC posters will make my case better.

 

Please see below!

 

Jeff Hasenmiller, being duly sworn on oath, states and desposes as follows:

 

1. Affiant is an authorized agent of the Plaintiff above-named, and is familiar with Plaintiff's Assignor's business records, and has full access to the computer-generated business records of Plaintiff's Assignor.

1. That Plaintiff maintains books and records of regularly conducted business activities, and that affiant is a custodian of those books and records, and that those books and records include copies of a credit card agreement between Plaintiff's Assignor and defendant. See Exhibit A (WHICH IS A GENERIC PROVIDIAN MASTERCARD OR VISA ACCOUNT AGREEMENT).

1. That Defendant is the holder of a credit account issued by Plaintiff's Assignor with the account number ****************.  Defendant was issued credit on the account and was sent a credit agreement.  The application and/or the credit agreement contained all of the disclosure statements required under State and Federal Law.  Pursuant to the terms of the credit agreement, Defendant obtained extensions of credit by using this account for the purchases of goods and services.

1. Billing statements for the Defendant's account are included as Exhibit B (WHICH IS 8 CREDIT CARD BILLS) to Plaintiff's paperwork.  Contained within the billing statements are all the required notifications of the applicable interest rate.  The billing statements were kept in the ordinary course of business and Affiant is confident they are an accurate accounting of the Defendant's account.

1. Defendant has failed to repay his debt to Plaintiff's Assignor pursuant to the terms of his credit agreement, and is accordingly indebted to Plaintiff in the amount of $$$$$$$$.  See Exhibit B and Exhibit C (WHICH IS A BILL OF SALE).

1. The terms of the credit agreement also provide that Plaintiff is entitled to recover its costs of collection.

1. That at no time has Plaintiff or Plaintiff's Assignor agreed to a modification of the parties' credit agreement.

1. That on January 06, 2011 Chase Bank USA, N.A. sold Defendant's credit account number ************ to Equable Assent Financial, LLC as Part of a Credit Card Account Purchase Agreement.  See Exhibit C.

1. Your affiant makes this affidavit in support of Plaintiff's motion for summary judgment.

 

 

[BV80]

@Boostagusta

 

Jeff Hasenmiller does not state that the information in the affidavit is based upon personal knowledge.

 

Rule 56.05 provides in part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

In the case of Itasca County Social Services v. Milatovich, 381 N.W.2d 497 (Minn.Ct.App.1986) (summary opinion), this court reversed a summary judgment of paternity because the affidavit of a Child Support Officer regarding blood test results was not made on "personal knowledge." Id. at 498-99.

 

Was his the only affidavit offered?  No other affidavits?

[Boostagusta]

Yes, the only affidavit offered.  And I stated this objection in my opposition memorandum.

[BV80]

@Boostagusta

 

That affidavit does not authenticate any evidence offered by the JDB.  The affidavit has to contain the language in MN Rule of Evidence 803(6).  It doesn't contain that language.

 

Minn. R. Evid. 803(6) sets forth the business-records exception to the hearsay rule. To qualify for the exception, the evidence must meet three requirements: (1) the evidence was "kept in the course of a regularly conducted business activity"; (2) "it was the regular practice of that business activity to make the memorandum, report, record, or data compilation"; and (3) the foundation for this evidence is shown by the custodian or other qualified witness. Minn. R. Evid. 803(6).

 

The affidavit doesn't contain the language in (1), (2), and (3). 

To qualify as a business record, a record must be "kept in the course of a regularly conducted business activity" and made as a regular practice of that business activity. Id. In addition, the custodian of the record or another qualified witness must provide a foundation for the evidence by "explain[ing] the recordkeeping of [the] organization." Nat'l Tea Co. v. Tyler Refrigeration Co., 339 N.W.2d 59, 61 (Minn. 1983).

Jeff's affidavit does not contain the required language of Rule of Evidence 803(6) nor does he explain the record keeping of either __________(OC) or ______________JDB.  Plaintiff's affidavit is insufficient to lay the proper foundation for the admission of any business records submitted by Plaintiff.  Therefore, the alleged business records are inadmissible hearsay.

 

 

That affidavit is so deficient, it's funny.  It doesn't authenticate any business records, nor does it support summary judgment.   He doesn't have to have personal knowledge to authenticate the business records, but the affidavit does have to include the language in 803(6).  It doesn't contain that language.

 

However, to support summary judgment (which he states at the bottom is the purpose of the affidavit), the affidavit MUST be based on personal knowledge.  He doesn't say that his testimony is based on personal knowledge.  So, not only does the affidavit NOT authenticate any business records, it is not sufficient to support summary judgment.

[Boostagusta]

I think I got railroaded at MSJ hearing today.  Pretty disappointed... have not got the ruling yet- Judge 'took it under advisement' and will mail it out.  I'm guessing it is gonna be bad news.  Judge gave me 2 minutes to add oral agruments to my memorandum.  I objected to the JDB's evidence, Plaintiff interupted that I did not deny owing the balance (in my answer I stated I lacked information to either confirm or deny- which is a denial in MN) and Judge says "Boostagusta is not denying owing the debt, he just has questions on the assignment".  I say no, presently I am denying Plaintiff has any admissible evidence and..then..my..2..minutes..were..up.  Judge says she will mail decision and her clerk asks JDB atty 'do you just want me to email it over to you'.

Maybe I won't lose, but it sure was frustrating.  And kinda disgusting.

[Boostagusta]

The JDB was granted summary judgment today.  I really think my objections on the record were enough to have this motion denied.  Is it wiser to appeal or make a motion to vacate?  Because I sure as heck don't want to lie down and take it.

[Boostagusta]

Was summary judgment granted b/c I did not deny owing the balance?  In my answer, I stated I did not have sufficient information to confirm or deny.  Minn. Civ. Pro. 8.02 states "If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial."  So I was operating under the thought that I give no information and they have to prove everything.  Was this what went wrong??