Az Piano Lady 14

Thank You All!!---A Midland Win

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@Az Piano Lady 14

 

Where did you describe why the court in Howell ruled that the Midland affidavit was insufficient to satisfy the business records exception?   You need to show why it's applicable to your case.

 

You included the following:

 

See State v. Johnson 184 ARIZ. 521,524, 911 P2d 527, 530 (app. 1994)(holding that when documents are attached and/or referenced in an affidavit, the affiant must establish that they reviewed the documents and were familiar with the manner in which they were prepared.  Villas, 174 ARIZ, at 82, 847 P2d at 127.

 

 

Did you cite Villas anywhere else?

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 Hot in Az won on appeal that a affiant from MCM cannot attest to the documents of MF.  

 

Maybe Hot in Az can chime in on that. Wouldn't MF/MCM just correct the mistake when it gets kicked back to the original court?

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Ok new and revised version.  Need help on the BOS part


7. The Bill of Sale refutes the Plaintiffs claims for a business records exception to the hearsay statute. The Bill of sale purports that the alleged records are not reliable or trustworthy for any purpose, therefore contradicting the Affiants statements directly. Additionally the Bill of Sale is an exhibit to a larger document which further claims that the plaintiffs should not rely on the records.

There are several threads about the bills of sale, Look at Homeless in California's trial brief for the most comprehensive arguments about The bill of sale and records admissibility.

NEW REDACTED TRIAL BRIEF 060313.doc

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I think the argument that the accounts are not reliable is the specific reason pushing for the forward flow agreement from each assignor will refute the plaintiffs affiants claims of accuracy and reliability.

 

Dirty diaper in = white dirty diaper out.

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Update.  Have to file the joint pretrial statement with the atty.  They were sweet to forward it in word to me.   Also have to file a statement of facts.

 

Read the whole forward flow thread.  Very interesting.   The atty responded to my motion to oppose telephonic witness.  The ever infamous Mycah Struck.  And also opposed my MIL to get rid of BOS, statements and this new witness.

 

So, now boning up for trial coming up too soon.  Hope I come out with a Christmas present!!!

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For anyone able to help . Here is the joint pretrial statement.  Notice on the witness it states a custodian of records from MCM, but on the last page  List of witnesses it states a representative from Midland Funding.  Why this discrepancy??/    Also on their reply to my opposition of telephonic witness they listed a wrong date of trial.  And in their reply to my MIL they listed yet another different date of trial.  What is up with these friggin collection firms.

 

I have to file this tomorrow, so   appreciate any help.  Also have to file a statement of facts and conclusion of law.

DOC121114.pdf

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@Az Piano Lady 14

 

A custodian of records could be considered a representative because they work for the company.

 

There's the "List of Witnesses and Exhibits" and the "Final List of Witnesses".   Were those 2 docs originally sent on different dates?

 

Also notice that the Final List says  "who will or may be called".  That says to me that Mycah Struck is not guaranteed to be there.

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I was going to say something, but I'll just let it play out as expected. Sorry for the cynicism, but I'll give a crisp hundred to anyone who wins in AZ on "dates."

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Yes, they were different dates.  The first arbitration trial they had only relied on an affadavit, and not from MS.  This trial they redisclosed MS as their telephonic witness.  So, unless the judge disallows the TW  MS will be there over the phone as a representative for MCM to lay foundation for their evidence.

 

Goody I know when my court date is . Just find it ridiculous these JDB "attys" continuously change things on paperwork.

 

I am just looking for help on the joint statement, as they sent it to me , don't want any surprises.

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@Az Piano Lady 14

 

Yes, they were different dates.  The first arbitration trial they had only relied on an affadavit, and not from MS.  This trial they redisclosed MS as their telephonic witness.  So, unless the judge disallows the TW  MS will be there over the phone as a representative for MCM to lay foundation for their evidence.

 

 

I'm assuming that the document that reflects MS's name was sent after the document that reflected "a representative"?   That was my reason for asking about the dates.

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@Az Piano Lady 14

 

When and how was their telephonic witness disclosed to you?

 

Also, I don't know how a telephonic witness can lay foundation & authenticate business records.  This is not a practice that is typically allowed anywhere I know of, unless it is not properly objected to.  

 

I'm assuming the judge granted their motion for telephonic witness?

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@BV80
 
Allowing a telephonic witness to authenticate documents & lay foundation to submit evidence at trial, is generally not allowed if properly objected to.  A telephonic witness can give weight and credibility to "already authenticated, submitted and accepted" evidence, not to introduce evidence.

 

For example:  If the evidence was authenticated and admitted by an affidavit, then a telephonic witness could testify regarding the already admitted evidence.  
 

Rule 43(f). Form and admissibility of evidence

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Arizona Rules of Evidence.

 

 

I would be objecting to high heaven, and so would any attorney if they were representing you.

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Hi all.   I just looked online and the judge ruled on the telephonic witness.   Hr denied it as it is a relatively short inexpensive flight from CA.   Finished my joint pretrial statement and have my witness questions ready to hammer.

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The other thing is they said the TW was in CA.  However an atty friend of mine said he works for MCM in MN.  That would have been my first question.  Where do you live. He defended a case where Midland flew MS in, and he only knew of the case because the ATTY  forwarded it to him.  Get that???  He had NO knowledge. He said the attys download the cases themselves.

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@BV80

 

Rule 43(f). Form and admissibility of evidence

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Arizona Rules of Evidence.

I would be objecting to high heaven, and so would any attorney if they were representing you.

Objecting to something doesn't make that thing invalid.

More to the point, though, I don't see that "orally in open court" necessarily excludes telephonic testimony. In other words, if the intent was to ensure telephonic witnesses were not allowed, the rule could have easily included the phrase "in person".

Also, don't forget these are not criminal proceedings and the courts can find a telephonic witness to sufficiently authenticate evidence by a preponderance.

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A lawyer friend of mine said he always files an opposition to a TW, and never is it denied.

 

The difference in superior court is that  : 1.  I won my motion to oppose summary judgement   2. I won my arbitration trial and was awarded my costs.    3. I had a really killer MTOTW  (thank you for your help seadragon!!!) 4.  The witness has been flown in from MCM (In MN).  They stated he was in Ca .  Maybe he moved maybe he didn't I don't care.

 

The judge ruled that it was fairly inexpensive to fly in from CA, and not a substantial burden.  AND they e-mailed me that MIdland will not be bringing in a witness to trial

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@Coffee_before_tea

 

Allowing a telephonic witness to authenticate documents & lay foundation to submit evidence at trial, is generally not allowed if properly objected to.  A telephonic witness can give weight and credibility to "already authenticated, submitted and accepted" evidence, not to introduce evidence.

 

 

I did not say that I agree with it.  I merely pointed out that states allow telephonic testimony.  I don't like it, but I know that sometimes, it's necessary.

 

 

What is the difference between telephonic testimony to lay the foundation for the admission of business records and telephonic testimony for any other reason?  No matter what the reason, the witness is testifying by telephone. 

 

Check out the rules on depositions.   They are allowed to be conducted by telephone. 

 

In Citibank (South Dakota), NA v. Seligman (AZ Court of Appeals, 2011), the defendant objected to Citibank's records as hearsay and cited Midland Funding v. Brent (Ohio).  The court noted that in Brent, the debtor took the deposition of the alleged custodian of records. 

 

In State v. Parker (AZ Supreme Court, 2013), business records were authenticated by a videotaped deposition.  The witness was not present in the court.

 


Rule 43(f). Form and admissibility of evidence

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Arizona Rules of Evidence

 

 

"Oral" testimony simply means to speak.   It doesn't say that the witness must be present in the courtroom.

 

¶ 16 The second potentially applicable rule is Arizona Rule of Civil Procedure 43(f). It provides that "n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Arizona Rules of Evidence." (Emphasis added.) Like Rule 611(a), Rule 43(f) does not directly address in-court as contrasted with telephonic testimony.   In re MH XXXX-XXXXXX, 211 Ariz. 255, 258, ¶ 15, 120 P.3d 210, 214 (App. 2005).

 

 

if properly objected to

 

 

What is a proper objection vs. an objection?  I've seen more than one poster use the term "proper objection", but they never bother to explain the meaning of the term nor how to do it.  

 

 

For example:  If the evidence was authenticated and admitted by an affidavit, then a telephonic witness could testify regarding the already admitted evidence

 

 

If the evidence has already been deemed admissible, then a witness would not be needed to testify to its admissibility.

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@BV80

 

A Telephonic witness at trial is not the same as a videotaped deposition.  Apples/oranges

 

@Harry Seaward

 

The rules of statutory construction typically do not include or assume things not included.  If the legislature meant "shall (mandatory) be taken orally in open court", then the plain language of the statute doesn't allow for "telephone".   The fact that this is listed under "Form and admissibility of evidence" speaks more to their intent.

 

I'm not saying that a telephonic witness isn't allowed at trial, I'm saying a telephonic witness can't lay foundation and authenticate evidence at trial.  (sure the caveat is that a judge can do what he wants).

 

You're also confusing admitting evidence and adjudging a case on a preponderance of evidence.  The "preponderance" of evidence has to be properly admitted before the court, THEN a the court based on the preponderance of admitted evidence can adjudicate the trial.  

 

These are not criminal trials; however, we have a right to due process under the 14th amendment.  

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