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Trial in a week - question about Affidavit entered as evidence


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Hey all!

I am going to trial in a week or so for a JDB suit, and have gone through pre-trial, discovery, etc....but I have a couple of questions. (I'm in AZ, btw)

 

If a Plaintiff affidavit was included in the original summons, is it considered to be entered into evidence?  Meaning, at what point do I make a Motion to Strike the Affidavit?  I checked with the court records, and it doesn't list the Affidavit as being entered into evidence......I want to say I read on here somewhere that if you file a Motion to Strike either too soon, or if the Affidavit isn't entered as evidence, it's frowned upon by the judge if you file a Motion to Strike at the wrong time.  Is that something I need to hurry up and do before the trial?  

 

Also, in their Disclosure Statement, they listed "none" as any witnesses they would call to trial.  Then, later, they filed a motion to request a telephonic witness for the trial, and they listed several different names, stating they weren't sure which one would appear.  I immediately filed an Objection to that Motion, but haven't heard anything else regarding it from the courts since then.  I called the Court Clerk and asked if she could see any activity on my case since I filed my objection, and she said it looked like the court had sent something to the Plaintiff saying they made an error that needed to be fixed, but that was all she saw.  My question is this - if they have stated in their disclosure that there would be no witnesses, can they then turn around and file the telephonic appearance for a witness?  Also, if I haven't received a response from the court regarding whether or not that telephonic appearance would be allowed, are we past any time limit for that?

 

I have searched through alot of threads, but can't find anything that really answers this for me.....I appreciate anything you guys have that could help me!

 

 

 

 

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Hello @BV80!  No, no MSJ was filed.....we went to our pre-trial conference and since neither the Plaintiff or I would budge on our position, the Judge set a court date.  The last items filed were the Plaintiff's Motion for Witness Telephonic Appearance and my Objection to that motion immediately afterwards.  That was done in Sept, and I haven't heard anything since - which is why I called the Court Clerk to see if any activity was seen on the docket.

 

I haven't filed any objection to the Affidavit yet, either, due to the questions I had above.

 

Trial date is next Thurs.

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@BV80, THANK YOU!  

 

I'll search for some motions in limine here on the forums and at least get started on that.......in case it's the proper route.

 

And I guess that's the part I'm a little confused about.....if the Affidavit was included in the original summons but that was all - is it considered to be entered into evidence?  Or do they have to actually file it as evidence - because I know they didn't do that.

 

Again, I appreciate the help very much!

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I've done some fast research, and I'm finishing up the body of my motion in lemine, but can anyone share a link or an example of how to title it?  

 

I'm also going to file motions in lemine to strike their short form purchase agreement, which has no account numbers and which references an Exhibit A - which was printed out 3 years after the PA was signed.  

 

I'm just stuck on how to title the motion properly.

 

Thanks again!

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As I read this thread I take it to mean that there was no disclosure (or supplemental disclosure ) of any witnesses other than "none". I would look for case law regarding failure to disclose witnesses under Arizona Rule 26.1. It is possible that justice court (I am assuming no mention of court connected arbitration implying this is not in superior court) may tweak/change 26.1 IDK. It is important to know the specific court rules that apply to ones case.

 

As I recall, 26.1 disclosure (in AZ Superior Court) requires disclosing more than just the name of a witness. Think it is supposed to include what the witness is expected to testify about and possibly other requirements such as their address. I highly doubt much witness details were provided in their motion to appear telephonically.

 

If the case law supports enforcing Rule 26.1, to the point of excluding testimony from a party not properly disclosed as a witness, I would make that point at trial through an objection and if the judge overruled the my objection/case law to allow testimony from a non-disclosed witness I would want to be sure I have preserved the trial court record (stenographer, recording, etc.) so I would be able to appeal the judges error.

 

If an affidavit was allowed in as evidence with the affiant as a witness, I would probably use the affidavit as a guide to impeach the witness.

 

If the witness is from the JDB and the affidavit is made by an OC "custodian of records" I would think that would be something I would highlight at trial. If the witness was a representative of the OC I would be a bit surprised that they would even show telephonically, but I lack JDB experience in court.

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@Credator, thank you for the AZ Rule 26.1  Yes, this is Justice Court, and I will check it out....but I believe you are right, that they need to give more information other than just some names that MAY show up.  I am unable to prepare any type of questions for a witness if I don't even know their role, who they are, etc.  Seems to me that is objectionable.

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When you filled your objection to their telephonic witness, what grounds did you object on? Something I learned about telephonic witnesses is that the court has no jurisdiction to enforce a contempt order over them if they are testifying from a different state. And if they are in Arizona, they certainly can't be THAT far away that they can't make a couple hours drive to come testify.

As far as evidence goes, anything they plan to use will have to be properly introduced at trial at which time you will have an opportunity to formally object to it on whatever grounds.

I have more info I can give you on objecting to telephonic witnesses but I can't get to it easily at the moment. I'll post again later this evening.

Did you have a pre-trial conference in this case? If so, what was discussed? What is the ballpark amount of the debt and who is the Plaintiff?

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Hello @Harry Seaward!  

 

I objected on the following grounds:  No way to verify a witness's identity against government issued ident.; Jurisdiction of the Court cannot be extended by the telephone, internet, etc....does not ensure truthful testimony as there is no manner in which the court can charge an out of state person with perjury (Plaintiff's reasoning was witness was out of state); no way to prevent coaching, scripting, can't read body language, etc.   

 

I did have a pre-trail conference.  The attorney and I talked with the judge, and with each other.  I told both of them I didn't recall this debt, didn't think it was mine, and haven't  seen anything from the Plaintiff that would help me in remembering if I had actually incurred such a debt.  The Plaintiff offered to settle, and said I would rather go to trial.    Ball Park amount is $3k.  Plaintiff's name starts with an A and is a JDB here in A Z.  I know I'm being a little vague, but I also have heard that Plaintiff attorneys sometimes do searches on these forums and I don't want to give them any words they can search for easily. 

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First thing you want to do is state to the court the day of your trial, the following, remember it so you can recite it. "I am here today in propria persona, on a special appearance as opposed to a general appearance, for jurisdictional challenges. The reason you do this is to let the plaintiff and the court know that you are challenging jurisdiction and standing to sue, this will stop the trial until the plaintiff proves he has standing to sue and that jurisdiction is correct. Do not let the judge tell you jurisdiction is correct, jurisdiction is correct when the plaintiff pleads enough facts so as to invoke the authority of the court. Plaintiff will have to prove standing by proving they own the debt, most of the time jdb's do not have enough to prove ownership of the debt. If they can not prove ownership they have no standing to bring a case before the court. Do not let them try to enter any of their evidence, other than what it takes to prove they own the debt, Until jurisdiction is established the court cannot even review any of the evidence.

If they do have anything that may prove they own the debt you need to make them prove that who ever sold the debt to them conveyed the rights to collect the debt and to file a suit. This is done in a sales contract, if they cannot produce the contract they still have no standing to bring a suit.

 

Do not at any time tell the court you are pro se, the courts take pro se to mean not only are you representing yourself but that you are also ready to proceed and this gives the court jurisdiction in their minds. Propria persona means on ones own behalf, Make them prove standing before you allow the trial to proceed. You can object if you think they have not established standing, and make sure you state you are objecting on the record as an appealable issue. Object to everything the attorney says or offers as evidence. In the courts eyes if you do not object then you admit. Do not let the judge intimidate you, you have the right to object and challenge the plaintiff. If the attorney attempts to testify as to any of the facts you object, Statements of attorneys in brief or in argument are not facts before the court. If their is no witness to attest to any of the evidence being accurate and authentic it is hearsay and possibly fraudulent. A statement from the attorney as to the accurateness of the evidence is not a fact before the court.

 

 Boles v. State, 717 So.2d 877 (1998)
Jurisdiction over a defendant requires both personal and subject matter jurisdiction.
 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)

"more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do

 

Whitmore v Arkansas, 495 U.S. 149 (1990)
Before a Court can consider the merits of a case, the person seeking to invoke the courts jurisdiction must establish the requisite of standing to sue. To do so he muse prove that their is a case or controversy by clearly demonstrating that he has suffered an injury in fact that is concrete in both qualitative and temporal sense. He must show that the injury can be traced to the challenged action and is likely to be redressed by a favorable decision.

 

Ashcroft v. Iqbal (2009)
the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, only a complaint that states a plausible claim for relief survives a motion to dismiss. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying plead­ings that, because they are no  more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

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@BTO429

 

A litigant proceeding in propria persona, or pro se, is one who represents himself in a court proceeding without the assistance of a lawyer. Black's Law Dictionary, 1256, 1258 (8th ed. 2004).

Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373

"Pro se," "in propria persona," "pro persona" and "pro. per." can be used interchangeably. "In propria persona" means "in one's own proper person"; "pro se" means, "[f]or himself; on his own behalf; in person." (Black's Law Dict. (3d ed. 1933) 937, 1426.)

Originally, "In propria persona," was used to describe an old English pleading by which the party appeared in person to challenge jurisdiction. (De Witt, On One's Own (Oct. 2010) 47 Ariz. Attorney 8; Black's Law Dict. (5th ed. 1979) p. 712.


United States v. Schiefen, 926 F. Supp. 877, 879 n. 3 (D.S.D. 1995)

In propria persona is "a procedure in which, under former rules, one challenging the jurisdiction of a court represent himself because an attorney was an officer of the court and was presumed to have obtained leave of court in order to plead which admitted jurisdiction." (citing Black's Law Dictionary, 792 (6th ed. 1990).


ING BANK, FSB v. Mikels, Dist. Court, ED California 2012

 "In propria persona" in Latin means "in one's own person" and is synonymous with "pro se" which means "[f]or oneself; on one's own behalf; without a lawyer." BLACK'S LAW DICTIONARY (9th ed. 2009).


Bank of Am. Nat'l a$$'n v. Derisme, 743 F.Supp.2d 93 (D.Conn.2010).

Fabiola Is Ra El Bey insists on the use of the phrase in propria persona—Latin for "in one's own person"—rather than pro se— meaning to represent oneself. However, the two phrases are in fact interchangeable. See Black's Law Dictionary 863, 1341 (9th ed. 2009)

 

 

PITTER v. O'BRIEN, Dist. Court, ED New York 2012

 Plaintiff states that she is filing in propria persona, as opposed to "pro se." However, the two phrases are in fact interchangeable. See Black's Law Dictionary 863, 1341 (9th ed. 2009).

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Thanks so much, you guys.  I have written up my Motion in Limine - can you guys give me your thoughts on this before I file it today?  Do I need to cite case law, or keep it to the point?  I have eliminated the heading and names, etc....for purposes of posting on here.

 

Their Purchase Agreement was vague and has no account numbers/names....so they attached a printout of some alleged accounts (lines with XX's except for my name, alleged acct number) that they referenced as Schedule A within the body of their Purchase Agreement.  The date on Shedule A is from 3 months ago, and the Purchase Agreement was signed/created in 2010, which is why I'm requesting that the PA be excluded as well.  With a vague purchase agreement, they can print out whatever they like, whenever it suits them and say that is the account the PA was referencing.....
 

 

 

Comes now, Defendant XXXXXXXXX, and respectfully requests that the following Plaintiff Documents be excluded from case proceedings for reasons stated:

 

PLAINTIFF’S AFFIDAVIT OF ACCOUNT (DEFENDANT’S EXHIBIT A)

 

1. Plaintiff has attached with their original summons an Affidavit in Support of Plaintiff’s Claim (hereinafter referred to as "Affidavit").

 

2. Said Affidavit pertains to acts and events that allegedly occurred between Defendant and a third party, WXXX FXXXX

 

3. At no time was the creator of the Affidavit, or any of the Plaintiff’s employees present to witness any alleged acts or creation of the records of alleged transactions occurring between Defendant and WXXX FXXX.

 

4. As such said Affidavit falls under the hearsay rule and is inadmissible as evidence.

 

5. Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events, and;

 

6. The information contained in the Affidavit is merely an accumulation of hearsay, and;

 

7. Upon information and belief, the creator of the document is not currently and has never been employed with WXXX FXXXX, and therefore cannot have personal knowledge of how WXXX FXXX records were prepared and maintained, and;

 

18. Is unqualified to testify as to the truth of the information contained in the Affidavit.

 

 

 

PLAINTIFF’S SHORT FORM PURCHASE AGREEMENT (DEFENDANT’S EXHIBIT B)

 

1. Plaintiff has attached with their Initial Disclosure Statement a short form purchase agreement (hereinafter referred to as “Purchase Agreement”).

 

2. Said Purchase Agreement pertains to a transaction that allegedly occurred between AXXXX AXXXXX, LLC and WXXX FXXX Bank, NA.

 

3. Purchase Agreement fails to identify any one individual account, and;

 

4. Purchase Agreement, on it’s own, fails to prove any connection or standing relating to Defendant’s alleged account, and;

 

5. Purchase Agreement, signed and dated XX XX 2010, makes reference to a list of Receivables” as “Schedule A” (Defendant’s exhibit C), and;

 

6. Purchase Agreement’s referenced Schedule A was printed / created on 7-16-2013, and;

 

7. Upon further inspection, it is noted that Schedule A was printed on a date that indicates it is not a unified copy/portion of the original Purchase Agreement, to which there should exist an attachment with the same date as the Purchase Agreement.

 

8.  The disparity between the dates of the Purchase Agreement, which is vague on it’s own merit, and the referenced Schedule A, bring into question the validity and connection of said documents.  It could be easily assumed that the Plaintiff originated his/her own Schedule A solely to sway the court’s findings.

 

WHEREFORE, the Defendant prays this Honorable Court that Plaintiff’s AFFIDAVIT and SHORT FORM PURCHASE AGREEMENT be EXCLUDED from evidence in the above action.

 

I state under penalty of perjury that the foregoing is true and correct.

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First thing you want to do is state to the court the day of your trial, the following, remember it so you can recite it. "I am here today in propria persona, on a special appearance as opposed to a general appearance, for jurisdictional challenges. The reason you do this is to let the plaintiff and the court know that you are challenging jurisdiction and standing to sue, this will stop the trial until the plaintiff proves he has standing to sue and that jurisdiction is correct.

The trial will be going down in a Maricopa Justice Court and will be presided over by someone that may not have so much as a college degree, let alone any sort of formal legal education.  I think it's a bit presumptuous to think this person will stay proceedings until the Plaintiff establishes proper jurisdiction and standing.  It's a good idea to do this for the record on appeal, but the trial likely won't will grind to a halt.  These issues are raised time and again in the Justice Courts via dispositive motions and are completely ignored.  If the JPs were going to entertain standing challenges, pre-trial is their golden opportunity to do it and they don't.

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@Victory1  Your objection to their telephonic witness was spot on.  You're covered there and the judge will probably rule on this at trial, since you're down to the wire and haven't heard anything yet.

 

As to your MiL, I think you need to beef it up.  Here's a link to the one I filed.

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona/?p=1269574

 

By the way, mine was denied with no explanation (as is common in our Justice Courts here) but it gives you the idea.

 

Also, the Justice Court Rules require MiLs to be filed no later than 30 days before trial, but a lot of people have reported filing them later and having no problems, so it's worth a shot.  Worst case, you bring it with you to trial and make your objections in person.

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@Harry Seaward - thank you so much!!  I changed my MIL a bit, and will check out your link as well - I'm sure it will help me out!  

 

I had a great judge assigned to this case here originally - one that I won a previous MidLand case with.  The Plaintiff in this case asked for a change of judge, so I don't know how the temp judge feels about these types of cases, but he seemed fair at the pre-trial conference.

 

And yes, I'm going to file my MIL today, and will also bring them with......I have heard that in Justice Court they are much more lenient with that particular timeframe.

 

I apprecaite the input you all have given me so far....this is a great forum, and it's great to see so many people helping others!

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@Victory1

 

Yes, check out Harry's motion.  You need case law to support your claims. 

 

5. Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events, and;

 

An affidavit is not subject to the hearsay rule because it's not a business record.  It's used to authenticate business records and to support a motion for summary judgment.  

 

Read your rules of evidence...803(6).   An affidavit to authenticate records must include the language in that rule in order to attempt to lay the proper foundation for business records to be admitted into evidence.

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@BV80 - I have reworded a bit and now have added:

 

7. Upon information and belief, the creator of the document is not currently and has never been employed with WXXX FXXXX, and therefore cannot have personal knowledge of how WXXX FXXXX records were prepared and maintained (16 A.R.S. Rules of Civil Procedure, Rule 56(e), and;

 

They never claimed to have personal knowledge of the records or account, just stating they are familiar with the manner in which the Plaintiff creates/maintains their records.  I can't see anything in their affiavit that can prove standing, since the affiant never worked for the OC, nor do they state they have knowledge of how the OC kept their records.

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@Victory1

 

Not all courts require that the affiant must have worked for the OC or have personal knowledge of how the OC created the records. 

 

Personal knowledge is required for summary judgment.  It's not necessarily required for 803(6).

 

You need to see how your courts have ruled.

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