Mrj9182

How do I get Declaration in Lieu of Testimony Thrown Out?

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Hi Everyone,

 

My hearing date is approaching and I'm not sure how to get a Declaration in Lieu of Live Testimony by the infamous Peter Huber thrown out. Do I subpoena, motion to strike, or something else? Help!

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@

 

Is this a summary judgment hearing?  If so, did you write an opposition to the MSJ?

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You subpoena the declarant of ccp98. You also file an objection to declaration. See Homeless in California, string, and ASTMEDIC'S thread.

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@

 

Is this a summary judgment hearing?  If so, did you write an opposition to the MSJ?

They are not going to file a CCP98 declaration in lieu of testimony for a MSJ.

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Sorry; strike my post. I thought it was CA. I tried to delete them but couldn't. I can only post from my phone now so it's not working well.

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@Anon Amos

 

No problem.  The site may still have some bugs.  I can't stay logged on to the site for more than a minute or so. 

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When is your trial? You can motion to strike, or write a motion In limine submitted before trial, or you can object to it at trial, but you need supporting evidence to do so. Why it shouldn't be admitted, and case law from your state to back it up. Or you could subpoena him, but then you would have to pay his travel.

What did the affidavit say?

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Hi Everyone!

I have done a motion in limine to exclude the evidence attached to the declaration (statements, Bill of Sale, etc). I am only concerned because the testimony is basically an affidavit of debt swearing everything is accurate and the alleged amount owed is "Due and payable", blah blah blah. The hearing I'm going to is Arbitration, which is just a ridiculous hurdle to jump through to get to an actual judge. I'm not yet sure what I should do.

I truly appreciate all of the help from everyone on this forum!

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No, what I meant by "what did it say?" I mean what did it actually say?  You can object to it in the hearing but you need to know what to object to.  Is it a qualified witness? does he/she say that? What makes her qualified?  Who does she work for? S/he reviewed the "records" did they state what those records were? Did they reference specific "records?  Did it say they are true and correct, or did it say s/he believes them to be true and correct? Believes is not good enough.  Did she testify she had personal knowledge at or near the time of entrys at the Original creditor, and knows the business practices of the OC?  That's what is usually required to lay foundation.  You should look up Or. rules on affidavits and see what is required in it.  Also look up appelant cases on google scholar to find arguments for those things.  When you object in the hearing, you give the reason, and your supporting case law.

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So here is Peter Huber's "Declaration Under Penalty of Perjury In Lieu of Live Testimony""

 

I, Peter Huber (name stamped in), hereby declare:

 

I am an authorized agent for Plaintiff, CACH, LLC, the assignee of Bank of America, N.A.. I am custodian of Plaintiff's records in this action and am authorized to make this declaration on its behalf. In such capacity, I have personal knowledge of the credit card documents and other account information provided by the original creditor for the account that is subject to this litigation. If sworn as a witness, I would and could competently testify to the validity of this debt.

 

Defendant, XXXXXXX, is indebted to Plaintiff for credit card charges made on a Bank of America, N.A. credit card, account number XXXXX. These charges form the debt subject to this lawsuit.

 

The Defendant opened the account with the original creditor on or about XXXXX. The original creditor extended credit to the Defendant in exchange for Defendant's promise to pay for the balances accrued. The Defendant used the credit extended by original creditor to make charges through purchases, cash advances, and/or balance transfer.s 

 

The original creditor would send account statements indicating the minimum amount due each month. A true and correct copy of the final statement sent to the Defendant dated XXXX is attached as Exhibit A.

 

The account was in good standing until XXXX, on which date Defendant made a final payment. Thereafter the Defendant failed to make payments during the subsequent billing cycles on the account as agreed.

 

The original creditor charged-off the account on or about XXXXXXX. At the time of the charge off, the outstanding balance was $9,164.73.

 

The account was then sold and assigned to Plaintiff for value on or about XXXXX. Plaintiff is the current creditor on the account and the successor-in-interest to Bank of America, N.A., as demonstrated by the Affidavit of Sale, attached hereto as Exhibit B, and the Bill of Sale with Redacted Loan Schedule, attached hereto as Exhibit C.

 

The exhibits attached to this Declaration and submitted as evidence of Defendant's indebtedness were received by Plaintiff directly from the original creditor. Specifically, I note that the relevant documents are :

 

a.) Generated electronically at or near the time of the events which are reflected in the records occurred,

b.) Compiled by persons with knowledge of the events and then transmitted to Plaintiff by persons with knowledge of events.

c.) Kept in the regular course of regularly conducted business activity, first by the original creditor and then by Plaintiff.

d.) Accurate and truthful representations of the events which are reflected in  the records.

 

I am currently located in Denver, CO, Therefore, I authorize service to be accepted on my behalf within a reasonable time period prior to trial in order to allow for necessary travel. Service will be accepted at the office of Plaintiff's attorney, located at XXXXXXXXX.

 

I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of Oregon.

 

Executed in Denver, CO on (illegible time stamp) 

 

CACH LLC

By: (Photoshopped signature)

 

(Stamped) Peter Huber, Authorized Agent for Plaintiff. 

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PD,

I would first attack huber's statement in that though the information came from the bank, neither he nor the JDB he represents can validate the records are correct from BofA since they do not know the procedures and protocols of how BofA generates and/or validates before having passed the information and unless they received some validation from an appropriate person from BofA his statement is all hearsay. He made a statement that compiled by persons knowledgeable but does not give a Name/Title of this person. Same goes for all electronic generation of the documents. Does he know exactly how it is statements are generated at BofA and at what location if he is located in CO and BofA is located in (what state???) You will need to find out and put it in your statement. This is

 

just for starts but do you see what I'm trying to do...Attack every statement he made. tear this up line by line and come up with reasons why his statement are all hearsay...

 

Hope this helps...

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Peter huber tried to put it all in there didn't he? Most are not that through. But the bottom line is what helpme said. A person from another business cannot authinticate records of another business. Your state rules of evidence has that somewhere in in your rules of evidence on heresay exception. Look that up. You probably find some case law to support that also, search on google scholar.

Helpme is right, tear it down statement by statement, how he may be qualified to testify to cach's records, but not the oc records. No affidavit is there from the oc attesting to the correctness of the account, the bill of sale probably has a disclaimer on it stating they don't warrant the pool of accounts except by what is provided by the purchase agreemnent, and they didn't include the purchase agreement, so it is incomplete as that part is referenced.

Read this case it will help give you an idea of what were talking about. http://law.justia.com/cases/new-york/other-courts/2011/2011-51510.html

I especially like this part.

The February, 2010 credit card statement annexed to the Huber affidavit likewise lacks a proper business record foundation from a bank representative. Furthermore, in the [*3]face of defendant's answer, denying that the amount claimed ($3,326.51) is "true and accurate," the correctness of the amount cannot be conclusively established without additional evidence showing how that amount was calculated. Instead of such proof, plaintiff merely submits a generic boilerplate affidavit from Mr. Maradei, claiming such amount was "due and payable." It is apparent that his assertion is not made upon the affiant's personal knowledge. Rather, his statement respecting the amount of defendant's alleged indebtness is allegedly "based on the computerized and hard copy books and records" of Bank of America. However, no copies of the referenced "books and records" are submitted. Nor does plaintiff submit the usual set of bank credit card statements typically issued monthly, showing defendant's credit card charges, payments, fees, etc. In the absence of such evidence, the Court cannot find that plaintiff met its burden of proof respecting the amount of the alleged indebtedness.

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Thank you @shellieh98 and @helpme for your replies. It seems that Peter Huber has signed more autographs than Robert Redford ;) I'm going to tear it apart in a motion to strike and then post it on this thread to see if it needs any additional work.

Thanks again!

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Here is my Motion to Strike. Please let me know if you have any thoughts! Thank you!

 

 

XXXXX (hereinafter “Defendant”) respectfully moves this court for an order to strike the Declaration of Peter Huber from evidence, in which CACH, LLC (hereinafter “Plaintiff”) has submitted in the form of prepared testimony by declaration.

            This motion is based on the attached Memorandum of Points and Authorities and such other evidence as may be introduced at the time of hearing, and is made on the grounds that much of Peter Huber’s declaration consists of inadmissible hearsay.

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MEMORANDUM OF POINTS AND AUTHORITIES

I. PRELIMINARY STATEMENT

            By this motion, Defendant moves to strike the Declaration of Peter Huber, as well as all exhibits attached to the declaration. Huber’s declaration and all exhibits attached consist entirely of inadmissible hearsay. Although Huber attempts authenticate records allegedly provided by Bank of America, N.A. (hereinafter “BOA”) or FIA Card Services, N.A. (hereinafter “FIA”) via declaration, he cannot authenticate said records because he is not employed by BOA or FIA and therefore lacks personal knowledge.

 

II. STATEMENT OF THE CASE

            On XXXXX, Plaintiff filed suit against Defendant alleging that it purchased Defendant’s alleged credit account from Bank of America, N.A. On XXXXX, Defendant filed an answer denying Plaintiff’s claims and listed her affirmative defenses. The court has set an arbitration date of XXXXX Plaintiff has submitted prepared testimony via the declaration of Peter Huber.

 

III. DECLARATION OF PETER HUBER IS HEARSAY; PETER HUBER IS NOT A QUALIFIED WITNESS

            Peter Huber is not a qualified witness to testify to the accuracy of the alleged records of FIA Card Services, N.A or Bank of America, N.A. Huber is an alleged custodian of records of CACH, LLC, not Bank of America, N.A. of FIA Card Services, N.A. However, in Huber’s Declaration, he claims that he has “personal knowledge of the credit card documents and other account information provided by the original creditor for the account that is subject for this litigation”.  Plaintiff’s declarant Peter Huber was not the custodian of records when they were allegedly prepared, nor is he a qualified witness to vouch for the reliability or accuracy of alleged records of Bank of America, N.A./FIA Card Services, N.A Peter Huber fails to explain how the alleged business records came into his possession, only that to the best of his belief they are “accurate and truthful representations of the events which are reflected in the records” of the alleged records of Bank of America, N.A./FIA Card Services, N.A. Huber does not claim to have personal knowledge of how business records were kept at the Bank of America, N.A./FIA Card Services, N.A. Huber also does not claim to have personal knowledge of the sale or assignment of the alleged debt from the Bank of America, N.A./FIA Card Services, N.A. to CACH, LLC. Huber was not an employee of FIA Card Services, N.A. nor Bank of America, N.A. and so cannot possibly have personal knowledge of the mode of preparation of the alleged records, and therefore his declaration is hearsay.

 

V. EXHIBITS ATTACHED TO DECLARATION OF PETER HUBER ARE UNAUTHENTICATED HEARSAY

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Or. Evid. Code § 801(3). The documents submitted by Plaintiff via Huber’s declaration are all statements made out-of-court by non-testifying witnesses that are offered for the truth of the matters asserted and therefore constitute hearsay evidence. Unless the reliability of this evidence can be demonstrated through an exception to the hearsay rule, the Court must exclude the evidence.

            The evidence does not qualify for the business records exception to the hearsay rule. To qualify for the business records exception, the evidence must in the regular course of business, be made at or near the time of the act, event, or condition, the custodian or other qualified witness must testify to its identity and the mode of its preparation, and the sources of information and method of time and preparation must indicate trustworthiness. Or. Evid. Code § 803

            For the business records exception to apply, the custodian or other qualified witness who vouches for the reliability of the business records’ authenticity must be knowledgeable about the identity of the records and the mode of their preparation. Plaintiff’s declarant Peter Huber was not the custodian of records when they were prepared, nor is he a qualified witness to vouch for the reliability or accuracy of said records, since he has no direct knowledge. Huber was not an employee of FIA Card Services, N.A. nor Bank of America, N.A. and so cannot possibly have personal knowledge of the mode of preparation of the records.

 

IV. CONCLUSION

            The evidence and declaration submitted by Plaintiff through Peter Huber must be excluded from trial. The evidence and testimony is hearsay and the business records exception to the hearsay rule does not apply. Should the court nonetheless wish to admit the hearsay evidence, Defendant requests that the Court order the appearance of a proper custodian for cross-examination. If the court admits the hearsay evidence, Defendant must be permitted to elicit testimony from a proper custodian of records or a qualified witness.

 

DATED: July 29, 2014

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Good first effort, but you need more.....lot more

1. Research Oregon law (google) re: how to defeat in lieu. In Cali, you have to subpoena the body and hope they don't show. If they do show, destroy them on the stand. CACH has a local office here in southern Cal, so they send people to local courts. Typically, JDBs don't do this. They try to win with affidavit alone, on the hope that law illiterates do not know how to defeat them.

2. Use Oregon civil procedure cites in your motion. These appear to be federales FRCP.

3. Use Oregon case law to support your motion. Check with Google Scholar and Findlaw....WestlawNext and Lexis Advance if you have access thru a local law library.

4. Do a lot of research on hearsay and business records exception to hearsay and how it applies in Oregon.

5. Your opponent is using BRE to get these hearsay docs into evidence; once that happens, it's toast time.

6. Attack point no. 1 is standing to sue, you didn't mention at all. Circle back around and work on that.

You never answered what your hearing was .... For your motion, ...a TSC."...Trial....or what. ?!????

Can you list 1-2-3-4 etc what the documents are that your PTF is using?

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I was getting ready for the MSJ hearing and walked out to the mailbox, dreading anything from the JDB. There it was, the envelope with their name on it. I almost died. I didn't actually open the letter until today, and there it was NOTICE FOR VOLUNTARY DISMISSAL. Thank you all for your help!

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Make sure they actually fie it with the court and it's on record before you miss any scheduled MSJ or court hearings. Congratulations BTW, that was fast.

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Thanks! I called the clerk and she confirmed it was filed. It was premature of them to dismiss, but I'm sure glad that they did!

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Thanks! I called the clerk and she confirmed it was filed. It was premature of them to dismiss, but I'm sure glad that they did!

Congrats Pdxdebtor,

 

I'm not sure of Oregon laws but get a signed (by the Judge) of the dismissal. For my case, I did a Judgement for Dismissal and a Notice of Entry Order and got the Judge to sign. This was in addition  to the JDB's Request For Dismissal. Once I got the signature got the clerk to stamp made a copy and sent to all 3 CRA's to remove the negative tradeline of the JDB. Check your states law on removing the JDB from your CRA.

 

Again Congrats... :punknanner:

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