hf2272

Response to Defendants plea to jurisdiction + Evidence

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I just received the plaintiff's response to my plea to the jurisdiction, and special exception I sent off courtesy of the help from Texasrocker.

 

Each reply was in a separate envelope.

 

My court date for this is October 29th so any helpful info will greatly be appreciated.

 

I am just now trying to figure out what the next steps would be or how to properly object to (and get this stuff thrown out)  this info they obviously are going to bring up as evidence.

 

The only thing they have my info on is the affidavit from the expert "custodian of records" for Portfolio Recovery, Larry Whitaker.

 

** Objection hearsay, chain of custody, as Mr. Whitaker is not an expert to the financial records of Citibank...**

 

But the bill of sale from Patricia Hall is very generic. Then behind that is a blank "Exhibit 1 Asset Schedule" it looks like they blanked everything out.

 

Then the printout of all my info from an excel spreadsheet and down @ the bottom says " Data provided by Portfolio Recovery Associates, LLC from electronic records provided by Citibank, NA pursuant to the sale of accounts from Citibank to PRA"

 

In the response, the mention Texas DOT v. Arzate, 159 s.w.3d 188,190( Rex. el paso 2004, no pet)

I think it is supposed to be Tex not rex.

 

and then Bland ISD v. Blue, 34 s.w.3d 547,554 (TEX. 2000)

 

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Since they separated the Plea to Jurisdiction and the special exceptions, I will do the same.

 

And again any help will be appreciated.

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I just got their response to my plea yesterday, regular mail, not certified or RRR. this is what I sent them originally:

 

 

 

PLEA TO THE JURISDICTION 

 

Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Defendant's account has been assigned to Plaintiff, and Plaintiff is the current holder of Defendant's account and the proper party to bring this lawsuit." See Plaintiff's Original Petition under "Facts" paragraph 6. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.
A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceramic Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.). Plaintiff has not done either.
If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids and dodges the issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

 

 Legal Standards for a Plea to the Jurisdiction

The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.), Axtell v. University of Texas, 69 S.W.3d 261, 263 (Tex.App. – Austin 2002, no pet.).
Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at anytime and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. Nootsie Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661-662 (Tex. 1996), Continental Coffee Products v. Cazarez, 937 S.W.2d 444 n.2 (Tex, 1996). A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).
The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

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@hf2272

 

A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Ceramic Tile Intern., Inc, v. Balusek, 137 S.W3d 722, 724 (Tex. App, – San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App, – Houston [14th district] 2002, no pet.).

 

 

That particular cite had nothing to do with jurisdiction.  It was in response to a motion for summary judgment.  That's why in their response to you that they said that such a plea is not to be confused with a motion for summary judgment.

 

In a complaint, they don't have to prove their case.  All they have to do is make certain allegations and attach whatever the rules require to be attached.  I don't blame you for trying, though.  You never know when a JDB might give up at the very beginning.

 

Have they filed a motion for summary judgment, or are you still in the discovery phase?

 

Read your rules of evidence including the business record exception.  It's usually Rule 803(6). 

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The affidavit from their own employee and the Bill of Sale are garbage and they know it.  They just don't expect you to know it too.

 

They have not produced an affidavit from a representative of Citibank with testimony stating that your alleged account was even included in the bulk sale and that the information accompanying it is accurate.   It is impossible for the affiant who works for the JDB as a robo-signer to have first hand knowledge of the alleged account before it was transferred to the JDB  unless he was employed by the original creditor so ask them if he was previously employed by Citibank and then take off from there.   

 

You need to object to the affidavit as it does not state anything about how the affiant knows that the information regarding the alleged account is accurate.  Ask them to identify any employee(s) of Citibank who they conferred with regarding the accuracy of account information and what measures they took to be certain that they could rely on said information.  He has said, "According to my review of the business records of the Original Creditor..." but with no statement explaining how he may know the records are accurate.

 

The Bill of Sale is null and void without the Purchase and Sale Agreement that it refers to in its own wording.   At the hearing you need to ask them about warranties concerning the accuracy of the information of the accounts in the bulk purchase.  Ask them if the seller of the accounts specifically disclaimed any warranty, guarantee or representation concerning the accounts referred to in the Bill of Sale. Ask them to show you and the court a copy of the Purchase and Sale Agreement so you can see for yourself what the warranty states.    

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That particular cite had nothing to do with jurisdiction.  It was in response to a motion for summary judgment.  That's why in their response to you that they said that such a plea is not to be confused with a motion for summary judgment.

 

In a complaint, they don't have to prove their case.  All they have to do is make certain allegations and attach whatever the rules require to be attached.  I don't blame you for trying, though.  You never know when a JDB might give up at the very beginning.

Exactly.  It does not matter that it originated from a motion for summary judgment.  There are all sorts of case law from all sorts of different subjects, some even having nothing to do with collection cases, that can be applied to defeat a JDB initiated lawsuit.  The vast majority of their lawsuits are won by default judgments so they are sometimes very lazy and sloppy about their so-called "evidence."  Many lawsuits are filed with absolutely nothing to prove ownership on the presumption that they will win anyway because the defendant will fail to answer.  

 

Their impression of you as a pro se right out of the gate should tell them that just because they are lawyers and you are not does not mean they are going to keep the upper hand for very long.  Force them to be aware that they are going to have to put in a lot of extra time if they want to pursue what they started with you.  That translates to hitting them in the pocketbook which is what makes them cringe more than anything else.     

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I am currently in the discovery phase. But more worried about how court will be. I read on another Texas post about since I filed the Plea I will have to talk first. Is this true?

 

should I add the RESPONSE TO DEFENDANTS SPECIAL EXCEPTION here or start a new thread?

 

Am I supposed to reply to their reply? or just wait until the hearing? I ordered the O'connor book, just waiting for it.

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You should keep your entire case history, start to finish,  in one thread.  

 

You do not need to reply to them.  Just be ready to object to everything in their response.  Keep your focus on the fact that their flimsy 'evidence" cannot prove that they own the alleged debt and stress that you need to see the complete Purchase and Sale Agreement that the Bill of Sale refers to. 

 

If they contact you before the hearing with a settlement offer tell them you are not interested or better yet just ignore it.  That is a good sign that they know that they are already in too deep.     

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Here is the plaintiff's  response SPECIAL EXCEPTION -Account Stated.

 

Exhibit A is the original citation.

 

 

 I see that in the Dulong v. Citibank, it is account stated because it is the original creditor, and the agreement is there and she kept using the card, they had monthly statements, etc.

 

1. There are no transactions between the plaintiff and Defendant.

2. there is no agreement, expressed or implied,  between plaintiff and defendant.

3. since no contact had been made before this lawsuit was filed, there has never been a promise, expressed or inplied, between plaintiff and defendant.

 

I am still trying to find the other cases as they probably cited them wrong on purpose. I have noticed throughout both responses, there are a few typographical errors. Anyway, that's not the point.

 

I get a settlement notice from the lawyers each month.  

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In typical JDB fashion they are citing the Dulong v. Citibank precedent while failing to plead the elements of that case.

 

Here is a comprehensive excerpt regarding JDB's pleading Account Stated from a seminar on defending credit card lawsuits by Jessica Lesser of Dallas law firm Lesser & Jordan, PLCC.  There is a good chance that if the defendants would have raised objections to the pleading then the outcome of these appeals would have been totally different. 

Always object and challenge anything and everything that the JDB's attorney presents both on paper and in the courtroom.

 


The Dallas court of appeals applied the account stated theory in Dulong v. Citibank (S.D.), N.A, 261 S.W.3d 890 (Tex. App. Dallas 2008) despite the fact that the debtor’s issue on appeal concerned whether the creditor had standing to sue on the account. As the court states in a footnote: “At one point in its argument, Dulong characterized the issue as one of “standing.”  However, we construe the pleadings and brief as arguing Citibank did not establish the elements of the cause of action for account stated.”

 

 In another footnote, the court states that “although Dulong asserts that an account stated is not capable of assignment or sale, she does not challenge the viability of the account stated cause of action. The argument concerning assignment has not been briefed, and is therefore waived.”

In the wake of Dulong, the Houston, Waco and El Paso courts of appeals applied the account stated cause of action to credit card lawsuits without significant discussion of the reasoning supporting their holdings or the scope of the account stated cause of action. Butler v.Hudson & Keyse, L.L.C., 2009 Tex. App.LEXIS 1108 (Tex. App.—Houston [14thDist.]Feb. 19, 2009), McFarland v. Citibank, N.A.,293 S.W.3d 759 (Tex. App.—Waco 2009), Eaves v. Unifund CCR Partners, 301 S.W.3d402 (Tex. App.—El Paso 2009), Budzyn v.Citibank, N.A., 2010 Tex. App. LEXIS 2339(Tex. App.—Houston [1stDist.] Mar. 25,2010).  These cases primarily cite to Dulong as authority that the account stated cause of action is a viable, even though Dulong clearly stated that the viability of the cause of action was not at issue in that case.  The first case to decide the issue, Butler v. Hudson & Keyse, L.L.C., gives only one sentence for its rationale, citing the cases holding that a credit card claim may not be brought as a suit on a sworn account and opining that account stated is by contrast a proper cause of action “because no title to personal property or services pass from the bank to the credit card holder.” Butler, 2009 Tex. App. Lexis at 5. The logic of the decision is difficult to understand, as the fact that a sworn account cause of action is so limited does not necessarily mean that an account stated cause of action is not also so limited. The court did not make any examination of the scope of an account stated claim. It does not appear that the appellant challenged the use of the account stated cause of action in the case.

 

The next case to decide the issue, McFarland v. Citibank, N.A., makes the same logical error, distinguishing an account stated cause of action from a sworn account cause of action, but making no inquiry into the proper scope of the account stated cause of action. McFarland, 293 S.W.3d at 764. Ironically, it cites this Court’s Dulong decision as support for its conclusion even though this Court declined to decide the issue. The El Paso Court of Appeals in Eaves v. Unifund CCR Partners and the Houston 1st District Court of Appeals in Budzyn v. Citibank,N.A., add nothing new to the discussion, as both cases merely cite Dulong, McFarland, and Butler, echoing the distinction from a suit on a sworn account without exploring the scope of the account stated cause of action itself. Eaves, 301 S.W.3d 402 at 408,Budzyn,2010 Tex. App. LEXIS 2339 at 4-6.  Before deciding this kind of question, these courts should have inquired into the common law rules governing the scope of the account stated cause of action. That inquiry would have demonstrated that the cause of action is not appropriate for use in a credit card case.  An account stated is an open account that has been closed because the party charged has agreed that the account is correct.  Whittlesey v.Spofford47 Tex. 13, (Tex. 1877),Wroten Grain& Lumber Co. v. Mineola Box Mfg. Co., 95S.W. 744 (Tex. Civ. App.—1906), Padgitt Bros.Co. v. Dorsey, 194 S.W. 1124, 1126 (Tex. Civ.App.—El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who create a debtor-creditor relationship by engaging in a series of transactions in which title to goods passes from one to the other.  McCamant v. Batsell, 59 Tex.363,367-369(Tex. 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427(Tex. App.—Beaumont 1999, no writ).

 

In Texas practice, Rule 185 provides a streamlined procedural mechanism, commonly referred to as a suit on a sworn account, for asserting open account and account stated claims as well as certain other similar types of claims. Rule 185 does not create any substantive rights; it merely creates a procedure for expediting the claims listed in the rule. Rizk v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860,862 (Tex. 1979),Panditi v. Apostle, 180 S.W.3d 924, 925 (Tex. App.—Dallas 2006, no. pet. h.)

 

As a result of the prevalence of the use of Rule 185 (and its predecessors), much of the litigation concerning the scope of these claims is framed as litigation over suits on sworn accounts, even though the underlying substantive rights are defined in the common law claims enumerated in the rule.  As credit card collection suits proliferated in recent years, credit card plaintiffs sought to use the Rule 185 procedure to expedite their cases. To date, they have been uniformly rebuffed by the courts of appeals on the grounds that a suit on a sworn account must be based upon the sale of goods and cannot be based upon a contract.  Williams v. Unifund CCR Partners Assi gnee Of Citibank, 264 S.W.3d 231 (Tex.App.—Houston [1 Dist.] 2008, no pet.), Tully v. Citibank, N.A., 173 S.W.3d 212, 216 (Tex. App.—Texarkana 2005, no pet.), Bird v. First Deposit Nat’l Bank, 994 S.W.2d 280, 282 (Tex. App.—El Paso 1999, pet. denied)

 

Having failed to successfully employ the Rule 185 procedure in credit card cases, credit card plaintiffs have turned to the account stated cause of action as an alternative. However, the two reasons cited in the sworn account cases for excluding credit card cases from the scope of rule 185, the lack of transactions in goods between the plaintiff and defendant and the existence of an express contract governing the relationship between the parties, have also been historically applied by Texas courts to limit the scope of common law suits on account and therefore preclude the use of the account stated cause of action in credit card cases.

 

Over a century ago in McCamant v. Batsell, 59 Tex. 363,1883 WL 9175 (Tex. 1883), a case that has never been overruled, the Supreme Court construed the word account as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and excluding suits in which the rights of the parties were defined by a written agreement.  In McCamant, a suit on a promissory note,the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up an abbreviated procedure for resolving disputes involving sworn accounts. Unlike the current rule, the statute did not enumerate the kinds of actions that could be brought as suits on account.  The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term: 

"As used in the statutes of this state, in the act referred to, we believe that the word 'account' is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing." 

 

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain.  The Supreme Court re-affirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which the court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38, permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant, held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract.

Credit card suits will almost always run afoul of these two traditional boundaries on the scope of the suit on an account cause of action. Credit card suits rarely involve transactions in goods or services between the card issuer and borrower. Instead, the principal transaction between a credit card issuer and a borrower, the lending of money, is not a service under Texas law.  Riverside Nat'l Bank v. Lewis, 603 S.W.2d169, 174-175 (Tex. 1980).  More importantly, credit card arrangements, by the nature of the highly regulated regime in which they arise, are always governed by an express contract that fixes both the debtor-creditor relationship of the parties and the compensation, in interest and fees, to be paid by the debtor to the creditor for the extensions of credit. Both of these characteristics exclude credit card collection suits from the common law scope of the account stated cause of action. It would be improper to expand the traditional scope of the account stated cause of action to credit card cases. Modern credit card arrangements are invariably creatures of express contract in which the rights and responsibilities of the parties are specified in great detail. There is no need to imply a creditor-debtor relationship in this environment. Nor is there any need to imply assent to interest rate and fee terms that are expressly spelled out in great detail in agreements.  Instead, there is danger in allowing such implications, whether it be from creditors who have not kept detailed records of the account or debt-buyers who purchase only partial account records, because it allows these creditors to substitute their performance for their promise, to recover charges they imposed on the debtor regardless of whether those charges were actually authorized by their contractual agreements.

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During my research, I came across a case that had the attachments along with the affidavit thrown out because the affidavit did not specifically state the # of pages that were attached.

Lyons v. Lyons, No. 04-08-00259-CV (Tex. App. Jan. 14, 2009).

 

Texas Rules of evidence 902(10)b. FORM OF AFFIDAVIT.

 

so along with all the other things I have  ...I was thinking about adding this. has anyone tried this?

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That is probably just a judge flaunting his authority or being biased.  I heard of a judge throwing out a pro se's original answer because they forgot to include their phone number.  You could bring it up but all they would have to do is rewrite it with the correction and waste everyone's time again with a new hearing date. 

 

A JDB's affidavit is easy enough to disqualify as evidence because it is not worth the paper it is written on.

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Sorry but I came across another weird one, my student loan just sent me a notice under Gramm-Leach-Biley Act of 1999 that they are hereby giving me notice of giving third parties my information such as updated address, social security # and a list of other things that would be on my application and my account file etc, etc.

 

I was thinking about maybe being able to use this paper to fight the JDB's computer printout of my name address last four ss #, etc.

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Sorry but I came across another weird one, my student loan just sent me a notice under Gramm-Leach-Biley Act of 1999 that they are hereby giving me notice of giving third parties my information such as updated address, social security # and a list of other things that would be on my application and my account file etc, etc.

 

I was thinking about maybe being able to use this paper to fight the JDB's computer printout of my name address last four ss #, etc.

If they were smart enough they would object to it as being hearsay.   The best thing to say if they bring up their acquisition of the last four numbers of your social security number is, "One must give out those numbers over the phone to a stranger any time they call a customer service number regarding any account.   Those four numbers are almost public domain."

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Federal Rules of Evidence 803(7) and 803(10) establish exceptions to the hearsay rule that enable an advocate to present negative evidence. Rule 803(7) permits a party to offer evidence "that a matter is not included in the memoranda reports, records or data compilations, in any form" of any regularly conducted activity that would normally be admissible under Rule 803(6). Rule 803(10) provides a similar exception for absences of entries in a public record.[1] In enacting the two exceptions, the Rules Committee recognized that there would be overlap between the two, which it considered "harmless duplication."[2]

 

am I allowed to cite this federal rule in texas court? Since they do not have  the cc agreement or any of the amendments, the purchase and sale agreement, exhibit 1 accounts list, application (since the alleged account was opened when paper applications and the need for signatures still existed), or any of the billing statements of said account up to total, ...could I state they should have this information in their system if they really do regularly conduct this type of business?

 

I know I am overly thinking this, but keep reading cases where the affidavit is allowed as evidence.

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okay, so I was planning on objecting to the affidavit of course as hearsay, lack of knowledge.

 

OBJECTION: HEARSAY. Affiant lacks personal knowledge of O.C.'s business records.

 In paragraph 2, Affiant is only claiming personal knowledge of his employer's 'record keeping system'.

In paragraph #4, Affiant is stating he has personal knowledge of breach of THE TERMS,  but does not attach said terms to affidavit.

In paragraph #5, Affiant is stating only what he has viewed in the plaintiff's own files.

According to the RULES OF EVIDENCE, The Form of Affidavit is insufficient.

Affiant does not state how many pages of attachments he is attesting to.   Affiant fails to refer to ANY attachments.

Again, the only thing the Affiant is Authenticating is his employer's,  the plaintiff's, record keeping system.

 

is there a better way to do this? have a day and a half left. VERY nervous.

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Plaintiff, Portfolio Recovery Associates, has filed Exhibit A "Affidavit".
    
Exhibit A pertains to acts and events that allegedly occurred between Defendant and a third party,
Citibank, N.A.
    
At no time was the creator of the affidavit nor any of the Plaintiff’s employees present to witness any alleged
acts or creation of the records of transactions occurring between Defendant and the Citibank, N.A.
    
As such, said affidavit falls under the hearsay rule, Texas Rules of Evidence Rule 801(d), and is inadmissible as evidence.
    
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 the information contained in the document is merely an accumulation of hearsay, and upon information and belief, the creator of the document in Plaintiff’s Exhibit A is not currently and has never been employed with Citibank, N.A. and therefore cannot have personal knowledge of how Citibank, N.A.'s records were prepared and maintained and  is unqualified to testify as to the truth of the information contained in Plaintiff’s Exhibit A.
 

Hearsay objection-

http://www.texas-opinions.com/law-hearsay-objection.html

 

Simien v. Unifund CCR Partners-  Any Texas JDB attorney will undoubtedly use this ruling to claim that the OC's records are not hearsay. What they will not be able to explain is what measures they took to insure that the information of the alleged account was reliable.  The ruling is heavily based on "reliance on accuracy of documents"  and there is about a 99% chance that the affiant does not have a clue about alleged account records in bulk purchases being authenticated.

http://scholar.google.com/scholar_case?case=17235607577377111113&q=No.+01-08-00593-CV&hl=en&as_sdt=6,50

 

Study this ruling for another take on it -
http://scholar.google.com/scholar_case?case=14879746734349789673&q=No.+01-08-00593-CV&hl=en&as_sdt=2,50

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@texasrocker

 

 

At no time was the creator of the affidavit nor any of the Plaintiff’s employees present to witness any alleged
acts or creation of the records of transactions occurring between Defendant and the Citibank, N.A.

 

As such, said affidavit falls under the hearsay rule, Texas Rules of Evidence Rule 801(d), and is inadmissible as evidence.

 

 

 

Unless there's supporting case law, an affidavit to authenticate business records falls under the exception of 902(10).

 

 

 

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,

 

 

An affidavit to authenticate business records does not have to be made at or near the time of the alleged acts or events.  That language from 803(6) and 902(10) is applied to the business records themselves, not to the affidavit. 

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what about the rule 902 (10) b. form of affidavit? can I still use that? nowhere in the affidavit does it state of any attachments or similar (only in the 'plaintiff's jurisdictional evidence').

 

and what about matters of law, where I state for instance the finance code defines "credit card transaction" is to debit an "open-end account".  It also defines "open end account" as an account under written contract. ...then I would have to find a case law to back this up? cause that's going to be hard to do. uggh.

 

thanks guys.

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@texasrockerUnless there's supporting case law, an affidavit to authenticate business records falls under the exception of 902(10).

I thought Rule 902(10) referred to business records accompanied by an affidavit.  Should I have said, "As such, said affidavit falls under the hearsay rule 902(10)?  That does not seem quite right to me but if it is then I stand corrected.

 

An affidavit to authenticate business records does not have to be made at or near the time of the alleged acts or events.  That language from 803(6) and 902(10) is applied to the business records themselves, not to the affidavit. 

Did I not cover that adequately with "the information contained in the document is merely an accumulation of hearsay..."?

Again I stand corrected.

 

Edit:  I had been trying to find my brief for a motion to strike an affidavit from a couple of years ago but to no avail so was trying to remember how I worded it, hastily going back and forth to the rules of evidence.  I am not nearly as familiar with them as I am with the TRCP so I welcome anyone who wants to chime in here.       

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@texasrocker

 

I thought Rule 902(10) referred to business records accompanied by an affidavit.  Should I have said, "As such, said affidavit falls under the hearsay rule 902(10)?  That does not seem quite right to me but if it is then I stand corrected.

 

 

803(6) and 902(6) contain the same language except that 902(10) is for authentication of business records by affidavit.  If the affidavit contains the language of 902(10), then it complies with that rule to authenticate business records.  The OP would have to deny or cast doubt on the balance or authenticity of the records.   801(d) would not apply to a business records affidavit unless possibly it contains information not supported by the evidence.  Any statements not supported by the evidence should be objected to as inadmissible.

 

What is stated in the affidavit?

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@texasrocker

 

 

803(6) and 902(6) contain the same language except that 902(10) is for authentication of business records by affidavit.  If the affidavit contains the language of 902(10), then it complies with that rule to authenticate business records.  The OP would have to deny or cast doubt on the balance or authenticity of the records.   801(d) would not apply to a business records affidavit unless possibly it contains information not supported by the evidence.  Any statements not supported by the evidence should be objected to as inadmissible.

 

What is stated in the affidavit?

Did you not read it-  it is the first attachment in the first post of this thread.  It just states that he has personal knowledge of account assignee's record keeping etc. but nothing regarding the OC's record keeping.  "According to the business records of the original creditor..." and  "According to the account records transferred to the assignee..." 

 

I believe he is saying "according to" the OC's records in an attempt to get around getting struck down for legal conclusions.  Still, in my opinion, "The defendant breached the terms of the account and there was due and payable... to the account seller..." is a legal conclusion.  I would also bring that up at the hearing as it has yet to be proven.

http://www.houston-opinions.com/law-conclusory-affidavit-statement.html

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@texasrocker

 

In my opinion, that affidavit does not comply with 902(10).   I don't know if all TX courts agree that the record keeping methods of the OC must be referenced.

 

Here's what the court said in Simien v. Unifund.

 

"In her first issue, Simien asserts Lutz's affidavit lacks trustworthiness because Lutz avers that records created by Citibank were records created by Unifund. Simien contends the affidavit does not meet the requirements of 803(6), which states, "the source of information or the method or circumstances of preparation [must not] indicate lack of trustworthiness." See TEX.R. EVID. 803(6). As discussed above, a record may be "made" by a business although it was initially authored by a different business."

 

But, certain language from 803(6) is omitted.  It makes no reference to whether the records were made at or near the time of the transactions and that it was the regular practice of the business to make those records.   I'd use that.

 

Note that the court also said:

 

"Simien does not expressly assert that the underlying documents are not trustworthy; rather, she asserts that Lutz's affidavit contains inaccurate statements.  To the extent Simien is attacking Lutz's credibility, we note that the trier of fact is the sole judge of the credibility of a witness and the weight to give his testimony."

 

You referenced Simien v. Unifund and Old Republic Insurance Company v. Edwards.  In Edwards, the court explained why they ruled the way they did in Simien and the difference between the 2 cases.

 

Both Simien and Edwards are from the 1st District.

 

However, from Ortega v. Cach (2013) - 14th District:

 

The predicate witness need not be the creator of the record nor have personal knowledge of the content of the record but rather need only have personal knowledge of the manner in which the records were prepared. Ortega v. CACH, LLC, 396 S.W.3d 622, 629 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

 

That court also noted:

 

Accordingly, when an ex parte affidavit presents evidence beyond the simple authentication requirements of rule 902, the extraneous portions of the affidavit constitute inadmissible hearsay. Id at 630.

 

I guess it depends upon where the OP is located and which appeals court rulings would be binding on his court.  Do you know if it's the 1st, 14th, or other district?

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