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Response to Defendants plea to jurisdiction + Evidence


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@BV80

thanks for the Ortega v. cach

"The West Affidavit is offered as a business record of CACH, but it is clear from the face of the document that it was prepared for the purpose of litigation. The affidavit has the heading of a pleading and refers to CACH and Ortega as "Plaintiff" and "Defendant," respectively."

 

they reference me as the "defendant" multi times. :)

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AFFIDAVIT

(OBJECTION: HEARSAY. Affiant lacks personal knowledge, lacks foundation,  and makes conclusory statements.)

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.

 Affiant or plaintiff presents no evidence providing how the finance charges are calculated and how plaintiff arrives at the balance of alleged debt or provides the terms stated in the affidavit.  and lacks foundation.

Conclusory statements in affidavits are insufficient to raise a fact issue.  Ryland Group, Inc. v. Hood,
924 S.W.2d 120, 122 (Tex. 1996);  Paragon Gen. Contractors, 227 S.W.3d at 883; Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.- Houston [1st Dist.] 1997, no pet.).  

Also, Affiant fails to refer to ANY attachments in the affidavit and does not specify the # of pages attached. According to the RULES OF EVIDENCE 902.10(B), The Form of Affidavit is insufficient. Lyons v. Lyons, No. 04-08-00259-CV (Tex. App. Jan. 14, 2009).

 

It is clear from the face of the document that it was prepared for the purpose of litigation. The affidavit refers to parties as "Plaintiff" and "Defendant," respectively. Therefore, we adhere to the well-established rule and conclude that this document, which was made in anticipation of litigation, was not admissible under the business-records exception. See Blackburn, 992 F.2d at 670. Ortega v. CACH, LLC, 396 SW 3d 622 - Tex: Court of Appeals 2013

Tex.R. Evid. 803(6). Lack of trustworthiness is most frequently found when the record was prepared in anticipation of litigation. United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993)[4]

 

As such, said affidavit falls under the hearsay rule, Texas Rules of Evidence Rule 802,  and is inadmissible as evidence.

 

 

Alright. this is what I have in my notes for the affidavit now. a few cups of coffee in and my brain is jumping around like crazy!

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sorry I had to rewrite all my jotted down notes in order. tell me how this sounds. I am going to add more for the "bill of sale" but have to take a short break. please find anything that doesn't work or I should add in. I welcome all critiques.

 

 

1. Plaintiff, Portfolio Recovery Associates, has filed "Exhibit A" which consists of an "affidavit" and "bill of sale".

2. "Exhibit A" pertains to acts and events that allegedly occurred between Defendant and a third party, Citibank.

3. At no time was the creator of the "affidavit" nor any of Plaintiff's employees present to witness any alleged acts or creation of the records of transactions occurring between defendant and Citibank.


4. Affiant fails to refer to ANY attachments in the affidavit and does not specify the # of pages attached. According to the RULES OF EVIDENCE 902.10(B), The Form of Affidavit is insufficient. Lyons v. Lyons, No. 04-08-00259-CV (Tex. App. Jan. 14, 2009).

5. Upon information and belief, the creator of the document in Plaintiff's "Exhibit  A" is not currently and has never been employed with Citibank and therefore cannot have personal knowledge of how  Citibank's  records were prepared and maintained, and;

6. Is unqualified to testify as to the truth of the information contained in Plaintiff's Exhibit "A".

7. It is the business records that constitute the evidence, not the testimony of the witness referring to them. There is no business record from the original creditor attached that shows that the defendant had an account or used an account that was transferred to the plaintiff.

 

8. Affiant or plaintiff presents no evidence providing how the finance charges were calculated or how plaintiff arrived at the balance of alleged debt which lacks foundation and is nothing more than conclusory statements. Such unsupported conclusory statements are not credible.

an affidavit must state facts and cannot merely recite legal conclusions. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003) (citing Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam))..

 

 Conclusory statements in affidavits are insufficient to raise a fact issue.  Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);  Paragon Gen. Contractors, 227 S.W.3d at 883; Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.- Houston [1st Dist.] 1997, no pet.).  

 

A “conclusory” affidavit is one in which there are no underlying facts to support the conclusions made in the affidavit. Such an affidavit cannot raise any fact issues and amounts to no evidence at all. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-3 (Tex. 2004).

 

9. As such, said affidavit falls under the hearsay rule, Texas Rules of Evidence Rule 802,  and is inadmissible as evidence.

 

 

 

 

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On 10/27/2014 at 11:27 PM, BV80 said:

@texasrocker

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.

Just to clarify about Simien-  It is the holy grail of Texas JDB attorneys to try to get the hearsay referred to on their bogus affidavits admitted as evidence.  The importance of it to the defendant is that the business records of the OC must be reliable.  If the JDB cannot explain what measures they took to be sure that the records were reliable then anything else in the ruling is irrelevant.  

 

Simien  should not be brought up first by the defendant in any hearing, motion, or brief.  However, you need to be prepared to object if and when the plaintiff brings it up.  The best thing to do is counter it early in discovery by asking them how they go about making sure the account information in the bulk purchases of accounts can be relied on and asking them to identify any employee of the OC whom they conferred with concerning the reliability of the account records, specifically your alleged account.  Then, weeks or months later, when they stroll into court grinning with a copy of Simien in their hand to back up their robo-signed affidavit they have already painted themselves into a corner.  

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  • 1 month later...

sorry this is a late update, my computer crashed the night before I had court.

 

anyway, it went horribly. I tried my best. The judge said exactly "this court goes by it's own set of rules! those don't apply to my courtroom." and waived a copy of papers around in the air and then popped it down on his bench. after that all my planning went up in smoke and I was intimidated and nervous and just choked.

 

but he did get after the young attorney for not having read my discovery and repeatedly asked if they had any statements to show him. and she kept stuttering and saying she will send everything thru discovery. he reminded her "30 days, okay?"

 

and I am still waiting to get the discovery answers from them. the judge only let me have partial discovery.

 

I am trying to find a PRO BONO attorney or free legal aid right now, or someone in the area that will charge less than $1000.

 

if not then I will just continue to go thru the motions pro se and see what happens.

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  • 2 weeks later...

So, I contacted the Plaintiff's attorney to tell them the discovery has been longer than 30 days, and they need to respond or I will file a motion and sanction yadda yadda

 

and they responded with "This case is being routed for dismissal."

 

 

Thank you everyone on here!

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