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I have known of numerous pro se cases in WA reported on this board that failed solely because they lacked affidavits that district judge like to see per CR 56(e). I am trying to figure out a template for such affidavit that I will have to use in the event JDB will start their case anew.

Here is a typical JDB affidavit:

 

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AFFIDAVIT

I, Bernard Madoff, declare under penalty of perjury that:

1.    I am over 18 and competent to testify;

 

2.    I have personal knowledge of facts and events stated herein;

 

3.    I never entered into any contract with JDB;

 

4.    JDB has provided no proof of assignment of debt; (argumentative)

 

5.    JDB has provided no contract (refused through RFP, this won't help, if admitted acct with OC)

 

6.    JDB has provided no credit card agreement and terms and conditions (refused through RFP)

 

7.    The JDB’s affiant is not a JDB employee (well, authorized agent is not the employee, right? Anyway, this should be established through discovery, besides the affiant is of Cavalry Portfolio);

 

8.    The JDB has provided no details as to how the JDB’s affiant is qualified to testify (any pointers?)

 

9.    The JDB’s affiant has not been an employee of FIA Card Services (through discovery?)

 

10. The JDB’s affiant has no personal knowledge as to when and in what manner the defendant opened the account with FIA Card Services (through discovery?)

 

11. The JDB’s affiant has no personal knowledge as to when the account became delinquent and was charged off, and what the principle was immediately prior to the charge off

 

12. The JDB’s affiant has no personal knowledge as whether the account holder has been credited for all payments, set-offs and other credits due

 

13. The JDB’s affiant does not specify or reference which electronic/computerized account records she has reviewed;

 

14. The JDB’s affiant does not specify who and in what manner prepared the Excel spreadsheet with the account information, which was referred in the “Bill of Sale” (comment: it is impossible

that FIA Card services maintained its business activity in the Excel spreadsheet);

 

15. The alleged bill of sale explicitly states that it lacks trustworthiness “AS IS”

 

16. The alleged bill of sale does not reference the defendant’s identify in any fashion

 

17. The alleged bill of sale is incomplete (establish through discovery whether the other elements were there during the sale)

 

18. The JDB’s affiant has no personal knowledge whether the defendant is competent or is an active member of United States of Armed forces who would be entitled to stay relief.

 

19. JDB’s affiants has made false, misleading and deceptive statements (my appeal reversed a summary judgment against me because of a defective affidavit);

 

20.  The JDB’s attorney of record is being sued in federal court for making the JDB’s affiants produce false, misleading and deceptive statements (see federal court case #2:09-cv-00251-EFS Lauber et al v.Encore Capitol Group Inc et al or better contact Kinkley's office in Spokane WA to hopefully obtain an appropriate declaration).

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I'm thinking (off the top of thinning hair) that what he's wanting is basically just a point by point general denial, similar to your example above....then the proper ending such as

 

I, Broke, Defendant Pro Se upon oath and affirmation swear that the above statements are true and correct to the best of my knowledge and belief

 

Signed

Broke One

 

Don't quote on that......your Mileage may vary.

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I'm thinking (off the top of thinning hair) that what he's wanting is basically just a point by point general denial, similar to your example above....then the proper ending such as

 

I, Broke, Defendant Pro Se upon oath and affirmation swear that the above statements are true and correct to the best of my knowledge and belief

 

Signed

Broke One

 

Don't quote on that......your Mileage may vary.

 

No, a general denial like the following didn't fly:

Now comes the Defendant in the above case and declares under the penalty of perjury under the laws of the State of Washington:

 

I, Berndard Madoff, deny this is my debt and if it is my debt, deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount.

 

The judge wanted a denial of the debt in the first place in order to move it trial. He didn't care about the admissibility of evidence and plaintiff's standing to sue. I just anticipate a second appeal after another MSJ -- for there is no other way around with our district courts -- and merely want to make it easier.

 

At the same time, I am looking for FCDPA attorneys in our area, and am educating myself by reading through a few FDCPA cases from PACER.

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@sasha0378

 

If you can, locate lawsuits in your court in which defendants were represented by an attorney and look for defendant affidavits in those files. 

 

An affidavit is supposed to contain statements you can truthfully make under oath.  Some of the statements in your sample affidavit read more like an argument or opposition to an MSJ.  While it's true that a bill of sale doesn't reference a defendant or specific account number, those facts are evident from the bill of sale itself.  It's not something to which one must attest to under oath.

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@BV80, thanks, I realize it that some statements are argumentative (lack of standing, for instance) and I will have to downsize an affidavit.

 

I am sorry if I write something stupid, I ask your indulgence for that. It seems from my appeal that even lawyers or judges don't understand too well what affidavits should be. Or they are corrupt. Or just incompetent. And I don't know which of the last two characteristics is worse.

 

Anyway, on this:


While it's true that a bill of sale doesn't reference a defendant or specific account number, those facts are evident from the bill of sale itself.  It's not something to which one must attest to under oath.

If it is a fact, should it be then referenced in the Statement of Facts of a Memorandum. In the mean time, I will be correcting the affidavit sample above based on this discussion

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@sasha0378

 

I am sorry if I write something stupid, I ask your indulgence for that.

 

 

You haven't written anything that's "stupid".  It's a valid concern.   Since I'm not an attorney or expert on affidavits, that's why I suggested that you try to locate the affidavits of defendants who were (or are) represented by attorneys.   It would sort of be like getting the information "straight from the horse's mouth".

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Right, to help overcome an MSJ.

 Uh, maybe I'm off base here, or looking cross eyed at this, but that sounds like you have been  served or wanting to be ready to respond to a MSJ......... thats called a Response or in other words a pleading or a sworn statement of facts.. OR affidavit of facts (Your rules of Civil Procedure lay out YOUR state's terminology, most states follow similar form (Federal Rules content), but call it something else) It has to be affirmed or sworn that all your statements are true and correct to the best of you knowledge.

 

Edit or Second thoughts:

 

Just Checked Federal Rules of Civil Procedures 56 (e) You are needing a Response to Summary Judgment......it's not stated that way right there in the Rule....You need to find the Federal or WA state Rules of procedure on Form of pleadings (affidavit of facts) most States refer to it as a Pleading in Opposition....Response, etc......all means the same thing. Without this a Washatonian would only win if the opposition just didn't show up for court.

 

Your State Washington Look Here

 

 

If is an MSJ the following is a type of affidavit as it is a sworn statement of facts of a sort..Officially called (in OK) Response to Summary Judgment.

 

Might want to redact any personal information and post a sample it so we can see. ......If it is an Response to MSJ that's needed...you either argue well against it or ............Lose...default judgment as the only "side" or facts are the plaintiff's....no disputed or significant issues of fact...automatic judgment.

Must be why your judge is upset.....he may not like the JDB, but with missing or improper responses , he has no alternative under the law.

 

Like BV80 said, get on your Court site find debt case.....probably a CS xx-xxx or maybe a CJ xxx-xxx look at the filings a proper answer to MSJ is a Response to Summary Judgment (at least in OK), preferably from a cased filed by an attorney. You may have to look at 40 or 50 to find one that didn't just not answer or stipulated judgment....

 

You will find that it is organized in sections somewhat....and introduction or opening statement, a review/list of EACH of Plaintiff's facts with denial of those facts in error,Your arguments with authorities (citations, statutes, documents, exhibits in opposition) against those facts, then your statement of facts as you see them (supported with citations, statutes, documents, exhibits favorable to you), a standard of review (your states rules for summary judgments,stated and quoted to support opposition and why it is not a remedy or supported by that law...citations of case law that agree with that ), maybe definitions of terminology that might be unfamiliar to the court or emphasize a point,  arguments and authorities this is where your writing and grammar skills come in you state each item that you disagree with (mostly everything) your reasoning it is in error (back it up if at all possible, case law, examples, statutes, etc) remember in here is good place to Object to a document, statement, bills of sale,etc, and if your state requires it motion to strike, your trying to keep out of evidence all you can and establish significant issues of facts, then a response to separate element s of their arguments you could combine them, but for clarity separate them, The a section why their not entitled to collect for whatever reason, the summation, tie it all up in as neat a package as possible, then a type of conclusion where you ask the court to find for you not them, dismissal, summary disposition (in your favor, yes you can ask for summary judgment or disposition too) preferably with prejudice if you can convince judge (cant file again), THEN your sworn statement of truth, signature, court clerk seal, then your service statement on plaintiiffs.

 

This is way you need to find a reasonably made "example" by an attorney in your state, outline your pleading, then observe how THey plead facts, etc........ It is really not that hard once you get the form, but it is considerable research, typing, proofing for grammar and spelling and form of statements. It can be time consuming.....some consider it easier to just quit and default obviously.

 

My case is somewhat screwed around, with lots of unfounded assertions, statements of fact that in reality don't exist, statements of evidence that are not accurate or proper, etc........Most aren't as long as mine (36 pages), but I had to add several addressing the account stated claim, which is not well cited (favorably) in OK (hopefully better for you) and I wanted to shut down any statement about it plaintiffs made.

 

Your case may only be 8-10 pages usually more as they are often line spaced widely with blank area's between sections, etc, others more...have seen some twice mine, especially if they have oodles of Exhibit Documents, Statements, Photos etc to support their claims.....

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@sasha0378

 

 

You haven't written anything that's "stupid".  It's a valid concern.   Since I'm not an attorney or expert on affidavits, that's why I suggested that you try to locate the affidavits of defendants who were (or are) represented by attorneys.   It would sort of be like getting the information "straight from the horse's mouth".

Yeah, I have gone over hundred of cases in our district court. The absolute majority of cases are either without an answer or are in default. Just a few of them are with summary judgments. Only 4 (all pro se) cases have been appealed: 1 lost, 1 won, 2 pending. None of them have affidavits, a fact the opposing attorneys like to exploit . I realized that I should have been looking into Appellate and Federal cases, that is where lawyers are.

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Yeah, I have gone over hundred of cases in our district court. The absolute majority of cases are either without an answer or are in default. Just a few of them are with summary judgments. Only 4 (all pro se) cases have been appealed: 1 lost, 1 won, 2 pending. None of them have affidavits, a fact the opposing attorneys like to exploit . I realized that I should have been looking into Appellate and Federal cases, that is where lawyers are.

 

Affidavits need to be made on personal knowledge.  Your bullet points above are mostly factual arguments on the face of the evidence provided, and not necessary to place in an affidavit.  Your affidavit needs to contain true statements regarding the allegations used against you. (i.e. 1) Defendant has never entered into an agreement/contract with JDB.  2) Defendant has never received the proffered card agreement except through this litigation.  etc....)

 

You can create material issues of fact with your affidavit, as well as material issues of fact with the evidence the JDB provides.  You only need one triable issue to overcome the MSJ and move onto trial.

 

Your appeals judge gave you a good road map in arguing against the JDB documents.  The affidavit was defective, and didn't lay foundation.  Nor, was the evidence authenticated by the affidavit.  Unfortunately, the courts love to rubber stamp these things through (hence your appeal).  

 

Also, in terms of researching cases, look for appellate cases in your state.  Google scholar is a good place to start.

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In my affidavit I denied owing a debt the the JDB and asserted that I never entered a contractual relationship with the JDB, but I never denied owing a debt to Bank of America.  The appellate court made specific mention of this fact and seemed to indicate that if I had under oath denied owing a debt to BofA, or asserted that I had paid off the debt or something to that effect, I could have survived summary judgment.

 

Express sworn denial of the underlying debt seems to be the key.  Just be aware that perjury is a felony.

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Always something to the effect ...as to the best of my knowledge.....(think to yourself..............I'm just a poor country boy/girl I don' t really understand all these fancy words) I'm afraid they might have hacked the info off the internet.................so they gotta prove it as I'm not going to admit to something that might not be mine........

 

No moral judgments.............the judge, the JDB and the law in general does'nt care a whip about right or wrong..............just is it probable that it is........amble, waddle, quack.......hey its a duck! Judgment granted.

 

Sounds like your getting in the Groove....sorry I misunderstood. Your appealing..........??????  Now you see why we sometimes argue around and some is an educated assumption as far too few defend themselves fully and the few that do, have issue's finding really solid guidance, there's little out there.....but it is slooooowly getting better.

 

I'm (and many others) are that duck....frantically flapping and trying to get airborne before the JDBgator grabs me.

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   While it's true that a bill of sale doesn't reference a defendant or specific account number, those facts are evident from the bill of sale itself. 

 

If the defendant and ac# are not in the BOS, how are those "facts(?)" evident from the bill of sale itself; when they don't even appear in it?

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sigh, I now think the majority of the numbered paragraphs, which start with "JDB" in my original post, should be moved from the affidavit to the "Statement of Issues" section of my Opposition to Plaintiff's Motion for Summary Judgment. The affidavit must not contain anything close to arguments. In addition, the affidavit must reference an certify something I introduce into evidence, for instance, a JDB response to my RFA. The in the "Statement of Issues",  based on JDB's response, I elaborate that:

- the same JDB has not established its standing;

- the Bill of Sale is incomplete and if I, defendant, demanded the complete documentation, which JDB refused to produce, then this is another material issue which potentially bars MSJ.

- the affiant has not been an employee of FIA Card Services (through discovery?)

 

Am I going in the right direction?

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sigh, I now think the majority of the numbered paragraphs, which start with "JDB" in my original post, should be moved from the affidavit to the "Statement of Issues" section of my Opposition to Plaintiff's Motion for Summary Judgment.

I think some of the things starting with "jdb" may have to go, and that it should be a lot of things starting with "I" , and showing personal knowledge. I don't know that it will be effective talking about jdb not contract etc, because they will claim they are assigned to it etc.

The affidavit must not contain anything close to arguments.

I agree. It should show material issues and a need to argue (in trial), it should help shed light that this needs to go to trial so a trier of facts can weigh "evidence" not affidavits and hearsay.

In addition, the affidavit must reference an certify something I introduce into evidence, for instance, a JDB response to my RFA. The in the "Statement of Issues",  based on JDB's response, I elaborate that:

Agreed. Doing discovery is good and can also make it harder for them to file or win a summary judgment.

- the same JDB has not established its standing;

You could say that no case should be decided on it's merits before plaintiff has established it has legal standing to sue in the first place.

- the Bill of Sale is incomplete and if I, defendant, demanded the complete documentation, which JDB refused to produce, then this is another material issue which potentially bars MSJ.

So it is irrelevant. It probably has other issues as well. It's not solid proof of anything if attacked properly (of course you would need to know the rules, and get a judge that follows them). This is a material issue. The more you have the better.

- the affiant has not been an employee of FIA Card Services (through discovery?)

So they cannot lay a foundation. This is something you may be able to prove thru discovery. Foundation and authentication are very important, I would read your rules pertaining to them. Rules of evidence.

 

Am I going in the right direction?

Not exactly sure what you are doing or that you need the affidavit (not sure you don't either), but I think you are headed in the right direction. There are a lot of ways to get sidetracked or take a wrong turn however.

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The judge wanted a denial of the debt in the first place in order to move it trial. 

Then I would assume that is exactly what you would have to present this judge. Your rules probably suggest it is a material issue of fact that will move it to trial, and you do have a Constitutional right to due process (which I would construe as your day in court (since their claims are being contested), but you do have to get there first.

 

At the same time, I am looking for FCDPA attorneys in our area, and am educating myself by reading through a few FDCPA cases from PACER.

If you can find an FDCPA violation and capitalize on it you will gain leverage.

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If the defendant and ac# are not in the BOS, how are those "facts(?)" evident from the bill of sale itself; when they don't even appear in it?

 

@Anon Amos

 

I don't understand how my statement is difficult to comprehend.

 

It is a fact that the bill of sale does not show the defendant's name.   It is a fact that the bill of sale shows no account number.  Those FACTS are evident by merely reading the document. 

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sigh, I now think the majority of the numbered paragraphs, which start with "JDB" in my original post, should be moved from the affidavit to the "Statement of Issues" section of my Opposition to Plaintiff's Motion for Summary Judgment. The affidavit must not contain anything close to arguments. In addition, the affidavit must reference an certify something I introduce into evidence, for instance, a JDB response to my RFA. The in the "Statement of Issues",  based on JDB's response, I elaborate that:

- the same JDB has not established its standing;

- the Bill of Sale is incomplete and if I, defendant, demanded the complete documentation, which JDB refused to produce, then this is another material issue which potentially bars MSJ.

- the affiant has not been an employee of FIA Card Services (through discovery?)

 

Am I going in the right direction?

 

It sounds to me like you are generally on the right track, the issue at hand is separating what is required in an affidavit, and what is required in motions/pleadings.

 

Affidavits need to contain things that have true/factual statements in which you have personal knowledge.  These are not necessarily arguments, but factual statements like:  I never had an AMEX account.

 

Motions/pleadings need to have the "Statement of facts" (I would use this terminology instead of 'statement of issues'), where you can outline the BOS doesn't contain your information etc.... You would then create arguments supported by Statutes and case law as it fits into the JDBs argument or evidence (or lack thereof).

 

Are you crafting an opposition to a MSJ?  Correct me if I'm wrong, didn't you just win on appeal?

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@Anon Amos

 

I don't understand how my statement is difficult to comprehend.

 

It is a fact that the bill of sale does not show the defendant's name.   It is a fact that the bill of sale shows no account number.  Those FACTS are evident by merely reading the document.

 

I guess I got thrown off because  you said "a" bill of sale and not "the" bill of sale (like you said here), so I took it as bills of sale in general, and not specific to this one. I was reading it as defendants name and account # were the FACTS and not that the point was that they were missing (if that makes since).

 

Not trying to nit pick your post, I just arrived at the wrong understanding of it.

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It sounds to me like you are generally on the right track, the issue at hand is separating what is required in an affidavit, and what is required in motions/pleadings.

 

Affidavits need to contain things that have true/factual statements in which you have personal knowledge.  These are not necessarily arguments, but factual statements like:  I never had an AMEX account.

 

Motions/pleadings need to have the "Statement of facts" (I would use this terminology instead of 'statement of issues'), where you can outline the BOS doesn't contain your information etc.... You would then create arguments supported by Statutes and case law as it fits into the JDBs argument or evidence (or lack thereof).

 

Are you crafting an opposition to a MSJ?  Correct me if I'm wrong, didn't you just win on appeal?

Very well said. I was going to ask if the OP just won as well.

 

Also, isn't there a law in the OP's state that you have to sign affidavits under penalty of perjury to the state? The jdb didn't do that in the affidavit posted here.

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It sounds to me like you are generally on the right track, the issue at hand is separating what is required in an affidavit, and what is required in motions/pleadings.

 

Affidavits need to contain things that have true/factual statements in which you have personal knowledge.  These are not necessarily arguments, but factual statements like:  I never had an AMEX account.

 

Motions/pleadings need to have the "Statement of facts" (I would use this terminology instead of 'statement of issues'), where you can outline the BOS doesn't contain your information etc.... You would then create arguments supported by Statutes and case law as it fits into the JDBs argument or evidence (or lack thereof).

 

Are you crafting an opposition to a MSJ?  Correct me if I'm wrong, didn't you just win on appeal?

Aye, I prevailed on my appeal a week ago and had my appeal cost bill delivered today to their attorneys (Fri 13 for them, hehe). It's just I don't think the fight is over yet. The superior court judge said that they can start anew in the district court.

 

Even if they drop the suit, there will be some legacy for others. The opposition to MSJ template I have seen here just won't work in our district courts, I think some five people reported so.

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Motions/pleadings need to have the "Statement of facts" (I would use this terminology instead of 'statement of issues'), where you can outline the BOS doesn't contain your information etc.... You would then create arguments supported by Statutes and case law as it fits into the JDBs argument or evidence (or lack thereof).

 

Thanks. I was just not sure where to put it. Our local rules have this LCR 7(B)(iii) in red:

 

 

        ( B) Form of Motion and of Responsive Pleadings.  The motion shall be combined with the memorandum of authorities into a single document, and shall conform to the following format:

                (i) Relief Requested.  The specific relief the court is requested to grant or deny.    

                (ii) Statement of Facts.  A succinct statement of the facts contended to be material.

                (iii) Statement of Issues.  A concise statement of the issue or issues of law upon which the Court is requested to rule.

                (iv) Evidence Relied Upon.  The evidence on which the motion or opposition is based must be specified with particularity.  Deposition testimony, discovery pleadings, and documentary evidence relied upon must be quoted verbatim or a photocopy of relevant pages must be attached to an affidavit identifying the documents.  Parties should highlight those parts upon which they place substantial reliance.  Copies of cases shall not be attached to original pleadings.  Responsive pleadings shall conform to this format.  

                (v) Authority.  Any legal authority relied upon must be cited.  Copies of all cited non-Washington authorities upon which parties place substantial reliance shall be provided to the hearing Judge and to counsel or parties, but shall not be filed with the Clerk.  See LCR 5(k).

                (vi) Page Limits.  The initial motion and opposing memorandum shall not exceed 12 pages without authorization of the court; reply memoranda shall not exceed five pages without the authority of the court. 

 

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Aye, I prevailed on my appeal a week ago and had my appeal cost bill delivered today to their attorneys (Fri 13 for them, hehe). It's just I don't think the fight is over yet. The superior court judge said that they can start anew in the district court.

 

Even if they drop the suit, there will be some legacy for others. The opposition to MSJ template I have seen here just won't work in our district courts, I think some five people reported so.

 

Do you mind telling us what the general amount you were sued for, and who the Original Creditor was?  

 

Each state/court/judge has its own threshold to overcome a MSJ, and I'm not sure what method you used to overcome the MSJ?  But, I agree with you that the "general" template that is used here to oppose a MSJ needs to be strengthened significantly.  

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