Indy17 Posted October 31, 2018 Report Share Posted October 31, 2018 I have been going over the complaint against me. I find some technical errors in the affidavit of debt and the affidavit of service. The affidavit of service does not match the postage date on the envelope. Can I motion to strike these items, and motion to Dismiss this case in one filing? I am located in INDIANA. Thanks Everyone. Quote Link to comment Share on other sites More sharing options...
BV80 Posted October 31, 2018 Report Share Posted October 31, 2018 37 minutes ago, Indy17 said: I have been going over the complaint against me. I find some technical errors in the affidavit of debt and the affidavit of service. The affidavit of service does not match the postage date on the envelope. Can I motion to strike these items, and motion to Dismiss this case in one filing? I am located in INDIANA. Thanks Everyone. What’s the difference in the dates? Quote Link to comment Share on other sites More sharing options...
Indy17 Posted October 31, 2018 Author Report Share Posted October 31, 2018 The affidavit says postage was paid and and put into the mail OCT 1. Date on Postage is OCT 2. @BV80 Quote Link to comment Share on other sites More sharing options...
BV80 Posted October 31, 2018 Report Share Posted October 31, 2018 3 minutes ago, Indy17 said: The affidavit says postage was paid and and put into the mail OCT 1. Date on Postage is OCT 2. @BV80 That’s not going to be a reason to get a dismissal. They could have very well put in the mail on Oct. 1, but the post office didn’t stamp it until the next day. Quote Link to comment Share on other sites More sharing options...
Indy17 Posted October 31, 2018 Author Report Share Posted October 31, 2018 OK Cool. thanks for the info. It's the postage stamp though. The date is the postage itself. I'm like 99% sure postage was not paid until the 2nd of October. My other motion was to strike the affidavit of debt. The requirement per Indiana trial code says it must match in substantial part to the affidavit in the trial court laws. The affidavit they have is missing information regarding: Primary or secondary debt holder, interest rate, fees. @BV80 Quote Link to comment Share on other sites More sharing options...
BV80 Posted October 31, 2018 Report Share Posted October 31, 2018 23 minutes ago, Indy17 said: OK Cool. thanks for the info. It's the postage stamp though. The date is the postage itself. I'm like 99% sure postage was not paid until the 2nd of October. My other motion was to strike the affidavit of debt. The requirement per Indiana trial code says it must match in substantial part to the affidavit in the trial court laws. The affidavit they have is missing information regarding: Primary or secondary debt holder, interest rate, fees. @BV80 The postage is really no big deal. The attorney could have handed it off to a paralegal who didn’t mail it until the next day Try getting the affidavit stricken. I’m not sure the missing info regarding interest rate and fees is important unless you can show via either court rules or Indiana case law that it’s required. Quote Link to comment Share on other sites More sharing options...
WhoCares1000 Posted October 31, 2018 Report Share Posted October 31, 2018 Most likely, the affidavit was filled out when the envelop was sent to the mail room. If the company/law office has procedures in place which shows that no piece of mail leaves the office without postage, the judge will probably let is go. It is the next day, not the next week. For all you know, the envelop could have been sent to the mail room at 4:45pm, the affidavit filled out before 5pm, and then the envelope was stamped after midnight. I could see if the dates differed by a week but not the next day. I can ask a friend who works this kind of stuff (mail room and filling out affidavits) for a major national bank in the bond department but I think I will get the same answer as above. Now if the judge is looking for a reason to side with you, then you can throw the date issue at the wall and see if it will stick. If you cannot read the judge or if they are obviously leaning toward the creditor, then the date issue does not stand a chance. Quote Link to comment Share on other sites More sharing options...
Indy17 Posted October 31, 2018 Author Report Share Posted October 31, 2018 1 minute ago, BV80 said: The postage is really no big deal. The attorney could have handed it off to a paralegal who didn’t mail it until the next day Try getting the affidavit stricken. I’m not sure the missing info regarding interest rate and fees is important unless you can show via either court rules or Indiana case law that it’s required. @BV80 As I have said. That is in the court rules. Or at least their affidavit must be in substantial part similar to the affidavit example included in the trial rules- that has that information included. So back to my original question. Would this be a motion to strike, then wait to motion to dismiss? Quote Link to comment Share on other sites More sharing options...
BV80 Posted October 31, 2018 Report Share Posted October 31, 2018 47 minutes ago, Indy17 said: @BV80 As I have said. That is in the court rules. Or at least their affidavit must be in substantial part similar to the affidavit example included in the trial rules- that has that information included. So back to my original question. Would this be a motion to strike, then wait to motion to dismiss? What is the IN rule? Quote Link to comment Share on other sites More sharing options...
Indy17 Posted October 31, 2018 Author Report Share Posted October 31, 2018 Rule 9.2. Pleading and proof of written instruments (A) When instrument or copy, or an Affidavit of Debt must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record. When any pleading allowed by these rules is founded on an account, an Affidavit of Debt in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached. affidavit-of-debt.pdf Quote Link to comment Share on other sites More sharing options...
BV80 Posted October 31, 2018 Report Share Posted October 31, 2018 55 minutes ago, Indy17 said: Rule 9.2. Pleading and proof of written instruments (A) When instrument or copy, or an Affidavit of Debt must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record. When any pleading allowed by these rules is founded on an account, an Affidavit of Debt in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached. affidavit-of-debt.pdf Rule 9.2(F) F) Effect of non-compliance--Amendments. Non-compliance with the provisions of this rule requiring a written instrument or an Affidavit of Debt to be included with the pleading may be raised by the first responsive pleading or prior motion of a party. The court, in its sound discretion, may order compliance, the reasons for non-compliance to be added to the pleadings, or allow the action to continue without further pleading. Amendments to correct the omission of a required written instrument, an assignment or indorsement thereof, the omission of a denial of the execution of a written instrument as permitted or required by this rule, or an Affidavit of Debt shall be governed by Rule 15, except as provided by subdivision (A) of this rule. "It is well established that non-compliance with Rule 9.2(A) is not a per se bar to the action. Brown v. Guinn, 970 N.E.2d 192, 195 (Ind. Ct. App. 2012). You can try a MTD, but the court could allow the plaintiff to correct the affidavit. Quote Link to comment Share on other sites More sharing options...
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