Author Topic: Motion Hearing coming up any advise/what 2 expect  (Read 1592 times)

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pro se active

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Motion Hearing coming up any advise/what 2 expect
« on: January 08, 2011 06:44:42 AM »
Stepped up my aggressiveness in the lawsuit after jdb sent an affidavit from a "bank officer" from oc.   I moved for a motion to strike affidavit. ( jdb has 15 days and when I checked w/ county clerk no objection so far.)  I have a hearing soon is there anything I should be aware of going in?  I am writing up index cards with state laws concerning hearsay rules and cases (like you would for a debate tournament). 

What does a judge ask you on this kind of motion typically?
What would  an opposing lawyer might say?
Can other motions be introduced during this hearing?
Have I forgot anything?
I am not an attorney.  I am just pro se active!

Mischievous Smurfy

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #1 on: January 08, 2011 11:19:08 PM »
did you serve the motion on them?
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why are we requesting validation instead of disputing???  Why Why Why

metalstorm

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #2 on: January 09, 2011 06:50:20 AM »
The judge is going to want to know what your basing your motion to Strike on.

You can't just Motion To strike you have to have a basis for it.

What did you base  it on?

-Metlstorm

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nobk4me

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #3 on: January 09, 2011 08:11:02 PM »
Affidavit from "bank officer" of OC.  Let me guess, is the JDB CACH?

Have you Googled the affiant and the notary?  I bet the affiant has a LinkedIn page, every one I have seen does.

The affidavit is probably a forgery, but you will need to prove it.
Molon labe

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Mischievous Smurfy

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #4 on: January 09, 2011 09:31:50 PM »
also authenticate the notary...
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why are we requesting validation instead of disputing???  Why Why Why

pro se active

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #5 on: January 10, 2011 08:55:35 PM »
COMES NOW,  the Defendant and respectfully states the following:

 Plaintiff has submitted into evidence an affidavit in support of Plaintiff’s claim (hereinafter referred to as “Affidavit“)

 1. The Avidavit alleges  that the affiant is an authorized representative of Bank of America and that she is authorized to make an affidavit.  The Affidavit does not state that she has personal knowledge of this alleged account. Therefore, the affidavit is conclusory and insufficient since it was unaccompanied by properly authenticated records and unsupported by facts establishing basis of officers knowledge. Neb.Rev. Stat & 25-1334 (Reissue 2008) “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.”


2.  The affidavit does not state who reviewed “the computerized and hard copy books and records. It only states that affidavit“ is based on” computerized and hard copy books and records. A witness cannot “testify” by regurgitating the content of business records that a witness has reviewed when the witness has not seen or heard the events in question. Such regurgitation is hearsay, plain and simple. Wahad v. Federal Bureau of Investigation. 179F.R.D. 429, 438 (S.D.N.Y. 1998) Nebraska v. Ward. 510 N.W. 2d 320,324 (Neb App.1993)

3.  Foundation is lacking for admission of officers opinion regarding amount due. Her opinion was offered without proper foundation or personal knowledge.  Neb.Rev. Stat & 25-1334 (Reissue 2008)
                  


4.  The affiant does not claim to have personal knowledge of the sale of  alleged debt from the Original Creditor to the Plaintiff.  Therefore foundation is lacking and this is hearsay. Neb.Rev. Stat & 25-1334 (Reissue 2008)


WHEREFORE, Defendant prays this Honorable Court, that Plaintiff’s Affidavit, Exhibit “A” be stricken from evidence in the above action.

I am not an attorney.  I am just pro se active!

pro se active

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #6 on: January 10, 2011 08:59:42 PM »
How does one authenticate a Notary? So if notary is a notary and they just forged the name then what?
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howucantoo

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #7 on: January 10, 2011 09:31:27 PM »
These, define what you are trying to accomplish.


Rushmore Recoveries X, LLC v. Skolnick, 15 Misc. 3d 1139A; 841
N.Y.S.2d 823 (Nassau Co. Dist. Ct. 2007):


 the proponent of the offered evidence must establish three
general elements, by someone familiar with the habits and
customary practices and procedures for the making of the
documents, before they will be accepted in admissible form: (1)
that the documents were made in the regular course of business;
(2) that it was the regular course of the subject business to make
the documents; and, (3) that the documents were made
contemporaneous with, or within a reasonable time after, the
act, transaction, occurrence or event recorded. . . .

Liberty Acquisitions, LLC v. Daley, 2007C64040 (Adams Co., Colorado,
County Court
), the court held that a summary of a debt prepared by a debt
buyer is not within the business records exception.
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If you need legal help, you should seek legal counsel.

nobk4me

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #8 on: January 10, 2011 10:03:07 PM »
How does one authenticate a Notary? So if notary is a notary and they just forged the name then what?

Check with the secretary of state of the state where the document was notarized.  But, yes, if it's a real notary and they forged the name . . .

What do the signatures look like?  Are they legible, or are they scribbles anyone could make (which was the case in my JDB allegedly OC affidavit)?
Molon labe

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pro se active

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #9 on: January 11, 2011 01:54:28 AM »
It was a scribble!  One thing I did find out in searching Pacer was a case where BOA was plaintiff and the person they called as witness for custodian of records was not called a "bank officer"!!! 
I am not an attorney.  I am just pro se active!

pro se active

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #10 on: January 11, 2011 01:58:02 AM »
did you serve the motion on them?

Yes I did! 
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howucantoo

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #11 on: January 11, 2011 02:41:53 AM »
It was a scribble!  One thing I did find out in searching Pacer was a case where BOA was plaintiff and the person they called as witness for custodian of records was not called a "bank officer"!!!( Google & Bing)  Both NAMES of VP and Notary signer . I did this in my foreclosure case and bingo. Many cases showed up in different states where the two switched positions ! VP became notary & notary became VP !
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

Mischievous Smurfy

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Re: Motion Hearing coming up any advise/what 2 expect
« Reply #12 on: January 11, 2011 03:02:52 AM »
How does one authenticate a Notary? So if notary is a notary and they just forged the name then what?

most states now have a statewide database ... many are on line self service ...

it never hurts to do this ... will just take a little of your time ...

I always advise this but rarely hear the results ... the one time I did ... she found out that the notary had married and changed her name ... the document postdated her marriage/name change (and her official notary name change) ... but used her maiden name.   So ... either she notarized blank documents or someone was using her credentials and didn't know she had married/changed name.  Neither of these two is acceptable.
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why are we requesting validation instead of disputing???  Why Why Why

 

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