Author Topic: Is it Proper to Immediately Motion to Strike Affidavit included in Discovery?  (Read 1726 times)

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Clintonomics

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In searching for answers, we came across this forum. Looks very helpful.

We have what we hope is a simple question for the more experienced.

We were sued by a debt buyer. When they responded to our interrogatories, they included an affidavit (and exhibits) that is full of nothing but hearsay and contradictions - to say the least. Documents were attached to the affidavit that weren't even mentioned in the affidavit.

Is it proper to Motion to Strike their affidavit now? Or are we supposed to wait and object to it if/when they file for Summary Judgment? Or wait and object at trial?

We were thinking it would be great to move to strike now just in case the plaintiff sees we caught on to their and move to dismiss.  That saves a day in court.

Any feedback?  Thanks to all.

cprems

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What State are you in?

How old is this alleged debt?

When did you allegedly make the last payment?

Is the affidavit signed by someone from the law firm or junk debt buyer?
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Clintonomics

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Payment allegedly made within the last 2 years.  No SOL possibilities.

In New York.

The Affidavit of Assignment is signed by an OC representative.

Another affidavit is signed by "Vice President & Custodian of Records" at JDB. Attached to that affidavit (but not specifically mentioned) are statements and an obvious bogus bill of sale.  The JDB's affidavit kills their own bill of sale.

cprems

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Did they list any witnesses who will testify to the records?

Did they provide a credit card agreement during discovery?

Does it contain an arbitration clause?

Have you considered filing for Arbitration?

Arbitration thread here - http://www.debtorboards.com/index.php/board,121.0.html

Hopefully others will be along shortly to point you in the right direction.
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Clintonomics

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Thanks for responding cprems.

We have moved beyond being able to arbitrate and didn't want that option.

We are in the thick of this and arbitration is out.

At this point, we are only confused about when to file a Motion to Strike.  We are pretty clear that the affidavit needs to be struck as it is dreadfully deficient.

But just not certain "when " to file the motion. 

1.  File it now, or
2.  File it only if/when the plaintiff motions for SJ, or
3.  Wait until trial and object to admissibility

Would welcome other thoughts/ideas.

« Last Edit: October 27, 2011 05:19:56 PM by Clintonomics »

cprems

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The only thing I can add is read your RCP.

That should tell you when you can motion to strike the Affidavit.

If you are still in Discovery and they gave you an agreement, arbitration may still be on the table for you.

Have they answered you Discovery yet?
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Clintonomics

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I should have stated, RCP have been read again & again.  But the answer is not obvious.

Lot of little idiosyncracies are not made clear in the RCP.

In the original post, I stated the affidavit came in response to discovery.

cprems

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There was no mention of what they are claiming.

Is it breach of contract, account stated, unjust enrichment?

Depending on HOW they are suing you will depend on what they are supposed to provide in Discovery.

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 I AM the "village idiot" please hold my posts to this standard.

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eagleflight

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I should have stated, RCP have been read again & again.  But the answer is not obvious.

Lot of little idiosyncracies are not made clear in the RCP.

In the original post, I stated the affidavit came in response to discovery.

I'm not in your state, but all rules have been narrowed and defined by state case law.

What I do, find the code number for the definition of motion to strike and look up that number in your state case laws.  See what comes up and look at how it's used and the rulings.

I bet someone somewhere in your state made a motion in opposition of that code based on timeliness, etc.



cgoodwin

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You normally cannot strike anything until it is submitted to the court.  Since discovery is between parties, now would not be the time.  You will need to wait until they try to enter it as evidence at some point to ask for the court to strike it, and then your RCP or case law will kick in as to how and when.  Some courts make you wait until the trial or a Summary Judgement attempt before attempting to challenge evidence.

If the evidence was extremely prejudicial, you could possibly file a motion to preclude, but that would not be the case for just defective affidavit or bill of sale.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

Clintonomics

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Thanks CGoodwin. 

I should have been more clear.  It was presented to the court because I previously filed a Motion to Compel Rogs.  So when they finally answered the Rogs, they submitted everything to the court also.

But I have decided that I will wait until they file Summary Judgment.  No need to give them any heads up.  If you have a different thought after reading this, please let me know.