Author Topic: "Motion to strike affidavit of debt" Help  (Read 2219 times)

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BR549

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"Motion to strike affidavit of debt" Help
« on: February 08, 2012 04:09:51 AM »
Question. is there anything here I can Motion to Strike ?
Is this heresay since there is no contract provided from the OC to this JDB proving they own it?
any thoughts ?
 
  Nowhere in the following does it state they are intimately familiar and/or aware of the methods of record keeping at the original creditor concerning the debt in question ?
 
   
(name of owner of JBD) being sworn,deposes and he says is the owner of (said JBD), Herein called assignor,which is doing business at (blah blah address), and that the statements representations herein are within his personal knowledge.   

There is due and payable from (my name),(account# blacked out),(SSN# blacked out except for last 4 digits) as of 12/28/2011, the amount of (XXXX.XX) by the terms of the agreement between defendant and original creditor. interest is accruing at the rate of 0 %

This account was originated with ( Said OC) . (a third companies name) purchased this account from (said OC). Said agreement was hereby assigned,transferred set over unto (said JDB) on (8/20/2011) with full power and authority to do and perform all acts necessary for the collection,settlement,adjustment, compromise. Or satisfaction of said claim.

The affiant states that within his personal knowledge, information and belief,there are no uncredited payments, just counter claims or offsets against the said debt, Further, the undersigned acknowledges that in making this assignment.
  the assignor has made a complete assessment of said debt and that (said JDB) is now the owner thereof, and have complete authority to settles,adjust,compromise and satisfy the same and that the assignor has no further interest in said debt for any purpose. 

  Signed by owner of JDB.      Notarized public (XXXXX) of the State of (XXXXX)

znb

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Re: "Motion to strike affidavit of debt" Help
« Reply #1 on: February 08, 2012 04:35:46 AM »
I'm not an attorney, and I have no legal background. Please don't delude yourself into taking my ramblings as legal advice.

My only super power is the ability to read and comprehend information quickly. I wanted it to be something cool like flying or bending spoons with my mind, but I took the hand I was dealt and am making the best of it. ;)

BR549

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Re: "Motion to strike affidavit of debt" Help
« Reply #2 on: February 08, 2012 11:40:08 AM »
ZNB  thanks for the link.
Question. after reading it (awsome stuff) what I'm understanding is to bring this information up in Discovery ?
 I was just served yesterday and this Affidavit was on the very back of the summons.

 I'm a little confused on how I should proceed.

 Do I go after ("chain of custody") in my first Answers/Reply to the Court and the Plaintiff ? 
To get this dismissed right off the bat. 

Any thoughts anyone?   

trueq

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Re: "Motion to strike affidavit of debt" Help
« Reply #3 on: February 08, 2012 02:14:31 PM »
Read this:

http://www.familyandconsumerlaw.com/2010/02/debtors-make-goal-line-stand-and-it.html

And underlying case Palisades vs. Kalal:

http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=46691

Its an excellent primer when an affidavit in a collection case does and does not pass muster.   I've used Palisades case against OC's, JDB's, and collection agencies in court with success.    Since the Palisades ruling in WI in 2010, no affidavits used against me by OC's, JDB's, or collection agencies, stand these days, they always fail to pass the business record muster!
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Fighting Irish

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Re: "Motion to strike affidavit of debt" Help
« Reply #4 on: February 08, 2012 03:23:22 PM »
Read your State's definition of hearsay.

And of business records.

Mine says that business records are only admissible if accompanied by the testimony of a keeper of records.

Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

BR549

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Re: "Motion to strike affidavit of debt" Help
« Reply #5 on: February 09, 2012 03:04:43 AM »
Can't find Missouri "hearsay" definition. Still looking.

But did find the Business records Statutes.

http://www.moga.mo.gov/statutes/C400-499/4900000692.HTM

If I'm reading this Statute correctly, the Affidavit at the first of this thread wasn't in compliance with this State Statute ?

When I received the Summons, This Affidavit didn't have any attachments called for in this Statute.

any thoughts ?
« Last Edit: February 09, 2012 03:09:01 AM by BR549 »

Fighting Irish

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Re: "Motion to strike affidavit of debt" Help
« Reply #6 on: February 09, 2012 05:41:26 AM »
Mr. JDB Owner is NOT the keeper of records.

Whoever was in charge of record keeping on your account at the OC, was.

Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

BR549

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Re: "Motion to strike affidavit of debt" Help
« Reply #7 on: February 09, 2012 12:14:20 PM »
Mr. JDB Owner is NOT the keeper of records.

Whoever was in charge of record keeping on your account at the OC, was.
So therefor this Affidavit is False? IE: counter, Any FDCPA here? 
Grounds for Dismissal (motion to strike) ? 

trueq

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Re: "Motion to strike affidavit of debt" Help
« Reply #8 on: February 09, 2012 01:27:17 PM »
Filing false affidavits in state court is actionable under FDCPA:

http://www.edcombs.com/CM/Custom/9art.new.pdf
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Fighting Irish

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  • Posts: 1988
Re: "Motion to strike affidavit of debt" Help
« Reply #9 on: February 09, 2012 02:09:01 PM »
You don't have to prove that it's false.

You just have to prove that it can't be judged, one way or another, because Mr. JDB Owner doesn't have the knowledge to make his statement.
Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

BR549

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Re: "Motion to strike affidavit of debt" Help
« Reply #10 on: February 09, 2012 06:42:53 PM »
Thank you Trueq and Fighting Irish you guys are big help.

So when I answer the summons I just received Tuesday night.

Including denials and ect.  And Object or Motion to strike this Affidavit when I answer the summons. Should I or can I counter claim FDCPA False information in addtion to my answers of denial? 

Or should I wait until Discovery ?

My goal is to get a Dismissal with Prejudice right off the bat, if I can to this.

Thoughts ?

 

credit