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Old 11-05-2010, 02:55 PM
 
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I have been served a Motion for Summary Judgment with an Affidavit (Credit Card Collections, possibly by Original Creditor). The affidavit claims personal knowledge of the processes by which the Plaintiff keeps or maintains it records...but not personal knowledge of the actual account or Defendant (me). The affiant states he is an "authorized agent" of the Plaintiff, but does not state if he is an employee. Heck, isn't the law firm an agent of the Plaintiff?

From what I've gathered, I need to:

File a Motion to Strike the Affidavit
File a Sworn Denial or Affidavit
File a Motion In Opposition to Plaintiff's MSJ (is that right?)
Subpoena the Affiant (the person who swore/wrote the Affidavit)
Subpoena the Affiant's employee records

Can anyone point me to a resource to Strike the Affidavit with Ohio case law? I think the statements in the Affidavit are hearsay and based on computer records. Further, the documents attached with the Affidavit are not referenced in the Affidavit...nor are they certified or sworn to.

Please help, the clock is ticking and I can't afford an attorney.

Thank you!
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Old 11-05-2010, 08:59 PM
 
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OK just in case someone other than the OP stumbles across this post:

First, the affidavit is probably ok. This is because of the business records exception to the hearsay rule:

RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) . . . . ///

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Second, you do need an affidavit denying: that the account is correct, that you owe the money, that you refused to pay, etc., etc., etc. Most courts will grant the MSJ if there is not a credible opposing affidavit raising issues of material fact.

Third, its a "memorandum in opposition" to the MSJ, not a "motion." Be sure that the title to your affidavit is mentioned in the memorandum: "Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment with Affidavit of Joe Blow Attached."

Fourth, you don't subpoena the Plaintiff's employees records. You serve a request for production of documents under Civil Rule 34. Subpoenas are for people other than parties

Unless you are pretty sure that the affiant is not really a person qualified to produce business records, which I would doubt, why bother?

Finally, find something wrong with the claim. Recalculate the interest, find charges you say are not yours, object to the payments they show, etc. Put all of that in the affidavit and offer that at the hearing on the MSJ.

(No legal advice intended by this post since I have no idea who posted this or what the facts are, regardless of my eminent qualifications to give same having handled cases like this for 32 years in the Courts of Ohio. )

Last edited by Wilson513; 11-05-2010 at 09:09 PM..
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Old 11-05-2010, 09:14 PM
 
2 posts, read 12,329 times
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Thanks Wilson1010,

I sincerely appreciate the information, it's a big help. There are issues with the affidavit: The amount he swears to be correct and true...isn't. It doesn't identify any documents including the statements or records. He states personal knowledge of the manner and method which the bank maintains its normal business books and records, but nothing about the account (alleged account). And he makes many conclusionary statements based on computer screens and printouts. The interest rate he swears to that he swears is contained in the Customer Agreement actually does not occur in the agreement...the agreement they produced does not even mention an interest rate (no stated APR)...he states a finite number. Also, a search for the affiant's name reveals he is actually an attorney retained by the bank but not an employee. The Affidavit was signed and Notarized in Virginia.

I agree, "Records of regularly conducted activity" are not hearsay...but I have read that swearing to their accuracy without actually seeing the transactions, being there when the contract was signed, etc. is hearsay. Correct me if I'm barking up the wrong tree, but if I waste my time attempting to strike the Affidavit, so be it. The guy is drawing conclusions based on what he sees on a computer screen...how does he even know I am the one who opened the account? Because a computer told him....that my friend sounds like hearsay.

That's a lot to dump about the Affidavit, but I will focus on the Memorandum in Opposition.

Thanks a bunch!
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Old 11-05-2010, 09:20 PM
 
10,139 posts, read 23,784,751 times
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Check your DM.

OK, so move to strike the affidavit. You don,t need any cases, just cite the Civil Rule.

Go to the Supreme Court web site and get the rules. Then get the local rules, very important to comply with the local rule.

If you name the court, Ill post the link.
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Old 12-18-2010, 12:04 PM
 
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Wilson: Can you provide a link to Niles Municipal Court Local Rules?
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Old 12-18-2010, 12:47 PM
 
10,139 posts, read 23,784,751 times
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Quote:
Originally Posted by dunwishin View Post
Wilson: Can you provide a link to Niles Municipal Court Local Rules?

I can't see where Niles has an online resource for its rules. Call the Niles Muni Court Clerk's Office and ask for a copy to be sent to you. That's all you can do.


When in doubt, follow the Trumbull County rules.

PS, DM me next time.
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