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  1. #1
    Join Date
    May 2010
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    2

    Default Verified Complaint Filed by a Plaintiff With No Personal Knowledge of the Facts

    My question involves small claims court in the state of: TX

    QUESTION: If the complaint in a case is verified (notarized), and the plaintiff signs stating they have personal knowledge of everything in the complaint, but it can be proven that they don't have any personal knowledge, can that alone get the case kicked out?

    DETAILS: I am the defendant in a small claims suit. The plaintiff's complaint is verified (notarized) meaning it is signed under oath, under penalty of perjury. In the notarized portion, the plaintiff signs that "every statement and allegation contained therein is true and correct to [their] personal knowledge."

    In fact, the plaintiff has no personal knowledge whatsoever of anything in the complaint. I can establish that without any problem. What is going to happen at the upcoming hearing is the plaintiff is going to use a witness to testify to all the facts of the case. The plaintiff will not testify at all.

    If the plaintiff was going to testify, they must have personal knowledge or they can't be a witness. (Texas Rules of Evidence) Since they aren't going to testify, though, the only way I might be able to use plaintiff's perjury in my favor is by using the fact that it's the complaint that provides the basis of the whole suit (as opposed to some other kind of affidavit, which wouldn't end the case, it would just allow me to strike the affidavit or the witness's testimony).

    However, I can't figure out if there is a concept, Rule, statute, etc. that I can use to render the case moot, void, etc. based on this.

    Even if you have information relevant to another state--that would be very helpful. Thank you in advance for any help!

  2. #2
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Verified Complained Filed by a Plaintiff With No Personal Knowledge of the Facts

    None of the above.

    First, hearsay is not admissible, even if sworn and notarized. Lots of people think that or an affidavit is admissible, but it is normally not.

    You can't have the complaint voided or anything like that. If it was a major cse, you might be able to go for summary judgment, etc. but NOT in a small claims case as there is no motion practice, discovery, jury trial, etc.

    You'll have to prove the complaint statements are false. Of course, if you can demonstrate that statements made and sworn to in the complaint are false, that will pretty much destroy the credibility of the witness/complainant.

    Although it varies a bit by state, small claims courts have limited jurisdiction, mainly money claims. You can't ask for punitive damages, pain and suffering, etc.

    All affirmative defenses apply, such as statute of limitations, contracts requiring arbitration, collateral estoppel, jurisdiction, etc.

  3. #3

    Default Re: Verified Complained Filed by a Plaintiff With No Personal Knowledge of the Facts

    There's no way to kick out the lawsuit simply because the personal knowledge part of the verification is false.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    16,888

    Default Re: Verified Complained Filed by a Plaintiff With No Personal Knowledge of the Facts

    Notarizing means that the person who signed has proven to the notary that they are who they say they are. Notarizing has nothing to do with the veracity of the statement. The notary's seal neither proves nor disproves anything and cannot be used in and of itself to throw out the case.

  5. #5
    Join Date
    May 2010
    Posts
    2

    Default Re: Verified Complained Filed by a Plaintiff With No Personal Knowledge of the Facts

    Thank you for the replies!

    cbg--I know that the notary seal neither proves or disproves anything. The statement that the Plaintiff swore to under oath is false, and can be proven as such. That's the issue. The verification (notary stamp) proves it was sworn to under oath, under penalty of perjury.

    There is plenty of case law (in TX, anyway) that says when someone swears in an affidavit that they have "personal knowledge" of everything contained in the affidavit, that witness can be easily discredited when it's proven they DON'T have personal knowledge, and therefore lied in their affidavit.

    But since the Plaintiff is not going to testify, I can't use the complaint against them to discredit them. And I can't find anything in code or case law that specifically refers to a situation where the affidavit in question is the original pleading/complaint in a case.

  6. #6
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    72,947

    Default Re: Verified Complained Filed by a Plaintiff With No Personal Knowledge of the Facts

    This is in small claims court? What type of case are we talking about, and is there a rule requiring that a complaint in this type of case be verified? Is this a lawsuit on an account stated, or something similar?

  7. #7
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Verified Complained Filed by a Plaintiff With No Personal Knowledge of the Facts

    The complaint puts you on notice that you are being sued, what you are being sued for and what the demand is. Nothing in a complaint is evidence.

    A complaint can have a statement of facts, but again it is not evidence.

    In a case where you have to file an answer, you can agree with or dispute the facts.

    If the plaintiff is not going to testify, then the plaintiff needs other evidence, such as business records. However, someone has to testify about the business records to establish a foundation to introduce them. The attorney can't testify.

    Not really sure how someone can file a small claims action then not show up to testify. But how would you even know that? It might just be bad intel designed to mislead you. Did the plaintiff write the complaint, or is it by counsel?

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