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  1. #1
    Join Date
    Nov 2010
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    Default When to File Motion to Strike

    My question involves collection proceedings in the State of: Texas

    I received an "Affidavit of Indebtedness and Assignment" from the Plaintiff as part of their "Response to Request for Production", which is part of the discovery process. I want to file a Motion to Strike but am not sure when to file this. Can I file this during the discovery phase or should I wait to see if we actually go to court??

    Thanks in advance for any and all help!


  2. #2
    Join Date
    Feb 2010
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    Default Re: When to File Motion to Strike

    It has not been presented to the court I assume as it is just a reply to your discovery, correct? And what is legally wrong with the document to afford you a motion to strike? If you wish to keep it out before trial a motion in limine would be a proper motion perhaps?

  3. #3
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    Default Re: When to File Motion to Strike

    There is no such thing in discovery. A Motion to Strike is used against the complaint when civil rules of procedure are violated, though usually a motion to dismiss is used. Again, there is no such thing in discovery practice that I am aware of. Perhaps Texas has some different rules, but I doubt it.

  4. #4
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    Default Re: When to File Motion to Strike

    Presumably you asked for proof that the plaintiff is the present owner of the debt, and you received it. The problem now is what? Why do you believe you have a basis to keep their ownership of the debt out of evidence?

    Motions to strike are filed in relation to defective pleadings, not evidence. You can ask for an advance ruling on the admissibility of evidence through a motion in limine.

  5. #5
    Join Date
    Nov 2010
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    9

    Default Re: When to File Motion to Strike

    The Affidavit came from a previous junk debt buyer (Unifund), not the original creditor, and never states the original creditor files were ever looked at. It only attests to how the "records" are handled in general by Unifund. I don't consider this as "proof" that the debt is valid. I have asked repeatedly for copies of the original contract, charges, etc. but the only record ever produced is this Affidavit. This is the Plaintiff's only "evidence" of debt and I wish to contest the usage of this hearsay document as evidence.

  6. #6
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    Default Re: When to File Motion to Strike

    The fact that you don't consider it adequate does not of itself mean that it's not admissible as evidence. If you believe its submission would be in violation of the rules of evidence, as previously indicated you can file a motion in limine. If you believe it's inadequate to document the plaintiff's present ownership of the debt, and that's the only evidence of ownership submitted, consider a motion for summary disposition.

  7. #7
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    Default Re: When to File Motion to Strike

    Quote Quoting Mr. Knowitall
    View Post
    The fact that you don't consider it adequate does not of itself mean that it's not admissible as evidence. If you believe its submission would be in violation of the rules of evidence, as previously indicated you can file a motion in limine. If you believe it's inadequate to document the plaintiff's present ownership of the debt, and that's the only evidence of ownership submitted, consider a motion for summary disposition.
    The OP could also try a motion for evidentary sanctions in a pre-trial motion too?

  8. #8
    Join Date
    Jan 2011
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    2

    Cool Re: When to File Motion to Strike

    how do you know if you are being sued by a junk dealer or the credit card company

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