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  1. #1
    Join Date
    Aug 2011
    Location
    FL
    Posts
    6

    Default Motion to Strike Affidavit As Hearsay and Summary Judgment

    My question involves collection proceedings in the State of: FL

    I'm in the middle of a lawsuit with a JDB for BofA. Their flimsy unnamed affidavit bill of sale seems to be hearsay (it was a volume sale robo-signed one-page document that has neither my name, signature or account#) and I'm arguing lack of privity as they have no contract and affiant has no personal knowledge.

    I have more details if need be, thanks to jk and aaron, for your replies before.

    Update*
    I answered summons, got a hearing, motion to dismiss granted, disposed by judge, then plaintiff amended complaint, now I'm answering their amended complaint with "Objection. Hearsay. Previous conditions have not been met or waived," to all but my name and address.

    Should I motion to strike affidavit, or motion for summary judgement for lack of privity and hearsay?

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    74,861

    Default Re: Motion to Strike Affidavit As Hearsay and Summary Judgment

    I expect that they're submitting the bill of sale as a record kept in the ordinary course of business.

    What makes you believe that the bill of sale is not genuine? What evidence do you intend to submit to the court to support any such argument?

  3. #3
    Join Date
    Aug 2011
    Location
    FL
    Posts
    6

    Default Re: Motion to Strike Affidavit As Hearsay and Summary Judgment

    I'm arguing that they don't have standing to sue, citing hearsay.

    Their affidavit refers to a "Loan" and "Loan Schedule". I am not named in the affidavit as it seems to have been lumped into a volume sale.

    Also, chain of title is not shown between a document that shows Suntrust (not Bank of America as purported) in what may have been a merger or acquisition. The judge told the Plaintiffs attorney "you need to show a relationship between BofA and Suntrust" after Pltffs attny said "Bofa bought Suntrust". Their statement says Suntrust clearly, not BofA.

    Also, I'm arguing nature of averment in whole or in part, cannot be determined as it was given by a third party, who has no personal knowledge, and it cant be ascertained from said affidavit. This violates statute of frauds also, and there is lack of privity. And i have no idea how to subpoena said BofA affiant.

    They havent a signed agreement, just cc statements from OC. And the affidavit has neither my name or acct# on it.

    So there is a chain of title issue and hearsay issue.

    (I guess you're playing devil's advocate legaleagle right?)

  4. #4
    Join Date
    Aug 2011
    Location
    FL
    Posts
    6

    Default Re: Motion to Strike Affidavit As Hearsay and Summary Judgment

    I meant Mr. Know It All, sorry I was replying to another board.

    But what do you think? It seemed the judge was referring to the chain of title which she said she needs to see a "relationship between Bank of America and Suntrust" (because my OC credit statement that they produced says Suntrust.)

  5. #5
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,276

    Default Re: Motion to Strike Affidavit As Hearsay and Summary Judgment

    If you wish to contest jurisidction issues ... that's a motion to dismiss

    If you wish to say that something in their pleadings in insufficient under the law .. that's a motion to strike

    Do not respond the the amended complaint with an "objection". Its either: motion to dismiss, motion to revise (or similar), motion to strike, answer with counter-complaint & affirmative defenses if appropriate. It may be required in this order (ie skip one and you cannot go back - w/exception of dismiss)

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