Page 1 of 2 1 2 LastLast
Results 1 to 10 of 15
  1. #1
    Join Date
    Mar 2012
    Location
    linden, tn
    Posts
    9

    Default Filing a Motion to Strike Affidavit As Hearsay to Dispute Transfer of Debt Ownership

    My question involves collection proceedings in the State of: Tennessee, I am being sued by a JDB . Appears they purchased my loan, as with the Civil Summons served me, they are shown to have this now defaulted loan of $6,295.00. I have researched this, there are some defenses, but an attny friend of mine said it will just boil down to , 1)do they have the signed contract, may not even need orig, just a copy (wow, for real, that's are system?) and 2)make them show assignment, they should be able or I would have a defense there, it was a Capital One auto loan. They will ask if this is my signature (if goes to trial) and I will most likely lose if they have the signed contract and maybe 50/50 at best if they have no signed contract, but just a statement. The JDB affidavit is signed by their custodian, and there is an exemption for hearsay, for them, but there is also something called "account stated" that I would like to know if it would be a good affirmative defense, as I have no financial relationship with the JDB/Portfolio Recovery Associates, nor do I have an "open account" with them, so the hearsay exemption for custodians would not apply, as I understand the law (not sure if Tennessee would recognize this!) and I should be able to ask/file a Motion to Strike that Affidavant as Hearsay, and perhaps move for Summary Judgment if they have no docs/no proof, am I anywhere near correct? help, court is 2 weeks from now!

  2. #2
    Join Date
    Sep 2010
    Posts
    9,946

    Default Re: Will a Motion to Strike Affidavit As Hearsay from a Jdb Work in Tennessee Courts

    The copies are admissible, unless you have some evidence that shows they may not be true. Yes they will have to show that they have been assigned the contract and that the original debt existed. The affidavit isn't hearsay at this point. It's just the equivalent of testimony in a written motion. If you go to court, someone will have to testify as to the contents of the affadavit (if it's the person who made it originally, hey can just affirm it, otherwise they'll have to give testimony/evidence as to what it says).

    You don't need an account or relationship with the JDB. They have a legitimately assigned contract (presumably) which makes them the same as the person you took the contract out with originally.

    Do you have any legitimate defense in:

    1. You didn't have the original loan?
    2. You have some reason to believe the debt wasn't sold
    3. That SOL has expired?
    4. That you paid off the loan?

    You say this was a car loan? What was the outstanding balance versus the value of the car at the time it was repo'd?

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    75,010

    Default Re: Filing a Motion to Strike Affidavit As Hearsay to Dispute Transfer of Debt Owners

    Hearsay, in simple terms, is an out-of-court statement being offered as proof of the matter asserted in the statement. However, there's a hearsay exception for records kept in the ordinary course of business, and when that exception is applicable it's usually a very simple matter for a party to establish that the record they want to admit is an ordinary business record. That usually simply means having the custodian of the records describe the nature of the record, that it's kept in the ordinary course of business, that the record at issue is in their files, and that the copy offered to the court is the same record found in their files. Whether or not you could support an argument that the record includes false information is a separate issue from its categorization as a business record (or whether it falls under another hearsay exception).

  4. #4
    Join Date
    Mar 2012
    Location
    linden, tn
    Posts
    9

    Default Re: Will a Motion to Strike Affidavit As Hearsay from a Jdb Work in Tennessee Courts

    Thank you for your response. I do not have any legitimate defenses. I have a question about your opinion about the affadavit, the affidavit is attached to the Summons, but it is from the JDB's custodian, not the original creditor/Capital One, so then I can request that JDB's custodian testify (she is in VA)? Is that correct, or did I miss understand? Also, I have conflicting account stmts from Cap 1, bef they sold it, they were asking for 7k, saying that was amount owed.The Summons and letter from the JDB attny says $6175.00. I have 2 stmts that are from Cap 1, that are post the repo sale, and the sale of car and repo charges were already accounted for, and they are 225.00 apart, and only 2 weeks between the stmt dates. Could I possibly have a defense for erroneous/sloppy accounting, thereby bringing into question, exactly "What is owed here by defendent"? Per your last question, stmt fron Cap 1 shows bal. of $15,761.00 , repo sold for $10,200.00 (this is not a bad price, as 18 mos prior I did orig loan for $13,818.00 w/28k mi, had 48k mi at repo, I was a car salesman, purchased it from my then current employer, which had I not refinanced with Cap 1, may could have had an affirmitive defense of "undue influence", bec my job was pretty much on the line, they fired me 2 weeks later, no kidding, their repo expenses were $667.00, bringing the claim to $6228.00. See, even those numbers do not match, lawyer suing for $6,175.00. Thanks, John in Tennessee, facing a General Session Judge. Repo/Stmt summary - 15,761.00 (amt owed) - 10,200.00 (sale of repo) + 667.00 (their repo expenses) = 6,228.00 (amt of claim). Thanks, Mr. Knowitall

  5. #5
    Join Date
    Sep 2010
    Posts
    9,946

    Default Re: Will a Motion to Strike Affidavit As Hearsay from a Jdb Work in Tennessee Courts

    Again, read what I said. The court won't take the affidavit at trial alone. The information in it needs to be affirmed/testified to by someone with knowledge. It doesn't need to be the same person who made it.

    I don't know why you think $225 difference is not justifiable. Your interest and legal expenses continue to mount by each day the debt remains unpaid.

  6. #6
    Join Date
    Mar 2012
    Location
    linden, tn
    Posts
    9

    Default Re: Will a Motion to Strike Affidavit As Hearsay from a Jdb Work in Tennessee Courts

    ok, well then I am toast, chances are they can at the very least produce a copy of my signed contract, so I will go back to negotiating. It is a 6295.00 claim now, I offered 2100.00 two weeks ago, they countered with 3875.00. I have 13 days until Court, this is my second appearance. Gen Sessions judge told me at my 1st appearance,that when I come back for my 2nd time in front of her, it's either with representation, and/or in dispute of this claim. And if in dispute, then a trial date would be set. I don't really have anything to dispute at this point, I'm in check and soon to be checkmate. If you were me would you meet them halfway at 3000.00, I seriously doubt anything less will suffice, I do not want a judgment for 10 years on me, do not have any other significant debt that bankruptcy would be an option. Thanks again!

  7. #7
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,276

    Default Re: Filing a Motion to Strike Affidavit As Hearsay to Dispute Transfer of Debt Owners

    Quote Quoting Mr. Knowitall
    View Post
    Hearsay, in simple terms, is an out-of-court statement being offered as proof of the matter asserted in the statement. However, there's a hearsay exception for records kept in the ordinary course of business, and when that exception is applicable it's usually a very simple matter for a party to establish that the record they want to admit is an ordinary business record. That usually simply means having the custodian of the records describe the nature of the record, that it's kept in the ordinary course of business, that the record at issue is in their files, and that the copy offered to the court is the same record found in their files. Whether or not you could support an argument that the record includes false information is a separate issue from its categorization as a business record (or whether it falls under another hearsay exception).
    That's correct but also, a right to confront is an issue. If it was produced to support a conviction or finding then its still not admissible.
    Melendez-Diaz, Crawford etc...

    If it is not testimonial, then it may be OK...maybe

  8. #8
    Join Date
    Mar 2012
    Location
    linden, tn
    Posts
    9

    Default Re: Will a Motion to Strike Affidavit As Hearsay from a Jdb Work in Tennessee Courts

    i am considering offering 3000.00 to settle a 6295.00 claim. this will be my second appearance bef the judge, the JDB's attny sent a letter offerinf to settle for 3875.00, my 1st offer was 2100.00. this is an auto repo claim, summons was served 10 weeks ago, do you think the JDB's attny will send me proof, a copy of a signed contract from Cap. 1, the orig creditor, I hate to show my hand and offer this, if they have NO proof, and if he refuses, would that indicate that perhaps the JDB/Portfolio Recovery Associates, doesn't actually have it? HELP, cout in 13 days, my 2nd appearance bef the Gen Sessions judge, she told me either to have an attny, dispute it and we go to trial, or settle with this JDB, i blew it by not requesting PROOF when 1st contact by their attny, the whole FDCRA thing and 30 days, I didn't know any better

  9. #9
    Join Date
    Mar 2012
    Location
    linden, tn
    Posts
    9

    Default Re: Filing a Motion to Strike Affidavit As Hearsay to Dispute Transfer of Debt Owners

    i am in General sessions, a 6,295.00 auto repo claim, being sued by a JDB, what about going to trial, and making them prove authenticity of the signed contract (it was assigned, so only OC has pers knowledge as to it's authenticity) and prove chain of custody, from OC to the JDB, can't i request that both custodian of records of OC and JBD testify as the the authenticity and their personal knowledge of this account, it's procedures, oversite and maintance. the evidence has changed hands, isn't a "chain of custody"/assignment of this alleged debt going to be hard, expensive, and time consuming for JDB to prove. Won't they have to fly in their witnesses to testify, or is this only if it were lost in General sessions, and went to Circuit on appeal. Is discovery going to take place in General? Also I never answered their summons, but did appear in Court, judge having us come back in 10 days, I did make an offer of 2100.00, but never admitted to anything (did my offer blow any defenses?) and they counted with 3800.00. Help, am confused

  10. #10
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    14,798

    Default Re: Filing a Motion to Strike Affidavit As Hearsay to Dispute Transfer of Debt Owners

    For $800 you are stressed out? Pay the $3800 and be done.
    Dear Santa. For Xmas this year I want a fat bank account and a slim body. Please don't mix them up again.
    Why do stores in the US have so many undocumented shoppers?

    1. Sponsored Links
       

Page 1 of 2 1 2 LastLast

Similar Threads

  1. Collection Lawsuits: Motion to Strike Affidavit As Hearsay and Summary Judgment
    By lucidpuppy in forum Credit Card Debt
    Replies: 4
    Last Post: 02-22-2012, 02:03 PM
  2. Defenses: Motion to Dismiss vs. Motion to Strike
    By Arazu Toth in forum Civil Procedure
    Replies: 4
    Last Post: 10-10-2011, 08:20 AM
  3. Motions: Motion of Limine or Motion to Strike
    By Eddie10 in forum Civil Procedure
    Replies: 3
    Last Post: 05-04-2010, 03:58 AM
  4. Vacating a Judgment: Affidavit Judgement - Strike or Vacate
    By David A. in forum Judgments
    Replies: 1
    Last Post: 12-03-2009, 06:36 AM
  5. Filing A Pro Se Motion/Affidavit In Support Of Motion
    By cls0113 in forum Child Custody and Visitation
    Replies: 1
    Last Post: 01-31-2008, 04:17 PM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 
Forum Sponsor
Stop Collection Abuse
Fight back against abusive debt collectors. Easy to use letters and forms.




Untitled Document