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Trying to get further clarification on a motion to "Strike

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Trying to get further clarification on a motion to "Strike Plaintiff's Affidavits of Debt". The junk debt buyer has included five "Bill of Sale" documents supposedly creating a chain of assignment for the original debt. There are no Exhibit letters and nothing designating them specifically as "Affidavit of Debt". Can I deal with these as a group by saying they effectively serve as "Affidavits of Debt"? The examples I have only deal with a single document so I'd have to make some changes to deal with them all together.
Submitted: 2 years ago.
Category: Consumer Protection Law
Expert:  Infolawyer replied 2 years ago.
An affidavit of debt would have to include an actual affidavit signed and notarized by a person with knowledge. If the bils of sale stand alone without authentication in this way, they can be challenged as a group in this manner and on this basis. Independent of that if they do not show assignment or sale clearly, that is yet another basis.


If I can clarify anything, of course, ask me


If the accept button is not working, please let me know.
Customer: replied 2 years ago.
Each item is headed "Bill of Sale". The first is from Bank of America (the original card issuer) to a debt buyer and it is signed by a (supposed?) Sr VP of Bank of America and notarized. The second is "Exhibit A, Bill of Sale" from that debt buyer to another debt buyer. It is not notarized. The third is also "Exhibit A, Bill of Sale" from that debt buyer to another debt buyer. It is notarized. The fourth is also "Exhibit A, Bill of Sale" from that debt buyer to yet another debt buyer. It is not notarized. The final is "Exhibit A, Bill of Sale" from that debt buyer to the entity suing me. It is notarized.

Those final two, while they involve a sale from Company C to D to E, are executed on the same date with a "file transfer date" being two days later, but the same date on both. That would seem to be an issue.

Does that clarify more?
Expert:  Infolawyer replied 2 years ago.
That indeed does clarify. I would challenge them as a set, and in doing so point out the specific ommissions and failure to notarize in each including any other discrepencies you find. If there is no affidavit from their client or someone with knowledge about these documents, that is something to raise too!!

If you are satisfied that your question has been answered, please select ACCEPT so that I receive credit for the answer.


If I can clarify anything, of course, ask me


If the accept button is not working, please let me know.
Infolawyer, Lawyer
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Experience: Licensed attorney helping individuals and businesses.
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Customer: replied 2 years ago.
thanks...a final clarification (hopefully):

These are not designated as "Affidavit of Debt" and in fact I'd say the "Exhibit A" on many of them doesn't even relate to this specific case. So when you say "If there is no affidavit from their client or someone with knowledge about these documents" I don't know who their client would be at this point other than themselves. This "chain" is intended to show how they are now the assignee because it's passed down - probably didn't mention they list themselves as "Assignee of Bank of America" as plaintiff.
Expert:  Infolawyer replied 2 years ago.
Someone who works for them who signs an affidavit which is notarized, claims to have personal knowledge of the facts and exhibits, and references them in the affidavit.
Infolawyer, Lawyer
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Customer: replied 2 years ago.
i typed another question and after hitting submit it asked if it was a new question or related to previous. I wanted it to go to you so I hit related, and the question disappeared. Did it happen to do go to you? Or do I need to resend?
Expert:  Infolawyer replied 2 years ago.
Please type it here in reply.
Customer: replied 2 years ago.
Arghh - I was hoping all that went somewhere so I wouldn't have to try to recreate. Oh well.

All of the examples I have of a motion to strike include some version of the following:

4. The affidavit pertains to acts and events that allegedly occurred between Defendant and a third party, Bank of America.
5. At no time was the creator of the affidavit nor any of the original creditors employees present to witness Any alleged acts or creation of the records of transactions occurring between defendant and the [ORIGINAL CREDITORS NAME or PLAINTIFFS NAME].

and

10. Upon Information and belief, the creator of the document in Plaintiff's affidavit is not currently and has never been employed with Bank of America and therefore cannot have personal knowledge of how Bank of America records were prepared and maintained and;

So, given the approach of dealing with them all as a group should I 1) adapt these to apply as a group, 2) repeat these for each individual item, or 3) toss these out and come up with something more general for the group?

Or any other thought on it. :-) Thanks.
Expert:  Infolawyer replied 2 years ago.
That looks good. You want to make it specific to the document itself too. Noting the specific deficiencies with specificity.
Customer: replied 2 years ago.
I'm not sure I understand that response. So repeat these items for each document?
Expert:  Infolawyer replied 2 years ago.
You want to add to your draft specific reference to the items they have provided and the errors with each (eg lack of notary)
Customer: replied 2 years ago.
OK, but 4 of the 5 are not related to Bank of America at all. And this is very specific to just one, being that original.
Expert:  Infolawyer replied 2 years ago.
I would highlight the fact that they are not related which goes to their standing and the claim as a whole.
Customer: replied 2 years ago.
Sorry for being so thick on this but I should keep the draft elements for the BofA and then build on that?
Expert:  Infolawyer replied 2 years ago.
Precisely! Be detailed and specific! Good luck.
Infolawyer, Lawyer
Satisfied Customers: 50048
Experience: Licensed attorney helping individuals and businesses.
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Customer: replied 2 years ago.
I just came across a junk debt buyer fighter attorney site that describes the "Bill of Sale" and the example provided is almost word for word what was included in my case. it also has a separate section on the "Affidavit of Debt", which based on this example, is clearly different. Should I actually change the name of my motion from "Strike Affidavit of Debt" to some other name, just to be sure it doesn't get thrown out just because I haven't asked for the proper thing to strike?
Expert:  Infolawyer replied 2 years ago.
You want to list and name it based on relief you want. For example if there is judgment or default it's a motion to vacate. If there is a pending claim it can be a motion for dismissal and judgment.
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Satisfied Customers: 50048
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Customer: replied 2 years ago.
OK thanks. XXXXX doesn't require an answer - also filing separate motion to dismiss. Summary judgment not an option in Fulton County Magistrate Court.
Expert:  Infolawyer replied 2 years ago.
Take care
Customer: replied 2 years ago.
You are getting paid for each answer right? Would you prefer I move on to someone else with continued questions?

In the initial "Bill of Sale" document from Bank of America, the original creditor, it is listed as an "Account Forward Flow Agreement". There is no actual agreement attached. Are you familiar with these? In the research I've done it appears a Forward Flow Agreement has a set time that it is in place. Do you know if that is correct?

There may be so many issues with this Bill of Sale that I should do one motion focusing on it and another focusing on all the rest. Is that a good move or just keep them all lumped together?
Expert:  Infolawyer replied 2 years ago.
I am happy to continue to answer. I cannot comment on the specific terms of this specific bill of sale without seeing it and reviewing the documents. That is something a lawyer in person would need to do.
Customer: replied 2 years ago.
I understand that you cannot comment on specific terms of a specific bill of sale. My question was more general about an "Account Forward Flow Agreement". Is that not a general type of agreement with generally understood elements, such as a time period that the agreement would be in effect?
Expert:  Infolawyer replied 2 years ago.
They do vary in terms as well so I don't want to comment on their general time frames. It would not be fair to you or responsible of me. If you have a different question, I am here.
Customer: replied 2 years ago.
OK, fair enough.

Then back to whether it might be best to separate the Bill of Sale from the original creditor to the first junk debt buyer from the other four Bills of Sale? Or just keep them all lumped together in one motion?

There are a few specific points (as discussed in previous questions) that are focused on that initial bill of sale, but most points apply to all of them.
Expert:  Infolawyer replied 2 years ago.
I would treat it as one motion as a general rule, but in that motion carve out section, A, B, C etc, with headings to separate each and draw the court's attention. This is so as you have common points and can also get court attention on all in one shot!!
Customer: replied 2 years ago.
Got it, thanks.

Would there be any value in actually not filing this until the trial? Part of the effort here is to try to get the plaintiff to voluntarily dismiss and I doubt they will be able to produce any of the supporting documentation necessary to prove anything. So this would be one tool to try to show them they have a lot of work to do to win this, which I think most of them don't want to do.

However, they could actually have a bunch of documents that give more background, which would then also need to be challenged, and that could take me by surprise at trial. If I wait, they may not have any of this with them and I could win the motion then because they don't have any actual proof.
Expert:  Infolawyer replied 2 years ago.
If you want to apply pressure, I think making the motion before trial is a good avenue. If they produce more documents, it is good to have them in advance of trial and not be surprised.
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Customer: replied 2 years ago.
OK, thanks.

Wanted to check on what I've created as sections/headings for a motion to strike.

"General Issues With All Documents" for things like no name or account number in any bill of sale.

"Initial Bill of Sale" dealing with the original sale from BofA

"Other Bill of Sale Documents" dealing with specifics of the other four

"In Conclusion" hitting things like all five being hearsay.
Expert:  Infolawyer replied 2 years ago.
That is a fine breakdown and helps break down the motion and direct the court's attention!!!


If I can clarify anything, of course, ask me


If the accept button is not working, please let me know.
Infolawyer, Lawyer
Satisfied Customers: 50048
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Customer: replied 2 years ago.
I thought I was done with these, but just came across another possible discrepancy. Do you know anything about the "Executed" date versus the "File Transfer Date" in a "Bill of Sale" between two junk debt buyers (or I guess actually any two entities)?

Each of these bills of sale has an Executed date and a File Transfer Date. On one of the them Executed date is two days after the File Transfer date. On all the others the Executed date is before the File Transfer date.

And on two of them, the Executed date is the same and the File Transfer date is the same. It seems as though one would have to be executed and transferred before the other one could be executed or transferred. But maybe that happens all the time.

Do you know, generally, on either of those?
Expert:  Infolawyer replied 2 years ago.
They cam happen on the same day. That to me is not a problem. But you may want to have them looked over in person locally.
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