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§ § § § § § § § § MOTION TO DISMISS Defendant believes that the Plaintiff has failed to support its motion with a properly-framed affidavit and moves to dismiss complaint based on the following matters of law. According to Texas Rules of Civil Procedure, Rule 166a § (f), “supporting affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” From Countrywide Home Loans v. Rodriquez 9th Dist., 2004-Ohio-4723, we find that “Personal knowledge has been defined as ‘knowledge of factual truth which does not depend on outside information or hearsay.” Defendant asserts that the affidavit submitted by the Plaintiff falls well short of the standard required by Texas Law as well as case law precedent. In Section 1 of the affidavit, the affiant states she is “an “authorized agent” of Plaintiff for the purposes of the affidavit and is “authorized” by Capital One to testify to the matters set forth herein.” She then states “as a result of the scope of my job responsibilities,” I have personal knowledge of the “manner and method” by which Capital One creates an maintains “certain books and records” including computer records of defaulted accounts. Nowhere in this section does the affiant define her job title, state by whom she is employed, nor her qualifications to have personal knowledge of the alleged account. From the opinion in Valenzuela v. State & County Mutual Fire Insurance Co., No. 14-09-00191-CV. July 22, 2010, the Houston Fourteenth Court of Appeals held that a “mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge. The affidavit must explain how the affiant has personal knowledge.” In the Justice Court PR 4 PL 2
of HARRIS County, Texas
Further, in an opinion from Humphreys v. Caldwell, 888 S.W. 2d 469, 470 (Tex .1994), there is Texas Supreme Court authority that an affidavit based on an affiant’s “own personal knowledge and/or knowledge which he has been able to acquire upon inquiry” is fatally defective on grounds that it fails to unequivocally show that it is based on personal knowledge and because it makes no representation that the facts disclosed are true.” Clearly, the affiant in this case falls well short of this precedent. In Section 2 of the affidavit, the affiant makes claims about Capital One books and records and states “each of the Capital One books and records reviewed are made: (1) at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and event; or, (2) by a computer or other digital means...” By making the statement that the books and records reviewed are made by a person other than the affiant herself, hearsay comes into play beyond the Business Records exception because affiant has not established herself as the custodian of records. This is similar to the decision in Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d which found that the “Plaintiff’s affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish their knowledge regarding the manner or methods of the original creditor’s business dealings or record-keeping. It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements may be based. The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant. As for the notarization by the jurat, we find from the Texas Supreme Court decision in Perkins v. Crittenden 462 S.W. 2d at 567-568, that “accordingly, a document bearing a simple “acknowledgement” is not an affidavit. An acknowledgment is merely an admission that the parties signed the documents in question, and does not prove the document contains true and correct Id. factual statements.” Also, this affidavit is similar to the case of Huntington Natl. Bank v. Legard, 9th Dist. No. 03CA008285, 2004-Ohio-323, in which the “affidavit does not identify how many documents are attached, nor does it specifically identify any documents by exhibit letter or number.” Similarly, in Target Natl. Bank v. Enos, 9th Dist. No. 25268, 2010-Ohio-6307, it was found that “because the affidavit that Target Bank introduced did not comply with Ohio Civil Rules of Procedure 56, the other materials attached to Target Bank’s motion were also improper (CR 56) evidence, as they had to be incorporated by reference through the affidavit.” Nowhere in the affidavit submitted by the Plaintiff is there any mention or identification of
any documents by exhibit letter or number, nor does Plaintiff’s affidavit incorporate by reference any other materials or alleged evidence. According to Texas Rule of Evidence, 902 § 10(b), an affiant should be the actual custodian of records and the number and type of documents attached should be made clear. The affidavit submitted by the Plaintiff does neither. Due to the egregious and blatant shortcomings of the aforementioned affidavit submitted by the Plaintiff in this complaint, Defendant asserts that Plaintiff has brought no admissible evidence before the Court as required by Texas Rules of Civil Procedure 166a parts (c) and (f), nor has Plaintiff met the standards required by Texas Rules of Evidence 902 § 10, parts (a) and (b) as well as 803 § (6) and (7). Wherefore, the Defendant prays that this Court dismiss Plaintiff’s complaint with prejudice.
XXXXXXX XXXXXXXX (pro se Defendant)
CERTIFICATE OF SERVICE & VERIFICATION STATE OF TEXAS COUNTY OF HARRIS I hereby certify that a true and correct copy of the foregoing instrument has been served upon all counsel of record on this 30th day of August, 2012. By signing this document, I hereby swear or affirm, subject to the penalty of perjury, that the information is true and correct to the best of my knowledge
_______________________________ XXXXXXX XXXXXXXXX, Defendant