Free Motion for Hearing or Conference - District Court of Arizona - Arizona

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William J. Simon (State Bar No. 001788) [email protected] Sean P. St. Clair (State Bar No. 022041) [email protected]
THIRD FLOOR CAMELBACK ESPLANADE II 2525 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016-4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Attorneys For Defendants

IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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NANCY KIM SILVAS, also known as KIM SILVAS, an unmarried individual, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., a Utah corporation, formerly known as Fairbanks Capital Corporation; et. al.,

CV 03-1573 PHX FJM DEFENDANTS' MOTION FOR RULE 104 HEARING RE: TESTIMONY OF DOMINIQUE SILVAS (Assigned to the Honorable Frederick J. Martone)

(Oral Argument Requested) Defendants. Defendants respectfully request an opportunity to examine Dominique Silvas

18 outside the presence of the jury prior to trial to determine the basis of her knowledge of 19 the reason for Wells Fargo's denial of Plaintiff's credit application. 20

Plaintiff attached an Affidavit of her daughter, Dominique Silvas, to her Statement

21 of Disputed Facts and Statement of Additional Facts filed May 25, 2005. The Affidavit 22 indicated that Dominique Silvas will testify as to the basis for Wells Fargo's denial of 23 Plaintiff's loan application. The fact that Wells Fargo denied Plaintiff credit was first 24 disclosed to Defendants on May 25, 2005, when Plaintiff filed the Affidavit of Dominique 25 Silvas. It was never included in Plaintiff's answer to Defendants' Interrogatory requesting 26 each and every fact giving rise to her calculation that she
Case 2:03-cv-01573-FJM Document 178 Filed 08/15/2005 Page 1 of 2

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incurred $50,000.00 in damages to her credit.1 Further, the discovery cutoff was March 1, 2005. Defendants believe that Dominique Silvas' testimony may fall under Rule 702 (she was never disclosed as an expert) or, in the alternative, that she lacks personal knowledge regarding the basis for Wells Fargo's denial of credit. Therefore, Defendants move for an opportunity to examine Dominique Silvas, prior to trial and outside of the presence of the jury, to determine the basis and admissibility of her testimony pursuant Rule 104(a). RESPECTFULLY SUBMITTED this 15th day of August, 2005. TIFFANY & BOSCO, P.A.

By

s/ Sean P. St. Clair - 022041 William J. Simon Sean P. St. Clair Attorneys for Defendants

CERTIFICATE OF SERVICE X I hereby certify that on the 15th day of August, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

[email protected]
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_____ I hereby certify that on the _____ day of ________________, 2005, I served the attached document by United States mail on the following, who are not registered participants of the CM/ECF System: NONE

By
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s/ Wendy L. Echols Wendy L. Echols

7059-029/282158

A copy of Plaintiff's Answer to Interrogatory No. 5, is attached as Exhibit 1.
Document 178 -2-Filed 08/15/2005 Page 2 of 2

Case 2:03-cv-01573-FJM