One should always be careful of falling victim to using and reusing forms because it may come back to bite you. Many drafters of affidavits start out by having the affiant state something like, “I have personal knowledge of the facts set forth below.” This language by itself may not be sufficient to give anything contained in the affidavit weight, as is demonstrated by the opinion in Vince Poscente International, Inc. v. Compass Bank, issued by the Dallas Court of Appeals.
In that case, Compass Bank obtained a summary judgment on a sworn account under a personal guarantee agreement. Compass supported its motion for summary judgment with an affidavit of Paula Shaw. In the affidavit, Shaw stated she had personal knowledge of the facts. She also stated that she was custodian of records at Compass. She testified that Compass was the owner and holder of the note in question and that the defendants personally guaranteed the debt and then defaulted on paying the note.
On appeal, the defendants challenged the affidavit as conclusory because Shaw had not shown that she was employed by Compass, what her job title was or explain the basis for her personal knowledge. In analyzing the complaint, the court of appeals noted that Shaw did not show how she came to have knowledge by showing that she was employed by Compass, what her job position and responsibilities were and how those duties gave her personal knowledge. Because of those omissions, the court determined that the affidavit was conclusory and amounted to no evidence. Therefore, the court reversed the summary judgment. The court’s opinion may be found here.
Note: If Shaw had merely proven up the records as business records, her affidavit might have been sufficient. But here, she went further to attest to who owned and held the note, to the default on the note, and to acceleration of the note. Nothing in the affidavit shows how she knew any of those substantive facts, therefore more was needed.