Need help to prepare for trial. Affidavit and Bill of Sale from Midland

[frfpatty]

These are the documents I received from JDB after requesting them in discovery.

This is titled Verification as to Responses

I, xxxxxxxxxxx, depose and state that I am authorized to make this verification on behalf of Midland Funding LLC. I have read the foregoing Plaintiff's Responses to Defendant's Interrogatories and know the contents thereof. To the extent that I have personal knowledge of the factual information contained therein, the same are true and correct. Isofar as said facts are based on a composite of information from computerized records, I do not have personal knowledge concerning all of the information contained in said responses, but I am informed and believe that the information set forth therein for which I lack personal knowledge is true and correct.

CAn anybody offer some comments on this affidavit?

Also they sent me the Bill of sale where they describe the sale of Receivables but no accounts or account numbers are specified and they back up this bill with the affidavit of sale where the vice president of the original creditor states that a pool of charged off accounts were tranferred to Midland.
Again no specificity of account numbers just a generalization.
Then they have another lawyer signing a Blanket Certificate of Conformity were he certifies that the notary that certifies the affidavit did actually take it.

So my question is, do these documents pass the test for hearsay for business records?

[BV80]

You bet they're hearsay. I take it the computerized records were the credit card statements? The affiant admitted she had no personal knowledge of the information contained the computerized statements. In other words, she only has personal knowledge of the information given to her by Midland.

The bill of sale is the typical generic document. It only proves that Midland claims to have purchased some accounts from the OC. Is it notarized? If not, unless they have an affidavit from the OC stating the document is real, there's only Midland's word that it's an authentic bill of sale.

Since you're in NJ, read the links included in this thread:

P&P Defeated in Defendant's Motion for Summary Judgment

[Coltfan1972]

Originally Posted by frfpatty

I, xxxxxxxxxxx, depose and state that I am authorized to make this verification on behalf of Midland Funding LLC.

Translation- I work for Midland Funding.

Originally Posted by frfpatty

I have read the foregoing Plaintiff's Responses to Defendant's Interrogatories and know the contents thereof.

Translation- I can read.

Originally Posted by frfpatty

To the extent that I have personal knowledge of the factual information contained therein, the same are true and correct.

Translation- I know very little about this, but the very little I do know is true.

Originally Posted by frfpatty

Isofar as said facts are based on a composite of information from computerized records.

Translation- We have computer records and information from computer records.

Originally Posted by frfpatty

I do not have personal knowledge concerning all of the information contained in said responses

Translation- Some things stated I know about, some things stated I don't know about.

Originally Posted by frfpatty

but I am informed and believe that the information set forth therein for which I lack personal knowledge is true and correct.

Translation- I was told by somebody the information is correct so I believe it's correct.

Example-

John Doe sees Bigfoot.

John Doe then tell Jane Doe he saw Bigfoot so Bigfoot is for real. Furthermore, Bigfoot is 10 feet tall and about 800 pounds with black fur. John Doe swears to Jan Doe he is telling the truth.

Jane Doe tell Susie Doe there really is a Bigfoot and Bigfoot is 10 feet tall, 800 pounds and has black fur.

Susie Doe asks Jane Doe why she is so confident there is a Bigfoot. Jane Doe tells Susie Doe, because she believes what John Doe told her.

Originally Posted by frfpatty

CAn anybody offer some comments on this affidavit?

Yes, It's garbage, unless you believe in Bigfoot.

Originally Posted by frfpatty

Also they sent me the Bill of sale where they describe the sale of Receivables but no accounts or account numbers are specified

Translation- We bought an ass load of alleged charged off and defaulted debts and accounts. Yours is in there somewhere with what we bought. Don't believe us, just ask us.

Originally Posted by frfpatty

and they back up this bill with the affidavit of sale where the vice president of the original creditor states that a pool of charged off accounts were tranferred to Midland.

Translation- Here is the proof we bought an ass load of alleged charged off and defaulted debts and accounts and once again, yours is in there somewhere with what we bought. And again, don't believe us, just ask us.

Originally Posted by frfpatty

Then they have another lawyer signing a Blanket Certificate of Conformity were he certifies that the notary that certifies the affidavit did actually take it.

Translation- This is a real person that signed the documents, not just some machine spitting them out a thousand at a time.

Originally Posted by frfpatty

So my question is, do these documents pass the test for hearsay for business records?

Not in this lifetime.

[frfpatty]

Hi, thanks for answering this fast. The bill of sale is NOT notarized but the affidavit of sale of account by original creditor is notarized and also they attached a blanket statement from a third party lawyer attesting that the affidavit of sale of account by original creditor was taken by the notary.

Now here is where it becomes interesting and fishy. The persons signing the bill of sale identify themselves as the CFO a fortune 500 company, the Vice president of a Fortune 500 and the president of a delaware credit corp.

I did a google search on the names of the people signing the bill of sale and the Vice president does not show up on the roster of the Fortune 500 company and neither the CFO. The rosters show totally different names. So I ask for the complete list of executives of this corporation and none of the names show up in any of the subsidiaries.
As for the president of the other company, their own website shows a different name for the president.
I checked on the lawyer's name and it is the name of a real lawyer but his info says that he practices family law, wills and divorces.

So whats is your take on this info and do you still think the documents don't pass the hearsay rule for business records.

[frfpatty]

Being that I am getting these excellent answers from you guys, what do you think should be my next step. Should I wait untill the trial date or should I file for summary judgement or a motion to dismiss. Whatever the case is, if you can offer any templates for what I should do next will be highly appreciated.

[racecar]

$1.3 billion to acquire 27 million consumer accounts with a face value of approxilnately $43 billion.
http://www.ftc.gov/os/comments/debtc...2930-00025.pdf
I would use this pdf as an exibit,Just brings a little life to your case. with only a computer printout it may be hard to have personal knowledge of 27 million accounts.

[Beergoggles]

Originally Posted by racecar

$1.3 billion to acquire 27 million consumer accounts with a face value of approxilnately $43 billion.

here is the memo racecar is quoting http://www.ftc.gov/os/comments/debtc...2930-00025.pdf

[racecar]

Counsel's attempt to admit documents under his own certifcation.
I dont think i read that in the post here.Was the affidavit made by the attorney or by an employee of midland.
To constitute competent summary judgment evidence, affidavits must be made on personal
knowledge, set forth facts as would be admissible in evidence and show affirmatively that the affiant is
competent to testify to matters stated therein.

another exhibit the paper that says I do not have personal knowledge concerning all of the information contained in said responses, but I am informed and believe that the information set forth therein for which I lack personal knowledge is true and correct.

Many people learn more through visual stimuli.That means you do need to use a few persuasive visual aids or exhibits in your argument and opening. As they say, seeing is believing.

[Coltfan1972]

Originally Posted by frfpatty

So whats is your take on this info and do you still think the documents don't pass the hearsay rule for business records.

Yes

Read this thread in detail


JDB Affidavit

[BV80]

Originally Posted by frfpatty

Hi, thanks for answering this fast. The bill of sale is NOT notarized but the affidavit of sale of account by original creditor is notarized and also they attached a blanket statement from a third party lawyer attesting that the affidavit of sale of account by original creditor was taken by the notary.

Now here is where it becomes interesting and fishy. The persons signing the bill of sale identify themselves as the CFO a fortune 500 company, the Vice president of a Fortune 500 and the president of a delaware credit corp.

I did a google search on the names of the people signing the bill of sale and the Vice president does not show up on the roster of the Fortune 500 company and neither the CFO. The rosters show totally different names. So I ask for the complete list of executives of this corporation and none of the names show up in any of the subsidiaries.
As for the president of the other company, their own website shows a different name for the president.
I checked on the lawyer's name and it is the name of a real lawyer but his info says that he practices family law, wills and divorces.

So whats is your take on this info and do you still think the documents don't pass the hearsay rule for business records.

The bill of sale is signed by people from 2 different companies? The signers should be from the credit card company and possibly, Midland Credit Management. Are those the 2 companies?

The affidavit by the lawyer attesting that the affidavit of sale of account was taken before a notary is useless. The fact that the notary signed the affidavit of account is good enough for a judge. The lawyer's affidavit wasn't necessary. Midland is simply trying to pile up official looking documents in the hopes that you'll get scared and cave.

Again, so what if they have an affidavit of account? So far, there's only Midland's word that a sale of some accounts took place.

Where's the proof from the OC that the bill of sale is legitimate?

Where's the proof from the OC that your account was included in that sale?

[legaleagle]

As for lawyers swearing to their own evidence, here is some case law:


An attorney's affirmation generally cannot advance substantive proof (Key Bank of Me. v. Lisi, 225 AD2d 669, 669 [2d Dept 1996] ["affirmation of . . . attorney who had no personal knowledge of the facts . . . did not constitute proof in admissible form and it (is) without evidentiary value"]). Citibank, NA v. Martin, 11 Misc. 3d 219 - NY: City Court, Civil Court 2005.

Most of these affidavits are a bluff. So is the notarization; 99% of these guys never saw the documents their notary stamp shows up on. They probably sit in the next cubicle from the people who crank this stuff out in the law firm's name. If I swear on paper that I have personal knowledge that the Patriots won the Super Bowl and Coltfan notarizes it, does Manning have to give back the trophy?

[frfpatty]

The unnotarized bill of sale goes as follows:

For value received and in further consideration of the mutual covenants and conditions set forth in the forward flow receivables purchase agreement dated this xxxxxxxxx by and between general electric capital corp, a delaware corp, ge money bank, a federal savings bank, and retailer credit services ind, a delaware corp(collectively "seller") and midland funding ("buyer"),Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its succesors and assigns, without recourse exceept as set forth in the Notification files, delivered by seller to buyer on October 20, 2009 and as further described in the agreement.

THe people signing this are CFO for gemoney bank, president for retailer credit services and ge capital corp vice president.

The affidavit of sale of account is signed by the Vice president of ge capital corp. So this guy is the only affiant.

NOw I just notice another fishy fact. The account in question was charged off 10/2/09 (as per records). The bill of sale states that the have this agreement on 7/1/2009 and they deliverde the files on 10/29/2009.
Isn't weird that they drafted this agreement before the alleged account was charged off?
Also don't forget that the 3 persons signing this document dont show up on the rosters of the companys they claim to represent.
Also there is no affidavit from retailer credit services. Isn't the chain of assignement broken here by this fact?

[BV80]

A servicer for GE Capital used to be Monogram Retailer Credit Services. Could that be it?

It's possible the officers don't show up on the rosters now because they aren't officers anymore. Google their names only, and see what you come up with.

Yes, I think it's fishy the bill of sale was drafted and signed before the account was charged off.