Winelover

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About Winelover

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  1. @Flyerfan, Good Point!! I will definitely include this on my affidavit - thanks again!!
  2. @Flyerfan, how would I mention that I googled her and found her on MySpace and mention she lists her title as a "cash applicator"??? So, in other words, the case citation must pertain to my specific case?? Since I can't find any for ND, what would you recommend??
  3. @ Spikey, I have looked at Rule 56 probably 100 times and I am definitely going to try and use that to my advantage! The Case citations they listed are Anderson V. Selby, 2005 ND 126, 7, 700 N.W.2d 696 and Good Bird v. Twin Buttes Sch. Dist., 2007 ND 103, 5, 733 N.W.2d 601. I can't tell you enough how much I appreciate your help - thank you!
  4. @ Flyerfan, I checked google, and Gina Vinci is on MySpace. She states that she has been employed at AA for the past 5 years as a "cash applicator"?? in the Accounting Department. I should have been more clear when I typed up the copy of the MSJ - she did attach every document that I listed as separate Exhibits. The "Schedule A" looks like I typed it up. It has a date of 06/2012, 12:00am, then states on the far left Client - Bank of America, then in columns, Acct # from CLT, NAME, Spouse name, and Amount. Then at the bottom, it states "this is the information regarding the consumer, all other consumer information has been redacted for privacy purposes. And then, at the very bottom left side it is stamped AA_1008 Account no.: XX-XXX (not the same account number they listed for me). So, it's pretty generic. I appreciate so much all of the points you listed and will definitely use them-thank you!
  5. I just checked the case citations they listed on the MSJ and it looks like the case is not similar in anyway to mine, so it must be ok to just quote a phrase within the case citation- Yes, No ????? Any thoughts??? I don't think I have ever seen a topic on this forum specifically relating to just case citation's, although they are mentioned alot (if there is one, forgive me - I didn't see it).
  6. They attached the Bill of Sale and Assignment of Loans (does not reference my name or anyones name or any account numbers), a "Schedule A" that looks like a spreadsheet with my name and acct # - everything else is redacted and it's also dated 06/29/2012 while the Bill of Sale is dated November 2011, and the last 9 months of credit card statements, (which indicate charges, and the final payment).
  7. RENEWED MOTION AND NOTICE OF MOTION FOR SUMMARY JUDGMENT 1. Comes now, XXXXX, Attorney for the plaintiff in the above entitled action, and moves the court for judgment herein as prayed for in the complaint. 2. This motion is submitted pursuant to Rule 3.2 of the ND Rules of court and Rule 56 of the ND rules of civil procedure. If you contest the motion, you must serve and file an answer brief within 30 days after service of the plaintiff's brief. If you fail to do so, the court may consider that to be an admission that the motion is meritorious. The motion will be decided on briefs alone unless oral argument is timely requested. 3. the plaintiff moves the court to enter, pursuant to Rule 56 of the ND Rules of civil procedure, a summary judgment in plaintiff's favor for the relief demanded in the complaint on the ground that there is no genuine issue as to any material fact and that the plaintiff is intitled to a judgment as a matter of law. 4. If summary judgment is not rendered in plaintiff's favor upon the whole case or for all the relief asked and a trial is necessary, that the court at the hearing on the motion, by examining the pleadings and the evidence before it and interrogating counsel, ascertain what material facts are and actually and in good faith controverted, and thereupon make an order specifying that the facts that appear without substantial controversy and directing such further proceedings in the action as are just. 5. This motion is based upon the Affidavit in Support of Motion for Summary Judgment in this matter. STATEMENT OF UNCONTESTED FACTS 1. The undisputed facts are outlined in the Affidavit in Support of Motion for Summary Judgment of Gina Vinci, who states as follows: 2. I am a competent person over eighteen years of age. I am the Legal Forwarding Supervisor of AA LLC and an authorized agent for AA LLC with respect to its credit accounts. 3. The scope of my job responsibilites includes the oversight of credit accounts maintained by AA LLC. In the performance of my duties for AA LLC, I am familiar with the manner and method by which AA LLC creates and maintains its normal business books and records, including computer records of its credit accounts. 4. Based upon my personal knowledge of AA LLC's business records and practices for servicing of its credit accounts or those of its predecessor, the contents of this affidavit are true and correct. If called upon and sworn to testify hereto I could and would so competently testify thereto. 5. In the ordinary course of business AA LLC purchases revolving credit accounts, installment accounts and/or other credit lines. 6. In addition to the foregoing, AA LLC, maintains, as a regular practice of its business, computer records of activity on its accounts and/or its predecessor's accounts. it is the regular practice of AA LLC's business that entries may be made in such computer records only by individuals having personal knowledge (from examining account documentation) of the information reflected therein and that such entries made by at or near the time the events reflected in them occurred and/or that it maintains its predecessor's records without alteration. It is also the reular practice of AA LLC's predecessor's business to send monthly statements to the account holders relecting the purchases made, payments received and amounts owing on such accounts. 7. I know the original creditor to be a well-known issuer of credit cards. I know because of my position, experience, and dealings with the original creditor, that the original creditor in this matter must keep records in the ordinary course of business in order to conduct its business. 8. The business records provided by the original creditor are adopted and relied upon by AA LLC in its daily operations. 9. On or about March __, 2005 defendant opened BOA credit card account number XXXXX. A true and correct copy of the Cardholder Agreement is attached. 10. True and correct copies of statements of account sent to Defendant for BOA credit card account number XXXXX are attached. 11. On or about ____, 2009, Defendant made a payment on BOA credit card. This was the last payment made on the account. A true and correct copy of the statement evidencing the payment is attached. 12. On or about ____, 2009, Defendant's BOA credit card XXXX was charged off for a balance of $_____. A true and correct copy of the statement evidencing the charge off balance is attached. 13. Defendant's BOA credit card XXXX was purchases by AA LLL who now owns it. A true and correct copy of the Bill of Sale and Assignment of Loans is attached. Schedule A, evidencing Defendant's individual account information transferred through the assignment, is attached. 14. The just and true balance due and owing to AA LLC by Defendant on BOA credit card XXXX is $___ together with interest of $____ to October 31, 2012 and additional interest thereafter at the rate of 6% per annum. 15. In considering a motion for summary judgment, the court may examine the pleadings, depositions, admisssions, afidavits, interog- atories, and references to be drawn therefrom to determing whether summary judgment is appropriate. A party resisting a motion for summary judgment may not rely simply on the pleadings but must present competent admissible evidence which raises and issue of material fact. Here the plaintiff has met its burden through its affidavit. 16. For the reasons stated, judgment must be rendered for plaintiff for the relief demanded in the complaint. And that is my sad story!!
  8. Wow Spikey - you are fast!!! Thanks!! Ok I will post a copy of their MSJ.
  9. Ok, so I received their response to my RFA's. They pretty much either objected to everything, denied or stated that the request seeks info the defendant already possesses. 2 days later I receieved the "Renewed" MSJ (as expected). I figured they would do that so I have been researching for awhile on how to type up an Opposition to MSJ. I'm fairly confident with what I have come up with (I think!) but I am having a REALLY hard time finding North Dakota case law to cite. I have found some "statements" within a ND case cite that I would like to quote, but then the case does not apply at all to what my case is about. Does the entire case have to apply to mine, or is it ok to just use quotes within a case citation?? I don't know if that makes any sense to anyone the way I just worded that!! I have mainly been doing my research on google scholar and there aren't many debt collection cases for ND, and if I could find any, it didn't even come clost to my situation (No junk debt buyers or 2nd/3rd party). Would it be better to not cite any case law for ND and use other states case law (with an explanation that the defendant realizes that the case citation is not binding precedent on the courts of ND), or just leave case citations off?? I know case citations are important. They are basing their entire case on an employee's affidavit. I am trying to shoot down their bill of sale, the affidavit and the cc statements. Also, is it appropriate to list Defendant's Arguments And Statements of Disputed Facts together, or would it be better to list a statement of disputed facts separate?? I Thanks again for any help or advice., I appreciate everyones help!!
  10. Thanks for catching that Flyerfan and good advice. I made corrections and am putting them in the mail today! Appreciate the help!
  11. Ok, so per Bruno's suggestion, I basically condensed the earlier version and am trying not to be repetetive or ask anything unnecessary but get them to admit that the documents they have provided are a bunch of crap and not credible. Before I started this pro se process, I thought that I was a fairly intelligent person, but I'm really having serious doubts now! I am really trying to learn, understand and apply what everyone is suggesting, but I guess I'm not always comprehending! I for sure do not really understand the Rules of ND Civil Procedure - and do not for sure always know what to attack, much less know how to attack it! Urrrgggh! So here is the revised version - let me know what thoughts are again. Thanks all again for your help - I appreciate it! REQUEST FOR ADMISSIONS Admit that Plaintiff purchases defaulted debts as a regular course of business. ANSWER: Admit that Plaintiff is not the original creditor of the alleged debt which is the subject of this lawsuit. ANSWER: Admit that Plaintiff is not an affiliate or subsidiary of Bank of America. ANSWER: Admit that Plaintiff does not now nor has ever originated records for Bank of America that would be maintained by that company in their regular course of business. ANSWER: Admit that Plaintiff does not calculate or maintain records for the benefit of Bank of America. ANSWER: Admit that Plaintiff does not have an application for an extension of credit from the Defendant. ANSWER: Admit that Plaintiff does not have an application for an extension of credit from the Defendant exhibiting a Signature from the Defendant. ANSWER: Admit that Plaintiff does not have access to all of the records created and maintained by Bank of America that pertain to the alleged account that is the subject of this lawsuit. ANSWER: Admit that Plaintiff has submitted all documentation in Plaintiff’s possession related to the alleged debt which is the subject of this lawsuit. ANSWER: Admit that Plaintiff did not originate the account statements submitted into evidence. ANSWER: 11. Admit that Plaintiff did not calculate and maintain the account statements while they were in the possession of Bank of America. ANSWER: 12. Admit that Plaintiff does not have personal knowledge of the accounting or record keeping methods of Bank of America. ANSWER: Admit that Affiant, Amber Bialkowski is employed by Asset Acceptance, LLC. ANSWER: Admit that Affiant, Amber Bialkowski is not an employee of Bank of America. ANSWER: 15. Admit that Affiant, Amber Bialkowski has never been employed by Bank of America. ANSWER: 16. Admit that Affiant, Amber Bialkowski does not have personal knowledge of the creation of records, record keeping methods, or maintenance of records of Bank of America. ANSWER: 17. Admit that Affiant, Amber Bialkowski does not have access to records created and maintained in the regular course of business of Bank of America while such records are in the possession of that company. ANSWER: 18. Admit that Affiant, Amber Bialkowski never had access to the submitted account statements while they were allegedly in the possession of Bank of America. ANSWER: 19. Admit that Affiant, Amber Bialkowski cannot attest to the accuracy or authenticity of the account statements submitted into evidence. ANSWER: 20. Admit that Plaintiff cannot prove the accuracy or authenticity of the account statements submitted into evidence. ANSWER: 21. Admit that Plaintiff cannot prove the account statements were maintained by a person with personal knowledge of the alleged account before allegedly being acquired by the Plaintiff. ANSWER: 22. Admit that the Bill of Sale from Bank of America to Plaintiff does not reference the name of the Defendant or an account number of the alleged debt that is the subject of this lawsuit. ANSWER: 23. Admit that the Plaintiff does not have proof of service by mail of any letter(s) sent to the Defendant demonstrating an attempt to collect on the alleged debt prior to the service of summons and complaint. ANSWER:
  12. Thank you for replies, advice and encouragement. I am going to mail out my RFA's. I followed BV80's RFA's almost exactly, but there was discussion about them being overkill and since it was posted awhile ago, I would appreciate if they could be critiqued. Please let me know if you think I should add, delete or change anything. In the interest of time and space, I am only listing the questions to admit. (the ones that I mail are typed up in the proper format). 1. Admit that Plaintiff purchases defaulted debts as a regular course of business. 2. Admit that Plaintiff is not the original creditor of the alleged debt which is the subject of this lawsuit. 3. Admit that Plaintiff is not an affiliate or subsidiary of BOA. 4. Admit that Plaintiff does not now nor has ever originated records for BOA that would be maintained by that company in their regular course of business. 5. Admit that Plaintiff does not calculate or maintain records for the benefit of BOA. 6. Admit that Plaintiff does not have an application for an extension of credit from the Defendant. 7. Admit that Plaintiff does not have an application for an extension of credit from the Defendant exhibiting a Signature from the Defendant. 8. Admit that Plaintiff does not have access to all of the records created and maintained by BOA that pertain to the alleged account that is the subject of this lawsuit. 9. Admit that Plaintiff has submitted all documentation in Plaintiff's possession related to the alleged debt which is the subject of this lawsuit. 10. Admit that Plaintiff did not originate the account statements submitted into evidence. 11. Admit that Plaintiff did not calculate and maintain the account statements while they were in the possession of BOA. 12. Admit that Plaintiff does not have personal knowledge of the accounting methods of BOA. 13. Admit that Plaintiff does not have perssonal knowledge of the record keeping methods of BOA. 14. Admit that Affiant, Amber Bialkowski is employed by AA. 15. Admit that Affiant is not an employee of BOA. #should I list her na#e every time??? or just state Affiant???# 16# Admit that Affiant has never been employed by BOA# 17# Admit that Affiant is not now nor has ever been involved in the creation of any records originated by BOA# 18# Admit that Affiant was not involved in the creation of the BOA credit card statements# 19# Admit that Affiant was not involved in the maintenance of the account statements while they were allegedly in the possession of BOA# 20# Admit that Affiant does not have personal knowledge of the creation of records, record keeping methods, or maintenance of records of BOA# 21# Admit that Affiant does not have access to records created and maintained in the regular course of business of BOA while such records are in the possession of that company# 22# Admit that Affiant never had access to the submitted account statements while they were allegedly in the possession of BOA# 23# Admit that Affiant cannot attest to the accuracy of the account statements submitted into evidence by Plaintiff# 24# Admit that Affiant cannot attest to the authenticity of the account statements submitted into evidence by Plaintiff# 25# Admit that Affiant cannot attest that the account statements were maintained by a person with personal knowledge of the alleged account while the statements were allegedly in the possession of BOA# 26# Admit that Plaintiff cannot prove accuracy of the account statements submitted into evidence# 27# Admit that Plaintiff cannot prove the authenticity of the account statements submited into evidence# 28# Admit that Plaintiff cannot prove the account statements were maintained by a person with personal knowledge of the alleged account before allegedly being acquired by Plaintiff# 29# Admit that the Bill of Sale from BOA to Plaintiff does not reference the na#e of the Defendant# 30# Admit that the Bill of Sale from BOA to Plaintiff does not reference the account number of the alleged debt that is the subject of this lawsuit. I have an unlimited amount of discovery requests. I would like to get these mailed out today, so any thoughts will be greatly appreciated.
  13. Sorry about the way that posted, I forgot to preview before I posted!
  14. Thank you usagi555, I understand what you are saying and I am getting ready to send RFA's. Couple of questions: 1) I am using BV80's RFA's and it says "Admit that (affiant who signed the affidavit), etc. etc. Which affiant do I list, the one on the affidavit they sent me first (it was not attached to the summons or complaint, but mailed later), or the affiant on the affidavit in support of motion for MSJ (remember, they for now have withdrawn the MSJ - but another one is probably coming)??? 2) I am still confused and nobody has responded to my question about the fact that Elizabeth MacLean, (I didn't list their real names before, so I probably wasn't real clear), the paralegal from AA responded and answered my requests for POD's on behalf of plaintiff, but a Kenneth Proctor (no title or explanation of who he is) signed the last page and was notarized by a C. Nieman in Michigan. The attorney in ND for the plaintiff also signed it. Doesn't the person who is responding to answers have to be the person who signs/notarizes it???
  15. Thank you for replying Coltfan 1972. The plaintiff withdrew the MSJ to answer my request for POD's, so as of now, there is not any MSJ. I have questions on alot of their answers, but I'm really confused also about the person who signed/notarized all of the answers on the POD's - it wasn't the person who said they were answering on behalf of AA. Is that even legal?