IN THE COUNTY COURT IN AND FOR __________COUNTY, FLORIDA CIVIL DIVISION ASSET ACCEPTANCE, LLC Plaintiff, -vs- Case No. Defendant. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant, ____________, appearing pro se, in the above entitled matter, and pursuant to Fla. Rule 1.510, Florida Rules of Civil Procedure, submits this DEFENDANT’S OPPPSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, and respectfully requests this Honorable Court to Deny Plaintiff’s Motion for Summary Judgment and to Dismiss with Prejudice. The basis for this motion is more fully stated in the attached Memorandum in Support. MEMORANDOM OF LAW IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT The Complaint alleges that Plaintiff is the successor to an alleged account between Defendant and the alleged original creditor SUZUKI / HSBC RETAIL SERVICES. This Opposition challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim, and lack of standing to sue. This Opposition is made in good faith based on Defendant’s general understanding of the debt buying industry. While not offered as evidence, that understanding is explained here to justify the Defendant's Opposition. Defendant understands that, when a debt buyer purchases an account, it is one of hundreds or thousands of accounts acquired as a pool and the information as to each account is contained in an electronic spreadsheet (such as a Microsoft Excel file) called “placement information”. Placement information is a collection of data elements about an account created after the account is in default and, therefore, cannot be a business record for purposes of the hearsay exception. Debt buyers refer to “media” as the original creditor’s records concerning the account such as the account application, the written contract(s), and the billing statements. Those could be admissible if a competent witness were to lay the requisite foundation under the business records exception to the hearsay rule. In the purchase transaction, debt buyers obtain little or no media and, depending on the terms of the purchase, may be able to request some media. It is this understanding which informs the basis for the opposition as there is a reasonable basis to believe that Plaintiff lacks standing to sue and the evidence to prove the elements of its cause of action. STATEMENT OF MATERIAL FACTS Plaintiff Lacks Legal Standing to Bring and Maintain This Action a. Plaintiff has failed to prove ownership of the alleged account which is the subject of this lawsuit. Plaintiff's Assignment And Bill Of Sale from (Exhibit: Composite Exhibit B) (hereinafter “Assignment and Bill of Sale”) does not reference Defendant or Defendants alleged account number. b. Plaintiff's Assignment and Bill of Sale references the “sale of Accounts and Account documents described in Paragraph 1” of an “Agreement” and “assigns, all of Seller's rights, title, and interest in each and every one of the Accounts described in the Agreement”. c. Plaintiff has not provided the referenced “Agreement” in the Assignment and Bill of Sale which is pertinent to establish: 1. Accounts allegedly sold to Plaintiff. 2. Account documents allegedly sold to Plaintiff. 3. What rights, title, and interest was allegedly assigned to Plaintiff to determine whether plaintiff has the right to bring this action, or collect interest. d. Plaintiff's Assignment And Bill of Sale states Seller “has entered into a Purchase and Sale Agreement as of December xx, 2010” , However, Plaintiff's MOTION FOR SUMMARY JUDGMENT (Uncontroverted Facts) 5. States, Plaintiff purchased the alleged account on or about November xx, 2012, almost two years later. 2. Plaintiff has not complied with Florida Statutes 559.715 3. The Plaintiff’s stated cause of action of account stated is invalid. e. Defendant asserts he has never received alleged account statements from Creditor. f. Plaintiff's exhibit (Plaintiffs Exhibit A) an alleged account statement, dated June xx, 2010 shows an address as ____________________FL. g. Defendant's attached exhibit (Defendant's Exhibit A) SPECIAL WARRANTY DEED dated April xx, 2009 shows that Defendant, ______________'s mailing address is ____________________, FL, in contradiction to Plaintiffs evidence. 4. Defendant has not entered into a written contract with the alleged Creditor as stated in Plaintiff's Legal Argument, Plaintiff has not offered a written contract as evidence. 5. Defendant denies Plaintiffs allegations stated in line 4 of PLAINTIFF'S MOTION FOR SUMARY JUDGMENT. Defendant has not made partial payments on the alleged debt, no admissible evidence has been offered to show a partial payment. 6. Plaintiff's evidence (Exhibit: Composite Exhibit B) alleges Defendant made a partial payment to Plaintiff, ASSET ACCEPTANCE, LLC, on Dec, xx 2010, before Plaintiff purchased the alleged account, on either November xx, 2012 as stated in 5. of Plaintiff's Uncontroverted Facts or in Plaintiff's alleged Assignment And Bill Of Sale dated December xx, 2010. 7. Plaintiff alleges Defendant purchased goods and services on an alleged account in the amount of $6,xxx. 8. Plaintiff's evidence “Account Statements” from Plaintiff's alleged “Business records” (Exhibit: Composite Exhibit B) shows an amount in contradiction to Plaintiff's claims of alleged purchased goods and services made in the amount of $6,______ 9. Plaintiff has not shown a sum certain is due and owed to Plaintiff by Defendant. 10. The Affidavit of A. Bailkowski is insufficient to Support Plaintiff's Motion for Summary Judgment. Legal Argument Defendant, ____________, asserts that Plaintiff, ASSET ACCEPTANCE, LLC, is not entitled to summary judgment because Plaintiff, ASSET ACCEPTANCE, LLC, as moving party, has not met its initial summary judgment burden to show conclusively the complete absence of any genuine issue of material fact and its entitlement to judgment as matter of law. Fla. R. Civ. P. 1.510©; Dade Cnty. School Bd. V. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999). a. The Affidavit of A. Bailkowski is insufficient to Support Plaintiff's Motion for Summary Judgment. Plaintiff has not produced admissible evidence to show that its claims for account stated and money lent are factually correct and show merit. Plaintff's Motion for Summary Judgment relies on the affidavit of A. Bailkowski, a representative of Asset Acceptance LLC. However Mr. Bailkowski's affidavit is not based upon personal knowledge but, instead, is based upon "knowledge and belief". Furthermore, Mr. Bailkowskis affidavit is nothing more than open ended hearsay. Mr. Bailkowski addresses the evidence only as “attached business records” and doesnt testify as to the accuracy or correctness of any one single page. This leaves Plaintiff open to attach whatever he deems to be a “business record”. Rule 1.510(e) of the Florida Rules of Civil Procedure provides in part that: "Supporting and opposing 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." The District Court of Appeals for the 2nd Circuit reversed a summary judgment because the verification of the complaint stated that it was based upon "knowledge and belief." See Ballinger v. Bay Gulf Credit Union, 51 So.3d 528, 529 (Fla. Dist. Ct. App. 2010). The court had acknowledged that "a verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment. However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits." (citing Fla. R. Civ. P. 1.510(e)). Id. The appellate court ruled that "the qualified verification here fails to meet the requirements of rule 1.510(e) and, therefore, should not have been considered by the trial court on a motion for summary judgment." See Ballinger at 530. "Agreeing with Ballinger, the court in Lindgren v. Deutsche Bank National Trust Co., No. 4D12-2568 (Fla. 4th DCA 2013), reversed and remanded for further proceedings a summary judgment of foreclosure. The court held the complaint was based on "information and belief" and not personal knowledge, and was not sufficient to meet the requirements of Florida Rule of Civil Procedure 1.510(e). In Alvarez v. Fla. Ins. Guar. a$$'n, 661 So.2d 1230, 1232 (Fla. 3d DCA 1995), the court deemed a supporting affidavit to be sufficient because the affiant had "specified in detail the actual practices and procedures for mailing out the notices of cancellation and reflected that she was in a position to be familiar with those practices and procedures." A. Bailkowski makes no such specifications in his affidavit. He does not provide any details as to his qualifications or duties that would enable the court to determine his familiarity with the practices and procedures of either Asset Acceptance or SUZUKI / HSBC RETAIL SERVICES. Further, an affidavit does not need to state that it is based on personal knowledge where the affiant is shown to be in a position where he would necessarily possess the knowledge. United Bonding Ins. Co. v. Dura-Stress, Inc., 243 So.2d 244, 246 (Fla. 2d DCA 1971) ("[W]hen an officer of a corporation makes an affidavit in its behalf, it is not necessary that he should state the source of his knowledge."). In his affidavit, Mr. Bailkowski does not identify his position with Asset Acceptance. He merely states that he is "a representative" of the company. This is insufficient to determine if he is in a position that would qualify him to possess personal knowledge of the matters addressed in his affidavit. Based upon the foregoing, Defendant asserts that Mr. Bailkowski's affidavit is insufficient to support Plaintiff's Motion for Summary Judgment, as well as to the authenticity of the attatched business records. b. Plaintiff has not complied with Florida Statutes 559.715 Florida Statutes section 559.715 states: Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default. Plaintiff has not alleged nor has any evidence been submitted that a notice in compliance with Florida Statute Section 559.715 was sent by Plaintiff to Defendant. No statement was made by A. Bailkowski in his affidavit that the required notice had been sent to Defendant, requiring Dismissal with Prejudice. “The Court finds Section 559.715, Florida Statutes, is a condition precedent and applies to those entities receiving assignments of consumer debts and, having failed to comply by providing notice to Defendant within 30 days after assignment, Plaintiff is precluded as a matter of law from bringing this action” Central Ohio Credit Corp v Kevin Lamar Jones 17 Fla. L. Weekly Supp. 190a (4th Judicial Circuit, DuvalCounty, FL 2007) “The Court finds that the written notice required by F.S. 559.715 was not given, and that the giving of such notice was a condition precedent to bringing the Action” Midland Funding LLC v Gladys Hill (2nd Judicial Court Gadsden County, FL 2008) “In the instant case, the Court finds that the Plaintiff's alleged assignment notice was tantamount to no notice at all. The only reasonable interpretation of F.S. 559.715 is that it is a condition precedent. Having failed to comply with F. S. 559.715, the Plaintiff is precluded from bringing this action” UMLIC-VP, LLC vs Reggie Levine 10 Fla. L. Weekly Supp. 336A (Fla. 15th Cir. Ct. 2003) c. The Plaintiff’s stated cause of action of account stated is invalid. Plaintiff brings this action on a theory of an account stated. It is a well established doctrine that when an account is made up and rendered by one person to another, the one who receives it is bound to examine it and state his objections thereto. Roberts v. Carter, 8 Fla. Supp. 167 (1955) The cause of action is often based upon an implied promise. Thus, when an account statement has "been rendered to and received by one who made no objection thereto within a reasonable time," a prima facie case for the correctness of the account and the liability of the debtor has been made. Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 So. 445, 447 (Fla.1904). In Farley v. Chase Bank, U.S.A., N.A. 139 So. 3D 936, 937-938 (Fla. 4th DCA 2010), the court found that “proof of an account stated requires an express or implied agreement between the parties that a specified balance is correct and due and an express or implied promise to pay this balance”. See Merrill-Stevens Dry Dock Co. v. Cornice Express, 400 So. 2D 1286 (Fla. 3D DCA 1981) Also, from Merrill-Stevens Dry Dock Co. v. Cornice Express, 400 So. 2D 1286, 1287 (Fla. 3D DCA 1981) The action for an account stated is an action for a sum certain and where there is no such agreement between the parties, the plaintiff may not recover upon a theory of account stated,A debtor may overcome a prima facie case of an account stated by "meeting the burden of proving fraud, mistake, or error" in the account. Farley v. Chase Bank, U.S.A., N.A. 139 So. 3D 936, 937-938 (Fla. 4th DCA 2010) In the case at bar, Defendant, ____________, has not received alleged account statements to state objections to and finds error in the alleged statements as they do not contain Defendant's current residential mailing address that Defendant has lived at and received mail to since April of 2009, over a year before the alleged statement dated June xx 2010. Therefore, Plaintiff can not bring and maintain a prima facie case of an account stated where the parties have not had an agreement that the alleged balance is correct and due either expressly or impliedly. Furthermore, the action for an account stated is an action for a sum certain. Plaintiff alleges a partial payment was made but has not provided admissible evidence to show the alleged payment was made or the amount of said payment. Plaintiff further alleges a payment was made to Plaintiff before Plaintiff purchased the alleged account. Also, Defendant's alleged final account statement from the creditor does not show any payments were made. Plaintiff's claim is for an amount different than whats shown on the alleged statement and is therefore not a sum certain. Where there is no such agreement between the parties the Plaintiff may not recover upon a theory of account stated. d. Plaintiff Lacks Legal Standing to Bring and Maintain This Action The date given in the Bill of Sale contradicts the date Plaintiff claims to have purchased the alleged account. Plaintiff's affidavit in support of summary judgment does not include a date of purchase of the alleged account number. However, A. Bailkowski does state that "Plaintiff seeks interest at the statutory pre-judgment rate of 4.75% from November xx, 2012 to the date of filing." That date is the same date given by Plaintiff as the date of purchase. As Defendant has observed, November xx, 2012 is not the date provided in the Assignment and Bill of Sale. The Assignment and Bill of Sale submitted by Plaintiff by itself is not sufficient to prove ownership of the alleged account and has not been submitted in its entirety as it refers to documents an, “agreement”, that has not been included in evidence. This “agreement” is necessary for Plaintiff to show it has the legal standing to bring suit as it reports to contain the terms and conditions set forth in the purchase and sale of the alleged account as well as what accounts and account documents were sold. In construing an assignment, the court must determine (1) exactly what has been assigned to make certain that the plaintiff-assignee is the real party in interest, and (2) that a valid assignment has been made. University Creek Associates, II, Ltd. v. Boston American Financial Group, Inc, 100 F. Supp.2d 1337 (S.D. Fla. 1998), related reference, 100 F. Supp. 2d 1341 (S.D. Fla. 1999), related references, 100 F. Supp. 2d 1345 (S.D. Fla. 2000), related reference, 101 F.Supp.2d 1370 (S.D. Fla. 2000) Wherefore, Plaintiff has failed to prove ownership of the alleged account in question and has failed to prove its standing to sue Defendant. Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank, BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010). Summary judgment is only proper when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510©; Volusia County v. Aberdeen at Ormond Beach, L.P.,760 So. 2d 126, 130 (Fla. 2000). “Burden is on summary judgment movant to demonstrate conclusively that nonmoving party cannot prevail; if record reflects existence of any genuine issue of material fact, or possibility of any issue, or if record raises even the slightest doubt that issue might exist, summary judgment is improper.” Cocoa Properties, Inc. v. Commonwealth Land Title Ins. Co., 590 So.2d 989 (Fla. 2nd DCA 1991) WHEREFORE, Defendant, ___________, prays that this Honorable Court deny Plaintiff’s Motion for Summary Judgment and for such other and further relief as this Honorable Court deems necessary and just. Respectfully Submitted, November , 2013 ______________________ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by regular U.S. Mail to RODOLFO J. MIRO, FULTON, FRIEDMAN & GULLACE, LLP, PO BOX 9059, BRANDON, FL, on this _____ day of ___________, 2013.