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browniebrownie141

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Everything posted by browniebrownie141

  1. can someone once again confirm as to " calculating the dates" for MSJ ? http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=437c-438 It states, MSJ hearing date minus 15 days = their Opposition reply. 15 calendar days or 15 week days excludes holiday ? If so, Say January 06 2014 as MSJ hearing date, then their last day to file opposite brief = Dec22 or December 13 ( just passed??) And how about my last day ( I was the one who filed the MSJ) to file reply to Opposition? January 06 2014 minus 5 days,....= December 27 or 31st ?? Don't want to miss the day....IMPORTANT !! Million thanks
  2. I am truly happy for you...especially given with what I am going thru right now...as a defendant.... Congrats ! from the bottom of my heart !!
  3. Below are the "original" Undisputed Statement of Material Facts- I DO would like to keep it.--Why?--they claim the HSBC mastercard acceptance as the copy of the credit application, but no where on that labeled as credit application. AND it does not reference to alleged account #. Pursuant to Code of Civil Procedure, Section 437c( , XXXX (“Defendant”) submits the following Separate Statement of Undisputed Material Facts in support of his Motion for Summary Adjudication: UNDISPUTED FACTS A.Undisputed Facts In Support Of Summary Adjudication On Whether Defendants Had A Duty To Reimburse Plaintiffs. UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The plaintiff does not have and did not have the original/ copy of credit application of the alleged account between HSBC Bank Nevada, N.A. and the defendant 1. Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 11-13 Page 2 line 24-26 Page 3 line 10-13 Page 6 line 20-22 Page 7 line 2-4 Page 7 line 10-12 Page 7 line 20-22 Page 8 line 10-13 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE 2The plaintiff does not have and did not have the original / copy of user agreement of the alleged account between HSBC Bank Nevada, N.A. and the defendant 2. Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 11-13 Page 2 line 24-26 Page 3 line 10-13 Page 6 line 20-22 Page 7 line 2-4 Page 7 line 10-12 Page 7 line 20-22 Page 8 line 10-13 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The plaintiff does not have and did not have the original / copy of the credit application of any account between plaintiff and the defendant. 3. Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 11-13 Page 2 line 24-26 Page 3 line 10-13 Page 6 line 20-22 Page 7 line 2-4 Page 7 line 10-12 Page 7 line 20-22 Page 8 line 10-13 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The plaintiff does not have and did not have any original / copy of user agreement of any account between plaintiff and the defendant. 4. Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 11-13 Page 2 line 24-26 Page 3 line 10-13 Page 6 line 20-22 Page 7 line 2-4 Page 7 line 10-12 Page 7 line 20-22 Page 8 line 10-13 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The plaintiff does not have and did not have original/ copy of any signed contract between HSBC Bank Nevada, N.A. and defendant. 5. Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 11-13 Page 2 line 24-26 Page 3 line 10-13 Page 6 line 20-22 Page 7 line 2-4 Page 7 line 10-12 Page 7 line 20-22 Page 8 line 10-13 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The plaintiff does not have and did not have original / copy of any signed contract between plaintiff and defendant. 6. Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 11-13 Page 2 line 24-26 Page 3 line 10-13 Page 6 line 20-22 Page 7 line 2-4 Page 7 line 10-12 Page 7 line 20-22 Page 8 line 10-13 Plaintiff’s response to requests for admission from defendant, set one, Page 2 line 8-9 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The plaintiff does not have copies and every billing statement for the subject account. 7. Plaintiff’s response to request for admission from defendant, set one Page 3 line 5-6 Plaintiff’s response to interrogatories from defendant, set one Page 3 line 2-7 Page 3 line 16-20 Plaintiff’s response to demand for production of documents from defendant, set one Page 2 line 4-13 Page 3 line 4-13 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The Bill of Sale and Assignment provided by plaintiff does not reference to name, address or any personal info of defendant. And it does not reference to the alleged account number listed in this laswsuit. 8. Exhibit B of Plaintiff’s response to demand for production of documents from defendant, set one. UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE The data page is partial and non conclusive. 9. The data page itself indicated that data was by plaintiff, and defendant’s 3 credit reports from credit rating agencies that show plaintiff accessed defendant’s credit report thus gained defendant’s personal info data.
  4. Pursuant to Code of Civil Procedure, Section 437c(, YYYYYY (“Defendant”) submits the following Supplemental Separate Statement of Undisputed Material Facts in support of his Motion for Summary Adjudication: UNDISPUTED FACTS UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE the plaintiff has no legal standing. The Bill of Sale/ Assignment DOES NOT reference to Defendant’s name. It DOES NOT reference to anyone’s name. It DOES NOT reference to alleged account number listed in this lawsuit. And it DOES NOT reference to any account number. The document is half page, incomplete and inconclusive. 1. See Exhibits: A1 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE 2 the copy of HSBC mastercard acceptance DOES NOT reference to alleged account number listed in the lawsuit. And it DOES NOT reference to any account number. The document is only half page, incomplete, partial and inconclusive. And it does not labeled as copy of credit application. 2. See Exhibits: A2 UNDISPUTED MATERIAL FACT SUPPORTING EVIDENCE Defendant provided a letter from HSBC Bank Nevada, stating another account was closed due to inactivity, no money was owed. 3. See Exhibits: A3
  5. Sorry ! Seems to me the website encountered some tech problem..it has been out. @Anon Amos: Please confirm if this is the way you want me to do? PLEASE TAKE NOTICE that on November 14, 2013 at 8:30 a.m. in Department F-43 of the above-referenced Court, located at 9425 Penfield Ave, Chatsworth, Ca 91311, defendant XXXXXX will move this Court for summary judgment in favor of defendant and against plaintiff. This motion is made upon the grounds that: (1) lack of legal standing and (2) error(s) with cause of action-ok to delete ?, resulting in judgment on the merits in favor of defendant XXXXX because there is no legal standing as to liability or damages, and because there is and there was no contract signed between plaintiff and defendant; the plaintiff does not have and did not have the original /copy of credit application between HSBC Bank Nevada N.A. and the defendant ; the plaintiff does not have and did not have the original/ copy of user agreement between HSBC Bank Nevada N.A. and the defendant; the plaintiff does not have and did not have original/ copy of credit application between plaintiff and defendant; the plaintiff does not have and did not have original/ copy of user agreement between plaintiff and defendant, which the defendant YYYYY is entitled to summary judgment as a matter of law. This motion is based upon this notice, the accompanying memorandum of points and authorities, the pleadings, discovery responses from plaintiff, and records filed in this action, and the separate statement of undisputed facts, the Declaration of YYYYY and exhibits, all of which are attached hereto and served and filed herewith, and such other and further matters as may properly be brought before the court DATED: December 09, 2013 By: _________________ YYYYYYY Pro Se ___________ MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTORY STATEMENT AND PROCEDURAL HISTORY The case #XXXXXX The Complaint was filed on June 24, 2013 and served on July 11, 2013 . The Answer was filed on July 15, 2013. The Complaint alleges that Plaintiff is the successor to an account between Defendant and HSBC Bank Nevada , (the alleged Original Creditor) and that the account is in default. Defendant denies the allegations. Plaintiff claims Cause of Action: Common Count- OPEN BOOK AND ACCOUNT STATED Plaintiff prays for $4,021.28 Plaintiff is not the original creditor. There are a few development events took place since the original motion for summary judgment was filed October 15, 2013, and the defendant believe it is his responsibility to address those and therefore make such amendment. This Motion challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim. LEGAL ARGUMENTApplicable Legal Standards A motion for summary judgment shall be granted if all the papers submitted show there are no trialable issues as to any material facts and the moving party is entitled to judgment as a matter of law. C.C.P. § 437c©. To be "material" for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. Admissions, responses resulting from interrogatories, and production of documents and material fact made by the opposing party in pleadings are particularly appropriate support for a summary judgment motion. Pinewood Investors v. City of Oxnard, 133 Cal. App. 2d 3d 1030, 1034-35 (1982); Savage v. Pacific Gas & Electric Co. v. Savage, 21 Cal. App. 4th 434, 444 (1993). Weil & Brown, Civil Procedure Before Trial, § 10:20, at p.10-7, Rutter Group (2003). STATEMENT AS TO FACTUAL ELEMENTS OF PLAINTIFF’S CLAIM This Motion pierces the pleadings and tests the sufficiency of Plaintiff’s evidence. Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to deny summary judgment. 1. Lack of Legal Standing: There was no contract or agreement signed between plaintiff and the defendant. Although the plaintiff declared that they purchased the alleged account from original creditor, in theory, has the legal standing carries through. But that only exists if the plaintiff has the completed chained of custody of document(s) of the alleged account. Incomplete document set of entire document breaks the chains of custody. The plaintiff does not have and did not have the original/ copy of credit application between HSBC Bank Nevada, N.A and the defendant. The plaintiff does not have and did not the original / copy of the user agreement between HSBC Bank Nevada, N.A and the defendant. The plaintiff does not have and did not have any contract signed between HSBC Bank Nevada, N.A. and the defendant. The plaintiff does not have and did not have any credit application between the plaintiff and defendant. The plaintiff does not have and did not have any user agreement between the plaintiff and defendant. The plaintiff does not have and did not have any contract signed between plaintiff and defendant. The plaintiff further does not have and did not have original /copies of each and every billing statement for the subject alleged credit account. The plaintiff revealed that they do not have documents in its possession, custody or control throughout their response to defendant’s entire ORIGINAL discovery set one. All these, are listed on the separate statement of undisputed facts and declaration of defendant. The Plaintiff, lacks standing to sue under CCP §430.10 ( b ). The Defendant has never had any relationship, business or otherwise, with the Plaintiff. At no time did the Defendant become indebted to the Plaintiff. As such, the Defendant has no obligation to the Plaintiff, monetary or otherwise. There has been no previous financial transactions created between the Plaintiff and the Defendant (Civil Code §1549). There has been no consideration exchanged between the Plaintiff and the Defendant (Civil Code §1605). Because of the lack of existing contract or consideration exchanged, the Defendant owes the Plaintiff nothing. Defendant, has never by words or conduct, promised to pay any alleged stated amount to the Plaintiff. Defendant, by words or conduct, has never agreed that any amount stated in the alleged account was a correct amount owed to the Plaintiff. Defendant has not paid the Plaintiff any or all of the amount claimed to be owed under this alleged account because Defendant owes the Plaintiff nothing Subject the foregoing, the Defendant denies the lawsuit in its entirely. Summary judgment pierces the pleadings and compels submission of evidence to demonstrate that a party can meet its evidential burden. See Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Pursuant to R. 1:4-8(a)(3), the signature of Plaintiffs attorney is a certification that "to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the [Complaint’s] factual allegations have evidentiary support." This Motion challenges whether such evidentiary support exists. To defeat this Motion, plaintiff must submit that "evidentiary support" and demonstrate how it would be admissible and sufficient to carry its burden of persuasion. Id. In the absence of such materials, summary judgment should be granted dismissing the Complaint with prejudice. Under the circumstances of a defendant challenging the sufficiency of plaintiff’s evidence, the absence of an evidentiary record supports this motion. As explained in the Legal Arguments, below, Plaintiff must submit admissible evidence regarding: 1. To bind Defendant, there must be a valid assignment from the Original Creditor to Plaintiff consisting of: a. A valid assignment must contain clear evidence of the intent to transfer the person’s rights; b. The account being transferred must be described sufficiently to make it capable of being readily identified; c. The assignment must be clear and unequivocal; d. There must be notice of the assignment to Defendant; and e. if there were intermediate assignments between the Original Creditor and Plaintiff, proof of 1.a., 1.b., 1.c. and 1.d. as to each assignment. See Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) Adopting the United States Supreme Court’s summary judgment standard announced in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), our Supreme Court concluded that the test for summary judgment is the same as for a directed verdict and for a judgment notwithstanding the verdict. Consequently, while the motion court does not assess the credibility or weight of evidence, it does evaluate, analyze and sift through the evidence, in light of the burden of proof, to determine whether Plaintiff has submitted a sufficient evidential record of facts which, when viewed with indulgent inferences, would be sufficient to establish a prima facie case. At this stage, Defendant has no obligation to submit evidence negating the factual elements of Plaintiffs cause of action. In Celotex, a defendant moved for summary judgment but submitted no evidential materials. The Supreme Court upheld the trial court's grant of summary judgment and expressly rejected the argument that the moving party must establish an evidential record; rather, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof of trial . ... The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Id. at 322-3 (emphasis added). Rather, Plaintiff’s failure to demonstrate evidence to get to a jury mandates summary judgment. This Motion puts Plaintiff to its proofs. Pursuant to R. 1:4-8(a)(3), by signing the Complaint, Plaintiff’s attorney certified that “to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances… the [Complaint’s] factual allegations have evidentiary support.” This Motion compels Plaintiff to present that evidentiary support and subject it to judicial scrutiny. Consequently, if Plaintiff is to defeat this Motion, it must submit its “evidentiary support” and demonstrate how it would be both admissible and sufficient to carry its burden of persuasion. In the absence of such materials, summary judgment should be granted dismissing the Complaint with prejudice. POINT II: The Character and Nature of Plaintiff’s Evidence. As Plaintiff bears the burden of proof, absent such proof, Defendant’s right to summary judgment should be recognized. That right can only be defeated by Plaintiff’s submission of admissible evidence to establish every element of its cause of action. The standards particularly significant to what evidence Plaintiff must submit are the business records exception, Evid.R. 803©(6), the requirement for a witness’s personal knowledge, Evid.R. 602, proper authentication of documents, Evid.R. 901 and Evid.R. 902, and submission of originals, Evid.R. 1002. Read together, these rules require that: 1. Plaintiff produce competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of hearsay materials, and 2. The admissible records be sufficient to carry Plaintiff’s evidentiary burden. A witness is competent to lay the foundation for systematically prepared computer records if the witness (1) can demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record. Also, where the suit is brought by the assignee in his own name, he must aver and prove that the cause of action was in fact assigned to him, therefore, a purported assignee of a credit card account must show by competent evidence the existence of the account, the charges and payments under the account that resulted in the account balance claimed by the assignee, and a valid assignment. Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637(a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet "the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan." 15 U.S.C. § 1632Cd)(I). Consequently, “[a]ttorney affidavits or certifications that are not based on personal knowledge constitute objectionable hearsay.” It is difficult to imagine in a case such as this one – which involves an allegedly defaulted credit card account assigned by the original creditor – that there would be anyone with personal knowledge of the elements of Plaintiff’s cause of action. Instead, if the facts can be proven at all, they would need to be through hearsay business records. Thus, it is essential for Plaintiff to submit the affidavits of witnesses who are competent to admit those records and that the proper foundation be laid. The plaintiff provided a two half page copy of Bill of Sale and assignment,1 piece of computerized data printout (indicating from their own), a half page copy of HSBC Mastercard acceptance, and old account statement(s) The 2 page of Bill of Sale/ assignment (see exhibit A1) does not reference to defendant’s name or the alleged account number. It does not reference to any person’s name or any account number. Not to mention that 2 page Bill of Sale, are looking identical to each other. These 2 page Bill of Sale are simply incomplete, partial, and non-conclusive. More important, because they do not referenced to defendant’s name and the alleged account. More importantly: It does not contain clear evidence of the intent to transfer the person’s rights; it is not a valid assignment. The account being transferred was not described sufficiently to make it capable of being readily identified; The assignment is not clear and unequivocal. There was no notice of the assignment to Defendant; and If there were intermediate assignments between the Original Creditor and Plaintiff, proof of 1.a., 1.b., 1.c. and 1.d. as to each assignment. No proof as to each assignment was provided. Valid Assignment: In Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292 [267 P.2d 16], the California Supreme Court held that "The burden of proving an assignment falls upon the party asserting rights thereunder [citations]. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when the fact is in issue [citation] but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee [citation]." The half page copy of HSBC mastercard acceptance ( see exhibit A2), submitted by plaintiff after the original motion of summary judgment was filed, as stated by the plaintiff indicated in the Meet & Confer letter dated December 3, 2013 from plaintiff’s attorney : stated as the copy of credit application, and thus using this to change their original discovery response. However, the document identified itself with the heading as HSBC mastercard acceptance, no indication or what so ever labeled as the credit application of the alleged credit account. It does not reference to the alleged credit account number named in this complaint. The defendant ask the Court to disregard plaintiff’s changes of discovery response and request the court any decision will be based on their original discovery response. Also, even if the plaintiff could provide such credit application, it is merely an offer, it can not be used as a substitute as the contract between original creditor and defendant; it can not be used as a substitute contract between the plaintiff and the defendant. The other 1 page computer printout, stated clearly, at the bottom, data printed by plaintiff, although it shows some personal info of the defendant, but the fact that it is so partial and did not show the entire document, and more importantly, it does not referenced to any specific document, once again it is partial, incomplete and inconclusive. Financial companies like plaintiff can actually conduct a soft-pull on people’s credit reports, can get the same data information. Refer to defendant’s credit reports from 3 credit reporting agencies, it clearly show the plaintiff accessed the defendant’s credit report, thus, gained access to defendant’s personal information. It is not a secret today, that financial institutions sell consumer’s , member’s personal information and personal financial data to 3rd parties, in fact, from time to time, there are certain news and /or hacker’s news relating to this kind of event. Defendant is not surprised that companies like plaintiff could have access. In fact, another company Capital One whom defendant did not have and do not have any business with them, just received a letter from them, asking about the credit report disputes between the defendant and the plaintiff, the letter and the 3 credit reports will be submitted as exhibits. The plaintiff did not have any other affidavit at this time. Case-law(s) for reference: 1. In Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292 [267 P.2d 16], the California Supreme Court held that "The burden of proving an assignment falls upon the party asserting rights thereunder [citations]. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when the fact is in issue [citation] but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee [citation]." 2. Celotex Corp. v. Catrett, 477 U.S. 317 (1986), our Supreme Court concluded that the test for summary judgment is the same as for a directed verdict and for a judgment notwithstanding the verdict. Consequently, while the motion court does not assess the credibility or weight of evidence, it does evaluate, analyze and sift through the evidence, in light of the burden of proof, to determine whether Plaintiff has submitted a sufficient evidential record of facts which, when viewed with indulgent inferences, would be sufficient to establish a prima facie case. 3. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 4. Beauchamp v. Martin, Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2007 "Martin's testimony that she never entered into an agreement with Beauchamp concerning the ownership of the property, and that she always regarded it as an investment belonging to herself alone, supports the reasonable inference that there was no meeting of the minds and thus no partnership or other agreement. We therefore affirm the trial court's rejection of all claims that were based on the alleged agreement." 5. Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 [24 Cal.Rptr.3d 474]. "A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. [Citation.]" 6. Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292 "The burden of proving an assignment falls upon the party asserting rights there under [citations]." 7. Mission Valley East, Inc. v. County of Kern (1981) 120 Cal.App.3d 89, 97 “An assignment agreement "must describe the subject matter of the assignment with sufficient particularity to identify the rights assigned." 8. Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707 [93 Cal.Rptr.2d 580]. The standing doctrine derives from the statutory requirement that: "Every action must be prosecuted in the name of the real party in interest . . . ." (Code Civ. Proc., § 367.) To have standing to sue, a person, or those whom he properly represents, must "`have a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.' [Citation.]" I.CONCLUSION Based upon the foregoing, defendant YYYYYY, respectfully ask the court to grant this motion, as well as such other relief as may be just and proper. DATED: December 09, 2013 By: XXXXXXXX Pro Se DECLARATION OF YYYYYY, the defendant I, YYYYYYY, declare: 1. I am YYYYYYY, a defendant in this action representing myself. I have personal knowledge of the matters contained in this Declaration and, if called upon as a witness, I could and would competently testify thereto. 2. xx 3. xx 4. xx WHEREFORE, I respectfully ask the court to grant this motion, as well as such other relief as may be just and proper. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 9th December , 2013, at Alhambra, California.
  6. @calawyer and Credator: Yes, I do have a Undisputed Statement of Material Facts (USMF). Here it brings another question: The original one that stated they don't have this and that---ie, contract, credit application between OC & me, between plaintiff & me...Should I still include in? They sent in the HSBC mastercard acceptance copy just around 2 weeks ago, (new evidance , thus still have trialable issues) and stated that's their credir application + sent in supplementary discovery response changing all previous responses, trying to kill my USMF. BUT that half page copy does not labeled itseld as credit application. If I don't include the old one, does that in a way I accepted that BS they stated that document is credit application..? My new USMF then will only have : 1. Bill of Sale/ assignment does not reference to my name nor alleged account #, and it does not reference to any name / #. 2. HSBC mastercard acceptance although reference to my name, BUT does not reference to alleged account # 3. old monthly statement only account for a little over a year, and only account for a portion of balance-- should I include this IN?? 4. a letter from HSBC stating I had another HSBC mastercard accounnt but was closed due to inactivity/ no $ owe--should I include this IN? JDB plaintiff knew it already... If I can keep my old one USMF, should I still type up set Two for the above, and labeled as set TWO USMF ? Million thanks
  7. will be waiting for your feedback... I understand...there is a trialable issue(s), MSJ will be sinked. this is the reason I asked the questions, as i believe i need to address that sure JDB will raise those... thanks
  8. @12:45 am after dinner....have some thoughts... I feel like I am in the cross road here....the amended MSJ is almost finished, waiting for all your comments and changes... The way I see the depo, they are not really needed for MSJ, they want to set me a nice trap, then perhaps using it as cross-MSJ vs. me, or later in trial...you are right, they focus on the signature from that HSBC mastercard acceptance. The good thing is, as I provided a photo from the very beginning in this posting, I also had another HSBC mastercard but was closed due to inactivity. Also, my signature is very different from the one on that acceptance copy. And that acceptance does not reference to alleged credit account #. Also, the Bill of sale / assignment which does not reference to my name nor any name; nor alleged account #; nor any # is significant. Down the road, I want to find out, is that, in what situation(s), can plaintiff ask for depo ? If there are plenty of reason and chance, that I have to face them in depo,....and see how good these JDB lawyers they are? I think they are trying to pressure me, wants me to drop the MSJ, but that won't happened. I rather lose the MSJ, but still push them to work their XXXX. The translator will be good advice, as I truly need 1. He/she would gives me more time to think and understand the questions JDB may have. ooh one thing: let's put that claudesmom behind us. On the record straight, at the end, no matter how the case goes, WIN or LOSE, it's not you guys fault. and I truly don't hold anything or mad or upset at you guys,.....I can't say thank you enough....
  9. Gentlemen & Ladies: Here is my draft amended MSJ: I have 3 questions: 1. I did not state their evidence as unauthenicated, should I do so in this amended or should I wait for their opposition then state so in the reply? 2. Should I bring up the fact that I had another HSBC mastercard account ( but was closed due to inactivity) in the MSJ, I want to since JDB / attorney knew it anyway, helpful or not ? should I ? or not? 3. case law...#3 Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)...I saw it somewhere a big paragraph...but forgot where...anyone can tell me what this case law is about ?? & where can I find the big paragraph again... Non stopped for 6 hours, now I need to eat my dinner....@ 11:20 pm...Please jump in and make comment/ changes...Million thanks Here it is.... PLEASE TAKE NOTICE that on November 14, 2013 at 8:30 a.m. in Department F-43 of the above-referenced Court, located at 9425 Penfield Ave, Chatsworth, Ca 91311, defendant XXXX will move this Court for summary judgment in favor of defendant and against plaintiff. This motion is made upon the grounds that: (1) lack of legal standing and (2) error(s) with cause of action, resulting in judgment on the merits in favor of defendant XXXX because there is no legal standing as to liability or damages, and because there is and there was no contract signed between plaintiff and defendant; the plaintiff does not have and did not have the original /copy of credit application between HSBC Bank Nevada N.A. and the defendant ; the plaintiff does not have and did not have the original/ copy of user agreement between HSBC Bank Nevada N.A. and the defendant; the plaintiff does not have and did not have original/ copy of credit application between plaintiff and defendant; the plaintiff does not have and did not have original/ copy of user agreement between plaintiff and defendant, which the defendant XXXX is entitled to summary judgment as a matter of law. This motion is based upon this notice, the accompanying memorandum of points and authorities, the pleadings, discovery responses from plaintiff, and records filed in this action, and the separate statement of undisputed facts, the Declaration of XXXXX and exhibits, all of which are attached hereto and served and filed herewith, and such other and further matters as may properly be brought before the court DATED: December 09, 2013 By: _________________ XXXXXX Pro Se ___________ MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTORY STATEMENT AND PROCEDURAL HISTORY The case #XXXXXX The Complaint was filed on June 24, 2013 and served on July 11, 2013 . The Answer was filed on July 15, 2013. The Complaint alleges that Plaintiff is the successor to an account between Defendant and HSBC Bank Nevada , (the alleged Original Creditor) and that the account is in default. Defendant denies the allegations. Plaintiff claims Cause of Action: Common Count- OPEN BOOK AND ACCOUNT STATED Plaintiff prays for $4,021.28 Plaintiff is not the original creditor. There are a few development events took place since the original motion for summary judgment was filed October 15, 2013, and the defendant believe it is his responsibility to address those and therefore make such amendment. This Motion challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim. LEGAL ARGUMENTApplicable Legal Standards A motion for summary judgment shall be granted if all the papers submitted show there are no triable issues as to any material facts and the moving party is entitled to judgment as a matter of law. C.C.P. § 437c©. To be "material" for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. Admissions, responses resulting from interrogatories, and production of documents and material fact made by the opposing party in pleadings are particularly appropriate support for a summary judgment motion. Pinewood Investors v. City of Oxnard, 133 Cal. App. 2d 3d 1030, 1034-35 (1982); Savage v. Pacific Gas & Electric Co. v. Savage, 21 Cal. App. 4th 434, 444 (1993). Weil & Brown, Civil Procedure Before Trial, § 10:20, at p.10-7, Rutter Group (2003). STATEMENT AS TO FACTUAL ELEMENTS OF PLAINTIFF’S CLAIM This Motion pierces the pleadings and tests the sufficiency of Plaintiff’s evidence. Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to deny summary judgment. 1. Lack of Legal Standing: There was no contract or agreement signed between plaintiff and the defendant. Although the plaintiff declared that they purchased the alleged account from original creditor, in theory, has the legal standing carries through. But that only exists if the plaintiff has the completed chained of custody of document(s) of the alleged account. Incomplete document set of entire document breaks the chains of custody. The plaintiff does not have and did not have the original/ copy of credit application between HSBC Bank Nevada, N.A and the defendant. The plaintiff does not have and did not the original / copy of the user agreement between HSBC Bank Nevada, N.A and the defendant. The plaintiff does not have and did not have any contract signed between HSBC Bank Nevada, N.A. and the defendant. The plaintiff does not have and did not have any credit application between the plaintiff and defendant. The plaintiff does not have and did not have any user agreement between the plaintiff and defendant. The plaintiff does not have and did not have any contract signed between plaintiff and defendant. The plaintiff further does not have and did not have original /copies of each and every billing statement for the subject alleged credit account. The plaintiff revealed that they do not have documents in its possession, custody or control throughout their response to defendant’s entire ORIGINAL discovery set one. All these, are listed on the separate statement of undisputed facts and declaration of defendant. The Plaintiff, lacks standing to sue under CCP §430.10 ( b ). The Defendant has never had any relationship, business or otherwise, with the Plaintiff. At no time did the Defendant become indebted to the Plaintiff. As such, the Defendant has no obligation to the Plaintiff, monetary or otherwise. There has been no previous financial transactions created between the Plaintiff and the Defendant (Civil Code §1549). There has been no consideration exchanged between the Plaintiff and the Defendant (Civil Code §1605). Because of the lack of existing contract or consideration exchanged, the Defendant owes the Plaintiff nothing. Defendant, has never by words or conduct, promised to pay any alleged stated amount to the Plaintiff. Defendant, by words or conduct, has never agreed that any amount stated in the alleged account was a correct amount owed to the Plaintiff. Defendant has not paid the Plaintiff any or all of the amount claimed to be owed under this alleged account because Defendant owes the Plaintiff nothing Subject the foregoing, the Defendant denies the lawsuit in its entirely. Summary judgment pierces the pleadings and compels submission of evidence to demonstrate that a party can meet its evidential burden. See Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Pursuant to R. 1:4-8(a)(3), the signature of Plaintiffs attorney is a certification that "to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the [Complaint’s] factual allegations have evidentiary support." This Motion challenges whether such evidentiary support exists. To defeat this Motion, plaintiff must submit that "evidentiary support" and demonstrate how it would be admissible and sufficient to carry its burden of persuasion. Id. In the absence of such materials, summary judgment should be granted dismissing the Complaint with prejudice. Under the circumstances of a defendant challenging the sufficiency of plaintiff’s evidence, the absence of an evidentiary record supports this motion. As explained in the Legal Arguments, below, Plaintiff must submit admissible evidence regarding: 1. To bind Defendant, there must be a valid assignment from the Original Creditor to Plaintiff consisting of: a. A valid assignment must contain clear evidence of the intent to transfer the person’s rights; b. The account being transferred must be described sufficiently to make it capable of being readily identified; c. The assignment must be clear and unequivocal; d. There must be notice of the assignment to Defendant; and e. if there were intermediate assignments between the Original Creditor and Plaintiff, proof of 1.a., 1.b., 1.c. and 1.d. as to each assignment. See Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) Adopting the United States Supreme Court’s summary judgment standard announced in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), our Supreme Court concluded that the test for summary judgment is the same as for a directed verdict and for a judgment notwithstanding the verdict. Consequently, while the motion court does not assess the credibility or weight of evidence, it does evaluate, analyze and sift through the evidence, in light of the burden of proof, to determine whether Plaintiff has submitted a sufficient evidential record of facts which, when viewed with indulgent inferences, would be sufficient to establish a prima facie case. At this stage, Defendant has no obligation to submit evidence negating the factual elements of Plaintiffs cause of action. In Celotex, a defendant moved for summary judgment but submitted no evidential materials. The Supreme Court upheld the trial court's grant of summary judgment and expressly rejected the argument that the moving party must establish an evidential record; rather, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof of trial . ... The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Id. at 322-3 (emphasis added). Rather, Plaintiff’s failure to demonstrate evidence to get to a jury mandates summary judgment. This Motion puts Plaintiff to its proofs. Pursuant to R. 1:4-8(a)(3), by signing the Complaint, Plaintiff’s attorney certified that “to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances… the [Complaint’s] factual allegations have evidentiary support.” This Motion compels Plaintiff to present that evidentiary support and subject it to judicial scrutiny. Consequently, if Plaintiff is to defeat this Motion, it must submit its “evidentiary support” and demonstrate how it would be both admissible and sufficient to carry its burden of persuasion. In the absence of such materials, summary judgment should be granted dismissing the Complaint with prejudice. POINT II: The Character and Nature of Plaintiff’s Evidence. As Plaintiff bears the burden of proof, absent such proof, Defendant’s right to summary judgment should be recognized. That right can only be defeated by Plaintiff’s submission of admissible evidence to establish every element of its cause of action. The standards particularly significant to what evidence Plaintiff must submit are the business records exception, Evid.R. 803©(6), the requirement for a witness’s personal knowledge, Evid.R. 602, proper authentication of documents, Evid.R. 901 and Evid.R. 902, and submission of originals, Evid.R. 1002. Read together, these rules require that: 1. Plaintiff produce competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of hearsay materials, and 2. The admissible records be sufficient to carry Plaintiff’s evidentiary burden. A witness is competent to lay the foundation for systematically prepared computer records if the witness (1) can demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record. Also, where the suit is brought by the assignee in his own name, he must aver and prove that the cause of action was in fact assigned to him, therefore, a purported assignee of a credit card account must show by competent evidence the existence of the account, the charges and payments under the account that resulted in the account balance claimed by the assignee, and a valid assignment. Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637(a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet "the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan." 15 U.S.C. § 1632Cd)(I). Consequently, “[a]ttorney affidavits or certifications that are not based on personal knowledge constitute objectionable hearsay.” It is difficult to imagine in a case such as this one – which involves an allegedly defaulted credit card account assigned by the original creditor – that there would be anyone with personal knowledge of the elements of Plaintiff’s cause of action. Instead, if the facts can be proven at all, they would need to be through hearsay business records. Thus, it is essential for Plaintiff to submit the affidavits of witnesses who are competent to admit those records and that the proper foundation be laid. The plaintiff provided a two half page copy of Bill of Sale and assignment,1 piece of computerized data printout (indicating from their own), a half page copy of HSBC Mastercard acceptance, and old account statement(s) The 2 page of Bill of Sale/ assignment (see exhibit A1) does not reference to defendant’s name or the alleged account number. It does not reference to any person’s name or any account number. Not to mention that 2 page Bill of Sale, are looking identical to each other. These 2 page Bill of Sale are simply incomplete, partial, and non-conclusive. More important, because they do not referenced to defendant’s name and the alleged account. More importantly: It does not contain clear evidence of the intent to transfer the person’s rights; it is not a valid assignment. The account being transferred was not described sufficiently to make it capable of being readily identified; The assignment is not clear and unequivocal. There was no notice of the assignment to Defendant; and If there were intermediate assignments between the Original Creditor and Plaintiff, proof of 1.a., 1.b., 1.c. and 1.d. as to each assignment. No proof as to each assignment was provided. Valid Assignment: In Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292 [267 P.2d 16], the California Supreme Court held that "The burden of proving an assignment falls upon the party asserting rights thereunder [citations]. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when the fact is in issue [citation] but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee [citation]." The half page copy of HSBC mastercard acceptance ( see exhibit A2), submitted by plaintiff after the original motion of summary judgment was filed, as stated by the plaintiff indicated in the Meet & Confer letter dated December 3, 2013 from plaintiff’s attorney : stated as the copy of credit application, and thus using this to change their original discovery response. However, the document identified itself with the heading as HSBC mastercard acceptance, no indication or what so ever labeled as the credit application of the alleged credit account. It does not reference to the alleged credit account number named in this complaint. The defendant ask the Court to disregard plaintiff’s changes of discovery response and request the court any decision will be based on their original discovery response.-- OK ?? Because JDB 's attorney changed discovery response trying to wipe out my original undisputed statement of material facts... Also, even if the plaintiff could provide such credit application, it is merely an offer, it does not be used as a substitute as the contract between original creditor and defendant; it does not be used as a substitute between the plaintiff and the defendant. The other 1 page computer printout, stated clearly, at the bottom, data printed by plaintiff, although it shows some personal info of the defendant, but the fact that it is so partial and did not show the entire document, and more importantly, it does not referenced to any specific document, once again it is partial, incomplete and inconclusive. Financial companies like plaintiff can actually conduct a soft-pull on people’s credit reports, can get the same data information. Refer to defendant’s credit reports from 3 credit reporting agencies, it clearly show the plaintiff accessed the defendant’s credit report, thus, gained access to defendant’s personal information. It is not a secret today, that financial institutions sell consumer’s , member’s personal information and personal financial data to 3rd parties, in fact, from time to time, there are certain news and /or hacker’s news relating to this kind of event. Defendant is not surprised that companies like plaintiff could have access. In fact, another company Capital One whom defendant did not have and do not have any business with them, just received a letter from them, asking about the credit report disputes between the defendant and the plaintiff, the letter and the 3 credit reports will be submitted as exhibits. The plaintiff did not have any other affidavit at this time. 2. The Elements of the Plaintiff’s Cause(s) of Action: There are error(s) in plaintiff’s Cause(s) of Action. Plaintiff selected both ACCOUNT STATED and OPEN BOOK as the Cause(s) of Action. It can only be OPEN BOOK, or ACCOUNT STATED, but cannot be both. According to California Civil Jury Instructions (CACI)-#373 Common count: Account Stated, the plaintiff must prove the following: 1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions; 2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff]; 3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff]; 4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and 5. The amount of money [name of defendant] owes [name of plaintiff]. It is clear that: -the plaintiff could not prove defendant owed plaintiff money from previous financial transactions. -there are no verbal or words or conduct nor any agreement between plaintiff and defendant that the amount stated in the account was correct amount owe to plaintiff. -there are no words or conduct, promised to pay the stated amount to plaintiff from defendant. -It is true that defendant has not paid plaintiff any or all amount, but the defendant already declared that he deny any money owed under this account to plaintiff. So it is logical that defendant did not make any payment to plaintiff for the alleged credit account. In fact the defendant challenge the plaintiff provide any proof of payment from defendant for that account. The plaintiff cannot based on the Bill of Sale/ assignment as the document they used for Account Stated because: the document does not reference to the defendant’s name, it does not reference to the alleged account.the document does not reference to any person’s name, it does not reference to any account number. The plaintiff cannot based on the HSBC mastercard acceptance as the document they used for Account Stated because: the document does not reference to the alleged account number, it does not reference to any account number. The plaintiff cannot based on the old account statements as the document they used for Account Stated because: the old account statement still show the account was still open at that time. Also, to be considered as Account Stated, there must a contract and signed/ or any verbal/ conduct agreement between defendant and plaintiff, it would required a closed account, a final balance must be struck, and a single date of execution is required, which, the plaintiff lack all these. The plaintiff cannot based on initial written communication from the debt buyer and advises the consumer of the right to request verification of the debt, the document may not be used as an account stated. Such a letter is called a "1692g notice," in reference to one of the few areas in which federal law applies to consumer-debt defense. The Fair Debt Collection Practices Act specifically prohibits the use of these letters as an admission of liability by failure to dispute; using the letters as an admission of liability is precisely what debt buyers attempt to do. Because 1692g notices may not be used as admissions of liability, they are irrelevant to proving an account stated. Sources and Authority “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.) “The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.) “An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ‘ “it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties.” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786–787 [163 Cal.Rptr. 483], internal citations omitted.) “To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal citations omitted.) According to California Civil Jury Instructions (CACI)-#372 Common count: OPEN BOOK, the plaintiff must prove the following: 1. That [name of plaintiff] and [name of defendant] had (a) financial transaction(s); 2. That [name of plaintiff] kept an account of the debits and credits involved in the transaction(s); 3. That [name of defendant] owes [name of plaintiff] money on the account; and 4. The amount of money that [name of defendant] owes [name of plaintiff]. It is clear that: -the plaintiff has no proof of any financial transaction between plaintiff and defendant. -the plaintiff has no proof that they keep an account of the debits and credits involved in the the transactions. The only documents related to this issue are the old monthly statement of the alleged account, it can only account for period from February 2010 to April 2011, but it cannot accounts for the alleged amount listed in the complaint.--SHould I ?? -the plaintiff has no proof that defendant owes plaintiff money on the account. -the plaintiff has no proof of amount of money the defandant owes plaintiff. -the Bill of Sale/ assignment does not reference to defendant’s name nor the alleged account number; it does not reference to any person’s name or any account number. -the HSBC mastercard acceptance does not reference to the alleged account number, and it does not reference to any account number. Sources and Authority “ ‘A book account may be deemed to furnish the foundation for a suit in assumpsit only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.’ ‘The term “account,” clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955) 132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.) “A book account is defined as ‘a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.’ It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of the book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor. An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d 155], internal citations omitted.) “A book account may furnish the basis for an action on a common count “ when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” ’ A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and footnote omitted.) “The most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.” (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.) “It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a ‘book account’ upon which an action in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].) Case-law(s) for reference: 1. In Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292 [267 P.2d 16], the California Supreme Court held that "The burden of proving an assignment falls upon the party asserting rights thereunder [citations]. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when the fact is in issue [citation] but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee [citation]." 2. Celotex Corp. v. Catrett, 477 U.S. 317 (1986), our Supreme Court concluded that the test for summary judgment is the same as for a directed verdict and for a judgment notwithstanding the verdict. Consequently, while the motion court does not assess the credibility or weight of evidence, it does evaluate, analyze and sift through the evidence, in light of the burden of proof, to determine whether Plaintiff has submitted a sufficient evidential record of facts which, when viewed with indulgent inferences, would be sufficient to establish a prima facie case. 3. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 4. Beauchamp v. Martin, Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2007 "Martin's testimony that she never entered into an agreement with Beauchamp concerning the ownership of the property, and that she always regarded it as an investment belonging to herself alone, supports the reasonable inference that there was no meeting of the minds and thus no partnership or other agreement. We therefore affirm the trial court's rejection of all claims that were based on the alleged agreement." 5. Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 [24 Cal.Rptr.3d 474]. "A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. [Citation.]" 6. Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292 "The burden of proving an assignment falls upon the party asserting rights there under [citations]." 7. Mission Valley East, Inc. v. County of Kern (1981) 120 Cal.App.3d 89, 97 “An assignment agreement "must describe the subject matter of the assignment with sufficient particularity to identify the rights assigned." 8. Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707 [93 Cal.Rptr.2d 580]. The standing doctrine derives from the statutory requirement that: "Every action must be prosecuted in the name of the real party in interest . . . ." (Code Civ. Proc., § 367.) To have standing to sue, a person, or those whom he properly represents, must "`have a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.' [Citation.]" Out of States Case-law(s) : 9. New Jersey (#MRS-L-001265-10 ) New Century Financial Services Vs. David Shaler (2010) Debt buyer has no proof of the debt, the bill of sale is incomplete, without reference to defendant’s name and account number. 10. New Jersey (#A-1313-10T3 ) LVNV funding LLC Vs. Mary Colvell (July, 2011) New Jersey Appellate division reversed motion for summary judgment that was entered in favor of debt buyer. The Court concluded that evidence submitted would not even satisfy the requirement for judgment by default where a creditor must prove more than the merely the total amount remaining unpaid. Instead, the creditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of billing cycle, and the new balance. 11. New Jersey (#DC-004044-11 ) Midland Funding Vs. Cheryl E. Williams (April, 2011) Defendant filed motion for summary judgment, and in opposition, plaintiff submitted it’s own affidavit, but the Court ruled that, even if plaintiff’s affidavit were accepted, there was no proof as to plaintiff’s standing. 12. Georgia ( 300 Ga. APP. 488, 489, 685 S.E. 2nd 433 ) Wirth Vs. CACH, LLC ( 2009 ) The ruling of the lower court in favor of CACH was reversed by the Georgia Courts of Appeals. The reason for that reversal was due to the fact that CACH had not proven tht is was entitled to file suit. Among the deficiencies in CACH’s claim of assignment was the debt buyer’s Bill of Sale which referenced an Appendix A,. The Bill of Sale provided. “Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (“Purchaser”), dated as of August 25, 2006 ( the “Agreement” ), does hereby sell, assign, and transfer to Purchaser, it’s successors and assigns, all right, title, and interest in and to the Accounts listed in the Account Schedule attached ( as may be amended in accordance with the Agreement ) at Appendix A to the Agreement [.]” The Court noted that “ Moreover, there is no contract of Appendix A appended to the Bill of Sale which identifies Wirth’s account number as one of the accounts Washington Mutual assigned to CACH, LLC.” OCGA § 9-11-56©.´ (Citation and punctuation omitted.)Rabun v. McCoy, 273 Ga.App. 311, 615 S.E.2d 131 (2005). ³We review the grant or denial of summary judgment de novo, construing the evidence in favor of the non movant.´ Id.So viewed, the evidence shows that Cach, alleging it was the assignee of Providian, brought this suit to collect the principal amount of $2,310.72 owed on a credit card account agreement allegedly entered into by Wirth and Providian. Attached to the complaint was a standard cardmember agreement entitled ³PROVIDIAN NATIONAL BANK VISA AND MASTERCARD ACCOUNT AGREEMENT.´ Wirth filed an answer to the complaint, in which he asserted that Cach was not the real party in interest (OCGA §9-11-17(a)) and also filed a counterclaim under the Fair Debt Collection Practices Act. 15 USCS §1692e. Thereafter, Cach filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on its complaint. Attached to its motion was an affidavit from Tiffany Corrales, who identified herself as an authorized agent of Cach and business records custodian of its credit card accounts, including that belonging to Wirth. Corrales stated that Providian ³assigned all rights and interests of [Wirth's account] to [Cach].´ Cach also moved for partial summary judgment on Wirth's counterclaim, arguing that Wirth failed to prove any genuine issue of fact to support such claim. Finding ³no genuine issues of material fact and [that] Cach is entitled to judgment as a matter of law,´ the trial court granted Cach's motion for summary judgment and entered judgment in its favor and against Wirth in the principal sum of $2,310.72, plus interest,attorney fees and court costs. The trial court also granted Cach's motion for partial summary judgment and dismissed Wirth's counterclaim with prejudice.Wirth argues that the trial court's order was not supported by any evidence of a written assignment to prove that Cach was the real party in interest. We agree. ³THE DOCTRINE OF PRIVITY OF CONTRACT requires that only parties to a contract may bring suit to enforce it. [Cit.]´ Scott v. Cushman & Wakefield of Ga., Inc., 249 Ga.App. 264, 265, 547 S.E.2d 794 (2001);  OCGA § 9-2-20(a). ³A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.´ (Punctuation and footnote omitted.) Nyankojov. North Star Capital Acquisition, 298 Ga.App. 6, 8, 679 S.E.2d 57 (2009). Further, the writing ³must identify the assignor and assignee.´ (Footnote omitted.) Id. To prevail on its motion for summary judgment, Cach, as movant, has the burden of ³establishing the non-existence of any genuine issue of fact,´ including Wirth's assertion that Cach is not the real party in interest, and ³all doubts are to be resolved against [Cach].´ (Citation and punctuation omitted.) Sawgrass Builders v. Key, 212 Ga.App.138(1), 441 S.E.2d 99 (1994).Here, Cach relies on the Corrales affidavit to show that Providian assigned to it ³all rights andi nterests [to Wirth's account].´ The affidavit, however, fails to refer to or attach any written agreements which could complete the chain of assignment from Providian to Cach. Further, the account invoices upon which Corrales relies reflect that Wirth's account was with Washington Mutual. 13. Georgia (308 GA App. 469, 707 S.E. 2nd 872 875 ) Hutto Vs. CACV (June 2011-12) The Court of Appeals made the same observation in Hutto v. CACV of Colorado and reversed the lower court’s granting of summary judgment to CACV. The Bill of Sale in that case provided. “FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA National Association (“Seller”) and CACV of Colorado, LLC (“ Purchaser”), dated July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchase, it’s successors[,] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit” A” attached hereto and made a part hereof for all purchases.” Furthermore, the Bill of Sale stated that it was assignment of “certain accounts” listed in “Exhibit A”, there is no document attached there to labeled” Exhibit A”, and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts.
  10. @Credator: Yes, I understand you concern--me using e-mail to reply this time. It is especially the case (from my motion to prelude evidance-following they did not response my BOP on time, I made a BIG mistake using fax to them for notification of the motion and sent prematurely, as a result, motion was denied, the judge said to me it was error in rules. ) But this time, if you look at the meet & confer letter, JDB's attorney mention I can call him and provided e-mail, on the basis I am trying to be co-operative as their dealine for their oppostion is approaching fast, I i sent e-mail. The other reason, that they have 1 less excuse to use-- saying I am not co-operative. Of course, it is wise that I would send a letter follow up in certified mail. Thanks for your remainder,...you are great
  11. Gentlemen/ Ladies, I am still writing the AMENDED MSJ as I type here,...most likely will not be ready until 2 more hours,...sorry about that... BUT as soon as I finish typing and upload here let you all look at that FIRST, ....thanks for EVERYTHING !!!
  12. Gentlemen/ Ladies, We are all here, simply to share our thoughts, and experiece...kind of "what would you do if you were in my shoes" ... Clearly,...I am asking the questions, and your feedbacks, thoughts and experience and brain-storm the ideas .... I am not a client here, and you are only kind hearted enough to share,....not giving legal advice(s) Let's put claudesmom behind us,... I truly appreciate your understanding
  13. @Anon Amos: FYI, when I was refering to old account statement, no payment was made/ shown, but 1 monthly statement showed transactions of $600 +/-, which I cannot determine, under this case, was the account "STILL OPEN" they based on, OR it does'nt matter as the alleged credit account is default/closed? I asked this, because I would need the understanding down the long road, and perhaps need to address as well for the amended MSJ !? -Cause of action: open book/ account stated. Now @Claydesmom: Hey Man,...allow me to just say a few words, frankly, OK ! 1. I really have no idea what you are doing on this forum !? If you are playing and pretending/ showing off how well legally edcuated you are, you made the point- Man. As I said, I truly appreciated those have left comment and trying to help me, the fact that you all put your time, at least reading my posting. I mean it, I truly appreciated. 2. Most of the poeple here, are trying to get help, and others are genuinely helping out others. thru this forum. If you are not interested in doing so, ok no problem. 3. But I am not really interested in your constant attack and your "...you can't do this or not that + get a attorney". Again, if you are sincerely in helping out, PLEASE, offer your opinion on how to....if I offended you in the past, I apologize. Go help out others. 4. From my communication with you, and you asked me 2 questions, that I turned around asked you the question: " are you attorney working for original creditors/ or junk debt buyers" ? ....Remember....! Call me stupid, but my stupidity guess-- only those, who would act like the way you do at this forum here . 5. Frankly, although I asked Coltfan and BrunotheJDBkiller questions, and i noticed that you guys had a very different view of things, I am cool with that. I respect you, and I respect others. How they do their case, I have no idea. Remember, I am just trying to get help here. I don't pass judgment on people. But clearly, seems to me, the fact that I asked them for help, offended you. 6. Again, if you are geuinely trying to help me here, please offer your advice on HOW TO....if not, please go away.
  14. Almost done...will be able to share with you on sunday perhaps evening... 1 thing got my eye needs attention: the old account statement-- I remember you said--deal with his later...BUT ... when I took a closer look, ( they provided statement for about 13/14 months --1 statement had some account activity account for around $600 +/- transactions. I dont know it is good or not. For 1 thing: I have been asking them to account for all, but they refused. My understanding is: OPEN BOOK, if that;s all they could account for, that's all they get, not the whole amount ( $4k they are sueing). then, following statement no activity. NOT SURE if that considered as open account/ or closed account. If it is considered as closed account, then account stated clicks in ??
  15. Guys...don't laugh at me....but sure ok... As you all can see,....it's a genuine concern. Thanks for staying late at this hour, especially friday to help me out. One day when the "shXt" is behind me, I will buy you guys a glass of beer, sending gift-card/ pre-paid visa card to you guys for beer, ... I hope I will NOT be the 1st chinese you come across who lose a case,...hoping not me...
  16. BElow is the draft letter I am planning to send JDB's attorney, regarding their Deposition request. I would prefer to send it in e-mail as they indicated that the deadline is fast approaching. Today Friday December 06, 2013 I received your letter dated December 3, 2013. And I am writing to reply your letter immediately. I am writing to you thru e-mail here, as you mentioned that the deadline for plaintiff’s opposition to MSJ is fast approaching, this way, we can save a few days ( instead of document in physical mail). I entrust you understand that I am trying to be co-operative here. I wish that you could notify me with your intention for deposition earlier. Afterall, the MSJ was filed back in mid October, now this is already the 6th of December. Given with such a short notice from you/ your client, the dates that I am available for your deposition is relatively limited. But still I give you 6 available dates when you asked for 3. Here are the date(s) that I am available for your deposition request: December 14th & 15th (10:00 am -5:00 pm) December 21st & 22nd (10:00 am -5:00 pm) December 28th & 29th (10:00 am -5:00 pm) Also, due to the fact that my computer and cellphone does not equipped with web-cam, I will NOT be able to conduct the deposition thru online web-cam. Please also note that I will NOT be able to fly up to San Jose to your law office to conduct your requested deposition, due to personal financial situation. Your law firm will be responsible for sending your staff to Los Angeles here in order to conduct the deposition. We can meet at the Chatsworth courthouse where the complaint was filed. If you think that the Chatsworth location is simply too far from the airport, alternatively: 1. Downtown Los Angeles Stanley Mosk courthouse. (closer to LAX airport for your convenience) 111 N. Hill Street, Los Angeles, Ca 90012 2. Pasadena courthouse. (closer to Burbank airport for your convenience) 300 E. Walnut Ave, Pasadena, Ca 91101 3. Alhambra courthouse (closer to Burbank airport for your convenience) 150 W. Commonwealth, Alhambra, Ca 91801 4. Another factor for your consideration is that I will need a lots of time simply trying to understand each of your deposition question. Afterall, English is not my mother tongue first language, I will need to translate first into Chinese, and most likely, will need to search on internet and other source before answering each of your questions, as there are serious consequence to each of the questions you may bring. Be expected that I may / will need to take perhaps 15-30 minutes and perhaps more time to answer each of your deposition questions. Be expected to spend a lots of time for the deposition session should you decide to come down to Los Angeles for deposition. 5. OR: Simply submit your deposition question list in written format, and I can certainly answer that in a timely manner. As always, a statement: “ I declare under the penalty of perjury under the laws of State of California that the foregoing answers are true and correct” will be included. In fact, if you have a lots of questions for my MSJ, that my MSJ is not clearly enough for you and for your client plaintiff, I will amend the MSJ so that most of the questions can be answered without having you and your staff come down here to Los Angeles. Simply provide the list of questions so that we can work together addressing the concern you may have. You mentioned that your intention to file a Ex Parte motion, can you explain to me what is this for ? If you have any questions, I may be reached by e-mail at XXXXXXX Thank you ( Fellow, please tell me what do you guys think ? )
  17. & since they say...it's about MSJ, ( & I bet they try to set me up with a trap to fall during deposition,) should I let them know I will be sending the Amended version of MSJ, so that they can't use any excuse to have a oral deposition ?
  18. is there a way I can maintain it on written format instead of deposition? My understanding is our discovery started written / not oral depsosition, and written allows me more time and seek feedback and experience from you guys,...any suggestion how to maintain it on written format ?
  19. EMERGENCY !! This just in...the plaintiff's attorney wants me to "deposition" for my MSJ !! See attached letter..."on a separte note.... I have never heard anything like this...HOW DO I HANDLE....??
  20. Dear Anon Amos: As soon as I finish the Amended version, will let you take a look before taking it to Court ! I don't mean to offend you, I apologize. Sometimes, just a reflections, wow I made a few mistakes, just want to make sure ... BUT I AM VERY GLAD YOU and ohters CAREs, ....Can't say thank you enough... Million thanks
  21. the CCP 437c and 438 does not address my question ??!! http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=437c-438 Million thanks
  22. Anon Amos is RIGHT, I am working on re-writing. My Question here is that : HOW to / in what form, ie, amend ; sending supplementary; pull-out the existing one & refile ?? I want to keep the existing hearing date, which is 1 month away,...but a gentleman brought up a concern, that it may be a problem. I tried to search the court rules, but could'nt find it? Perhaps stupid me?? Can anyone look it up and confirm for me, it's superior court of california, Court house is Chatsworth- Los Angeles County. Can anyone really confirm for me, PLEASE !!! Million thanks
  23. Someone suggested "amend"; someone suggested pull it off and re-file, giving 75 days notice all over...; someone suggested wait until JDB plaintiff file the opposition reply.... I am confused....?? Anyone please...( and if you can also tell me what are the drawback(s) for each options- amend/ pull it off-refile/ send in supplementary/ wait for opposition... I really want to do it correctly, no mistakes, hope you all can understand.... Million thanks
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