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browniebrownie141

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  1. Can I attack the "account stated" by refering to that Bill of Sale/ Assignment does not reference to my name nor the alleged account number/ nor any account #s listed on that so-called half page document ?
  2. 372. Common Count: Open Book Account [Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an open book account. To establish this claim, [name of plaintiff] must prove all of 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]. New December 2005 Directions for Use The instructions in this series are not intended to cover all available common counts. Users may need to draft their own instructions or modify the CACI instructions to fit the circumstances of the case. 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].) “The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].) “ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim.Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.) “Although such an action is one at law, it is governed by principles of equity. It may be brought ‘wherever one person has received money which belongs to another, and which “in equity and good conscience,” or in other words, in justice and right, should be returned.The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.) “Since the basic premise for pleading a common count is that the person is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and ‘one cannot be held to be a constructive trustee of something he had not acquired.’ One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15 [101 Cal.Rptr. 499], internal citations omitted.) “ ‘As Witkin states in his text, “[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.) “In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.) “A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.) Secondary Sources 4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522 1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.20, 8.47 (Matthew Bender) 4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars, § 43.28 (Matthew Bender) 1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32
  3. California Civil Jury Instructions (CACI)373. Common Count: Account Stated[Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of 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; and5. The amount of money [name of defendant] owes [name of plaintiff].New December 2005Sources 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.)“An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor’s assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)“ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim.Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)“The account stated may be attacked only by proof of ‘fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)“An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)“In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)“A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)Secondary Sources4 Witkin, California Procedure (4th ed. 1997) Pleading, § 5151 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972–9731 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40–8.46 (Matthew Bender)1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32
  4. @Anon Amos: RaceCar sent me these 2: ( will be posted down below) but I have concern / question as to how to deal with Account Stated? ( see high-lighted below) ... Or, does my question is answered by point 1-5 listed at the top of the article ?
  5. a quick question: Can I simply send in amended version without triggering additional any problems? Will I be able to keep the same hearing date? or will it be push back ? Or Should I simply send it in as Supplementary MSJ given JDB plaintiff sent me that HSBC mastercard agreement ( new development) after I filed the original MSJ ? Or should I kick this in as Reply to their Opposition ( which means I would need to wait for their response first ??) Also, reading the info from RaceCar, I take it you want me to attack their Open Book and Account Stated issue in MSJ, right ?
  6. @Anon Amos: Yes, I sent the amended discovery set 1 and answered RFA last week. I had some calif case laws posted on this posting earlier, along with out of state 's. Also, the one on page 6 here (posting# 104) also looks good ?! Can I use it ?
  7. First here is the background info: -lawsuit in Los Angeles, California -Superior Court of California -defendant is the person who filed the MSJ After the MSJ was filed, if I need to make some changes, what will be the best options to do : make 1st amended MSJ ( to supercede the original one) OR simply send in supplementary as additions ? Reasons: 1. plaintiff amended Discovery response, which I based on for the MSJ- so undisputed material statement needs re-work; 2. would like to strengthen the "lack of legal standing" as reason for MSJ. BTW, they have not filed the opposition reply to MSJ, in fact, they still have 1 month. Thanks
  8. @BV80: Thanks ... @Anon Amos: You are right...According to the Summon that you and I talked here, it's Common Counts/ Open Book (4 years) and Account was stated. JDB in my lawsuit did not check "breach of contract" box on Summon, this is something I somewhat confused. ( Please see pages earlier...) Should I keep the breach of contract" part? What about the blue-color highlighted portion? Can I use it??? Thanks
  9. Gentlemen/ Ladies, I am trying to use this for my "re-writing MSJ" , some are red-ink high-lighter because of out of state case law, which no good for me, some are blue ink high-lighted, --is that something I can use ? ( I am from Los Angeles, California) ....I am trying to use "lack of legal standing" as my weapon in MSJ... PLEASE HELP ! [CAPTION] SUMMARY JUDGMENT BRIEF INTRODUCTORY STATEMENT AND PROCEDURAL HISTORY The Complaint was filed on [DATE] and served on [DATE]. The Answer was filed on [DATE]. The Complaint alleges that Plaintiff is the successor to an account between Defendant and [ORIGINAL CREDITOR NAME AS NAMED IN COMPLAINT] (the alleged Original Creditor) and that the account is in default. Defendant denies the allegations. This Motion challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim. 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. Brill v. Guardian Life Insurance Co., 142 N.J. 520 (1995). 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. 2. Breach of contract consisting of: a. the formation of a contract between the Original Creditor and Defendant; b. the terms of that contract; c. Defendant’s materially breached of a contractual term; and d. damages. LEGAL ARGUMENTS POINT I: Lacking Evidence as to Each Element, Plaintiff’s Complaint Should Be Dismissed. “Summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as alleged.” Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). It thereby 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) (approved and adopted in Brill). 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. Brill, 142 N.J. at 536. 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. Brill, 142 N.J. at 533-4 and 536. Indicative of the necessity to consider the burden of proof, in LVNV Funding, L.L.C. v. Colvell, 421 N.J.Super. 1 (App. Div. 2011), the Appellate Division reversed the trial court’s grant of summary judgment for the plaintiff because plaintiff failed to submit evidence sufficient to sustain its burden of proof. Like here, Colvell involved the claim of a debt buyer on an allegedly defaulted credit card account. This case presents precisely the same type of summary judgment motion considered in Celotex. There, like here, 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. Instead, the Court concluded that 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. [Celotex, 477 U.S. at 322-3.] Here, Defendant – like the moving party in Celotex – has no obligation to submit evidence negating the factual elements of Plaintiff’s cause of action. 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. Brill, 142 N.J. at 533; and R. 4:46-5(a). 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. See, James Talcott, Inc. v. Shulman, 82 N.J. Super 438, 443 (App. Div. 1964); see also Robbins v. Jersey City, 23 N.J. 229, 241 (1957); cf., Colvell, supra (debt buyer’s summary judgment motion rejected because it failed to submit sufficient admissible evidence to establish its claim based on a purchased credit card account). 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. Presumably, proof of information about the alleged account derives from electronically stored records. In Hahnemann University Hosp. v. Dudnick, 292 N.J.Super. 11, 18 (App. Div. 1996), the Appellate Division held: 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. Consequently, “[a]ttorney affidavits or certifications that are not based on personal knowledge constitute objectionable hearsay.” Higgins v. Thurber, 413 N.J. Super. 1, 21 n.19 (App. Div. 2010), aff’d, 205 N.J. 227 (2011) citing Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 358, aff'd, 184 N.J. 415 (2005) (“Even an attorney’s sworn statement will have no bearing on a summary judgment motion when the attorney has no personal knowledge of the facts asserted”); see, also, Wells Fargo Bank, N.A. v. Ford, 418 N.J.Super. 592, 599 (App. Div. 2011). 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. POINT III: The Elements of Plaintiff’s Cause of Action. Plaintiff alleges that it is the assignee of a claim based on an allegedly defaulted contractual relationship between Defendant and the Original Creditor, which may or may not include one or more intermediary debt buyers. Thus, Plaintiff must prove both the Original Creditor’s contractual claim against Defendant, and the assignment of that chose-in-action from the Original Creditor through any intermediate assignees to Plaintiff. A. Elements Necessary to Prove an Assignment. “[W]here 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.” Sullivan v. Visconti, 68 N.J.L. 543, 550 (Sup Ct. 1902) aff’d (for reasons below) 69 N.J.L. 452 (E.& A. 1903) (emphasis added). Sullivan not only states the elements for proof of an assignment but explains the historical background with respect to assignments of contracts rights or choses-in-action as well as the developments harmonizing the disparate treatment of such assignment’s in law and equity. Like here, the chose-in-action in Sullivan arose from a claim that there was a contract in which the obligor agreed to pay money. A partnership named Mills, Clark & Co. supplied materials to defendant in exchange for the defendant’s promise to pay $250. One partner adequately described the contract right being assigned in an assignment to Miss Gardner. There was no dispute that the partner had the power to bind the partnership. Subsequently, a different partner assigned the same contract right to the plaintiff, who sued for nonpayment. The obligor defended on the prior assignment of its obligation to Miss Gardner. Plaintiff argued that the assignment to Miss Gardner was invalid because, although assigned by one of the partners, the partnership was not named in the assignment even though the partnership’s contract rights were sufficiently described. The Sullivan court explained that, at common law, assignments of personal contract rights were not recognized because there was no privity between the obligor and the assignee. Unlike covenants which run with the land where the obligee’s right is assigned to each successive owner of the superior estate while the obligor’s duty is delegated to the subsequent owners of the servient estate, contracts between people did not run to those not in privity. The assignment “was held to destroy the privity” except for “bills of exchange, promissory notes, and other instruments negotiable by the law merchant, or assignable by statute.” Id. at 548. Courts of equity, however, recognized a chose-in-action as property of the obligee and could require “the assignor to lend use of his name to the assignee for a suit at law.” Id. From an early time, New Jersey statutorily recognized the right to sue in one’s own name on an assigned chose an action. Id. at 600. What was determinative in Sullivan was that the assignment to Miss Gardner contained a sufficient description of the property even if the assignor were not expressly named. Thus, it is essential that there be a sufficient description identifying the contract right being assigned and, since the partner had the authority to bind the partnership, it did not matter that the assignor was not expressly identified. Therefore, the assignment to Miss Gardner was valid and the claim by the subsequent assignee was denied. The court held: Given a chose-in-action, legal in its nature, and coming within the purview of the act, and an instrument in writing which sufficiently describes that chose-in-action, and authoritatively makes known to all persons concerned that the subject-matter has been or is thereby transferred and made over by the owner to a designated assignee, accompanied by delivery of that instrument to the assignee, and notice to the debtor, the assignment is as complete at law as in equity. [Id. at 551.] Today, the applicable statute is N.J.S.A. 2A:15-1 providing that “all choses in action arising on contract are assignable”. Somerset Orthopedic Associates, P.A. v. Horizon Blue Cross and Blue Shield of New Jersey, 345 N.J.Super. 410, 415 (App. Div. 2001). Over the century since Sullivan was decided, the law on assignment of a chose-in-action has remained essentially the same. Four essential elements are required. First, “[a] valid assignment must contain clear evidence of the intent to transfer the person’s rights.” Berkowitz v. Haigood, 256 N.J. Super. 342, 346 (Ch. Div. 1992); see, also, Tirgan v. Mega Life & Health Ins., 304 N.J. Super. 385, 390 (Ch. Div. 1997); and Costanzo v. Costanzo, 248 N.J. Super. 116, 124 (Ch. Div. 1991). Second, “[t]he subject matter of the assignment must be described sufficiently to make it capable of being readily identified.” K. Woodmere Associates, L.P. v. Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998) (citing 3 Williston, Contracts (3 ed. Jaeger 1957) Section 404 at 4 and Transcon Lines v. Lipo Chem., Inc., 193 N.J. Super. 456, 467 (Dist. Ct. 1983)). Third, “[t]he assignment must be clear and unequivocal in order to be effective as to the obligor.” Berkowitz, supra, 256 N.J. Super. at 346; see, also, Tirgan, supra, 304 N.J. Super. at 390. Fourth, “[o]bviously the obligor must be properly notified of the existence of the assignment.” Berkowitz, supra, 256 N.J. Super. at 346; see, also, Tirgan, supra, 304 N.J. Super. at 390, Jenkinson v. New York Fin. Co., 79 N.J. Eq. 247 (Ch. 1911), and, Sullivan, supra, 68 N.J.L. at 551; but, see, Hirsch v. Phily, 4 N.J. 408 (1950) (the obligor’s duty to assignee does not arise until the obligor has been noticed but, as for the rights among assignor, assignee and subsequent assignees, notice to the obligor is not required), In re Rosen, 157 F.2d 997 (3d Cir. 1946) (same), and, Moorestown Trust Co. v. Buzby, 109 N.J. Eq. 409, 410 (Ch. 1932) (same). Implicitly, the purpose of each of these elements is to ensure that the obligor can know with certainty to whom his or her obligation can be satisfied. These requirements avoid the problems when the assignor – whether fraudulently or unwittingly – attempts to assign a right to multiple assignees, as occurred in Sullivan and Jenkinson. If Plaintiff produces only a “Bill of Sale” as the proof of assignment, the subject account must be “described sufficiently to make it capable of being readily identified” and the assignment must be “clear and unequivocal”. Thus, for example, if the Bill of Sale simply refers to an attached exhibit and there is no exhibit, Plaintiff’s documentation would have failed to describe the subject account and there would be no proof of the assignment. Furthermore, if the Bill of Sale references terms of an assignment contained in another document, that other document must be produced. Finally, if there were multiple assignments, Plaintiff must present evidence satisfying the elements of a valid assignment for each assignment. B. Elements Necessary to Prove a Breach of Contract. To prove a contract claim, Plaintiff must provide proof of an offer, acceptance, consideration, breach and causally related damages. Weichert Realtors v. Ryan, 128 N.J. 427, 435 (1992). Here, the contract must be in writing. 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. § 1632(d)(1). Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract. Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract and, in the absence of Defendant’s signature, demonstrate what conduct evidences mutual assent to the purported terms. Turning to breach and damages, Plaintiff must have a competent witness who can establish that each charge was authorized because the Truth in Lending Act imposes that burden on Plaintiff. 15 U.S.C. § 1643(. Furthermore, under Colvell, supra, all the transactions and credits must be shown without to resort to unsubstantiated previous balances. There is no possible way to read Colvell except as requiring Plaintiff’s proof of damages to include all account transactions and credits without reliance on an unsubstantiated total amount due or a charge off balance. The opinion is interwoven repeatedly with this theme. In particular, when suing to collect the balance allegedly owed on an unpaid revolving credit card account, the creditor must prove more than merely the total amount remaining unpaid. [Colvell, supra at 3.] 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 the billing cycle, and the new balance. [Id.] The information on this form was not complete as it did not list any transactions made by defendant or the billing cycle information. [Id. at 4.] Defendant argues that LVNV’s computer generated report did not sufficiently meet the requirement set forth in Rule 6:6-3 governing default judgments because it does not contain any identification of transactions or credits in support of the balance listed. * * * The computer-generated statement does not comply with Rule 6:6-3(a) because it does not specify any transactions comprising the debt owed by defendant. [Id. at 6 and 7.] To collect on a revolving credit card debt, LVNV is required to provide the transactions for which payment has been made, any payments that have been made, the annual percentage and finance charge percentage rates and the billing cycle information. [Id. at 7-8.] Consequently, Plaintiff’s failure to lay the foundation for the admission of hearsay records which reflect all transactions and credits on the account is fatal to its ability to prove the damages element of its cause of action. POINT IV: This Motion is Not Premature. The Rules expressly allow for summary judgment motions even prior to the filing of an answer. R. 4:6-1( applicable to Special Civil Part by R. 6:3-1; and R. 4:46-1 applicable to Special Civil Part by R. 6:6-1(a). By signing the Complaint, Plaintiff’s counsel certified unequivocally that the complaint’s “factual allegations have evidentiary support.” R. 1:4-8(a)(3). Counsel could have suggested – but did not – that discovery might be needed by asserting that “specifically identified allegations … are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.” Id. As a result, Plaintiff should not be heard to argue that it needs discovery before it is prepared to demonstrate evidentiary support for its allegations. The Court should not entertain an argument that Plaintiff needs discovery. It is difficult to imagine what “critical facts are peculiarly within [Defendant’s] knowledge” to warrant the need for discovery. See, James v. Bessemer Processing Co., Inc., 155 N.J. 279, 311 (1998) (internal quotes and citations omitted). Furthermore, a “party opposing summary judgment on the ground that more discovery is needed must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete.” Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). “[A] respondent to a summary judgment motion, who resists the motion on the grounds of incomplete discovery is obliged to specify the discovery that is still required.” Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 538 (App. Div. 2009). To the extent the Court would permit discovery, however, Defendant requests that, as provided in R. 4:46-5(a), a continuance be ordered to permit the identified discovery and this Motion then be considered with the benefit of that discovery. (For piece of "evidence JDB provided, please go back to page 1 of the posting....) Please, help, comment, advise on my re-write MSJ....can't say thank you enough
  10. With that in mind, any Gentlemen/ Ladies, willing to help me here, help me to re-draft the MSJ - using "Lack of legal standing" as main frame. I have 5 california case laws as listed below ( & actually listed before), IF ANYONE HAS MORE especially California case laws related to lack of legal standing, please......t I would really need HELP re-draft the MSJ, using lack of legal standing. PLEASE HELP ! Case-law(s) for reference: 1. 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." 2. 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.]" 3. 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]." 4. 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." 5. 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.]"
  11. http://www.philipstern.com/Cases.html Look under the case: 1. August 12, 2011 - COLLECTION COMPLAINT DISMISS: NO STANDING Midland Funding , LLC vs. Cheryl E. Williams There are MSJ/ opposition/ reply / Granting the MSJ 2. March 18, 2011 - DEBT BUYER HAS NO PROOF OF DEBT New Century Financial Services, Inc. vs. David Shaler 3. Brief for MSJ : http://www.philipstern.com/resources.html ( go to the bottom of the page and look for the brief for MSJ in debt collection case. Please, Ladies & Gentelmen, please let me know if these are something I can make use of, or simly guide me to re-write MSJ, please. Million thanks Also, MSJ/ Oppostion/ reply/ granting the MSJ...
  12. OK, we will deal with the old account statement later. You are right, now focus on rewriting MSJ. Here I found 2 actual MSJ from internet, they both were actually used in court case, both WON, I know I cannot just copy & paste, AND the 2 cases are from New Jersey, so it is not California, but would you gentlemen/ ladies guide me to see which portion that I really make use of….( both MSJ were lacking of legal standing) Also, the 3rd one is more like a template ?! Do you all think it is something I can make use of…. All 3 are listed below postings…. Million thanks
  13. To All the Fellows who read and respond my posting here: Happy ThanksGiving Holiday ! Especially thanks for standing by me during this difficult time. I will need to re-write/ amend MSj, but truly has no idea....although now realized "Lack of Legal Standing" is my weapon. Last night I re-drafted the Statement of Undisputed Material Facts, focusing on Bill of Sale/ Assignment (pointing out that it does not reference to my name nor account # listed in the lawsuit; and HSBC mastercard acceptance does not reference to the alleged account # listed in the lawsuit. I am not sure what to do to the "old account statement"?? they provided that with duration of around 13 months. But no transaction was in there, only showing the account was still open? and default. It is especially the case, refering to Summon- Common count, open-book for 4 years / account stated. I was reading some article, suggesting that if they could'nt account for the transactions, they could'nt get any; or they could only get what's it accounted for. That's the reason why I sent the Bill of Particulir, but they only sent me that bunch of old statement, without "accounting for" ... the motion to prelude evidence was unsuccessful, due to stupid ME, I used fax to notify them ( although senting 2 letters) and the Judge denied that saying my notice was sent prematurely. Last week, I sent Meet & Confer, following up on 2 issues, pushing them to reply all my questions listed in BOP and ask them to provide the copy of the credit application. I guess, I could include all my Meet & Confer letter showing my repeated request for document, not sure if it helps ( but I take it, if they don't provide, AND the fact that they say they have and even changed their Discovery response) -- they may look bad in front of the Judge. Yeah, Hunt & Henriques and located in San Jose, and the court case is down here Los Angeles. I also sensed that the attorney got "steam" on his head... So, for next few days,....once again to you ALL..... Happy ThanksGiving holiday and THANK YOU for standing by ME,....I mean it .
  14. @Credator: I am not very good with data management or quantitative analysis, so first I appreciated your feedback. Although you may have a different opinion as how, why and or why not I filed the MSJ, to me, anyone cares enough to say things in my posting, i truly appreciated. I know MSJ is not easy for me. I know I need help on MSJ, and I know the chance my MSJ will go down to toilet, as they try to make it "still have trial-able issues. I NEED HELP on my MSJ, hope you can help me as well. I also notice, thru my limited reading, often plaintifff JDBs/ OC go for the MSJ when defendant made mistake(s) admitting something, thus, defendant gets wiped out. Also, JDB's file tons & tons of lawsuit, going for default judgment, when defendant's did not respond to Summons. Thru reading I notice, many JDBs just file so many lawsuits, when they don't even have solid evidence, and not even enclosed a piece of evidence with the Summon. What are the chance, that they are being Mr. Nice guy, not filing for MSJ Vs defendant if they have a chance? As you pointed out, result of MSJ, there are unsuccessful MSJ, some are successful. I could only say it varies case by case.
  15. Regarding Discovery Set 1 question #5 ( please see post# 74 & 84) How about : ( combination response) OBJECTION: Calls for legal conclusion. Without waiving the right to objection: Defendant has never made any payments to the alleged account. Further Objection: Assumes facts not in evidence. The existence and validity of the alleged account has not yet been proven, and Defendant has no recollection of the alleged account. Without waiving objection, defendant admits, did not make any payment since june 2013. OK to go ? Million thanks
  16. Gentlemen, Agree with you both on " lack of standing"....Please assist to re-do the MSJ and I send it in ASAP. From lasuperiorcourt.org, I don't see they file the response to MSJ yet. My guess is they are waiting for my Discovery (set 2) reply and planning to jump on me perhaps cross-motion MSJ Vs if I make another mistake answering that,....just a wild guess. Can't thank you enough, one of these day I buy you a beer ! and gotta donote some $ to this website, too !
  17. The half page Bill of Sale/ Assignment, which DOES NOT REFERENCE to my name, nor account #, I believe , is still something I can use for my MSJ. The copy of the credit application, is still a mystery? they have it/ or they don't have it? [ they said they just obtained, but they did 'nt provide] The half page HSBC mastercard acceptance, DOES NOT REFERENCE to any account #. But has some personal info on it. The half page computerized date page, shows they made that on their own. Comments/ Suggestions/ Million thanks
  18. MSJ motion hearing date is 1/06/2014. My understanding is: Plaintiff's dealine to file a response is 1/06/2014 minus 14 days = December 22nd, 2013 And my deadline to reply their opposition : Hearing date minus 5 days. ( 1/06/2014 minus 5 days = January 01, 2014 holiday, thus December 31st, 2013. BUT there is 1 concern I have, they make their filing online. But I use mail. If they don't send me their opposition ( just like last time the motion I file Vs. them, I have nothing to go by how to response their response, although more or less, I kind of get an idea, but still, not solid as I see the actual one. How should I handle this kind of situation?
  19. Case-law(s) for reference: 1. 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." 2. 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.]" 3. 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]." 4. 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." 5. 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) : 6. 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. 7. 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. 8. 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. 9. 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. 10. 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.
  20. 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 2 The 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.
  21. Here is my MSJ I filed Vs. the plaintiff JDB, based on their own writing revealed from SET ONE Discovery response. However, they just sent me a supplemental response to SUPERCEDE the old one, " plaintiff now just obtained a copy of credit application of original creditor" BUT, they did not provide such document. Meet & Confer letter sent due to this, stating I requested thru set ONE Discovery. Can I amend MSJ to reflect the newest development ? So, here is my MSJ : PLEASE TAKE NOTICE that on DATE & TIME in Department XXX of the above-referenced Court, located at 9425 Penfield Ave, Chatsworth, Ca 91311, defendant XXX 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 privity and (2) no cause of action, resulting in judgment on the merits in favor of defendant 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 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 DEFENDANT 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: XXX, 2013 By: _________________ XXX Pro Se ___________ MEMORANDUM OF POINTS AND AUTHORITIES I.INTRODUCTION Case: # XXXXXX Summon file stamped date: XXXXX, 2013 Case Name: Portfolio Recovery Associates, LLC Vs. XXXXXX Plaintiff claims Cause of Action: Common Count Plaintiff prays for $XXXXXX Plaintiff is not the original creditor. Plaintiff declared that they purchased the alleged account from original creditor / or it’s successor(s). The entire discovery set one requested by defendant has a simple 2 step logic. Ask the plaintiff what evidence do they have, then ask them to show the evidence they said they have. The plaintiff’s deny all and object almost all questions, yet their answers contradict to each other. The plaintiff shows, lack of privity and failure to show cause of action. II.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). 1. Lack of Privity: 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 privity carries through. But the privity 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 discovery set one. All these, are listed on the separate statement of undisputed facts and declaration of defendant. The plaintiff provided a 2 page Bill of Sale and assignment, and 1 piece of printout, all were not notarized documents. As we take a close examination of these documents, we found the 2 page of Bill of Sale does not reference to defendant’s name or the alleged account number. It does not reference to any person’s name or 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, it cannot be used as evidence in this case. 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, therefore, cannot be admissible as evidence. 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. Even if there were any other affidavit, those will be subject to examination, and any person who signed and did any affidavit must have personal knowledge of each piece related to each transaction, incident and or event. Should the person who signed or did affidavit without such personal knowledge, the affidavit would not be considered as admissible evidence. Again, the undisputed fact that the plaintiff revealed that they do not have documents in their possession, custody or control throughout their response to defendant’s entire discovery set one. Clearly, the plaintiff does not have the privity due to broken chained of custody of documents. 2. Failure to state Cause of Action. The plaintiff claims Common count/ open-book , ( please refer to the plaintiff ‘s summon for detail ). Every lawsuit must have at least 1 cause of action. It is legal theory upon which a lawsuit can be based. The burden of proof falls on the plaintiff, not on the defendant. The defendant’s entire discovery set one carries the essence of Bill of Particular. Defendant requested completed list of account information. The plaintiff, at some point, revealed that they do not have the copies each and every billing statement for the subject account. ( please refer to defendant’s separated statement of undisputed facts ) They could not even accounted for a portion of alleged amount $XXXXX They could not provide a single copy of cancelled check that defendant’s used to pay the alleged account. They do not have any legal standing, they do not have cause of action. III.CONCLUSION Based upon the foregoing, defendant XXXX, respectfully ask the court to grant this motion, as well as such other relief as may be just and proper, which may including but not limits to, the expense(s) defendant spent on this lawsuit. DATED: XXXXX, 2013 By: XXXXXXX Pro
  22. " Objection, Assumes facts not in evidence. The existence and validity of the alleged account has not yet been proven, and Defendant has no recollection of the alleged account. Without waiving objection, defendant admits" Entered as it is, correct !?
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