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Everything posted by 300turbozx

  1. Yes if you look at one of my previous post I added a pdf document containing all the documents other then cc statements. I had to take pictures of them with my phone because the court didn't want to give me a copy and it was 76 pages long, and to get a copy it was a dollar a page. So I took pictures of them.
  2. Ok, I've been working on both of them I will be posting a copy of them tomorrow. I want to send them out Monday morning
  3. question, does amending my Affirmative defenses enough, or do i need to oppose to the MSJ as well. I have been working on both just in case.
  4. Yes mam I have been working on case laws and direct information in my case. This is only a guide to start going off of. I have been working dillengently to incorporate relevant case from my state into this.
  5. 10-4 I'm working on those now, this was simply a foundation, glad to see you back @BV80
  6. This is my foundation, i will be working off of this, is this any good?
  7. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendant, opposes the Motion for Summary Judgment filed by the Plaintiff, Midland Funding, LLC; and asks this Court to deny the Plaintiff s Motion as genuine issues of material fact exist, and Plaintiff is not entitled to judgment as a matter of law. Introductory Statement The Complaint alleges that Plaintiff is the successor to an account between Defendant and the alleged original creditor (Chase Bank N.A.), and that the account is in default. This Opposition challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim, and lack of standing to sue. This Opposition is made in good faith based on Defendant’s general understanding of the debt buying industry. While not offered as evidence, that understanding is explained here to justify the Defendant's Opposition. Defendant understands that, when a debt buyer purchases an account, it is one of hundreds or thousands of accounts acquired as a pool and the information as to each account is contained in an electronic spreadsheet (such as a Microsoft Excel file) called “placement information.” Placement information is a collection of data elements about an account created after the account is in default and, therefore, cannot be a business record for purposes of the hearsay exception. Debt buyers refer to “media” as the original creditor’s records concerning the account such as the account application, the written contract(s), and the billing statements. Those could be admissible if a competent witness were to lay the requisite foundation under the business records exception to the hearsay rule. In the purchase transaction, debt buyers obtain little or no media and, depending on the terms of the purchase, may be able to request some media. It is this understanding which informs the basis for the opposition as there is a reasonable basis to believe that Plaintiff lacks standing to sue and the evidence to prove the elements of its cause of action. Statement of Material Facts Defendant submits this Statement of Material Facts in support of his Opposition to Motion for Summary Judgment. As this Opposition pierces the pleadings and tests the sufficiency of Plaintiffs evidence, Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to grant summary judgment. 1. There is no admissible evidence as to the purchase by Plaintiff of the alleged account which is the subject of this Complaint either directly from Chase Bank or through intermediate debt buyers. 2. There is no admissible evidence of true and correct copies of monthly statements. 3.. There is no admissible evidence as to the debits, credits, and payments associated with the alleged account, including the fees, charges, and interest from which to determine the amount purportedly due. 4. There is no admissible evidence regarding the mailing of any written agreements by the Bank to Defendant. 5. There is no admissible evidence regarding the mailing of any billing statements by the Bank to Defendant. Legal Arguments This is a suit by a debt-buyer asserting that it is the owner of an alleged Chase account in default. Plaintiff, Midland Funding L.L.C., filed a two-count Complaint alleging: 1. Defendant states that the Plaintiff lacks standing to sue the Defendant since at no time did the Defendant cause any harm to the Plaintiff 2. Defendant states that Plaintiff has been unable to provide a basis for the total amount due and how that amount was calculated from its origin including how much various fees, interest and other amounts figure into the total amount the Plaintiff is asking for. "In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, 'standing [must] be determined as of the commencement of suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992). 3. Plaintiff is relying on unauthenticated documents, including internally generated electronic records that in previous legal matters have been found to be grossly insufficient in meeting a burden of proof. “The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created." Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md. May 4, 2007) Standard For Summary Judgment The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action. "We will not affirm a grant of summary judgment, however, even in the absence of controverting evidence, if the motion and evidence filed in support of the motion for summary judgment are insufficient to show that no material issue of fact exists or that the movant is entitled to judgment as a matter of law." United Bank v. Allyn, 167 Ariz. 191, 194-96, 805 P.2d 1012, 1015-17 (Ct.App. 1990) The Plaintiffs Motion for Summary Judgment should not be granted as there is a general dispute of material facts. "Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts." Farmers Ins. Co. of Arizona v. Vagnozzi, 675 P. 2d 703 - Ariz: Supreme Court 1983. The Plaintiffs Motion for Summary Judgment should not be granted as the Plaintiff has not demonstrated that there are no genuine issues of material fact and has provided inadmissible evidence supporting its standing in this matter. “Initially, a party moving for summary judgment has the burden of showing there are no genuine issues of material fact and it is entitled to summary judgment as a matter of law. Only if the moving party satisfies this burden will the party opposing the motion be required to come forward with evidence establishing the existence of a genuine issue of material fact that must be resolved at trial.” National Bank of Ariz. v. Thruston, 218 Ariz. 112, 114-15, ¶ 12, 180 P.3d 977, 979-80 (App. 2008). Plaintiff Lacks Standing To Sue Absent a valid assignment from Chase Bank, Plaintiff has failed to prove ownership of any account allegedly owed by Defendant. Wherefore, Plaintiff has failed to prove standing to sue. "It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified. Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977" "We therefore hold that the basic elements of a legal assignment are so lacking in this case that we can find no basis in the record on which to conclude that Certified Collectors, Inc. has any right to bring an action on this claim as the real party in interest." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977. "As a matter of sound judicial policy, however, this court has long required that persons seeking redress in Arizona courts must first establish standing to sue." Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003. Improper Foundation Of Credit Card Statements Plaintiff has provided credit card statements allegedly representing an agreement between Chase Bank and Defendant. The credit card statements have not been authenticated by a custodian with personal knowledge who can testify that the alleged statements were made by Chase Bank in the regular course of business. Plaintiff, Midland Funding, did not create or maintain the credit card statements, nor can Plaintiff prove the billing statements are true and correct copies of any documents created by Chase Bank. Therefore, the documents do not meet the hearsay exception in Arizona Rules of Evidence 803(6). In addition, as Plaintiff has not proven ownership of the account in question, Plaintiff has not laid a proper foundation for the admission of the credit card statements. For the foregoing reasons, the documents are inadmissible hearsay. "Rule 56(e), Arizona Rules of Civil Procedure, provides that affidavits submitted in support of a motion for summary judgment must be based on personal knowledge, setting forth facts which would be admissible in evidence and establishing the affiant's competence to testify to those facts." GM DEV. v. COMMUNITY AMERICAN MORTG., 795 P. 2d 827 - Ariz: Court of Appeals, 1st Div., Dept. C 1990 "Furthermore, the records must be introduced through the testimony of a custodian who can be cross-examined concerning the methods of preparation, the qualifications of the preparer, and other relevant matters." Transamerica Ins. Co. v. Trout, 701 P. 2d 851 - Ariz: Court of Appeals, 1st Div., Dept. A 1985 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 any and all hearsay materials, and 2. The admissible records be sufficient to carry Plaintiff's evidentiary burden. In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343 the court upheld the trial court’s entry of summary judgment in favor of the defendant where the plaintiff had offered hearsay documents which may or may not have been sufficient to overcome summary judgment had they been properly authenticated pursuant to the Ohio Rules of Evidence. The point was moot as the hearsay documents were not properly authenticated: Once the appellee established by reference to appellant’s unauthenticated documents attached to the complaint that there was insufficient evidence to establish that the appellant had acquired the account by assignment and that there was insufficient evidence to prove the balance due on the account, the burden shifted to the appellant to demonstrate the existence of genuine issues of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264. Because the appellant failed to properly authenticate the assignment documents and the account statements, the appellant essentially presented nothing of evidentiary value to rebut appellee’s argument and did not create a genuine issue of material fact. Although it is a harsh result, we find that the appellant’s failure to follow the requirements of Civ.R. 56 put the trial court in a position in which it could only come to one conclusion. That conclusion is that the appellee had affirmatively established that there was nothing of evidentiary value to support the essential elements of appellant’s claim for an action on an account. We therefore find that the trial court did not err in granting appellee’s motion for summary judgment. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission evidences that were allegedly issued or created before the Plaintiff’s alleged ownership of the alleged account. Proof of Actual Amount Claimed to be Due In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343: In order to establish a prima facie case for money owed on an account, “[a]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.” Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus. In this present case the Plaintiff has presented alleged monthly statements, however said statements do not contain all the information needed to establish a prima facie case. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of billing statements that were allegedly created before the Plaintiff’s alleged ownership of the alleged account. Proof of Contract and Terms 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. § 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 Defendants' signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of a contract that was allegedly formed before the Plaintiff’s alleged ownership of the alleged account. 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 CONCLUSION Plaintiff's failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for Defendant. For the foregoing reasons, Defendant, respectfully requests that summary judgment be denied in his favor and against Plaintiff, Midland Funding LLC and that the Complaint be dismissed with prejudice. STATEMENT OF MATERIAL FACTS IN DISPUTE 1. The Plaintiff alleges that Defendant established a credit card account yet no cardholder agreement was attached to the Plaintiff s Complaint or the Plaintiff s Motion for Summary Judgment. 15 U.S.C. §1642 provides that no credit cards shall be issued to any person except in response to a request or application for a credit card. 2. The Plaintiff s Complaint alleges that all conditions precedent to the bringing of this action have occurred, been performed, or waived; yet Plaintiff has no record evidence proving Plaintiff complied with the requirements of §559.715, Fla. Stat 4. is not proper or admissible summary judgment evidence because it refers to an exhibit not attached to said affidavit. Affiant states that Plaintiff is the current owner of the account and attached a copy of a Bill of Sale as part of Plaintiff s Composite Exhibit "A". The Bill of Sale references Section 4 of an Agreement that is not attached to said affidavit. 5. Plaintiff's Complaint alleges a cause of action of Money Lent. The attached Composite Exhibit "A" of Plaintiff's Complaint includes copies of statements that contradict and contravene the allegations of Plaintiff's Complaint. The Plaintiff did not lend money to the Defendant as alleged in the Plaintiff's Complaint, nor did the Plaintiff advance the sum to any third parties. 6. Plaintiff's Motion for Summary Judgment states that Plaintiff purchased the subject account "On or about November 7, 2012'', which contradicts and contravenes the Bill of Sale in Plaintiff's Composite Exhibit "A" that is attached to the Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgment. The Bill of Sale states that the subject account was purchased by the Plaintiff on January 30, 2012. WHEREFORE, Defendant, requests that the Court (a) sustain the objections to the summary judgment evidence offered by Plaintiff, ( strike the affidavit of I -or, alternatively, strike the improper or inadmissible portions of said affidavit, and © grant such other and further relief that may be awarded at law or in equity.
  8. @shellieh98 i need help filing a opposition for summary judgement
  9. From my understanding they still haven't proved that they legally own the debt. Am I correct on this. On the bills of sale it clearly states they bought a pool of accounts, how can I be sure that mine was one ?
  10. @debtzapper I was doing some reading and want to have multiple ways to attack this, the bills of sale do not have my name account number and have redacted information I was reading that I can still argue lack of standing if they don't accept the other states SOL, another thing is there are two bills of sale one JDB TO ANOTHER JDB.
  11. Ok i've added to it and this is what i have. Tell me what you think.
  12. This claim is barred by the statute of limitations under F.S. 95-10, the borrowing statute. Defendant's credit card agreement contains a choice of law provision and pursuant to Delaware Code Ann. Tit. 10, §8106, the time to file this lawsuit expired after three years of the date of alleged breach or last activity by the defendant. In Ellis v. United Services Automobile Association, 909 So. 2d 593 (2005), the court held that, "Florida's borrowing statute precludes the maintenance of a cause of action that arose in another state if the action is barred by the statute of limitations that applies to actions in that state § 95.10, Fla. Stat. (1999)." In Capital One Bank v. Pincus, 15 Fla. L. Weekly Supp. 1119d (Fla. Palm Beach Co. Ct. 2008) “Palm Beach County Court found that Virginia law controlled and the credit card agreement was an oral contract based on Virginia law. The opinion cited several similar Florida cases finding the choice of law provision in a cardholder agreement applies to a statute of limitations defense. “Midland Funding, LLC v. Sandra B., Capital One Bank v. Theresa C.
  13. This is what i have so far, im not sure how i should word the statue of limitations, how do i refer to another case i.e the pincus case ? any help would be appreciated @debtzapper @LawKitty @Spikey @BV80
  14. IN THE COUNTY COURT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION Midland Funding, LLC, Plaintiff -Vs- Case No. My Name Defendant ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES COMES NOW, the defendant , files this, his answer to the complaint and states unto the Court as follow: 1. Defendant admits paragraph 3 for jurisdictional purposes only. 2. Defendant denies paragraphs 2,4,5,7,8,9,10,11,12,13,14,15,16, and demands strict proof thereof 3. Defendant states that paragraph 1, and 6 are without knowledge and therefore denies demanding strict proof thereof. 4. The remaining allegations of the complaint are denied. AFFIRMATIVE DEFENSES Failure to Preform Condition Precedent: Failure to Provide Florida Statutes 559.715 Notice of Assignment 5. Plaintiff has failed to comply with all conditions precedent. 6. Plaintiff lacks standing. 7. Plaintiff may not bring a cause of action against Defendant because it or its predecessor in interest failed to comply with 559.715 Fla. Stat., by not providing Defendant written notice of assignment of the alleged debt within 30 days prior to this lawsuit. 8. Plaintiff and its predecessors in the interest failed to furnish the statutory notice of the assignment of this alleged debt, as required by 559.715, Fla Stat. 9. Because Plaintiff failed to provide the requisite statutory notice, it may not collect the debt alleged in the complaint. Failure to State a Cause of Action for Unjust Enrichment 10. Plaintiff fails to allege facts to state a cause of actions for Unjust Enrichment. 11. Plaintiff’s Complaint claims the sums due are based upon the use of a credit card. Because the credit card agreement is a written agreement, this claim is inconsistent with the other allegations of the complaint. 12. A claim for unjust enrichment is an equitable claim. 13. A claim for equitable relief cannot be based solely upon a requesting party’s claim that it is deserving. The equitable remedy sought is founded upon the legal fiction that a contract should be implied in absence of a written contract. This fiction may not be maintained and the law will not imply a contract where an express contract exists concerning the same subject matter. See Carol Ann May v. Sessum & Mason, P.A., 700 So.2d 22 (Fla.2d DCA 1994); Corn v. Greco, 694 So.2d 833 (Fla 2d DCA 1997); Hazen v. Cobb, 96 Fla. 151 (Fla. 1928); and Johnny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osmen, 35 Fla. L. Weekly D1464 (5th DCA 2010). Failure to State a cause of Action for account stated 14. Plaintiff fails to allege facts to state a cause of action for account stated. 15. The Defendant never entered into a contract with Plaintiff. Defendant never agreed to any balance of any alleged debt with Midland Funding LLC 16. The documents attached to the Complaint do not support the allegations of an express of implied promise to pay the alleged balance due. Running of the Statute of Limitations The defendant asserts that recovery in this case is barred by the statute of limitations as the time, as follows : 17. Written Contract/Open Book Account/ Account Stated (Delaware Law)- between the plaintiff or plaintiff's assignor and the defendant contains a choice of law provision requiring all matters to be decided under the laws of Delaware. Pursuant to Delaware Code Ann. Tit. 10 §8106, the plaintiff's time to file this lawsuit expired three years after the date of breach or last activity by the defendant. State Forum Selection Clause 18. Parties may be bound by terms under the debt which would require the possible usage of another state’s substantive law to be applied in this action. By litigating within the state of Florida the defendant is not waiving said provision. Plaintiff has not yet produced the necessary documentation to ascertain if a foreign venue selection clause or substantive law provision exists covering this action. At a minimum, Florida’s procedural law would apply but not necessarily Florida’s substantive law pursuant to possible applicable contract provisions, if any. Therefore, defendant is not waiving any right as to another states application of substantive law by defending this action. Counterclaims 19. The defendant specifically reserves the right to file counterclaims which are discovered in the course of discovery. Wherefore, Defendant request that the Court deny the relief sought by plaintiff, and award Defendant court cost, and such other relief as this Court deems just and proper. CERTIFICATE OF SERVICE I certify that a copy of this document was mailed to . attorney for the Plaintiff, Respectfully submitted,
  15. sorry for the numbering and format, it didnt copy over correctly. @LawKitty and @debtzapper, is this good guys.
  16. Comes Now, that defendant, , pursuant to Rule 1.190, Florida Rules of Civil Procedure and files this, their Motion for Leave to File Amended Answer and Affirmative Defenses, and as grounds would state the following: 1. On April 3, 2015, the instant action was filed with the Clerk. 2. Since that time , Defendant has uncovered new information. 3. The Defendants seek to amend their previous Response and raise Affirmative Defenses. 3. A motion for leave to amend should be freely granted under Rule 1. 190(a). 4. Fla. R. Civ. Pro. 1.190 provides for liberal amendment of pleadings. All doubts should be resolved in favor of allowing amendment. It is the public policy of this state to freely allow amendments to pleadings so that cases may be resolved upon their merits. Bill Williams Air Conditioning & Heating. Inc. v. Haymarket Co-Op. Bank, 592 So.2d 302 (Fla. 1st DCA 1991), rev. dismissed, 598 So.2d 76 (Fla. 1992) (quoting Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla. 1st DCA 1983). 7. The matter is not set for trial and is in its infancy, and therefore no prejudice will inure to the Plaintiff. The Answer has not been previously amended and the privilege to amend has not been abused. 8. Defendant do not seek to unnecessarily delay the prosecution of this matter, by filing this Motion to Amend. 9. Defendant Amended Answer is being filed simultaneously with this Motion. WHEREFORE, Defendants respectfully request this Court grant their Motion for Leave to File Amended Answer and Affirmative Defenses, and for such other and further relief as this court deems just and proper.
  17. Ok everyone from doing research, there are several cases including the pincus case, where the governing law of the credit card agreement was won in florida. This means that the SOL is been set and this is a time barred acoount. If anyone can find more cases i'd love to state them in my amendment.
  18. Now that Midland has proven to own the debt, can i use the SOL of limitations from this, (Governing Law This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account) Taken from the credit card agreement directly, I did not raise this as an affirmative defense as i did not know about it till afterwards, how can i use this against them. Also how do i go about amending my affirmative defenses. Now that all this has risen i need to add this?
  19. Hey guys here are the documents that were sent, They have also submitted a motion for summary judgement. Sorry for the quality but it was 76 pages and the court wouldnt let me email or receive another copy with paying 1 dollar per page, so i just took pictures of the documents, the remaining pages are credit card statements, pretty much every one possible. Charges statements everything. Again sorry for the quality any additional help is greatly appreciated. 20150408114537.pdf @BV80
  20. the intent to dismiss was filled by the court for lack of prosecution. With this request now being delivered, does that mean that the court date set is no longer valid, or will we still go to court ?
  21. Hey everyone i know its been a long time, But i havent heard anything form them up until now, well actually it wasnt even them at first. I got a notice form the court that there was an intent to dismiss due to lack of prosecution. This was 5 days ago, and court date set for june. Now three days after that intent to dismiss, the JDB finally responded to my RFD over a year ago since JAN 2014. Now i know this starts the clock all over again, and now i have to see whats going to happen. I have yet to recieve the response to my request, so i dont know what they have provided , isnt there something i can do to continue the intent to dismiss since they were suppose to respond over a year ago?
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