Here’s my opposition to their MSJ. I haven’t included all of the “see this or that” yet
and where it does say “see Defendant’s Objection To Affidavit and Evidence” I’ll maybe
have to change what I’m calling it. I still have to add the conclusion but I wanted to get
this posted tonight so you could look at it. Also if anyone wants to help me find MN
case law I would be extremely grateful. I’m having some serious health issues right now
and need help.
Defendant, appearing Pro Se for its Opposition to Plaintiffs Motion For Summary Judgment
and as grounds thereto states the following:
1. Plaintiff served Defendant a Summons and Complaint on June 16, 2014.
Defendant served Answer and Discovery Requests to Plaintiff on June 30, 2014.
2. Plaintiff filed their complaint with the court on August 4, 2014.
3. Defendant attempted to file her Answer and other initial papers with the court, along
with a payment for filing fees of $75.00 on August 10, 2014. The court returned the
documents with a discrepancy notice for not paying the correct amount of $322.00.
Defendant mistakenly thought the case was filed in Small Claims Court due to the
amount of the claim.
4. Defendant sent a letter, via certified mail, to Plaintiff's attorney on September 6, 2014
electing arbitration with JAMS and requesting dismissal of this case.
5. Defendant sent a letter to Judge XXXXXX stating she was electing private arbitration
per the terms of the Credit Card Agreement on September 8, 2014. The letter was
returned with a discrepancy notice that said the Defendant had to pay the $322.00
filing fee in order to send the Judge a letter.
6. Defendant sent Plaintiff and Plaintiff’s attorney JAMS official “Demand For
Arbitration Before JAMS” packet, via certified mail, on September 19, 2014.
7. In accordance with JAMS rules upon receipt of the Certified Mail Return Receipt’s
from Plaintiff and Plaintiff‘s attorney, Defendant sent the Demand For JAMS to the
JAMS Resolution Center in Minneapolis, Minnesota along with the necessary proofs
of service on September 29, 2014, via certified mail.
8. JAMS Resolution Center is awaiting a response and payment from Plaintiff in
accordance with JAMS Rules and GE Money Banks Credit Card Agreement.
9. Plaintiff filed for a Motion For Summary Judgment on October 2, 2019.
10. Defendant filed an Affidavit for Proceeding In Forma Pauperis along with a Motion
To Compel Arbitration on October 13, 2014. The court denied the In Forma Pauperis
Plaintiff ’s cause of action for this case and Motion For Summary Judgment are based on
claims that are unsupported by credible and admissible evidence and/or no evidence.
(see Defendant’s Objection To Affidavit and Evidence).
Plaintiff has not met the summary judgment standard as there are no facts admitted or
clearly proven and there is a genuine issue as to material facts. (see Defendant’s
Objection To Affidavit and Evidence).
I. Plaintiff is not entitled to alleged balance remaining on account in question.
Plaintiff alleges, “GE Money Bank sent accurate invoices and/or statements of account
of the transactions on the account. The invoices and/or statements of account were
received by Defendant, accepted and retained by Defendant without an unresolved
dispute being made within a reasonable period of time. In furtherance of the charges
made and/or cash advances taken, a full, just and true account was made and stated
between GE Money Bank and Defendant. An unpaid balance of $1,063.53, remains
due to Plaintiff from Defendant over and above all sums received from Defendant and
for which Defendant is entitled to credit”. These are Plaintiff’s opinions, Plaintiff has
offered absolutely no evidence to substantiate these allegations. Furthermore Plaintiff
appears to be speaking on behalf of GE Money Bank, which is hearsay. Plaintiff’s
statements regarding Defendant are a complete fabrication.
Regarding Plaintiff’s statements about arbitration and filing Defendant’s answer, please
see Defendant’s FACTS in this memorandum and Defendant’s Motion To Compel Arbitration.
Plaintiff alleges, “The issuance of the credit account to Defendant was an offer and the
contract became binding when the Defendant retained the credit account and made use
of it, thereby agreeing to the terms of the written agreement. Thus these facts show mutual
assent in the form of a valid offer by GE Money Bank and a valid acceptance by Defendant”.
Plaintiff refers to his opinions as facts, the fact is Plaintiff has offered absolutely no evidence
to substantiate these allegations. Furthermore, Plaintiff has not provided the Court or the
Defendant a copy of the written agreement that is referred to.
Plaintiff fails to make a factual argument as to consideration.
Plaintiff has offered no admissible evidence.
II. Plaintiff fails to make a factual argument for account stated.
a. Plaintiff can not prove a prior relationship between Defendant and GE Money Bank,
relying solely on Midland’s own inadmissible “Field Data” sheet.
b. Plaintiff fails to prove mutual assent between the parties as to the correct balance
of the alleged account relying on an uncertified, unsubstantiated and unsworn copy of a
single statement with a $0.00 balance that Defendant has never seen before commencement
of this action.
c. Plaintiff can not prove a promise by the Defendant to pay the balance of the alleged
account. Plaintiff fails to provide any evidence that GE Money Bank sent any statements to
Defendant or that Defendant received and retained any alleged statements. Defendant could
not have objected to or disputed something that did not occur.
Plaintiff fails to provide any detailed monthly billing statements, proof that said statements
were sent to Defendant or evidence that Defendant received and retained the alleged statements.
Plaintiff does not provide any evidence showing charges made, fees, interest, credits and
payments on the alleged account.
III. Plaintiff has no evidence they are the assignee of the alleged account.
Minnesota law requires an intent to transfer must be manifested. Plaintiff states, “Here the
language of assignment clearly shows an intent by GE Money Bank to transfer all interest in
Defendant’s account. Additionally GE Money Bank has relinquished all control over the
Defendant’s delinquent account and it’s proceeds to Plaintiff. Accordingly, Plaintiff, by
standing in the shoes of the assignor via the valid assignment, has standing to sue on the
Defendant’s unpaid debt”. Plaintiff’s statements are a falsehood. Plaintiff’s evidence is an
irrelevant Bill Of Sale from GE Money Bank to Midland funding for unknown accounts.
Bill Of Sale does not state Defendants name or alleged account number, it bears no connection
between GE Money Bank, Midland Funding, LLC and Defendant. Plaintiff has no evidence of
being the assignee of the alleged account and therefore lacks standing to sue Defendant in this case.
IV. Defendant has commenced Arbitration via JAMS.
Plaintiff is disingenuous in stating Defendant has not commenced arbitration. Defendant sent to
Plaintiff and Plaintiff’s attorney the official Demand For JAMS on September 19, 2014 via Certified
Mail Return Receipt, 10 days before they signed their Motion for Summary Judgment with Plaintiff’s
statement that Defendant had not commenced
arbitration. JAMS rules require both parties to pay their Case Management Fee prior to receiving a
case number. Defendant has made her payment, JAMS has been waiting for Plaintiff to make theirs.
All of the necessary information is readily available at the JAMS website. Plaintiff states they intend
to breach the GE Money Bank contract unless the court orders them to comply. Furthermore Plaintiff
states Defendant’s dispute is based on financial hardship which is an utter lie and personally offensive.
V. Statute of Limitations
Plaintiff states, “In her answer to the complaint, Defendant alleges the statute of limitations expired
on this debt and that Utah law should be enforced”. That is untrue, in Defendant’s answer to the
complaint it says, “Plaintiff has not provided Defendant documentation to establish the alleged
account is within Statute of Limitations for legal action”. Plaintiff included a copy of Defendant’s
answer in their Motion for Summary Judgment, the truth is right there.
Plaintiff has no admissible evidence establishing the statute of limitations, there is no admissible
evidence as to the last payment made on the alleged account.
“While respondent is correct that appellant bears the burden of proving his statute-of-limitations
defense, we conclude that the district court erred in determining that appellant failed to meet his
evidentiary burden for purposes of surviving a summary judgment motion, and erred in relying on
respondent's inadmissible affidavit as establishing when a default occurred on the credit card account”.
MIDLAND FUNDING, LLC v. Schlick, Minn: Court of Appeals 2013