markinri

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About markinri

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  1. Thanks for the advice. I am making printouts of all the cases I cited.
  2. Is there a way to merge them together or remove one? Don't want to start a fight or make things cluttered.
  3. Sorry on opening a new thread, I had read in another thread earlier it was better to open a new one at times when there were major differences. I can delete this and move to the old thread if folks want. Thanks for those rules, I had found those already. Was looking for detailed text of these: Rhode Island Rules of Evidence - Rules of Civil Procedure - State Rules of Civil Procedure - Civil Procedure
  4. 4. Plaintiff Fails To Lay a Proper Foundation to Admit Records of a Third Party Plaintiff alleges that the Defendant owes $$$$ to Midland Funding LLC as an “assignee” to OC.. Plaintiff asserts that it is the successor-in-interest or assignee of OC.. In his answer, defendant asserts that he does not owe any money to OC., and further that Defendant does not owe any money to Midland Funding LLC. Plaintiff relies exclusively on an affidavit executed by XXX XXX who identifies herself as an employee of Midland Credit Management, Inc (“MCM”) the “servicer” for the Plaintiff, and as such, she claims to be qualified to make statements on behalf of the plaintiff. Ms. XXX claims familiarity with the recordkeeping practices of MCM, and has “reviewed the records pertaining to the account.” However, Ms. XXX does not advance any documents admissible as evidence. Moreover, Ms. XXX does not discuss any documents produced by the plaintiff or original creditor. Through her affidavit, Ms. XXX seeks to establish three facts on which to ground Plaintiff’s claims: that Defendant opened an account with OC.; that Defendant accrued charges on alleged account; and that the Plaintiff is entitled to sue as OC.s assignee. Ms. XXX’s affidavit as a Midland Credit Management employee is not adequate to establish any of these facts. Additionally, when text of the affidavit is compared with the Plaintiff’s attachments, it is apparent that the affidavit is merely a boilerplate recitation unconnected to the underlying documents. Also, the affidavit itself contains multiple barcodes, date formats that are not commonly used by individuals (Year-Month-Day), and has been dated with what appears to be the same stamp as the one used by the notary. As such, the affidavit lacks trustworthiness. Defendant states that the Plaintiff’s affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, OC.. At no time was the affiant nor any of the Plaintiff’s employees present to witness any purported acts or creation of the records of transactions and communications occurring between the Defendant and OC.; As such, the affidavit of XXX XXX falls under the hearsay rule Rule 802 and is inadmissible as evidence. Defendant further states that the affidavit is not subject to the hearsay business records exemption In Rule 803(6) because it was not made at or near the time of the purported acts or events, and ; the information contained in the document is merely an accumulation of hearsay, and; upon information and belief, the creator of the document in Plaintiff’s affidavit is not currently and has never been employed with OC. and therefore cannot have personal knowledge of how OC.’s records were prepared and maintained and; is unqualified to testify as to the truth of the information contained in Plaintiff’s affidavit. Rhode Island courts have held that "The plaintiff had no personal knowledge of the making and keeping of the medical records and, therefore, was not a competent witness to authenticate them. Without authentication, the records are not admissible under Rule 803(6)." Boscia v. Sharples, 860 A. 2d 674, 680 - RI: Supreme Court 2004. Rhode Island courts have also held that "Rule 803(6) does not define 'custodian' or 'qualified witness,' but the Rhode Island Supreme Court has held that a witness lacking personal knowledge of the making and keeping of the business records is not competent to authenticate them." State v. Carrera, 528 A.2d 331, 335-336 (R.I. 1987). Defendant further claims that the underlying data used for the summary compilation of Plaintiff's Affidavit of the alleged account were not records kept in the course of regular business by Midland Funding LLC, but were records kept by OC., who is not a party to this suit. There is no record of who compiled the underlying data specifically, therefore no way to challenge and cross-examine the accuracy of this data in the course of a trial. Pursuant to Rhode Island Rule 902 the XXX affidavit fails to authenticate the Plaintiff’s attached documents/exhibits contained in the Complaint, and; the affidavit neither makes reference to the attached exhibits, nor identifies the documents Plaintiff purports to authenticate and offer as evidence; and must be excluded and stricken in the above action. While Ms. XXX may very well be “familiar with the manner and method by which MCM creates and maintains its business records”, the mere acceptance or incorporation of electronically transferred data from OC. info Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of 803(6) which authorizes the court to exclude business records when the "source of information or the method or circumstances of preparation indicate a lack of trustworthiness." SeeInternational Brotherhood of Electrical Workers, Local No. 99 v. United Pacific Insurance Co., 573 A.2d 270, 273 (R.I. 1990). Defendant further states that the “Billing Statements” attached to Plaintiff’s Motion for Summary Judgment, issued by the alleged original credit grantor are not admissible as the alleged purchasing plaintiff's business records, as the alleged purchasing plaintiff does not authenticate said documents, and has no personal knowledge of how those records were created or maintained. Since the plaintiff has no personal knowledge of the making or keeping of these records, the Plaintiff is ”...not a competent witness to authenticate them. Without authentication, the records are not admissible under Rule 803(6)." Boscia v. Sharples, 860 A. 2d 674, 680 - RI: Supreme Court 2004. Designated Evidence: a. Affidavit of XXX XXX, in it’s entirety. Exhibit “A” to Defendant’s Response. b. “Billing Statements” Exhibit “C” to Defendant’s Response. As Plaintiff has not advanced any factual basis or evidence that the Court is obliged to consider in support of its complaint, the Defendant asks the Court to deny the Plaintiff’s Motion for Summary Judgment. CONCLUSION For the reasons stated above, Defendant submits that Plaintiff’s motion for summary disposition should be denied.
  5. DEFENDANT’S MEMORANDUM OF SUPPORT IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION Under Rule 56, a party may make a motion for summary judgment when there exists no issues of genuine fact. However, “It is the province of the trial justice to determine, by an examination of the pleadings, depositions, answers to interrogatories, admissions on file, and the affidavits of the parties, whether these documents present a genuine issue of material fact.” Additionally, Due to the extreme nature of summary judgement, "'the court does not pass upon the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion.'" Lennon v. MacGregor, 423 A.2d 820 (R.I. 1980). Only after the Court determines there is no factual dispute and ambiguity as a matter of law, that judgment may be granted. However, “if after canvassing the material presented, the court finds that genuine factual issues remain, whose resolution one way or another could affect its outcome, the court must deny the motion.” Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988). It is the Defendant’s position that the Plaintiff cannot meet the legal standard necessary for summary judgement, there are genuine issues of fact and the motion should be denied. MATERIAL ISSUES OF FACT I. Plaintiff fails to show that it is the owner of the debt alleged. An essential element of Plaintiff’s action is proof that it is owner of the debt claimed. "A valid assignment requires only two elements. First, 'the subject matter of the assignment [must be] described so that it is readily identifiable.' Second, there must exist 'clear evidence of the assignor's intent to transfer [his or] her rights.'" See MARANDOLA v. MARANDOLA MECHANICAL, INC., RI: Superior Court 2004 Super LEXIS 115 at *5-6 (citing Flanders & Medeiros Inc. v. Bogosian, 868 F. Supp. 412, 420 (D.R.I. 1994)). In the present case, Plaintiff has clearly not produced the any agreement which is readily identifiable or that shows evidence of intent to transfer rights. A lack of standing renders the litigation subject to dismissal. An assignee has the burden to prove the assignment; an assignee must tender proof of assignment of a particular account or, if there was an oral assignment, evidence of consideration paid and delivery of the assignment. In this case the plaintiff fails to meet any of this burden. Plaintiff invokes Rule 56 of the Rhode Island Rules of Civil Procedure in support of its motion for summary judgment; by among other things submitting a “sworn” affidavit to the Court alleging certain facts. However, said affidavit fails to meet the basic mandates for admissibility as evidence. Rule 56 of the Rhode Island Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit”. In as much as the plaintiffs affidavit fails to meet the requirements of the very Rule that plaintiff invokes to seek judgment, plaintiff has failed to bring forth any evidence warranting the court to rule in its favor. Defendant believes that the Plaintiff’s Motion for Summary Judgment should be denied with prejudice. Plaintiff has submitted into evidence an untitled printout (hereinafter as “the printout”) from (according to the footer) “electronic records provided by OC” which references a “Bill of Sale / Assignment of Accounts dated DATE.” The affidavit does not specify the Defendant, nor reference in any way any document which could be associated with the Defendant. These are in fact generic documents without specificity that could apply to any defendant. The Plaintiff's reliance upon the documents it submits is insufficient to make case entitling the Plaintiff to summary judgment. Simply attaching documents to the motion is insufficient. Without a proper evidentiary foundation, “the printout” is therefore conclusory, and should be stricken from evidence in the above action. Additionally, where a statement contained in an affidavit is merely conclusory, the trial court should disregard it when ruling on a summary judgment motion. Designated Evidence: a. Affidavit of XXX XXX, in its entirety. Exhibit “A” to Defendant’s Response. b. Untitled printout “the printout”, in its entirety. Exhibit “B to Defendant’s Response. II. Plaintiff fails entirely to show the amount of damages. The amount that Plaintiff claims as damages is not supported by competent evidence. Attached to Plaintiff’s motion is an affidavit of XXX XXX who states that she is an authorized employee of Midland Credit Management, Inc, servicer of the account on behalf of the plaintiff. Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion. Rule 56(e). Additionally “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith”. Rule 56(e). Plaintiff’s affidavit signer does not attach, or even identify the data on which her testimony is based and, as an employee of the assignee rather than the original creditor, lacks the requisite personal knowledge to support the plaintiff’s claim. Designated Evidence: a. Affidavit of XXX XXX, in its entirety. Exhibit “A” to Defendant’s Response. cont...
  6. DEFENDANT’S OBJECTION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT Comes now ME, Pro Se, and moves the court to deny Plaintiff’s Motion for Summary Judgment pursuant to Rule 56 of the Rhode Island Rules of Civil Procedure, and grant said judgment in favor of the Defendant on the grounds that movant has failed to proffer facts which make a prima facie case. Therefore, Defendant is entitled to Summary Judgment in his favor as a matter of law, and states as follows: 1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law. A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. 2. Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “There is no genuine issue as to any material fact and Plaintiff is entitled to judgement as a matter of law.” Motion for Summary Judgment should be denied. 3. There are material issues of fact that preclude summary judgment for the Plaintiff, thus Plaintiff's request for Summary Judgment should be denied. 4. Defendant submits his Memorandum of Support in Opposition to Plaintiff’s Motion for Summary Judgment for the court’s consideration. By the Defendant acting pro se
  7. Hi all, I need to file an objection to a MSJ here in RI tomorrow. I've been working all weekend since they denied my extension of time request(thanks to all who helped in my last thread). I'm sure I have a few errors on the RI rules of evidence. They don't seem to exist anywhere on the internet so it is a bit tricky to cite them. I have tried to pull together from different samples posted on here. Unfortunately I am a computer programmer not a lawyer. Any feedback - positive or negative - would be great
  8. Just a follow up and hope that one of the regulars can point me in the right direction here. I went to court today w/ my request for extension of time but was told I couldn't submit it since I am due in court next week. I was told I could bring it up then. I was also told I need to file my objection to the msj by then as well. So here I am writing my objection now. I have a few questions: 1. How do I reference the attached credit card statements and the single page printout (which has my account #, my name, etc but no title) they included in the motion. They are only referenced in the motion as "the documentation of Plaintiff attached showing the outstanding balance on this account"? 2. Does the plaintiff have to specifically introduce these documents into evidence, or are they just assumed by them including them? I don't see anything in their memorandum in support of the motion where they introduce them. 3. Rhode Island law states "sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit". In the affidavit they state that I owe them, however she doesn't actually reference any of the documents that were included. Those documents don't have any certification marks on them either (I can scan and upload redacted copies if that helps). I feel like this makes all of the documents they submitted (if they are considered evidence in #2) to be hearsay. First as the cc statements aren't from midland and second because the affidavit doesn't swear or certify them. Thanks for everyone's help. I should have this document hopefully done in a few hours. -Markinri-
  9. Hi everyone, Per this thread : http://www.creditinfocenter.com/forums/there-lawyer-house/315479-need-help-opposition-msj.html I was hoping to get some feedback before tomorrow morning when I am going to deliver this. Thanks. STATE OF RHODE ISLAND SIXTH DIVISION COURT PROVIDENCE, SC. C/A # XXXXXX MIDLAND FUNDING, LLC Plaintiff V. ME Defendant(s) DEFENDANT'S FIRST REQUEST FOR AN EXTENSION OF TIME TO RESPOND TO THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT The Defendant in the above titled action respectfully requests an extension of time of sixty days to respond to the Plaintiff's Motion for Summary Judgment. This is the first extension of time requested, and it is not intended to delay or hinder. Disclosure is incomplete, and in the interest of improving the Court's efficiency, it would be most beneficial to grant the requested extension, as it is expected that issues of triable fact will be raised when disclosure is completed. ME By: _______________________________ ME CERTIFICATE OF SERVICE I certify that on the 1st day of August, 2012,, a true and correct copy of the above document was forwarded via U.S. Mail, first class postage prepaid and properly addressed, to the following at the addresses shown below: JDB Lawyer s/_______________________________ STATE OF RHODE ISLAND SIXTH DIVISION COURT PROVIDENCE, SC. C/A # XXXXXX MIDLAND FUNDING, LLC Plaintiff V. ME Defendant(s) ORDER FOR JUDGEMENT Defendant’s first request for an extension of time to respond to the plaintiff’s motion for summary judgement is hereby granted. Ordered by the Honorable Justice __________________________________ on _________________ Entered BY: _________________________________ Honorable Justice PER ORDER BY: _________________________________ Deputy Clerk PRESENTED BY: _________________________________________ ME
  10. I'm going to do this tonight and keep working on my reply to the msj.
  11. Thanks. I believe you mean this post http://www.creditinfocenter.com/forums/there-lawyer-house/311576-detailed-discussion-affirmative-defenses-including-standing-3.html#post1184427
  12. Edit: My concern on going down this road is the opposition to msj is due very soon. Not sure if it would be too close time wise. /edit Perhaps something like what is in this: http://www.creditinfocenter.com/forums/1164315-post28.html with a form for the order.
  13. Just wondering if anyone had any thoughts on filing for an extension to complete discovery and to depose the affaint. I haven't requested one before in the case and can't locate anything in the Rhode Island rules about time limits for conducting discovery or depositions.
  14. Good points. Sorry for not replying earlier I am doing this on my phone on the train. I never sent discovery but I got it ready and plan to send tomorrow regardless. Right now I think the main issues I can go on are 1. They haven't shown that they own the - no bill of sale 2. I haven't had a chance to dispose the person who filed the affidavit 3. No showing how they came up with the amount since they didn't produce three statements they included I'm sure there are more things, just hard to do on the phone. One thing I was thinking was that discovery isn't complete yet also. Could I also file for an extension at the same time? Again, thanks for everyone who is helping. I will be home and on a real computer soon.