Neobane

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About Neobane

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  1. Be cautious of this. The attorneys' who are handling the case against use for Midland told the court that that document, a database dump, was the "link" between all the documents from the OCs and Midland. You need to be prepared to explain to the judge with authority that a generic database dump generated by the Plaintiff is not valid proof of ownership. This is where it gets tricky and the judge holds the cards. You have to find case law, statute, regulation, or rule that backs your argument that 2nd hand information cannot be admitted. This data is generated by the plaintiff BASED on information obtained from the OC. You need to argue that the information this database dump is based on must be admitted in order to satisfy the evidentiary requirement. Check with your court rules AND state's statutes on both evidence and motion for summary judgment. Oklahoma has rules and statutes for both.
  2. @hot-in-az We've looked over everything and combed over laws for the last 2 years. We thought we had a slam dunk win after the Civil Appeals Court thoroughly tore apart a MSJ from Midfirst Bank just this past year. In the CA court ruling, they covered the lack of sworn/certified copies in the evidence, the laws and rules that prohibit evidence from being "converted" in a MSJ, and just bitch slapped the lower court ruling. Somehow, this judge doesn't want to or isn't bothered to read any of that. Or, when the Plaintiff responded to my Opposition and lied (claiming I cited the lower court case and that the plaintiff never referenced paper), the judge believed? them. That's just about what the judge is supposed to do in part of her job. We didn't even get to talk about standing yet. Plaintiff's 2nd of 3 MSJs had new documents and affidavits that did not exist when they filed and were never given to use during discovery. This is not supposed to be permitted as they were to have proven standing prior to the suit. But judge ignores that all together. We are very pissed off at the lazy look at this and think the judge is really tired of looking at this case after 2 years. We've contacted a law firm today. Part of me hopes the judge rules against us so that we can appeal. Just adds yet ANOTHER case law that can be used against them.
  3. So an update on our case and this is probably not going to end well for us...or anyone in our District. The Plaintiff responded to our Opposition to their Motion for Summary Judgment. In their response, they claimed that they never referenced a "Paper". As they entered this response with little time before the court date, I had prepared verbal responses which pointed out the specific statements, figures, numbers, data, etc. that were found on the evidence documents. They also tried to claim that I cited the lower court case of "Midfirst Bank vs. Wilson", which is a mortgage case and inapplicable. I had prepared an oral argument that was just short of calling their attorneys illiterate for not seeing that my citation was from the Appeals Court case not the lower court and dealt with improper MSJs and Standing. So after all this preparation, we appear in court. The judge swears my wife and I in. Says she's read over the documents. The plaintiff begins by saying the motion should move forward because we have not established genuine issue with the facts. We stated that the motion itself in inappropriately filed and we have issue with their standing to sue. Just asked us how we believe this and we stated that the evidence does not directly and uniquely identify us in the bulk of accounts transferred from OC 1 to OC2 to JDB. Here's where things go stupid and we started to see a bias. The plaintiff turns to the "Database Dump" at the back of the MSJ. She says this links us to the accounts sold. We told the judge that the database dump was generic and could have come from any database anywhere and valid "invoice" as the source of the information entered into the database was not included. The judge then asks if the plaintiff can get the database dump sworn or certified. Plaintiff says yes. Judge says Ok. If it comes back sworn/certified, she would approve the MSJ. Didn't even address our opposition and points, didn't both with the motion to strike. Nevermind the points that WE don't have to do squat to have the motion thrown out because it was not properly submitted. Nevermind that evidence in a MSJ can be "converted" to admittable evidence. It's either pass or fail as it is. So we believe now is a good time to lawyer up. We are convinced that the judge has no interest in listening to our case or hearing this thing as an independent body. This judge hears these cases only once a month. Since we started this 2 years ago, we've seen the same attorneys on the plaintiff side nearly every time. The judge and these attorneys are on a first name basis. We've seen them ask each other about their families. So we realize there is some familiarity here. If we stand on our own, we are certain that the judge will rule against us no matter what the plaintiff does right or wrong. We will have no choice but to appeal and hope that the Civil Appeals Court slaps the living dog-snot out of this the way they did the Midfirst v. Wilson case. So this ends my update and rant on the situation. It doesn't bode well for other Pro-Se litigants in my area. They are going to be railroaded if they don't have counsel to stand up for them. What do you folks think?
  4. Here's a bit of insight into "clerks". (This goes for MOST public facing gov't employees who do customer service stuff). They are civil service employees. Sometimes at-will hires, sometimes union. Either way, their job sucks. They have judges, politicians, bailiffs all "better" than them constantly riding their a$$ and making their job harder. They get no "benefits" like private sector jobs, so no morale building things because that's a negative use of "public funding". Then they have more dickhead attorneys, pro-se, politicians, etc. coming to the OTHER side of the counter and of coure are "better" than them. They have to deal with the angry, power-mad, abusive, smug, snide, rude, and just about every other personality that most of us would love to avoid encountering. Of course, instead of dealing with the rules established or speaking with ANYONE that has the authority or ability to change or excuse the rules, people want to shoot the messenger. Like a court clerk can do anything about it. All the while these are the people that hold everything together. What looks beautifully crafted and organized is really a circus act held together with frayed rope and duct tape constantly being "bandaged" by these clerks. Then to make them even more enthusiastic, they get to take home very meager salaries for having to deal with these people. In Oklahoma, expect about $18-20K / year starting salary for these people. So please, next time you decide you want to piss in someone's Cheerios, place yourself on the other side of that counter and imagine that YOUR behavior is what they deal with dozens of times a DAY.
  5. Pretty much. I brought the motion up before the judge citing that "should something happen to my wife, I'd be held liable for whatever outcome came of this case". Judge said this is no longer case (I guess she was referring to divorcer where I meant death). She did however allow me to speak for my wife with the Plaintiff's consent.
  6. @keets62 I know this is a month old, but if you are still trying to get this tied together, here's a case law from Oklahoma to help you out. http://www.creditinfocenter.com/community/topic/228720-case-law-add-yours-to-this-post/?p=1300444 My on-going ordeal with LBN/Midland http://www.creditinfocenter.com/community/topic/323994-interesting-turn-in-case-def-against-midland-funding-ok/?p=1298191
  7. While I was researching my case with the guidance of @BV80 and @debtzapper, I came across this case from 2013. It sets a precedent that I could not find in the state of Oklahoma before and covers nearly EVERY facet of a MSJ opposition a Pro Se Defendant could want. Posted my thoughts on the interesting components of the ruling. Someone may want to go over the first few paragraphs as it beats the tar out of the Banks right to enforce the note. If I am mistaken or forgot something, let me know. Appeal of Motion for Summary Judgment (MidFirst Bank v. Wilson) Original MidFirst Bank v. Wilson Case (on-going) Oklahoma Statutes (O.S.) Rules for the District Courts of Oklahoma Points of Interest in MidFirst Bank v. Wilson: ¶ 6 - 8: MidFirst attempted to use an affidavit to establish standing to sue in their motion for summary judgment. The affidavits referenced several documents that were either not attached or were not certified. 12 O.S. 2056(E) in part: "If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit." Laymans Translation: This means that when a moving party files any affidavit with the motion, it MUST include a certified or authenticated copy of any and all records records referenced in the affidavit. If any record is missing or uncertified/unauthenticated, the affidavit is inadmissible. ¶ 9 - 10: 12 O.S. 2056(E) in part: "When a motion for summary judgment is PROPERLY made and SUPPORTED, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial." Rule 13© of the Rules for District Courts of Oklahoma, 12 O.S. 2011, ch. 2 in part: "If there is a dispute regarding the authenticity of a document or admissibility of any submitted evidentiary material, the court may rule on the admissibility of the challenged material before disposing of the motion for summary judgment or summary disposition. A party challenging the admissibility of any evidentiary material submitted by another party may raise the issue expressly by written objection or motion to strike such material. Laymans Translation: Statute overrides Rules. If the motion is properly made, i.e. the supporting evidence admissible, then the non-moving party would have to file affidavits, evidence, etc. contesting the MSJ. They simply cannot deny or call the MSJ falacious. However, when the motion is IMPROPER, as when evidence is inadmissible or there are faults in the motion, 12 O.S. 2056 does not apply. In this case, Rule 13© steps in and permits the non-moving party to challenge the motion by simply writing an objection or motion to strike. Rule 13© of the Rules for District Courts of Oklahoma, 12 O.S. 2011, ch. 2 in part: "Evidentiary material that does not appear to be convertible to admissible evidence at trial shall be challenged by objection or motion to strike..." 12 O.S. 2056 in part: "If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit." Laymans Translation: While Rule 13© permits improperly admitted evidence to be admitted IF it can be converted by say getting the evidence certified or authenticated, 12 O.S. 2056 over rides the rule and makes the admission of a sworn or certified copy mandatory. They cannot replace the flawed documentation with a good version without allowing the Plaintiff a motion to amend their pleading and delaying the process. ¶ 11 - 12 Establishes that the chain of evidence, even inadmissible, still could not link the Plaintiff to the Defendant specifically. Court ruled against the motion for summary judgment for both lack of standing and improper motion without a Motion in Opposition. O.S. 12 2056(E) in part: "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." Laymans Translation: I may be reaching on this, but the court examined the motion and found on its own that the motion was flawed. While Defendants MUST oppose a PROPER motion for summary judgment and do so properly, the court has the authority to determine a motion IMPROPER without a Defendant intervention. This might be a thing for people filing appeals against MSJs that were granted.
  8. @BV80 @debtzapper I think this is close to my final draft. I know that it's best to counter the MSJ paragraph to paragraph, but I think the recent ruling in the MidFirst Bank v. Wilson Appeal changes everything. This case addresses nearly every facet of a Motion to Summary Judgment (among other things) a Pro Se Defendant could want. I really really wanted to write nothing in my opposition but "See MidFirst Bank v. Wilson"... Feedback would be appreciated on content. DEFENDANT’S OPPOSITION TO PLAINTIFF’s MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT INTRODUCTION COMES NOW, the Defendant, ___________, Pro Se, appears before and petitions the court to overrule Plaintiff’s Motion for Summary Judgment. Judgment in this matter would not be proper as the Plaintiff has failed to show through their motions, pleadings, filings, and evidence that there is no controversy as to any material fact. Defendant contents the most grievous of these is Plaintiff’s failure to show that they possess the standing required to sue in this matter. ARGUMENT AND AUTHORITY Judgment for a Motion for Summary Judgment is only proper as a matter of law if there is no controversy to any material fact, the motion is proper, and is supported by admissible evidence. "Summary judgment is appropriate only when there is no substantial controversy as to any material fact." (Copeland v. Tela Corp., 1999 OK 81 ¶ 4, 996 P. 2d 931, 932). Defendant contends that there exists very real issue with the facts of this matter and that it rests upon the shoulders of the Plaintiff to remove any and all controversy to any material fact established by the Plaintiff’s Motion for Summary Judgment. “The moving party has the initial burden of showing that there is no substantial controversy as to any material fact” (Bowers v. Wimberly, 1997 OK 24, ¶ 14, 993 P.2d 312, 315). Plaintiff submits into evidence “Exhibit B”, an affidavit executed by Bonnie Gohman. The affiant testifies that the Plaintiff “MIDLAND FUNDING L.L.C. became the successor in interest on this account”. Affiant also testifies to certain account details based on having “access to and reviewed the records pertaining to the account”. These referenced documents are not attached to this affidavit. O.S. 12-2056(E) states: “A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” In the matter of MidFirst Bank v Wilson, MidFirst filed a motion for summary judgment using similar practices as the Plaintiff in this complaint. MidFirst filed an affidavit of an employee, but did not attach certified or authenticated copies of the documents referenced by the affiant. While uncertified/unauthenticated copies were elsewhere in the motion, the Appeals Court still ruled “ Rule 13© of the Rules for the District Courts of Oklahoma, 12 O.S. 2011, ch. 2, app., states: “The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The admissibility of other evidentiary material filed by either party shall be governed by the rules of evidence. If there is a dispute regarding the authenticity of a document or admissibility of any submitted evidentiary material, the court may rule on the admissibility of the challenged material before disposing of the motion for summary judgment or summary disposition. A party challenging the admissibility of any evidentiary material submitted by another party may raise the issue expressly by written objection or motion to strike such material. Evidentiary material that does not appear to be convertible to admissible evidence at trial shall be challenged by objection or motion to strike, or the objection shall be deemed waived for the purpose of the decision on the motion for summary judgment or summary disposition. If a trial of factual issues is required after proceedings on a motion for summary judgment or summary disposition, evidentiary rulings in the context of the summary procedure shall be treated as rulings in limine.” Under Rule 13©, this evidence would normally be admissible as long as it could be properly authenticated. However, 12 O.S. 2056 limits Rule 13 in this matter. “¶ 10 The third copy of the note submitted in support of MidFirst's motion for summary judgment would be admissible at trial if properly authenticated and, therefore, is evidentiary material that could be "convertible to admissible evidence at trial." However, the enactment of section 2056 limits the availability of Rule 13© where, as here, a certified copy of the evidentiary material is not attached to the affidavit.” (MidFirst Bank v. Wilson, 295 P. 3d 1142 - Okla: Court of Civil Appeals, 2nd Div. 2012). “MidFirst's motion for summary judgment, with respect to its status as the holder of the note, was not "properly made." Therefore, the evidentiary material submitted in support of MidFirst's motion does not establish as an undisputed fact that MidFirst is the current holder of the note and that it has been the holder since before the petition was filed. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper.” (MidFirst Bank v. Wilson, 295 P. 3d 1142 - Okla: Court of Civil Appeals, 2nd Div. 2012 ) citing (Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682). The lack of any evidence admissible or not as to the legal ownership of the Plaintiff to any specific account of concern to the Defendant is the final objection in this matter. Even if all of the evidence in support of the motion was admitted, there exists no evidence that associates an account related to the Defendant to the Plaintiff. As such, Plaintiff does not possess the legal standing to sue the Defendant in this matter. “Standing refers to a person's legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact—i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse." (J.P. Morgan Chase Bank, National Association v. Eldridge, 2012 OK 24, 273 P.3d 62 (citing Fent v. Contingency Review Board, 2007 OK 27, ¶ 7, 163 P.3d 512, 519-520)) SUMMARY The Defendant reiterates that it is the burden of the moving party to establish that no controversy exists to any material fact. Further, summary judgment is only proper when no substantial controversy exists and is supported by admissible evidence. As the plaintiff has failed to satisfy these requirements, the Defendant moves the court to overrule Plaintiff’s Motion for Summary Judgment. Respectfully, ____________________
  9. I will have to do an affidavit IF I want to argue on grounds other than everything the submitted is not certified or sworn. Can I do that? Can I say "First, nothing is sworn or certified, so it all must go. Secondly, here's how stupid this is"? ¶ 8 Although there was no disposition of the Wilsons' motion, MidFirst filed a motion for summary judgment in which it again relied on the previously filed affidavit. MidFirst also supported this motion with a third copy of the note attached to its motion as exhibit "B." The first two pages of this exhibit are identical to the copy of the note attached to MidFirst's response to the Wilsons' motion to dismiss. The third page is blank except for an indorsement in blank by Wells Fargo. No other information is contained on that page. However, this third copy of the note is also not attached to the affidavit of the MidFirst employee. Title 12 O.S.2011 § 2056(E) provides, in part: A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.The MidFirst affidavit fails to comply with the requirements of section 2056(E), and the copy attached to its motion for summary judgment is not certified or authenticated as required by that section. ¶ 9 Rule 13© of the Rules for the District Courts of Oklahoma, 12 O.S.2011, ch. 2, app., states: The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The admissibility of other evidentiary material filed by either party shall be governed by the rules of evidence. If there is a dispute regarding the authenticity of a document or admissibility of any submitted evidentiary material, the court may rule on the admissibility of the challenged material before disposing of the motion for summary judgment or summary disposition. A party challenging the admissibility of any evidentiary material submitted by another party may raise the issue expressly by written objection or motion to strike such material. Evidentiary material that does not appear to be convertible to admissible evidence at trial shall be challenged by objection or motion to strike, or the objection shall be deemed waived for the purpose of the decision on the motion for summary judgment or summary disposition. If a trial of factual issues is required after proceedings on a motion for summary judgment or summary disposition, evidentiary rulings in the context of the summary procedure shall be treated as rulings in limine.¶ 10 The third copy of the note submitted in support of MidFirst's motion for summary judgment would be admissible at trial if properly authenticated and, therefore, is evidentiary material that could be "convertible to admissible evidence at trial." However, the enactment of section 2056 limits the availability of Rule 13© where, as here, a certified copy of the evidentiary material is not attached to the affidavit. Even though the Wilsons did not challenge the admissibility of the note pursuant to the procedure set forth in Rule 13©, that challenge was not required until MidFirst properly tendered evidentiary material in support of its motion for summary judgment. "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial." 12 O.S.2011 § 2056(E). MidFirst's motion for summary judgment, with respect to its status as the holder of the note, was not "properly made." Therefore, the evidentiary material submitted in support of MidFirst's motion does not establish as an undisputed fact that MidFirst is the current holder of the note and that it has been the holder since before the petition was filed. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by the Oklahoma Supreme Court). MidFirst Bank v. Wilson, 295 P. 3d 1142 - Okla: Court of Civil Appeals, 2nd Div. 2012
  10. I tried to answer their motion for summary judgment paragraph for paragraph, but most of it dealt with trying to prove it was account stated. I was trying to challenge that as well as challenge standing. DEFENDANT’S OPPOSITION TO PLAINTIFF’s MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Defendant hereby moves the Court, pursuant to 12 O.S. §2056, to overrule Plaintiff’s Motion for Summary Judgment, for the reason and on the ground that there exists genuine issue with pleadings, admissions and affidavits filed. ARGUMENT AND AUTHORITY Plaintiff is not entitled to summary judgment in this matter as there is an existence of material issue to many claims, evidence, and admissions made by the Plaintiff. “Summary judgment is appropriate only when there is no substantial controversy as to any material fact”. Copeland v. Tela Corp., 1999 OK 81 ¶ 4, 996 P.2d 931, 932. “The moving party has the initial burden of showing that there is no substantial controversy as to any material fact”. Bowers v. Wimberly, 1997 OK 24, ¶ 14, 933 P.2d 312, 315. Plaintiff relies on circumstantial evidence and inferences to make their case, but “All facts and inferences must be viewed in a light most favorable to the non-moving party” Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. Defendant raises issue with Plaintiff’s standing to sue on this matter. “Standing refers to a person's legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact—i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse." J.P. Morgan Chase Bank, National Association v. Eldridge, 2012 OK 24, 273 P.3d 62 (citing Fent v. Contingency Review Board, 2007 OK 27, ¶ 7, 163 P.3d 512, 519-520). To this point, Plaintiff has failed to provide sufficient sound evidence that they legally own the account referenced in this matter. "standing [must] be determined as of the commencement of suit;..." Wells Fargo Bank, N.A. v. Heath, 2012 OK 54, 280 P.3d 328, 332 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n. 5, 112 S.Ct. 2130, 2142, 119 L.Ed.2d 351 (1992)). Plaintiff provides a “Customer Account Information” document that they continually refer to as an account statement. However, this document was generated by the Plaintiff and by rule is hearsay. Plaintiff provides an affidavit testifying as to the validity of the record that Plaintiff created. However, the affiant’s testimony is based on “records maintained on plaintiff’s behalf”. Affiant does not testify as to the authenticity of any account information originating from the Original Owner nor does the affiant provide specific information detailing the specific transfer of an account in Defendant’s name from the Original Owner to the Plaintiff. In Plaintiff’s pleadings, plaintiff claims that they are entitled to recovery based on the common law theory known as “account stated”. Plaintiff cites Discover Bank v. Worsham, 2008 OK CIV APP 6 ¶17. “An account stated is an agreement, express or implied, between parties who have previous transactions with each other, fixing and determining the amount due from one to the other on account, and when such an agreement is made, such “account stated” becomes a new obligation, and takes place of the one upon the prior account.” However, this ruling as made between the Worsham (Defendant) and the Original Creditor (Discover). Defendant in this matter has never had any past agreement or any financial transactions with the Plaintiff by which they may claim account stated. Plaintiff provides no written agreements or contracts to support their motion. In a similar case, “Priddy further contends that Faust cannot prevail without a credit card agreement. He correctly states that Faust has not produced such an agreement. ¶ 14 Because Faust was not the original creditor, it had to present evidentiary materials showing that it owned the debt. Faust did so by presenting a series of assignments with it as the final assignee.” Faust v. Priddy, 309 P.3d 140 (Okla. Crt. of Civ. App. 2013). In all the pleadings, admissions, and affidavits, plaintiff has not provided any evidence that identifies an account owned by the Defendant by name, account number, etc. which was transferred from the original owner to the Plaintiff. To the extent that Plaintiff claims that “there is no proof the Defendant ever reported to the Plaintiff’s predecessor in interest, within sixty days of receiving the billing statements, any errors contained in the monthly billing statements supplied.” However, Defendant reminds the court that it is the burden of the moving party of a motion to prove a lack of controversy. In other words, Plaintiff, not being the Defendant or the Original Owner of the account, cannot have knowledge, nor accurately testify, to the interactions between the Original Owner and the Defendant in this regard. Plaintiff provides no actual monthly billing statements, or other records reflecting full accountability of all business dealings between the Original Owner and the Defendant. Therefore, Plaintiff’s argument in paragraph 5 of their “Arguments and Authority” in support of their motion for summary judgment is fallacious and invalid. SUMMARY Defendant has raised issue with Plaintiff’s motion in whole, and Plaintiff’s standing to sue on this matter. In accordance with O.S. 12-2056, Defendant now asks the court to overrule Plaintiff’s motion for summary judgment.
  11. Funny you should say that. I was going to use nearly the exact point on the bills of sale. Without identifying information, I could use this bill of sale to sue anyone who ever had an account with Dell.
  12. @debtzapper I've gone through the court cases you cited and have a hypothetical for you. In both cases regarding the Rule of Evidence, the documents were submitted without affidavits. In my case, there are affadavits accompanying the documents and Plaintiff may argue that they are admissible under 2803(6) "...all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title" O.S. 12-2902 states "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:" O.S. 12-2902(11) "The original or a duplicate of a domestic record of acts, events, conditions, opinions, or diagnoses if: a. the document is accompanied by a written declaration under oath of the custodian of the record, or other qualified individual that the record was made, at or near the time of the occurrence of the matters set forth by or from information transmitted by a person having knowledge of those matters; was kept in the course of the regularly conducted business activity; and was made pursuant to the regularly conducted activity, b. the party intending to offer the record in evidence gives notice of that intention to all adverse parties and makes the record available for inspection sufficiently in advance of its offer to provide the adverse parties with a fair opportunity to challenge the record, and c. notice is given to the proponent, sufficiently in advance of the offer to provide the proponent with a fair opportunity to meet the objection or obtain the testimony of a foundation witness, raising a genuine question as to the trustworthiness or authenticity of the record..." So if I argue either case in that their records are inadmissible, they would claim the affidavits meet 2902(11) making them admissible. I would have to have the affidavits thrown out before the Account Information can be thrown out. I think I can actually get that done using 2902(11) as they did not provide me access to ANY of the affidavits and only 1 bill of sale before submitting them to the court.
  13. For some reason, I didn't get the Exhibit A scanned and uploaded. I've attached the file as "Exhibit A" to my original post above. It is a printout of itemized purchases on a charge account with Dell. There is personal information on the header including name, address, and account number. It has a Dell Header, but the bottom of each page is printed "Data printed by Midland Credit Management, Inc. from electronic records created, maintained, and provided by Dell Finan[omitted by "exhibit stamp"] As you said, there is not indication that the accounts purchased contained this account referenced by this statement. I'm going to hammer that hard in my next draft.
  14. @BV80 @debtzapper I'll rewrite it as you suggest. Thanks to you all for the case laws. I'd been up and down OSCN, Google Scholar, and Google in general trying to find case law to cite. The only other two I am interested in finding is case law that tossed evidence for not being relevant and/or a bill of sale that was tossed for lack of identifying info. Logic says it shouldn't hold up, but this is the legal system. There has to be a case out there where someone tried to enter one in.