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Showing results for tags 'merit'.
I had a hearing today to set aside a judgment. After clearing the first 2 hurdles (excusable, and responding within timely manner), the 3rd was that I must show merit. I certainly felt I did that, but the Judge didn't think any of my points had merit. I argued that the Plaintiff had not shown that they own the debt, had submitted a 2003 Fleet Card agreement along with a 2005 CC agreement from Bank of America, and nothing had been shown to prove that FIA owned the debt. In addition, I tried to argue that there was not standing to sue due to point 3 below, but he didn't listen to that argument as he said it had no bearing on merit. The Constantino Law attorney argued that FIA had purchased Bank of America and there would be plenty of newspaper articles to show this. I replied that FIA, in their complaint, claimed to be in the business of purchasing and collecting past due credit accounts, and that that sounded to me more like a debt collection company, not a CC company. Regardless, there had been no evidence for me to see that they had purchased my debt. the judge explained, as if I didn't already know, that this happens all of the time where bad debt is sold off to other companies and unless I had something else to show merit then he was ruling that I had no merit. I was at a loss. HELP PLEASE!!! Defendant’s Opposition to Summary Judgment IN THE 3rd JUDICIAL COURT, STATE OF UTAH,SALT LAKE COUNTY FIA Card Services, NA, ) Plaintiff, ) Case No. XXX000XXX000 vs. ) me, ) Defendant(s). ) DEFENDANT’S AFFADVIT IN SUPPORT OF MOTION 1. I am the defendant in this lawsuit. 2. A default judgment was entered against me on XX-XX-XXXX. 3. This was my excusable defense, but leaving out details here as it was accepted and irrelevant to the "merit" which was the issue for the judge. 4. Defendant also believes that Plaintiff has purported fraudulent documents to support their case and pursuant to Rule 60( (3) of the Utah Rules of Civil Procedure, defendant has further argument for relief from the judgment. The elements to this defense are stated below: 1. The affidavit of LINDA HODGIN, an employee of the Plaintiff, submitted by plaintiff attempts to purport a fraud on this court. According to the “Statement of Undisputed Facts” submitted by the Plaintiff (All of which were disputed in the Answer to Complaint), the Plaintiff, FIA Card Services, N.A., is in the business of purchasing and collecting delinquent accounts”. “All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence. State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. 1989) ("The business records exception to the hearsay rule applies only to documents generated by the business itself.... Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140.” id at pg. 63" CACH LLC. v. Askew, 358 S.W.3d 58(2012) 2. Plaintiff has also sought to defraud the court by submitting a 2005 unsigned Bank of America card agreement purported to be the underlying contract for a Fleet Bank offering that expires in 2003. In addition, the billing statements submitted by Plaintiff do not show an account open or account activity in 2003 or 2005. Plaintiff has failed to provide a valid contract supporting the actual terms and conditions agreed to by defendant. Furthermore, Plaintiff has failed to provide any evidence that defendant received any consideration from FIA Card Services or assented to any terms or conditions allowing Plaintiff to receive interest, late fees, or attorneys fees, as erroneously awarded in this case. 3. While Plaintiff cites Allenberg Cotton Company v. Pittman, 419 U.S. 20 (1974), in support of its exemption to registering as a Utah business, the case does not provide authority for invalidating the Utah licensing statute. In Allenberg Cotton, a Tennessee cotton merchant challenged a Mississippi statute that required any “foreign corporation doing business in the state” to register with the state; a corporation failing to register was barred from suing in Mississippi state courts. Id. at 21 n.1 (citing Miss. Code Ann. § 79-3-247 (1972)). The statute did not discriminate against out-of-state corporations. See id. at 40 (Rehnquist, J., dissenting) (“Mississippi’s qualification statute is concededly not discriminatory. Domestic corporations organized under her laws must submit themselves to her taxing jurisdiction, to service of process within the State, and to a number of other incidents of corporate existence which state law may impose.”) Nonetheless, the Court held that Mississippi could not constitutionally apply the denial-of-aforum sanction to the Tennessee merchant because the merchant’s business was exclusively interstate in character, and thus the Commerce Clause barred the state from regulating it. Id. at 33. The appellant’s contacts with Mississippi did not exhibit the sort of localization or intrastate character which were required in situations where a State seeks to require a foreign corporation to qualify to do business. Assuming without deciding that the Allenberg Cotton approach remains applicable in certain cases despite the Court’s more recent use of the two-tier analysis described above, Allenberg Cotton is distinguishable. In Allenberg Cotton, the Court emphasized that the business being regulated was part of an “intricate interstate” commodities market. 419 U.S. at 29. In contrast, state licensing requirements for debt collectors “have long been viewed as a proper matter for regulation by the states.” Silver v. Woolf, 694 F.2d 8, 12 (2d Cir. 1982). “ Debt collection practices are intimately related to the use of state courts,” and, based on the savings provisions of the FDCPA, “there are affirmative indications that Congress believes state regulation of debt collection agencies to be desirable.” Id. In this case it is clear as a matter of law that FIA Card Services, N.A. is ‘doing business” in Utah by purchasing and pursuing an alleged debt which is, as stated by the plaintiff’s council, the nature of their business. Thus, Plaintiff is illegally operating without a license or bond as required by UFDPA 12-1-1. Plaintiff lacks standing to sue and therefore, summary judgment is without just cause. In addition, see (Bradco vs. Hilco Receivables 2011). 4. As admitted by Plaintiff in #1 statement, FIA purchases debt and collects on those debts. Plaintiff has shown no evidence that they own the alleged debt or proven assignment thereof.