Search the Community

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.

CASE #1 TIMELINE OF EVENTS -Late December 2008: JDB submits complaint to court -Late January 2009: I was allegedly served with summons and complaint -Late February 2009: JDB is awarded judgment against me for a little north of $1000 -April 2009: an order to seize property Is granted by the court -Summer of 2009: I begin receiving multiple phone calls a day from JDB telling me that I owe them money. They told me that they would show up to my house with a Sheriff, seize my assets, and take my money from me if I didn’t pay them. I’m barely 20 at the time and realistically have no knowledge of the law on such matters and being the scared young adult, I ignore them. (side note: all calls are from the same number, sometimes being JDB, and other times being their scumbag attorney. Both have the same address, and same phone number. Also, the “collections manager” employed by JDB who swears in the affidavit that he is the “Keeper of Records” for JDB sent me a letter in April 2011 with his name and signature, with the attorney’s letterhead. I am almost confident this is a violation of both federal and state law, someone, please advise on this and what I can do as a possible countersuit for violation of such laws) -Calls stop in the winter of 2009 and being again in summer of 2010. Then stop in the winter, and begin again early 2011 all the while sending me periodic “settlement offers.” They also note in the letters that I should contact them to prevent legal action against me, even after they already had a judgment against me. -In early 2011, I get 8 calls in one day, and after threats to take my wages, I give in and agree to pay them. I ask for a letter stating the original creditor, amount due, and balance, which they provide. -Letter they send me references ELAN as OC, but all court documents state COMERICA. -I pay them monthly payments for about a year, and due to financial hardship, I stop. -December 2012: JDB begins garnishing my wages. -JDB is now paid off, and no further amount is due. -December 2012 is when I actually realized that they had a court judgment against me because my employer sent me a copy of the writ of garnishment. I go to the court, request the papers associated with the case, and file a motion to set aside default judgment. -Fast forward to last week, JDB, because they have “their” money, doesn’t show up, and judge sets aside the default judgment. Judge tells me to file responsive pleadings within 14 days. HERE IS THE ORIGINIAL COMPLAINT: JDB through their scumbag attorney V MrDearbon 1. The amount in controversy is within the jurisdiction of this court and venue is proper. 2. Defendant entered into a Credit Card Agreement with Plaintiff’s assignor, COMERICA 3. Plaintiff and/or its assignor completed performance under the terms and conditions of the agreement. 4. Defendant has defaulted under the terms and conditions of the contract by failing to pay as promised. 5. There is a presently due and owing to Plaintiff in the sum of $9xx.xx WHEREFORE, Plaintiff prays for the judgment in the amount of $9xx.xx, plus costs, interest and attorney fees. HERE IS THE AFFIDAVIT OF ACCOUNT I, John Doe, being duly sworn , depose and say that I am keeper of records for JDB, and if called as a witness can testify competently to facts contained herein; that the account of MrDearborn, is taken from the books and records of the corporation and that, within my knowledge the balance of $9xx.xx, as of late 2008 (actual date omitted), shown due is true and correct, and that said balance is justly and owing to JDB and that there is no offsets or counterclaims against the same. This, to me, seems to be the easier of the two. Nothing else is attached to the complaint, not even an attempt at a BOS. Here is my ANSWER: 1. Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 2. Denied. Plaintiff has failed to submit such evidence of “credit card agreement.” 3. Denied. Plaintiff has failed to submit such evidence of “terms and conditions of agreement.” 4. Denied. Plaintiff has failed to submit such evidence of “terms and conditions of contract.” 5. Denied. Plaintiff has failed to submit such evidence of such debt owed. Furthermore, Plaintiff has failed to submit evidence of assignment of debt. Please, tweak this if needed. This is my first time. Also, I am going to need help filing an affidavit as I do not know how to. Should I also file a motion to dismiss? How do I write one? A big thank you in advance! ------------ CASE #2 TIMELINE OF EVENTS -March 2010: JDB submits complaint to court -April 2010: I was allegedly served with summons and complaint (process server dates proof of service as a Saturday, in actuality, it was a Sunday, also, gave a completely different description of me than he did in Case #1) -June 2010: JDB is awarded judgment against me for a little north of $1000 -January 2012: JBD seizes money from my bank account. It’s not a primary account, so it goes unnoticed until about March. When noticed, I contacted JDBs scumbag attorney to ask what right they had to take the funds. They said they had a court judgment against me, and wanted to prevent further inconvenience and wanted to set up a payment plan. I declined and said that I wanted to see paperwork and if legit, I would sign an agreement and an amount. Lady on the phone asked if $100 was ok, I said I won’t agree to anything until they sent me some paperwork. At the same time, they requested all information from my bank with a subpoena. Lo and behold, 2 weeks later, $100 from my account goes missing. They took the payment through ACH, without me agreeing to it. I still have the original paper asking for my signature. I later closed the account, and due to life, just ignored what had happened. -January 2013: JDB begins garnishing my wages. -I go to the court, request the papers associated with the case, and file a motion to set aside default judgment. -Fast forward to last week, JDBs scumbag attorney shows up to court. Court officer advises me to have a private conversation with him in the hallway. Attorney tells me I have a small amount left, and that he would consider it paid in full, I decline and tell him I want my day in court. He shows me a statement, not sure if from checking account or CC, but CHASE, but he says there are two ACHs to them, so more than likely checking. Either way, I tell him no, I want my day in court. Judge grants my motion to set aside default judgment. Attorney looks furious. His dad runs the firm, and is probably going to chew his a$$ out. Judge tells me to file responsive pleadings within 14 days. An amount is still due to be garnished from my wages, please explain my options considering the judgment was set aside. Attached are pictures of Complaint and Affidavit. Here is my answer: DEFENDANT’S ANSWER Now comes the Defendant, MrDearborn (hereinafter referred to as “Defendant”), in Pro Per, and states the following for his Answer to Plaintiff’s Complaint: GENERAL ALLEGATIONS 1. Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 2. Defendant neither admits nor denies the allegations contained in paragraph 2 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 3. Denied. Plaintiff has failed to submit such proof of use of alleged credit card. 4. Denied. Defendant has no such possession of alleged account statements, terms and conditions of the contract and the application or solicitation for credit. 5. Defendant neither admits nor denies the allegations contained in paragraph 5 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 6. Denied. “Assignment must clearly establish that Respondent’s [the Debtor’s] account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner [i.e., the assignee-creditor].” MBNA America Bank, N.A. v Nelson, 15 Misc 3d 1148;841 NYS2d 826; 2007 WL 1704618 AND Bullock v Worldwide Asset Purchasing, LLC, 2008 WL 3159921. 7. Denied. Defendant realleges the same as paragraph 6. 8. Denied. Defendant realleges the same as paragraph 6. 9. Denied. Defendant realleges the same as paragraph 6. 10. Defendant neither admits nor denies the allegations contained in paragraph 10 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. COUNT I – ACCOUNT STATED 11. Defendant restates and realleges his answers to paragraphs 1 through 10 of Plaintiff’s Complaint as though fully set forth herein. 12. Defendant neither admits nor denies the allegations contained in paragraph 12 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 13. Defendant neither admits nor denies the allegations contained in paragraph 13 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. Furthermore, “Exhibit ‘A’” of Plaintiff’s Complaint is not sufficient evidence of a contract. 14. Denied. No such evidence of use of alleged credit card or any such monthly statements has been documented in Plaintiff’s Complaint.. Defendant realleges same as paragraph 6. 15. Denied. No such evidence of a “terms of contract” has been documented in Plaintiff’s Complaint. 16. Denied. No such evidence of a “terms of agreement” has been documented in Plaintiff’s Complaint. Furthermore, “Exhibit ‘A’” of Plaintiff’s Complaint is not sufficient evidence of an agreement. 17. Denied. Defendant realleges same as paragraph 6. 18. Denied. Defendant has no such possession of alleged account statements, terms and conditions of the contract, or the application for credit. 19. Denied. No such evidence of a “terms of the agreement” has been documented in Plaintiff’s Complaint. Furthermore, Plaintiff has no right to declare any balance due without clearly establishing that said account was included in the assignment. MBNA America Bank, N.A. v Nelson, 15 Misc 3d 1148;841 NYS2d 826; 2007 WL 1704618 AND Bullock v Worldwide Asset Purchasing, LLC, 2008 WL 3159921. COUNT II – COMMON LAW ACCOUNT STATED 20. Defendant restates and realleges his answers to paragraphs 1 through 19 of Plaintiff’s Complaint as though fully set forth herein. 21. Defendant neither admits nor denies the allegations contained in paragraph 21 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. COUNT III – BREACH OF CONTRACT 22. Defendant restates and realleges his answers to paragraphs 1 through 21 of Plaintiff’s Complaint as though fully set forth herein. 23. Defendant neither admits nor denies the allegations contained in paragraph 23 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 24. Denied. No such evidence of use of the alleged credit card has been documented in Plaintiff’s Complaint. Furthermore, Defendant has no such possession of “the Contract” or “terms and conditions.” 25. Denied. No such evidence of alleged monthly bills, monthly payment due, or total balance due has been documented in Plaintiff’s Complaint. 26. Denied. No such evidence of alleged contract has been documented in Plaintiff’s Complaint. Furthermore, Defendant realleges same as paragraph 6. 27. Denied. Defendant realleges same as paragraph 6. COUNT IV – MONEY HAD AND RECEIVED AND/OR MONEY PAID 28. Defendant restates and realleges his answers to paragraphs 1 through 27 of Plaintiff’s Complaint as though fully set forth herein. 29. Defendant neither admits nor denies the allegations contained in paragraph 29 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 30. Denied. No such evidence of use of the alleged credit card has been documented in Plaintiff’s Complaint. 31. Denied. Defendant realleges same as paragraph 6. COUNT V – UNAUTHORIZED USE OF CREDIT CARD AND RELIANCE ON APPARENT IR ISTENSIBLE AUTHORITY AS NEGLIGENT WAIVER OF RIGHT TO DISPUTE THE BALANCE DUE 32. Defendant restates and realleges his answers to paragraphs 1 through 31 of Plaintiff’s Complaint as though fully set herein. 33. Denied. No such evidence of “contract terms and conditions” has been documented in Plaintiff’s Complaint. 34. Defendant neither admits nor denies the allegations contained in paragraph 34 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 35. Defendant neither admits nor denies the allegations contained in paragraph 35 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 36. Defendant neither admits nor denies the allegations contained in paragraph 36 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. CONDITIONS PRECEDENT 37. Denied. Defendant realleges same as paragraph 6. ATTORNEY FEES 38. Denied. No such evidence of “terms of the cardholder agreement” has been documented in Plaintiff’s Complaint. WHEREFORE, Defendant respectfully requests that this Court enter a judgment in favor of Defendant and against Plaintiff, dismissing Plaintiff’s Complaint against Defendant with prejudice, and awarding Defendant’s monies be returned and any other relief this Court deems appropriate. I need help responding to the affidavit, and should I also file a motion to dismiss along with the answer? How would I do so? Again, thanks in advance guys! Any help will be appreciated.