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Credit Card Statute of Limitations Ohio

R.C. 2305.03(B), which provides that a shorter period of limitations from a foreign state is enforceable in cases filed in Ohio.

5. R.C. 2305.03 states: “(B) No civil action that is based upon a cause of action that accrued in any other state, territory, district, or foreign jurisdiction may be commenced and maintained in this state if the period of limitations that applies to that action under the laws of that other state, territory, district, or foreign jurisdiction has expired or the period of limitations that applies to that action under the laws of this state

has expired.”

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Northrop v. Hoffman of Simsbury, Inc., 134 F. 3d 41 - Court of Appeals, 2nd Circuit 1997

As a preliminary matter, we must decide whether appellant is foreclosed from seeking relief under § 1681n pursuant to a violation of § 1681q by her failure to cite § 1681q in her Second Amended Complaint. We recognize that appellant's failure to cite § 1681q as a potential basis for liability under § 1681n gave the district court little or no reason or opportunity to address this theory of liability. Nevertheless, appellant's failure to cite the correct section of the 46*46 FCRA does not require us to affirm the dismissal of her complaint so long as she has alleged facts sufficient to support a meritorious legal claim. Under the liberal pleading principles established by Rule 8 of the Federal Rules of Civil Procedure, in ruling on a 12(B)(6) motion "[t]he failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim. Factual allegations alone are what matters." Albert v. Carovano, 851 F.2d 561, 571 n. 3 (2d Cir.1988) (in banc) (citing Newman v. Silver, 713 F.2d 14, 15 n. 1 (2d Cir.1983)); see also Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir.1991) ("[Defendant] ... point out that [plaintiff] failed to plead the third party beneficiary theory in his complaint. To this, we simply respond that federal pleading is by statement of claim, not by legal theory.").

trust me this was big case law for me, needed it. one day someone else may need to use it (if someone files a motion to dismiss for insufficiency, etc)

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Levine v. World Financial Network Nat. Bank, 437 F. 3d 1118 - Court of Appeals, 11th Circuit 2006

However, the common law test in Buckley, which Ayers reiterated, involved a claim for the negligent infliction of emotional distress brought under the Federal Employers' Liability Act. The requirements for a prima facie claim for the negligent infliction of emotional distress are dissimilar from the requirements for a prima facie claim that a credit reporting agency provided a credit report to a third party for an impermissible purpose in willful violation of FCRA. For the latter claim, which is defined by statute, the existence of compensable emotional distress is relevant to the amount of damages a plaintiff will ultimately recover, not to whether an individual has adequately stated a prima facie claim. Cf. Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1334 (9th Cir.1995) ("An inquiry into the reasonableness of procedures . . . belies a claim that liability under [15 U.S.C.] § 1681e(B) must be predicated on the effect of that information once disseminated. . . . The district court was required to consider whether [the defendant] was liable under § 1681e(B) before it determined that [the plaintiff] had suffered no recoverable damages."). Several courts have previously recognized the possibility that a claim for actual or compensatory damages under FCRA may include compensation for emotional distress in the absence of physical injury or out-of-pocket expenses. See, e.g., Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir.1998) (holding that, even in the absence of "out-of-pocket expenses or costs incurred," the district court did not abuse its discretion in awarding actual and punitive damages when appellees testified "about how they felt when appellant obtained their credit reports and violated their privacy, thereby causing them some emotional distress"); Philbin v. Trans Union Corp., 101 F.3d 957, 963 n. 3 (3rd Cir.1996) ("Given the amorphous nature of the damages at issue, we do not consider it necessary that [the plaintiff] state his damages with any greater degree of particularity."); Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2nd Cir.1995) ("[T]he District Court properly recognized that `actual damages' may include humiliation and mental distress, even in the absence of out-of-pocket expenses."); see 1125*1125 also Moore v. Equifax Info. Servs. LLC, 333 F.Supp.2d 1360, 1365 & n. 3 (N.D.Ga. 2004) (noting that damages for mental distress are recoverable under FCRA even if the consumer has suffered no out-of-pocket losses).

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Ground v. State, 702 NE 2d 728 - Ind: Court of Appeals 1998

Over objection,[1] the trial court admitted State's Exhibit 1, which contained certain bank records from Ground's account at National City Bank. The records consisted of a copy of Ground's signature card from her savings account and microfilm copies of a deposit slip from Ground's checking account, a "cashout" slip in the amount of $400.00, the $975.00 unauthorized check paid by Employability Services to Ground, and three checks paid to Ground from other payors. Ground argues on appeal that the records are inadmissible hearsay. The State counters that the records are admissible under Indiana Evidence Rule 803(6), the business records exception to the hearsay rule. We agree with Ground.

Our standard of review of a trial court's findings as to the essential elements of admissibility is sometimes described as an abuse of discretion. Mullins v. State, 646 N.E.2d 40, 51 (Ind.1995). Because the predicates or foundational requirements to admissibility often require factual determinations by the trial court, these findings are entitled to the same deference on appeal as any other factual finding, whether that is described as a clearly erroneous or abuse of discretion standard. However, the ultimate question in this case is the interpretation of the language of a rule of evidence which presents a question of law for this court. See Stahl v. State, 686 N.E.2d 89, 91 (Ind.1997).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(B). Hearsay is inadmissible unless admitted pursuant to a recognized exception. Ind. Evidence Rule 802. The business records exception to the hearsay rule, Evidence Rule 803(6), permits admission of records of regularly conducted business activity provided that certain requirements are met. The rule specifically provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term "business" as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Ind. Evidence Rule 803(6) (emphasis added). In support of Exhibit 1, the State presented an affidavit by Michael Guio, fraud investigation manager of National City Bank, which provided:

I hereby certify that the attachments herein, namely an original carbon copy of Paula Ground's signature card and four (4) pages of microfilm copies of a deposit to the account of Paula J. Ground and attachments, are true and accurate documents kept in the ordinary course of business of National City Bank. I further swear or affirm that said signature card was signed by customer Paula Ground to open a savings account on or about April 1995 and as placed in files of National City Bank at or near the time of making until obtained by me.

I further swear or affirm that said deposit record copies and attachments were obtained by me from records kept in the ordinary course of business of National City Bank and made at or near the time of the deposit transaction on October 16, 1996.

These records have been obtained by me, Michael Guio, as Fraud Investigation Manager for National City Bank, from original and microfilmed documents and records kept in the ordinary course of business and 731*731 that I am qualified to attest to the matters herein.

Ground contends, and the State concedes, that Guio's affidavit is insufficient in two respects: First, it fails to aver that the records were transmitted by a person with personal knowledge and, second, it fails to aver that it is National City Bank's "regular practice to make" the records. Nevertheless, the State insists that the "deficiencies" are merely "technical."

Prior to the adoption of the Rules of Evidence, Indiana permitted a rebuttable presumption that entries in business records were made by a person who had a duty to make the record and who had personal knowledge of the event represented by the entry. Lyons v. State, 506 N.E.2d 813, 817 (Ind.1987). Nothing in Rule 803(6) is inconsistent with that presumption. ROBERT L. MILLER, JR., 13 INDIANA PRACTICE § 803.106B (2d ed. 1995). Absent rebuttal evidence to the contrary, it may be presumed that someone with personal knowledge prepared the challenged bank documents. Because Ground has failed to rebut that presumption, the affidavit's first deficiency does not render Exhibit 1 inadmissible.

No such presumption exists as to the affidavit's second deficiency. However, the State contends that "it is of no moment that the affidavit fails to state that it was the regular practice of National City Bank to make records such as Ground's records. Indeed, common sense dictates that banks regularly keep records of their customers' transactions." We cannot agree with the State's contention.

Rule 803(6) says nothing about "common sense." Typically, the records admitted under the exception are of the type one would expect to be regularly maintained by a business. Nevertheless, the rule unequivocally requires the proponent of business records to establish, by the testimony of the custodian or other qualified witness, that the records are regularly made. As we stated in Cardin v. State, 540 N.E.2d 51, 55 (Ind.Ct.App.1989), trans. denied:

To our knowledge, this state had not adopted the approach taken by the federal courts which would permit the admission of business records based upon circumstantial evidence derived from the document itself, without the testimony of the custodian or another qualified witness. . . . Neither are we aware of any catch-all exception in Indiana, similar to the Federal Rules of Evidence, Rule 803(24) [now Rule 807] which would allow a trial judge in the exercise of discretion to consider the inherent trustworthiness of the entry and the nature of the business which produced it.

(emphasis added) (internal citations omitted).[2] Without proof that the records are regularly made, the proponent of the business records has not laid a proper foundation for the records under the plain meaning of Rule 803(6), and they are inadmissible under the hearsay rule.

The requirements of the hearsay exceptions, including Rule 803(6), are not mere technicalities as the State would contend. The State's "common sense" argument would effectively rewrite Rule 803(6) and would create a broader exception than intended by the plain meaning of the rule. The hearsay exceptions reflect the concern that hearsay evidence be admitted only when the proponent can demonstrate that the evidence bears the necessary indicia of reliability.[3] Absent such a demonstration, the hearsay rule and its underlying principles demand that the evidence be excluded. This is especially true in criminal cases, where the defendant's right to confront witnesses takes on a constitutional dimension. See 5 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE, § 802.04[3] (2d ed. 1998) ("In criminal cases, the hearsay rule is suffused with constitutional hues and, therefore, applied more stringently than in civil cases.").

We also reject the State's assertion that Ground bears the burden of challenging the reliability of the bank's records. The burden to prove unreliability does not shift until the proponent has satisfied the requirements of Evidence Rule 803(6). If the proponent fails to establish that the evidence falls squarely within the exception, the evidence is inadmissible hearsay. The challenger bears no additional burden of persuasion except to the extent that Indiana law affords a rebuttable presumption that the records were made by a person with personal knowledge. See discussion, supra. Based on the foregoing, we conclude that the trial court erred when it admitted Exhibit 1 pursuant to the business records exception. The State failed to satisfy the exception and, thus, the exhibit contains inadmissible hearsay and should have been excluded.

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Read this! The entire thing is gold...especially for those in Illinois.

No. 2--08--0746 Filed: 1-15-10




VELOCITY INVESTMENTS, LLC, ) Appeal from the Circuit Court

) of Lake County.

Plaintiff-Appellee, )


v. ) No. 07--AR--951



) Valerie Boettle-Ceckowski,

Defendant-Appellant. ) Judge, Presiding.

JUSTICE JORGENSEN delivered the opinion of the court:

Plaintiff, Velocity Investments, LLC, filed suit against defendant, Gregory Alston, based on

defendant's default on the terms of his credit card agreement. Defendant originally entered into a

credit card agreement with Household Bank, whose interest in the debt was subsequently sold to

plaintiff. The trial court entered judgment in favor of plaintiff. Defendant timely appeals. On appeal,

defendant argues,inter alia, that plaintiff erred by failing to produce the original credit card contract,

showing that defendant agreed to its terms and conditions. We agree with this contention and,

accordingly, vacate and remand for further proceedings.

In the trial court, defendant filed a motion to dismiss, alleging, inter alia, that "plaintiff has no

valid documentation showing the amount owed, or the existence of the actual debt owed." On

February 28, 2008, the trial court denied defendant's motion to dismiss. We do not have a transcript

of the February 28 hearing, but based on the common-law record, defendant has preserved the issue

No. 2--08--0746

for appeal. See Exchange National Bank v. Sampson, 186 Ill. App. 3d 969, 975 (1989) (the issue

of the failure to attach a written instrument to the complaint must be raised in the trial court in order

to be raised on appeal).

Defendant's argument, however, is undeveloped and without any citation to authority

supporting his position. This court is " 'entitled to have issues clearly defined with pertinent authority

cited and cohesive arguments presented ([210 Ill. 2d R. 341(h)(7)]), and it is not a repository into

which an appellant may foist the burden of argument and research.' " Stenstrom Petroleum Services

Group, Inc. v. Mesch, 375 Ill. App. 3d 1077, 1098 (2007), quoting Obert v. Saville, 253 Ill. App. 3d

677, 682 (1993). Accordingly, we have the authority to hold that defendant has forfeited his

argument by failing to develop it or cite any authority to support it. See 210 Ill. 2d R. 341(h)(7); see

also People v. Wendt, 183 Ill. App. 3d 389, 404 (1989). We recognize that defendant is proceeding

without the benefit of counsel. However, that does not relieve him of the obligation to follow proper

procedure. While we do not condone defendant's disregard for the rules, we choose to reach the

merits of this argument, as we understand the issue defendant intends to raise, and the merits of the

issue can be readily ascertained from the record on appeal. Twardowski v. Holiday Hospitality

Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001).

Section 2--606 of the Code of Civil Procedure provides that if a claim "is founded upon a

written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the

pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit

stating facts showing that the instrument is not accessible to him or her." 735 ILCS 5/2--606 (West

2006); Sherman v. Ryan, 392 Ill. App. 3d 712, 733 (2009). The exhibits to which section 2--606

applies generally consist of instruments being sued upon, such as contracts. Garrison v. Choh, 308

No. 2--08--0746

Ill. App. 3d 48, 53 (1999). Plaintiff's complaint specifically alleged that defendant was indebted to

plaintiff "by virtue of a certain agreement entered into by defendant on or about August 2, 2001; said

agreement is attached hereto and made a part hereof." This language indicates that the agreement

was in writing. But the August 2, 2001, agreement was not in fact attached to the complaint. Other

documents were attached, but as discussed later, they were not the written instrument upon which

plaintiff's claim was founded.

Here, the written instrument upon which plaintiff's claim was founded was defendant's original

credit card contract with Household Bank, which contract plaintiff then purchased from the bank.

See, e.g., Parkis v. Arrow Financial Services, LLS [sic], No. 07--C--410, slip op. at 4 (N.D. Ill.

January 8, 2008) (the defendant, a company engaged in the business of buying bad debts from banks,

had acquired the right to collect a credit card debt owed by the plaintiff to the bank; the plaintiff

brought suit against the defendant, arguing that the failure to attach the written contract between the

credit card company and the plaintiff, which was the basis for the suit, violated section 2--606; the

district court agreed with the plaintiff); see also Ramirez v. Palisades Collection LLC, No.

07--C--3840, slip op. at 3 (N.D. Ill. June 23, 2008) (same). Here, the original credit card contract

was not attached. Nor did the complaint include a recitation of all the relevant terms of the contract.

See 735 ILCS 5/2--606 (West 2006) (written instrument must be attached to the pleading as an

exhibit or recited therein). Finally, plaintiff failed to include an affidavit stating facts showing that the

instrument was not accessible to it so as to excuse the failure to attach the written contract. 735

ILCS 5/2--606 (West 2006).

What is attached to the complaint is plaintiff's "Statement of Account," dated October 6,

2005, an affidavit reiterating what is stated in the "Statement of Account," and Household Bank's

No. 2--08--0746

standard "Cardmember Agreement and Disclosure Statement." The "Statement of Account,"

generated by plaintiff, stated that defendant's account balance with Household Bank when the debt

was charged off was $22,598.50, consisting of $17,078.18 in principal and $5,520.32 in accrued

interest, and was "calculated with the default interest rate of 9.99% on the principal amount from the

date of the original creditor's charge off through the present." This document is not the written credit

card contract between defendant and Household Bank. See Parkis, slip op. at 4-5 (debt collector's

"Affidavit of Indebtedness," executed by debt collector's account manager and stating the consumer's

account balance on his credit card, was not "the basis on which the debt was being sued for," for

purposes of section 2--606).

Also, the affidavit attached to the complaint was insufficient for purposes of section 2--606.

The affidavit, prepared by plaintiff's service manager, set forth that the service manager had

"knowledge of an account in favor of Velocity Investments, LLC and against Gregory Alston with

a principal balance due $17,078.18 and interest of $5,520.32 as of May 16, 2006; plus interest at

9.99% from the aforesaid date; until paid is with my knowledge true and correct, after all credits due

the defendant, and that further all services were rendered and/or goods were sold and delivered or

that the defendant(s) are in breach of the repayment terms as per any and all agreements between the

aforementioned parties." The affidavit provided for in section 2--606 is intended to excuse the

requirement to present the written contract, where the affidavit explains why the contract is

unavailable. See 735 ILCS 5/2--606 (West 2006). Here, plaintiff's affidavit failed to so explain.

Therefore, plaintiff's failure to attach the original credit card contract was not excused. See 735 ILCS

5/2--606 (West 2006).

No. 2--08--0746

Likewise, Household Bank's standard "Cardmember Agreement and Disclosure Statement"

is not the written contract, as it offers no evidence that defendant agreed to be bound by these terms

or that these terms even applied to this particular account. See Portfolio Acquisitions, L.L.C. v.

Feltman, 391 Ill. App. 3d 642, 651, 652 (2009) (plaintiff attached, inter alia, copies of cardholder

agreements to its second amended complaint; defendant prevailed in arguing that the documents did

not constitute a written contract for statute of limitations purposes because, inter alia, there was no

evidence that the agreement applied to her account or that she agreed to its terms).

Edited by ifimay
to add a comment

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Lastly, in the trial court, plaintiff also relied on computerized printouts of defendant's account

history to contest defendant's motion to dismiss. Specifically, plaintiff countered that "these

documents have already been admitted as the account history is attached to the 222 Disclosure, 90

© package and the Request to Admit. Thus, the defendant has admitted the accuracy of the account

statements as well as the credit card contract and has failed to respond to any of those documents."

First, the account history could not be considered the written instrument upon which plaintiff's claim

is based. See Ramirez, slip op. at 4 (billing statements do not contain terms defining acts of default

or other remedies, nor do they state whether terms can be altered; it is also questionable whether

billing statements reflect an affirmative promise to pay by the customer).

Furthermore, at the same time that the trial court denied defendant's motion to dismiss, it also

granted defendant additional time to respond to plaintiff's request to admit. Defendant did so and

stated that the account number cited by plaintiff was not for defendant's account; he had never used

the account; and he never signed an agreement under that account number. Thus, he did contest the

existence of the credit card contract at the heart of this case.

No. 2--08--0746

Plaintiff's failure to attach a copy of the credit card contract to the complaint, recite the terms

of the contract within the complaint, or attach an affidavit showing that the document is inaccessible

is grounds for dismissal. Sherman, 392 Ill. App. 3d at 733; see also Plocar v. Dunkin' Donuts of

America, Inc., 103 Ill. App. 3d 740, 749 (1981) (holding that dismissal of a breach of contract claim

was proper in light of the plaintiffs' failure to recite or attach a copy of the contract). Thus,

defendant's motion to dismiss should have been granted without prejudice. See Portfolio, 391 Ill.

App. 3d at 645 (where the plaintiff failed to attach a copy of the written instrument to its complaint,

trial court dismissed the complaint with leave to amend). We, therefore, vacate the judgment and

remand the matter to the trial court for further proceedings, premised upon plaintiff's compliance with

section 2--606. We need not pass on defendant's remaining contentions.

Accordingly, the judgment of the circuit court of Lake County is vacated and the cause is


Vacated and remanded.

McLAREN and HUTCHINSON, JJ., concur.

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Post your case law here with a brief description of what it pertains to. I think this will be an easy go-to resource if we can get all the different case laws into one area. Likewise if new rulings take precedent, point it out.

1. Bankruptcy and Foreclosures

Fidelity Fin. Serv., Inc. v. Fink, U.S. 118 S.Ct. 651 (1998) - Where all step necessary to perfect the security interest were not been completed within 20 days of bankruptcy debtor's receipt of possession of the vehicle, purchase-money security interest in vehicle may be avoidable in Chapter 13 bankruptcy as impermissibly preferential, and the interest does not fall within the "enabling loan" exception to trustee's preference-avoidance power, 11 U.S.C. ' 547©(3)(B).

Kawaauhau v. Geiger, U.S. 118 S.Ct. 974 (1998) - Debts arising from malpractice judgment based upon acts that were intended, but were not intended to cause damage, do not fall within the willful and malicious injury exception to discharge from bankruptcy, and therefore are dischargable.

Cohen v. Cruz, U.S. 118 S.Ct. 1212 (1998) - An award of treble damages pursuant to state law, for charging tenants rent in excess of rent control laws, is not dischargable in bankruptcy. The award falls within the scope of 11 U.S.C. ' 523(a)(2)(A), which excepts from discharge in bankruptcy Aany debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud, including costs and attorney's fees.

Levine v. Weissing, 134 F.3d 1046 (11th Cir. 1998) - Chapter 7 debtors who converted non-exempt assets to annuities that were exempt under Florida law, shortly after learning that such transfer would be beyond reach of a particular creditor whom debtors had reason to believe would likely prevail in a lawsuit filed against them, purchased exempt annuities with intent to hinder or defraud known creditor, under Florida fraudulent transfer law, Fla. Stat. ' 726, and transfer therefore may be set aside by bankruptcy trustee.

White v. Diamond Motors, Inc., 962 F.Supp. 867 (M.D.La. 1997) - Difference between amount actually paid for car license and amount charged by car dealership as license fee is not "finance charge" under Truth in Lending Act, since dealership charged license fee in both cash and credit sales if customer elected to have dealership handle application for title and license, and thus fee was not required precursor for extension of credit.

Taylor v. Union Planters Bank of So. Miss., 964 F.Supp. 1120 (S.D.Miss. 1997) - Bank's daily overdraft fee of $5.00, charged to checking account customers when their accounts became overdrawn, is not "finance charge" under Truth in Lending Act and Regulation Z.

Lukas v. Lucci Ltd., Inc., 966 F.Supp. 1163 (S.D. Fla. 1997) - Home remodeling contractor who executed ten contractual documents for different phases of one project, each of which required partial payment upon signing, and the remainder by completion of work under the particular contract, was not creditor for purposes of the Truth in Lending Act.

Burney v. Thorn Americas, Inc., 970 F.Supp. 668 (E.D.Wisc. 1997) - Rent-to-own transactions are not, as a matter of law "consumer credit transactions" under state (Wisconsin) law, reversing earlier summary judgment by court on a motion to reconsider, because cash purchase option prices of rent-to-own companies may not be a sham. Unresolved factual issues regarding this issue are whether option prices were nominal, and whether customers' obligations upon exercising option were enforceable.

Goodwin v. Ford Motor Credit Co., 970 F.Supp. 1007 (M.D.Ala. 1997) - Truth in Lending Act claims are subject to decision under arbitration agreements accompanying installment sales contracts between buyers and dealerships. The arbitration agreements are not void under Alabama law for lack of mutuality of remedy, since Alabama, according to the decision, does not require such mutuality; nor are they unconscionable. Buyers were equitably estopped from preventing assignee automobile credit corporation from enforcing arbitration agreements, where buyers sued assignees based upon contracts containing those agreements.

Seibel v. Society Lease, Inc., 969 F.Supp. 713 (M.D.Fla. 1997) - Repossession agency's entry on property for self-help repossession after consent has been revoked is breach of peace in violation of Fla. Stat. 79.503

Wow!! I have read your information. It is very useful. I think it is most helpful if you are looking for loan. Once it is a necessity for you to get a superb refinance mortgage in Maryland, then do some hard work and research yourself because the power of the Internet can be enormously advantageous in terms of extremely illuminating data once you are going to need a first class refinance mortgage in Maryland. So, thanks for this useful information.

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my signature has some good case law especially for the 2nd circuit.

the sykes v mel harris is a great one about equitable tolling.

a) Statute of Limitations

Defendants argue that some or all of the FDCPA claims are time-barred.[4] To be timely, an FDCPA claim must be brought "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d). Plaintiffs counter that the equitable tolling doctrine preserves their claims.

The first FDCPA violations allegedly occurred when the Leucadia and Mel Harris defendants filed the state debt collection actions. Defendants plausibly violated the FDCPA again when they subsequently applied for default judgments against plaintiffs.[5] Even using the default judgment application dates, the claims of Sykes, Graham, and Perez would be time-barred because those dates were more than a year before December 28, 2009, when the class action allegations were asserted.[6] (See Compl. ¶¶ 128, 203, 230). Thus, it appears that absent equitable tolling, their claims would be untimely.

The Complaint plausibly alleges that equitable tolling applies, as to most of the plaintiffs' FDCPA claims. A statute of limitations may be tolled in extraordinary circumstances, if a plaintiff establishes that: (1) the defendant concealed from him the existence of his cause of action; (2) he remained in ignorance of that cause of action until some length of time within the statutory period before commencement of his action; and (3) his continuing ignorance was not attributable to lack of diligence on his part. State of N.Y. v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988); see also Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349-50 (1874). FDCPA claims are subject to equitable tolling. Somin v. Total Cmty. Mqmt. Corp., 494 F. Supp. 2d 153, 158 (E.D.N.Y. 2007) (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)).

Sykes and Perez have sufficiently alleged that defendants fraudulently deprived them of notice of their debt collection actions.[7] Because sewer service purposefully ensures that a party is never served, it is plausible that defendants' acts were "of such character as to conceal [themselves]" to warrant equitable tolling. Bailey, 88 U.S. at 349-50. The present class action commenced on December 28, 2009. Because Sykes and Perez allege that they discovered the default judgments entered against them after December 28, 2008, their claims would be timely under equitable tolling. (See Compl. ¶¶ 137, 239). The Complaint alleges, however, that Graham did receive a copy of the summons and complaint by mail from Mel Harris, LLC sometime before a default judgment was entered against her, and thus it fails to allege exercise of due diligence on her part. (See id. ¶ 199). Thus, this prong of defendants' motion is granted with respect to Graham, but denied as to all other plaintiffs.

it was quoting from Johnson v. Nyack Hosp., 86 F. 3d 8 - Court of Appeals, 2nd Circuit 1996 with respect to the equitable tolling discussion.

see below

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Komarova v. National Credit Acceptance, Inc., 175 Cal. App. 4th 324 (Cal. App. 1st Dist. 2009)(Specific statute overriding CCP47 litigation priviledge)

Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (Cal. App. 4th Dist. 2009)(discovery sanctions for failure to produce after compelling)

American Express Travel Related Servs. Co., Inc. v. Vinhnee (In re Vinhnee), 336 B.R. 437 Bankr. 9th Cir. 2005(records foundation and admissiability under ESI guidelines)

Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279–280 (terminating sanctions from administrative proceeding referenced in other cases for terminating sanctions)(would be useful in court ordered arbitration)

Action Apartment, supra, 41 Cal.4th at p. 1246(Rosenthal violations)

Remington Invs. v. Hamedani, 55 Cal. App. 4th 1033 (Cal. App. 2d Dist. 1997)(proving a debt taken over by FDIC ie WAMU)

Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007)(pro pers denial of cross-exanination of a declarant)(useful for CCP98 witness no showing)

Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677 [56 Cal. Rptr. 2d 803](motion in limine evidence exclusion)(shows what reversible error is for MIL)

Spector v. Superior Court (1961) 55 Cal.2d 839, 843, 844 [13 Cal. Rptr. 189, 361 P.2d 909](judicial disqaulification)

Tillson v. Peters (1940)

41 Cal.App.2d 671, 679 [107 P.2d 434](failure of the court to allow pro per defendant to present evidence and to call witnesses)

Halperin v. Guzzardi(1949)

95 Cal. App. 2d 31, 35, 212 P.2d 194 LEXIS 1077(new trial abuse of discretion)

Gray v. Robinson (1939)

33 Cal App.2d 177, 182, 91 P.2d 194 LEXIS 205(new trial motion granting on one ground does not limit appellate review on denied grounds)

Pratt v. Pratt (1903)

141 Cal. 247, 251-252, 74 P. 742 LEXIS 748(shows error of court by siding with one party over another)(yes I went there:))

Malkasian v. Irwin (1964)

61 Cal. 2d 73. 78, 40 Cal. Rptr. 78,394 P.2d 822(court exeeding the statutory authority for new trial)

Smith v. Covell,

100 Cal. App. 3d 947 (Cal. App. 4th Dist. 1980)(improper jury conduct)(used this one for judge as thirteenth juror error)

Interstate Group Administrators, Inc.,

supra, 174 Cal.App.3d at p. 708(new trial motion errors)

Kulshrestha v. First Union Commercial Corp., 33 Cal. 4th 601 (Cal. 2004)(precedent for CCP2015.5 out of state affidavit without the california statute statement of perjury)

"Evidence that is relevant to the prime theory of the defense cannot be excluded in wholesale fashion merely because the trial would be simpler without it." ( People v. McDonald (1984) 37 Cal. 3d 351, 372 [208 Cal. Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].)(yes even this didn't work for me)

Hartford Accident & Indemnity Co. v. Gropman,

163 Cal. App. 3d Supp. 33 (Cal. App. Dep't Super. Ct. 1984)

Greyhound Corp. v. Superior Court (1961)

56 Cal.2d 355

Waters v. Superior Court,

58 Cal.2d 885(1962)

Joslin v. Gertz (1957)

155 Cal.App.2d 62, 65-66 [317 P.2d 155

Tillson v. Peters (1940)

41 Cal.App.2d 671, 679 [107 P.2d 434]

Gross v. Recabaren (1988)

206 Cal.App.3d 771, 778 [253 Cal.Rptr. 820]

R.N.C., Inc. v. Tsegeletos,

231 Cal. App. 3d 967 (Cal. App. 1st Dist. 1991)

Remington Invs. v. Hamedani,

55 Cal. App. 4th 1033 (Cal. App. 2d Dist. 1997)

Baroni v. Musick,

3 Cal. App. 2d 419 (Cal. App. 1934)

from appeal reply brief

Associated Builders & Contractors, Inc. v. San Francisco Airports Com.

21 Cal.4th 352, 361 [87 Cal. Rptr. 2d 654, 981 P.2d 499](1999)

In re Lynna B.,

92 Cal.App.3d 682, 704 [155 Cal.Rptr. 256](1979)

In re Shannon C.,

179 Cal. App. 3d 334 (Cal. App. 3d Dist. 1986)

People v. Watson,

46 Cal.2d 818, 834 [299 P.2d 243] (1956)

Elkins v. Superior Court,

41 Cal. 4th 1337 (Cal. 2007)

Kulshrestha v. First Union Commercial Corp.,

33 Cal. 4th 601 (Cal. 2004)

Cooley v. Superior Court,

140 Cal.App.4th 1039 [45 Cal. Rptr. 3D 183](2006)

People v. Casa Blanca Convalescent Homes, Inc.

159 Cal.App.3d 509, 524-525 [206 Cal.Rptr. 164](1984)


Ermoian v. Desert Hospital,

152 Cal. App. 4th 475 (Cal. App. 4th Dist. 2007)

Golden Eagle Ins. Co. v. Foremost Ins. Co.,

21 Cal. App. 4th 224 (Cal. App. 2d Dist. 1994)

Hernandez v. Atlantic Finance Co.,

105 Cal. App. 3d 65 (Cal. App. 2d Dist. 1980)

Herrera v. Deutsche Bank National Trust Co.,

196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011 n.5)(this is about hearsay declarations it is a partially published opinion)

all these can be checked at:

LexisNexis® Custom Solution: California Courts Research Tool

These are all Cal cases but the principles are the same.

Edited by Seadragon

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This thread will be used strictly for posting of information I find in my research which may be helpful to other posters. It will consist primarily of interesting case law, statutes, Opinion letters, and other things that may help posters in various states. No need to respond to these posts.

Chase Bank, USA v. Curren, 191 Ohio App. 3d 507 - Ohio: Court of Appeals, 4th Appellate Dist

To support its motion for summary judgment, Chase submitted an affidavit from its "duly authorized agent" that had copies of account statements attached to it. Curren contends that the trial court abused its discretion when it considered this evidence. We agree. No evidence indicates that the agent made his averments based on personal knowledge, as Civ.R. 56(E) requires. Moreover, the agent's averments fail to properly authenticate the account statements as business records under Evid.R. 803(6), so the documents constitute inadmissible hearsay. Because Chase failed to support its motion with admissible evidence that would allow the trial court to independently calculate the balance due, Chase was not entitled to judgment as a matter of law. Therefore, we reverse the trial court's judgment. This decision renders moot Curren's additional argument that he properly rebutted Chase's summary judgment motion.

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Jaramillo v. PORTFOLIO ACQUISITIONS, LLC, Tex: Court of Appeals, 14th Dist. 2010

In McElroy v. Unifund CCR, a similar credit card debt collection case, this court held the evidence was insufficient to support the existence of a valid contract. McElroy v. Unifund CCR Partners, 2008 WL 4355276 (Tex. App.-Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op.). In McElroy, the creditor's evidence supporting a contract consisted of: (1) an affidavit of an employee of the creditor; (2) a signature card for the account; (3) an affidavit of an employee of the assignor of the account; and (4) more than a dozen monthly account statements. Id. at *2. This court likened the evidence in McElroy to that in Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231 (Tex. App.-Houston [1st Dist.] 2008, no pet.). In Williams, the First Court of Appeals held that a creditor failed to establish the existence of a contract when it failed to produce the actual agreement or any other document that established the agreed terms, including the applicable interest rate or method for determining the applicability and amount of finance charges

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GIGLI v. PALISADES COLLECTION, LLC, Dist. Court, MD Pennsylvania 2008

Good Pennsylvania case, a JDB gets sued. Excerpts: Nelson v. Select Financial Services, Inc., 430 F. Supp. 2d 455, 457 (E.D. Pa. 2006), the failure to dispute a debt within thirty days "merely allows the debt collector to proceed under . . . a `temporary fiction' that the debt stated in the validation notice is true." See also Smith v. Hecker, No. Civ. A. 04-5820, 2005 WL 894812, at *4 (E.D. Pa. Apr. 18, 2005).

Because Congress has mitigated the prejudice to a consumer in a debt collection action arising from her failure to dispute the debt under § 1692g(a), it is consistent with congressional intent to hold that her failure to dispute the debt's validity does not preclude an FDCPA action based on subsequent debt collection practices declared unlawful under the FDCPA.

Accepting Defendants' contention would encourage debt collectors to arbitrarily send a written notice to any person falsely claiming that person owed a debt. Provided the consumer fails to take action within thirty days, the debt collector may then institute a debt collection action repeating the same false representations without fear of FDCPA liability. Immunizing unscrupulous debt collectors, while depriving consumers of a remedy, would frustrate the FDCPA. Consequently, Defendants' summary judgment motion on this basis will be denied.[7]

That account was allegedly transferred from First USA (renamed Bank One) to Sherman Financial and then to Sherman Acquisition, who in turn transferred Ms. Gigli's account to Palisades. As Ms. Gigli observes, there is no evidence corroborating any of these transactions. The purchase or transfer agreements between FirstUSA/Bank One and Sherman Financial and between the Sherman entities are not part of the record. And although there is the Bill of Sale and Assignment between Sherman Acquisition and Palisades, in which the former assigned to the latter "all [its] rights, title and interest . . . in and to those certain Charged-off Accounts described in Exhibit `1,'" Exhibit 1, an examination of which would presumably reveal whether Ms. Gigli's alleged First USA/Bank One account was among the accounts assigned to Palisades, is conspicuously absent from the record.

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Same case excerpt

Mr. Hildebrand stated that Sherman Acquisition, through Sherman Financial, purchased credit card accounts from First USA. Sherman Acquisition sold those accounts to Palisades. Mr. Hildebrand, however, did not identify Ms. Gigli's account among the "accounts" acquired from First USA and transferred to Palisades. As for Mr. Berman, he simply declared that Palisades acquired by assignment Ms. Gigli's First USA credit card account from Sherman Acquisition and, citing Mr. Hildebrand's affidavit, that Sherman Acquisition purchased that account from First USA. Neither affidavit is accompanied by documents evidencing any of these transactions.

Viewing this evidence in the light most favorable to Ms. Gigli, a reasonable jury could conclude that Palisades never acquired, through assignment or otherwise, Ms. Gigli's First USA credit card account. If Palisades never acquired Ms. Gigli's account, the allegation in the state court lawsuit that it was the assignee of the account misrepresented the legal status of the debt in violation of 15 U.S.C. § 1692e(2)(A). Therefore, Defendants' motion for summary judgment will be denied.[9]

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Eaves v. Unifund CCR Partners, 301 SW 3d 402 - Tex: Court of Appeals, 8th Dist. 2009

Texas appeal, a JDB wins across the board even tho the account number is not on the bill of sale.

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credit card "account stated" - Google Scholar

Excerpt: Good case, bill of particulars in New York upheld over bank's objection

Bank of NY v. Santarelli, 128 Misc. 2d 1003 - NY: County Court 1985128 Misc.2d 1003 (1985)JOHN J. FROMER, J.

The challenged items of defendant's demand for particulars seek names and addresses of persons who allegedly signed for the orders which make up the account, names and addresses of the suppliers of the goods or services allegedly ordered, as well as copies of each credit card receipt alleged to be a part of the account. Plaintiff objects that these items have no relevance to its cause of action upon an account stated, and that it should not be required to particularize these items.

It is among the declared Congressional purposes of the Federal statute to protect consumers against inaccurate and unfair credit billing and credit card practices. (15 USC § 1601 [a].) This concern is echoed in the public policy of this State in its enactment of General Business Law article 29-A, which provides among other cardholder protections that any agreement purporting to provide that a statement sent by the credit card issuer to the cardholder shall be deemed correct unless objected to within a specified period of time is void and of no force or effect. (General Business Law § 517.) The intent is clearly to thrust the burden upon the card issuer to demonstrate the full basis of its cardholder's liability, and not to allow it to hide behind pleadings couched in generalities and framed in terms of technical common-law forms of action.

Clearly in order to prove that defendant's liability arises out of authorized use of its credit card, plaintiff will have to introduce 1005*1005 at trial evidence of the underlying transactions, including names and addresses of vendors and signatories, as well as receipts signed by defendant or her agent. Being thus related to plaintiff's burden of proof, the items demanded must be provided in response to defendant's demand for a bill of particulars, which plaintiff is hereby directed to supply.

Motion to strike demand for bill of particulars denied.

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credit card "account stated" - Google Scholar

Great Seneca Financial v. Felty, Ohio

We find merit in Felty's argument that the documents purporting to assign Felty's credit-card account to GSF should not have been considered by the trial court because GSF had failed to authenticate these records. GSF did not file these documents with an accompanying affidavit setting forth a proper foundation under Evid.R. 803(6) for their admissibility into evidence. See Civ.R. 56©; Ebbets Partners Ltd. v. Day, 2d Dist. No. 19748, 2003-Ohio-4425, 2003 WL 21991370, ¶ 15. This argument is sustained.

Felty next contends that summary judgment was improper because a genuine issue of material fact existed as to the amount due on the account as a result of the starting balance of $5,703.56. We agree. GSF failed to provide documentation of the credits and debits leading to the $5,703.56 balance that would have permitted a proper calculation of the total amount due. See Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 38 O.O.2d 143, 223 N.E.2d 373; Harvest Land Co-Op v. Wolter, 2d. Dist. No. 1654, 2005-Ohio-6258, 2005 WL 3147321, ¶ 14-16; Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 2004-Ohio-623, 804 N.E.2d 975. Therefore, we conclude that the evidence 744*744 presented to the trial court did not permit a reliable determination as to the beginning balance on Felty's credit-card account and that therefore a genuine issue of material fact remained.

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Portfolio Acquisitions, LLC v. Feltman, 909 NE 2d 876 - Ill: Appellate Court, 1st Dist., 3rd Div. 2009

A few good tidbits of info from the court:

Plaintiff, Portfolio Acquisitions, LLC, is a debt buyer and collector. As a matter of background, the debt collection business has grown to the point of $110 billion of bad debt purchases in 2007. Often, these debts have been transferred between several creditors and eventually written-off to be sold for pennies on the dollar to debt collection agencies. In Illinois, millions of these bad debts have been purchased by these debt collection agencies. Amici for defendant estimate that roughly more than half of the 158,152 debt collection lawsuits filed in Cook County in 2007 were filed on behalf of debt collection agencies, primarily for credit card debts. Because these debts often are transferred multiple times, amici for defendant express their concern that, despite the use of computers and sophisticated software, the odds drastically increase that documents will be lost and errors will result. They assert that this concern is compounded by the sheer volume of cases, which precludes careful examination for inconsistencies and inadequate documentation

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