Help with Asset Acceptance lawsuit

[IrishDMBF]

I have been sued by Asset Acceptance for an old HSBC account which is not past SOL.

I submitted my answer and requested discovery. Trial is set before a magistrate Oct 24th

I then submitted a motion for summary judgement which is due to be heard Oct2nd ex parte. This motion was based on the fact that the tradeline was deleted from both my husbands and my credit report.

Today I get their memorandum in opposition to summary judgment in which they state that credit reports have no place in the court.......they did not expressly say that it is hearsay. Also that I did not apply for leave to apply for summary judgment.......I did it was in the first line of the motion and it is on the court docket as motion for leave to apply summary judgment. They also provided a copy of the original credit application which is not certified by the original creditor.

Here is my reply to their opposition.

Please let me know what you think

Now comes defendant XXXXXXXXXXX with reply to plaintiff’s motion in opposition to Motion for Summary Judgement.

The defendant still requests motion for summary judgement based on the following facts:

(1) The defendant did apply for leave to apply for summary judgment in the first line of the motion that was filed with the court.

(2) The alleged credit application submitted to the court as Exhibit A is not certified as authentic by a person employed at Furniture Row or HSBC that has intimate knowledge of the creation of the debt. Thus it is hearsay.

(3) The original affidavit and document submitted to the court by the plaintiff upon filing of this suit are also hearsay for the same reason as mentioned above.

(4) The plaintiff has not supplied the defendant with any of the other articles requested in discovery (discovery requested when defendant answered the suit) although every opportunity has been given to the plaintiff to do so.

(5) Attached is an updated copy of the defendants credit report which shows that the tradeline for the HSBC account remains deleted.

According to the Fair Credit Reporting Act (FCRA) §611 (a)(1)(A)

In general. Subject to subsection (f), if the completeness or accuracy of any

item of information contained in a consumer's file at a consumer reporting

agency is disputed by the consumer and the consumer notifies the agency

directly, or indirectly through a reseller, of such dispute, the agency shall,

free of charge, conduct a reasonable reinvestigation to determine whether

the disputed information is inaccurate and record the current status of the

disputed information, or delete the item from the file in accordance with

paragraph (5), before the end of the 30-day period beginning on the date on

which the agency receives the notice of the dispute from the consumer or

reseller.

FCRA §611 (a)(5)

(A) In general. If, after any reinvestigation under paragraph (1) of any

information disputed by a consumer, an item of the information is found to

be inaccurate or incomplete or cannot be verified, the consumer reporting

agency shall–

(i) promptly delete that item of information from the file of the consumer,

or modify that item of information, as appropriate, based on the results

of the reinvestigation; and

(ii) promptly notify the furnisher of that information that the information

has been modified or deleted from the file of the consumer.

Given that the plaintiff has no proof of facts that are material to this case combined with the multiple credit reports provided to this court showing that the original creditor could not verify the account, the defendant requests she be given leave to apply for summary judgment and that summary judgment be granted to the defendant.

I know its long but I would appreciate input. I need to get this filed ASAP.

[montanatim]

I like it. Except....You are trying to admit a third party business document(credit report) without laying a foundation. This is your complaint about them in #2. Virtually anytime you could start a sentence with---they said, or, they say---they told me, it is probably hearsay with out a witness to lay a foundation. "my credit report says..." If I'm wrong someone correct me.

[IrishDMBF]

In their opposition to my MSJ Asset said and I quote "A credit agency's decision is not binding on this court. It is also not clear if and why the tradeline has been deleted".

They did not say the credit report was hearsay.

So I amended my response to their opposition by saying

The defendant submits that the credit reports should be admitted as relevant based on the following:

..............quotes from FCRA as above

What do you think?????

I have also been paying close attention to ongoing credit related dockets through the local clerk of courts website and have studied the state and local rules of civil procedure.

Usually when the plaintiff objects to a motion it appears as filed in relation to a case. In my case there has been no objection filed.

The local rules state that a party has 14 days to file an objection to a motion and the movant on the motion has 7 days to reply to the objection. The motion was filed with the court on 9/10 which gave them till 9/24 to file their objection. I only recieved their objection yesterday 9/26. Again there is still no objection on file. Is it possible that the Clerk didn't allow their objection because it wasn't within the allowed time frame???

I still sent my response to the objection anyway since it could appear next week. I will call the court on monday and ask.

[montanatim]

They are quite correct in saying that what the CRA does on a report is not proof of anything on the underlaying debt.

Their deleting the entry on your reports is not sufficient to grant summery judgment on.

There must be basically no material facts in dispute for summery judgment.

They say that a credit report has no place in the court, even if they have not objected to it as hearsay, I still believe they could, for the reason stated in my last post. If I paid for the report and wanted to use it in court, I would ask the provider for the foundational affidavit with it.

[swirlgirl]

Just FYI. There is no relationship between a debtor's liability for a debt and which tradelines appear on a credit report. Valid TLs are deleted from credit reports everyday.

So, you may want to think up some other reasons for the summary judgment.

[IrishDMBF]

I understand that.

However, nothing they have submitted to me or the court have proof of material facts.

Also their opposition to my motion has not been filed yet.....and I think I know why.

I submitted a motion for summary judgement.......on friday I got what I thought was their reply which was at least 3 days too late according to local rules.

Reading it over the weekend I also noticed that they filed it wrong.

They say it is........The plaintiffs response to the defendants reply to the plaintiffs motion for summary judgement (its all over the paperwork they sent me)........but its not.......it should have been the plaintiffs response to the defendants motion for summary judgement!!!!!

They also have the date that the suit was filed as wrong in their memorandum, they said 2007.

I am wondering if the court clerk rejected it because their response had the wrong title, all over the paperwork and in the certificate of service plus it was 3 days too late!!!

The more I read what they sent the more mistakes I find!!!!

Local rules state that if a motion isn't responded to in 14 days that the motion will be granted as written......I am wondering if their stupid mistake will get my motion granted!!!!

[IrishDMBF]

So, you may want to think up some other reasons for the summary judgment.

I have.......the credit application and the original affidavit and document they sent are hearsay....but I am wondering if I need to since they made a mistake in filing their opposition.

I am going to call the court clerk in the morning.

[IrishDMBF]

Ok, so the MSJ got denied..........I am waiting to find out why! I am hoping its because I didn't apply for separate leave and the credit reports. I requested leave to apply with the MSJ. I am hoping that it wasn't because the judge said that they have sufficienct material facts.......I objected to everything they submitted as hearsay, which it is because it hasn't been certified by HSBC!!!

I also haven't recieved any of my requests for discovery from them!!!

Anyways, they have since sent me interrogatories and admissions. Part of the admissions is admitting my full name, DOB and SSN!!! Is there anyway I can object to the SSN??? I don't feel comfortable giving it to them and shouldn't they already have it, if they have a valid claim on this debt????

Also why do they want my employer and occupation? Can I object to this too???

[montanatim]

Anything you asked for in discovery that they did not provide should be inadmissible by them at trial.

The reason they want the other info you object to, is so they won't have to have an asset hearing in the event they win to start garnishment.

[IrishDMBF]

The reason they want the other info you object to, is so they won't have to have an asset hearing in the event they win to start garnishment.

But how do I object to it in the interrogatories?