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Are credit card statements and an affidavit enough to win a judgement with?


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Lets say a consumer is sued by an original creditor, for a charged off credit card account that is still within the SOL. This consumer fails to retain an attorney, and only files a general denial as their answer. The OC's lawyer then files a motion for summary judgement. That motion includes the following:

-A completely ILLEGIBLE copy of an application the OC claims the consumer has signed, but again, cannot be read or understood by anyone because of the complete lack of clarity.

-A boilerplate copy of the credit card's membership agreement (terms and conditions), which is unsigned and unnumbered.

-An affidavit from an employee of the OC, who has intimate knowledge of the records pertaining to the credit card account, and alleges that the consumer breached the contract by failing to make monthly payments, in addition to the consumer receiving monthly statements that were never returned or disputed.

-Copies of only the last 15 months worth of statements, although the account is more than 5 years old at the time of charge-off.

Excluding any opposition that the consumer may file to this MSJ, do you think the above is enough for the OC to win a judgement with? I would really like like to hear your opinions, and get feedback on this. Many thanks in advance!

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If the consumer denies everything, including receiving the statements, then the Plaintiff does not have enough evidence to support its claim.

Before the consumer disclaims all of this, the consumer should check its bank account and make sure that there is not a a record of sending payments to the alleged account. As the battle continues the Plaintiff will most certainly ask for bank statements during the time which purported payments were made.

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A general denial sufficiently puts the burden on the Plaintiff to prove that the debt belongs to the consumer.

Judges understand that consumers have been mismatched with other people's debts. It is not unreasonable to ask that the CA ascertain that it has the right debt matched up with the right consumer especially a consumer who is denying that the debt is his/hers.

Proffering account sheets and affidavits - even from an oc - does not identify that the CA has the right person.

If the CA manages to come up with a legible contract with the consumer's signature then things change...

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Thanks for the thread, Smurfette. Very interesting questions. I'm subscribing. I look forward to more of the experienced commentators to chime in on this one...

One thing to keep in mind is that every judge is different. If you read SG's recent post, he lost in case on what seemed cut and dry: his right to a fair accounting of the debt (as protected by FDCPA, and lots of case law). The judge didn't give a damn. Sometimes, even if your case is good and correct, the proper outcome may come at the appellate court!

notagain xxheartxx

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It depends on the judge you have. A general denial may not be enough.

That's right. You need more than just a denial.

Denials in pleadings or briefs are not sufficient to overcome a well-supported motion. Nor is a mere scintilla of supporting evidence sufficient. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
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I'd attack their evidence with:

1. Was the illegible copy certified as a true copy of the original?

2. Ask the court the question, "if the copy is illegible, why should it be admitted."

3. Attack the witness with "intimate knowledge". What area in the company does this person work at? How long has the employee worked there? What kind of access to records to they have?

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Hi thanks for the thread, I started a similar one but there is much more action here. I was presented by the CA with a copy of a credit card statement with my name on it, but without a signature or an agreement. He also sent me an affidavit that is very vague and sites the original document as included which it is not.

My pre-trial conference on this one is on Jan 21. I'm planning on saying they have not provided enough evidence.....?

M

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Original post by nascar:

That's right. You need more than just a denial.

No, this not right.

I had two lawsuits brought against me before I knew how to Answer. I gave a general denial. The attorney for the CA stressed vehemenently that I "only" gave a general denial.

I continued to deny any knowledge of any of the evidence the attorney brought forward. The attorney even brought forth an illegible bill of sale as a last attempt.

In the judgment the Court stated that the Defendant has disputed the claim all along, that the Plaintiff has the burden of proof in this matter by a preponderance of evidence and that the Court hereby finds that the Plaintiff has failed to meet its burden of proof.

The Court did not subscribe to the ideal that only giving a general denial is practically pleading "guilty". This idea only works if the Plaintiff has a preponderance of evidence.

From what the op has posted, the Plaintiff does satisfy this condition to waltz away with a judgment if the consumer can successfully deny the evidence presented to the court.

I googled Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). and did not find what you posted embedded in any of the cases.

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I googled Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). and did not find what you posted embedded in any of the cases.

From the text of the opinion:

Our inquiry is whether the Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment.Rule 56© of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Anderson provided the reasoning behind the statement in my post. Thus, the reason for the word "See" before the case cite. The following cite uses the reasoning in Anderson to further explain that simple denial of the allegations leveled in the Complaint is not sufficient to overcome a well-formulated motion for summary judgment. It is incumbent upon the defendant to provide a more factual basis for his opposition that a mere denial stated in an Answer. While we would like to think that all we have to do is "deny, deny, deny" in order to win, in reality there is much more to it than that.

Lescasbas, notwithstanding your own experiences, I would suggest that it is not wise to go up against an opposing counsel who has put anything more than minimal effort into his motion. In your situation, I would imagine that neither side presented any facts sufficient to tilt the scale one way or the other.

Rule 56© therefore requires a non-moving party to go beyond the pleadings and by [its] own affidavits or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial."'By its very terms, this standard provides that the mere existence of "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also Matsu****a Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).Aurel v. Sch. Bd., 261 F. Supp. 2d 1375 (S.D. Fla. 2006).
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Thanks for all the replies! The reason for my original post in this thread was to get some insight from all of you as to how my case, which is now going to be decided in the Appellate Term of the Supreme Court, will turn out. For background info, please read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=289821

What I am solely worried about is Discover's argument: "Did the lower court err in denying Plaintiff-Appellant's motion for summary judgement by order dated June 14, 2007?" The lower court denied the summary judgement motion upon the grounds that the affidavit in support was sworn to outside the state of New York, and the papers did not contain an affidavit of conformity, pursuant to CPLR 2309©.

OK, I thought I was golden there, but it turns out that is NOT a fatal defect, and should be ignored, according to the latest cases decided by the Appellate Term for the past two years.

So, will my opposition papers suffice? I didn't know then, what I know now, and so I only listed the following:

1. I do not owe the debt Discover is suing me for.

2. Judge XXXX set a trial date to allow for triable issues of fact. Substantial evidence exists, and will need to be presented at trial, as a dispute of said facts exists.

3. Judge XXXX ordered that Discovery be facilitated. To date, my demands for Discovery have not been answered.

4. I have a counterclaim for which I seek relief from the Court, and require trial. The lawsuit Discover has brought against me is fraudulent and frivolous. In addition, I will be seeking relief from the Court for violations of the FDCPA against me by the law office of Scum Bag, P.C. in conjunction with this case.

Now what do you think? Are there questions of fact as to the contract, and the amount that may be due? Do you think the Appellate judges will agree that the MSJ should've been denied?

Many thanks again for the insightful opinions and feedback.

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In reading your previous thread I think that this poster brought forth a good point which you should put to use.

Original post by: Methuss

Well if there is appellate case law already supporting that Discover be denied on appeal then spank 'em hard. The fact is the appeal court should deny hearing the case based on the fact that the issue has already been decided in the past. They can hardly review the case de novo if they've already settled the matter before.

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In the judgment the Court stated that the Defendant has disputed the claim all along, that the Plaintiff has the burden of proof in this matter by a preponderance of evidence and that the Court hereby finds that the Plaintiff has failed to meet its burden of proof.

(quote by Lecasbas)

From all I have read, I would consider receiving that verdict very lucky. I respect you Lecasbas, and you know far more than me but I would bet if the Plaintiff had one statement or anything at all with your name on it, you would have lost or would lose 99% of the time. Point being, I think it's fair to say that a person should be better 'armed' walking into the courtroom than just with a blanket denial. It wouldn't have taken much for the Plaintiff to destroy the credibility of said denial.

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In reading your previous thread I think that this poster brought forth a good point which you should put to use.

Original post by: Methuss

Well if there is appellate case law already supporting that Discover be denied on appeal then spank 'em hard. The fact is the appeal court should deny hearing the case based on the fact that the issue has already been decided in the past. They can hardly review the case de novo if they've already settled the matter before.

Again, this issue deals with CPLR 2309. In the past, the Appellate Court would decide that lack of an affidavit of conformity was a fatal defect. Not so anymore. In fact, reading the latest opinions and decisions of the court show that they feel this is merely a error that should be ignored.

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I would bet if the Plaintiff had one statement or anything at all with your name on it, you would have lost or would lose 99% of the time

You are assuming that the Plaintiff did not have these things when in fact it did.

This is my point and my contribution to this thread...if the Plaintiff cannot identify the consumer with the alleged debt then it does not meet its burden of proof regardless of a general denial.

Look, guilty of the debt or not, the Court and the Plaintiff (who are colleagues) pretty much team up against the consumer with insufficient evidence. It is up to the consumer to grit its teeth and say "prove it".

It's hard to stand (or sit) in front of these conniving money grabbers because they know all the tricks of the trade and constantly throw legal monkey wrenches into the gears of justice of which the LSC does not know how to defend itself.

If the consumer holds its ground and denies, denies and denies the allegations then the Plaintiff will hardly ever win.

My apologies to the op for going back to the original subject when you have moved on but I felt I needed to stress that a general denial is not the same as pleading guilty and that statements with the consumer's name on it along with affidavits from the OC are not a preponderance of evidence if the consumer denies receiving those statements.

I have very little experience with appeals so I guess I will be on my way.

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My apologies to the op...

No need to apologize, everything being discussed here is both interesting and informative.

Anyway, has anyone on this board ever been sued by an OC, had the case dismissed with prejudice, only to have the OC file an appeal? If so, please share your experience and the ultimate outcome of the case.

I hope that anyone here who has any experience with appeals posts in this thread. As always, replies are very appreciated!

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Intersting discussion. In my state, Texas, a generic agreement that is usually produced by the plaintiff is insufficient to establish it as the governing agreement in which the suit is being filed. Furthermore, making payments on this account only proves there is an agreement and Texas courts have ruled over and over that THE actual agreement must be produced.

Most banks do not keep such records past 18 months and even if they did they send you changes in the mail all the time and thus the agreement changes and they do not keep track of this on an account by account basis. They can only tell you that certain classes of accounts got this notice or that notice. Also, you can opt out of these changes which makes it even more burdensome to produce your actual agreement. Most people just assume the OC's have the documents and when they produce something they do not question it enough. A good defense will always win these cases as they simply do not have the sufficient documentation.

I am fighting one now myself and the bank (OC) is scrambling to come up with something. I have had their affidavits dismissed as hearsay. Do not panic and just play the game. I have won twice before and the cases are dismissed. These debts were my ex wife's so it is a matter of principle to me.

I am using an attorney, but I have given him the caselaw and game plan to work with. Good luck everyone!

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I found this Case Law:

http://vlex.com/vid/25258562

Very interesting to read, and it gives me a lot of hope! Here is a summary:

Contracts - Procedure/Rules - Evid/Wit/Trial: To prevail in an action on an account, the plaintiff must establish the existence of an account in the name of the party charged, as well as (1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due. (Brown v. Columbus Stamping & Mfg. Co. [1967], 9 Ohio App.2d 123, 223 N.E.2d 373, followed.) In ruling on a motion for summary judgment, a court may consider only those items that would be “admissible into evidence”: Documents submitted without an accompanying affidavit were not “admissible into evidence” and therefore should not have been considered by the trial court. Business records created by an entity other than the party offering them are admissible, provided that there are sufficient indications of trustworthiness and that all the other Evid.R. 803(6) requirements are met. Where a beginning balance on a credit-card account is not substantiated by an itemization of the credits and debits leading to that balance, a genuine issue of material fact remains as to the balance due on the account.

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