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ficofightr

Another case, hearsay evidence wins for JDB

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This is from Ohio Sate Legal Services Association (consumer law group).

I can't find status of this in appeal, any one have super legal search engine powers?

Trial court's conclusion of law: "NCB’s representative is competent to testify with respect to the contents of the certified business records of Chase and such records are admissible under Ohio Rule of Evidence 803(6)"

Case name: National Check Bureau, Inc. v. Grissom

Court docket #: CVF0600195 (trial court)

Electronic docket:

Court: Fourth District Court of Appeals, Scioto County

Attorneys: Tammy Greenwald

SEOLS office: Portsmouth

Party represented: defendant-appellant

Category: consumer

Issue presented: Whether debt buyer must establish entire chain of debt ownership to recover judgment for debt, and whether testimony of debt buyer

employee may lay foundation for admission of original creditor’s business records.

Allegations/History: Plaintiff debt buyer, sued our client January 30, 2006, on an alleged credit card debt, claiming to have purchased the debt from a previous debt buyer and attaching only copies of a series of unsigned generic credit card agreements to the complaint. After Plaintiff supplied an incomplete set of purported monthly credit card statements, the court denied our motion for more definite statement. Plaintiff then moved for summary judgment, based on the affidavit of its employee purporting to authenticate the incomplete set of monthly statements and lay the foundation for their consideration as business records. Plaintiff’s affidavit also attached documents indicating that the original creditor had sold a collection of unspecified debts to another debt buyer, which then purportedly sold the claim against our client to Plaintiff. We argued that Plaintiff had not proven its ownership of the alleged debt, that Plaintiff’s affidavit could not be considered because it did not specify which of its statements were made on personal knowledge, that statements of Plaintiff’s employee could not lay the foundation for admission of another entity’s purported business records, and that the monthly credit card statements did not supply itemization sufficient under common law to establish liability in an action on an account.

On August 15, 2007, the trial court awarded Plaintiff summary judgment on liability. At trial over our objection the court admitted a full set of monthly statements and an unsigned generic credit card agreement into evidence on testimony by another employee of Plaintiff. Despite the employee’s admission that she did not know which of the credit card agreements, if any, were in general force at the time our client was alleged to have been using the card, the trial court held that the terms of our client’s credit card agreement had been proven and on November 28, 2007, granted judgment for Plaintiff in the amount of $6954.45 plus interest and costs.

Current status: Following issuance by the court on February 26, 2008, of findings of fact and conclusions of law, on March 26 we appealed denial of our motion for more definite statement, the award of partial summary judgment on liability, the final judgment entry, and the trial court’s findings of fact and conclusions of law. We await the preparation and filing of the record

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Another one JDB won on MSJ, interesting to see what happened on appeal?

Case name: Unifund CCR Partners v. Henderson

Court docket #: 07AC030123 (trial court)

Electronic docket:

Court: Fifth District Court of Appeals, Knox County

Attorneys: Scott Torguson

SEOLS office: Newark

Party represented: defendant-appellant

Category: consumer

Issue presented: Whether affidavit based in unspecified part on affiant’s personal

knowledge is sufficient for award of summary judgment to debt collector.

Allegations/History: Plaintiff discount debt buyer, contending it was fourth in a chain of assignments from the original creditor, sued our client to collect an alleged gasoline credit card debt in the amount of $571.06, without attaching an account itemizing the amount claimed. The court denied our motion for more definite statement requesting such itemization. In discovery our client admitted having a credit card matching the number of the account on which Plaintiff had sued, but denied owing the amount claimed. Debt buyer then moved in January 2008 for summary judgment, supporting its motion with our client’s discovery responses and an affidavit of its employee “based upon my personal knowledge and my review of the business records of Citi Bank,” the credit card issuer. Debt buyer’s affidavit attached a series of documents evidencing purchases and assignment of debt without enumerating the debts that were purchased and assigned.

In opposition, we argued that no part of an affidavit that fails to specify which of its statements are made on personal knowledge may be considered on a motion for summary judgment. We further argued that the proffered assignment documents did not comply with statutory requisites for such documents. Finally, we argued that debt buyer had not proven the terms of any credit card agreement or quasi-contract, had not pled a claim for account stated, had not proven that any specific statement of account had been received by our client, and had not provided any itemization necessary to recover on an account stated theory. On February 14, 2008, the court awarded summary judgment to debt buyer for $571.06 plus interest.

Current status: On March 14, 2008, we appealed. We await the preparation of the record.

"Plaintiff has provided no affidavit

stating when these bills were allegedly

sent, only an affidavit from someone

who works at a company who bought

the alleged debt from another company

who bought the alleged debt from yet

another company who bought the

alleged debt yet even another company

who bought the alleged debt from the

original creditor."

- Memorandum Opposing Summary Judgment

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Another one JDB won on MSJ, interesting to see what happened on appeal?

Case name: Unifund CCR Partners v. Henderson

Court docket #: 07AC030123 (trial court)

Electronic docket:

Court: Fifth District Court of Appeals, Knox County

Attorneys: Scott Torguson

SEOLS office: Newark

Party represented: defendant-appellant

Category: consumer

Issue presented: Whether affidavit based in unspecified part on affiant’s personal

knowledge is sufficient for award of summary judgment to debt collector.

Allegations/History: Plaintiff discount debt buyer, contending it was fourth in a chain of assignments from the original creditor, sued our client to collect an alleged gasoline credit card debt in the amount of $571.06, without attaching an account itemizing the amount claimed. The court denied our motion for more definite statement requesting such itemization. In discovery our client admitted having a credit card matching the number of the account on which Plaintiff had sued, but denied owing the amount claimed. Debt buyer then moved in January 2008 for summary judgment, supporting its motion with our client’s discovery responses and an affidavit of its employee “based upon my personal knowledge and my review of the business records of Citi Bank,” the credit card issuer. Debt buyer’s affidavit attached a series of documents evidencing purchases and assignment of debt without enumerating the debts that were purchased and assigned.

In opposition, we argued that no part of an affidavit that fails to specify which of its statements are made on personal knowledge may be considered on a motion for summary judgment. We further argued that the proffered assignment documents did not comply with statutory requisites for such documents. Finally, we argued that debt buyer had not proven the terms of any credit card agreement or quasi-contract, had not pled a claim for account stated, had not proven that any specific statement of account had been received by our client, and had not provided any itemization necessary to recover on an account stated theory. On February 14, 2008, the court awarded summary judgment to debt buyer for $571.06 plus interest.

Current status: On March 14, 2008, we appealed. We await the preparation of the record.

"Plaintiff has provided no affidavit

stating when these bills were allegedly

sent, only an affidavit from someone

who works at a company who bought

the alleged debt from another company

who bought the alleged debt from yet

another company who bought the

alleged debt yet even another company

who bought the alleged debt from the

original creditor."

- Memorandum Opposing Summary Judgment

Sounds like the err in this case may have been in the way the defendant responded to discovery requests. I'd like to know what kind of discovery requests were sent to the plaintiff b/c it doesn't make sense to me with proper discovery on behalf of the defendant that this could happen.

Doesn't there have to be an admission from the defendant or evidence supporting the fact that an agreement / contract existed / exists between the defendant & the plaintiff? I understand if the court would in their questionable judgment refuse to strike the jdb's hearsay statements but to award based on that evidence only....very questionable. I'd love to see that discovery that was sent to the plaintiff b/c obviously we're missing some very pertinent details from these cases.

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Yeah, I'm also wondering what the conclusions of law were there. I don't know how to search to see if that record had been ruled on by the CoA.

Note that both of these cases were not pro se but the defendant was represented by a well known consumer law agency.

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A firm with some questionable practices on their defense strategy :)

Just b/c you have counsel doesn't mean you have good counsel.

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A firm with some questionable practices on their defense strategy :)

Just b/c you have counsel doesn't mean you have good counsel.

Actually I think the Ohio Sate Legal Services Association is a pretty good consumer law group and their record against JDB's has been outstanding.

The reason for my original post was to show that in some cases even if you have legal representation, and they understand the JDB tactics inside out, some judges still allow hearsay evidence in.

I think a key point many have discussed here is to be very careful during discovery so as to make the JDB's job easier. Since most JDB's can't prove everything they claim, don't do their job for them.

Edited by ficofightr

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A firm with some questionable practices on their defense strategy :)

Just b/c you have counsel doesn't mean you have good counsel.

How do you define "good counsel"?

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