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I won..... Unifund CCR Partners

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Sorry I have to copy in because it is too large to attach.

Good Morning Your Honors,

"Have you read the appellant brief, your honor?" "Would the court care to take a moment now to review the brief now?" I would like to read my offer of proof so that the record can be preserved in case an appeal is needed.

1. I filed my counter complaint on September 7, 2007. M.C.R. 2.108 A and B clearly states that responses and motions which object to a pleading must be filed within the time for filing the responsive pleading or, if no responsive pleading is required, within 21 days after service of the pleading to which the motion is directed. Mr. Graff filed his response/answer to counter complaint on October 11, 2007 and the motion to dismiss the counter complaint and amended counter complaint on November 15, 2007. Both were well beyond the allowed time to respond. The time to respond had not been tolled and no extension had been granted, therefore the district court judge erred in allowing the response and the motion to dismiss. Civil Rule 56 does not specify that an objection must be made in order for the district court to rule using the rules of the district court or civil procedure. The court rules are applicable to all parties involved not just me.

Over the past nearly three years, Mr. Graff and Mr. Bader made it their business to point out how I was ignorant of the law and they are not. M.C.R. 2.113 (F) states that all documents that support a claim be attached to the original pleadings. So, does that mean that Mr. Graff purposely failed to include the contract, admissible account statements and bill of sale, which is required by law? I believe this was done as a tactic to give me no opportunity to refute the fraudulent documents. It is extremely convenient for Mr. Graff to argue non-compliance with the court rules while he continues to submit untimely, misleading and fraudulent documents to the court. M.C.R. 2.118(D) the relation back doctrine was and is applicable to the counter complaint and amended counter-complaint because the additional claims raised were added as a result of new fraudulent documents presented to the court. Unlawful pulling of credit reports and other failures to comply with FDCPA, FCRA and Michigan Codified Laws (UCC) regarding debt collections and communications with consumers are in question.

With the Relation Back of Amendments: An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action.

(2) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Had Mr. Graff complied with M.C.R. 2.113 (F), these issues would have been raised in my initial pleadings. I came to the pre-trial under the assumption that the burden of proof had not been met. There had been no alleged bill of sale or any affidavits submitted attempting to support the claim, nor any accounted stated. Because the District Court Judge failed to recognize these violations, she also failed to view the relation back doctrine for its purpose, which is to protect a valid claim from being avoided by legal technicalities. For these reasons, I ask that this court review the untimely submitted evidence and how they influence this claim and my ability to file an accurate pleading.

2. The district court erred in granting summary judgment in Unifund's favor. I would like to point out, the district court erred in her statements that the submitted credit reports reflected XXXXX AAAAAAAA as Nishawn Riley's current address. The address on all of the reports submitted was XXXXX AAAAAAAA . The district court judge failed to correct herself when advised that Nishawn Riley has not lived at XXXXX AAAAAAAA since 1994. Accordingly, if my current address was XXXXX AAAAAAAA , which is in Detroit, the district court judge would have been out of her jurisdiction by hearing the case.

The district court judge abused her discretion by stating that identity thieves do not make payments. See State v. Adams (1980), 62 Ohio St.2d 151, 157 (noting "[t]he term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable"). I understand that the district court judge has a right to control its own docket and the public's interest in the prompt and efficient dispatch of justice. Unger, supra, at 67. However, with nine million Americans being a victim of identity theft and cloning last year, the district court had an obligation to examine the fraudulent and contradictory evidence submitted to the court. The examination should have been inclusive of the current and lawful standards of review not personal opinions. Clearly, the district judge was mistaken about identity theft and cloning. In 2004, the FTC filed charges against CAMCO (a debt collection company) because as much as 80 percent of the money CAMCO collected came from consumers who never owed the original debt in the first place. In 2006, CAMCO was ordered to pay 1 million dollars to the FTC for their FDCPA violations.

The district court judge admitted on the record that there was no proof that Nishawn Riley made payments on the alleged account. Tr. at p. 20 THE COURT: You may not have made payments on that account, but somebody did__. Contrary to what Mr. Bader thinks, this does not display common sense; it displays a lack of sufficient evidence to grant summary judgment.

If Mr. Graff wants to say that I made these payments, he should provide proof of that. Assuming that I made those payments would create an unjust prejudice—against me. I have never made payments and Mr. Graff should prove that I did, since that’s his claim. That was not my address; I did not live there—. Since Mr. Graff was the movant party, he was obligated to provide proof of his claims. Unifund or Mr. Graff never proved that the credit card agreement was sent to or received by me; see Dreyer, 227 Ill.App.3d at 226-27 and Discover Bank v. Poling, Franklin App. No. 04AP-1117, 2005-Ohio-1543; see also Dresher, Ohio St.3d 280, 293. See, also, Wooding v. Cinfed Emps. Fed. Credit Union, 171 Ohio App.3d 665, 667-68, 2007-Ohio-728, at ¶12-15 (reversing a judgment in favor of a credit union on unfair lending practices claims, where the credit union failed to submit evidence that it had sent the credit card agreement to the debtor). There are no statements live or by affidavit by a Citibank or Unifund employee, which state that payments were made by me or that the account statements were mailed to and agreed to by me.

When these genuine issues were presented to the district court judge she responded by saying " THE COURT: That doesn’t eliminate the debt" — Tr. at p. 22. Although the district courts statement may be true, it does not equate to me being the debtor. This created a genuine issue to the material facts to be litigated.

3. Furthermore, the District Court abused its discretion in considering Unifund's documents. The court did not give all documents the same consideration because none of the authenticated documents Nishawn Riley submitted were disputed or questioned by Mr. Graff or the district court judge; see transcript. However, all of the documents Unifund and Mr. Graff submitted were. I contested all of the documents as a matter of law. By Mr. Graff being the moving party he was obligated to provide proof his claims not just make them. The district court never required that Mr. Graff answer for the contested and contradictory documents, yet she relied upon them.

A district court may grant a moving party summary judgment pursuant to Civ. R. 56, if there are no genuine issues of material fact remaining to be litigated. The moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor (Smith v. Five Rivers MetroParks (1999), 134 Ohio App.3d 754, 760). There were several material facts to be litigated. Mr. Graff provided the court with absolutely no proof that I opened the alleged credit card account with Citibank, made purchases or payments. In a last ditch effort to collect, Mr. Graff attempted to prove account stated. However, under the rule of the law, he failed to do that as well.

Unifund and Mr. Graff never proved that there was a past or present contract between Citibank and Nishawn Riley. It was also never proven that Nishawn Riley ever used the alleged credit card or made payments. Therefore, the district court erred as a matter of law in assuming Nishawn Riley was liable for the alleged balance. There can be no liability on an account stated if no liability in fact exists, and the mere presentation of a claim, although not objected to, cannot of itself create liability. This is evidenced in Spears v. Brennan, 745 N.E.2d 862,878-79 (Ind. App. 2001) where the copy of the original debt did not verify that there is an existing unpaid balance.

In other words, an account stated cannot create original liability where none exists; it is merely a final determination of the amount of an existing debt.” Motive Parts Co. of America, Inc. v. Robinson, 53 Ill.App.3d 935, 940, 369 N.E.2d 119 (1st Dist. 1977).

Mr. Bader and Mr. Graff state that their action was pled on account stated. Yet, they fail to realize that there can be no account stated unless there was a contract.

Will continue in the next thread.

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The existence of a contract was never proven. "To prove a breach of contract claim, a plaintiff must show 'the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff'". Nilavar v. Osborn (2000), 137 Ohio App.3d 469, 483, quoting Doner v. Snapp (1994), 98 Ohio App.3d 597, 600.

A cause of action for an account stated requires allegation and proof of three components. The first is that there was a contract between the parties, such as a credit card contract for the sales of goods or services. The second is that a statement of account was sent to the party sought to be held liable, and third is that the statement was agreed to, expressly or by implication (Dreyer, 227 Ill.App.3d at 226-27).

Page 23-24 TR the district court judge responded that it does not make a difference- that the three components of account stated were not met. I disagree. This defies the standard of law, which states that both must be present to prove liability and a balance. Since the record was silent and lacked sufficient proof, the district court judge displayed blatant disregard for the legal standard used in for granting summary judgments. The fact is, the lack of contract and account stated was contested and never answered. This created genuine issues of material facts left to be litigated.

Accordingly, collector / consumer interactions are govern by the Federal Debt Collection Practice Act (FDCPA) and it is written in plain English. This is so that the least sophisticated consumer can understand and exercise their rights. Additionally, the FDCPA seeks to assist collectors with debt validation. Debt validation ensures that collectors have targeted the correct consumer and the amount attempting to be collected. Mr. Graff failed to validate the debt with the original creditor, as is required by the FDCPA. Stare decisis on this matter is evident and consistent with the plain language of the FDCPA in Chaundry v. Gallerizzo, Guerro v. RJM Acqisitions LLC and Stonehart v. Rosenthal. Mr. Graff used what Unifund CCR drafted or had in their possession. The District Court Judge assumed that they were correct and ignored the fact that none of us had any clue where the account statements came from, if Citibank had ever sent them to me at any address and that all of the information within them was correct. It was an error for the District Court Judge to assume this especially since these genuine issues of fact were presented in court. Mr. Graff was the moving party and the burden of proof shifted to him to prove otherwise. By his statements, TR pg. 17 line 14-15. "She would have gotten those directly from credit card company." He goes on to say that "He doesn't create these documents, Judge, these-these are from my client." TR pg. 19, 6-7) On July 7, 2007, I received a packet from Madelyn, Unifund's legal assistant stating that the account statements are apart of her daily business records and to call her after I have reviewed them. Clearly, her letter on Mr. Graff's letterhead proves that they were non-compliant with FDCPA 809 in obtaining the debt validation from the original creditor. This letter by John LeFevre from the Federal Trade Commission speaks directly to this scenario. For these reasons, I ask that the alleged account statements be thrown out as evidence. They are non-compliant with the FDCPA, unauthenticated and an obvious creation by someone other than Citibank.

In addition to the blatant FDCPA non-compliance, the documents fail to meet the best evidence rule. To introduce secondary evidence of a writing, a party must first prove prior existence of the original, its loss, destruction or unavailability; authenticity of the substitute and his own diligence in attempting to procure the original. "If a party has voluntarily destroyed a written instrument, he cannot prove its contents by secondary evidence unless he repels every inference of a fraudulent design in its destruction." (Blake v. Fash (1867), 44 Ill. 302, 304; accord, Palmer v. Goldsmith (1884), 15 Ill. App. 544, 546). For an illustration of the problem, see Citibank (South Dakota), N.A. v. Martin, 11 Misc. 3d 219; 807 N.Y.S.2d 284, 2005 N.Y. Misc. LEXIS 2833 (Civ.Ct., Dec. 16, 2005), which sets forth the applicable proof requirements. These should apply with equal force in Michigan. A mere submission of a copy without a proper foundation is not admissible. Mr. Graff and Bader suggest that the originals were mailed to me, but failed to prove that statement Br. at p. 26. M.R.E. 1002 and 1003 state plainly what should be excepted regarding evidence to the court. The contradictory credit card agreement and the unauthenticated/insufficient Bill of Sale are genuine issues, which require the court to ask where the originals are and who has attested to the design, creation and accuracy of the copies. Mr. Bader was so gracious to point out the Discover Bank v. Poling, Franklin App. No. 04AP-1117, 2005-Ohio-1543 and Citibank (South Dakota) NA v. Wilson 160 S.W.3d 810, 813 (Mo Ct. App 2005) cases. Poling and Wilson's accounts were opened in the mid 90's and well before they were brought into court. The credit card companies still had in their possession all of the relevant documents pertaining to their cases. Citibank (South Dakota) NA still had the credit card application and agreement certificate bearing Wilson's signature. Discover had cancelled checks and the credit card application bearing Poling's signature, as well as monthly statements, which corresponded with the cancelled checks. Why is this expectation so far fetched in this instant case?

(See Computed generated page 11 Combs) Since no reasonable explanation as to why not one original and authenticated document were not submitted to the court, Mr. Graff, the movant lack sufficient evidence to win a summary judgment.

Will continue in the next thread.

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The same standard of law is used to refute the credit card agreement as account statements. Compare Discover Bank v. Poling, Franklin App. No. 04AP-1117, 2005-Ohio-1543, where Discover provided the trial court with the application and with the card-member agreement that was sent to the defendant when his application for credit was accepted. Id. at ¶13. The trial court at a minimum should have required that Unifund and Mr. Graff explain and lay foundation to the origin of the credit card agreement; see Discover Bank v. Poling, Franklin App. No. 04AP-1117, 2005-Ohio-1543, Discover Bank C/O DFS Servs. L.L.C. v. Lammers, 2009-Ohio-3516 and Citibank (South Dakota) NA v. Wilson 160 S.W.3d 810, 813 (Mo Ct. App 2005).

Furthermore, the credit card statement is date stamped by Unifund July 18, 2002 but the alleged bill of sale is dated October 15, 2004. How is this possible? Tr. at pp. 10-11 THE DEFENDANT: This agreement is insufficient for a number of reasons. It does not have my signature, if you compare the terms and agreement that Mr. Graff submitted to the Court; it has a date stamp from Unifund of 2002, July 18th Mr. Graff has submitted a bill of sale that’s also authenticated insufficient, that they acquired this contract or this alleged debt on October 15th 2004. So, if they got——if they purchased this account on 2004, how is it possible for them to have the terms and conditions that’s allegedly along with this account in July of 2002, that’s nearly 19 months prior to that ___. Again, this displays a lack of sufficient evidence to grant summary judgment.

Additionally, Unifund or Mr. Graff never proved that the credit card agreement was sent to or received by me; see Dreyer, 227 Ill.App.3d at 226-27 and Discover Bank v. Poling, Franklin App. No. 04AP-1117, 2005-Ohio-1543; see also Dresher, Ohio St.3d 280, 293. See, also, Wooding v. Cinfed Emps. Fed. Credit Union, 171 Ohio App.3d 665, 667-68, 2007-Ohio-728, at ¶12-15 (reversing a judgment in favor of a credit union on unfair lending practices claims, where the credit union failed to submit evidence that it had sent the credit card agreement to the debtor). The discrepancies display a lack of sufficient evidence to determine an amount owed. The trial court's reliance on the credit card agreement to establish an interest rate or any other term was an error of discretion and as a matter of law. Moreover, the calculation of interest was improper because the alleged credit card agreement submitted clearly states that the interest would not exceed 23.99%.

The record is silent in regards to Pam Harbaugh's affidavit. It meets the two-fold test - (1) whether the person who allegedly made the statement is unavailable to be cross-examined so we cannot test the truth of what they allegedly said ... and (2) whether the out-of-court statement allegedly made is being offered to prove the truth of what was allegedly said. Therefore, I will not spend too much time discussing it except to say that the district court should not have relied upon it because her affidavit is nothing more than hearsay.

The bill of sale is unauthenticated; the integrity of the document is indeed in question. It fails to identify the alleged account number, me and the amount of the debt. MCL 440.9406 speaks directly to the value of this bill of sale. Tr. at p.19 THE DEFENDANT: Your Honor, Mr. Graff has not proven a chain of assignment under Uniform Commercial Code 440, section 940, it clearly states—-I’m sorry, section 9406, it clearly states that——that-—that debt——ah——the chain of assignment should be an authenticated document from the assignee to the assignor, what Mr. Graft has submitted to the Court is not authenticated so that we can say with 100 percent certainty that this document is unadultered (sic) it’s a--a--document that anyone could have presented made up on their computer and as far as I’m concerned it has been, because I never entered a contract with Citibank. The bill of sale fails to prove Unifund's entitlement to collect. With respect to assignments, see Candice Co. v. Ricketts, 281 Ill.App.3d 359, 362, 666 N.E.2d 722 (1st Dist. 1996), and V.W. Credit, Inc. v. Alexandrescu, Index No. 39862/05, 2006 NY Slip Op 51724U; 2006 N.Y. Misc. LEXIS 2423 (N.Y.Civ.Ct., August 18, 2006). In both cases, the assignments failed to identify the defendant and was insufficient in proving entitlement to collect; also see National Check Bureau, Inc. v. Cody, 2005 WL, 174762 Ohio Ct. App. 2005, Dissenting. The standard of review was pointed out to the district court judge and she ignored them. Allowing a document of this nature to be sufficient evidence for any claim not only prejudices me but the general public because this document can be used over and over again for any person who has ever had a Citibank account. I ask this court to dismiss the bill of sale because it fails to comply with MCL and meet the standard of law.

The record is silent and insufficient under the rule of the law on all of the vital points, because Unifund and Mr. Graff failed to present evidence that refuted Nishawn Riley's challenge of all documents. Accordingly, Unifund and Mr. Graff did not present evidence sufficient to sustain its burden of affirmatively showing the absence of genuine issues of material facts. Unifund failed to satisfy its initial burden as a movant for summary judgment. Therefore, I pray this court reverse the summary judgment and allowing my counter-complaint to be heard.

I can't wait to go back to the District Court, I will post the opinion as soon as it comes in the mail!

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  • 3 months later...

So what it looks like is:

1) The OP did not get a hearing on their counterclaim

2) The OP did get a hearing on the original complaint

My guess is that the plaintiff could not prove that they bought that account and so they dismissed the case. This means that although the OP did not get the chance to drain their coffers (other than the legal fees), the JDB also did not get their judgment.

At this point, I would say that the debt is dead because I cannot see another JDB trying to sue on this.

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