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Motion to Dismiss *rough draft* vs 3rd jdb after Chase


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Hi everyone,

Well, after a ton of research i finally put our motion on paper. I wanted to ask if you guys wouldnt mind going over it and giving me your opinion. After reading tons of cases that were a loss, which you should do when preparing against a jdb, i found out that i really had to pick apart every piece of paper they sent me on discovery. Please let me know what you all think :)

DEFENDANT’S MEMORANDIUM IN SUPPORT OF MOTION TO DISMISS FOR PLAINTIFF’S FAILURE TO STATE A CLAIM

Defendants file this Motion to Dismiss Plaintiff’s suit for failure to state a claim upon which relief can be granted, as authorized by Federal Rule of Civil Procedure 12(B)(6).

INTRODUCTION

Plaintiff, JDB Inc., commenced this action on XXXXXX XX, 2010 seeking to recover a debt purchased from an assignee of Chase Bank N.A. In the complaint, Plaintiff alleged that Defendants became indebted to Chase Bank N.A. for certain goods and services based upon a written instrument. Plaintiff claims to have purchased the alleged account and all rights to collect on it.

Defendants move for dismissal in the above referred complaint on the basis that the Plaintiff fails to state a claim upon which relief can be granted and that no genuine issue of fact exists. E.G., Morris v. Mcnicole 83, Wn.2d, 491,519,p.2d 7 (1974).

ARGUMENT

Defendant’s motion begins with the alleged written instrument Plaintiff claims to base its complaint on, then addresses each document Plaintiff produced through Defendant’s discovery request.

Cardmember Agreement

The agreement does not reference any particular account type, class of agreement, Defendant’s alleged account number, or any information that proves the agreement corresponds with the alleged account. In essence, the agreement submitted by Plaintiff does not prove actual terms of the agreement with the particular debtor. Portfolio Acquisitions LLC v Feltman, 391 Ill., App. 3d 642, 6651, 652 (2009).

The Plaintiff has also failed to prove that any credit card agreement was provided to the Defendants which it claims as the basis for the complaint. MBNA America Bank, N.A. v. Nelson (N.Y. Civ. Ct. May 24, 2008).

“Therefore, absent a definite and certain offer outlining the terms and conditions of credit card use with the actual user’s actual signature, the Petitioner has the burden of establishing the binding nature of the underlying contract including any allegedly applicable arbitration clauses, which entails proof, at the most basic level, that the debtor was provided with notice of the terms and conditions to which Petitioner now seeks to hold Respondent.”

According to Chase Bank N.A.’s public website, www.chase.com, Chase offers thirteen (13) types of credit cards and twenty-three (23) classes of credit card agreements. See Defense Exhibit A, B, and C. Though Defendants have not attached a document authenticating exhibits are business type records, rather presenting information that Chase offers to the general public. Defendants present this publically accessed information to show there are several choices of agreements offered, each with different rates of interest, according to the type of card account applied for.

Velocity Investments, LLC v Alston, 2-08-746 (2nd Dist., Jan 15, 2010)

“Therefore, Plaintiff’s failure to attach the original credit card contract was not excused.”

Printout of Activity/Call Log

There is no foundation for the entry of these documents as business records pursuant to RCW 5.45.020, as authenticated as pursuant to ER 901, and an exception to the hearsay rule ER803(6). The content of an individual log printout does not provide relevant and meaningful evidence in the event process. Vinhnee v. American Express Travel Related Svs. Co. Inc., 336 B.R. 437 (9th Cir.Ct. Dec. 16, 2005)

Printouts of Notification Letters

There is no proof of service that these letters were mailed by Plaintiff, or received by Defendants. Furthermore, there is no foundation for the entry of these documents as business records, RCW 5.45.020, as authenticated, ER 901, and an exception to the hearsay rule ER 803 (6). Rushmore Recoveries X: LLC v. Skolnick 15 Misc. 3d, 1139 A; 841, N.Y.S. 2d 823 (Nassau Co. Dist.Ct. 2007)

“nor does the Plaintiff even attempt to describe a regular office practice and procedure for the mailing of the documents designed to insure that they are always properly addressed and mailed.”

Billing Statements

The collection of statements are incomplete, as they do not show the initial purchase, or beginning balance of zero, pertaining and leading up to the alleged total $1842.69, which Plaintiff is claiming. In re Rushmore 841 N.Y.S. 2d 823 (Nassau Co. Dist.Ct. 2007)

“In the matter of sub judice, the account statements upon which Plaintiff relies do not show any usage of the credit card in question by the Defendants. Statements submitted show only an alleged open balance, with the accrual in fees and finance charges therein.”

The statements do not have an attached document authenticating their creation, collection, source, or management. Under FRE 901 (a), evidence must be properly authenticated or identified prior to being admitted. Mere submission of these statements without any authentication is inadequate. Higen Assoc. v Serge Elevator Co. Inc., 593 N.Y.S. 2d 319 (2nd Dept. 1993).

“Simply annexing documents to the moving papers without proper evidentiary foundation is inadequate.”

The bottom of each page states “This Statement is a Facsimile – Not an Original.” A facsimile record is a computer generated, non-image document which needs a foundation laid by a person familiar with the computer system used for its output in order to authenticate the accuracy of its input. In re Vihnee 336, B.R. 437 (9th Cir. BAP 2005)

Account history cannot be a written instrument which the Plaintiff’s claim is based, in part, or whole. Billing statements do not contain defining terms of default, nor state whether terms can be altered. Furthermore, the statements do not affirm a promise to pay by the consumer. Ramirez v. Palisades Collection LLC, no.07-c-3840, Slip op. at 4 (N.D. Ill. June 23, 2008)

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Bills of Sale

The bills of sale from Chase Bank USA N.A. “(Seller)” to JDB Assets LTD through its general partner JDB Int. inc “(Purchaser)” and “(Seller)”, to JDB Inc “(Purchaser)”, fail to identify the accounts that were assigned or sold in this transaction. These bills of sale fail to show any information indicating specific relevance to Defendant’s alleged account by means of Defendant’s name, address, SSN, and alleged account number. There is no proof that Defendant’s alleged account was one of the accounts sold or assigned to the Plaintiff, Dynamic Strategies Inc.

Plaintiff has failed to authenticate the chain of title from creditor to the supposed assignors pursuant to ER 901, admit to the exception to the hearsay rule ER 803(6), and to lay the foundation for the entry as business records pursuant to RCW 5.45.020. Unifund CCR Patners v. Cavender no.2007-cc-3040-14 FL. L. 975b (Orange Cty. July 20, 2007).

“the court held that a debt buyer assignment that does not refer to specific accounts does not establish ownership by the Plaintiff, nor is testimony based on a computer screen sufficient.”

Citibank (South Dakota) N.A. v Martin 11 Misc. 3d 219; 807 N.Y.S. 2d 284 (Civ.Ct. 2005)

“an assignee must tender proof of assignment of a particular account or, if there were an oral agreement, evidence of consideration paid and delivery of the assignment.”

MRC Receivables Corp. v Zian 151, Wash. App. 1023, 218 P.3d 621 (2009)

“Even if MRC had established beyond question that Zion had a delinquent account with Providian for the claimed amount, without proving a written assignment, MRC failed to meet its burden of establishing that it was entitled to judgment as a matter of law.”

Affidavit

Pursuant to FRCP 56(e), a supporting affidavit must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant is competent to testify on the matters stated. The Plaintiff’s submitted affidavit fails to comply with all the aspects of 56(e).

1. Location of the affidavit “State of Maryland” is in direct conflict with the location where the alleged account is located according to the agreement Plaintiff submitted. States on page 4, heading “Governing Law”, “The Law of Delaware, where we and your account are located, will apply no matter where you live or use the account.” Under RCW 5.45.020, the record must be made at or near the time of the act, condition, or event.

2. Affiant states “I am authorized on behalf of Chase Bank USA N.A. to make this affidavit.” Affiant’s title under her signature is “Team Leader.” Defendants contend that simply stating “I am authorized on behalf”, does not explain how affiant was authorized nor in what capacity. A job title of “Team Leader” is not specific or indicative of any authority to make statements on behalf of anyone or any department. Cole Taylor Bank v Corrigan, 230 Ill. App. 3d 122, 129, 595, N.E. 2d 177, 181-82 (2nd Dist. 1992).

“Where bank officer’s affidavit essentially consisted of a summary of unnamed records at the bank, unaccompanied by records themselves and unsupported by facts establishing basis of officer’s knowledge, foundation was lacking for admission of officer’s opinion regarding amount due on loan.”

Even if affiant’s title were of a specific department, there is no information within the affidavit proving authority to speak on behalf of Chase, nor proof that affiant was present ot the time of sale or transfer. ER 602 requires that she testify from personal knowledge which consists of who, what, where, why, and how.

3. Affidavit does not state how affiant knows that the purported Chase account #111111111111111 is that of Defendants, or how she knows Defendants owe $XXXX.XX The affiant lacks the relevant information and authority to substantiate her sworn statement required under FRCP 56(e), and in doing so, falls under FRE 602, lack of personal knowledge.

4. Affiant testifies to the sale of Defendants alleged account “on or about 09/11/09”. First, affiant has not stated, or proven how she knows this information, how in her unstated capacity, she can testify to being present at the sale, or even how she was made aware of the sale. Second, there is no authenticated Bill of Sale stating the specifics of this sale or as it applies to the Defendant. Affiant’s testimony of sale falls under FRE 602, lack of personal knowledge, and FRE 901(a), evidence must be properly authenticated or identified prior to being admitted.

5. Affiant’s statement of knowledge, information, and belief regarding “unaccredited payments, just counterclaim, or offsets against the account” when it was sold, does not mention any documents, or source thereof regarding this testimony. Affiant fails to lay the foundation for personal knowledge under ER 602 that would require her to introduce the originals of the documents under ER 1002, authenticate them under ER 901, and lay the introduction under the exception to the hearsay rule ER 803 (6).

6. Affiant states that purchase of Defendants alleged debt is “authorized to collect, settle, adjust, compromise and satisfy the same.” Defendants contend the affiant has stated an opinion and conclusion of law in regards to purchaser’s rights. Parkin v Colocousis 53 Wn. App. 649, 653, 769, P.2d 326 (1989).

“neither the trial court nor the appellate court can consider conclusions of law contained in an affidavit.”

Washington State Physicians Ins. Assn’s v Fisions Corp, 122 Wn. 2d 299, 344, 858 P.2d 1054 (1993).

“Legal opinions on the ultimate legal issue before the court are not properly considered under the guise of expert testimony, and it was error for the court to consider legal opinions expressed in affidavits.”

Defendants conclude that Theresa Stinson’s affidavit fails to establish her authority, her capacity within any authority, to testify on the matters stated within the affidavit. American Linen Supply Co. v Nursing Home Bldg. 15 Wn. App. 757, 551, P.2d 1038 (1976)

“The affidavit fails to meet RCW 4.08.080 as a verbal written assignment to collect a debt by a person authorized to make the assignment.”

Palisades Collection LLC A/P/O AT&T Wireless v Gonzalez 10 Misc. 3d 1055 A; 809, N.Y.S. 2d 482 (N.Y. City Civ.Ct. 2005)

“Affiant claims purchaser is entitled to sue but fails to attach an authoritive copy of alleged assignment with the details specific to Defendant is of no probative value.”

Luke v Unifund CCR 2-06-444-CV, 2007 Tex. App. LEXIS 7096 (2d Dist. Ft.Worth, Aug, 31, 1007)

“Finally, affiant failed to establish a factual basis for her statements or attach a certified or sworn copy of the agreement between the original creditor and the purchaser”

CONCLUSION

Defendants conclude that JDB Inc. failed to establish ownership of the alleged account through a clear and accurate chain of title. Furthermore, the Plaintiff’s supporting affidavit should be considered hearsay from an ambiguous source, and the written instrument which Plaintiff basis their complaint, is neither specific to the Defendants identity, nor the alleged account they claim ownership of. Because Plaintiff did not state a claim on which relief can be granted, Defendants pray this Honorable Court should dismiss the suit.

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Are you being sued in Federal or State Court? If you are being sued in Federal Court, then you should strictly cite federal cases and federal law. Likewise, if you are being sued in your state court, then you should cite state cases and case law. Some judges frown upon pro se litigants but even more when pro seers cite law out of their jurisdiction. I am certain that Washington state has a motion to dismiss for failure to state a claim. HOWEVER, usually these types of motions don't fly the first time because pleadings are to be read liberally with an eye for justice. Just as the Defendant can amend his answer, the Plaintiff can amend their pleadings. Therefore, if the defects you've pointed out are easily remedied, your motion might get thrown out.

If you still wish to submit your motion, beef up the case law and get some discovery going like requests for admissions and interrogatories. Best Wishes.

See this site.

Edited by rikkivs
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The suit was filed in state county court. I realize that the jdb can file to dismiss my motion , even improve on the mistakes they made with the documents they sent me per my discovery request, but the one thing they cant improve on is the chain of title.

The two bills of sale they sent me only stated a group of debts they purchased and the total amount it cost them, which is how they do business.

I also realize that this motion could be denied and we go to court. In that case they would still have to prove, three jdb's later, that our specific account was within the bulk ones they purchased. If they cant produce this, then the latest jdb cant prove they have the right to sue on this account.

I had a difficult time finding cases in WA for most of this motion, if anyone has any i can sub in, would be appreciated.

Thank you

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I didnt notice the link the first time i read your post. I did this time, and yes, ive been over that site several times. Ive also done the Sup. case search site for Wa, and can tell you there are very little cases that people have won against jdb's. the ones i did find, i did state in my motion.

I was hoping to get more than one person to review my motion before i submit, kind of a merging of the minds so to speak :)

The only reason i can think of that i cant find many cases where the consumer won against the jdb in WA is this; WA has cracked down on scumbag CA's, most cases are won on default, so not published, or just simply, not enough ppl fight and the ones that do either lose for lack of properly fighting against discovery info, or the few that win are not published. Believe me, i have been looking for several hours a day, for over a week for the WA cases.

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Guest chuckygee

I'll second Rikkivs. You need to reference your state laws, not federal. You also need to take the time to find cases that fit your claims. Appeals are more likely to be written decisions than local cases. Referencing cases from other jurisdictions is just bad practice.

Keep searching for cases in your own jurisdiction, they are there.

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Lulu chuckeegee seconded what I said from experience. I've reviewed many cases and every time a pro se litigant steps to a judge with case law outside of his jurisdiction, the judge is liable to throw the book at the pro seer and not in a good way.

For example, in the first part of your motion you are citing failure to state a claim for which relief can be granted as the reason why the case should be dismissed. Then you reference a rule from the FEDERAL Rules of Civil Procedure. You are not going in STATE court to bring a 12b federal rule motion, you are in state court using Washington Rules of Court Rule 12 b 6.

On the site to which you were referred, there is a lot of information about filing motions and how to format them properly etc. You seem a bit defensive. We are all here to help each other. Wouldn't you rather someone criticize your work here so you can correct it, rather than get scolded in the court room?

You might not be able to find cases where the consumer won, but that may not be as important as you think. There are many consumer debt cases filed across the country in many jurisdictions. Most of the time the Defendant loses. However, you can look at the cases where the Defendant answered and lost and use that as a lesson. Look at how they lost and the strategies the Plaintiff attorney's employed and won. Sometimes you can learn these techniques and apply them yourself.

Chapel Hill is another poster on this board from time to time and he advocates an aggressive approach because they show no mercy on you. This means that he gets them for monetary sanctions when they don't follow the letter of the law. Since you've obviously been reading, why not open your mind to constructive criticism and better your brief?

Generally these types of motions to dismiss are not granted because as I said before the Plaintiff can cure the defect in their pleading just as you can amend your answer at least once. However, some mistakes on the pleading are fatal like stating you are being sued for a visa and then attach an affidavit from someone at mastercard. And even then excusable neglect can be pled on the plaintiff's part.

Do yourself a favor and look up cases in other jurisdictions as well; they can provide insight and you can correlate their reasoning and citation of civil rules with rules in your state.

What you've said about the chain of title for the debt makes sense. However those issues will be fleshed out via the discovery you send out, including requests for admissions I hope. However, a motion to dismiss is insufficient. You need to do a motion for summary judgment or adjudication on certain issues but in so doing, you'll need to prepare a brief or two and you'll need to write an affidavit with YOUR version of the facts, notarized etc.

In other words, you need more information before you jump the gun. But given the research you've conducted I'm certain with a bit more effort you can prevail.

Edited by rikkivs
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First, i appologize if i came off with an attitude? Didnt mean one, and am greatful for the more indepth answers :)

So, let me see if i understand this right, i need to take out all the Federal Civil rules i put in, and substitute them with Wa's civil rules (rcw's).

On the case citations, im not sure i understand what you are saying. Do i need to only have Wa cases cited? or is the mix of them i have now ok?

Next, Instead of this being a Motion to Dismiss, I need to change it to a Motion of Summary Judgement? I'm unsure what you mean by filing more than one motion. Do i have to file a motion to strike for each piece of evidence they offered up in discovery?

Well, i think i goofed on the discovery? I pretty much asked for any piece of information they had proving/linking us to this debt. What they sent is the affidavit signed by someone with the title of "Team Leader", imcomplete copies of billing statements, a call/activity log, two copies of dunning letters, and a generic cardmember agreement. Also, two bills of sale, both are from one jdb to another, for a "lot" of accounts, for a huge dollar amount. No information pertaining to us (no name, acct#, ssn, ect.) They are just copies, not notorized or certified in anyway, of one jdb's portfolio of debts being sold to another jdb.

Now, we also have to file with the court a notorized affidavit stating we deny we owe the debt?

Ive tried to interpret the local court rules, it's difficult for a lay person, but it doesnt really tell me, in regards to filing our own affidavit.

Many thanks :)

edit; in the complaint they say we owe the debt based on a written instument for goods and services. That's pretty much it, then they sent me all those documents for my disc req. Not sure if this helps with your answer.

Edited by Lulu2u
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You are on the right track because if they say the debt is based upon a written instrument, they need to provide the referenced instrument.

A motion for summary judgment tells the judge to rule on the merits of the case and there are no issues of material fact. Therefore, it is only proper when you have a little bit of discovery to back up your motion. Admissions that say, Admit that you don't have the alleged written instrument in your custody or control. They have to either say yes or no and if they say no, their goose is cooked. See what I mean?

So if I'm understanding you correctly, they have attached some thin evidence but it's all from the JDB? You have a lot of room but you must act quickly. For example, the affidavit from team leader is seen as evidence before the court. Even if everything it says is a lie, it is an affidavit. If you don't submit an affidavit of your own to counteract theirs, they will win simply based upon that!

You are going to have to look up motions to strike, exception to the hearsay rule, admissible business records etc.

No biggie, I responded to you because I could see that you've read a lot but need some constructive criticism. I was tense and stressed out when I began posting here a year ago and all the suggestions were helpful:)

YES change your case law to WA law UNLESS you cannot find a case in WA to back up your claims then you use case law from another jurisdiction. But it's always risky to do that so beware...Judges have egos!

Did you include affirmative defenses in your answer other than just denying? If not, you might want to amend your answer to include some of them. If so, you are on the right track.

YES you will need to get the discovery back to justify a motion for summary judgment. Did you send them request for admissions?

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I did recieve discovery back from them, it was all those documents i mentioned in my last posting.

Let me see if i have this right, i need to file a MSJ which asks the judge to dismiss the case based on the facts only....are the "facts" the documents they sent me AND what they stated in their complaint (wr.instrument/goods/services)?

Ok, i will go on the hunt for WA cases, do you know a good source that will allow me to search these particular case types? The toughest thing i came accross in searching, was key words. Like when i used the WA superior court case search, typing in Credit Card came up with tons of divorce cases..ect.

I can find the RCW's for hearsay, admissions of business records, that's easy, already found, but what exactly do we put in our affidavit? Do you know of a sample we could look at? Does it go along the lines of denying their complaint or that the alleged acct is ours?

With rewriting the motion, now a MSJ, is it going to be pretty much what i wrote already, except im going to sub more WA cases in, quote RCW's, and change the title to MSJ?

If i get your right, we should file our affidavit before i submit the MSJ, or does it really matter as they seem, to me, to go hand in hand.

ps no court date has been set, this case is still floating around out there as of today's date. I'm just itching to file this MSJ and get this moving.

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