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Midland Funding vs. me in Arizona 2010

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Me and my Wife

Our address

IN THE XXXXX JUSTICE COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

MIDLAND FUNDING LLC,) CASE NO: XXXXX

a foreign entity, )

PLAINTIFF ) MOTION TO RECONSIDER

vs. ) DENIAL OF THE MOTION

Me and my Wife, ) TO DISMISS COMPLAINT

husband and wife )

DEFENDANTS )

---------------------------)

COME NOW the Defendants, appearing PRO SE, and under ARCP Rule 7.1(e) respectfully request this Honorable Court

to reconsider Denial of their previously filed “Motion to Dismiss Complaint”:

1. The Plaintiff submitted its Opposition to the said Motion, which Defendants received the next day.

2. Defendants submitted their Response to Plaintiff’s Objections.

3. The Defendants Response was sent to the Plaintiff’s Attorney the same day.

4. The Court Order that denied the said Motion to Dismiss and signed by the Judge does not show that Defendants’ Response was ever considered, because the Box “The Defendant filed a Reply to the Response” is not marked, while the box “The Plaintiff filed a Response to the Motion” is marked.

5. Defendants respectfully request this Court to verify that their response of was actually filed with their case

and was not misplaced or discarded in error.

6. The Defendants’ Response provided an important legal argumentation in support of their opinion why the Plaintiff Midland Funding LLC (“Midland”) is a Debt Collector/Collection Agency under A.R.S. § 32-1001(2) and the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692a(6):

a) Midland as a part of Encore Capital Group (“Encore”), solicits claims for collection of defaulted and charged-off

consumer accounts (receivable portfolios) through general auctions or direct negotiations, knowingly and voluntarily exposing itself to a risk and a danger of monetary losses, and under “volenti non fit injuria” doctrine is precluded from a recovery for an injury resulting therefrom;

B)Loesch v. Bartholomew, 5 Cal. App. 4th Supp. 8 - Cal: Court of Appeals 1992

considered such “soliciting claims for collection”

as one of integral parts of debt collection activity;

c) Any person or business entity engaged "in soliciting claims for collection" is considered as Collection Agency under A.R.S. § 32-1001(2)(a);

d) In December 2009, Midland was enforced to get licensed as Collection Agency with the State of Maryland where “Collection Agency Licensing Act” (Business Regulation Article § 7-101 et seq.) defines “Collection Agency” in very similar manner with A.R.S § 32-101 et seq. and FDCPA § 1692a(6);

7. Defendants also submitted further legal argumentation in their Disclosure Statement filed with this Court:

a) Midland is not a Creditor, as it’s defined in FDCPA § 1692a(4), because Midland does not “offer or extend credit creating a debt”;

B) Midland is a Debt Collector/Collection Agency excluded from “Creditor” definition FDCPA § 1692a(4), because it actually does “receive an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another”;

c) Meaning of the word “another” was analyzed in

Kimber v. Federal Financial Corp., 668 F. Supp. 1480 - Dist. Court, MD Alabama 1987

which concluded that “even though ..” a Debt Buyer “..collects debts for itself, it is still a debt collector within the meaning of §§ 1692a(4) and 1692a(6) of the {FDCPA] Act, because the corporation regularly collects debts and debt collection is its principal purpose, and because the debts the corporation collects were already in default when they were assigned to the corporation and thus the corporation falls within the assignee exception to the definition of creditor.”

9. Defendants attach here a letter from Arizona Department of Financial Institutions (“AZDFI”) that certifies that Midland is not licensed with AZDFI in any capacity.

10. As such said, Midland’s debt collection activity including bringing litigations in the State Courts against any Arizona Resident is illegal under A.R.S. § 32-1055(A), and therefore, Midland has no standing to bring this Complaint against Defendants.

WHEREFORE, Defendants pray this Court to revisit the Defendants’ Reply to the Plaintiff’s Response and to reconsider its previous denial of the said Motion to Dismiss the Plaintiff’s Complaint denying Plaintiff’s Complaint and dismissing this Case with Prejudice.

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The Defendants, appearing PRO SE, pursuant to Rule 26.1(B)(1) ARCP,

disclose the following and certify that this disclosure includes all information

in their possession:

I. FACTUAL BASIS FOR EACH DEFENCE:

1. The Plaintiff Midland Funding LLC (“Midland”) brought this lawsuit against Defendants, as “Breach of Contract”.

The Contract between Plaintiff

and Defendants is not presented.

2. In order to establish a cause of action involving breach of contract,

it’s necessary to show “the making and existence of a valid and enforceable contract between the parties;

the right of the plaintiff and the obligation of

the defendant thereunder; a violation of the contract by the defendant;

and the amount of damages resulting to the plaintiff therefrom.”

Norm Adver., Inc. v. Monroe St. Lumber Co., 25 Wn.2d 391, 398, 171 P.2d 177 (1946).

3. The Plaintiff has no standing to bring this suit against any of

Defendants, since at no time did the Defendants cause any harm or damage to the Plaintiff:

a) the Defendants have never had any sort of relationship, business

or otherwise, with the Plaintiff;

B) at no time did the Defendants become indebted to the Plaintiff;

c) as such, the Defendants have no obligation to the Plaintiff, monetary or otherwise.

4. Plaintiff did not produce any genuine and valid documentation in support its claims.

All documentation provided by Midland in Exhibits A, B, C and D is defective and faulty:

a) Plaintiff’s Exhibit A: Self-serving and conclusory “Affidavit of Susan Rasmussen” (“Affidavit”) is not based on the Affiant (who is employed with

Midland Credit Management, Inc. (“MCM”) since November 2009 and who never worked in banking/credit industry before) personal knowledge,

but only on her review of existing business records; these business records were prepared by someone else 2-4 years earlier in the regular course of

completely different kind of business; the Affidavit was created especially for use in this litigation and so, it’s not trustworthy under Arizona Rules of

Evidence (“A.R.E.”) Rule 408(a)(2);

B) Plaintiff’s Exhibit B: Two incomplete and conflicting “Bills of Sale” (“Bill(s)”) that do not identify the alleged account as having been sold or

assigned by OC to Midland;

c) Plaintiff’s Exhibit C: the alleged Account’s MCM Pre-Legal Notice and OC limited Billing Monthly Statements

bearing one of Defendants name and address are not sufficient to establish any contractual obligations from Defendants to Midland.

d) Plaintiff’s Exhibit D: “Visa/MasterCard Account Agreement” is unsigned generic boiler plate standard agreement between OC and abstract

unnamed customer and therefore, it’s insufficient to establish Plaintiff’s claims.

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5. Plaintiff did not send to Defendants any of documentation requested by Defendants in their Discovery Request.

6. Plaintiff has no legal standing to sue any resident of this State, because it conducts business as Collection Agency without licensing with Arizona

Department of Financial Institutions (“AZDFI”).

7. The Plaintiff’s Statement about a date alleged defaulting Defendants to Plaintiff of Plaintiff Original and Amended Disclosure Statements) contradicts with the Affidavit and the entire concept of Encore-

Midland companies’ business based on exclusive acquisition of already defaulted and charged-off accounts.

II. LEGAL THEORY FOR EACH DEFENCE:

Bills of Sale

1. Two documents named “Bill of Sale” (“Bill”) are presented in Plaintiff’s Exhibit B as a proof of Chase-Midland assignment of the alleged account.

2. The first Bill does not specify any account and name at all. The “File Creation Date” is December 15, 2008. The “Purchase Agreement Date” is

blank.

3. The second Bill specifies the account number different from any account number referred in Affidavit. It still does not specify an Account Holder’s

name. The “File Creation Date” is November 18, 2008. The “Purchase Agreement Date” is November 18, 2008.

4. Both Bills refer to some “Exhibit 1” that is not attached to any of Bills.

5. Both documents are insufficient to prove that there is any valid assignment between Midland as Assignee and OC as Assignor regarding the

alleged account. Both Bills do not comply with A. R. S. § 44-101 “Statute of frauds”, 44-1706 “Contracts; requirements; contents” and 47-2201

“Formal Requirements, Statute of Frauds”. They have nothing to do with Defendants.

6. Such kind of Bills could be referencing anyone’s account, and in no way proves that it is referencing the Defendants or their alleged account. In

Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L. Weekly Supp. 975b (Orange Cty. July 20, 2007), the Florida court (ruling for Cavender ) held that a debt buyer’s "assignment" that does not refer to specific accounts does not establish ownership by the plaintiff:

“The Court has reviewed the documents presented by the

Plaintiff, Bill of Sale and the Assignment, and finds that they

fail to sufficiently identify the accounts that were assigned or

sold to the Plaintiff. Neither the Bill of Sale nor the Assignment

indicate the account numbers or names of account holders.

They do not provide any information that would allow the

Court to determine if the alleged account of Defendant was one

of the accounts sold or assigned to the Plaintiff.

Without any indicia of ownership that would sufficiently identify the true

owner of the account at the time that Plaintiff filed this action,

the Plaintiff is unable to prove that it had standing to bring the

action.

An assignment is the basis of the Plaintiff’s standing to

invoke the processes of the Court in the first place and is

therefore an essential element of proof. Progressive Express Ins.

Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285

(Fla. 2nd DCA 2005); Oglesby v. State Farm Mutual Automobile”

“Only the insured or medical provider ‘owns’ the cause of action against the insurer at any one time.” Id. at 470."

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Visa/MasterCard Account Agreement

7. Plaintiff’s Exhibit D is labeled "Visa/MasterCard Account Agreement " (“Agreement”). This generic boiler-plate Agreement lacks any of

Defendants’ signature. It does not show any name, account number or other identifying statements which would connect this Agreement with the

Defendants.

8. This Agreement shows only 2007 as the year when its terms and conditions were adopted by OC, while the date of the alleged contract is 2005.

9. This Agreement does not look like it’s retained on MCM facility in St. Cloud, Minnesota. Rather it is was sent by fax in February 2009 to

Maryland’s fax number 301-XXX-XXXX from unknown external source.

10. Such Agreement without any signature does not establish any proof of a debt. It does not show the actual terms of the agreement with the

particular debtor.

11. Such Agreement does not comply with A. R. S. § 44-101 “Statute of frauds” and A.R.S. § 44-1706 “Contracts; requirements; contents” . This

Agreement does not show that it was ever offered to Defendants. It cannot be considered as binding and enforceable contract.

12. In Engelman Irr. Dist. v. Shields Bros., Inc., 960 SW 2d 343 - Tex: Court of Appeals, 13th Dist. 1997 the Court held:

A binding contract must have an offer and an acceptance, and the offer must be accepted in strict compliance with its terms.

The parties must have a meeting of the minds, and each must communicate its consent to the terms of the agreement.

American Nat'l Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164 (1938); Smith v. Renz, 840 S.W.2d 702, 704 (Tex. App.—Corpus Christi

1992, writ denied). The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer.

Gulf Coast Farmers Co-op. v. Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex.Civ.App.— Corpus Christi 1978, no writ). To form a binding contract, it must appear that the party to whom the offer is made accepts such offer and communicates such acceptance to the person

making the offer. Warnock, 114 S.W.2d at 1164.

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WAMU and MCM Monthly Statements

13.The OC Monthly Statements (with statements dates between June 2007 and November 2008) and MCM’s Pre-Legal Notice, presented

in the Plaintiff’ Exhibit C do not constitute any written instrument upon which Midland’s claim could be based.

14.MCM’s claim on April 2010 Pre-Legal Notice that Midland is the current owner of the alleged debt are self-declaratory, baseless and

groundless in the absence of the valid assignment between Midland and Chase.

15. In Velocity Investments LLC v. Alston, 922 NE 2d 538 - Ill: Appellate Court, 2nd Dist. 2010 the Court held that Plaintiff failed

“… to produce the original credit card contract, showing that defendant agreed to its terms and conditions... Statement of Account .. is not the written

credit card contract between defendant and Household Bank….the account history could not be considered the written instrument upon which

plaintiff's claim is based…it is also questionable whether billing statements reflect an affirmative promise to pay by the customer”.

Midland is a Debt Collector and not a Creditor

16. Defendants never signed any kind of Contract to loan money and/or grant/extend credit with Midland.

17. Defendants state that Midland is not a Creditor, as it’s defined in the Fair Debt Collections Practices Act (“FDCPA” or “Act”),

15 U.S.C. § 1692a(4), because Midland does not “offer or extend credit creating a debt”.

18. Midland directly claims that it’s now the real party in interest, and so it’s still the Creditor “to whom debt is owed” based on the same

FDCPA §1692a(4).

19. Midland implies that it’s not excluded from “Creditor” definition FDCPA § 1692a(4), because it does not “receive an assignment or transfer of a

debt in default solely for the purpose of facilitating collection of such debt for another.”

20. Under FDCPA § 1692a(6), “The term “debt collector” means any person … in any business the principal purpose of which is .. the collection of

any debts, .. owed or due another”.

21. Midland directly states in its Complaint that it collects a debt not for another, but for itself, and so it implies that it cannot be a Debt Collector.

22. The meaning of the word “another” was analyzed in Kimber v. Federal Financial Corp., 668 F. Supp. 1480 - Dist. Court, MD Alabama 1987:

With the phrase "for another" at the end of the exception,

Congress merely intended that the debts should have originally belonged to another and that the creditor was therefore in effect a third-party or

independent creditor.

………………………………………………………………………….

With §§ 1692a(4) and 1692a(6)(A), Congress clearly sought to exclude creditors

— that is, those who extend credit and collect their own debts—

from the Act's coverage;

such persons are, in the words of the Senate Report,

"restrained by the desire to protect their good will."

But, when these so-called creditors are in effect merely in the business

of collecting stale debts rather than extending credit,

they are no longer true creditors but debt collectors who,

in the words of the Senate Report,

"are likely to have no future contact with the consumer and

often are unconcerned with the consumer's opinion of them";

they are simply independent collectors of past due debts and

thus clearly fall within the group Congress intended the Act to cover.

…………………………………………………………………

For the above reasons, the court must therefore conclude that,

even though FFC collects debts for itself, it is still a debt collector

within the meaning of §§ 1692a(4) and 1692a(6) of the Act,

because the corporation regularly collects debts and debt collection is its principal purpose,

and because the debts the corporation collects were already in default

when they were assigned to the corporation and thus the corporation falls

within the assignee exception to the definition of creditor.

23. As such said, Midland is a Debt Collector, as it is defined in A.R.S. § 32-1001(2) and by “FDCPA” § 1692a(6), and therefore its unlicensed

collection activity is illegal in this State under A.R.S. §§ 32-1055(A) and 32-1056(A).

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Affidavit of Indebtedness

24. The Affidavit is presented in the Plaintiff’s Exhibit A.

25. The Defendants responded with the “Motion to Strike Affidavit of Susan Rasmussen” on September 2010 that was denied by this Court.

Defendants present new arguments in support of their Motion to Strike.

26. The Affiant who is employed with MCM created this self-serving Affidavit in anticipation of future litigation. This Affidavit is not admissible

under A.R.E. Rule 803(6) because the Affiant lacks trustworthiness according to A.R.E. Rule 408(a)(2).

27. In People v. McDaniel, 670 NW 2d 659 - Mich: Supreme Court 2003 the Court held:

“The hearsay exception in M[ichigan] RE 803(6) is based on the inherent trustworthiness of business records.  

That trustworthiness is undermined when the records are prepared in anticipation of litigation.”

28. In Certain Underwriters at Lloyd's v. Sinkovich, 232 F. 3d 200 – U.S. Court of Appeals, 4th Circuit 2000 the Court held:

.. few items .. illustrate the reason that such documents as this,

prepared in view of litigation, are not admissible as business records

under Rule 803(6) and illustrate the often-quoted words of Judge Jerome

Frank, in Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942), that such

documents prepared specifically for use in litigation are "dripping with

motivations to misrepresent."

29. The alleged business records in question could not be originally created and maintained by MCM in their regular course of business of consumer

debt buying and collection and preparing such records for litigations long after the event of alleged indebtedness.

30. These records could be created and maintained only by the Third Party (alleged OC) in their regular course of

Credit Cards business (processing applications, issuance of new credit cards, opening accounts, processing consumers’ purchases and receiving

payments …).

31. Those two kinds of business of Midland/MCM and alleged OC are completely different.

32. The Plaintiff and the Affiant claim that the alleged account was opened in 2005 by alleged OC, and the alleged indebtedness/default to OC

happened in 2008.

33. The Affiant works for MCM since November 2009.

34. The Affiant did not work for OC between 2005 and 2008, and therefore, her claims of her personal knowledge of preparing and

maintenance such business records are not true.

35. In Nyankojo v. North Star Capital Acquisition, 679 SE 2d 57 - Ga: Court of Appeals 2009, the Court held:

"…that testimony regarding the contents of business records,

unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay." ... it appears that his

[Affiant's] knowledge of these facts was based on his review

of the records and not his personal knowledge.

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36. In Martinez v. Midland Credit Management, Inc., 250 SW 3d 481 - Tex: Court of Appeals, 8th Dist. 2008, the Court held:

Although rule 803(6) does not require the predicate witness to be the record's creator have personal knowledge of the content of the record, the

witness must have personal knowledge

of the manner in which the records were prepared.

In re K.C.P., 142 S.W.3d 574, 578 (Tex. App.-Texarkana 2004, no pet.).

Documents received from another entity are not admissible under rule 803(6), if the witness is not qualified to testify about the entity's record

keeping.

See Powell v. Vavro, McDonald, & Assoc., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.) (custodian of records for travel agency was not qualified to testify

as to records received from third-party company,

showing credits to customers' credit card account).

In this case, the affiant does not provide any information

that would indicate that he (or she) is qualified to testify as

to the record-keeping practices of the "predecessor."

The affiant does not identify the predecessor,

nor does he provide any information concerning the acquisition of the attached record.

The affiant does not indicate in any way that he has any knowledge

of the predecessor's record-keeping policies or that the records are trustworthy.

In fact, the affiant does not even provide his full name.

As such, the Mart Affidavit did not satisfy the requirements of rule 803(6),

and the trial court erred by admitting it.

37. Business records must be prepared in the regular course of business, where there is little or no motive to falsify. Documents prepared by Debt

Collector long after the event for litigation purposes are not admissible as business records.

38. Therefore, the Affidavit should be striken as Hearsay, according to A.R.E. Rules 408(a)(2), 801©, 803(1), 803(6)(a), 803(6)(B), 803(6)© and

803(6)(e) and ARCP Rule 56(e).

39. Midland and MCM have a history of providing “patently false” affidavits: a similar affidavit was found to be false in

Midland Credit Management, Inc. v. Brent, 3:08cv1434, 2009 U.S. Dist. LEXIS 70650, 2009 WL 2437243 (N.D. Ohio Aug. 11, 2009).

The Court denied Plaintiff’s Motion for Summary Judgment and held (Doc. 56 “Memorandum, Opinion and Order”):

“Midland [Funding LLC] and MCM violated the FDCPA, 15 U.S.C. § 1692a ... and Ohio Consumer Sales Protection Act,

Ohio Rev. Code Ann. § 1345 ... by using a form affidavit that falsely claimed to be based on the affiant personal knowledge in an attempt to collect debt from Defendant …”.

40. The mentioned above U.S. District Court for N. District of Ohio Western Division found (from the testimony of one of MCM’s affiants, Doc. 50)

that MCM receives and fulfills between 200 and 400 attorneys’ requests for Affidavits per a day. Approximately ten “legal spe******ts” take stacks of

such Affidavits from printers, sign them without oath administered and send them by internal mail to the MCM’s Notary. These “Legal Spe******ts”

have ability to check the accuracy of the information on the Affidavit via MCM’s computer system named as “You’ve Got a Claim” and they do it, but

the percentage of those that are checked for accuracy is “very few and far between (Doc. 50)”.

41. Finally this U. S. District Court held (Doc. 50):

“ ... the affidavit was false, deceptive, and misleading in its use in conjunction with an attempt to collect a debt, and Midland [Funding LLC] and

MCM have violated FDCPA § 1692e”.

42. Therefore, the Defendants state that the Plaintiff filed this lawsuit in the bad faith having no evidence to support its claims. The false Affidavit was

created in advance with the purpose to get Default Judgment against Defendants. Defendants pray this Court to dismiss this case with Prejudice and

Sanctions against Plaintiff and its Attorney.

III. TRIAL WITNESSES.

1. Defendants object against testifying of any Plaintiff’s witness who is employed or was employed with any of Encore-Midland companies due to lack

of their trustworthiness.

=======================================

Sadly, that time I did not know, that could use this:

under Arizona Rules of Civil Procedure, Rule 28© Disqualification for interest

"No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties,

or is a relative or employee of such attorney or counsel,

or is financially interested in the action."

The fact of witnesses/afiants employment with Encore-Midland companies

means their "financially interest in the action."

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Pre-trial was 12/2/10.

The Midland's Atty Barry Bursey was too busy to drive 100m from Tucson to Phx, so he sent a "Rent-A-Lawyer" who tried (and unsuccessfully)

to trick us into settlement.

The Judge (Pro Tempore) did not favor my MTD that based on Midland's unlicensed collection activity in AZ, and so the MTD was denied.

The Trial (1 hour) is scheduled for Friday 2/4/11 afternoon.

good thread. subscribed for future reference
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1. The Plaintiff will proceed first and may call witnesses and/or introduce exhibits.

2. The Defendant may cross-examine any witnesses or object to the admission of any exhibit.

3. After the Plaintiff rests, the Defendant(s) will present their case and may call witnesses and/or introduce exhibits that may prove or defend their position.

The Plaintiff may cross-examine any witnesses or object to the admission of any exhibit.

This means that the Defendant would not be able to present his/her defenses

before his/her grilling by Plaintiff's Attorney on the witness stand.:cry:

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http://www.13thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=18461

=================================

NUMBER 13-09-00026-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CYNTHIA B. ABREGO, Appellant,

v.

HARVEST CREDIT MANAGEMENT VII,

LLC, AS ASSIGNEE OF CHASE BANK

USA, N.A., Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Chief Justice Valdez

Appellant, Cynthia B. Abrego, appeals from a traditional summary judgment granted in favor of appellee, Harvest Credit Management VII, LLC, as

assignee of Chase Bank USA, N.A. ("Harvest Credit"). By her sole issue, Abrego argues that the trial court erred in granting summary judgment

because the affidavit relied upon by Harvest Credit in establishing its right to summary judgment is substantively defective. We reverse and remand.

I. Background

On January 2, 2008, Harvest Credit filed suit against Abrego on the basis of breach of contract for allegedly failing to pay debt acquired with a Chase

Bank credit card. Abrego filed an answer wherein she denied (1) ever having a contractual relationship with Harvest Credit, (2) that all conditions

precedent to the filing of the lawsuit had been performed, and (3) "the genuineness of any indorsement or assignment of any alleged written instrument upon which this suit is brought."

On June 12, 2008, Harvest Credit filed a traditional motion for summary judgment and attached an affidavit signed by David Ravin (the "Ravin

Affidavit"), as an "authorized agent" for Harvest Credit. Abrego filed a response to Harvest Credit's motion for summary judgment and objected to the

Ravin Affidavit on the grounds that Ravin lacked personal knowledge to make the affidavit, the affidavit contained statements based on hearsay, and it

was conclusory. On October 15, 2009, the trial court held a hearing on Harvest Credit's motion for summary judgment and Abrego's response. The

trial court overruled Abrego's objections to Ravin's affidavit and the accompanying records, granted summary judgment in favor of Harvest Credit, and awarded Harvest Credit $13,628.25 as the balance due on the account and $1,200 in attorney's fees.

Abrego moved for a new trial, but her request was subsequently overruled by operation of law. See Tex. R. Civ. P. 329b©. This appeal ensued.

II. Discussion

In her sole issue, Abrego contends that the trial court erred when it overruled her objections to Harvest Credit's summary judgment evidence.

Specifically, Abrego asserts that a sworn affidavit by Ravin, as well as a series of attached documents, were not admissible because of Ravin's lack of

personal knowledge and because statements in his affidavit were conclusory and based on hearsay. We agree.

A. Standard of Review

We review the trial court's granting of a traditional motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of

Tex., 253 S.W.3d 184, 192 (Tex. 2007); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.).

When reviewing a traditional summary judgment, we must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a©;

see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002);

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

The movant bears the burden of proof in a traditional motion for summary

judgment, and all doubts about the existence of a genuine issue of material fact are resolved against the movant.

See Sw. Elec. Power Co., 73 S.W.3d at 215.

We consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and

resolving any doubts against the movant.

See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam) (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam)).

When the trial court's judgment does not specify which of several grounds proposed was dispositive, we affirm on any ground offered that has merit and was preserved for review. See Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004).

B. Analysis

Texas Rule of Civil Procedure 166a(f) provides that summary judgment affidavits "shall be made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively that the affiant is competent to the matters stated therein." Tex. R. Civ. P. 166a(f).

The Ravin Affidavit provides, as follows:

1. My full name is David Ravin. I am an authorized agent for Plaintiff, Harvest Credit Management VII, LLC as assignee of Chase Bank U.S.A., N.A.[]

I am competent to testify in this matter related to this account concerning the account of Cynthia B[.] Abrego, account number

XXXXXXXXXXX11710. These said 26 pages of records are kept by Harvest Credit Management VII, LLC as assignee of Chase Bank USA, N.A.[ ]

Based on the documentation as provided by the original creditor and kept in the regular course of business, and it was the regular course of business of

Harvest Credit Management VII, LLC as assignee of Chase Bank USA, N.A. for a representative of Harvest Credit Management VII, LLC as assignee

of Chase Bank USA, N.A., with knowledge of the act, event, condition, opinion, or diagnosis, information thereof to be included in such record as

provided by the original creditor; and the record was made at or near the time or reasonably soon thereafter [sic]. The records attached hereto are

originals or an exact duplicate of the original.

2. Plaintiff's business records for the account reflect that the just and true balance due and owing by the Defendant on the account is $13,628.25

according to the business records provided to Plaintiff by the original creditor or its assignee at the time the account was purchased together with

interest and other applicable costs as allowed by law.

The twenty-six pages attached to the Ravin Affidavit include:

(1) eight Chase Bank monthly statements;

(2) a "Bill of Sale" from Chase Manhattan Bank USA, N.A. to CreditMax LLC;

(3) a "Bill of Sale" from CreditMax LLC to Harvest Credit;

and

(4) a Chase Bank "Cardmember Agreement."

Abrego contends that the Ravin Affidavit, by which Harvest Credit sought to authenticate these documents, fails to meet the requirements of the

business records exception to the hearsay rule. See Tex. R. Evid. 803(6).

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." Tex. R. Evid. 801(d). The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general

rule prohibiting the admission of hearsay evidence. Volkswagen of Am. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004). The predicate for the

introduction of a record under the business records exception requires proof that:

(1) the record was made by or from information transmitted by a

person with personal knowledge of the events or conditions recorded;

(2) the record was made at or near the time of the events or conditions recorded;

and

(3) that it was in the ordinary course of the reporting entity's business to make and keep such records. See Tex. R. Evid. 803(6);

Thomas v. State, 226 S.W.3d 697, 705 (Tex. App.-Corpus Christi 2007, pet. dism'd).

These requirements may be demonstrated through the accompanying affidavit of a qualified person. See Tex. R. Evid. 902(10).

"Business records that have been created by one entity, but which have become another entity's primary record of the underlying transaction may be

admissible pursuant to rule 803(6)." Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex. App.-El Paso 2008, no pet.).

However,

"[d]ocuments received from another entity are not admissible under rule

803(6), if the witness is not qualified to testify about the entity's record keeping."

Id. (citing Powell v. Vavro, McDonald, & Assoc., L.L.C., 136 S.W.3d 762, 765 (Tex. App.-Dallas 2004, no pet.)).

While the witness need not be the record's creator or have personal knowledge of the record's contents, the witness is required to have personal knowledge of the manner in which the records were prepared. Id.

A witness may be qualified to testify about another entity's documents if there is testimony that documents obtained by assignment were kept in the ordinary course of business and formed the basis for ongoing transactions. See Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 112 (Tex. App.-Dallas 1991, no writ).

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(continued)

A bill of sale attached to the Ravin Affidavit indicates that on November 27, 2006, Harvest Credit purchased "certain [a]ccounts described in Exhibit

'A'" from CreditMax LLC. Exhibit A is a bill of sale between Chase Bank and CreditMax dated June 12, 2006. By its June 2006 bill of sale, Chase

Bank "assign[ed] . . . all rights, title, and interest" to "judgments or evidences of debt described in Exhibit 1" to CreditMax LLC.

However, neither a document entitled "Exhibit 1," nor any evidence indicating specifically what was assigned from Chase Bank to CreditMax is attached to the Ravin Affidavit.

(1) Without such evidence, the Ravin Affidavit fails to establish that Abrego's Chase Bank account was ever assigned to Harvest Credit.

Moreover, in his affidavit, Ravin does not state that he has personal knowledge of, or is qualified to testify regarding:

(1) either CreditMax LLC's or

Chase Bank's record keeping practices or policies; or

(2) the trustworthiness of the attached monthly statements from Chase Bank to Abrego.

We conclude that the Ravin Affidavit does not satisfy the requirements of rule 803(6), and the trial court erred by admitting it.

See Martinez, 250 S.W.3d at 485 (holding that the affiant was unqualified to testify where he failed to provide any information to indicate that he was qualified to testify as to the predecessor's record keeping practices). Because the only summary judgment evidence offered by Harvest Credit, other than the Ravin Affidavit, was an affidavit concerning attorney's fees, we conclude that the trial court erred in granting summary judgment. See id. at 485-86.

Accordingly, we sustain Abrego's sole issue.

III. Conclusion

The trial court's judgment is reversed and this case is remanded to the trial court for further proceedings.

ROGELIO VALDEZ

Chief Justice

Delivered and filed the

29th day of April, 2010.

1. At the summary judgment hearing, Abrego's counsel informed the trial court that "Exhibit 1" was not attached to the Ravin Affidavit. Accordingly,

we note that the missing "exhibit" does not appear to have been inadvertently excluded from the appellate record.

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LEGAL SPE******T

Encore Capital Group is currently recruiting a strong team of Legal Spe******ts at our St. Cloud, Minnesota location.

We are seeking spe******ts who will be accountable for providing critical and

thorough review of legal documentation required to support business processes for our external law firm’s throughout the US.

The ideal candidate must have strong attention to detail, exceptional comprehension skills and experience with legal documents.

The Legal Spe******t will be responsible for managing the

evaluation of the documents, proof reading, ensuring accuracy and completeness of documentation, as well as escalation and resolution of non-conforming documents to quickly resolve discrepancies with both internal and external legal partners.

Primary Duties and Responsibilities:

• Manage documentation review in accordance with current legal practices, systems and processes

• Review, interpret, and authenticate a variety of legal documents

• Perform detailed validation of data elements on legal documentation

• Identify and resolve data or content discrepancies through utilization of internal and

external resources in a timely manner

• Adhere to complex process requirements and directions

• Represent the organization in a responsible, professional manner

Candidates should possess the following:

• Paralegal work experience, training or certification

• AA Degree or higher (Bachelor’s preferred)

• 1-2 years administrative experience, preferably in a legal setting

• Two years experience in financial services related field preferred

• Superior verbal and written communication skills

• Proficiency with MS Office

• Detail oriented with strong ability to focus for extended periods

• Ability to be commissioned as a Notary Public in the State of Minnesota

Encore Capital Group is a recognized leader in accounts receivables and asset management.

Encore works with financial organizations, retail credit providers, and telecom providers to maximize account recovery in the distressed consumer credit market.

Headquartered in San Diego, Encore is a publicly traded NASDAQ company.

More about our company can be found at www.encorecapitalgroup.com.

If you are looking for a rewarding career in a growing organization, please submit your resume

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Please reference job code LOSP on all correspondence.

Encore Capital Group is an Equal

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Leveraging Intellectual Capital …

Challenging Conventional Wisdom

ENCORE CAPITAL GROUP

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Pre-trial was 12/2/10.

The Midland's Atty Barry Bursey was too busy to drive 100m from Tucson to Phx, so he sent a "Rent-A-Lawyer" who tried (and unsuccessfully)

to trick us into settlement.

The Judge (Pro Tempore) did not favor my MTD that based on Midland's unlicensed collection activity in AZ, and so the MTD was denied.

The Trial (1 hour) is scheduled for Friday 2/4/11 afternoon.

How did your case go? Update?

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How did your case go? Update?

The Plaintiff's Atty did not send me

any Discovery Request, Interrogatories or Requests for Admissions.

Also, he did not send me anything in response to my Discovery Request (filed in Sept 2010).

So, what I got from Midland is:

1) OC CC statements 2007-2008 (12 months) not authenticated by an OC's employee and MCM Pre-Legal Notice which states "....

Midland Funding LLC recently purchased your OC

account and Midland Credit Management, Inc (“MCM”), a debt collection company, is the servicer of this obligation."

2) Affidavit of Indebtedness created by MCM Employee

(who should be disqualified under ARCP Rule 28©

"Disqualification for interest":

"No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or

employee of such attorney or counsel, or is financially interested in the action." ).

That Affidavit has no Business Record attached.

The Affiant has not introduced any Business Record in support of her statement that Midland is the OC's Successor-in-Interest and so is Real Party in Interest;

3) Boiler Plate Generic Card Holder Agreement with Terms and Conditions

dated by 2007;

Edited by GDayMateAZ
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4) Bill of Sale

[OC LOGO ON TOP OF FORM]

BILL OF SALE

ORIGINAL CREDITOR (“Seller”) for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated May 7, 2009 between Seller and Midland Funding, LLC (“Purchaser”), its successors and assigns (“Credit Card Account Purchase Agreement”), hereby assigns effective as of the File Creation Date of December xx, 2008 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in Exhibit 1 attached hereto and made part hereof for all purposes.

Number of Accounts:

Total Unpaid Balances

Premium

Due Seller

Amounts due to Seller by Purchase in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on December yy, 2008 (the “Closing Date”) by 2:00 p.m. Seller’s time, as follows:

ORIGINAL CREDITOR

ABA #XXXXXXX

Beneficiary Name: ORIGINAL CREDITOR

Beneficiary Account: #XXXXXXX

The Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of title or enforceability is expressed or implied.

[signatures]

ORIGINAL CREDITOR

By: (illegible signature)

Date: XXX

Title: YYYYY

Midland Funding, LLC

By: (illegible signature)

Date: (January XX, 2009)

Title: Treasurer

"Exhibit 1" is NOT attached.

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hey you seem to have a lot of things covered.

i tend to visit the law library a lot here in ny.

if there are cases that you have not been able to find that you might want me to look up at the law library feel free to let me know. i'd be more than glad to pull up cases on lexisnexis or fdcpa material.

you look like you got it covered though.

subscribed to this thread as i think midland is preparing to take me to "the arena."

this is a great thread for reference if they do sue me

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Custodian of Records - Portfolio Recovery Associates

Requisition Number: 10097

Job Title: Custodian of Records

City: Norfolk

State: Virginia

Requirements:

The successful applicant must possess a Bachelor’s Degree or equivalent education and 1-2 years related litigation experience in a law firm or municipal or state court as a legal assistant.

Excellent writing, communication, time management, interpersonal and organizational skills.

Must be proficient with Microsoft Office software and the internet.

Must be able to work independently and be able to handle multiple projects and tasks simultaneously while meeting deadlines.

Knowledge of Fair Debt Collections and Practices Act (FDCPA) and Fair Credit Reporting Act (FCRA) is required.

Job Description:

You're a top performing professional and relentless in your pursuits.

You look for opportunities and express your ideas.

You stay one step ahead of others in your field.

We value your skills and want you on our team!

Portfolio Recovery Associates is a fourteen year old, publicly traded company (NASDAQ-PRAA) that purchases and manages portfolios of defaulted consumer receivables and provides a broad range of accounts receivable management services.

We are currently recruiting for a Custodian of Records for our Litigation Department located in Norfolk, Virginia.

The successful candidate will support the Litigation Department by performing the following tasks:

· Review and endorse, when appropriate, documents/affidavits requiring review by custodian of records on behalf of the company.

Review the accounts associated with these documents/affidavits.

Perform Notary duties on all necessary affidavits/documents.

· Attend court hearings and/or depositions as a witness, or corporate representative, as deemed necessary in consultation with handling attorney. Overnight travel may be required.

· Review disputed accounts and accounts set for trial for documentation and proper handling.

· Draft correspondence to court clerks and debtors.

· Track document requests.

· Be knowledgeable of current policies and procedures of department and update accordingly.

Excited about this challenge? Apply now! (They mean December 21, 2010)

We offer a competitive salary, as well as an attractive set of benefits to our valued employees. Join our team and build a dynamic career with an exciting, growing company. Equal Opportunity Employer.

Portfolio Recovery Associates, Inc.,

120 Corporate Boulevard, Norfolk, Virginia 23502, USA.

(757) 519-9300.

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Good grief...that would be laughable if it wasn't so pathetic!

Oh...and did they mention under job requirements...

Must be able to sign at least 2500 affidavits a day without questioning what is stated in the affidavit or whether or not a notary happens to be watching as you sign them?

Absolutely laughable 8-)

RL

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Good grief...that would be laughable if it wasn't so pathetic!

Oh...and did they mention under job requirements...

Must be able to sign at least 2500 affidavits a day without questioning what is stated in the affidavit or whether or not a notary happens to be watching as you sign them?

Absolutely laughable 8-)

RL

@RebelLady,

It's from a Legal Definition:

"The records custodian is the person responsible for keeping records in the ordinary course of business.

In litigation, business records,

are often allowed into evidence with a certificate signed

by the records custodian responsible for the records,

verifying the completeness and accuracy of the records or copies thereof."

Positions of Legal Spe******t and Custodian are different,

while in courts JDBs use their multiple Legal Spe******ts as Records Custodians.

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