Drafting Motion to Dismiss against Capital Alliance Financial (aka: Stenger)

[OCGA-Researcher]

Hello all. I am in the process of drafting Motion to Dismiss Plaintiff's Complaint with Prejudice (will file next week after more research and finding – hopefully - precedents) - and want someone to proofread what I have to this point. Keep in mind this is just a draft.

Background: In late 2009, we were served summons by a company in Grand Rapids MI Capital Alliance Financial, LLC via Law firm Stenger & Stenger PC. In the complaint, it was indicated that they were the "assignee" of Chase Bank USA, NA, and topped off the complaint by attaching an Exhibit A & B (which in hindsight we should have made motions on). Exhibit A was just a simple Capital Alliance Financial, LLC (hereafter referred to as CAF) "Account Statement" with the original issuer and account number, name of defendant and a statement that the statement "was prepared with business records furnished by Chase". Exhibit B was a sworn statement of fact by CAF/Stenger Manager, Amanda McKendry (if she indeed perjured herself, courts are in Georgia, and she in Michigan...).

We answered the Complaint within the 30-day window, but were new to this (at this point) and did not include affirmative defenses.

At the first of 2010 we received their Discovery Requests, answered within the 30 days, in which we objected to line by line and answered all of their Admissions of Fact with “Defendant states that after a reasonable inquiry, the information known or readily obtainable by him/her is insufficient to enable her to admit or deny this request.” Their Discovery referenced two exhibits in Plaintiff’s Admissions of Fact – Demand Letter and (Chase) Card Holder Agreement, which were not included and have never been produced (sloppy). Stenger/CAF also incorrectly referenced in Interrogatory instructions O.C.G.A. 9-11-30 (Depositions), instead of 9-11-33 (Interrogatories).

Two weeks later we served CAF/Stenger Defendant’s Discovery, in which Plaintiff / Attorney failed to respond to. At this point we should have filed, and filed, and filed – but were dealing couple of agencies (Hanna being one) and stupidly put CAF on the back-burner.

At the end of October (2010) we received a letter from the Clerk of Superior Court that we had a Rule Nisi court date, so I went to the Court House and looked through the file (always a good idea) and discovered that CAF had file a Notice to Determine Sufficiency of Defendant’s Answers to Requests to Admit, which we did not receive. I immediately started researching what to do and filed two motions: One to strike Plaintiff’s Discovery and associated documents, the second Motion to Deem as Admitted All Facts Propounded to Plaintiff – both motions with supporting Exhibits, including Exhibit 3 which shows a direct relationship between CAF and Stenger; Amanda McKendry is Manager of CAF and Collections Manager of Stenger, and Phillip S Stenger is listed by the Better Business Bureau of Western Michigan as a Manager of CAF. Downloaded documents indicated both Stenger and CAF share an address. There is a Party in Interest issue here, maybe a couple of party issues since CAF never evidenced or supported the contention that they have clear and legal title to the account that the Complaint is based.

At any rate, we went to our appointed court date and Stenger had hired a local rent-an-attorney to argue their motion, but the hearing date was moved to the future.

Which bring us to today: Drafting a Motion to Dismiss Plaintiff’s Complaint with Prejudice. The Exhibits referenced have already been filed with previous motions.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

IN THE SUPERIOR COURT FOR THE COUNTY OF XXXXXXXXX

STATE OF GEORGIA

CAPITAL ALLIANCE FINANCIAL, LLC,

PLAINTIFF,

VS

DEFENDANT

DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT WITH PREJUDICE

Comes now the Defendant XXXXXXXXX, Pro Se, and moves the court to dismiss Plaintiff’s Complaint With Prejudice as follows:

(1)

Plaintiff has failed to state a claim on which relief may be granted. The Causes of Action specified in the Complaint filed by the Plaintiff is insufficient as a matter of law.

(2)

No agreement and/or relationship, written, verbal, or implied, have ever existed between the Plaintiff and Defendant. Plaintiff has also failed to provide any proof of a relationship between Plaintiff and Defendant.

(3)

Plaintiff has failed provide any creditable documentation or testimony to state any legal claim to the account on which the Complaint is based. Documentation includes, but is not limited to, creditable Validation of Debt as defined by the F.D.C.P.A. § 803(4)(6).

(4)

Plaintiff has failed to provide a copy(s) of the Assignment of Account by Chase Bank USA, NA, or any creditable proof of a relationship between themselves and Chase Bank USA, NA, specifically the authority of the Plaintiff to collect the debt on behalf of the original creditor. Plaintiff asserted in the Complaint (para. 1, Jurisdictional Allegation) to be the assignee of Defendant’s alleged account.

(5)

Plaintiff referenced but failed to provide the Cardholder Agreement (ref. as Exhibit A, Plaintiff’s Requests to Admit – Defendant’s Exhibit 2 pg 10, para. 17), and also failed to provide the Demand (Dunning) Letter (ref. as Exhibit B, Plaintiff’s Requests to Admit – Defendant’s Exhibit 2 pg 10, para. 18).

(6)

Plaintiff failed to provide proof of Defendant’s alleged debt with Plaintiff, including specifically the alleged contract between the Plaintiff and Defendant, or any other instrument constructed solely for the purpose of creating a loan agreement between Plaintiff and Defendant that evidences Defendant is legally required to pay Plaintiff the amount entered in Complaint.

(7)

Plaintiff served upon the Defendant their Discovery (Defendant’s Exhibit 2) that was flawed in structure and content, in that it was missing referenced exhibits (Defendant’s Exhibit 2, pg 5 paragraphs 17 & 18, Admissions of Fact), and incorrectly referenced O.C.G.A. § 09-11-30 in Interrogatories Instructions (Defendant’s Exhibit 2, pg 10). Plaintiff’s Discovery content and instructions was vague and confusing.

(8)

Plaintiff failed to respond to Defendants First Set of Interrogatories, Requests for Admissions, and Requests for Production of Documents, propounded on or about XXXXX, 2010 (Defendant’s Exhibit 1), in which Defendant requested critical and pertinent Documents, Information, and Facts. Defendant filed Motion to Deem as Admitted All Facts Propounded to Plaintiff on or about XXXXX, 2010.

(9)

Plaintiff is not the true party in interest. Management and/or an ownership relationship exist between Capital Alliance Financial, LLC, Stenger & Stenger, PC and Phillip S. Stenger (Defendant’s Exhibit 3). In Plaintiff’s failure to respond to Defendant’s Discovery, Plaintiff has implied that Phillip S. Stenger is the real party in interest (Defendant’s Exhibit 1, Request for Admission of Facts, para. 15) and that Stenger & Stenger, PC is an affiliate and/or alias of Plaintiff (Defendant’s Exhibit 1, Request for Admission of Facts, para. 20). Plaintiff’s actions may be a violation of the F.D.C.P.A. § 811(a) & § 812(a) and other F.D.C.P.A. and O.C.G.A. (9-11-110, not real cite).

(Additional paragraphs as Motion Develops)

Edited November 19, 2010 by OCGA-Researcher

[Savoir]

yeah .. I just got through with them. Almost the same scenario except I'm not in your state.

CAF is an LLC set up by Stenger & Stenger to act as plaintiff in their JDBer activities.

Weird ... same affiant .... same OC .... same situation with regard to outsourcing the attorney (I never saw an attorney from their firm) ... everything. I bet the complaint they filed is virtually word for word the same as the one they filed on me. During my research, I looked through a few cases in my district court that they had filed; same wording in virtually every single complaint.

I wish that I could have found something illegal about their relationship so I could have pounded them a little harder but .... it just wasn't evident.

They'll try to bury you with paper to try and intimidate you and then hire some poor local lawyer to be a warm body for any hearings, hoping that you won't show. They get really sloppy if you defend yourself ..... it's kind of laughable.

[OCGA-Researcher]

I believe much of what is done is by Stenger/CAF paralegals just "puppy-milling" these actions out across the county hoping the Defendant's will not answer the Summons/Complaint and force a default judgment. Probably all in template form, including the Plaintiff's Complaint, Discovery, Motion To Find Sufficiency of Defendant's Answers..., and so on.

If you read the background on the case, we have buried them under an avalanche of Motions and Defendant's Exhibits (it is easy when the Court House is only 3 miles away), including eight pages of an Exhibit that link the two "organizations" (with printouts from Michigan Secretary of State Corporations Division and the Western Michigan Better Business Bureau, as well as other sites - accessible by anyone who having issues with this firm/collector). Nothing concrete with Phillip Stenger's name on the LLC incorporation document, but a very dirty trail.

We will be glad to supply these links for anyone having issues with Stenger/CAF, but is easily researched on the internet by going to the State of Michigan Secretary of States site and researching the primary's and company's names - it wasn't difficult to link them.

One of the issues that we raised, the Real Party In Interest, could now potentially cause them a problem. There are instances and precedents were Superior and Magistrate Judges have forwarded this information to the Georgia Attorney Generals Office and Georgia Bar Association in these kind of cases. Phillip Shea Stenger is registered with the Georgia Bar.

Edited November 21, 2010 by OCGA-Researcher

[InDebt2]

a

Edited November 21, 2010 by InDebt2

[Savoir]

Phillip Shea Stenger is registered with the Georgia Bar.

I'm sure that you noticed on the BBB site that Stenger is listed as a member of the LLC.

I don't know ... I just couldn't find anything illegal about their shenanigans in my state ..... although I'll agree ..... it is shady.

[OCGA-Researcher]

It is shady, no doubt. I am still going through the O.C.G.A. code but the main one in O.C.G.A. § 9-11-17. Parties plaintiff and defendant; capacity on Party in Interest.

Here is a link to LexisNexis for Georgia Code (for those who need it):

lexisnexis.com/hottopics/gacode/default.asp

Since Stenger/CAF did not bother with answering Defendant's Discovery, and there were 2 paragraphs regarding this in the Admits, it's all in getting the court to Deem as Admitted now (already filed). Even then, it doesn't look good - puts a shadow on Stenger/CAF's crediability.

[Savoir]

..... because I believe it to be an effort around FDCPA or FDCA regulations in my state ... I just couldn't prove it. The more knowledgable people on this board seemed to agree that it wasn't illegal or even a violation.

[OCGA-Researcher]

I'm not going to expend too much more energy on the Party in Interest avenue, I have other areas to concentrate on and research - but found the whole legal issue (under O.C.G.A.) rather interesting once I found a couple of precedents. The rules on parties in suits varies widely from state to state, and slanted towards the Plaintiff, not having to be forthcoming, in many states. But here in Georgia, Judges (mostly) like to know who the parties are - though I am sure that can vary from judge to judge.

Thanks all for the responses!

[poorhouse]

How is your Stenger issue going?

I am having to fight with them in Ky because they served stuff at my brothres address...same sloppy work, renta lawyer, etc, and I am from Ga. too.

[ADSOFT]

I think MSJ is want you want to do. I looked heavily into motion to dismiss, but no such thing. You have to do a motion to compel first, then MSJ(Motion for Summary Judgement).

But it might be different in your state. Is there such a thing as Motion to Dismiss by the Defendent. Usually only the Plaintiff or Judge can dismiss a case.

[poorhouse]

Anyone have any new developments to share on this...

I have done the interoggatories, they filed for a MSJ which I filed Oppose..now as Defendant do I file MSJ against them?

How do you get it dismissed?

and ended?

[poorhouse]

Pro se defendant, and clueless- sorry!

[ADSOFT]

Anyone have any new developments to share on this...

I have done the interoggatories, they filed for a MSJ which I filed Oppose..now as Defendant do I file MSJ against them?

How do you get it dismissed?

and ended?

I think you would have to file a counter MSJ, but that might just push them to get the evidence they need.

However there are some people who have won with an MSJ by the defendent, usually against JDBs.

IMHO, the more you ask for evidence the more they will go look for it. I'm of the opinion to learn how to block thier evidence at trial and motion for them to show you what they have before trail to form a defense or settle if you know for sure they are going to win.

[jackson212]

Defendant filed Motion to Deem as Admitted All Facts Propounded to Plaintiff on or about XXXXX, 2010.

isnt the Request For Admissions self-executing? it usually is, i could be wrong as to the rules of your state that's why im asking. if they didnt respond, then by default they are deemed admitted. i would guess a motion would solidify the admissions.

if so, i would use the admissions in further support of your motion (whether its a dismissal or summary judgment, etc)

you seem to be good at researching your work and relevant case law. i would look into that, as some states handle the use of admissions differently from other states.

in addition to #9, you can allege that Plaintiff has failed to establish standing. without standing they may not proceed in this action, they may not seek relief, and the court is precluded from entertaining their action. you should definitely find relevant case law for this and use it, including this 11th circuit court of appeals case for Georgia, Georgia State Conference of NAACP Branches v. Cox, 183 F. 3d 1259, 1262 - Court of Appeals, 11th Circuit 1999, and US Supreme Court case Warth v. Seldin, 422 U.S. 490, 498 (1975).

good luck

[poorhouse]

If I file a counter MSJ now, I only opposed their MSJ on Monday and served them Tuesday, opposed based on defense they cannot to date validate the debt, their affidavit from Capital Alliance was total heresay by a possibly fictitious "person" and their aleged "bill of sale(s) were not notorized nor listed defendant/account and an amount of PURCHASE; and cited the FDCPA violations they had made.

Can I now or should defendant/me file a MSJ now-would that be the right step? Or am I to wait for their reply?

They did have a hearing date set in a few weeks on their MSJ, does my filing oposition stop that or?

The one issue in their validating the debt, is its one of those credit cards that was sold thru at least three merger or aqusitions that I know of , ie: the credit card changed names and banks each time.. ..and eventually ended with Chase. I think stretching back almost 10 years...1/they can't produce proof a first date of use, I can't really remember dates and when the cards were sold to each successive entity to eventually sell to Chase. Chase only had it for like 3 months before they "charged it off"- alot of this happened while I was in the hospital and it will never be in my knowledge and no clue who handled my affairs while I tried to survive.

So this now comes as a nusiance and major emotional and health drain that they served me at a RELATIVES address in another state, I qualify for no legal aid there nor in my home state so I appreciate any help I can get. I am disabled, and even the driving distance is now health and mental stress as i have to go to another state and camp out to answer all this BS.

[ADSOFT]

Look, let's say I'm suing you for not paying a CC.

You file an MSJ because I didn't provide evidence.

We go to court and judge says, you haven't provided a Bill of Sale so unless you can get a Bill of Sale you will lose.

So I tell the Judge, "Ok, I will have on by Trail Date".

Guess what, I go get the Bill of Sale, I win at Trial , and "You Owe Me $$$".

That's why I don't push them to get all the evidence, I just work on shooting down thier evidence at trial and hope they are too lazy or dumb to get what they need to win.

[poorhouse]

Ok, so would you just go to trial with the same defense you would use to oppose a msj?

[ADSOFT]

Ok, so would you just go to trial with the same defense you would use to oppose a msj?

That's what I would do.

If they are very persistant they MIGHT go get the info they need. Most of these guy don't have enough evidince to win.

What I would do is study the Hearsay rules for your state so you know what holds up in court and what doesn't.

Also study the basic elements for breach of contract.