Zulator

Need help responding to MSJ against Midland

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In my state you can object to an MSJ. It all depends on your state's court rules.

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In my state you can object to an MSJ. It all depends on your state's court rules.

I think it's technically called an "objection" to the Plaintiffs summary judgement? I have found several mentions and samples, so I am sure it is allowed. I just need to know what the proper format and arguments should be. Surely, someone on here from AZ has filed one before?

Edited by Zulator

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I think it's technically called an "objection" to the Plaintiffs summary judgement?

Be sure and double check that. The Plaintiff doesn't have a summary judgment yet. They've only filed a MOTION for Summary Judgment.

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Be sure and double check that. The Plaintiff doesn't have a summary judgment yet. They've only filed a MOTION for Summary Judgment.

I think you are right, it's called a "motion to dismiss summary judgement". But I don;t want to get into semantics, I really wanted to file it today but I don't think I am ready? I need more input from people familiar with AZ forms. I am not sure I used the right format?

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I suppose it's called "Opposition to Plaintiff's Motion for Summary Judgment".

This is from the RULES OF CIVIL PROCEDURE FOR THE SUPERIOR COURTS OF ARIZONA:

(2) Any party filing a motion for summary judgment shall set forth, separately from the memorandum of law, the specific facts relied upon in support of the motion. The facts shall be stated in concise, numbered paragraphs. As to each fact, the statement shall refer to the specific portion of the record where the fact may be found. Any party opposing a motion for summary judgment shall file a statement in the form prescribed by this Rule, specifying those paragraphs in the moving party's statement of facts which are disputed, and also setting forth those facts which establish a genuine issue of material fact or otherwise preclude summary judgment in favor of the moving party. In the alternative, the movant and the party opposing the motion shall file a joint statement in the form prescribed by this Rule, setting forth those material facts as to which there is no genuine dispute. The joint statement may provide that any stipulation of fact is not intended to be binding for any purpose other than the motion for summary judgment.

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The below two items seem to be attacking the original Complaint...were these two items detailed in the Plaintiff's Summary Judgment Motion?

Your dialogue regarding these two issues seems to be misplaced unless they were actually part of the Summary Judgment Motion.

8. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. A date of the last activity on the alleged account was not listed on any documents submitted by the Plaintiff as to constitute a time frame to substantiate that the alleged account is within the statute of limitations, 3 years per 12-543 Arizona statute.

9. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

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The below two items seem to be attacking the original Complaint...were these two items detailed in the Plaintiff's Summary Judgment Motion?

Your dialogue regarding these two issues seems to be misplaced unless they were actually part of the Summary Judgment Motion.

8. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. A date of the last activity on the alleged account was not listed on any documents submitted by the Plaintiff as to constitute a time frame to substantiate that the alleged account is within the statute of limitations, 3 years per 12-543 Arizona statute.

9. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

I will post the MSJ that they sent me tomorrow.

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I just discovered tonight that my dad settled the account Midland gave me the statement from. Since my dad was not named in the original complaint, it never occurred to me to ask him about it. Come to find out, he told me he paid another CA $4320 in 2008 to settle this account. He has a 1099-C from them showing the debt was cancelled and his bank statement showing he paid them that amount.

So, it turns out that Midland is trying to sue me for an account that my dad settled for in 2008. How can I go about getting this admitted now?!

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Was the CA working for Maryland Nat. Bank or was it another JDB that your Dad paid? If there's any paperwork that shows the debt was "paid in full"...it would seem to me that whoever sold it after that is liable for something.

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Was the CA working for Maryland Nat. Bank or was it another JDB that your Dad paid? If there's any paperwork that shows the debt was "paid in full"...it would seem to me that whoever sold it after that is liable for something.

THere is only one account I had with my dad, so this had to be it. He paid Cach LLC the money, who listed Maryland National Bank as the OC. I have a copy of the 1099-C and a copy of his bank statement showing the same amount.

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I need a little input on this. Since my father agreed to settle the account without my knowledge, does this seem like overkill?

Comes now the Defendant xxxxxxxxxx,Pro Per and pursuant to Rule 56 ( ) of the Arizona Rules of Civil Procedure,makes this opposition statement to Plaintiffs request for Summary judgment, andasserts that issue of material facts exist

This opposition statement is supported by aseparate Statement of Facts and Issues in dispute herewith, The accompanyingMemorandum of Points and Authorities, and the pleadings and motions of record.

Plaintiff has failed to discharge this responsibility in the Motion for SummaryJudgment and Supplemental Motion filed with the Court. The Motion does not setforth the True facts upon which Plaintiff seeks a summary judgment. Rather theMotion states only “That there is no genuine issue as to any material fact andthat Plaintiff is entitled to a judgment as a matter of law with regard to allCounts.” Motion for Summary Judgment should be denied.

1. Defendant received the Plaintiff's Summons on September, 07th 2010.

2. Defendant answered the request on October 12th2010.

3. Pre-Trial was set for January 3rd, 2011.

4. Defendant received Motion for Summary Judgment on January25th 2011.

5. Defendant responded on February 4th 2011

I. FACTUAL BACKGROUND

The plaintiff has not submitted any evidencewhatsoever to the court that establishes the date of the last activity on theaccount to establish a timeline for SOL in Arizona (3 years per Arizona statute12-543)

The plaintiff has not submitted any admissible, unconvertibleevidence that they have standing to sue defendant, no bill of sale or chain ofassignment.

The Plaintiff failed tosubmit evidence in disclosure critical to the Defendants ability tosufficiently defend this complaint.

II Standard for summary judgment

Summary judgment should be granted if the movingparty successfully carries its burden to establish that there is no genuineissue of material fact and the moving part if entitled to judgment as a matterof law. To satisfy the burden of proof, the movant must provide the court withevidence which clearly indicates what the truth is, and which excludes any realdoubts as to the existence of proof.

The purpose of Rule 56, is to dispose of thoseactions which fail to raise genuine issues of material fact, therebyeliminating the burden and expense of an unnecessary trial.

III Application and Argument

As set forth below, there are genuine issues ofmaterial fact insofar whether defendant is liable to plaintiff for thepurported debt

A) - Account stated; The Plaintiff must establisha debtor/creditor relationship with the Defendant and established a course ofbusiness dealings between the parties. Additionally, it must be establishedthat the Defendant was sent a statement and that the Defendant expressly orimpliedly consented to the statement by failing to object.

Consequently, there needs to be a copy of astatement and proof of mailing to establish a presumption of no objection.Under Arizona law, an account stated occurs when persons with an open andrunning business account mutually agree to settle and strike a balance. Ralstonv. Morgan, 73 P.2d 94, 95 (Ariz. 1937). Proof of an agreement as to the amountowed between the parties is an "absolute requisite to the legal concept ofaccount stated." Holt v. Western Farm Services, Inc., 517 P.2d 1272, 1274(Ariz. 1974)

The Plaintiff in this action is Midland FundingL.L.C., an alleged assignee – and this plaintiff has submitted no proof thatthey have sent monthly statements, nor have they submitted admissible evidenceto this effect.

On summary judgment, a witness must demonstrate(1) familiarity with the person who prepared the document and (2) the manner inwhich it was prepared. See Villas at Hidden Lakes Condos a$$’n v.Geupel Constr.Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App. 1992) (finding that anassociation failed to establish a prima facie case entitling it to summaryjudgment because its supporting affidavit did not provide foundation for theaffiant’s personal knowledge and conclusions, nor did it demonstrate hisfamiliarity with the person who prepared the affidavit exhibits or the mannerin which they were prepared); Chess v. Pima County, 126 Ariz. 233, 235, 613P.2d 1289, 1291 (App. 1980) (an affidavit does not comply with the rule when“it contains conclusions and fails to show that the affiant is competent totestify to the matters stated therein”).

Arizona Evidence rule 801( c ) defines hearsay as“ a statement offered in evidence to prove the truth of the matter asserted.” TheArizona Supreme Court in Schneider v. Cessna Aircraft further clarified thedefinition stating;

Rule 801 (a), Arizona Rules of Evidence, defines ahearsay ‘statement’ as either an oral or written assertion, or non-verbalassertive conduct. 150 Ariz. 153, 772 p.2d 321,327 ( App. 1985). Rule 802, referredto as the “Hearsay Rule” states that hearsay is not admissible except asprovided by applicable constitutional provisions, statutes or rules.” In otherwords, unless there is an exception to the Hearsay Rule, hearsay cannot beadmitted into evidence or even considered in any way by the court.

The Plaintiffs exhibits have not beenauthenticated by someone with first-hand knowledge, do not qualify for thebusiness records exception and are thus inadmissible and should be excludedfrom the Court’s consideration.

Since the Plaintiff has not provided documentationof the chain of assignees, the only information that may have been acquired haspossibly come from the previous assignor(s). Simply because the Plaintiff hastaken these records and put them into their files does not certify that thesecame from a trustworthy source, or from someone who had firsthand personalknowledge of said records, or kept in the course a regularly conducted businessactivity, or made at the time of the underlying event.

AS the ‘moving party” the Plaintiff carries theburden on proof. The Plaintiff has not submitted evidence proving the Defendanthas not objected. Without such proofs, the plaintiff’s argument is moot, whichis not proper under the standard for summary judgment.

<br style="mso-special-character:line-break"><br style="mso-special-character:line-break">

As the Plaintiff is the moving party in thiscomplaint a request for summary judgment, the burden of proof rests with theplaintiff.

The plaintiff has failed to prove that thedefendant owed the purported debt to the plaintiff. The purported Card member applicationand agreement with the defendant’s signature, which constitutes the offer andacceptance of a contract alleged in the Complaint is not in evidence, nor isthe full chain of assignments with the ledger of accounts indicating thedefendants account was included in each assignment.

Therefore, the Plaintiff lacks standing to sue.

The Arizona Supreme court ruling in CertifiedCollectors, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P.2d 769, 771 (1977), madeit clear that the Plaintiff had the burden of showing the legal assignment ofthe alleged debt. The Court stated;

It is, however, hornbook law that in order toeffect a legal assignment of any kind, there must be evidence of an intent toassign or to transfer the whole or part of some specific thing, debt or chosein action and the subject matter of the assignment must be describedsufficiently to make it capable of being readily identified.

115 Ariz. 609, 570 P2.d 769, 771 ( 1977) citing toIngram v. Mandler, 56F 2d 994( 10t Cir. 1932); Novo Trading Corp. v.Commissioner, 113F 2d 320 ( 2nd Cir. 1940); See also Cruz v. Lusk CollectionAgency, 119 Ariz. 356, 580 P.2d 1201 ( app. 1978)

There are no records of what was allegedlypurchased by Plaintiff, or the amount it was purchased for, and no documentsadmitted in to evidence that an account owed by the defendant was sold toPlaintiff.

IV. CONCLUSION

The motion for summary judgment is improper, andshould be denied.

"A summary judgment is neither a method ofavoiding the necessity for proving one's case nor a clever procedural gambitwhereby a claimant can shift to his adversary his burden of proof on one ormore issues." United States v. Dibble (9th Cir. 1970), 429 F.2d 598, 601.

Wherefore, xxxxxxx - defendant respectfullyrequests that plaintiff's Motion for summary judgment be denied and this casebe dismissed in its entirety.

Respectfully submitted

Defendant pro se

xxxxxxxxxxx

Dated February 4th 2011

Separate Statement of Facts;

1) Plaintiff has failed to prove standing to sue.

2) Defendant Affirmative defenses of lack ofstanding, statute of limitations, hearsay, failure to prove damages, bill ofsale, and lack of consideration, have not been adequately responded to.

3) The affidavit, and account statement furnishedare inadmissible hearsay without proper foundation

5) Plaintiff lacked evidence to prove this case atthe start of this action.

6) Plaintiffs filing an incorrect affidavit isnegligent, and not an excusable clerical error. Arizona Rule of Civil procedure11 ( a) That the signature of an attorney or party constitutes a certificate bythe signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed afterreasonable inquiry it is well grounded in fact.

7) Plaintiff has no standing,account that was previously settled. See attached 1099-C (exhibit A), bankstatement (exhibit , and affidavit (exhibit C) stating that the account waspreviously settled.

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The plaintiff has not submitted any admissible, unconvertibleevidence that they have standing to sue defendant, no bill of sale or chain ofassignment.

I think you meant to say "incontrovertible". And add...There is no Bill of Sale or chain of assignment.

The plaintiff has failed to prove that thedefendant owed the purported debt to the plaintiff.

Change owed to "owes".

AS the ‘moving party” the Plaintiff carries theburden on proof. The Plaintiff has not submitted evidence proving the Defendanthas not objected. Without such proofs, the plaintiff’s argument is moot, whichis not proper under the standard for summary judgment.

<br style="mso-special-character:line-break"><br style="mso-special-character:line-break">

As the Plaintiff is the moving party in thiscomplaint a request for summary judgment, the burden of proof rests with theplaintiff.

Delete the highlighted sentence. It's redundant.

2) Defendant Affirmative defenses of lack ofstanding, statute of limitations, hearsay, failure to prove damages, bill ofsale, and lack of consideration, have not been adequately responded to.

2. Plaintiff has failed to adequately respond to Defendant's Affirmative Defenses which are Lack of Standing...etc.

3) The affidavit, and account statement furnishedare inadmissible hearsay without proper foundation

No comma after affidavit.

) Plaintiff has no standing,account that was previously settled. See attached 1099-C (exhibit A), bankstatement (exhibit , and affidavit (exhibit C) stating that the account waspreviously settled.

Plaintiff has no standing to sue on an account...etc.

See also Cruz v. Lusk CollectionAgency

You might want to reread that one. I'm not sure it's in your favor.

Yes...I know I'm a tad picky. :roll:

You've presented all of your arguments and backed them up with case law and rules. I think you've done a great job.

Edited by BV80

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I think you meant to say "incontrovertible". And add...There is no Bill of Sale or chain of assignment.

Change owed to "owes".

Delete the highlighted sentence. It's redundant.

2. Plaintiff has failed to adequately respond to Defendant's Affirmative Defenses which are Lack of Standing...etc.

No comma after affidavit.

Plaintiff has no standing to sue on an account...etc.

You might want to reread that one. I'm not sure it's in your favor.

Yes...I know I'm a tad picky. :roll:

You've presented all of your arguments and backed them up with case law and rules. I think you've done a great job.

Thank you! Not picky at all, it helped. I can't take full credit. I am hoping this drives a nail in the coffin, so to speak. I am tired of dealing with these people.

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Well, I filed my opposition to the MSJ. I am more nervous now than I have ever been because I basically admitted to the debt and I'm just hoping the judge finds in my favor and dismisses the case. It seems to be a trend with these JDB filing a MSJ to combat the info sites like this have been arming people with.

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JDBs have been filing MSJs forever just hoping the "least sophisticated consumer" will get scared and agree to pay or just give up all together. This is nothing new.

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About 2 yrs ago my husbnd got served by a JDB and not being as knowledgable as I am now we responded that they filed the suit in the worng county which violated the FDCPA. I just looked at the docket and apparently they filed some affidavit and statement which we never received. Should I leave it alone, file a motion to dismiss for failure to prosecute, or fight the affidavit and statement that were never received? What would happen if we didn't wake a sleep ing bear? How long does the court let these cases sit dormant without anything being done? Any advice from the brilliant minds on this board would be greatly appreciated.

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How could the judge deny my opposition to the MSJ without a trial, is this normal?

The only thing I can think of is that your opposition is not a motion, therefore the judge might simply be able to deny it. However, the Plaintiff did file a motion, so there will be a hearing. You'll get a chance to voice your opposition at that time.

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About 2 yrs ago my husbnd got served by a JDB and not being as knowledgable as I am now we responded that they filed the suit in the worng county which violated the FDCPA. I just looked at the docket and apparently they filed some affidavit and statement which we never received. Should I leave it alone, file a motion to dismiss for failure to prosecute, or fight the affidavit and statement that were never received? What would happen if we didn't wake a sleep ing bear? How long does the court let these cases sit dormant without anything being done? Any advice from the brilliant minds on this board would be greatly appreciated.

Read your court RCPs. There should be information in those rules about dormancy and failure to prosecute.

It would help if you would post your own thread. That way more people would look at it, and it might help someone else who's in the same situation.

It would also prevent confusion about which answers apply to your post and which ones apply to the original poster.

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Question? Is this the first time in the introduction of evidence they filed the affidavit?

You may be able to file a motion to strike the affidavit that is seperate from the Opposition to MSJ. In filing the motion to strike it will also extend the time you have to respond to the MSJ. Depending on your state CP.

Most importantly, remember, the business record falls within the exception to the hearsay rule. The business record can virtually stand on its own. The attack on business records is its trustworthiness. We all know the JDB is not the OC and their statement is hearsay, but case law has shown the business record can overcome this hurdle on its own. Without a deposition or acknowledgement from the affiant of lack of personal knowledge of the record their statement is cedible at oath.

The affidavit usually says someone with knowledge of the record or process of recording the records at or near the time. It is well established in case law that business records are self-authenticating. You have to stop them from being introduced.

A MTS can strike all or part of any affidavit. There are several ways to attack the record and its accuracy.

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How could the judge deny my opposition to the MSJ without a trial, is this normal?

File your own MSJ. Attach your own evidence and argument.

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