Tactic for OC MSJ Reponse with a untrustworth or fradulent Plaintiff's affidavit

[davephx]

I am doing extensive response to a credit card Plaintiff's Motion for Summary Judgment (AZ) including long Memorandum of Points and Authorities and separate Statement of Facts in Support...

Separately filed Motion to strike Plaintiff's (Original Creditor) affidavit doing the extensive arguments about hearsay, meets neither the business record or account stated rules etc. etc. From lots of research and prior experience seems about a 50/50 shot depending on how a judge views these issues. Also did my own Sworn Statement of Denial.

Have potentially very good situation which have extensively included but would be interest in other views.

The Credit card (Plaintiff) Affidavit is signed by lets call him Mr R. and witnesses by Ms Z.

The head of the credit card litigation team for the Plaintiff (call her Ms A) has filed an affidavit (public record I found on the Internet) which in great detail talks about the "robo-signing" huge piles at a time so totally false affidavits (no personal knowledge as states, never reviews any documents etc) and names Ms Z as one of the notaries the piles are basically sent to but never does she witness as in the same room, the signature on the affidavits. I am slightly confuse that in some States may not have to actually "observe" the signing but that is the minor part.

Ms A filed a whistleblower filing with the SEC (I have a copy on her lawyers letterhead, again public record). The SEC is involved because in addition to preparing affidavits for outside lawyer suits (my case) her dept also prepared for selling blocks or credit card debt ($200 million in specific example cited and 23,000 loans) to investors. Further investigation found in the 23,000 debts sold, 11,472 were missing adequate documentation and nearly 5000 had incorrect balance information.

Ms A files a lawsuit against my Plaintiff, for firing her when she refused to participate in the illegal acts related to the fraudulent affidavits including specifically Mr. R. (and others) I have a copy and included one of her filings that has the details. Public record and on the Internet.

Plaintiff has a long record including of false affidavits also found in Appellate Court decisions which specifically mention "this is not an isolated incident" etc by a judge related to Bankruptcy Court false affidavits of the Plaintiff, due to the no personal knowledge "robo signing" All public records from Courts etc. And has previously been sanctioned by various Courts (don't know in what form).

I have included all of this including copies of the above documents references and as Exhibits in my Separate Statement of Facts, in both my response to Motion to Summary Judgment and my Motion to Strike Affidavit.

AZ follows the Federal Rules of Procedures, Evidence, the same hearsay rules and the big part affidavits have to be "trustworthy". I have cited cases and both the FRE 803(6)(E) and ARS (AZ) 803(8) etc related to having to be trustworthy in order to meet the business record exemption to the hearsay rule. (and must have "first hand knowledge). This seems the key to either account stated or business record suits and the affidavit is central to the cases.

I have also pled for unspecified sanctions for the filing of a untrustworthy or fraudulent affidavit by the Plaintiff.

OK, now my concerns besides that AZ judges seem to be very Plaintiff friendly against defendants in credit card cases, especially when dealing with the original creditor suit, not a collection agency, if anyone might have any comments of wisdom!

1) My copies of documents are probably hearsay and in current form not admissible at trial, except there is a "public records" exemption to hearsay in FRE. I haven't found a good definition of public records if would include copies of these records on file at various Courts etc., or if I have to contact the various courts and try and get certified copies especially the affidavit of Ms A.

2) All the other stuff is still alleged but shows a pattern that supports my argument. I assume the sworn affidavit of Ms A is by far the strongest if I can use it and if I can if needed get a certified copy somehow. Or subpoena Ms A but that may not be practical and I bet she is being contacted by zillions of folks in a similar situation.

3) Even if my copies of the stuff is not admissible at trial my hope is it will be enough to show there are facts in dispute for the purpose of defeating the Motion for Summary Judgment.

If I survive the Summary Judgment it is under mandatory arbitration (AZ requirement met) so at least have more time to try and lean where I stand with all this.

4) Also wonder about Plaintiff just doing a new affidavit with new people. I asked for sanctions which perhaps may help getting a dismissal with prejudice but that is my dream perhaps.

This is virtually the same as the big robo-signing with all 50 States AG's now in massive suit against the major banks but is also the same in the credit card division of the major banks. Just redoing the affidavits does not seem to satisfy the State Attorney Generals since they committed a fraud on the Courts and have been in settlement negotiations for very large penalties related to the same issue with mortgages.

Thanks if any comments.

Edited March 10, 2011 by davephx

[Prosay]

I am doing extensive response to a credit card Plaintiff's Motion for Summary Judgment (AZ) including long Memorandum of Points and Authorities and separate Statement of Facts in Support...

Separately filed Motion to strike Plaintiff's (Original Creditor) affidavit doing the extensive arguments about hearsay, meets neither the business record or account stated rules etc. etc. From lots of research and prior experience seems about a 50/50 shot depending on how a judge views these issues. Also did my own Sworn Statement of Denial.

Have potentially very good situation which have extensively included but would be interest in other views.

The Credit card (Plaintiff) Affidavit is signed by lets call him Mr R. and witnesses by Ms Z.

The head of the credit card litigation team for the Plaintiff (call her Ms A) has filed an affidavit (public record I found on the Internet) which in great detail talks about the "robo-signing" huge piles at a time so totally false affidavits (no personal knowledge as states, never reviews any documents etc) and names Ms Z as one of the notaries the piles are basically sent to but never does she witness as in the same room, the signature on the affidavits. I am slightly confuse that in some States may not have to actually "observe" the signing but that is the minor part.

Ms A filed a whistleblower filing with the SEC (I have a copy on her lawyers letterhead, again public record). The SEC is involved because in addition to preparing affidavits for outside lawyer suits (my case) her dept also prepared for selling blocks or credit card debt ($200 million in specific example cited and 23,000 loans) to investors. Further investigation found in the 23,000 debts sold, 11,472 were missing adequate documentation and nearly 5000 had incorrect balance information.

Ms A files a lawsuit against my Plaintiff, for firing her when she refused to participate in the illegal acts related to the fraudulent affidavits including specifically Mr. R. (and others) I have a copy and included one of her filings that has the details. Public record and on the Internet.

Plaintiff has a long record including of false affidavits also found in Appellate Court decisions which specifically mention "this is not an isolated incident" etc by a judge related to Bankruptcy Court false affidavits of the Plaintiff, due to the no personal knowledge "robo signing" All public records from Courts etc. And has previously been sanctioned by various Courts (don't know in what form).

I have included all of this including copies of the above documents references and as Exhibits in my Separate Statement of Facts, in both my response to Motion to Summary Judgment and my Motion to Strike Affidavit.

AZ follows the Federal Rules of Procedures, Evidence, the same hearsay rules and the big part affidavits have to be "trustworthy". I have cited cases and both the FRE 803(6)(E) and ARS (AZ) 803(8) etc related to having to be trustworthy in order to meet the business record exemption to the hearsay rule. (and must have "first hand knowledge). This seems the key to either account stated or business record suits and the affidavit is central to the cases.

I have also pled for unspecified sanctions for the filing of a untrustworthy or fraudulent affidavit by the Plaintiff.

OK, now my concerns besides that AZ judges seem to be very Plaintiff friendly against defendants in credit card cases, especially when dealing with the original creditor suit, not a collection agency, if anyone might have any comments of wisdom!

1) My copies of documents are probably hearsay and in current form not admissible at trial, except there is a "public records" exemption to hearsay in FRE. I haven't found a good definition of public records if would include copies of these records on file at various Courts etc., or if I have to contact the various courts and try and get certified copies especially the affidavit of Ms A.

2) All the other stuff is still alleged but shows a pattern that supports my argument. I assume the sworn affidavit of Ms A is by far the strongest if I can use it and if I can if needed get a certified copy somehow. Or subpoena Ms A but that may not be practical and I bet she is being contacted by zillions of folks in a similar situation.

3) Even if my copies of the stuff is not admissible at trial my hope is it will be enough to show there are facts in dispute for the purpose of defeating the Motion for Summary Judgment.

If I survive the Summary Judgment it is under mandatory arbitration (AZ requirement met) so at least have more time to try and lean where I stand with all this.

4) Also wonder about Plaintiff just doing a new affidavit with new people. I asked for sanctions which perhaps may help getting a dismissal with prejudice but that is my dream perhaps.

This is virtually the same as the big robo-signing with all 50 States AG's now in massive suit against the major banks but is also the same in the credit card division of the major banks. Just redoing the affidavits does not seem to satisfy the State Attorney Generals since they committed a fraud on the Courts and have been in settlement negotiations for very large penalties related to the same issue with mortgages.

Thanks if any comments.

If in fact the affidavits are fraudulent, you might raise the issue of violation of :

US Code Title 18 Chapter 63 collections ( Mail fraud...fraud and swindles)

This is a felony and subject to 10 years in prison and up to $1000,000.00 fine.

If the suit and affidavits are filed electronically ( fax, E-file, etc.) then this also a felony and constitutes wire fraud under the same code.

Now comes the issue of MALICIOUS PROSECUTION, and committing 'fraud upon the court" IF IN FACT THE ASSERTIONS ARE AS YOU CLAIM.

The complaint to which you allude is against Chase Bank I think.

Something to consider..

Edited March 10, 2011 by Prosay

[davephx]

In the similar mortgage robo-signing mess I believe one Attorney General said were not considering anything criminal just civil.

I don't have time or interest to try and do more other than try and get suit dismissed since the affidavit is signed by the same people named in the various other cases of not doing what they are claiming they are in the affidavits.