Court Tomorrow Answer Complaint Here's What I've Got

[Clementine]

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE xxx JUDICIAL CIRCUIT

xxxxx, ILLINOIS

PORTFOLIO RECOVERY ASSOCIATES LLC

plaintiff Case No. 2011sc0644

V.

ME Defendant

FIRST AMMENDED ANSWERS, DEFENSES AND COUNTERCLAIMS

Defendant, appearing pro se, for its reply to the Complaint of Portfolio Recovery Associates LLC (hereafter “Portfolio”) states as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless they are expressly admitted herein.

Answers

2.Defendant admits they are a resident of xxxxxx County, Illinois

3.The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

4.The Defendant has sufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

5.The Defendant has sufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

6.The Defendant has sufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

Affirmative Defenses

1.Complaint failed to state the basis of the claim.

2.Lack of Standing. The Plaintiff has shown no proof that they are the owners of the alleged account and the real party of interest.

3.Lack of Privity. There is no agreement between the Plaintiff and the Defendant.

4.According to the Illinois Code of Civil Procedure Article II Part I Rule 282 Section (a) “Commencement of Actions. An action on a small claim may be commenced by paying to the clerk of the court the required filing fee and filing a short and simple complaint setting forth (1) plaintiff's name, residence address, and telephone number, (2) defendant's name and place of residence, or place of business or regular employment, and (3) the nature and amount of the plaintiff's claim, giving dates and other relevant information. If the claim is based upon a written instrument, a copy thereof or of so much of it as is relevant must be copied in or attached to the original and all copies of the complaint, unless the plaintiff attaches to the complaint an affidavit stating facts showing that the instrument is unavailable to him. In the complaint the Plaintiff references an agreement. There was not an agreement attached to the complaint, and there was not an affidavit showing that this alleged agreement was not available to him either.

5.Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

6.Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

7.Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

8.Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

9.Unifund CCCR Partners v. Mohammad Shah, Appeal from the Circuit Court of Cook County

We hold that, under section 8b of the Collection Agency Act (225 ILCS No. 1-10-0855

15 425/8b (West 2008)), a collection agency can establish an assignment of accounts receivable for collection purposes through documents attached as exhibits to the plaintiff's complaint where the identification of the accounts transferred, the consideration paid, and the effective date of the transfer of particular accounts are in multiple incorporated documents. However, such documents must be in the form of contracts of assignment or documents that are incorporated by reference into those contracts, rather than in the form of an affidavit. Plaintiff did not include any contracts of assignments or documents from the original creditor concerning this alleged debt. Plaintiff instead included an affidavit from an employee of Portfolio, who has no knowledge of the original creditor's business practices nor any knowledge of the original debt. The affidavit equates to hearsay and should be ruled inadmissible as evidence.

10.Plaintiff fails 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.

11.Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

12.Defendant claims a Failure of Consideration as there has never been any exchange of money or item of value between the Plaintiff and the Defendant.

13.Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

14.The Defendant invokes the Doctrine of Unclean Hands as the defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

15.Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Okay people, this is what I have so far. Any comments or suggestions would be appreciate---especially those from Illinois. I also have a couple of questions. Since in Illinois, I don't have to file a written response, I can just appear and deny, do I have to file afterwards? Also, any kind of motion I file with the court has to be notarized, but do the copies I send to the plaintiff's attorney have to be notarized as well. (this is where Il people are especially helpful). Also looking for anyone else who has gone up against these fools and won as well. Thanks in advance.

[trialhelp]

Make sure you bring several copies, one for plaintiffs lawyerd(i would give them 2), one for court, one for you..etc..

[admin]

Putting the same answer to each question is never a good idea.

It would also be nice to know what was being said in the complaint.

[Clementine]

Putting the same answer to each question is never a good idea.

It would also be nice to know what was being said in the complaint.

Well today I just had to go to court and orally state "admit" or "deny" so I said deny. I have not filed written yet, I believe I have 15 days to do so. In the hallway after the lawyer asked what I denied, so I just told him he would get my written. He was astonished and kind of pissy when I didnt' want to "make a deal." Oh well. but anyway. Here is the complaint

Page 2 Complaint

1. "Now Comes Plaintiff and states as follows:

2. The Defendant is a resident of xxxxxx, Illinois.

3. The Defendant opened a charge account with Capital One Bank, NA promising to make monthly payments as specified in the Agreement for purchases charged to the account.

4. The Plaintiff did take an assignment of said Charge account in goof faith, for value, and in the regular course of business.

5. The Defendant did make purchases and charged same to the account, and there is a balance due and owing $3,5xx.xx. (See Client affidavit as Plaintiff's exhibit 1)

6. The Defendant has failed to make the monthly payments due on the account, whereupon the Plaintiff declared the Defendant to be in default and demands payment of the balance.

Wherefore, the Plaintiff prays for judgement against the Defendant in the amount of $3,5xx.xx plus costs

The only thing attached was an affadavit from an employee of Portfolio.

How would you suggest I change up my answers? They don't even state if this is breach of contract or account stated. Until I figure that out it is kind of hard to procede. I can do a demand for particulars for account stated but not breach of contract I think. The more I read, i feel like the more confused I get. Lawyer man was snotty today, tried to intimidate me, and I just acted like he was crazy if he thought I was going to give him any money. But anyway, all suggestions are welcome, because just about everyone here knows more about this stuff than I do.

Edited March 12, 2011 by Clementine

[BV80]

The following link contains a post that has possible answers to a complaint. You can tweak them to fit your situation. It's the 8th post, I believe. There's also a sample Dismissal.

http://www.creditinfocenter.com/forums/showthread.php?t=252142

[Clementine]

So, here is my answer to their complaint and my affirmative defenses. It's okay to include these in the same document right? Just let me know what you think. As always, I am open to any suggestions.

FIRST AMMENDED ANSWERS, DEFENSES AND COUNTERCLAIMS

Defendant, appearing pro se, for its reply to the Complaint of Portfolio Recovery Associates LLC (hereafter “Portfolio”) states as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless they are expressly admitted herein.

Answers

2.Defendant admits they are a resident of xxxxxxx County, Illinois

3.The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

4.The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

5.The Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, so the Defendant respectfully denies. Defendant demands strict proof thereof.

6.Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

Affirmative Defenses

1.Complaint failed to state the basis of the claim.

2.Lack of Standing. The Plaintiff has shown no proof that they are the owners of the alleged account and the real party of interest.

3.Lack of Privity. There is no agreement between the Plaintiff and the Defendant.

4.According to the Illinois Code of Civil Procedure Article II Part I Rule 282 Section (a) “Commencement of Actions. An action on a small claim may be commenced by paying to the clerk of the court the required filing fee and filing a short and simple complaint setting forth (1) plaintiff's name, residence address, and telephone number, (2) defendant's name and place of residence, or place of business or regular employment, and (3) the nature and amount of the plaintiff's claim, giving dates and other relevant information. If the claim is based upon a written instrument, a copy thereof or of so much of it as is relevant must be copied in or attached to the original and all copies of the complaint, unless the plaintiff attaches to the complaint an affidavit stating facts showing that the instrument is unavailable to him. In the complaint the Plaintiff references an agreement. There was not an agreement, credit card billing statement, or any other information pertaining to this alleged debt/account attached to the complaint, and there was not an affidavit showing that this alleged agreement was not available to them either. Also see “Velocity Investments V. Gregory Alston.”

5.Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

6.Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

7.Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

8.Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

9.Unifund CCCR Partners v. Mohammad Shah, Appeal from the Circuit Court of Cook County

We hold that, under section 8b of the Collection Agency Act (225 ILCS No. 1-10-0855

15 425/8b (West 2008)), a collection agency can establish an assignment of accounts receivable for collection purposes through documents attached as exhibits to the plaintiff's complaint where the identification of the accounts transferred, the consideration paid, and the effective date of the transfer of particular accounts are in multiple incorporated documents. However, such documents must be in the form of contracts of assignment or documents that are incorporated by reference into those contracts, rather than in the form of an affidavit. Plaintiff did not include any contracts of assignments or documents from the original creditor concerning this alleged debt. Plaintiff instead included an affidavit from an employee of Portfolio, who has no knowledge of the original creditor's business practices nor any knowledge of the original debt. The affidavit equates to hearsay and should be ruled inadmissible as evidence.

10.Plaintiff fails 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.

11.Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

12.Defendant claims a Failure of Consideration as there has never been any exchange of money or item of value between the Plaintiff and the Defendant.

13.Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

14.The Defendant invokes the Doctrine of Unclean Hands as the defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

15.Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

The Defendant denies any and all allegations of negligence or other wrongdoing as stated in the Complaint filed herein and will demand strict proof of all allegations in that regard.

Wherefore, the Complaint having been fully answered, the Defendant, xxxxxxx respectfully prays that the Complaint be dismissed, with costs to be adjudged against the Plaintiff, or for such other relief as this Honorable Court may deem just and proper.

[BV80]

Ok...I'll give this a try.

#1 and #10 appear to be the same thing.

#2 - You might want to say something like "Plaintiff has failed to show a chain of custody from ______(OC) to the Plaintiff. Therefore, Plaintiff has failed to show they are the party in interest.

I'm not sure #5 is going to fly. There is usually not a signed contract with a cc company, and it's usually not required in these cases.

I'm not sure about #14 either. How does the Plaintiff have "unclean hands"?

Hopefully some other members will offer opinions.

[Clementine]

Ok...I'll give this a try.

#1 and #10 appear to be the same thing.

#2 - You might want to say something like "Plaintiff has failed to show a chain of custody from ______(OC) to the Plaintiff. Therefore, Plaintiff has failed to show they are the party in interest.

I'm not sure #5 is going to fly. There is usually not a signed contract with a cc company, and it's usually not required in these cases.

I'm not sure about #14 either. How does the Plaintiff have "unclean hands"?

Hopefully some other members will offer opinions.

Thanks BV80, I put everything in there I thought was remotely relatable lol. I had the thought of "throw everything at them and see what sticks" but then I thought about it after you brought up those suggestions. I thought that might anger the court and make me look like a clown that doesn't know what I'm doing, and that would give lawyer man fuel. He is a cocky little man. He actually got a reaction out of my boyfriend yesterday, but not me, I understood his game, that is what he wanted. He wanted to try to intimidate and scare me into giving up and handing over money. B/f didn't understand that at first, when we were walking to the car I explained it to him, should have done that prior to court but I never would have thought the lawyer man would have behaved that way. Oh well. I just didn't want to talk to him about any specifics because I didn't want to screw up and give him anything. I just had to talk to him because the judge said so. I just made sure he had my correct address like the judge said. then when I was walking away he said "something snotty" my b/f replied "with something just as snotty" and then lawyer man said "something snottier". I had to make b/f not say another word. My b/f was pissed. He wanted to wait for him in a dark alley lol. I had to explain to him what was going on and he just played right into lawyer man's hands. Oh well. That was him, this is me. He didn't get the reaction out of the person he wanted one out of.

[BV80]

You handled yourself very well.

He wanted to wait for him in a dark alley lol.

I'm sure your b/f is not the first that's wanted to do that.

[Clementine]

You handled yourself very well.

I'm sure your b/f is not the first that's wanted to do that.

So I guess I need opinions on what I need to do after I file my written, when I file it I'm also thinking about demanding a jury, it has to be done at this time. It's another 13 bucks but it's worth it to make lawyer man upset lol. I am wodering if I should do a demand for bill of particulars, since this is different than discovery I think I can do it without leave of court, to ask for leave of court it's another 61 bucks if i get it i can file for motion for discovery another 61 bucks (this is crazy i know) all motions are 61 i'm trying to do everything I need to do without running out of money or should I just file my motion to dismiss? Here it is.

[Clementine]

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT

xxxxxxxx COUNTY, ILLINOIS

PORTFOLIO RECOVERY SERVICES LLC

)

Plaintiff. ) Case No. 2011SC0644

v. ) Amt. Claimed: xxxx plus costs.

)

Me )

)

Defendant )

MOTION TO DISMISS

Now comes defendant, Me, pro se., and hereby moves this Honorable Court pursuant to Illinois Code of Civil Procedure Rule 2-615 to strike the affidavit and dismiss the complaint filed by plaintiff in the above captioned cause. A copy of the Complaint is attached hereto.

In support of this motion, defendant states as follows:

Plaintiff filed this action claiming that $3,xxxx is due from defendant on a purported charge account, originally held with Capital One.

The complaint does not set forth a cause of action for either an account stated or a breach of contract, as demonstrated below.

The Complaint Fails To Establish The Existence Of A Contract

If this is a complaint for breach of contract, it should be dismissed for the following reasons:

In violation of Section 2-606 of the Illinois Code of Civil Procedure, no contract is attached to the complaint, nor does the complaint state that no contract is available and explain its absence.

The complaint alleges that plaintiff “purchased” the “account,” but no assignment is attached, nor is there any explanation for its absence.

Instead of account agreements and assignments, plaintiff attaches a meaningless affidavit purporting to state that the defendant owes a sum of money. The affiant is identified under the title “Custodian of Records” for Portfolio Recovery Associates LLC.

Plaintiff has no application, agreement, or transactional documents bearing the defendant’s signature, and alleges no facts in support of the alleged agreement. In fact, plaintiff’s complaint is devoid of anything manifesting the defendant’s actual agreement to any terms or amount due related to this alleged account.

In order to comply with The Truth in Lending Act (TILA), 15 U.S.C. § 1642, the original lender must have a signed request or application, or in absence of such writing, there must be a record detailing the date and circumstances of the request or application for credit. 15 U.S.C. § 1642. The plaintiff’s complaint includes none of these requirements.

Further, under federal law, “n any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.” 15 U.S.C. §§ 1643(.

The unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action. Pollack v. Marathon Oil Co., 34 Ill. App.3d 861, 341 N.E.2d 101 (5th Dist. 1976). Here, plaintiff alleges no facts supporting a claim for breach of contract, and therefore, the complaint should be dismissed.

[Clementine]

The Complaint Does Not Allege The Elements of Account Stated

If this is complaint for the account stated, it should be dismissed for the following reasons:

A cause of action for an “account stated” must allege four elements: (a) transactions of a monetary character involving the parties to the action; ( the existence of accounts embodying such monetary transaction; © an agreement by the parties to such transactions that all items of such accounts are true and that the balance is correct; and (d) a promise to pay such balance. Canadian Ace Brewing Co. v. Swiftsure Beer Serv. Co., 17 Ill.App.2d 54, 149 N.E.2d 447 (1st Dist. 1958); O’Neill v. Reamon, 335 Ill.App. 327, 81 N.E.2d 749 (2nd Dist. 1948).

Plaintiff does not allege that it contacted the defendant at any time in regards to this purported debt, or that any agreement was reached as to the balance allegedly due. Instead, plaintiff merely makes the conclusory allegation that the defendant is “in default” and an amount is allegedly due.

Plaintiff has failed to plead: (a) that there was any agreement between the parties regarding accounts representing previous transactions; ( that there was an agreement that the items in an account were true; © that there was an agreement that the balance struck was correct; and (d) that there was a promise to pay such balance. “In an action for an account stated the complaint should allege all the material facts on which the liability of the defendant depends.” 1 I.L.P. Account Stated § 6 (1988). See W.E. Erickson Construction Inc. v. Congress-Kenilworth Corp., 132 Ill. App.3d 260, 268, 477 N.E.2d 513, 519 (1st Dist. 1985); and see Allied Wire Products, Inc. v. Marketing Techniques, Inc., 99 Ill. App.3d 29, 40, 424 N.E.2d 1288, 1296 (1st Dist. 1981).

Just as the unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action, the bare allegation that an account is in default with a balance due does not adequately plead an account stated claim. “An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for payment of such balance.” LaGrange Metal Products v. Pettibone Mulliken Corp., 106 Ill. App.3d 1046, 1053, 436 N.E.2d 645, 651 (1st Dist. 1983) (“The meeting of the parties’ minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto.”); See Palisades Collection LLC v. Haque, NYS (Queens County Civil Court, April 14, 2006). Here, there have been no previous transactions between plaintiff and defendant, and no subsequent agreement as to the correctness of the account.

For the foregoing reasons, the complaint fails to state a cause of action for account stated. The complaint is therefore deficient at law and should be dismissed.

Plaintiff’s Affidavit Is Incompetent

Finally, the affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons.

Plaintiff’s complaint relies exclusively on an affidavit executed by employee David D. Sage, referred to as a “Custodian of Records” of Portfolio Recovery Associates LLC. The affidavit claims that as such, “he is authorized to make statements, representations, and averments herein.” Plaintiff Exhibit 1. 1. However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish her knowledge regarding the manner or methods of the plaintiff’s business dealings. It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based. The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant. Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” Outboard Marine Corp. v. Liberty Mutual Ins. Co., supra.

The affiant must have personal knowledge of the facts supporting the amount of the claim, i.e., how the original creditor’s business records were created and maintained, the entire account history, and how the claimed balance was calculated as to principal and interest. Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007).

Plaintiff’s affidavit does not attach or suggest that plaintiff possess the business records of its assignor, nor could plaintiff’s employee competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor, if they did in fact exist. Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa, supra; Cole Taylor Bank v. Corrigan, 230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd Dist. 1992); Champaign Nat’l Bank v. Babcock, 273 Ill. App.3d 292, 298, 652 N.E.2d 848 (4th Dist. 1995) (affidavit allowed where affiant was personally familiar with band’s loan files, ledgers and records, and affidavit itemized payments made, interest charges, and principal balances from the date of inception); See also, In re Vee Vinhnee, 2005 WL 3609376 (BAP 9th Cir. 2005) (normal evidentiary foundation must be established for admission of business computer records, including familiarity with the way records are maintained, recognizing that computer records are not necessarily or automatically accurate); C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 139 (So. Dist. 2004) (records submitted by assignee of credit card company were inadmissible as business records because custodian of assignee served only as conduit in the flow of records, and was unable to attest to the identity and mode of preparation of records originally created by credit card company); Citibank v. Martin, 807 N.Y.S.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable, even if the defendant defaults,” and must show principal balances and additional charges from the date of inception).Palisades Collection, LLC v. Gonzalez, surpa.

Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent. Instead the actual records must be introduced after a proper foundation is provided. Apa, supra; Pell v. Victor J. Andrew High School, 123 Ill. App.3d 423, 462 N.E.2d 858, 866 (1st Dist. 2984) (letter from corporation A to corporation B is hearsay, and is thereby inadmissible as a business record of corporation B, stating that “just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business”); Benford v. Chicago Transit Authority, 9 Ill. App.3d 875, 877-878 (1st Dist. 1973); Cole Taylor Bank v. Corrigan, supra; Champaign Nat’l Bank v. Babcock, supra; C & W Asset Acquisition, supra; LLC v. Somogyl, supra. It is the business records that constitute the evidence, not the testimony of the witness referring to them. See In re A.B., 308 Ill.App.3d 227, 719, 719 N.E.2d 348 (2nd Dist. 1999).

The court must disregard unsupported, conclusory statements in an affidavit. Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d 961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a court will disregard all conclusions in an affidavit).

Because the sole basis of plaintiff’s claim, including the balance allegedly due and the interest rate accruing, is an inadmissible affidavit, the affidavit should be stricken in its entirety.

Therefore, plaintiff has not established a claim for either breach of contract or for an account stated, and the complaint should thereby be dismissed with prejudice.

WHEREFORE, Defendant prays that this Honorable Court strike plaintiff’s affidavit in its entirety, and dismiss Plaintiff’s complaint with prejudice.

Respectfully submitted,

___________________

Me

[fightemdontfold]

As for asking for a jury, how does that work in a civil case? Do you have to convince a majority of the jury to win or does the defendant win if only one jury is not convinced of the defendant's guilt. I would probably prefer a jury trial as well if all you have to do is convince one juror that the account alleged in the complaint is not mine.

[VADebtor]

As for asking for a jury, how does that work in a civil case? Do you have to convince a majority of the jury to win or does the defendant win if only one jury is not convinced of the defendant's guilt. I would probably prefer a jury trial as well if all you have to do is convince one juror that the account alleged in the complaint is not mine.

Only criminal cases require a unanimous verdict against the defendant - civil is generally a majority.

[Clementine]

Only criminal cases require a unanimous verdict against the defendant - civil is generally a majority.

yes i'd have to get 4 of 6 not to believe him or 7 of 12 i get to choose 6 or 12

[fightemdontfold]

Kind of a dicey proposition, have you had any chance to gauge whether the judge that would hear the case is consumer friendly or whether they just seem to be a rubber stamp for the JDB's. You just never know with juries, but I would definatly take my chances with a jury if the judge conducted things in a rubber stamp type manner.

I guess you have no time to observe the judge???

[Clementine]

Kind of a dicey proposition, have you had any chance to gauge whether the judge that would hear the case is consumer friendly or whether they just seem to be a rubber stamp for the JDB's. You just never know with juries, but I would definatly take my chances with a jury if the judge conducted things in a rubber stamp type manner.

I guess you have no time to observe the judge???

Can't tell. He just gave the "speech" before he started calling people up yesterday. He told the people who were there on eviction charges that their moveout date would be next friday. Their trial would be on tues./and if they lost they would still have to move out next friday. He told the rest of us that denied that the lawyer would send us the stuff telling us our court date. He told us that we were more than welcome to get an attorney and if we decided to represent ourselves that we would be going against a lawyer, and while he understands that while we're not professional that he has to be unbiased. He was actually really smiley and nice to everyone. Said good afternoon and smiled (even though he was sick) he was actually quite pleasant and laid back.

[tuekee]

I have been, for about a week, trying to get an answer together, but seem to be having the same problems. I don't exactly know what to try other than just following some of the directions that others have done. I am worried that, while the first contact was made through the summons and I do not believe all the information to be correct, I am going to do something wrong in the actual response and going to be ruled against.

[Clementine]

I have been, for about a week, trying to get an answer together, but seem to be having the same problems. I don't exactly know what to try other than just following some of the directions that others have done. I am worried that, while the first contact was made through the summons and I do not believe all the information to be correct, I am going to do something wrong in the actual response and going to be ruled against.

That's what I'm afraid of. I don't want to mess up procedure and lose that way. Especially when they haven't shown any evidence, they shouldn't win just b/c they can afford a lawyer who knows procedure, they should only win on evidence!

[Clementine]

What should I write at the bottom of the documents to make it a sworn affadavit? I know I should have it notorized as well, but what should i put? I know it has to have something or else lawyer man can throw a fit and file a motion against me.

[Clementine]

I am trying to get others' opininions on whether I should move to dismiss first, or if I should file a motion asking for leave of court to conduct discovery. Also, I can't figure out if I need to ask for leave of court to file any and all motions. If anyone knows what I need to do in Illinois I would appreciate it. I have read and re-read the Il rules of civil procedure, but I can't figure it out. I have dyslexia and legalese is a foreign language to me, so maybe I am just missing it somewhere. Thanks in advance for any help.

[BV80]

What should I write at the bottom of the documents to make it a sworn affadavit? I know I should have it notorized as well, but what should i put?

See if your court has downloadable forms online. They may have a form for a simple affidavit. If not, since you seem really nervous about his, you can a contact or go see a notary (there should be one at your bank) and he/she can tell you what to write. In an affidavit, you're simply attesting that everything you've written, provided, or whatever is true and accurate to the best of your knowledge.

[BV80]

I am trying to get others' opininions on whether I should move to dismiss first, or if I should file a motion asking for leave of court to conduct discovery. Also, I can't figure out if I need to ask for leave of court to file any and all motions. If anyone knows what I need to do in Illinois I would appreciate it. I have read and re-read the Il rules of civil procedure, but I can't figure it out. I have dyslexia and legalese is a foreign language to me, so maybe I am just missing it somewhere. Thanks in advance for any help.

You could possibly file a motion to dismiss, but it might depend on the judge as to whether he would believe it's too early since there's been no discovery process.

I looked at the Rules of Civil Procedure for Trial Court at the Illinois Supreme Court website regarding discovery. If I should be looking at something else, let me know.

Rule 201. General Discovery Provisions

(a) Discovery Methods.

Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons. Duplication of discovery methods to obtain the same information should be avoided.

There is nothing there that says you have to ask the court's permissions. Just to make sure, you could contact the clerk of court and ask if you must get permission from the court.

Edited March 14, 2011 by BV80

[Clementine]

You could possibly file a motion to dismiss, but it might depend on the judge as to whether he would believe it's too early since there's been no discovery process.

I looked at the Rules of Civil Procedure for Trial Court at the Illinois Supreme Court website regarding discovery. If I should be looking at something else, let me know.

Rule 201. General Discovery Provisions

(a) Discovery Methods.

Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents, objects or tangible things, inspection of real estate, requests to admit and physical and mental examination of persons. Duplication of discovery methods to obtain the same information should be avoided.

There is nothing there that says you have to ask the court's permissions. Just to make sure, you could contact the clerk of court and ask if you must get permission from the court.

Here is what I got from IL Supreme Court (Small Claims Cases)Rule 287. Depositions, Discovery and Motions

(a) No depositions shall be taken or interrogatories or other discovery proceeding or requests to admit be used prior to trial in small claims except by leave of court.

( Motions. Except as provided in sections 2--619 and 2--1001 of the Code of Civil Procedure, no motion shall be filed in small claims cases, without prior leave of court.

Then I have to go to the rules of Civil Procedure to look that up, and can't make heads or tails of it for some reason.

(735 ILCS 5/2‑619) (from Ch. 110, par. 2‑619)

Sec. 2‑619. Involuntary dismissal based upon certain defects or defenses. (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:

(1) That the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.

(2) That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued.

(3) That there is another action pending between the same parties for the same cause.

(4) That the cause of action is barred by a prior judgment.

(5) That the action was not commenced within the time limited by law.

(6) That the claim set forth in the plaintiff's pleading has been released, satisfied of record, or discharged in bankruptcy.

(7) That the claim asserted is unenforceable under the provisions of the Statute of Frauds.

(8) That the claim asserted against defendant is unenforceable because of his or her minority or other disability.

(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.

( A similar motion may be made by any other party against whom a claim is asserted.

© If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.

(d) The raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; and a failure to raise any of them by motion does not preclude raising them by answer.

(e) Pleading over after denial by the court of a motion under this Section is not a waiver of any error in the decision denying the motion.

(f) The form and contents of and procedure relating to affidavits under this Section shall be as provided by rule.

(Source: P.A. 83‑707.)

(735 ILCS 5/2‑619.1) (from Ch. 110, par. 2‑619.1)

Sec. 2‑619.1. Combined motions. Motions with respect to pleadings under Section 2‑615, motions for involuntary dismissal or other relief under Section 2‑619, and motions for summary judgment under Section 2‑1005 may be filed together as a single motion in any combination. A combined motion, however, shall be in parts. Each part shall be limited to and shall specify that it is made under one of Sections 2‑615, 2‑619, or 2‑1005. Each part shall also clearly show the points or grounds relied upon under the Section upon which it is based.

(Source: P.A. 86‑1156.)

(735 ILCS 5/2‑1001) (from Ch. 110, par. 2‑1001)

Sec. 2‑1001. Substitution of judge.

(a) A substitution of judge in any civil action may be had in the following situations:

(1) Involvement of judge. When the judge is a party

or interested in the action, or his or her testimony is material to either of the parties to the action, or he or she is related to or has been counsel for any party in regard to the matter in controversy. In any such situation a substitution of judge may be awarded by the court with or without the application of either party.

(2) Substitution as of right. When a party timely

exercises his or her right to a substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one

substitution of judge without cause as a matter of right.

(ii) An application for substitution of judge as

of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.

(iii) If any party has not entered an appearance

in the case and has not been found in default, rulings in the case by the judge on any substantial issue before the party's appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party.

(3) Substitution for cause. When cause exists.

(i) Each party shall be entitled to a

substitution or substitutions of judge for cause.

(ii) Every application for substitution of judge

for cause shall be made by petition, setting forth the specific cause for substitution and praying a substitution of judge. The petition shall be verified by the affidavit of the applicant.

(iii) Upon the filing of a petition for

substitution of judge for cause, a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition. The judge named in the petition need not testify but may submit an affidavit if the judge wishes. If the petition is allowed, the case shall be assigned to a judge not named in the petition. If the petition is denied, the case shall be assigned back to the judge named in the petition.

(4) Substitution in contempt proceedings. When any

defendant in a proceeding for contempt arising from an attack upon the character or conduct of a judge occurring otherwise than in open court, and the proceeding is pending before the judge whose character or conduct was impugned, fears that he or she will not receive a fair and impartial trial before that judge. In any such situation the application shall be by petition, verified by the applicant, and shall be filed before the trial of the contempt proceeding.

( An application for substitution of judge may be made to the court in which the case is pending, reasonable notice of the application having been given to the adverse party or his or her attorney.

© When a substitution of judge is granted, the case may be assigned to some other judge in the same county, or in some other convenient county, to which there is no valid objection. If the case is assigned to a judge in some other county, the provisions of subsections (f) through (m) of Section 2‑1001.5 shall apply.

(Source: P.A. 94‑531, eff. 1‑1‑06.)

Edited March 14, 2011 by Clementine

[Clementine]

You could possibly file a motion to dismiss, but it might depend on the judge as to whether he would believe it's too early since there's been no discovery process.

That's true, but since there isn't really supposed to be discovery, would it really be too early? lol

It's crazy here, i have to file for leave then file for motion, so each motion (if I get it) cost $122. It was already $123 to appear the other day. I thought this was supposed to be simpler and easier, It can get very expensive.

I wonder if I could file for leave and ask for several things at one time hmmm... that way there would be one hearing for leave to cover all things, saves the court time, they may appreciate that.