Motion for Summary Judgment in Arizona

[sweet1710]

Hello everybody,

I was sued by CACH, LLC by their attorney Gurstel Chargo, PA from my old credit card from Bank of America. I never applied nor signed any paperworks to the OC (Bank of America), because we have a checking account with them before, they just gave me a line of credit (it was really my fault for using it). After I got laid off form my job in 2008, I become delinquent on my payment started June 2008, and by the time I get a job it already was charged off. I do not want it to happened but I cannot do much, my husband salary is not enough for us. I sent them a DV twice from the address that I get from my Credit Report, but has been returned back due to an invalid address (could I use this as my Exhibit?).

By the way here's my case:

1. I was sued by CACH, LLC through their so-called attorney Gurstel Chargo, PA and received a summon on August 03, 2010 and I answered the summon and deny everything on August 4, 2010. Too bad that I was freak out because that was my first summon and I never got a chance to filed a counterclaim

2. I receive a Discovery request from the Plaintiff on September 2, 2010 and I answered it all by September 20, 2010.

3. I sent them my Discovery request on September 21, 2010. However, they only gave me their General Objection to answer to my Discovery Request and their Admission on October 14, 2010.

4. I sent a Motion to Dismiss with prejudice on december 6, 2010, but got denied by the judge.

5. Our case has been put to inactive on March 15, 2011 pursuant to Rule 38.1 d) & (e).

6. On April 21, 2011, I received an Motion for Summary Judgment from the Plaintiff. I called the Court Clerk yesterday, April 25, 2011 and she told me that they haven't received any MSJ from the Plaintiff. Just to make sure, I search the case online and I saw that the Plaintiff called today, regarding their MSJ, but the note said that NO MSJ has been received.

7. I really need a big help on this one. I really do not know what I am going to do. I am about to have a baby in a month and I do not know if I could make it to the Court or trial.

Here's their Motion and Affidavit:

MOTION:

IN THE PIMA CONSOLIDATED JUSTICE COURT OF TEH STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

CACH, LLC PLAINTIFF

vs.

ME AND MY SPOUSE

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

COMES NOW the PLaintiff by and through its attorneys, Gurstel Chargo PA, and pursuant to Rule 56(a) of the Arizona Rules of Civil Procedure, moves this Court to enter Summary Judgment in favor of the Plaintiff, on the grounds and for the reason that there is no genuine issue of material fact and Plaintiff is entitled to the entry of judgment as a matter of law. This motion is supported by a separate Statement of Facts submitted herewith, the accompanying Memorandum of Points and Authorities, and the pleadings of record herein, which are incorporated herein by this reference.

MEMORANDUM POINTS OF AUTHORITY

I. STANDARD FOR SUMMARY JUDGMENT

The Plaintiff recognizes that in moving for summary judgment, they have the burden of providing the absence of genuine issue as to the material facts and that they are entitled to judgment as a matter of law. Nat'l Housing Indus., Inc. v. E.A. Jones Developing Co., 118 Ariz. 374, 576 P.2d 1374 (App.1978). However, once the Plaintiff has made a prima facie case, the burden shifts to the opposing party to produce evidence to show that there is an issue, . Where facts set forth in the MOtion for Summary Judgment are not controverted by the opposing party, they are presumed to be true. Watts v. Hogan, 111 Ariz. 563, 534 P.2d 741 (1975); W. j. Kroeger Co. v. Travelers Indemn. Co., 112 Ariz. 285, 541 P.2d 385 (1975). The party opposing a Motion for Summary Judgment cannot rest on mere allegation. Evans v. Bernhard, 23 Ariz. App. 413, 533 P.2d 721 (1975).

II APPLICATION AND ARGUMENT

A. Defendant 'stated account' signifies an agreed balance between the parties to a settlement; that is, that they have agreed after an investigation of their accounts that a certain balance is due from one another. But whether the agreement was express or implied is immaterial so long as it actual; the agreement itself, and not the manner of reaching it, being the important consideration." Chittenden & Eastman Co. v. Leader Furniture Co., 23 Ariz. 93, 94-95, 201 P. 843, 844 (1921). :where it is shown that the paries have adjusted and settled their accounts by striking balance, the amount thereof and acknowledge as due, and the law implies a promies to pay it." Id. at 96, at 844.

If the account is rendered by one party, and the other party, upon examining it, makes no objection, an inference might legitimately be drawn that he was satisfied with it, as rendered. Such omission to object would therefore be legitimate evidence in proving an account stated. Trimble Cattle Co. v. Henry & Horne, 122 Ariz. 44, 47, 592 P.2d 1311, 1314 (1979).

Evidence of the account stated and the parties' agreement is the Defendant's use of the account as evidenced by the monthly billing statements on the account (See Plaintiff's SOF #3 and Exhibit "A") attached hereto and incorporated herein by this reference). "The issuance of a credit [account] is but an offer to extend a line of open account credit...use of the [account] by the offeree makes a contract between the parties according to this terms..." Novak v. Cities of Service Oil Co., 149 N.J. Super . 542, 547-548 (law Div. 1977), City Stores Co. v. Henderson, 116 Ga. App. 114, 156 S.E. 2d 818 (App. Ct. 1967). "... it is use of the credit [account], and not the issuance, that create an enforceable contract..." Bank of America v. Jarcyzk, 268 B.R. 17, 22 (W.D.N.Y. 2001), Garber v. Harris Trust & Sav. Bank, 432 N.E. 2d 1309, 104 III.App. 3d 675, 60 III.Dec.410 (III.App.1982). The Defendant requested the issuance of the account as evidence by the credit application.

The Defendant (s) used such credit to purchase goods and services. (See Plaintiff's SOF #2, Exhibit "A") Plaintiff and/or Bank of America, N.A. sent regular monthly statements on the account to Defendant(s). (See Plaintiff's SOF#3, Exhibit "A") Those statements show Defendant(s) obtained extensions of credit on the account, and that payments were made on the account. (See Plaintiff's SOF #3, Exhibit "A") At no time did Defendant(s) communicate to Plaintiff and/or Bank of America, N.A. either orally or in writing, of any unresolved dispute with specific charge which appeared on the monthly billing statements mailed to Defendant(s), thereby establishing an an account stated or an open account between Plaintiff and/or Bank of America, N.A. and Defendant(s). (See Plaintiff's SOF#3, Exhibit"A")

Upon the account becoming delinquent, Bank of America, N.A. sold and assigned all of its rights and obligations of the credit account to Plaintiff. Plaintiff is therefore the holder in due course of the account.

B. FEDERAL LAW REQUIRES CONSUMERS TO DISPUTE WITHIN SIXTY DAYS

Pursuant to the terms and condition of the credit card agreement, and pursuant to 15 U.S.C. Sec. 1666 and Regulation Z Subsection 226.13((1) of the Truth Lending Act, a debtor must dispute any billing errors within 60 days from receipt of disputed charges by notifying the creditor in writing of billing errors preserve debtor's right. If the Defendant fails to object in writing pursuant to their right to dispute teh bill, s/he has waived the right todispute the balance due. Minskoff v. American Express, 90 F.2d 703, (2nd Cir. 1996).

"Once a cardholder has established a credit card account, and provided that the card issuer is in compliance with the billing statement disclosure requirements of 15 U.S.C. 1637, the cardholder is in a superior position to determine whether the charges reflected on his credit card billing statements are legitimate. A cardholder's failure to examine credit card statements that would reveal fraudulent use of the card constitute a negligent omission that creates apparent authority for charges that would otherwise be considered unauthorized under TILA." See Transamerica Ins. Co. v. Standard Oil Co., 325 N.W. 2d 210, 215 (N.D. 1982)

This negligent omission to dispute any charges in timely manner estoppes the Defendant form disputing the charges at a later date. Thus, Defendant's course of performance using the card and/or making partial payments demonstrated a willingness to repay the obligation. The Defendant is aware of this duty to review because it is set forth in both the Terms and Conditions and printed on the reverse side of every credit account statement.

C. DEFENDANT IS LIABLE FOR THE DEBT INCURRED

Defendant provided general denials to Plaintiff's complain, but has provided any evidence to show that she does not owe this debt (See Answer in Court file). by use of the credit card account, Defendant agreed to the terms and conditions of the agreement between the parties including the charging of fees and interest. (See Plaintiff SOF#3, Exhibit "A") Defendant has also failed to dispute any specific charge, fee, and/or interest amount on any of the billing statements. (See Plaintiff SOF#3, Exhibit "A") Defendant's failure to dispute specific charges on the billing statements resulted in an account stated between Plaintiff and/or Bank of America, N.A. and Defendant. Furthermore, Defendant failed to dispute charges as required by federal law and therefore has waived the right to dispute the charges. The Defendant has consented to the accuracy of the credit account based on the Defendant's failure to timely dispute any charges. A mere statement from the Defendant that she believes the fees and charges are not fair does not mean the Defendant does not owe this debt. Without any evidence from the Defendant(s) to show that this debt is not owed by Defendant(s), there is no dispute as to any issue of material fact.

[sweet1710]

III. CONCLUSION

For the foregoing reasons and based upon the attached Statement Facts, the Plaintiff's Motion for Summary Judgment should be granted and a judgement entered against the Defendant in the amount of $5,141.11, plus interest in the amount of $1,863.44 from February 7, 2009, plus costs of filing lawsuit and service totaling $247.00.

Dated this 21day of April 18, 2011

Gurstel Chargo, PA

Jennifer E. Wiedle (Before their attorney was Andrew J. Westle)

HERE'S THERE AFFIDAVIT:

AFFIDAVIT OF CLAIM

AND CERTIFICATION OF DEBT

STATE OF NORTH CAROLINA

CITY OF GREENSBORO

Bank of America, NA

Account Holder : My Name

Account number: xxxxxxxxx

xxxxxxxxx

The undersigned, Ms. Bank Employee, being duly sworn, states and deposes as follows:

1. The Affiant is employed by Bank of America, NA successor in interest in Fleet Bank, MNBA Bank, Nations Bank ("Bank of America") in the position of Bank Officer and is duly authorized to make this affidavit.

2. That the original contract in this matter has been destroyed, or no loner accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court to review.

3. That the statements made in this Affidavit are based on the computerized and hard copy books and records of Bank of America, which are maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded.

4. That the account number xxxxxxxx (this one is my husband old savings account number from Bank of America) also known as xxxxxxxx also as was opened on 3/2/2007 by MY NAME whose social security number is xxx-xxx-xxxx. - How could a savings account became a credit card? That is my big question.

5. That there is due and payable from MY NAME as of 1/30.2009 the sum of $5,141.11 withstanding legally chargeable post charge-off interest, pursuant to the terms of the card member agreement with Bank of America.

6. That said agreement and account was, on 1/3/2009 sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise, or satisfaction of the said claim.

7. That as result of the sale of said account, CACH, LLC and/or its authorized agent, has complete authority to settle, adjust compromise and satisfy same that Bank of America has no further interest in this account for any purpose.

8. That to the best of Affiant knowledge, information and belief, there were no uncredited payments, just counterclaims or offsets against said debt when sold.

FURTHER AFFIANT SAYETH NOT.

DATED THIS January 15, 2010

Bank of America, NA

Here's my questions:

1. Could I file a Motion to Strike with this affidavit, since they posted my social security number without my knowledge, and since the Plaintiff did not answer my Discovery to Produce Documents that I sent to them on October 2010?

2. Why is it that in their statement in LETTER C, Bank of America is always attached to Plaintiff? Can I oppose this?

3. How can I cross-over their MSJ?

4. Do I need to file my Motion to Oppose Summary Judgment even if their Motion in not in the Court yet? (I need a big help on this one).

Any kind of help is very much appreciated. Thank you all for your time reading my long problem. Thank you very much!!!!

[BV80]

What evidence did they provide? Bill of sale? Statements? What did you request in discovery?

[sweet1710]

Hello BV80!

NO, nothing, they did not sent any documents on my Discovery Request. I request the Bill of Sale, a sign agreement between me and the Bank of America and agreement to them as well, but NONE. They just sent me their Admission. And then in their MSJ they included a copy of my CC bill from June to September of 2008.

Here's their reply with my Request for Admission:

PLAINTIFF'S RESPONSE TO DEFENDANT"S REQUEST FOR ADMISSIONS

GENERAL OBJECTIONS TO ANSWER TO DISCOVERY:

REQUEST FOR ADMISSIONS:

All responses are made without in any waiving or intending to waive but on the contrary intending to preserve and preserving:

1. All questions as to foundation, relevance, materiality, privilege and admissibility in evidence for any purpose in any subsequent proceeding, or at the trial of this or any other action;

2. The right to object to the use of said documents or subject matter thereof, in any subsequent proceeding or at trial of this or any other action;

3. The right to object on any ground at any time to demand further responses to these or any other requests for production of documents or other discovery procedures involving or relating to the documents produced herewith;

4. The right at any time to revise, correct, add to, or supplement the responses made herein and

5. Discovery is continuing on the matters requested herein. Plaintiff will supplement its responses provided herewith to the extent required by Arizona Rules of Civil Procedure.

Subject to the foregoing objections, Plaintiff, for its Responses too Defendant's Request for aAdmissions, states and alleges as follows:

DEFENDANT'S REQUEST NO.1: Admit that Plaintiff has not provided Defendant with a copy of contract signed by Defendant.

PLAINTIFF'S RESPONSE: Admit at this time Plaintiff does not have in its possession a revolving credit agreement singed by defendant, however, discovery is ongoing.

DEFENDANT'S REQUEST.2: Admit that the Plaintiff failed to validate the debt that the Defendant was requesting. - I have a proof on this one that they never answer my DV.

PLAINTIFF'S RESPONSE: Deny

DEFENDANT'S REQUEST NO.3: Admit that the Plaintiff do not have a contract, agreement, assignment, or other means demonstrating that CACH, LLC had the authority and capacity, and was legally entitled to collect on the alleged debt form Account number.

PLAINTIFF'S RESPONSE:: Deny

DEFENDANT'S REQUEST NO.4: Admit that the Plaintiff failed to send any letter(s) to Defendant demonstrating an attempt to collect on the alleged debt.

PLAINTIFF'S RESPONSE: Deny

DEFENDANT'S REQUEST NO.5: Admit that Plaintiff is not licensed and authorized to solicit the right to collect or to receive payment for the claim of another in the State of Arizona.

PLAINTIFF'S RESPONSE: Deny on the basis of relevance.

DEFENDANT'S REQUEST NO.6: Admit that the Plaintiff is not licensed to collect debt in the State of Arizona and has no=t procured a bond as required by the State of Arizona.

PLAINTIFF'S RESPONSE: Deny on the basis of relevance.

DEFENDANT'S REQUEST NO.7: Admit that the Plaintiff do not have an itemized statement or credit card statements from Account number that demonstrate how the alleged amount of $5,141.11 was calculated.

PLAINTIFF'S RESPONSE: Deny

DEFENDANT'S REQUEST NO.8: Admit that the Plaintiff do not have any written communication, received by the Plaintiff and/or Plaintiff's attorney form the Defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as Plaintiff's and/or attorney accessing of Defendant's credit report(s).

PLAINTIFF'S RESPONSE: Deny

DEFENDANT'S REQUEST NO.9: Admit there were no prior transactions between Plaintiff and Defendant.

PLAINTIFF'S RESPONSE: Deny

DEFENDANT REQUEST NO. 10: Admit that Plaintiff has not provided Defendant with copies of bills of sale establishing its ownership of the account. - NONE!!!

PLAINTIFF'S RESPONSE: Deny - this is really BS of them.

DEFENDANT'S REQUEST NO. 11: Admit that Plaintiff is not a proper party in this action.

PLAINTIFF'S RESPONSE: Deny

- Could I still be able to sent a Motion to Compel a documents, since most of their answer about documents proving that they have it with them?

Thanks guys!

[BV80]

What you posted is a Request for Admissions. Did you send a Request for Production of Documents?

[sweet1710]

Yes, I also did. I just can't pull out right now the copy of the paper that I sent to them. But I will post it as soon I find it.

[BV80]

Yes, I also did. I just can't pull out right now the copy of the paper that I sent to them. But I will post it as soon I find it.

Read your court's Rules of Civil Procedure. They should tell you if there's a time limit for filing a Motion to Compel. I wouldn't think there is, but your state laws could be different from mine. Also you might need to file your motion before they file their MSJ. Hopefully your rules will tell you that, as well.

[sweet1710]

Here's what I got form Arizona Rules of Civil Procedure:

6 A.R.S. Rules of Civil Procedure, Rule 37(a)

Arizona Revised Statutes Annotated Currentness

Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)

V. Depositions and Discovery

Rule 37. Failure to Make Disclosure or Discovery; Sanctions (Refs & Annos)

Best Section Begin

Rule 37(a). Search Term Begin Motion Search Term End for Order Search Term Begin Compelling Search Term End Disclosure or Discovery

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order Search Term Begin compelling Search Term End disclosure or discovery as follows:

Best Section End

(1) Appropriate court. An application for an order to a party may be made to the court in the county in which the action is pending, or, in matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a person who is not a party shall be made to the court in the county where the discovery is being, or is to be, taken.

(2) Search Term Begin Motion Search Term End .

(A) If a party fails to make a disclosure required by Rule 26.1, any other party may move to Search Term Begin compel Search Term End disclosure and for appropriate sanctions.

( If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30((6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order Search Term Begin compelling Search Term End an answer, or a designation, or an order Search Term Begin compelling Search Term End inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

© No Search Term Begin motion Search Term End brought under this Rule 37 will be considered or scheduled unless a separate statement of moving counsel is attached thereto certifying that, after personal consultation and good faith efforts to do so, counsel have been unable to satisfactorily resolve the matter.

(3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.

(4) Expenses and Sanctions.

(A) If the Search Term Begin motion Search Term End is granted or if the disclosure or requested discovery is provided after the Search Term Begin motion Search Term End was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the Search Term Begin motion Search Term End or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the Search Term Begin motion Search Term End , including attorney's fees, unless the court finds that the Search Term Begin motion Search Term End was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.

( If the Search Term Begin motion Search Term End is denied, the court may enter any protective order authorized under Rule 26© and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the Search Term Begin motion Search Term End or both of them to pay to the party or deponent who opposed the Search Term Begin motion Search Term End the reasonable expenses incurred in opposing the Search Term Begin motion Search Term End , including attorney's fees, unless the court finds that the making of the Search Term Begin motion Search Term End was substantially justified or that other circumstances make an award of expenses unjust.

© If the Search Term Begin motion Search Term End is granted in part and denied in part, the court may enter any protective order authorized under Rule 26© and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the Search Term Begin motion Search Term End among the parties and persons in a just manner.

[BV80]

C) No Search Term Begin motion Search Term End brought under this Rule 37 will be considered or scheduled unless a separate statement of moving counsel is attached thereto certifying that, after personal consultation and good faith efforts to do so, counsel have been unable to satisfactorily resolve the matter.

From what I can tell, this must be done first. According to the rule, there must be a good faith effort to get the Plaintiff to provide the documents, before one can file a MTC. If it were me, I'd send a letter to the Plaintiff's attorney stating that Plaintiff's responses to the Request for Production of Documents was unsatisfactory, and would they please send the requested documents. Send the letter CMRRR.

Even if they don't respond, and file the MSJ before you get a chance to file a MTC, you will be able to state that you attempted to get them to provide the necessary documents, but they didn't respond.

In the meantime, I'd be preparing my Opposition to Plaintiff's Motion for Summary Judgment while waiting for a response.

[sweet1710]

Thank you very much BV! However, I would like to ask what is CMRRR? And, is there any thread for template that I could see how to make it? Thanks again!

[BV80]

CMRRR - Certified Mail, Return Receipt Requested

By sending mail CMRRR, the recipient must sign a little green card when the mail is delivered. The green card is then sent back to you so that you have proof the letter was received. Always save the green card.

Your letter doesn't have to be in a particular form. It's simply a good will attempt to get the Plaintiff to comply with discovery without having to use the court to do so.

I've been thinking about this. The fact that they didn't send discovery helps you, of course. There's no proof of ownership and no bill of sale. Did they attach anything with the Complaint? Statements? Cardmember agreement?

It looks to me as if there are 2 choices. You can forget about sending them a letter and just prepare your Opposition to MSJ, or you can send the letter hoping that will put you in a more favorable light with the judge. No guarantee it would, though.

It's going to depend on whether the judge believes you should have taken extra steps or not. In any case, you requested discovery, and they objected and denied. It's your call as to what steps you want to take now.

[risenup]

You may want to take a look at this current class action lawsuit, maybe some useful info for you:

THE PEOPLE vs. CACH LLC ; IT IS OVER BOYS AND GIRLS -RICO AGAINST CACH LLC- , ROBERT PAISOLA REPORTS posted: Jan-11-11 9:11pm

http :// www DOT zimbio DOT com/Crime,+Background+Checks,+Foul-Play,+Fraud+And+Investigations/articles/dR6vkSGDD1F/PEOPLE+vs+CACH+LLC+OVER+BOYS+GIRLS+RICO+AGAINST

Updates on their case: http :// mycollectorcom.blogspot DOT com/2011/02/paisola-v-cach-llc-and-attorney-melissa.html

(remove spaces and replace the word DOT w/a period)

[Templar]

CACH=Collect America. They're JDB. I doubt documentation will be sent in reply for your motions because they don't exist. Think you're dealing with an account stated. I'd be asking for your bank agreement. I doubt it'll be produced, or if one is it won't be the agreement you *signed*. There certainly not an agreement between you and CACH.

CACH is banking on a default judgment. Appearing on Court date will throw CACH into a tailspin. Collection legals play hard and bluff until they appear in front of a judge.

Good luck.

[debtfighter]

This is a tough one. They do not have the original application for credit. This would take some research on case law, but I think they have one weak spot. They are pressing the account stated because an open account is harder to prove. The lengthy talk of you not disputing the account is misplaced. That is done because on an open account they must provide itemized statements.

They still have to be able to prove the terms you agreed when the account was issued, including where you agreed to letting the creditor assign the account. Where the JDB specifically purchased your account. I find one thing troubling about this in the MSJ the Plaintiff says stated account or open account.

The affidavit says, " 2. That the original contract in this matter has been destroyed, or no loner accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court to review."

Did someone say, "OBJECTION." Motion to Strike

[debtfighter]

Admitting a key element in the record is lost or destroyed, but the rest of the record is trustworthy. Is it me or, where the record was lost or destroyed couldn't more of the record have been lost or destroyed too. If there isn't a question of trustworthiness in this record I am blind. I think it very well could be an issue of material fact.

Because they lost or destroyed the application or original contract does not shift the account from open to account stated. Or allow them to manufacture evidence in their favor.

Edited April 27, 2011 by debtfighter

[debtfighter]

Another point worth noting is the introduction of the statements. It doesnt appear to me from what is posted there has not been a proper foundation for or authentication of the exhibit's entered into MSJ.

[BV80]

This is a tough one. They do not have the original application for credit. This would take some research on case law, but I think they have one weak spot. They are pressing the account stated because an open account is harder to prove. The lengthy talk of you not disputing the account is misplaced. That is done because on an open account they must provide itemized statements.

They still have to be able to prove the terms you agreed when the account was issued, including where you agreed to letting the creditor assign the account. Where the JDB specifically purchased your account. I find one thing troubling about this in the MSJ the Plaintiff says stated account or open account.

The affidavit says, " 2. That the original contract in this matter has been destroyed, or no loner accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court to review."

Did someone say, "OBJECTION." Motion to Strike

This is from the AZ Rules of Evidence:

Arizona Rules of Evidence, Rule 803

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6) (Records of Regularly Conducted Activity). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the non-occurrence or non-existence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

In other words, they don't have to present the "original contract" because the affiant is an employee of the OC, and the OC makes contracts or agreements as a regular course of business. Unless the OP can convince the judge the JDB and the affiant are untrustworthy, it's unlikely the judge will strike the affidavit.

If it were me, I would subpoena the employee.

[BV80]

Another point worth noting is the introduction of the statements. It doesnt appear to me from what is posted there has not been a proper foundation for or authentication of the exhibit's entered into MSJ.

What exhibits? She said they didn't give her anything in discovery.

[debtfighter]

What exhibits? She said they didn't give her anything in discovery.

The exhibits referenced in the MSJ.

[debtfighter]

Another thing is what were the affirmative defenses in the responsive pleading.

[debtfighter]

In the MSJ the attorney states:

"Upon the account becoming delinquent, Bank of America, N.A. sold and assigned all of its rights and obligations of the credit account to Plaintiff. Plaintiff is therefore the holder in due course of the account."

Yet he makes no reference to an exhibit of bill of sale or transfer. He must be totally relying in the affidavit. Seems a lot is missing in the record.

[BV80]

The exhibits referenced in the MSJ.

Ok...I thought you were referring to the word "statements" in the affidavit.

She can point that out in her Opposition to MSJ. Considering the motion hasn't been filed yet, I'm wondering if the attorney didn't send her a copy of the MSJ just to scare her into settling.

She has a several options.

1. She can wait to see if they file the MSJ.

2. She can send a letter asking them to comply with the discovery requests.

3. She can file an MSJ of her own, and subpoena the affiant (if allowed).

[debtfighter]

I think I would also file a MTS the affidavit. At the hearing, immediately object to the MSJ exhibits for hearsay, lack of foundation and authentication.

[debtfighter]

She can point that out in her Opposition to MSJ. Considering the motion hasn't been filed yet, I'm wondering if the attorney didn't send her a copy of the MSJ just to scare her into settling.

She has a several options.

1. She can wait to see if they file the MSJ.

2. She can send a letter asking them to comply with the discovery requests.

3. She can file an MSJ of her own, and subpoena the affiant (if allowed).

Agreed. Though I am not sure of about the subpoena of the affiant, that might work against you by potentially letting other evidence in.

[BV80]

Agreed. Though I am not sure of about the subpoena of the affiant, that might work against you by potentially letting other evidence in.

That's true, but how else does one find out if the affiant is truly who they claim to be, or, as in the case of Midland, if the affidavit if false? I know the affiant claims to work for the OC, but how do we really know? They have an affidavit from the OC, yet they won't provide the bill of sale?

If you'll notice, the affidavit also stated:

6. That said agreement and account was, on 1/3/2009 sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise, or satisfaction of the said claim.

They're using that affidavit to cover all their bases. They don't have a cc agreement (bull), nor will they provide a bill of sale. That statement is supposed to be a substitute for the bill of sale.

Then:

4. That the account number xxxxxxxx (this one is my husband old savings account number from Bank of America) also known as xxxxxxxx also as was opened on 3/2/2007 by MY NAME whose social security number is xxx-xxx-xxxx. - How could a savings account became a credit card?

The account number is her husband's old saving's account number?

I'm not sure how hard the OP would have to argue that the affidavit is questionable considering it's supposedly from the OC and notarized. That's why I suggested the subpoena. If it's bogus, the JDB doesn't want the affiant to show up.