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Even if we as attorneys include such items, they are business records of the originating creditor, not the purchasing plaintiff.

At least in New York, these business records would have no probative value, because no one at the purchasing plaintiff has

"personal knowledge" of the creation, maintenance, issuance, and tracking of the statements. In the eyes of the court, such

affidavits are hearsay and therefore not admissible. A purchasing plaintiff is unable to swear to the authenticity of the

originating or source documents of a credit transaction because they do not have personal knowledge of the events which

transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence,

and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records,

as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

How then can the purchasing plaintiff's counsel obtain a judgment for their client in the face of a court's refusal to grant

judgment on a legitimate debt purchased by a thirdparty?

The obvious answer is to obtain the affidavit of the originating

creditor and annex the documents of the originating creditor to their affidavit. The originating creditor would have actual and

personal knowledge of the events which led to the creation of the debt, as well as the events which lead to the sale of the

debt. A second alternative would be to attempt to obtain a novation of the original credit agreement, which might be

accomplished by either obtaining a signed statement from the debtor agreeing to pay the balance owed. Alternatively, if the

debtor refuses to sign such a statement, the purchaser could send monthly statements which, if not objected to by the debtor,

might be introduced by way of the purchasing plaintiff's affidavit, indicating that no objection had been made to the

statements of account. Therefore, the debtors are estopped from denying the existence of the balance

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

--------------------------------------------------------------------------------

Edited by racecar

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Absent a willingness by debt sellers to sign a business records affidavit as to the origination and sale of the account, or a

novation by the purchasing plaintiff of the original debt, lawyers will be increasingly hard pressed to obtain judgments for

legitimate debts purchased by debt buyers. If purchasing plaintiffs wish to continue to be able to use the court system to

enforce their purchased debt, it is going to be increasingly necessary for documentation to be readily available for their

counsel and the courts.

Notice: The NARCA Newsletter is a publication of the Association of Retail Collection Attorneys with headquarters at 1620

I Street, NW Ste 615, in Washington, D.C. 20006 Telephone

8006336069

or 2028610706.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

--------------------------------------------------------------------------------

Edited by racecar

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Following is a list of companies involved in the debt selling and debt buying arena. These companies are excellent leads for RCAN members to contact as most debt buyers and debt sellers forward claims to retail collection attorneys to collect their purchased debt. Happy prospecting!" ~ RCAN Management

COMPANY CITY ST EMAIL

ACA International Minneapolis MN smitht@acainternational.org

ACCESS! Corporation Playa Del Rey CA scott@access-corp.com

Absolute Resolutions Corp. San Diego CA mbendy@pacbell.net

Academy Collection Service, Inc. Philadelphia PA RobertJpicone@aol.com

Accelerated Data Systems Greenwood Village CO tgilroy@accelerateddata.com

Access International Advisors New York NY tdumbauld@aiallc.us

Accord Credit Company Houston TX davidlaman@SBCglobal.net

Accounts Receivable Management, Inc. Thorofare NJ eendlein@arm1.com

Acctcorp International Vancouver WA mroskam@acctcorp.com

Accurint Boca Raton FL jclowe@accurint.com

Acquisition Management, Inc. Macon GA dsmorrow@acqmgt.com

Advantage Assets II Houston TX jcampise@ltdfin.com

Affiliated Collection Services, LLC Columbia MO kims@socket.net

Afni, Inc. Bloomington IL johnodonnell@afninet.com

Albion Partners LLC Salt Lake City UT pchristenson@albionpartners.com

AllianceOne, Inc. Exton PA bob.mauch@allianceoneinc.com

AmSher Receivables Management, Inc. Brimingham AL mel@amsher.com

AmeriCredit Financial Services, Inc. Arlington TX alice.whitten@americredit.com

American Acceptance Co., LLC Merrillville IN amac@netnitco.com

American Alliance of Creditor Attorneys Columbus OH rharman@aacanet.org

American Coradius Inc. Williamsville NY scottpufpaff@americancoradius.com

American Credit Alliance, Inc. Morrisville PA email@alanfranklin.com

American Debt Collection Atlanta GA shaleralias@americancollect.com

American Debt Sales, LLC Manhattan KS godfrey@americandebtsales.com

American Express Newark DE tom.keating@aexp.com

American Infosource, L.P. Corona del Mar CA jsawicki@americaninfosource.com

Ameriquest Mortgage Company Shelton CT lbartlett@ameriquest.com

Ameristar Financial Servicing Company Libertyville IL rew@ameristarfinancial.com

Andover Financial LLC Detroit MI hiredgun4u@aol.com

Anesthesia Consultants, P.C. Greenwood Village CO acgasman@msn.com

Antares Information Technologies, Inc. Hauppauge NY arocco@antares-iti.com

Applied Income Sciences, LLC San Francisco CA lbrockett@incomesciences.com

Ariel Financial Services Carrollton TX arielfinancial@comcast.net

Aries Data Collections Katonah NY mattblake@ariesdata.com

Arizona State Savings and Credit Union Phoenix AZ scottt1@azstcu.org

Array Services Group, Inc. Sauk Rapids MN paul.gauerke@arrayservicesgrp.com

Arrow Financial Services, LLC Niles IL gbeet@arrow-financial.com

Ascend United Federal Way WA fdavila@waleague.org

Ascension Services, Inc. Hunt TX dc@ascensioninc.com

Asset Acceptance LLC Warren MI jpetzold@assetacceptance.com

Asset Acquisition Group, LLC Denver CO djmeier@aaginc.com

Asset Management Outsourcing, Inc. Glendale AZ dusty.whitesell@amorecoveries.com

Asset Maximization Group, Inc.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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Asset Recovery & Management Group, LLC Needham MA jb@buydebt.net

Astra Business Services Dallas TX joannks04@aol.com

Atlantic Credit & Finance, Inc. Gilbert AZ tkaus@acf-inc.com

B-Line, LLC Seattle WA ruic@blinellc.com

BMW Financial Services NA, LLC Dublin OH dave.kemp@bmwfs.com

Bank of America Phoenix AZ jim.novosad@bankofamerica.com

Belmont Financial Services Group, Inc. Wynnewood PA pshap@aol.com

Big Ten Capital Management Minneapolis MN chriswinkler@peoplefirstrec.net

Bloomfield Financial Group, LLC Troy MI rwarner@bfg-llc.com

Boulder Credit Services, Inc. Troy MI ross@bouldercollect.com

Business Solution Integrators Sparks MD tcrotty@bsi-idea.com

CBV Collection Services, Ltd. Vancouver BC Canada brichards@cbvcollections.com

CCB Credit Services, Inc. Springfield IL ron@ccbcreditservices.net

CFB Financial, LLC Chicago IL cc-rider@austin.rr.com

CIR, Law Offices San Diego CA felipe@cirlaw.com

CLM Capital, Inc. Richmond VA eddiecantor@cantorandcantor.com

CMAX NDSE, LLC West Palm Beach FL nancy.hirschbach@cmaxndse.com

CR Software, Inc. Golden CO vilis.ozols@crsoftwareinc.com

Cabot Financial (Europe) Limited Kings Hill, West Malling Kent kmaynard@cabotfinancial.com

California Acquisitions, LLC San Jose CA sholiga@hunthenriques.com

Canyon Receivables Washington DC

Capital Financial Group, Inc. Suwanee GA jrc@cfgsales.com

Capital One Boise ID tom.thurmond@capitalone.com

Capital Recovery Service, LLC Fairfax VA jcardinale@crservices.com

Card Acquisition, LLC Sioux Falls SD mikep@cardacquisition.com

Cargill Value Investment Minnetonka MN wes_schiffler@cargill.com

Carl E. Schuster, P.C. Lewes DE alortwein@lewes-de.com

Cavalry Portfolio Services, LLC Phoenix AZ abrothers@cavps.com

Cedarcrest Capital, LLC New York NY mtaylor@cedarcrestcapital.com

Certegy Payment Recovery Services St. Petersburg FL joe.szarko@certegy.com

Chapman Receivables, Inc. Fullerton CA brian_winn@winnsims.com

Charge-Off Clearinghouse Austin TX louise@chargeoffclearinghouse.com

Chase Auto Finance Phoenix AZ alissa_cook@bankone.com

Chase Card Services Frederick MD robert_watson@bankone.com

CitiFinancial Owings Mills MD hortsd@citifinancial.com

CitiFinancial N.A. Bloomington MN Patricia.Brysky@Citigroup.com

Collect America, Ltd. Denver CO jcurry@collectamerica.com

Collection At Law, Inc. Westlake Village CA jblanda@collectionatlaw.com

Collection House Limited Brisbane Queensland peter.doherty@collectionhouse.com.au

Collections & Credit Risk Magazine New York NY

Collins Financial Services, Inc.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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Columbia Ultimate Vancouver WA

Commercial Legal Software, Inc. Montville NJ cmaster@collectionsoftware.com

Commonwealth Financial Systems, Inc. Scranton PA jkotula@necredit.com

Complete Credit Solutions, Inc. Bedford TX Biledwards@hotmail.com

CompuMail Information Services Concord CA mea@compumailinc.com

Comtronic Systems Cle Elum WA jdantzler@comtronic.com

ConServe Fairport NY pmorrow@conserv-arm.com

Consolidation U.S.A., Inc. Wayland MA jrheaume@schreiblaw.com

Consolidation U.S.A., Inc. Wayland MA knewell@schreiblaw.com

Convergent Resources, Inc. Flushing NY terri.devlin@verizon.net

Convergys Salt Lake City UT chad.hunsake@convergys.com

Credit Bureau of North America, L.L.C. Dickson TN bhoward@cbofna.com

Credit Management Control, Inc. Racine WI gla@creditmgt.com

Creditors Bankruptcy Service Dallas TX mark@credbankserv.com

Creditors Financial Group, LLC Amherst NY jeffryan@creditorsfinancialgroup.com

Creditors Interchange Agency, LLC Buffalo NY bgray@creditorsinterchange.com

Crescent Recovery, LLC Chesapeake VA dambrose@cbtno.com

Crown Asset Management, LLC Duluth GA rfortune@crownasset.com

Crown Recovery Arcadia CA pcampione@crownrecovery.com

Cutting Edge Financial Group, Inc. Minneapolis MN t.gurstel@gurstel.com

D. B. Zwirn & Company New York NY rchan@dbzco.com

DAR Services, Inc. Camden DE bob.darserv.com

DLG & Associates, Inc. Portage MI dgray@graycollect.com

Daniel N. Gordon, P.C. Eugene OR dgordonpc@aol.com

Dantom Systems, Inc. Novi MI thoppenjans@dantomsystems.com

David Taylor & Associates, LLC Tewksbury MA btaylor@dtallc.com

Debt Buyers' Association Santa Fe Springs CA dennis.hammond@debtbuyers.com

Debt Recovery Solutions, LLC Westbury NY dschwartz@dbtsolutions.com

Debt Sales Partners Akron OH mzoldan@debtsales.us

DebtResolve, Inc. White Plains NY jgrimm@debtresolve.com

Deceased Credit Management, LLC Minneapolis MN loren.berg@baloghbecker.com

Delta Management Associates, Inc. Murrieta CA chrismntn@yahoo.com

Discover Financial Services, Inc. Hilliard OH bobdeter@discoverfinancial.com

Dollar Financial Group, Inc. Salt Lake City UT todd.feltner@dfg.com

Duvera Financial Carlsbad CA shawn@duvera.com

Dyck-O'Neal, Inc. Arlington TX mcramer@dyckoneal.com

Dynamic Strategies, Inc. Bothell WA ray.henning@dystrategies.com

EMCC, Inc. Pembroke MA alevine@emccinc.com

Eagle Service Corporation Hattiesburg MS jrcsr@eagleservcorp.com

Elite Recovery Services, Inc. Buffalo NY pauln@eliterecovery.com

Encore Capital Group, Inc. San Diego CA amy.anuk@encorecapitalgroup.com

Encore Receivable Management, Inc. Olathe KS spanik@encorermi.com

Enhanced Asset Management Corp. Jacksonville FL bjd@enhancedasset.com

Erin Capital Management New York NY rarusso@erincapital.com

Estate Recoveries, Inc. Baltimore MD jack.gibmeyer@ericollect.com

Eversheds Leeds peterwordsworth@eversheds.com

Executive Alliance Huntington NY jfiumano@execsallied.com

Experian San Francisco CA alex.siotos@experian.com

FGNY Group Mount Kisco NY michell@fgnygroup.com

FMA Alliance, Ltd. Houston TX j.spiegelhauer@fmaalliance.com

FMS, Inc. Tulsa OK paulr@fms-collect.com

Faber and Brand, L.L.C. Columbia MO steve@faberandbrand.com

Fair Isaac Corporation Norcross GA robertfite@fairisaac.com

Federal Deposit Insurance Corp. Dallas TX mcummins@fdic.gov

Federal Pacific Credit Company Salt Lake City UT bill@fedpacific.com

Federal Trade Commission Washington DC jwinston@ftc.gov

Federated Financial Corp. of America Farmington MI lferris@federtedcapital.com

Fillimerica, Inc. Fairfield NJ floyd@imagemaster.org

Financial Asset Management Systems, Inc. Norcross GA pete.nance@fams.net

Financial Control Services Waco TX

Financial Recovery Services, Inc. Edina MN mark_pearson@fin-rec.com

First City Servicing Corporation Waco TX darrel.hurt@fcfc.com

First Credit Services, Inc. Glen Ellyn IL rudyk@firstcsi.com

First Equity Capital Corporation Southfield MI jbobel32@aol.com

First Financial Asset Management, Inc. San Diego CA sgoldstein@1fam.com

First Financial Asset Management, Inc. Atlanta GA hgcollins@1fam.com

First NLC Financial Services Anaheim CA nward@firstnlc.net

First Performance Corporation Las Vegas NV jtonetti@fpcorp.com

First Performance Corporation Fort Lauderdale FL magostinelli@fpcorp.com

First Resolution Investment Corp. Vancouver BC

FlexPoint Funding Irvine CA vsuchy@flexfunding.net

Focus 1, Inc.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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Fort Crook Financial Co. Bellevue NE djungers@att.net

Fortress Investments New York NY rleeds@fortressinv.com

Fourscore Resource Capital, LLC Encinitas CA blockwood@fourscorellc.com

Fourscore Resource Capital, LLC St. Louis Park MN rknauf@fourscorellc.com

Franklin Credit Management Corp. New York NY ajoseph@franklincredit.com

GE Consumer Finance Kettering OH dave.ferguson@ge.com

GE Consumer Finance Tempe AZ timothy.musa@GE.com

GMAC-RFC Homecomings Financial San Diego CA edna.juarez@homecomings.com

GMAC-RFC Homecomings Financial Blue Bell PA anne.sweeny@homecomings.com

Garnet Capital Advisors, LLC New York NY smcvity@bear.com

Gault Financial, LLC Knoxville TN steve@gaultfinancial.com

General Outsourcing Services/RAMCO Del Mar CA gsahney@generaloutsourcing.com

Genesis Financial Solutions, Inc. Beaverton OR bnemhauser@gfspartners.com

Glasser and Glasser, P.L.C. Norfolk VA mgroves@glasserlaw.com

Global Acceptance Credit Corporation Arlington TX mvarrichio@gacc2000.com

Global Connect Avondale AZ dbird@gc1.com

Global Connect Mays Landing NJ dallin@gc1.com

Global Financial, LLC Lakewood NJ elliot@madisontitle.com

Global Software Services, Inc. Jacksonville FL carl@debtsoftware.com

Global Vantedge, Inc. Larkspur CA dennis.sholl@gvedge.com

Gothia Financial Group SE-43215 Varberg mikael@gothiagroup.com

Greater California Financial Services Paso Robles CA

HK Investigations, Inc. Mount Sinai NY contact@hkinvestigations.com

Hamilton General Financial Corporation Noblesville IN mike@hamiltonaccounts.com

Heavy Action Recovery, Inc. Buffalo NY winfieldthedon@hotmail.com

High Cotton Birmingham AL gmcgahey@highcottonusa.com

Hilco Receivables, LLC Northbrook IL jbloom@hilcoreceivables.com

Household Automotive Finance Corporation San Diego CA aaron.j.hadam@us.hsbc.com

Houston Funding Corporation Houston TX recagle@houstonfunding.com

Hubbard Systems, Inc. Birmingham AL kelly.schrupp@hubbardsystems.com

I.C. System, Inc. Saint Paul MN kheinbigner@icsystem.com

IRMC Westlake Village CA mmcdonald@irmc.com

IRMC Midlothian VA bbone@irmc.com

Illinois Collection Service, Inc. Evergreen Park IL randyg@ics-collection.com

Indiana Receivables, Inc. Indianapolis IN wrrpc@mycomcast.com

Information Access Technology, Inc. Salt Lake City UT daver@iat-cti.com

InsightAmerica Broomfield CO cheryld@insightamerica.com

Integral Recoveries, Inc. Englewood CO dbrooks@integralpays.com

Intelligent Results, Inc. Bellevue WA don.davey@intelligentresults.com

Interactive Data, LLC Lawrenceville GA john@id-info.com

International Credit Services, LLC Napa CA ics@icsdebtsales.com

Investment Retrievers, Inc. El Dorado Hills CA

J.J. Mac Intyre Co., Inc. Corona CA scott@jjmac.com

JBC & Associates, P.C. Bloomfield NJ jboyajian@j-b-c.com

JP Morgan Chase Chicago IL todd_e_grundberg@bankone.com

JS Technologies, Inc. Richmond VA sales@collectmax.com

Jackson Capital, Inc. Union NJ samueljh500@aol.com

Jefferson Capital Systems, LLC Saint Cloud MN rusty.golfis@mn.compucredit.com

Jomax Ltd. Mashpee MA joel.jomax@verizon.net

Jormandy, LLC Norfolk VA SusanPBecker@cox.net

KSF Capital Group, LLC

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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Kaulkin Ginsberg Company Bethesda MD mbkoenick@kaulkin.com

Keane Worldzen Itasca IL karen.powell@keaneworldzen.com

Key Recovery Group, LLC Baltimore MD ezra@ezrafriedberg.com

Kimmel & Beach, P.A. Kennebunk ME kimbeach@gwi.net

LDG Financial Services, LLC Atlanta GA rcarbo@ldgfinancial.com

Lake Valley Retrievals, Inc. San Diego CA lvretrievals@msn.com

Laridian Consulting, Inc. Wayne NJ tmesce@yahoo.com

Leading Edge Recovery Solutions, L.L.C. Chicago IL anthony.crews@leadingedgerecovery.com

Leading Edge Recovery Solutions, L.L.C. Pickerington OH sergio.martinez@leadingedgerecovery.com

Legal Recoveries, Inc. Prospect KY ddhaunz@mapother-atty.com

Legal Recovery Services, Inc. Finksburg MD glegal@erols.com

MBNA America Newark DE tom.feely@mbna.com

MRS Associates, Inc. Cherry Hill NJ joeb@mrsassociates.com

Marion Financial Corporation Houston TX edens@marionfinancial.com

Marion Financial Corporation Charlotte NC goodyear@carolina.rr.com

Max Recovery/eCAST New York NY ebenison@bear.com

McKenzie Banking Company Paris TN wayne.powers@bankmbc.com

Mercantile Adjustment Bureau, LLC Williamsville NY jmiller@mercantilesolutions.com

Metris Companies, Inc. Baltimore MD earl.slack@metriscompanies.com

Metris Companies, Inc. Scottsdate AZ michelle.thomas@metriscompanies.com

Moonbeam Investment Corporation Chicago IL c.foreman@moonbeamcorp.com

NCC Business Services, Inc. Jacksonville FL tim.hollis@ncc-business.com

NCO Portfolio Management, Inc. Horsham PA michael.chiodo@ncogroup.com

NCSCorp Longview WA janices@ncscorp.net

National Asset Management Enterprises Marietta GA doug.sawyer@attentionllc.com

National Asset Recovery Services, Inc. Chesterfield MO joea@narsnet.com

National Asset Recovery, Inc. Atlanta GA mcarlisle@narincorporated.com

National Capital Management Memphis TN cash@ncmllc.com

National City Bank Pittsburgh PA anne.romano@nationalcity.com

National Credit Adjusters, LLC Hutchinson KS brad@ncaks.com

National Enterprise Systems, Inc. Cincinnati OH jclark6026@aol.com

National Enterprise Systems, Inc. Worthington OH jvahalik@nes1.com

National Enterprise Systems, Inc. Solon OH erpollak@nes1.com

National Loan Exchange, Inc./NLEX Edwardsville IL vanm@nlex.com

Nations Recovery Center, Inc. Atlanta GA paul@natrecovery.com

Nationwide Credit, Inc. Kennesaw GA tmeder@ncirm.com

New Century Financial Services, Inc. Cedar Knolls NJ esombers@ncfsi.com

Nextel Communications Lonetree CO patty.sager@nextel.com

Nissan Motor Acceptance Corporation Irving TX hardawb@NMAC.com

North American Collectors, Inc. Encino CA davidsimon@northamericancollectors.com

Northland Group, Inc. Edina MN mwaag@northlandgroup.com

Northstar Location Services, LLC Williamsville NY agranville@gosynergistics.com

OCMAC, LLC Kimberling City MO scott@camconorth.com

Old Canal Financial Charlotte NC cbw@oldcanal.com

Oliphant Financial Corporation Sarasota FL natkinsc@oliphantfinancial.com

Onstat, Inc. Austin TX dchambless@ontra.com

Ontario Systems, LLC Muncie IN shawn.kerrigan@ontariosystems.com

Option Card, LLC Denver CO dg@optioncard.com

Outsourcing Solutions, Inc. Chesterfield MO tom.hicks@osioutsourcing.com

Outsourcing Solutions, Inc. Duluth GA tim.bauer@osioutsourcing.com

Outsourcing Solutions, Inc. Chesterfield MO mike.meyer@osioutsourcing.com

Outsourcing Solutions, Inc. Tucson AZ lucy.howell@osioutsourcing.com

Oxford Management Services, Inc. Melville NY peter.pinto@oxfmgt.com

Ozark Capital Corporation Little Rock AR cmartin@hosto.com

PCI Group, Inc.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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PRM Financial Services, Inc. Addison TX gwatson@prmfs.com

PRS Assets, LLC Denver CO kmd@prsllc.com

PSC Info Group Oaks PA skaster@pscinfogroup.com

PSC Info Group Valley Forge PA rberglund@pscinfogroup.com

Pacific Capital Bancorp, N.A. Camarillo CA susan@sbbt.com

Pacific Services Federal Way WA boundlessinc@aol.com

Partners Financial Services, Inc. Ellisville MO bmcnabb@partners-mo.com

Pasadena Receivables, Inc. Pasadena MD bsmith@peroutkalaw.com

Patenaude & Felix, APC San Diego CA rayp@pandf.us

Peak Financial Performers, LLP Rochester MN skovbroten@theaffiliatedgroup.com

Penncro Associates, Inc. Southampton PA rditnes@penncro.com

Pentagroup Financial, LLC Houston TX rrovall@pentagroup.us

Performance Capital Management Anaheim CA wconstantino@pamco.net

Pinnacle Financial Group, Inc. Edina MN josterberg@pfgservices.com

Plaza Associates New York NY clientrelations@plazaassociates.com

Portfolio Group Investors, LLC Barrington IL jim@pgibuy.com

Portfolio Management Canada Inc. London ON gcoffin@portfoliomci.com

Portfolio Recovery Associates, Inc. Norfolk VA rjrey@anchor-rm.com

PredictiveMetrics, Inc. Tinton Falls NJ dcrimmins@predictivemetrics.com

Premier Bankcard Sioux Falls SD lisa_braught@yahoo.com

Premier Recovery, Inc. Covington KY gthomas@premierrecovery.net

Premium Asset Recovery Corp. (PARC) Deerfield Beach FL granpera@parcassets.com

Premium Asset Recovery Corp. (PARC) San Antonio TX aoholzhauer@hotmail.com

Professional Associate Systems, Inc. Brooklyn NY profadjust@aol.com

Professional Systems of Mankato, Inc. North Mankato MN groberts@professionalsystems.com

Proficient Data Glendale Heights IL rschager@proficientdata.com

Providian Financial Pleasanton CA rick_wittwer@providian.com

Purchasers Advantage, LLC Greenwood Village CO tljustus@earthlink.net

Qsent, Inc. Portland OR cary.gaylord@qsent.com

RB Consulting, LLC Chanhassen MN rbowman@rbconsulting.com

RCA-Resolution Capital Advisors, LLC Dallas TX cgramlich@rescapadvisors.com

RJM Acquisitions, LLC Syosset NY smatte@rjmacq.com

Ravinia Management Company, LLC Northbrook IL ibernstein@ravinia-llc.com

Real Time Resolutions, Inc. Dallas TX tony.knight@rtresolutions.com

RealEDA Information Services Long Valley NJ gchristopher@realEDA.com

Receivables Management Solutions, Inc. West Saint Paul MN rdunham@rmsmn.com

Receivables to Revenue Venice FL markmeisenbacher@collecttheun.com

Recovery Systems, Inc. Gillette WY bhcrsi@yahoo.com

Regional Adjustment Bureau, Inc. Cordova TN rpugh@rabinc.com

Resource & Asset Management Anaheim CA cbarnes@locob.com

Resource & Asset Management Anaheim CA rbarnes@ramdebt.com

Resurgence Financial, LLC Skokie IL lschwartz@resurgencefinancial.com

Retrieval Masters Creditors Bureau, Inc. Elmsford NY dulrich@retrievalmasters.com

Return Mail, Inc. Birmingham AL john@poreturnmail.com

Risk Management Alternatives, Inc. Duluth GA mike.allan@rmainc.net

SCC Solutions, Inc. Coral Springs FL dkielkucki@sccsolutions.com

SCORE Statistical Consulting Toronto ON steve@scorestat.com

SIMM Associates, Inc. Newark DE jeffs@simmassociates.com

SITEL Risk Management/NAFS Norcross GA dburkhalter@nafs.net

SMS Financial, L.L.C. Phoenix AZ jhoffer@smsfinancial.net

STA International Uniondale NY stulchin@stacollect.com

STC Solutions, Inc. Los Angeles CA gveprek@stcsolutions.com

STL Financial, Inc. Greenwood IN

Salem Investments, LLC. Salem NH gormond@rjbc.com

Sallie Mae Reston VA thomas.brisson@slma.com

Second Curve Capital, LLC New York NY rbiggs@secondcurve.com

Security Check, LLC Oxford MS rvincent@secutiryholdingsllc.com

Sentry Credit, Inc. Everett WA j.stewart@sentrycredit.com

Sequoia Consultants LLC Jacksonville FL sequoiaconsult@bellsouth.net

Shekinah Inc. Huntington Beach CA jtrent@shekinahinc.com

Sherman Financial Group, LLC Charleston SC dave@sfg.com

Sophian Capital Corporation Birmingham AL knadler@nadler-law.com

Southern Accounts Services, Inc Lake Worth FL sasifla@aol.com

Sovereign Credit Management Horsha West Sussex infor@sovcredit.co.uk

Starwood Financial, Inc. Topeka KS angel@valentine-law.com

Stephens, Inc. Little Rock AR jchumbler@stephens.com

Sterling Debt Recoveries (Pty) Limited Johnannesburg brodkin@iafrica.com

Sterling Financial Services Fishers IN wayne.crane@sterlingbancorp.com

StreamLine Consulting, Inc. Trinity FL pfiumano@streamlineinc.net

Stronghold Germantown MD dsanders@strongholdco.com

SunTrust Robinson Humphrey Atlanta GA cooper_mills@rhco.com

Sunrise Credit Services, Inc. Farmingdale NY jvassar@sunrisecreditservices.com

Superior Asset Management, Inc. Fort Walton Beach FL eking@superiorcreditservices.com

Superior Information Suwanee GA andrew.postell@choicepointprg.net

Superior Information Boca Raton FL steve.sedane@choicepointprg.net

Superior Information Trenton NJ pmcgale@charlesjones.com

Sycamore Financial Services, LLC West Long Branch NJ rgoldman@sycamorefinancial.com

TAJ Financial Services Passaic NJ tajfin@aol.com

TCN Broadcasting St. George UT jimmy@tcnbroadcasting.com

Talisman Partners, LLC Scottsdale AZ mike@valueadvisor.com

Target Financial Services Minneapolis MN marion.hinz@Target.com

Teletrack, Inc. Norcross GA julie@teletrack.com

Teletrack, Inc. Norcross GA lucy@teletrack.com

The Accounts Retrievable System, Inc. Bellmore NY bigdebt@optonline.net

The Active Group Portland OR davids@theactivegroup.biz

The Asset Recovery Group, LLC Bowie MD swilson@theassetrecoverygroup.com

The Athena Funding Group Tampa FL mike@athenafunding.com

The Sagres Company San Diego CA sgoldberg@sagresco.com

The Sagres Company San Diego CA vodbert@sagresco.com

Thornton Financial Services, Inc. Abingdon MD mmuffoletto@thorntonadvisors.com

Thornton Financial Services, Inc. San Diego CA mbernier@thorntonadvisors.com

Titan Recovery Group, LLC Duluth GA w.frye@titanrg.com

TouchStar Software Corporation Aurora CO sbederman@touchstarsoftware.com

TransUnion Atlanta GA mrosent@transunion.com

Trilogy Capital Management, LLC San Diego CA mbonilla@trilogycapitalmanagement.com

TrueLogic Financial Corporation Greenwood Village CO ppiccolo@truelogicfinancial.com

ULQ/Redline Alpharetta GA gpaulo@ULQ.BIZ

Unifund Cincinnati OH clr@unifund.com

Union Bank of California N.A. San Diego CA lance.knox@uboc.com

United Recovery, Inc. Calabasas CA tpicket@unitedrecovery.net

Universal Fidelity Corporation Houston TX gary.goolsby@ufccorp.com

UniversalSystems Eden Prairie MN srice@universalsystems.net

VG Advisors Moorestown NJ vernongerety@comcast.net

Van Ru Credit Corporation Des Plaines IL corporate@vanru.com

Varde Partners, Inc. Minneapolis MN cgiles@varde.com

VeriFacts, Inc. Sterling IL jim.gabler@skiptracers.com

Verizon Wireless Schaumburg IL michael.spiroff@verizonwireless.com

Verizon Wireless Alpharetta GA jose.camacho@verizonwireless.com

Viking Collection Service, Inc. Eden Prairie MN blakotas@vikingservice.com

Vision Management Services Orange CA VG@visiondebtsales.com

WR Capital, LLC Hartland WI rolejnik@wi.rr.com

Wells Fargo Bank, N.A. Walnut Creek CA coomberr@wellsfargo.com

Wells Fargo Card Services, Inc. West Des Moines IA janet.m.tucker@wellsfargo.com

West Bay Recovery North Kingstown RI bryandunford@cox.net

Westridge Financial Services LLC Las Vegas NV dyerw@westridgefinancial.com

William Blair & Company Chicago IL jlamanna@williamblair.com

WinDebt Houston TX sburnett@windebt.com

WorldWide Debt Exchange, LLC Sarasota FL mandy@wwde.com

Worldwide Asset Management, LLC Marietta GA mlafleur@wamllc.com

YouveGotClaims.com Montville NJ meehanj@youvegotclaims.com

Zenith Acquisition Corporation Amherst NY dparis@zenithacq.com

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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Statute 61-2904 (a) A defendant shall either appear, in person or by counsel, at the time and date set forth in the summons or file on or before such date a written answer. If the defendant appears and disputes the petition, the defendant shall file an answer not later than 10 days after the appearance date. The defendant shall promptly send a copy of the answer after filing to the plaintiff's attorney or the plaintiff, if no attorney. If the defendant is not represented by an attorney, the answer shall be signed by the defendant.

(B) The answer when filed shall state the following:

(1) What the dispute is;

(2) any affirmative defenses the defendant has to the claim; and

(3) the current address, phone number, fax phone number and electronic mail address for the defendant.

© If the defendant asserts a counterclaim against the plaintiff in the answer, the plaintiff may file a reply disputing the defendant's counterclaim not later than 10 days after service of the defendant's answer. The plaintiff's reply shall comply with the requirements set forth in subsection (B). If the plaintiff does not file a reply, the plaintiff waives the right to present any dispute to the defendant's counterclaim.

(d) Affirmative defenses are those listed in subsection © of K.S.A. 60-208, and amendments thereto.

(e) The date the defendant is required to appear as set forth in the summons may be continued by the court upon request of either party in such manner as the court shall prescribe.

History: L. 2000, ch. 161, § 10; Jan. 1, 2001.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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Statute 60-212: Defenses and objections. (a) When defenses and objections presented. A defendant shall serve such defendant's answer within 20 days after the service of the summons and petition upon such defendant, except where service by publication is had the defendant shall serve such defendant's answer within the time fixed in the notice which shall not be less than 41 days from the time the notice is first published. A party served with a pleading stating a cross-claim against such party shall serve an answer thereto within 20 days after the service upon such party. The plaintiff shall serve such plaintiff's reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under this section alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement.

(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under K.S.A. 60-219 and amendments thereto. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256 and amendments thereto.

© Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.

(d) Preliminary hearings. The defenses specifically enumerated in subsection (1) through (7) of subsection (B), whether made in a pleading or by motion, and the motion for judgment mentioned in subsection © shall be heard and determined before trial on application of any party, unless the judge orders that the hearing and determination thereof be deferred until the trial.

(e) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, such party may move for a more definite statement before interposing such party's responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within 10 days after notice of the order or within such time as the court may fix, the judge may strike the pleading to which the motion was directed or make such order as the judge deems just.

(f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this article, upon motion made by a party within 20 days after the service of the pleading upon such party or upon the court's own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of defenses in motion. A party who makes a motion under this section may join with it any other motions herein provided for and then available to him. If a party makes a motion under this section but omits therefrom any defense or objection then available to such party which this section permits to be raised by motion, such party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subsection (h)(2) on any of the grounds there stated.

(h) Waiver or preservation of certain defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subsection (g) or (B) if it is neither made by motion under this section nor included in a responsive pleading or an amendment thereof permitted by subsection (a) of K.S.A. 60-215 and amendments thereto to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party under K.S.A. 60-219 and amendments thereto, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of K.S.A. 60-207 and amendments thereto, or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

(i) Answer for minor or incapacitated person. The guardian or conservator of a minor or incapacitated person, or attorney for a person in prison shall deny in the answer all the material allegations in the petition prejudicial to such defendant.

History: L. 1963, ch. 303, 60-212; L. 1965, ch. 354, § 1; amended by Supreme Court order dated July 17, 1969; L. 1990, ch. 202, § 24; Jan. 1, 1991.

--------------------------------------------------------------------------------

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-403: Exclusionary rules not to apply to undisputed matter. If upon the hearing there is no bona fide dispute between the parties as to a material fact, such fact may be proved by any relevant evidence, and exclusionary rules shall not apply, subject, however, to K.S.A. 60-445 and any valid claim of privilege.

History: L. 1963, ch. 303, 60-403; Jan. 1, 1964.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-404: Effect of erroneous admission of evidence. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.

History: L. 1963, ch. 303, 60-404; Jan. 1, 1964.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-467: Original document required as evidence; exceptions. (a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d) and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as the writing itself; (2) (A) the writing is lost or has been destroyed without fraudulent intent on the part of the proponent, (B) the writing is outside the reach of the court's process and not procurable by the proponent, © the opponent, at a time when the writing was under the opponent's control has been notified, expressly or by implication from the pleadings, that it would be needed at the hearing, and on request at the hearing has failed to produce it, (D) the writing is not closely related to the controlling issues and it would be inexpedient to require its production, (E) the writing is an official record, or is a writing affecting property authorized to be recorded and actually recorded in the public records as described in exception (s) of K.S.A. 60-460 and amendments thereto or (F) calculations or summaries of content are called for as a result of an examination by a qualified witness of multiple or voluminous writings, which cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds that their production is unnecessary.

(B) If the judge makes one of the findings specified in subsection (a), secondary evidence of the content of the writing is admissible. If evidence is offered by the opponent tending to prove that (1) the asserted writing never existed, (2) a writing produced at the trial is the asserted writing or (3) the secondary evidence does not correctly reflect the content of the asserted writing, the evidence is irrelevant and inadmissible upon the question of admissibility of the secondary evidence but is relevant and admissible upon the issues of the existence and content of the asserted writing to be determined by the trier of fact.

© If the procedure specified by subsection (B) of K.S.A. 60-245a, and amendments thereto, for providing business records has been complied with and no party has required the personal attendance of a custodian of the records or the production of the original records, the copy of the records produced shall not be excluded under subsection (a).

(d) As used in this section, telefacsimile communication means the use of electronic equipment to send or transfer a copy of an original document via telephone lines.

History: L. 1963, ch. 303, 60-467; L. 1985, ch. 196, § 4; L. 1989, ch. 177, § 1; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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61-3101: Admission of facts and genuineness of documents; withdrawal or amendment of admission. (a) When an answer has been filed in an action or if the defendant appears and disputes the claims in the petition commenced pursuant to the provisions of the code of civil procedure for limited actions, any party may submit to any other party a written request for that party to admit:

(1) The genuineness of any relevant document described in and attached to the request; or

(2) the truth of any relevant matter of fact set forth in the request. The request shall be in a form which will permit the party to whom it is submitted to answer the questions on the request form under oath. A request for admissions may not contain more than 10 requests unless permission of the court is obtained to increase the number.

(B) Each of the matters requested shall be deemed to be admitted for purposes of the pending lawsuit, unless within 15 days after the request is served, the party to whom the request is directed submits to the party propounding the request either:

(1) A sworn statement denying specifically the matters requested; or

(2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.

© If the answering party cannot truthfully admit or deny a request, the party shall set forth in detail the reasons why. If the answering party denies a request, the denial shall be in good faith and shall fairly address the substance of the request. If in good faith the answering party can deny only a part of the request or qualify a request, the party shall specify which part is admitted and qualify or deny the remaining part. If the answering party objects to a request, the party shall notify the court and the party propounding the request and schedule a hearing on the objection to be held within 10 days after making the objection.

(d) The judge may permit withdrawal or amendment of any admission made by nonresponse when the party to whom the admissions were sent shows good cause for failure to respond and shows evidence that the admission is not true and the party who obtained the admission fails to satisfy the judge that withdrawal or amendment will prejudice such party in maintaining such party's action or defense on the merits. In the event such withdrawal or amendment is made by the party to whom the admissions were sent at trial, the party who obtained the admissions shall be allowed a continuance of the trial setting. Any admission made by a party under this section is for the purpose of the pending action only and is not an admission by such party for any other purpose nor may it be used against such party in any other proceeding.

History: L. 2000, ch. 161, § 25; L. 2004, ch. 176, § 4; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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61-3103: Interrogatories. (a) Any party may submit to any other party up to 10 interrogatories. The party receiving the interrogatories shall submit answers or objections, if any, to the party submitting the same within 15 days after the interrogatories are submitted to the receiving party. On motion, the court may allow a longer time to answer or may permit a greater number of interrogatories to be submitted.

(B) The provisions of K.S.A. 60-233, and amendments thereto, shall be applicable to interrogatories pursuant to this section, except that the provisions of this section relating to the time when interrogatories are to be answered shall be applicable. The general discovery provisions of subsections (B), © and (e) of K.S.A. 60-226, and amendments thereto, and the sanction provisions of K.S.A. 60-237, and amendments thereto, as such sections relate to interrogatories, shall be applicable to interrogatories pursuant to this section.

History: L. 2000, ch. 161, § 27; Jan. 1, 2001.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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61-3106: Production of documents. Production of documents and things for inspection shall be allowed in accordance with K.S.A. 60-234, and amendments thereto.

History: L. 2000, ch. 161, § 30; Jan. 1, 2001.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-2601: Duties of court clerk. (a) General powers and duties. In the performance of their duties all clerks of record shall be under the direction of the court.

(B) Dockets. Subject to the provisions of K.S.A. 60-2601a and amendments thereto, the clerk of the court shall keep the following dockets or other records which may be ordered by the court in the following manner:

(1) Appearance docket. The clerk shall keep one or more appearance dockets and enter each civil action in the docket. Actions within each appearance docket shall be assigned consecutive file numbers. The file number of each action shall be noted on the docket on which the first entry of the action is made. All papers filed with the clerk, all process issued and returns made and, all appearances, orders, verdicts and judgments shall be noted chronologically on the appearance docket. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process.

(2) General index. The general index shall be kept in a form in which names are arranged in alphabetical order. Plaintiffs, petitioners, defendants and respondents shall be listed as well as the case file number.

© Issuance of writs and orders. All writs and orders for provisional remedies shall be issued by the clerks of the several courts, upon praecipes filed with the clerk, demanding the writs and orders.

(d) Filing and preservation of papers. Except as otherwise provided by law, it is the duty of the clerk of each of the courts to file together and carefully preserve in the office of the clerk all papers delivered to the clerk for that purpose, in every action or special proceeding. The clerk shall keep the papers separate in each case, carefully enveloped in a wrapper or folder labeled with the title of the cause. Orders and journal entries requiring the signature of the judge shall have the date and time of day stamped on them by the clerk immediately upon receipt of the signed order or journal entry and the clerk or deputy shall initial the stamp. The clerk shall stamp on all other filed papers, the date and time of day of receiving them and initial the stamp.

History: L. 1963, ch. 303, 60-2601; L. 1971, ch. 197, § 1; L. 1976, ch. 257, § 1; L. 1976, ch. 251, § 37; L. 1977, ch. 109, § 35; L. 1982, ch. 251, § 1; L. 1984, ch. 147, § 16; L. 1991, ch. 165, § 2; July 1.

60-2601a: Computer information storage and retrieval system. In any county which has a computer information storage and retrieval system for the use of the clerk of the district court of such county, the records and information required to be maintained in the dockets and journals under the provisions of subsections (B) (1), (2), (3), and (4) of K.S.A. 60-2601 and amendments thereto may, upon order of the chief judge of such court, be maintained in such computer information storage and retrieval system. The clerk of the district court of such county shall be charged with the responsibility of making such records and information maintained in such computer information storage and retrieval system accessible to the public during normal working hours.

History: L. 1976, ch. 257, § 2; amended by Supreme Court order dated July 28, 1976; L. 1999, ch. 57, § 54; July 1.

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In general the affidavit is insufficient because it does not satisfy the basic requirements of personal knowledge.

1. “Affiant is an employee:” Affiant should be an officer or otherwise identified as having a specific scope of employment that should be identified and described for the period starting with the loan closing up through the date of the affidavit.

2. “Of Plaintiff or Plaintiff’s servicing agent:” Now they are withholding what entity employs the affiant so there is no presumption that the affiant in fact has personal knowledge of anything, or if affiant has personal knowledge of everything involved in the loan transaction and payments. Nor are they identifying or describing the function of either plaintiff or the servicing agent.

3. “Personally familiar”: Doesn’t mean personal knowledge. He probably got information from others (hearsay), and he does not identify himself as custodian of records for anyone on anything.

4. “The information is found in the servicing agent’s records”: So he might not employed by the servicing agent but he is swearing that the information is contained in their records. Hearsay, and lack of competence to testify because he is allowing that he might NOT have personal knowledge, which is the key component of a witness’ competency to testify — the four elements being oath or affirmation, personal knowledge, recall and the ability to communicate information that is relevant to the case from his personal knowledge and recollection. In addition there is no indication when the servicing agent began to service, who the servicing agent is, and whether they are still the servicing agent. And there is no indication of what information is tracked by the servicing agent — for example, does the servicing agent pay the holder in due course? who is the holder in due course? Since this loan was most likely securitized, what insurance, third party guarantees, reserves, cross collateralization and/or over collateralization payments have been made? Has the obligation been satisfied or assumed and assigned to a government sponsored entity, or in a bailout by the U.S. Treasury or Federal Reserve. Chances are the servicer can only say whether the maker of the note paid the servicer. The servicer cannot say and doesn’t know about third party payments on the note. He also cannot say whetehr paymentes were received by the payee or holder of the note by the borrower nor does he state the authority of the servicer to intermediate the payments.

5. “The entries are made”: How does he know that the entries are made and if so, by whom, under what authority and based upon what information. We already know he might be an employee of the Plaintiff and not the servicer. So he lacks competency to state anything about the business process or record keeping of the servicer.

6. “either people with first hand knowledge or…” if they didn’t have first hand knowledge then somehow they got information from people who had first hand knowledge. Really? who? And how would he know about any of it?

7. “recording such entries is a regular practice of servicer or plaintiff”: Well, which is it? Which one is he saying has what information? He clearly is only saying that the records of only one company are involved, but he won’t say which one. What about the other one. Were payments made by borrower to one or the other or both? This second admission that there are two entities involved means at the very least that two affidavits are required — one from the servicer and one from the payee on the note. If the note has been assigned, then a third, fourth fifth etc affidavit needs to be executed by all those who have or ever had a claim to the revenue from the note.

8. “There is now due” Lack of foundation for all the above reasons. Affidavit is subject to Motion to strike.

9. The numbers stated as charges to the account are unsubstantiated by copies of invoices or any other corroboration.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-238: Jury trial of right. (a) Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.

(B) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by: (1) Serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue; and (2) filing the demand as required by K.S.A. 60-205 and amendments thereto. Such demand may be indorsed upon a pleading of the party.

© Same; specification of issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

(d) Waiver. The failure of a party to serve and file a demand as required by this section constitutes a waiver by the party of trial by jury but waiver of a jury trial may be set aside by the judge in the interest of justice or when the waiver inadvertently results without serious negligence of the party. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

History: L. 1963, ch. 303, 60-238; L. 1997, ch. 173, § 21; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-239: Trial by jury or by the court. (a) By jury. When trial by jury has been demanded as provided in K.S.A. 60-238, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the constitution or statutes.

(B) By the court. Issues not demanded for trial as provided in K.S.A. 60-238 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right, the court in its discretion may order a trial by jury of any or all issues.

© Advisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or (except in actions against the state when a statute of the state provides for trial without a jury) the court, with the consent of all parties, may order a trial with a jury whose verdict shall have the same effect as if trial by jury had been a matter of right.

History: L. 1963, ch. 303, 60-239; Jan. 1, 1964.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-243: Evidence. (a) Form and admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by this article. All evidence shall be admitted which is admissible under specific statutes or article 4 of this chapter. The competency of a witness to testify shall be determined in like manner.

(B) Scope of examination and cross-examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate such witness by leading questions and contradict such witness and impeach such witness in all respects as if such witness had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of such witness' examination in chief.

© Record of excluded evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what the examining attorney expects to prove by the answer of the witness. The offer shall be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.

(d) Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

(e) Interpreters. In accordance with K.S.A. 75-4351 through 75-4355d and amendments thereto, the court may appoint an interpreter of its own selection and fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or, subject to the limitations in K.S.A. 75-4352 and 75-4355b and amendments thereto, by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.

History: L. 1963, ch. 303, 60-243; amended by Supreme Court order dated July 17, 1969; L. 1997, ch. 173, § 23; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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60-245a: Subpoena of records of a business not a party. (a) As used in this section:

(1) "Business" means any kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

(2) "Business records" means writings made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded.

(B) A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed.

Unless the personal attendance of a custodian of the business records and the production of original business records are required under subsection (d), it is sufficient compliance with a subpoena of business records if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described in the subpoena and mails a copy of the affidavit accompanying the records to the party or attorney requesting them within 14 days after receipt of the subpoena.

The records described in the subpoena shall be accompanied by the affidavit of a custodian of the records, stating in substance each of the following: (1) The affiant is a duly authorized custodian of the records and has authority to certify records; (2) the copy is a true copy of all the records described in the subpoena; and (3) the records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded.

If the business has none of the records described in the subpoena, or only part thereof, the affiant shall so state in the affidavit and shall send only those records of which the affiant has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made.

The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of the subpoena are clearly inscribed. If return of the copy is desired, the words "return requested" must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court. Thirty days after termination of the case, records which are not introduced in evidence or required as part of the record may be destroyed or returned to the custodian of the records who submitted them if return has been requested after notice is given.

The reasonable costs of providing the copying of the records may be demanded of the party causing the subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.

© The subpoena shall be accompanied by an affidavit to be used by the records custodian.

(d) Any party may require the personal attendance of a custodian of business records and the production of original business records by causing a subpoena duces tecum to be issued.

(e) Notice of intent to request the issuance of a subpoena pursuant to this section where the attendance of the custodian of the business records is not required shall be given to all parties to the action at least 10 days prior to the issuance thereof by the party requesting issuance of the subpoena. A copy of the proposed subpoena shall also be served upon all parties along with such notice. In the event any party objects to the production of the documents sought by such subpoena prior to its issuance, the subpoena shall not be issued until further order of the court in which the action is pending. If receipt of the records makes the taking of a deposition unnecessary, the party who caused the subpoena for the business records to be issued shall cancel the deposition and shall notify the other parties to the action in writing of the receipt of the records and the cancellation of the deposition.

After the copy of the record is filed, a party desiring to inspect or copy it shall give reasonable notice to every other party to the action. The notice shall state the time and place of inspection. Thirty days after termination of the case, records which are not introduced in evidence or required as part of the record may be destroyed or returned to the custodian of the records who submitted them if return has been requested after notice has been given.

History: L. 1985, ch. 196, § 1; L. 1997, ch. 173, § 25; L. 2000, ch. 145, § 1; L. 2004, ch. 176, § 1; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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50-618: Unsolicited credit cards; rights of recipient when card lost or stolen. Whenever any person, firm, partnership, association, corporation or other business organization, or any agent thereof, shall voluntarily issue or cause to be issued a credit card, as defined by K.S.A. 21-3729, where the person to whom the card is issued has not requested or solicited such issuance, and has neither signed nor used such card, the person to whom the card is issued shall not be liable for any use or misuse of such card if it shall be lost or stolen. In any action for the return of said credit card, or for the return of any goods, wares or merchandise acquired through use of said credit card subsequent to it being lost by or stolen from the recipient thereof, or for the payment of the purchase price of said goods, wares or merchandise, it shall be a complete defense by such recipient that the credit card was issued, sent or delivered, or caused to be issued, sent or delivered, to the recipient unsolicited or that the recipient did not actually order or request the same and that the recipient neither signed nor used such card. Where any person has requested or solicited the issuance of a credit card from any person, firm, partnership, association, corporation or other business organization, or any agent thereof or such person has signed or used such card, the reissuance or renewal of such card, regardless of any specific request or solicitation therefor by the holder of such card, shall not be deemed to be the receipt of an unsolicited credit card within the meaning of this act.

History: L. 1970, ch. 212, § 1; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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50-626: Deceptive acts and practices. (a) No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.

(B) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:

(1) Representations made knowingly or with reason to know that:

(A) Property or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have;

(B) the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have;

© property is original or new, if such property has been deteriorated, altered, reconditioned, repossessed or is second-hand or otherwise used to an extent that is materially different from the representation;

(D) property or services are of particular standard, quality, grade, style or model, if they are of another which differs materially from the representation;

(E) the consumer will receive a rebate, discount or other benefit as an inducement for entering into a consumer transaction in return for giving the supplier the names of prospective consumers or otherwise helping the supplier to enter into other consumer transactions, if receipt of benefit is contingent on an event occurring after the consumer enters into the transaction;

(F) property or services has uses, benefits or characteristics unless the supplier relied upon and possesses a reasonable basis for making such representation; or

(G) use, benefit or characteristic of property or services has been proven or otherwise substantiated unless the supplier relied upon and possesses the type and amount of proof or substantiation represented to exist;

(2) the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact;

(3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact;

(4) disparaging the property, services or business of another by making, knowingly or with reason to know, false or misleading representations of material facts;

(5) offering property or services without intent to sell them;

(6) offering property or services without intent to supply reasonable, expectable public demand, unless the offer discloses the limitation;

(7) making false or misleading representations, knowingly or with reason to know, of fact concerning the reason for, existence of or amounts of price reductions, or the price in comparison to prices of competitors or one's own price at a past or future time;

(8) falsely stating, knowingly or with reason to know, that a consumer transaction involves consumer rights, remedies or obligations;

(9) falsely stating, knowingly or with reason to know, that services, replacements or repairs are needed;

(10) falsely stating, knowingly or with reason to know, the reasons for offering or supplying property or services at sale or discount prices;

(11) sending or delivering a solicitation for goods or services which could reasonably be interpreted or construed as a bill, invoice or statement of account due, unless:

(A) Such solicitation contains the following notice, on its face, in conspicuous and legible type in contrast by typography, layout or color with other printing on its face:

"THIS IS A SOLICITATION FOR THE PURCHASE OF GOODS OR SERVICES AND NOT A BILL, INVOICE OR STATEMENT OF ACCOUNT DUE. YOU ARE UNDER NO OBLIGATION TO MAKE ANY PAYMENTS UNLESS YOU ACCEPT THIS OFFER"; and

(B) such solicitation, if made by any classified telephone directory service not affiliated with a local telephone service in the area of service, contains the following notice, on its face, in a prominent and conspicuous manner:

"____________________________________ IS NOT AFFILIATED WITH

(name of telephone directory service)

ANY LOCAL TELEPHONE COMPANY";

(12) using, in any printed advertisement, an assumed or fictitious name for the conduct of such person's business that includes the name of any municipality, community or region or other description of the municipality, community or region in this state in such a manner as to suggest that such person's business is located in such municipality, community or region unless: (A) Such person's business is, in fact, located in such municipality, community or region; or (B) such person includes in any such printed advertisement the complete street and city address of the location from which such person's business is actually conducted. If located outside of Kansas, the state in which such person's business is located also shall be included. The provisions of this subsection shall not apply to the use of any trademark or service mark registered under the laws of this state or under federal law; any such name that, when applied to the goods or services of such person's business, is merely descriptive of them; or any such name that is merely a surname. Nothing in this subsection shall be construed to impose any liability on any publisher when such publisher had no knowledge the business was not, in fact, located in such municipality, community or region; and

(13) (A) making an oral solicitation for products or services based on a mortgage trigger lead unless the solicitation clearly and conspicuously states in the initial phase of the solicitation that the solicitor is not affiliated with the lender or broker with which the consumer initially applied and that the solicitation is based on personal information about the consumer that was purchased, directly or indirectly, from a consumer reporting agency without the knowledge or permission of the lender or broker with which the consumer initially applied;

(B) making a written solicitation for products or services based on a mortgage trigger lead unless the solicitation clearly and conspicuously states on the first page of the solicitation that the solicitor is not affiliated with the lender or broker with which the consumer initially applied and that the solicitation is based on personal information about the consumer that was purchased, directly or indirectly, from a consumer reporting agency without the knowledge or permission of the lender or broker with which the consumer initially applied. Clear and conspicuous shall include legible type in contrast by typography, layout or color with other printing on the first page of the correspondence; and

© any solicitor under clause (A) or (B) shall be in compliance with the provisions of the Kansas mortgage business act, unless otherwise exempted from such act, and any other law or regulation.

History: L. 1973, ch. 217, § 4; L. 1976, ch. 236, § 3; L. 1991, ch. 159, § 2; L. 1993, ch. 177, § 1; L. 2000, ch. 167, § 1; L. 2009, ch. 67, § 2; July 1

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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50-627: Unconscionable acts and practices. (a) No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction.

(B) The unconscionability of an act or practice is a question for the court. In determining whether an act or practice is unconscionable, the court shall consider circumstances of which the supplier knew or had reason to know, such as, but not limited to the following that:

(1) The supplier took advantage of the inability of the consumer reasonably to protect the consumer's interests because of the consumer's physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor;

(2) when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by similar consumers;

(3) the consumer was unable to receive a material benefit from the subject of the transaction;

(4) when the consumer transaction was entered into, there was no reasonable probability of payment of the obligation in full by the consumer;

(5) the transaction the supplier induced the consumer to enter into was excessively onesided in favor of the supplier;

(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer's detriment; and

(7) except as provided by K.S.A. 50-639, and amendments thereto, the supplier excluded, modified or otherwise attempted to limit either the implied warranties of merchantability and fitness for a particular purpose or any remedy provided by law for a breach of those warranties.

History: L. 1973, ch. 217, § 5; L. 1976, ch. 236, § 4; L. 1983, ch. 180, § 1; L. 1991, ch. 159, § 3; L. 1998, ch. 99, § 1; Apr. 16.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer and don't pretend to be one!

Edited by racecar

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