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I recently drafted my Opposition to MSJ. Here is what I wrote:

I, ********* am the defendant in the captioned matter. I hereby file my objection to the Motion for Summary Judgment filed by the Plaintiff. This motion should be denied on the grounds that there is a genuine issue of material fact in this case. I deny that the total amount of judgment sought by the Plaintiff in the amount of $2,470.93 on the grounds that it is not true, nor correct.

I certify that the forgoing statements made by me are true. I am aware that if any of the foregoing statements by me are willfully false, I am subject to punishment.

Now, if I were to present this without being able to obtain any supporting evidence, and the amount does turn out to be true and correct, would I be subject to punishment? I'm really just going by the fact that other than a certification from a CapOne Bank employee, the Plaintiff has presented no evidence in the MSJ that the amount of money I owe has all been accounted for. I really don't know if everything adds up, so am I lying?

Mike

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And, the plaintiff could still get a partial summary judgment (depending on the rules) because you seem to be confessing to owing the debt. It's only a matter of the amount.

Did you deny owing the debt when you answered the complaint?

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I do intend to file this. I just want to know if it sounds like I could be punished for lying based on my assertion that the amount is not correct. I mean, in my mind, it is probably correct, but there is a small chance that it isn't. Plus, does the argument sound frivolous or immaterial?

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doesn't have personal first-hand knowledge of the account. also neither does the anybody else unless they do that is a triable issue.

Throw the In re: Vinhee admissibility issues in there also. find every case about billing records authentication in there and don't I say again don't put what you said in there. The judge will surely grant that.

Say the plaintiff's have given you nothing to prove standing, properly authenticated records or anything else.

That raises triable issues, that is what you need to do to defeat summary judgment. Read oppositions to summary judgment posts on here to get the gist.

I guarantee if you just say the amount is the only thing that is bad the judge will rule for them.

Also put in there that the plaintiff's have thwarted your discovery requests which would allow you to prove triable issues exist. That would be a better way to go.

You initially answered you don't know now you are implying that you now know the account is yours. You can see on those oppositions to SJ motions how to keep your responses truthful but vague.

I know you are afraid of the judge but if you check your court you will find that the court very rarely levies perjury charges unless you boldface lie. the key is to tell the truth without giving up your position.

Their SJ evidence can be objected to and struck. read Imwinklreid's 12 point evidence admissibilty for the electronic age.

and remember every single piece of evidence they have is a printout of an electronic file. say you have requested the electronic files and metadata fields but they gave unauthenticated paper printouts.

anything is better than that

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I do intend to file this.

Intend to lose.

I just want to know if it sounds like I could be punished for lying based on my assertion that the amount is not correct.

About the same odds of the person that swears they were not speeding when the cop clocks them going 90 MPH. Then argues in court and at trial they were not speeding even with the cop in court and even after the cop takes the stand and says you were.

You make the argument yourself. How is somebody going to read your mind. If you tell me you don't you owe X amount of money, how I can I prove you really think you do. I can prove all day long you do owe the money, but how can I prove you don't really think you owe it.

Plus, does the argument sound frivolous or immaterial?

It's not even close to being frivolous. It's one of the least frivolous arguments the court will hear. It wraps the case up pretty quick.

Immaterial? Not at all. It is one of the most material elements to the case. The amount owed after liability for the debt has been established. Your already conceeding the first element (liability for the debt), so this is the final element they must prove, what the amount to date is you do owe.

Why not just try to work out something with the other side. They will probably knock off 20 or 30 percent of the amount owed. Once they get the judgement, the time to work out a deal is gone. They will have a judgment.

Call them up and see what you can work out. Your basically guaranteed to lose with the argument your getting ready to make. The best case is like the other poster stated, a partial summary judgment granted.

You have zero to worry about as far as if you will get in trouble for lying or if your position is frivilous. Your almost guaranteed to lose but you have nothing to worry about as far as getting in trouble or catching a criminal charge based on your argument.

You do what you think is best and what your comfortable doing. However, your getting ready to doom your case the second you file that response to their summary judgement motion.

In my opinion, at least make them work for it.

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The problem here is that I feel that Capital One dotted all of their I's and crossed their T's.

First, they have attached a copy of a paper statement complete with my account number, name and address, and all other relevant information that would be found on a bill.

Secondly, they have a Certificate of Proof signed by a Capital One employee claiming that she reviewed my records and that credit has been given to me for all just and lawful offsets, payments, and credits.

How do I dispute the bill?

How do I dispute the Certificate?

I've read several posts about MSJ but could not find a situation similar to mine.

I feel like I'm going up a river on a boat with no paddle.

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The problem here is that I feel that Capital One dotted all of their I's and crossed their T's.

First, they have attached a copy of a paper statement complete with my account number, name and address, and all other relevant information that would be found on a bill.

Are they suing based on account stated, breach of contract, or something else?

Secondly, they have a Certificate of Proof signed by a Capital One employee claiming that she reviewed my records and that credit has been given to me for all just and lawful offsets, payments, and credits.

That's what we call hearsay. If the judge in your case follows the rules, it will not be admissible, though you have to raise that issue.

How do I dispute the bill?

How do I dispute the Certificate?

I've read several posts about MSJ but could not find a situation similar to mine.

I feel like I'm going up a river on a boat with no paddle.

As for disputing the bill, that depends on information that I do not have, but there are probably numerous ways to fight it, depending on how much time you want to spend. The certificate (you mean affidavit?) is full of hearsay. Read your state's rules of civil procedure and rules of evidence. A party can't just use an affidavit that claims that business records show X, Y and Z without actually providing those business records that actually show X, Y and Z.

You may not be up the creek with no paddle.

You should also edit your first post and round the dollar value off to something less identifiable. $2500 would work nicely.

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Spend some time searching Cap1 and Summary Judgement on this board.

You have options. There are ways to deny without lying. It just takes a little research. There are ways to attack their evidence that they need to prove their claim.

It is a bit much to try to boil down to one post and some of it has been said already. Most of us have been in your position, so we are not just attempting to discourage you for ego's sake, we are trying to discourage you from your current path because it is a losing one, and we know that there are other options.

Keep reading, searching and posting and hopefully you can get a better result than what you are anticipating.

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I feel like I'm going up a river on a boat with no paddle.

Your feeling exactly how they want you to feel. As USAGI555 correctly pointed out, what they have attached is inadmissible hearsay (if the issue is raised).

You don't have to attack the issue of the debt or if you owe it. You can attack the evidence. Attack, and win on that attack, the rest takes care of itself.

I'll be upfront for sure. Cap One is not like fighting a JDB. They are an OC and they very well may have all their T's crossed and I's dotted. They do a lot of the time. However, I would not assume just based on the tiny bit of evidence they attached to the complaint.

What they attached is called prima facie evidence. What they must have to win is admissible evidence that proves their case by tipping the scales in their favor. They have that burden. As I said before, your giving them a free pass on proving that burden with what you want to argue.

Tons of info on Cap One can be found here. Once again, Cap One is not pushover like a JDB or a CA. However, they can be beat and there are plenty of legit (meaning you can look at the court records) cases posted where they have been defeated.

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I also know that in my state for a $2500 debt, Crap1 would be easy to beat. They're not going to fly in a witness nor would the attorneys that Crap1 exclusively uses take the time to properly depose a witness. They might for a $25,000 debt, but not for one tenth of that. So long as you survived any MSJ filed, they would wind up with zero admissible evidence. The attorneys are sloppy enough that if you hammer home the hearsay point hard enough, their MSJs should be beatable. They'll have the affidavit filed with the complaint, then 3-6 months later get all of the statements and try to slip them in under that original affidavit. That doesn't fly.

If you really take the time to learn how NJ's court system works as well as all of the rules, you may just find that is the case where you are. Debt collection attorneys who work on high volume tend to be sloppy. It's just the nature of the business. Find out if that's the case where you are, and if it is, you can use it to your advantage.

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Your feeling exactly how they want you to feel. As USAGI555 correctly pointed out, what they have attached is inadmissible hearsay (if the issue is raised).

You don't have to attack the issue of the debt or if you owe it. You can attack the evidence. Attack, and win on that attack, the rest takes care of itself.

I'll be upfront for sure. Cap One is not like fighting a JDB. They are an OC and they very well may have all their T's crossed and I's dotted. They do a lot of the time. However, I would not assume just based on the tiny bit of evidence they attached to the complaint.

What they attached is called prima facie evidence. What they must have to win is admissible evidence that proves their case by tipping the scales in their favor. They have that burden. As I said before, your giving them a free pass on proving that burden with what you want to argue.

Tons of info on Cap One can be found here. Once again, Cap One is not pushover like a JDB or a CA. However, they can be beat and there are plenty of legit (meaning you can look at the court records) cases posted where they have been defeated.

Just a question. If Cap1 is the Plaintiff and the affidavit is from a Cap1 employee, why would the court consider the affidavit to be hearsay?

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Just a question. If Cap1 is the Plaintiff and the affidavit is from a Cap1 employee, why would the court consider the affidavit to be hearsay?

Just because the affiant is a Crap1 employee doesn't mean that person has personal knowledge of what the business records reviewed document. Personal knowledge is the key here, and some robosigned affidavit doesn't cut it. If you say "I reviewed the business records..." I'm going to say that you did not create those records, which means that they are a statement made by somebody other than you outside of court. That's hearsay.

OCs are using JDB court tactics and strategies more and more now. They file a barebones complaint with the intent of getting the default judgment in their favor. It's all about quantity now, not quality.

If you want to see something scary, look and compare March of 2005 to March of this year in NM with both Midland and Capital One using this site:

Caselookup - Disclaimer

Keep in mind that the site will return no more than 200 cases per search, and to get the full number if it is greater than that requires restricting the dates of the search to a time period where less than 200 cases were filed. For Capital One in March of this year, that could be just a couple of days.

Edited by usagi555
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Just because the affiant is a Crap1 employee doesn't mean that person has personal knowledge of what the business records reviewed document. Personal knowledge is the key here, and some robosigned affidavit doesn't cut it. If you say "I reviewed the business records..." I'm going to say that you did not create those records, which means that they are a statement made by somebody other than you outside of court. That's hearsay.

OCs are using JDB court tactics and strategies more and more now. They file a barebones complaint with the intent of getting the default judgment in their favor. It's all about quantity now, not quality.

If you want to see something scary, look and compare March of 2005 to March of this year in NM with both Midland and Capital One using this site:

Caselookup - Disclaimer

Keep in mind that the site will return no more than 200 cases per search, and to get the full number if it is greater than that requires restricting the dates of the search to a time period where less than 200 cases were filed. For Capital One in March of this year, that could be just a couple of days.

I understand all of that, but you would have to subpoena the affiant. An affidavit from the OC is not automatically hearsay.

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I understand all of that, but you would have to subpoena the affiant. An affidavit from the OC is not automatically hearsay.

Unless the affiant him or herself created the business records in question based on personal knowledge and stated as much, any statement along the lines of "Based on a review of Crap1's business records, the defendant did X, Y and Z." is hearsay. Being employed by the OC means nothing, and you wouldn't have to subpoena the affiant.

When being employed by the OC means something is when they are testifying that the business records do, in fact, fall under the records of regularly conducted activity exception to hearsay. However, here they aren't saying "based on a review of the business records..." they are saying "these records attached to this affidavit were made at or near the time of the event in question by a person with personal knowledge or by information transmitted by such a person, and it is a regular business practice to keep such records."

On top of that, if it makes it to trial, an affidavit won't cut it, at least not here. It wouldn't even be allowed by any judge following the rules, no matter how much personal knowledge the affiant has.

Edited by usagi555
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Unless the affiant him or herself created the business records in question based on personal knowledge and stated as much, any statement along the lines of "Based on a review of Crap1's business records, the defendant did X, Y and Z." is hearsay. Being employed by the OC means nothing, and you wouldn't have to subpoena the affiant.

When being employed by the OC means something is when they are testifying that the business records do, in fact, fall under the records of regularly conducted activity exception to hearsay. However, here they aren't saying "based on a review of the business records..." they are saying "these records attached to this affidavit were made at or near the time of the event in question by a person with personal knowledge or by information transmitted by such a person, and it is a regular business practice to keep such records."

On top of that, if it makes it to trial, an affidavit won't cut it, at least not here. It wouldn't even be allowed by any judge following the rules, no matter how much personal knowledge the affiant has.

It would cut it in my state. Most of the affidavits I've read from posters on this board state that the affiant has reviewed the records. As you and I both stated, you would have to subpoena the affiant to find out what they consider a "review".

Regarding evidence, the rules of evidence in my state mirror the federal rules of evidence.

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness;

An affidavit from the OC containing the language from the above rule would be very compelling. Unless you could show that the affiant had no connection to those records, it would be difficult to prove the OC can't verify their own records.

I'm not trying to argue and state that it can't be done. My point was that we can't, without a doubt, state that an affidavit from the OC is automatically hearsay.

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It would cut it in my state. Most of the affidavits I've read from posters on this board state that the affiant has reviewed the records. As you and I both stated, you would have to subpoena the affiant to find out what they consider a "review".

Regarding evidence, the rules of evidence in my state mirror the federal rules of evidence.

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness;

An affidavit from the OC containing the language from the above rule would be very compelling. Unless you could show that the affiant had no connection to those records, it would be difficult to prove the OC can't verify their own records.

I'm not trying to argue and state that it can't be done. My point was that we can't, without a doubt, state that an affidavit from the OC is automatically hearsay.

Yes, you can state without a doubt that a statement from an affiant based on nothing more than a review of business records is hearsay. It doesn't matter how diligent the review was. The rule that you posted does not apply to statements based on records of regularly conducted activity, it applies to the records themselves. Even if you wanted to claim that it didn't, what is in the affidavit was not made at or near the time of the event(s) being documented, and thus it still doesn't fall under the exception.

The problem with hearsay for most pro se defendants is that they have to raise the issue and they have to challenge it. The court isn't going to do it for them.

Edited by usagi555
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Sorry, should have been more clear. It's hearsay if you raise the issue. It's still hearsay at trial without the person there to be cross examined.

A better way would have been to say it's hearsay in the form it is right now. Also it can, depending on the courts, be considered true and correct if an objection to the affidavit is not raised.

It's more prima facie evidence at this point, which of course is not enough to win, IF there is a defense to the evidence raised. The OP would need to raise the issue to defeat the summary judgement. The best way is to file their own affidavit in direct opposition to the Cap One affidavit (not the one they have listed in this thread).

Then you have dueling affidavits and then a material fact of dispute and then a reason for a trial. Also that raises the objection to the affidavit and clearly shows the OP would not be agreeing, by their lack of objection, the affidavit is true and correct.

Once that is done, then even though from the OC Cap One the affidavit would be hearsay at trial since the person writing the affidavit would have to be present. The OP can't cross examine an affidavit.

The best defense, in my opinion, is to raise the issue of how many affidavits this person signs, what is the real personal knowledge, how long of an employee, duties, what is considered personal knowledge, what are the record keeping procedures. You simply can't get those answers from an affidavit. It requires a witness. What I just wrote are legit concerns and enough, along with an objection and denial of claim, to defeat MSJ and to raise beyond any doubt the affidavit is hearsay.

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You have no reason not to oppose the motion. I know you are scared and don't feel you are up to it, but you have many people willing to help. You need to calm down and think about it.

Whatever you decide we can help. Settlement is really not that much of an option at this point because you have no leverage. You haven't raised the bar for them. the opposition kinda raises the bar for them. if you get the triable issues past this they will drop the settlement amount.

We are all on your side how can you lose:)

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