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THEY QUIT! Dismissed WITH Prejudice!!!


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I was all ready to go court tomorrow and cut out their heart and feed it to the pigs.

I faxed my trial brief the the attorney and two hours later, they made motion for dismissal WITH prejudice. Judge has already signed it and those scumbags can kiss my ivory-white butt!!!!

:BigDance::BigDance::BigDance::BigDance::BigDance:

Many thanks to ColtFan, SeaDragon (My version of your redacted brief made them surrender), LegalEagle, everyone on this site who helped -- a HUGE Thank you!!!!!!!!!

::allhail::::allhail::::allhail::::allhail::

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Excellent news!

BTW, if you don't mind sharing, who was the plaintiff and who were their attorneys?

Plaintiff was Equable Ascent Financial JDB from Chase and the attorney was Macholl & Johannes from Denver. Arianne Granowski.

These guys have over 500 suits filed in Southern Colorado -- all from Chase. No telling how many in Denver.

Taking to the wife out to dinner!

Edited by First Timer
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I am not making this up...

This morning I was reading your "two days til trial" thread and thought to myself, " I bet these suckers give up right before the trial"!!!!

I am sure Seadragon's brief is AMAZING! But your spirit and fight were evident in your postings and I think that makes the biggest difference in these lawsuits!

:DiscParty:xguitarx((ChristPogo))

Way to go!

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COUNTY COURT, My County , COLORADO

Plaintiffs(s):

Equable Ascent Financial, LLC

v.

Defendant(s):

Redacted

Attorneys for Plaintiff

Arianne K. Gronowski, #36134;

Jacques A. Machol, Jr, #3502

Macholl & Johannes, LLC

Case No.

DEFENDANT'S TRIAL BRIEF

ORAL ARGUMENTS REQUESTED

Defendant requests the court take Judicial Notice of the filings and Declarations of the courts file,and all other papers and exhibits that may be presented at the trial of the above captioned matter. Defendant requests oral arguments at the trial in the matter.

i. TABLE OF CONTENTS

Caption page....................................................................................................................................Pg. 1

i. TABLE OF CONTENTS........................................................................................................... Pg. 2

ii. TABLE OF AUTHORITIES.................................................................................................... Pg. 3

I.Introduction................................................................................................................................ Pg. 4

II. Plaintiff lacks standing to proceed in this matter.................................................................. Pg. 5

III.Defendants in Limine matters and evidence exclusion.........................................................Pg. 5

a. Plaintiffs Witness............................................................................................................Pg. 5

c. Plaintiffs alleged bill of sale............................................................................................Pg. 8

d. Exhibit 1 Alleged Cardmember Agreement.................................................................Pg. 8 e. Other in limine matters and exclusions.........................................................................Pg. 9

VIII. Discovery Violations.............................................................................................................Pg.11

IX. Conclusions..............................................................................................................................Pg.12

ii. TABLE OF AUTHORITIES

Cases

Teller v Ferguson , 24 Colo. 432, 437, 51 Pac. 429......................................................................pg 5

American Express Travel Related Servs. Co., Inc. v. Vinhnee (In re Vinhnee), 336 B.R. 437

Bankr. 9th Cir. 2005)........................................................................................................................Pg. 6

Mace v. Spaulding, 110 Colo. 58, 130 P.2d 89 (1942)....................................................................Pg. 6

People v. Ortega, 672 P.2d 215 (Colo. App. 1983)..........................................................................Pg. 6

Pudas v. Mattola, 173 Mich. 189, 45 L. R. A. (N.S.) 634, 138 N. W. 1052......................................Pg.6

Johnson v. Stilwell, - Or. - , 176 Pac. 123.......................................................................................Pg. 5

Simonton v. Continental Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973).............................Page 8

Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972)..........................................Page 6

Evidence and Civil Procedure Rules

Co. Rules Civil Procedure (CRCPP chapter 4, section 26)...............................................................Pg.4

Co. Rules Civil Procedure(CRCPP chapter 4, section 37)................................................................Pg.5

Co. Rules of Evidence 406, 802, 803, 805, 901, 601, 901, 902

Legal Journals

William Henry Page, Law of Contracts, Vol. 4, section 2523 …....................................................Pg. 6

William Henry Page, Law of Contracts, Vol. 4, section 2518 …....................................................Pg. 6

Edward J. Imwinkelried, Evidentiary Foundations, 63 (1980)........................................................Pg. 6

I. Introduction

The case at issue is governed by Colorado state and federal statutes in the area of fair debt collection practices, Colorado Rules of Civil Procedure and Colorado Rules of Evidence.

Plaintiff's have violated a number of these Rules and Procedures in the course of these proceedings.

1. The complaint at issue is filled with unsupported claims, hearsay, and inaccuracies.

2. Defendant has answered the complaint after service. The answer has several valid affirmative defenses.

3. Defendant has never entered into an agreement with the plaintiffs.

4. The plaintiffs have been informed that the alleged debt is not valid, and plaintiffs have not validated the alleged debt.

7. Plaintiffs have used hearsay statements and documents in the pleadings of the case.

8. Plaintiff's alleged Bill of Sale does not properly show assignment of the alleged account to the Plaintiff have left them with a lack of standing.

9. Plaintiff's witness cannot authenticate the records of another entity.

10. Plaintiff's failure introduce the most basic elementary evidence to support a claim of Account Stated has left them with no claim under Account Stated.

11. Plaintiffs have failed to produce any evidence of the existence of an account between the Defendant and the alleged original creditor.

12. Plaintiffs have produced to no evidence to support their claims and instead are relying on the the court to accept their unsupported assertions that the alleged account existed, defaulted and properly assigned.

II. Plaintiff lacks standing to proceed in this matter

1. The defendant requests the court find that Plaintiffs have failed to prove standing.

(a.) Without an authenticated Bill of Sale and supporting evidence to prove the existence of (1) an account, (2) an amount owed, (3) proper assignment, and (4) chain of ownership, Plaintiff lacks standing to seek relief.

(b.) No documentation of the existence of an account for the alleged original creditor with the Defendants name, alleged account number or alleged amount owed has been produced by the Plaintiff. Without authenticated, verifiable proof of a debt owed, the Plaintiff has no standing to seek relief.

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III.Defendants in Limine matters and evidence exclusion

a. Plaintiffs Witness (or Representative of Equable Ascent Financial, LLC)

1. Plaintiffs have submitted Jeff Hasenmiller, or an associate for Equable Ascent Financial LLC to testify as to the authenticity and validity of the records as business records of the plaintiff. The witness has no Personal Knowledge of the authenticity or validity of the documents presented, as Plaintiff was not the originator of the documents. Any statements are based on hearsay(Rule 802), lack of Foundation (personal knowledge (Rule 602),Improper Authentication(Rule 901), and lack Self-Authentification (Rule 902). Defendant objects to the witness on these grounds. Defendant requests the court that the witness' testimony be excluded and stricken from the record.

2. The Documents marked as Plaintiffs (EXHIBIT 1 and 2) show marks of the type usually added by image processing software on the front and the back. The marks are consistent with marks that delineate the selection boundaries for elements of an image that will be changed. This leads defendant to believe that the alleged Cardmember Agreement and alleged Bill of Sale are computer stored images.

3. The United States Bankruptcy Panel 9th circuit weighs in on computer records evidentiary foundation standards in it's decision in In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) The court found the complexity of “ever-developing computer technology” requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005)Id at 445. Other legal scholars have written about this need for the 11 step process cited by the court. In Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A StricterStandard for the Future? He stated “The Vinhnee court’s emphasis on reliability, accuracy, and system knowledge is consistent with urgings by the Manual and some scholars. Though it employs an eleven-step foundation process that has not previously been cited by courts, the key inquiries are into accuracy and reliability. These issues are not new and are the crux of traditional authentication inquiries in all areas of evidence.

Imwinkelried’s foundation process has been in circulation since 1980 and his Evidentiary Foundations book is a widely employed trial tool.”1

c. Plaintiff's Alleged Bill of Sale

1. Plaintiffs have submitted an alleged bill of sale which fails to include necessary data and authentication to offer proof of any account purchase. The proffered document (Plaintiffs EXHIBIT 1) is vague and non responsive as to fact of any accounts allegedly purchased. The present exhibit (Plaintiffs EXHIBIT 1) was given to defendant on 01/10/2012. Defendant questions the authenticity. “Defendant objects to them on the grounds of hearsay (Evidence Rule 802), lack of personal knowledge(Rule 602), improper Authentication(Rule 902), assumes facts not in evidence, and Defendant requests that they be stricken from the record and excluded as evidence.”

2. The alleged bill of sale does not reference the account in dispute in this case. It is also not properly notarized to authenticate the illegible signatures on the face of the document. It is not properly authenticated by the alleged original creditor and is highly suspect. There is no other evidence to support that this document is relative to the Defendant or the the alleged account and is irrelevant (Rule 402). Acceptance of this irrelevant document would unfairly prejudice the Defendant under People v. Ortega, 672 P.2d 215 (Colo. App. 1983) and (Rule 403). Defendant requests the court strike EXHIBIT 1 and exclude it as evidence. The lack of plaintiff'ss capacity to bring suit will have to be addressed.

3. Plaintiff is not party to the alleged bill of sale. The document clearly states that Hilco Receivables LLC was the purchase of the 38,062 accounts, not Equable Ascent. No evidence of transfer or reassignment has been supported by evidence. This brings the authenticity of the document into question under Evidence rule 901. Defendant requests that the Court exclude Exhibit 1, the alleged bill of sale for lack of authentication (Rule 902), Hearsay (Rule 802), Irrelevance (Rule 402) and Prejudice (Rule 403).

e. Other in limine matters and exclusions

1. Defendant also requests that any evidence or information not propounded to defendant before 10 January, 2012, the deadline for disclosure and discovery, be excluded and not be allowed into testimony due to surprise at trial. Plaintiffs failed to produce disclosure in compliance with CRCP, chapter 4, section 26. Plaintiff was required to submit to Defendant a list or persons, with contact information, who may have testimony relevant to the claim or the answer. Further, Plaintiff failed to disclose a list of documents and copies of documents relevant to the claim and the answer in compliance with CRCP chapter 4, section 26.(CRCP, chapter 4, 26 & 37)

III. Discovery Violations

Plaintiffs failed to produce discovery in compliance with CRCP, chapter 4, section 26. Plaintiff was required to submit to Defendant a list or persons, with contact information, who may have testimony relevant to the claim or the answer. Further, Plaintiff failed to produce a list of documents and copies of documents relevant to the claim and the answer in compliance with CRCP chapter 4, section 26.

IV. Account Stated

Plaintiff claims relief under “Account Stated”.

“The existence of a valid obligation is necessary as the basis of an account stated.” Law of Contracts, Vol. 4, section 2523, William Herbert Page

“In order that an account may be stated, it is necessary in the first instance that there should be a presentation of what the law recognizes as an account.” Law of Contracts, Vol. 4, section 2518, William Herbert Page

To constitute “an account stated," there must have been (a) an accounting between the parties, (B) a balance struck, and © a promise, express or implied, to pay such balance to the plaintiff. Teller v Ferguson , 24 Colo. 432, 437, 51 Pac. 429.

Mace v. Spaulding, 110 Colo. 58, 130 P.2d 89 (1942), defines the elements necessary to establish a claim for account stated, namely: a statement for sums due presented by plaintiff to defendant and an agreement between plaintiff and defendant that the account is correct and that the agreed amount is due from defendant to plaintiff.

The Plaintiff has failed to produce any evidence, whether in the form of a final statement or notice of an accounting between creditor and debtor sent to and received by the debtor. Without evidence or testimony validating (1) the existence an accounting or (2) service of said accounting and (3) that the accounting was held by the debtor for a reasonable period of time without objection, then there is (a) no accounting between the parties, (B) no balance struck, and © no promise to pay such balance as referenced in Teller v. Ferguson and Mace v. Spaulding and does not constitute an “Account Stated.”

V. Conclusion

Defendant believes the plaintiff has failed to meet their burden of proof. “The Plaintiff has the burden to prove their case” - Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972) The case should be decided in defendant 's favor. Defendant requests the court dismiss the suit with prejudice and allow recovery of costs of suit, damages for lost wages, and any relief the court deems proper.

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I lost all the formatting in the copy and paste, but you'll get the idea. I obviously customized for my situation, inserted Colorado Case law, and added a section on the plaintiff's witness and on account stated.

I really wanted to torture them in court, but I guess they didn't want to burn $300/hr sending a sock puppet lawyer to court just to lose...

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III.Defendants in Limine matters and evidence exclusion

a. Plaintiffs Witness (or Representative of Equable Ascent Financial, LLC)

1. Plaintiffs have submitted Jeff Hasenmiller, or an associate for Equable Ascent Financial LLC to testify as to the authenticity and validity of the records as business records of the plaintiff. The witness has no Personal Knowledge of the authenticity or validity of the documents presented, as Plaintiff was not the originator of the documents. Any statements are based on hearsay(Rule 802), lack of Foundation (personal knowledge (Rule 602),Improper Authentication(Rule 901), and lack Self-Authentification (Rule 902). Defendant objects to the witness on these grounds. Defendant requests the court that the witness' testimony be excluded and stricken from the record.

2. The Documents marked as Plaintiffs (EXHIBIT 1 and 2) show marks of the type usually added by image processing software on the front and the back. The marks are consistent with marks that delineate the selection boundaries for elements of an image that will be changed. This leads defendant to believe that the alleged Cardmember Agreement and alleged Bill of Sale are computer stored images.

3. The United States Bankruptcy Panel 9th circuit weighs in on computer records evidentiary foundation standards in it's decision in In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) The court found the complexity of “ever-developing computer technology” requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005)Id at 445. Other legal scholars have written about this need for the 11 step process cited by the court. In Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A StricterStandard for the Future? He stated “The Vinhnee court’s emphasis on reliability, accuracy, and system knowledge is consistent with urgings by the Manual and some scholars. Though it employs an eleven-step foundation process that has not previously been cited by courts, the key inquiries are into accuracy and reliability. These issues are not new and are the crux of traditional authentication inquiries in all areas of evidence.

Imwinkelried’s foundation process has been in circulation since 1980 and his Evidentiary Foundations book is a widely employed trial tool.”1

c. Plaintiff's Alleged Bill of Sale

1. Plaintiffs have submitted an alleged bill of sale which fails to include necessary data and authentication to offer proof of any account purchase. The proffered document (Plaintiffs EXHIBIT 1) is vague and non responsive as to fact of any accounts allegedly purchased. The present exhibit (Plaintiffs EXHIBIT 1) was given to defendant on 01/10/2012. Defendant questions the authenticity. “Defendant objects to them on the grounds of hearsay (Evidence Rule 802), lack of personal knowledge(Rule 602), improper Authentication(Rule 902), assumes facts not in evidence, and Defendant requests that they be stricken from the record and excluded as evidence.”

2. The alleged bill of sale does not reference the account in dispute in this case. It is also not properly notarized to authenticate the illegible signatures on the face of the document. It is not properly authenticated by the alleged original creditor and is highly suspect. There is no other evidence to support that this document is relative to the Defendant or the the alleged account and is irrelevant (Rule 402). Acceptance of this irrelevant document would unfairly prejudice the Defendant under People v. Ortega, 672 P.2d 215 (Colo. App. 1983) and (Rule 403). Defendant requests the court strike EXHIBIT 1 and exclude it as evidence. The lack of plaintiff'ss capacity to bring suit will have to be addressed.

3. Plaintiff is not party to the alleged bill of sale. The document clearly states that Hilco Receivables LLC was the purchase of the 38,062 accounts, not Equable Ascent. No evidence of transfer or reassignment has been supported by evidence. This brings the authenticity of the document into question under Evidence rule 901. Defendant requests that the Court exclude Exhibit 1, the alleged bill of sale for lack of authentication (Rule 902), Hearsay (Rule 802), Irrelevance (Rule 402) and Prejudice (Rule 403).

e. Other in limine matters and exclusions

1. Defendant also requests that any evidence or information not propounded to defendant before 10 January, 2012, the deadline for disclosure and discovery, be excluded and not be allowed into testimony due to surprise at trial. Plaintiffs failed to produce disclosure in compliance with CRCP, chapter 4, section 26. Plaintiff was required to submit to Defendant a list or persons, with contact information, who may have testimony relevant to the claim or the answer. Further, Plaintiff failed to disclose a list of documents and copies of documents relevant to the claim and the answer in compliance with CRCP chapter 4, section 26.(CRCP, chapter 4, 26 & 37)

III. Discovery Violations

Plaintiffs failed to produce discovery in compliance with CRCP, chapter 4, section 26. Plaintiff was required to submit to Defendant a list or persons, with contact information, who may have testimony relevant to the claim or the answer. Further, Plaintiff failed to produce a list of documents and copies of documents relevant to the claim and the answer in compliance with CRCP chapter 4, section 26.

IV. Account Stated

Plaintiff claims relief under “Account Stated”.

“The existence of a valid obligation is necessary as the basis of an account stated.” Law of Contracts, Vol. 4, section 2523, William Herbert Page

“In order that an account may be stated, it is necessary in the first instance that there should be a presentation of what the law recognizes as an account.” Law of Contracts, Vol. 4, section 2518, William Herbert Page

To constitute “an account stated," there must have been (a) an accounting between the parties, (B) a balance struck, and © a promise, express or implied, to pay such balance to the plaintiff. Teller v Ferguson , 24 Colo. 432, 437, 51 Pac. 429.

Mace v. Spaulding, 110 Colo. 58, 130 P.2d 89 (1942), defines the elements necessary to establish a claim for account stated, namely: a statement for sums due presented by plaintiff to defendant and an agreement between plaintiff and defendant that the account is correct and that the agreed amount is due from defendant to plaintiff.

The Plaintiff has failed to produce any evidence, whether in the form of a final statement or notice of an accounting between creditor and debtor sent to and received by the debtor. Without evidence or testimony validating (1) the existence an accounting or (2) service of said accounting and (3) that the accounting was held by the debtor for a reasonable period of time without objection, then there is (a) no accounting between the parties, (B) no balance struck, and © no promise to pay such balance as referenced in Teller v. Ferguson and Mace v. Spaulding and does not constitute an “Account Stated.”

V. Conclusion

Defendant believes the plaintiff has failed to meet their burden of proof. “The Plaintiff has the burden to prove their case” - Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972) The case should be decided in defendant 's favor. Defendant requests the court dismiss the suit with prejudice and allow recovery of costs of suit, damages for lost wages, and any relief the court deems proper.

Salt in the wound, YES !!

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You did great dropped a nuclear weapon day before trial. They didn't have anyone to even try to fight it.

it is a sad day for people who spent approx. $150,000 for school days and weeks studying for the bar exam X3(you know no first time bar passer is gonna work for the debt collection industry) just to get their azzez kicked by some (not being judgmental or mean to anyone here) unemployed deadbeats who look up how to defend on google. I mean we really.

I wonder, at the lawfirm do they make them walk around with a toilet protector on their head for that.:p8-)

Oh the humanity. Maybe we need to make a wiki on this.

Just sayin'

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Very well written and presented. The bottom line is that it was EFFECTIVE.

Nice job!

One word of advice to everybody out there, though. Seadragon's brief is fantastic, but the the contents were relative to HIS CASE. If you just slap your info in and present it, you are playing with fire. You had better understand everything in your brief to defend it in court.

I spent about 5 hours looking for Legal foundation relative to my case (William Herbert Page's Laws of Contracts, and to find relevant case law from my own state. Then I spent about 4 hours editing and re-writing the brief.

I deleted many sections of Seadragon's brief and added ones relevant to mine.

You must find the weaknesses of the plaintiff within your own case and attack those weaknesses with precision. Save examples for oral arguments if you get there. The brief has to based upon legal principles and case law. All the common snese in the world won't make up for not having the support of case law. The judge needs to know his ruling won't be overturned. Your cited case law gives him the confidence to rule in your favor.

To be honest folks, my plaintiffs had nothing. They didn't even have a piece of paper with my name on it. I failed to file a counter-claim, but I am going to review my documents to see if I have any cause of action against them (I failed file a counter-claim - found this site after I answered). Every case I read about on this site had something - statements, OC affidavits, Detailed Bills of Sale, etc.

With the evidence presented in my case, they could have been suing anyone, even the president.

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One word of advice to everybody out there, though. Seadragon's brief is fantastic, but the the contents were relative to HIS CASE. If you just slap your info in and present it, you are playing with fire. You had better understand everything in your brief to defend it in court.

I spent about 5 hours looking for Legal foundation relative to my case (William Herbert Page's Laws of Contracts, and to find relevant case law from my own state. Then I spent about 4 hours editing and re-writing the brief.

I deleted many sections of Seadragon's brief and added ones relevant to mine.

You must find the weaknesses of the plaintiff within your own case and attack those weaknesses with precision. Save examples for oral arguments if you get there. The brief has to based upon legal principles and case law. All the common snese in the world won't make up for not having the support of case law. The judge needs to know his ruling won't be overturned. Your cited case law gives him the confidence to rule in your favor.

To be honest folks, my plaintiffs had nothing. They didn't even have a piece of paper with my name on it. I failed to file a counter-claim, but I am going to review my documents to see if I have any cause of action against them (I failed file a counter-claim - found this site after I answered). Every case I read about on this site had something - statements, OC affidavits, Detailed Bills of Sale, etc.

With the evidence presented in my case, they could have been suing anyone, even the president.

Absolutely correct on all that, It is a guideline for formatting and issues. If you just change names and amounts you then may not get the ruling you wanted. And a bit of disclosure I LOST WITH THAT BRIEF (I got a bad ruling and now have appealed) So looking up the required statutes coupled with spotting the issues in your case will pay dividends.

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