Beergoggles

I need help answering a Motion for Summary Judgement in AZ

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I could reall use some help writing my opposition to a MSJ. I am CLUELESS!!!! I have a rough draft. Thank you in advance for your help!

BG

The MSJ

MIDLAND FUNDING LLC

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

BeerGoggles AND JANE DOE Goggles )

HIS WIFE AND EACH OF THEM )

)

) Defendants,)

COMES NOW, Plaintiff MIDLAND FUNDING LLC by and through counsel, and moves this Court for Summary Judgment against

Defendant Beergoggles pursuant to Rule 56, Arizona Rules of

Civil Procedure. This motion is based on the grounds that there are no genuine issues of material fact and that Plaintiff is entitled to judgment as a matter of law. This Motion is supported by the attached Memorandum of Points and Authorities, Separate Statement of Facts, and all records and documents on file herein. RESPECTFULLY SUBMITTED this Feb

Attorney for Plaintiff

/LAW OFFICE, PC

MEMORANDUM OF POINTS AND AUTHORITIES

Summary Judgment may be granted when the pleadings, depositions, and admissions on file, together with the affidavits , if any show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Rule 56, Arizona Rules of Civil Procedure, Orme School v Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990).(Looking this up now!) Plaintiff's action against Defendant is for repayment of an outstanding credit card obligation in the principal amount of $XXXX. In the answer, the Defendant denied all allegations in the Plaintiff's complaint.

Attached as Exhibit A (Credit card statements) to Separate Statement of Facts is a true and correct copy of Monthly Statements from April 20XX to September , 20XX. The Exhibit demonstrates that the Defendant made payments and credits to the account, but breached the contract by failing to pay the balance.

Plaintiff also has provided the Affidavit of an employee of Plaintiff,(PRECLUDED) verifying the amount due and owing on Defendant's credit card account as $XXXX. (See Affidavit, attached to Plaintiff's Complaint.)

Plaintiff has received no payments from Defendant between the time Plaintiff s Affidavit was made and the date of this motion. (See Separate Statement of Facts.)

Based on the foregoing, Plaintiff has demonstrated that the

Defendant breached the contract by failing to repay the outstanding obligations, and that Plaintiff's damages are equal to the outstanding principal of the debt, plus interest, court costs and attorney fees. (See Terms of Credit Card Agreement, attached to Plaintiff's Complaint.)

Plaintiff respectfully requests that this Court enter summary judgment in favor of Plaintiff against Defendant for the principal balance of $XXXX, plus interest, court costs and attorney fees.

RESPECTFULLY SUBMITTED this Feb ,

LAW OFFICE, PC

Copy of the foregoing mailed February 2012 to:

BeerGoggles

1 Barstool Alley

Hungover Like Hell, AZ 8XXXX

Attorney for Plaintiff

LAW OFFICE, PC

Attorney for Plaintiff

LAW OFFICE, PC

AZ STATE BAR NO XXXXX Name here

AZ STATE BAR NO XXXX Phone number here

Attorneys for- Plaintiff [email@numbnutslaw.com

IN THE JUSTICE COURT OF STATE OF ARIZONA

MIDLAND FUNDING LLC )

) NO.Beergoggles

Plaintiff,)

V )

) SEPARATE STATEMENT OF FACTS

) IN SUPPORT OF PLAINTIFF'S

) MOTION FOR SUMMARY JUDGMENT

)

Beergoggles

) Defendants,)

COMES NOW, Plaintiff, MIDLAND FUNDING LLC by and through counsel, and submits the following Statement of Facts in support of its Motion for Summary Judgment:

1. Attached hereto as Exhibit A is a true and correct copy

of Monthly Statements from April 21, 2008 to September 21,

2009, regarding Defendant's credit card account. Not disclosed til now

Defendant has made no payments regarding this credit card

account between the time Plaintiff s affidavit was made and

the time of this motion.

The principal amount due and owing on Defendant's credit

card account is $XXXX

4. The credit card account was granted to Defendant with the

agreement that he was subject to the terms of the agreement

which included liability for payments on the account, plus

interest, court costs and attorney fees in the event

collection action became necessary.

RESPECTFULLY SUBMITTED this February 2012.

Attorney for Plaintiff

OFFICE, PC

Copy of the foregoing mailed February 2012 to:

Beergoggles (They might have mailed it but I did not receive it! picked it up from the court)

Attorney for Plaintiff

MY OPPOSITION ROUGH DRAFT

BeerGoggles

1 Barstool Alley

Hungover like Hell, AZ

8XXXX

IN THE JUSTICE COURT OF XXxX PRECINCT COUNTY OF XXXX, STATE OF ARIZONA

MIDLAND FUNDING LLC

NO. BeerGoggles1

Plaintiff,

Defendants REPLY and

V OPPOSITION to

PLAINTIFF'S MOTION

for SUMMARY JUDGEMENT

BeerGoggles

Defendant,

Comes now the Defendant, BeerGoggles, Pro Se, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment filed herein by Plaintiff, MIDLAND FUNDING L.L.C., as follows:

The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law. The Plaintiff lacks standing to sue the Defendant, since at no time did the Defendant cause any harm to the Plaintiff. The Defendant has never had any sort of relationship, business or otherwise, with the Plaintiff. At no time did the Defendant become indebted to the Plaintiff, as such, the Defendant has no obligation to the Plaintiff, monetary or otherwise.

Plaintiff has failed to discharge this responsibility in the MOTION FOR SUMMARY JUDGEMENT and the attached MEMORANDUM of POINTS AND AUTHORITIES filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied.

Defendant received the Plaintiff's Summons on XXXX Defendant answered the request on XXXX, and filed a Motion to Ammend Answer on XXXX

Plaintiff Filed a Application and Affidavit of Default, and Notice of Intent to Seek Entry of Default on XXXX

Defendant filed a Motion to Preclude Affivdavit on XXXX

Mediation was set for XXXX

Defendant sent Request for Production of Documents to Plaintiff on XXXX and was received by Plaintiff on XXXX. Documents requested from plaintiff included any documentation of relationship between plaintiff and Chase Bank N.A., the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff, a contract signed by the Defendant, The Permissibles Purposes for a Hard Inquiry on Defendants Credit Report by Plaintiffs Law Firm. Any evidence of a contract between the Plaintiff and the Defendant. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

Defendant received Notice of Summary Judgement from the Court on XXXX, and promptly sent a letter to both the Plaintiff and the Court stating the Defendant did not recieve a copy from the Plaintiff on the next day.

Pre Trial Conference is set for XXXX

Statement of Facts

1. Plaintiff's Attached Exhibit A "true and correct Monthly Statements" have not been disclosed until Motion for Summary Judgement was filed.

The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be 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.

2. Plaintiff Claims no payments regarding the credit card account have been made between the time Plaintiff's affidaivt was made and the time of this motion.

NEED HELP WITH THIS ONE!!!

3. Plaintiff has failed to produce a complete accounting over the life of the alleged account of how the amount sought was calculated.

4. Plaintiff has failed to produce any evidence of a "granted credit card".

HELP WITH THIS ONE?????

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

WHEREFORE, Defendant,BeerGoggles, respectfully submits that the Court should deny the Plaintiff's Motion for Summary Judgment, filed herein by Midland Funding L.L.C. and prays for Dismissal of the complaint by the Plaintiff for damages of $XXXX and any further relief this court deems just and proper.

Defendant's motion for dismissal of summary judgment submitted this ___________ day of March, 2012.

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It really doesn't matter if you had a relationship with the Plaintiff, or not. An assignee can step into the shoes of the OC.

Point out they haven't proven standing to sue, and use that case law.

Then, you need to state that the Plaintiff has failed to prove ownership of any account related to you. Point out the insufficiencies of the bill of sale, then use the case law about a valid assignment.

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here we go my answer to complaint said I had never heard of nor any contact with MF and I owed them $0, I did file a motion to amend answer and have not heard back on that so not going to post it.

THE COMPLAINT

BEERGOGGLES AND JANE DOE GOGGLES, } COMPLAINT

HIS WIFE AND EACH OF THEM, (Contract)

)

Defendant(s),

I

Plaintiff complains of the defendant(s) and alleges: 15

That defendant(s) is/are resident(s) of County State of Arizona. That Defendant's spouse, if any, is also responsible for the Debt that forms the basis of this action pursuant to Arizona Community Property Law because, upon information and belief, the debt was incurred during the marriage of the Defendants.

II

That heretofore and prior to the filing of this action

defendant(s) did, for valuable consideration enter into a contract

with plaintiff or plaintiff's assignor, the terms of which are

attached hereto and by reference made a part hereof: that balance

remaining due and unpaid on said contract at the time of the filing

of this complaint is in the amount $XXXX. That said defendant(s)has/have failed and refused to pay said balance and that said balance is justly due and owing to plaintiff herein.

That said contract does provide for reasonable attorney fees which are in the amount of not less than $XXXX if upon default together with interest.

WHEREFORE, plaintiff demands judgment against defendant(s)'s and each of them, for $XXXX, interest at X.XXX% per annum from the date of judgment, together with reasonable attorney fees of not le than $XXXX as provided by Contract, if upon default, and over limit charges and late fees as per the agreement which is the subject of this litigation and such other and further relief as to the Court may deem just.

DATED this November XX, 2011.

By

Attorney Plaintiff

The MSJ

MIDLAND FUNDING LLC

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

BeerGoggles AND JANE DOE Goggles )

HIS WIFE AND EACH OF THEM )

)

) Defendants,)

COMES NOW, Plaintiff MIDLAND FUNDING LLC by and through counsel, and moves this Court for Summary Judgment against

Defendant Beergoggles pursuant to Rule 56, Arizona Rules of

Civil Procedure. This motion is based on the grounds that there are no genuine issues of material fact and that Plaintiff is entitled to judgment as a matter of law. This Motion is supported by the attached Memorandum of Points and Authorities, Separate Statement of Facts, and all records and documents on file herein. RESPECTFULLY SUBMITTED this Feb

Attorney for Plaintiff

/LAW OFFICE, PC

MEMORANDUM OF POINTS AND AUTHORITIES

Summary Judgment may be granted when the pleadings, depositions, and admissions on file, together with the affidavits , if any show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Rule 56, Arizona Rules of Civil Procedure, Orme School v Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990).(Looking this up now!) Plaintiff's action against Defendant is for repayment of an outstanding credit card obligation in the principal amount of $XXXX. In the answer, the Defendant denied all allegations in the Plaintiff's complaint.

Attached as Exhibit A (Credit card statements) to Separate Statement of Facts is a true and correct copy of Monthly Statements from April 20XX to September , 20XX. The Exhibit demonstrates that the Defendant made payments and credits to the account, but breached the contract by failing to pay the balance.

Plaintiff also has provided the Affidavit of an employee of Plaintiff,(PRECLUDED) verifying the amount due and owing on Defendant's credit card account as $XXXX. (See Affidavit, attached to Plaintiff's Complaint.)

Plaintiff has received no payments from Defendant between the time Plaintiff s Affidavit was made and the date of this motion. (See Separate Statement of Facts.)

Based on the foregoing, Plaintiff has demonstrated that the

Defendant breached the contract by failing to repay the outstanding obligations, and that Plaintiff's damages are equal to the outstanding principal of the debt, plus interest, court costs and attorney fees. (See Terms of Credit Card Agreement, attached to Plaintiff's Complaint.)

Plaintiff respectfully requests that this Court enter summary judgment in favor of Plaintiff against Defendant for the principal balance of $XXXX, plus interest, court costs and attorney fees.

RESPECTFULLY SUBMITTED this Feb ,

LAW OFFICE, PC

Copy of the foregoing mailed February 2012 to:

BeerGoggles

1 Barstool Alley

Hungover Like Hell, AZ 8XXXX

Attorney for Plaintiff

LAW OFFICE, PC

Attorney for Plaintiff

LAW OFFICE, PC

AZ STATE BAR NO XXXXX Name here

AZ STATE BAR NO XXXX Phone number here

Attorneys for- Plaintiff [email@numbnutslaw.com

IN THE JUSTICE COURT OF STATE OF ARIZONA

MIDLAND FUNDING LLC )

) NO.Beergoggles

Plaintiff,)

V )

) SEPARATE STATEMENT OF FACTS

) IN SUPPORT OF PLAINTIFF'S

) MOTION FOR SUMMARY JUDGMENT

)

Beergoggles

) Defendants,)

COMES NOW, Plaintiff, MIDLAND FUNDING LLC by and through counsel, and submits the following Statement of Facts in support of its Motion for Summary Judgment:

1. Attached hereto as Exhibit A is a true and correct copy

of Monthly Statements from April 21, 2008 to September 21,

2009, regarding Defendant's credit card account. Not disclosed til now

Defendant has made no payments regarding this credit card

account between the time Plaintiff s affidavit was made and

the time of this motion.

The principal amount due and owing on Defendant's credit

card account is $XXXX

4. The credit card account was granted to Defendant with the

agreement that he was subject to the terms of the agreement

which included liability for payments on the account, plus

interest, court costs and attorney fees in the event

collection action became necessary.

RESPECTFULLY SUBMITTED this February 2012.

Attorney for Plaintiff

OFFICE, PC

Copy of the foregoing mailed February 2012 to:

Beergoggles (They might have mailed it but I did not receive it! picked it up from the court)

Edited by Beergoggles

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OPPOSITION

Defendant,

Memorandum in Support

Introductory Statement

The Complaint alleges that Plaintiff is the successor to an account between Defendant and the alleged original creditor (Chase Bank N.A.), and that the account is in default. This Opposition challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim, and lack of standing to sue.

This Opposition is made in good faith based on Defendant’s general understanding of the debt buying industry. While not offered as evidence, that understanding is explained here to justify the Defendant's Opposition. Defendant understands that, when a debt buyer purchases an account, it is one of hundreds or thousands of accounts acquired as a pool and the information as to each account is contained in an electronic spreadsheet (such as a Microsoft Excel file) called “placement information.” Placement information is a collection of data elements about an account created after the account is in default and, therefore, cannot be a business record for purposes of the hearsay exception.

Debt buyers refer to “media” as the original creditor’s records concerning the account such as the account application, the written contract(s), and the billing statements. Those could be admissible if a competent witness were to lay the requisite foundation under the business records exception to the hearsay rule. In the purchase transaction, debt buyers obtain little or no media and, depending on the terms of the purchase, may be able to request some media.

It is this understanding which informs the basis for the opposition as there is a reasonable basis to believe that Plaintiff lacks standing to sue and the evidence to prove the elements of its cause of action.

Procedural History

Defendant received the Plaintiff's Summons on XXXX Defendant answered the request on XXXX, and filed a Motion to Ammend Answer on XXXX

Plaintiff Filed a Application and Affidavit of Default, and Notice of Intent to Seek Entry of Default on XXXX

Defendant filed a Motion to Preclude Affivdavit on XXXX, Motion Granted XXXX

Mediation was set for XXXX

Defendant sent Request for Production of Documents to Plaintiff on XXXX as of the date of this Reply, the Plaintiff has failed to respond. Documents requested from plaintiff included any documentation of relationship between Plaintiff and Chase Bank N.A., the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff, a contract signed by the Defendant,Any evidence of a contract between the Plaintiff and the Defendant. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

Defendant received Notice of Summary Judgement from the Court on XXXX, and promptly sent a letter to both the Plaintiff and the Court stating the Defendant did not recieve a copy from the Plaintiff on (next day).

Pre Trial Conference is set for XXXX

Attached to the Complaint were an alleged Credit Card Agreement and an affidavit of an employee of the Plaintiff. Attached to the Motion for Summary Judgment were alleged billing statements allegedly from the Bank.

Statements of Material Facts

Defendant submits this Statement of Material Facts in support of his Opposition to Motion for Summary Judgement. As this Opposition pierces the pleadings and tests the sufficiency of Plaintiffs evidence, Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to grant summary judgment.

Statement of Material Facts:

1. There is no admissible evidence of true and correct copies of monthly statements.

2. Defendant has not made payments due to the fact that Defendant does not owe the alleged debt, and no evidence has been provided to prove otherwise.

3. There is no admissible evidence as to the debits, credits, and payments associated with the alleged account, including the fees, charges, and interest from which to determine the amount purportedly due.

4. Defendant has had several accounts with Chase in his lifetime, Defendant does not recall this particlular card and does not remember the 16 digit account number. The plaintiff has failed to produce a signed contract proving such.

Legal Arguments

Lacking Evidence to Prove Its Case, Plaintiff's Complaint Should Be Dismissed With Prejudice.

This is a suit by a debt-buyer asserting that it is the owner of an alleged Chase account in default. Plaintiff, Midland Funding L.L.C., filed a two-count Complaint alleging:

1. "Defendant is a resident of XXXX County State of Arizona . That Defendant's spouse if any is also responsible for the Debt that forms the basis of this action"

2. "Defendant entered into a contract with Plaintiff or Plaintiff's assignor" for the amount of $XXXX, "That said defendant (s) has/have failed and refused to pay said balance and that said balance is justly due and owing to plaintiff herein."

1. Defendant Admits he lives in the Court Precinct

2. Defendant disputes that he entered into a contract with Plaintiff as Plaintiff has failed to produce said contract. and the Plaintiffs Motion for Summary Judgement should not be granted as there is a general dispute of material facts.

"Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts." Farmers Ins. Co. of Arizona v. Vagnozzi, 675 P. 2d 703 - Ariz: Supreme Court 1983

Defendant also states The Plaintiff lacks standing to sue the Defendant, since at no time did the Defendant cause any harm to the Plaintiff

"As a matter of sound judicial policy, however, this court has long required that persons seeking redress in Arizona courts must first establish standing to sue." Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003

.

The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action.

"It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified."Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977"

As Midland Funding L.L.C. bears the burden of proof, absent such proof, Defendants' right to oppose summary judgment should be recognized. Thus, that right can only be defeated by Midland Funding's submission of admissible evidence to establish its cause of action.

"We therefore hold that the basic elements of a legal assignment are so lacking in this case that we can find no basis in the record on which to conclude that Certified Collectors, Inc. has any right to bring an action on this claim as the real party in interest." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977 .

Edited by Beergoggles

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Particularly significant to what evidence Plaintiff must submit are the Business Records Exception, Evid.R. 803(6); the requirement for a witness's personal knowledge, Evid.R. 602; proper authentication of documents, Evid.R. 901 and Evid.R. 902; and submission of originals, Evid.R. 1002. Read together, these rules require that:

1. Plaintiff produce competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of any and all hearsay materials, and

2. The admissible records be sufficient to carry Plaintiff's evidentiary burden.

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343 the court upheld the trial court’s entry of summary judgment in favor of the defendant where the plaintiff had offered hearsay documents which may or may not have been sufficient to overcome summary judgment had they been properly authenticated pursuant to the Ohio Rules of Evidence. The point was moot as the hearsay documents were not properly authenticated:

Once the appellee established by reference to appellant’s unauthenticated documents attached to the complaint that there was insufficient evidence to establish that the appellant had acquired the account by assignment and that there was insufficient evidence to prove the balance due on the account, the burden shifted to the appellant to demonstrate the existence of genuine issues of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264. Because the appellant failed to properly authenticate the assignment documents and the account statements, the appellant essentially presented nothing of evidentiary value to rebut appellee’s argument and did not create a genuine issue of material fact. Although it is a harsh result, we find that the appellant’s failure to follow the requirements of Civ.R. 56 put the trial court in a position in which it could only come to one conclusion. That conclusion is that the appellee had affirmatively established that there was nothing of evidentiary value to support the essential elements of appellant’s claim for an action on an account. We therefore find that the trial court did not err in granting appellee’s motion for summary judgment.

In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission evidences that were allegedly issued or created before the Plaintiff’s alleged ownership of the alleged account.

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343:

In an action on an account, when an assignee is attempting to collect on an account in filing a complaint, the assignee must “allege and prove the assignment.” Zwick v. Zwick (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733. In other words, in order to prevail, the assignee must prove that they are the real party in interest for purposes of bringing the action. An assignee cannot prevail on the claims assigned by another holder without proving the existence of a valid assignment agreement. Natl. Check Bur., Inc. v. Cody, Cuyahoga App. No. 84208, 2005-Ohio-283, citing Zwick & Zwick v. Suburban Constr. Co. (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733.

Proof of Actual Amount Claimed to be Due

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343:

In order to establish a prima facie case for money owed on an account, “[a]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.” Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus.

In this present case the Plaintiff has presented alleged monthly statements, however said statements do not contain all the information needed to establish a prima facie case.

In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of billing statements that were allegedly created before the Plaintiff’s alleged ownership of the alleged account.

Proof of Contract and Terms

Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637(a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet "the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan." 15 U.S.C. § 1632(d)(1).

Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract.

Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract and, in the absence of Defendants' signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of a contract that was allegedly formed before the Plaintiff’s alleged ownership of the alleged account.

Turning to breach and damages, Plaintiff must have a competent witness who can establish that each charge was authorized because the Truth in Lending Act imposes that burden on Plaintiff. 15 U.S.C. § 1643(B).

Plaintiff's failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for Defendant.

For the foregoing reasons, Defendant, respectfully requests that summary judgment be denied in his favor and against Plaintiff, Midland Funding L.L.C. and that the Complaint be dismissed with prejudice.

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I don't understand something. Why are you arguing that the statements in the affidavit are hearsay?

If the affidavit was precluded, it's inadmissible. As a result, none of their documents have been authenticated and are not subject to the hearsay exception in Rule 803(6).

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so remove that and it sounds good? Thanks

I don't understand something. Why are you arguing that the statements in the affidavit are hearsay?

If the affidavit was precluded, it's inadmissible. As a result, none of their documents have been authenticated and are not subject to the hearsay exception in Rule 803(6).

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If the affidavit was precluded, I'd point out that fact and include a copy of the order as an Exhibit. I don't know if that's necessary, but it's what I would do. Then I'd point out that none of their documents have been authenticated as I cited in the previous post. They're not subject to the hearsay exception in AZ Rule of Evidence 803(6) and are, therefore, inadmissible hearsay.

You mentioned they didn't answer your discovery requests. If you have proof you mailed the documents and that they received them, I'd include that proof as an exhibit.

You do need to mention that they have provide no proof of a valid assignment from whoever they claim to have the account. If they didn't provide a bill of assignment or bill of sale, state that fact. Did you ask for it in a request for production of documents? If you did, state that you requested such proof but no such evidence has been provided.

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Yes I asked for all those things in Discovery. I do have a cert of mailing for the discovery. I will make the changes as you suggest.

Thanks a lot!

BG

If the affidavit was precluded, I'd point out that fact and include a copy of the order as an Exhibit. I don't know if that's necessary, but it's what I would do. Then I'd point out that none of their documents have been authenticated as I cited in the previous post. They're not subject to the hearsay exception in AZ Rule of Evidence 803(6) and are, therefore, inadmissible hearsay.

You mentioned they didn't answer your discovery requests. If you have proof you mailed the documents and that they received them, I'd include that proof as an exhibit.

You do need to mention that they have provide no proof of a valid assignment from whoever they claim to have the account. If they didn't provide a bill of assignment or bill of sale, state that fact. Did you ask for it in a request for production of documents? If you did, state that you requested such proof but no such evidence has been provided.

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I kept the hearsay affidavit stuff in there. I think they will try to submit another affidavit. I tweaked it more last night. Here it is.

Plaintiff,

Defendant's

Memorandum in Support

BeerGoggles

Defendant,

Memorandum in Support

Introductory Statement

The Complaint alleges that Plaintiff is the successor to an account between Defendant and the alleged original creditor (Chase Bank N.A.), and that the account is in default. This Opposition challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim, and lack of standing to sue.

This Opposition is made in good faith based on Defendant’s general understanding of the debt buying industry. While not offered as evidence, that understanding is explained here to justify the Defendant's Opposition. Defendant understands that, when a debt buyer purchases an account, it is one of hundreds or thousands of accounts acquired as a pool and the information as to each account is contained in an electronic spreadsheet (such as a Microsoft Excel file) called “placement information.” Placement information is a collection of data elements about an account created after the account is in default and, therefore, cannot be a business record for purposes of the hearsay exception.

Debt buyers refer to “media” as the original creditor’s records concerning the account such as the account application, the written contract(s), and the billing statements. Those could be admissible if a competent witness were to lay the requisite foundation under the business records exception to the hearsay rule. In the purchase transaction, debt buyers obtain little or no media and, depending on the terms of the purchase, may be able to request some media.

It is this understanding which informs the basis for the opposition as there is a reasonable basis to believe that Plaintiff lacks standing to sue and the evidence to prove the elements of its cause of action.

Procedural History

Defendant received the Plaintiff's Summons on XXXX Defendant answered the request on XXXX, and filed a Motion to Ammend Answer on XXXX

Plaintiff Filed a Application and Affidavit of Default, and Notice of Intent to Seek Entry of Default on XXXX

Defendant filed a Motion to Preclude Affivdavit on XXXX, Motion Granted XXXX

Mediation was set for XXXX

Defendant sent Request for Production of Documents to Plaintiff on XXXX (Exhibit "A" proof of mailing) as of the date of this Reply, the Plaintiff has failed to respond. Documents requested from plaintiff included any documentation of relationship between Plaintiff and Chase Bank N.A., the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff,A Bill of Sale, a contract signed by the Defendant, any evidence of a contract between the Plaintiff and the Defendant. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

Defendant received Notice of Summary Judgement from the Court on XXXX, and promptly sent a letter to both the Plaintiff and the Court stating the Defendant did not recieve a copy from the Plaintiff on XXXXthe next day.

Pre Trial Conference is set for XXXX

Attached to the Complaint were an alleged Credit Card Agreement and an affidavit of an employee of the Plaintiff. Attached to the Motion for Summary Judgment were alleged billing statements allegedly from the Bank.

Statement of Material Facts

Defendant submits this Statement of Material Facts in support of his Opposition to Motion for Summary Judgement. As this Opposition pierces the pleadings and tests the sufficiency of Plaintiffs evidence, Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to grant summary judgment.

Statement of Material Facts:

1. There is no admissible evidence of true and correct copies of monthly statements.

2. Defendant has not made payments due to the fact that Defendant does not owe the alleged debt, and no evidence has been provided to prove otherwise.

3. There is no admissible evidence as to the debits, credits, and payments associated with the alleged account, including the fees, charges, and interest from which to determine the amount purportedly due.

4. Defendant has had several accounts with Chase in his lifetime, Defendant does not recall this particlular card and does not remember the 16 digit account number. The plaintiff has failed to produce a signed contract proving such.

5. There is no admissible evidence as to the purchase by Plaintiff of Defendants' alleged account, either directly from the Bank or through intermediate debt buyers.

6. There is no admissible evidence regarding the mailing of any written agreements by the Bank to Defendant.

7. There is no admissible evidence regarding the mailing of any billing statements by the Bank to Defendant.

Legal Arguments

Lacking Evidence to Prove Its Case, Plaintiff's Complaint Should Be Dismissed With Prejudice.

This is a suit by a debt-buyer asserting that it is the owner of an alleged Chase account in default. Plaintiff, Midland Funding L.L.C., filed a two-count Complaint alleging:

1. "Defendant is a resident of XXXX County State of Arizona . That Defendant's spouse if any is also responsible for the Debt that forms the basis of this action"

2. "Defendant entered into a contract with Plaintiff or Plaintiff's assignor" for the amount of $XXXX, "That said defendant (s) has/have failed and refused to pay said balance and that said balance is justly due and owing to plaintiff herein."

1. Defendant Admits he lives in the XXXX Court Precinct

2. Defendant disputes that he entered into a contract with Plaintiff as Plaintiff has failed to produce said contract. and the Plaintiffs Motion for Summary Judgement should not be granted as there is a general dispute of material facts. "Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts." Farmers Ins. Co. of Arizona v. Vagnozzi, 675 P. 2d 703 - Ariz: Supreme Court 1983

Defendant also states The Plaintiff lacks standing to sue the Defendant since at no time did the Defendant cause any harm to the Plaintiff "As a matter of sound judicial policy, however, this court has long required that persons seeking redress in Arizona courts must first establish standing to sue." Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003.

The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action. "It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified. Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977"

As Midland Funding L.L.C. bears the burden of proof, absent such proof, Defendants' right to oppose summary judgment should be recognized. Thus, that right can only be defeated by Midland Funding's submission of admissible evidence to establish its cause of action. "We therefore hold that the basic elements of a legal assignment are so lacking in this case that we can find no basis in the record on which to conclude that Certified Collectors, Inc. has any right to bring an action on this claim as the real party in interest." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977 .

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Particularly significant to what evidence Plaintiff must submit are the Business Records Exception, Evid.R. 803(6); the requirement for a witness's personal knowledge, Evid.R. 602; proper authentication of documents, Evid.R. 901 and Evid.R. 902; and submission of originals, Evid.R. 1002. Read together, these rules require that:

1. Plaintiff produce competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of any and all hearsay materials, and

2. The admissible records be sufficient to carry Plaintiff's evidentiary burden.

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343 the court upheld the trial court’s entry of summary judgment in favor of the defendant where the plaintiff had offered hearsay documents which may or may not have been sufficient to overcome summary judgment had they been properly authenticated pursuant to the Ohio Rules of Evidence. The point was moot as the hearsay documents were not properly authenticated:

Once the appellee established by reference to appellant’s unauthenticated documents attached to the complaint that there was insufficient evidence to establish that the appellant had acquired the account by assignment and that there was insufficient evidence to prove the balance due on the account, the burden shifted to the appellant to demonstrate the existence of genuine issues of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264. Because the appellant failed to properly authenticate the assignment documents and the account statements, the appellant essentially presented nothing of evidentiary value to rebut appellee’s argument and did not create a genuine issue of material fact. Although it is a harsh result, we find that the appellant’s failure to follow the requirements of Civ.R. 56 put the trial court in a position in which it could only come to one conclusion. That conclusion is that the appellee had affirmatively established that there was nothing of evidentiary value to support the essential elements of appellant’s claim for an action on an account. We therefore find that the trial court did not err in granting appellee’s motion for summary judgment.

In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission evidences that were allegedly issued or created before the Plaintiff’s alleged ownership of the alleged account.

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343:

In an action on an account, when an assignee is attempting to collect on an account in filing a complaint, the assignee must “allege and prove the assignment.” Zwick v. Zwick (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733. In other words, in order to prevail, the assignee must prove that they are the real party in interest for purposes of bringing the action. An assignee cannot prevail on the claims assigned by another holder without proving the existence of a valid assignment agreement. Natl. Check Bur., Inc. v. Cody, Cuyahoga App. No. 84208, 2005-Ohio-283, citing Zwick & Zwick v. Suburban Constr. Co. (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733.

Proof of Actual Amount Claimed to be Due

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343:

In order to establish a prima facie case for money owed on an account, “[a]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.” Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus.

In this present case the Plaintiff has presented alleged monthly statements, however said statements do not contain all the information needed to establish a prima facie case.

In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of billing statements that were allegedly created before the Plaintiff’s alleged ownership of the alleged account.

Proof of Contract and Terms

Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637(a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet "the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan." 15 U.S.C. § 1632(d)(1).

Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract.

Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract and, in the absence of Defendants' signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of a contract that was allegedly formed before the Plaintiff’s alleged ownership of the alleged account.

Turning to breach and damages, Plaintiff must have a competent witness who can establish that each charge was authorized because the Truth in Lending Act imposes that burden on Plaintiff. 15 U.S.C. § 1643(B).

Plaintiff's failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for Defendant.

For the foregoing reasons, Defendant, respectfully requests that summary judgment be denied in his favor and against Plaintiff, Midland Funding L.L.C. and that the Complaint be dismissed with prejudice.

Respectfully submitted this ____th day of March 2012,

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

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT in the Highland Justice Court Case No.: BeerGoggles was mailed to Plaintiffs Attorney, this ____th day of March, 2012 to:

Law Office

Arizona XXXXX

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

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Here are a few suggestions:

Statement of Material Facts

I think #5 should be #1. Your best argument is standing to sue. I also tweaked it a little.

1. There is no admissible evidence as to the purchase by Plaintiff of the alleged account which is the subject of this Complaint either directly from Chase Bank or through intermediate debt buyers.

Legal Arguments

Lacking Evidence to Prove Its Case, Plaintiff's Complaint Should Be Dismissed With Prejudice.

I'd put that sentence elsewhere.

2. "Defendant entered into a contract with Plaintiff or Plaintiff's assignor" for the amount of $XXXX, "That said defendant (s) has/have failed and refused to pay said balance and that said balance is justly due and owing to plaintiff herein."

Their second allegation was not just about entering into a contract with the Plaintiff. It was also about entering into a contract with "Plaintiff's Assignor".

2. For your second response, I might state "Defendant disputes Plaintiff's second allegation as no admissible evidence of the existence of an agreement between Chase Bank and Defendant has been provided. In addition, Plaintiff has also failed to prove that Chase Bank is Plaintiff's Assignor." Take the summary judgment sentence and start a new line. You want that sentence to stand out on it's own.

Summary Judgment

I would take this sentence (from your lack of standing argument) "The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action." and add it to the sentence about summary judgment. That entire paragraph would then read:

"The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action. Plaintiffs Motion for Summary Judgement should not be granted as there are genuine disputed issues of material facts.

"We will not affirm a grant of summary judgment, however, even in the absence of controverting evidence, if the motion and evidence filed in support of the motion for summary judgment are insufficient to show that no material issue of fact exists or that the movant is entitled to judgment as a matter of law." United Bank v. Allyn, 167 Ariz. 191, 194-96, 805 P.2d 1012, 1015-17 (Ct.App. 1990)

"Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts." Farmers Ins. Co. of Arizona v. Vagnozzi, 675 P. 2d 703 - Ariz: Supreme Court 1983."

Plaintiff Does Not Establish It’s Standing In This Matter

Remove "Defendant also states". Just leave "Plaintiff lacks standing to sue."

As Midland Funding L.L.C. bears the burden of proof, absent such proof, Defendants' right to oppose summary judgment should be recognized. Thus, that right can only be defeated by Midland Funding's submission of admissible evidence to establish its cause of action.

I might state:

Plaintiff, Midland Funding, bears the burden of proof to establish that it is the Assignee of Chase Bank and that Chase Bank assigned the account in question to Midland Funding. There is no evidence in the form of a Bill of Sale or Bill of Assignment that Chase Bank assigned any account allegedly owed by Defendant to Plaintiff.

"It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977

"We therefore hold that the basic elements of a legal assignment are so lacking in this case that we can find no basis in the record on which to conclude that Certified Collectors, Inc. has any right to bring an action on this claim as the real party in interest." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977.

Absent a valid assignment from Chase Bank, Plaintiff has failed to prove ownership of any account allegedly owed by Defendant. Wherefore, Plaintiff has failed to prove standing to sue.

"As a matter of sound judicial policy, however, this court has long required that persons seeking redress in Arizona courts must first establish standing to sue." Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003.

Edited by BV80
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I don't know if citing Ohio cases is the best thing. They can be persuasive, but they're not binding. For one thing, you can use AZ Rules of Evidence to dispute Midland's documents.

Rule 902. Evidence That Is Self-Authenticating

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-©, as shown by a certification of the custodian or another qualified person that complies with a statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record--and must make the record and certification available for inspection--so that the party has a fair opportunity to challenge them.

Rule 803(6) states:

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if:

(a) Made at or near the time of the underlying event,

(B) by, or from information transmitted by, a person with first hand knowledge acquired in the course of a regularly conducted business activity,

© made and kept entirely in the course of that regularly conducted business activity,

(d) pursuant to a regular practice of that business activity; and

(e) all the above are shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11).

They've presented none of this. If I was writing this Opposition for myself, I might state:

Plaintiff has provided credit card statements allegedly representing an agreement between Chase Bank and Defendant. The credit card statements have not been authenticated by a custodian with personal knowledge who can testify that the alleged statements were made by Chase Bank in the regular course of business. Plaintiff, Midland Funding, did not create or maintain the credit card statements, nor can Plaintiff prove the billing statements are true and correct copies of any documents created by Chase Bank. Therefore, the documents do not meet the hearsay exception in Arizona Rules of Evidence 803(6). In addition, as Plaintiff has not proven ownership of the account in question, Plaintiff has not laid a proper foundation for the admission of the credit card statements. For the foregoing reasons, the documents are inadmissible hearsay.

"Rule 56(e), Arizona Rules of Civil Procedure, provides that affidavits submitted in support of a motion for summary judgment must be based on personal knowledge, setting forth facts which would be admissible in evidence and establishing the affiant's competence to testify to those facts." GM DEV. v. COMMUNITY AMERICAN MORTG., 795 P. 2d 827 - Ariz: Court of Appeals, 1st Div., Dept. C 1990

"Furthermore, the records must be introduced through the testimony of a custodian who can be cross-examined concerning the methods of preparation, the qualifications of the preparer, and other relevant matters." Transamerica Ins. Co. v. Trout, 701 P. 2d 851 - Ariz: Court of Appeals, 1st Div., Dept. A 1985

In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission evidences that were allegedly issued or created before the Plaintiff’s alleged ownership of the alleged account.

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343:

In an action on an account, when an assignee is attempting to collect on an account in filing a complaint, the assignee must “allege and prove the assignment.” Zwick v. Zwick (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733. In other words, in order to prevail, the assignee must prove that they are the real party in interest for purposes of bringing the action. An assignee cannot prevail on the claims assigned by another holder without proving the existence of a valid assignment agreement. Natl. Check Bur., Inc. v. Cody, Cuyahoga App. No. 84208, 2005-Ohio-283, citing Zwick & Zwick v. Suburban Constr. Co. (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733.

I would delete this because it goes to back to standing and assignment which has already been addressed.

Also, you need to include the fact that their affidavit was precluded, and include the order as an exhibit.

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