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TX Precedent Concerning JDB's Credit Card Statements?


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Does anyone know where I can find anything from Texas similar to this ruling from Ohio?

In Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, this court addressed the specifics of an account under R.C. 2309.32, which Civ.R. 10(D) replaced, stating that "[a]n account must show the name of the party charged." Id. at 126. Although "t begins with a balance preferably at zero, or with a sum recited that can qualify as an account," the balance "at least * * * should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear." Id. A summary "is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due." Id. Thus, "[a] series of copies of invoices does not constitute an account." Id. at 125.

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I've looked at a couple of thousand cases so far, Ohio seems to be the only state that even mentions an accounting starting at zero. Even so, it does not seem to be mandatory based upon the language. However, there have been Texas cases where creditors did exactly that.

In Jones v. Citibank (South Dakota), NA, 235 SW 3d 333 - Tex: Court of Appeals, The Court stated: “Ryning also authenticated appellee's business records including 101 pages of monthly account statements beginning with a $0.00 balance on December 22, 1998, and ending on June 22, 2004, with an unpaid balance of $8,914.15.”

an account stated, or some other provable sum)……”

In Dulong v. Citibank (South Dakota), NA 261 SW 3d 890 - Tex: Court of Appeals, 5th Dist., 2008, the Court stated: “In support of its motion, Citibank submitted the Affidavit of Ramona Chavez ("Affidavit"), a Litigation Analyst with Citicorp Credit Services, Inc. USA, a service provider for Citibank. Two hundred and fifty-eight pages of Dulong's Universal Credit Card statements were attached to the Affidavit.”

In an appeal, Moir v. Citibank (South Dakota), NA, Tex: Court of Appeals, 5th Dist. 2010, the Court noted: “The record contains Moir's credit card statements from January 2000 to January 2008.”

In Damron v. Citibank (South Dakota), NA, Tex: Court of Appeals, 3rd Dist. 2010, the Courtnoted: “ Attached to Aragon's affidavit were what purported to be reproductions of Damron's monthly account statements reflecting activity beginning when the account was opened in March 2003 and concluding with what Aragon termed a "final account statement" or "final billing statement" in February 2008.”

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Thank you both.

Racecar, the third item in your list is priceless for Texas cases- though it didn't specifically answer my inquiry here it is by far the single most informative thing I have found in my quest to defend myself against these idiots. I have already read it three times and intend to memorize its main points word-for-word.

The one similar to it from Illiniois has potential to help in my case also as the person who signed the JDB's affidavit of the account is in Illinois so I can probably show that he didn't even meet his own state's standards rendering it defective before it even got to Texas.

Legaleagle, yours are all from Original Creditors of which one would expect to have multiple statements in their archives. I wonder what would happen if I went ahead and cited these. It may be best to leave them alone as other points within them could work against me! Thanks again, I envy your expertise here.

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All cases originate from OCs. The JDBs step into their shoes and are therefore subject to all the same case law. Don't get hung up on state specific case law, these are national banks chartered to do business in all 50 states, they sue in all 50 states, therefore they are subject to case law from all 50 states. They use case law from all over the country when they sue you, give it back to them.

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I'm all for throwing it (or anything!) back at them but I was under the impression that the court doesn't have to take case law from other states into consideration.

Case law from other states is not binding, but it's persuasive. In addition, the only time case law from your state is binding precedent is if the case is from a higher court than your court. For instance, anything from the Supreme Court of Texas would be binding on the lower Texas courts.

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I'm all for throwing it (or anything!) back at them but I was under the impression that the court doesn't have to take case law from other states into consideration.

They don't have to, but sometimes there just isn't any case law on an exact point like this. Not that many people fight these cases, even in a state the size of Texas, I found very little. You could argue that you are not trying to tell the court that they must rely upon the cases you cited for judicial purposes, but that you cited them as foundational. They do show that these creditors are capable of producing a start to finish accounting, so why not in your case? They throw a starting balance at you and you are supposed to just accept it? I like this case too:

In Newgard ex rel. Newgard v. Bank of America, 735 NW 2d 578 - Wis: Court of Appeals 2007, the Court stated: “¶ 15 Finally, the Banks argue the Estate's interpretation is absurd because it allows the Banks' customers — especially longstanding customers with higher balances — to escape their obligations when the Banks purge old records. However, this interpretation is no less absurd than the Banks' proposition that they must retain almost no records at all. We also note that the length of time the Banks retain records is within the Banks' control, as is the Banks' method of payment allocation.[4] We see nothing absurd about requiring the Banks to retain the records of charges for which they wish to collect payment. On remand, the court shall disallow all claims by the Banks based on transactions not shown on the records submitted by the Banks.

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Ohio has a great case where a pro se filed a MSJ and won, the JDB appealed and the appeals court upheld the trial courts judgment. It gives you a ton of ammo.

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

Regarding the Defendant filing the MSJ:

Essentially, a motion for summary judgment forces the plaintiff to produce probative evidence on all essential elements of the case for which the plaintiff has the burden of production at trial. Celotex Corp. v. Catrett, supra. The plaintiff's evidence must be such that a reasonable jury might return a verdict in the plaintiff’s favor. Seredick v. Karnok (1994), 99 Ohio App.3d 502, 651 N.E.2d

Regarding hearsay documents:

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.

Regarding proof of assignment:

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.

Regarding proof of amount claimed to be owed:

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.

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All cases originate from OCs. The JDBs step into their shoes and are therefore subject to all the same case law. Don't get hung up on state specific case law, these are national banks chartered to do business in all 50 states, they sue in all 50 states, therefore they are subject to case law from all 50 states. They use case law from all over the country when they sue you, give it back to them.

Very true. I've seen case law used from all over the country. If Plaintiff's can do it so can Defendant's.

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1). NEVER admit to any thing !!.

The Constitution of the United States of America places the burden of proof on the claimant ( Plaintiff ).The Constitution, further, protects any one against self incrimination. that's why many lawyers advice their clients to take advantage of the Constitutional protection, by claiming the 5th.

You are NOT in Court to prove your innocence, as that is a Constitutional RIGHT !!. Rather, you should uphold the Plaintiff to the obligation of proving your guilt !!. Do NOT be apologetic about not admitting to any thing. It is your RIGHT NOT to self incriminate, and it is you RIGHT to challenge the claims of a claimant, and to force the Plaintiff to prove your guilt.

Many people admit to owing money, hence give the upper hand to the Plaintiff, when they should NOT. Let the Plaintiff earn it. Make no mistake that the Plaintiff is after your money, and will try to get a Judgement against you, at any cost. Let the Plaintiff earn it. There is nothing immoral about NOT admitting your guilt, as you are protected against self incrimination by the Constitution !!.

One thing should be crystal clear in your mind : You are in Court to uphold the Plaintiff to the Constitutional obligation of proving your guilt, and that you are NOT there to prove your innocence.

Your stand should be: " I absolutely dispute your claim of indebtedness, in its entirety .I do NOT recall owing you any thing, nor recall signing or appropriating any benefit from you".

You are NOT denying, but rather NOT recalling, and you are NOT committing a crime by NOT recalling you owe any thing. The objective here is to FORCE the Plaintiff to validate and prove your guilt. They detest that, as proving someone's guilt is expensive and takes time and effort, which they hate and less likely pursue a debtor who is defiant.

2). When answering the Summons, your response should be; "I dispute the claim of the Plaintiff in its entirety !! ".

By disputing the claim of indebtedness in its entirety, you are forcing the Plaintiff to live up to his/her Constitutional obligation to prove your guilt.

Do not give the Plaintiff any freebie .Let the Plaintiff earn it and satisfy the burden of proof, chances are the Plaintiff will fail to satisfy that burden of proof. Most of the Plaintiffs win because of the fact that a Debtor has admitted to his/her guilt !!!.

If asked what is it that you are disputing?. Tell them: You are disputing the followings:

a). The existence of a contractual obligation to pay.

B). The RIGHT of the Plaintiff or its assignee to bring lawsuit against you.

c). The amount allegedly owed.

d). The RIGHT of the Plaintiff to collect on the alleged debt.

e). The transferability of the alleged original contract

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