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Dell Financial/Notice of Motion/Blatt, Hassenmiller


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State of Texas

Travis County

The undersigned being duly sworn, deposes and states that he/she is an employee/agent of:

DELL FINANCIAL SERVICES,LLC

by

(ME)

Affiant states that the amounts shown below are taken/ccalculated from the original books and records of the above named palintiff, and based on information and belief, affiant states that the amount due to

DELL FIANANCAIL SERVICES LLC

by

Steve Eck

for funds advanced to defendant (s) or paid to another at defendant's request, the fiollowing on the following accounts (s):

Creditor/Account Number

Affidavit states the ampount shown above is true and correct and that there are no setoffs or counterclaims avaialble to defendant (s) Further affadavits sayeth not.

Notartized--etc. etc.

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Erin Towns, Affiant

Senior Recovery Manager

Room No. 602, Richard J. Daley Center

A few blocks from where I work.

Feel free to come lol! : )

I just have to ge tmy act together and appear.

ALSO--I Dell financial Services blocked access to my account and posted the number of our friends BLHM :)

I can't even view my account balance, terms etc. I did all my paymants, etc. online.

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I would say the affidavit is probably going to be admitted, since it is from the OC and can be substantiated. However, all it does is validate the amount they want from you, not whether or not the amount is justified. Your argument was that the computer did not work and you had problems with service, etc. This is where you should focus your effort. If you can document all of this, you can make a counterclaim for breach of contract.

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This affidavit alone does not cut it. What establishes an account is AN AGREEMENT, so where is it?

This is down fall of having to file thousands of suits on a monthly basis..It's good for you.

Research rules of civil procedure :735 ILCS 5/2 606

The Complaint fails to comply with Section 2-606 of the Code of Civil Procedure in that it fails to attach the contract, or, in the alternative, fails to include the affidavit required by that provision of law under certain circumstances. 735 ILCS 5/2-606

The failure to comply with Section 5/2-606 renders the Complaint insufficient as a matter of law.

Under certain circumstances (emphasis added) affiant should state what happened to the contract if unavailable, not that joe shmoe is an employee of Dell and he knows how to type!

What Blatt is trying to do is get you with " Verified" complaint. I see judges rule on this type of phony documents every day with SJ. the saddest part is when debtor admits to the account in court instead of having plaintiff prove its validity.

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Illinois case law is clear it is the business record itself, not the affidavit, that is admissible as evidence. Read this case:

Cole Taylor Bank v. Corrigan

"We note that under Supreme Court Rule 236 (134 Ill.2d R. 236 (admission of business records in evidence)), it is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible."

Also, "In other words, an account stated cannot create original liability where none exists; it is merely a final determination of the amount of an existing debt." Motive Parts Co. of America, Inc. v. Robinson

Even an OC has to show that a liability exists. They can't just say so.

Edited by inthesticks
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I would also consider this...

A witness cannot testify that a file or business record shows that the defendant is in default. Such testimony is both hearsay and violates the best evidence rule. If the witness has not personally observed all of the transactions, the only permissible form of testimony is to lay a proper foundation for business records showing the transactions and introduce the business records. It is the business records that constitute the evidence, not the testimony of the witness referring to them. If the records are voluminous, they can be summarized and made available, but under no circumstances is the testimony summarizing the records admissible if the records are not tendered. In re deLarco, 313 Ill.App.3d 107, 728 N.E.2d1278 (2nd Dist. 2000).

Also, this next paragraph has been borrowed from an appellate court in another state. And beautifully, it works well in Illinois too...

In the instant case, the affiant makes no reference to any documents on which she was able to base her knowledge. Furthermore, Affiant's position as “senior recovery manager,” without description, does not establish that the affiant has personal knowledge or is competent to testify as to Defendant's alleged account.

If you are served with a small claims complaint and you neither deny the claims nor the amount of damages the plaintiff seeks, you should contact the plaintiff and attempt to resolve the matter out of court. Otherwise, you can simply admit the claims and have a judgment entered against you. The former course is preferable, to avoid the public record of a judgment against you.

Here is some help for you...Make sure you file your appearance ASAP!

If you dispute the claim or the amount of damages requested, you must respond to the complaint by filing an “Appearance.” The Summons will specify a “return date” and the defendant must on that day file the written Appearance and pay an appearance fee with the Clerk of the Court at the address checked on the Summons. Appearance forms are available either at the clerk=s office or at http://198.173.15.34/?section=FormsPage (in the “Search by Division” section, click “small claims” to reveal the selection of small claims forms).

The defendant also may demand a jury if the plaintiff has not done so, and pay the applicable fee.

The case will not be heard in court on the return date. When the defendant files the Appearance and pays the fee, the clerk will give notice of the first court date. It is on that day that the defendant must appear in court.

If the defendant files an Appearance form, there is no need to file an answer to the complaint. In such a case, the allegations against the defendant in the complaint are presumed to be denied and the defendant is free to prove any defense to the charges. Sup. Ct. Rule 286.

If the defendant fails to file an appearance and pay the required fee on the return date, a judgment by default may be entered for the relief requested in the complaint.

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Thanks for all the advice and support! My return date is on or before June 5, 2012 at 9:30AM. I guess my first step is to go there any time before then file the appearance form? And pay the $176.00. I really to know my FIRST step before citing supreme court rulings : )

I filled out a JAM request online--but have heard nothing so far.

Do you think I should cal this horrible BLHM and try to negotiate with them? I don't think they are a fan of mine, though!

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Thanks for all the advice and support! My return date is on or before June 5, 2012 at 9:30AM. I guess my first step is to go there any time before then file the appearance form? And pay the $176.00. I really to know my FIRST step before citing supreme court rulings : )

I filled out a JAM request online--but have heard nothing so far.

Do you think I should cal this horrible BLHM and try to negotiate with them? I don't think they are a fan of mine, though!

I'd print and complete JAMS paperwork and mail each party a copy, Certificate of service is required. Or you can CMRR completed paper work to Blatt first, as soon as green card is back send everything including the green card (for proof of service) to JAMS. Keep copies of everything for your file including a copy of the signed green card in case things get misplaced.

You can call or email JAMS office to get an update before your appearance. print the email as initiation. (you may get a feisty judge who would want to see JAMS paper work).

JAMS (Chicago) is way too busy and your claims will most likely be forwarded to MN.

Blatt is not fond of any one who fights it, specially the ones who drag it to court way too many times.:wink:

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Just remember, there is no discovery in small claims without leave of court. I just asked for leave verbally at my first court date and the judge granted it. Be prepared to tell the judge what you are looking for, a lot of times in small claims the judge will limit discovery.

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  • 3 weeks later...

Well--finally went to court---which is interesting, because every case on the docket is a debt collection case and 90% are Blatt. A woman walks around and asks you your case # and if they are suing you takes you in the hall and asks you if you dispute the debt and, if so, what you believe it to be. You just say you dispute the debt and the judge gives you a court date. Totsal waste of time!

EVERY CASE on the docket is a debt collection case and many just say --yes I owe and get a judgement--the same thing they would get if they did not even show! Now it's up to them to prove the debt.

I THOUGHT I had this great attorney--who did not even show--and who I did not really need.

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