Coltfan oral arguments

[kittymamma]

I asked for leave for oral arguments and it went straight on my dockets as motion for oral arguments....lol....guess I get my oral arguments if I want them.....will be interesting to see how my lil Midland attorney reacts to this, she has been strangely very quiet since I blasted her with the infeasibility aspect of her msj opposition

[Coltfan1972]

Something tells me they are typing up their motion to dismiss or if they force her to argue that buffoonery to a judge, she is probably working on her resigination letter.

I'm jealous, to be honest with you. I dream of the day to be in court with the attorney from the other side arguing it is infeasible to prove a key element of their case, but they should be given a pass, because their business model makes it infeasible to prove their case.

You should have seen the shocked look on the judge's face, in my case, when the other side tried to aruge JDB records were admissible under the business records exception to hearsay. That is a b.s. argument but can at least sound like a solid legal theory and argument. I can't imagine the look if they would have presented him with something like these clowns are trying to pass off as a solid legal argument.

Unfortuantely, I don't think you will get to have your fun. No attorney in their right mind is going to risk their credibility with such garbage, over a couple of thousand dollars worth of junk debt. Maybe if the law firm was trying to run somebody off, they might force them to court in the hopes they would resign before they humiliated themselves.

[kittymamma]

In my reply to her opposition I included all kinds of case law about hearsay documents and the hearsay exception, I guess I showed her I knew a little about what I was talking about. Also case law about a bill of sale that does not have the defendants name and or account number on it.

I know at this point she doesnt want to mess with me anymore, and I dont necessarily want to go to court but at least if by some miracle they do continue to pursue this, I will have my say.

I do have to admit, I was a little snotty....when I sent her a copy of the motion for oral arguments, I told her I noticed Midland was gone from my credit report so I guess that means I WON....and also told her "I TOLD you that neither JBR or Midland was ever going to get a penny from me" Oh I do imagine if she had a voo doo doll I would be in big trouble:ROFLMAO2:

[usagi555]

Let the nightmares begin. Not for you, nightmaremomma. For them.

[kittymamma]

Let the nightmares begin. Not for you, nightmaremomma. For them.

LOL I am sure by now she is considering a career with McDonalds!!!

[Coltfan1972]

I would tell you to be a little more professional and not taunt your opponents, but I don't like to be a hyprocript.

[drummer55]

awesome

would you mind posting which case law you cited?

[kittymamma]

awesome

would you mind posting which case law you cited?

All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence.5 State v. Graham, 641 S.W.2d 102, 106 (Mo. banc. 1982). To satisfy these requirements, the records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo. 1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo. App. 1989) ("The business records exception to the hearsay rule applies only to documents generated by the business itself . . . . Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C & W Asset, 136 S.W.3d at 140.

I also had one pertaining exactly to the bill of sale but cannot locate it right now.....will check thru my docs later and get back to you

[kittymamma]

I would tell you to be a little more professional and not taunt your opponents, but I don't like to be a hyprocript.

I learned from you massah!!!

[legaleagle]

Two things jump out at me. Your case law appears to be from Missouri. You are in Ohio. Also, some of your cases are "State v........" these are criminal cases. They may not apply.

[kittymamma]

Two things jump out at me. Your case law appears to be from Missouri. You are in Ohio. Also, some of your cases are "State v........" these are criminal cases. They may not apply.

Well something worked, they backed off lol

[Coltfan1972]

Well something worked, they backed off lol

It's called they knew they were beat even if you argued criminal case law for a civil case. That should show you how horrible their case was. That is classic. You argue the completely different type of case and they still know they are beat.

You don't really need a lot of case law when they argue it's infeasible to prove their case. You won't find a lot of case precedent on that subject for you to cite. You know why? Because nobody is dumb enough to actually argue that to a court and if they did they are not going to appeal the courts ruling.

The reason you could not find good case law is because the courts don't make it a habit of recognizing the "it's too much trouble and our business model does not allow for us to prove our cases we sue on," strategy.

Works about as well as, "I'm sorry for speeding officer, but this sports car just has too much horse power. If you just tap the gas you go over the speed limit, it's just infeasible to not speed in one of these cars."

[kittymamma]

Well like I said, I just bumbled my way thru this the best I could until I started posting here.....it looked good on paper as it explains how their documents are hearsay....does anyone have any good caselaw that would support a jdb lawsuit about hearsay?

[PC1978]

Well like I said, I just bumbled my way thru this the best I could until I started posting here.....it looked good on paper as it explains how their documents are hearsay....does anyone have any good caselaw that would support a jdb lawsuit about hearsay?

Here is the best Ohio case I have found because it has all the arguments you use in one case and cites other cases to support them. In this case 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.

[Coltfan1972]

While arguing hearsay is good, you need to hammer that they are saying it's not feasible. They are not even trying to argue hearsay. They don't even have a hearsay document. You are missing just how stupid their argument that is. That is because it is hard to comprehend. I understand. It's hard to imagine an atty at law making that argument.

So, your missing your opportunity. They don't even have hearsay!!!! They don't have a document with your name and account on it. They have worse than hearsay, and that is tough to pull off. They are arguing it's just not feasible for them to even come up with hearsay !!! There is no case law on that, it's such jackassery a court would disbarr the atty on site.

All you have is their word that your account was included with the sale. What are they going to do, call themselves to the stand. They don't even have hearsay, even if hearsay was admissible!! Their argument defies all logic so I understand while you can comprehend the stupidity.

I'm sorry, but you are going to be forced to dumb yourself down to fight this argument. You will lose a few brain cells and insult your own intellegence, but you do what you have to do. You are going to have to get on the same level as their argument. In other words, for the time being, I'm sorry to say, you're going to have to go into dumbass mode. It hurts I know, but it is just temporary.

[RockDaddy]

It'sWorks about as well as, "I'm sorry for speeding officer, but this sports car just has too much horse power. If you just tap the gas you go over the speed limit, it's just infeasible to not speed in one of these cars."

Dude, you're killing me here with this stuf.... LOL....

You can't fix stupid.

[calawyer]

Two things jump out at me. Your case law appears to be from Missouri. You are in Ohio. Also, some of your cases are "State v........" these are criminal cases. They may not apply.

While you might be correct about other state law, the criminal cases are often pertinent. A surprising amount of law about evidence comes from criminal cases for several reasons. The personal stakes are high so the cases tend to get appealed. And evidentiary rulings often have constitutional implications so the appellate courts take them seriously. So, you have to be careful, but frequently you will find law about the admissiblity of documents, for example, that sholuld apply with equal force in a civil case.

[kittymamma]

PC thank you for that excellent information.....I made myself crazy for weeks looking up this stuff and trying to make sense of it....I have decided that legalese sounds like Chinese and I just do "no speaky Chinee"

Colt yes I know, they (she) came up with something extra specially stupid.....and I know I whipped them, mostly with your help....as for dumbing myself down lol I think I have proven I am plenty dumb enough without having to work at it, this stuff is just over my head....altho I am beginning to get the very basics of it, I asked for the caselaw since the ones I used were faulty and I didnt want drummer to use them and mess up:lol:

Calawyer, thanks for that, now I dont feel QUITE as stupid, like I said I stumbled around in the dark with this all by myself until I found this board....I made some really dumb mistakes, boy did I ever, but came out okay in the end8]

[Coltfan1972]

While you might be correct about other state law, the criminal cases are often pertinent. A surprising amount of law about evidence comes from criminal cases for several reasons. The personal stakes are high so the cases tend to get appealed. And evidentiary rulings often have constitutional implications so the appellate courts take them seriously. So, you have to be careful, but frequently you will find law about the admissiblity of documents, for example, that sholuld apply with equal force in a civil case.

True, but the biggest pitfall can be the different burden of proof between civil and criminal. As you state, the stakes are high in criminal. They are not as high in civil. However, hearsay is hearsay but can be admitted more in civil than criminal.

However, at least in my state, there are times where hearsay would be admissible in criminal, such as probation revocation hearings, where would still not be admissible in civil court.

I agree you can find many examples where the law will apply with equal force, but you have to really be careful and deep dive into that case law. You have to really make sure you are comparing apples to apples, and while that can happen even using civil/criminal it is a ton more likely that an error in application will be made, in my opinion, when trying to show how a criminal case applies to a civil case, or vica versa.

I know you were basically saying the same thing when you pointed out the constitutional implications. In the case of this OP, I don't see any need to dive into criminal law cases to make the arguments, even if would be relevant. It's just too cut and dry. However, I agree, after a careful review, you don't just automatically dismiss a criminal case from being used in a civil matter, just because it's a criminal case.

[kittymamma]

. In the case of this OP, I don't see any need to dive into criminal law cases to make the arguments, even if would be relevant.

Alright already, it was all I could find...I did the best I could on my own, time to quit picking on the dumb lil red neck girl:oops:

[Coltfan1972]

Alright already, it was all I could find...I did the best I could on my own, time to quit picking on the dumb lil red neck girl:oops:

Nobody is picking on you. We are just trying to help others that might actually face a legit argument when they have to go to court. You have the dream argument being used against you. Not everybody will be so lucky. What were you supposed to do when faced with such stupidity?

[kittymamma]

. What were you supposed to do when faced with such stupidity?

Ummmm maybe find case law that actually applied? I walked into a fight with Midland without understanding the arena, it was on their turf, not mine, now if I could have met this lil attorney on my turf, lets say out in the parking lot:mrgreen: there would be no doubt as to who the winner would be because then she would have had to speak my language...as it is I somehow managed to hold my own in a fight that I did not understand, but being stubborn I fought it anyway so mistakes and all I guess I did okayxangelx

[usagi555]

What were you supposed to do when faced with such stupidity?

Punch it in the face. Metaphorically speaking, of course. We don't want to give the 'lil redneck girl any bad ideas.

[Coltfan1972]

I fought it anyway so mistakes and all I guess I did okayxangelx

An understatement !! You filed a reply, you understand enough to intelligently convey to the court the other sides jackassery, and got oral arguments ordered and put on the docket.

Yeah, you did okay.

[kittymamma]

Punch it in the face. Metaphorically speaking, of course. We don't want to give the 'lil redneck girl any bad ideas.

Bad ideas?? HAHA ME??? I'm a product of my raisin and I say hey y'all and yeehaw....have also been know to kick an a$$ or two in my life and I do NOT mean metaphorically eitherxWhipMex