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Received MSJ NY more help needed

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I have now received MSJ for Midland. I have my first court date coming up on 8/10. I'm working on my Opposition to MSJ and need some help. I've been reading and reading for months and need to start writing and get this in to the court this week. Attached to the MSJ is as Affidavit of Facts, an Affirmation from the law firm stating some case law, copy of summons, my answer, one credit card statement, bill of sale, affidavit of sale of account, certificate of conformity from South Dakota, statement from Midland. I submitted disclosure and still waiting for their answer. Some of you help me last November with Interrogatories and Notice to Admit so you can look back to see it. Any and all help welcome:)

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Read the following citations carefully to see if they apply to your case.

Standing to Sue

"Moreover, proof of standing is a necessary prerequisite for obtaining any form of relief from this Court." MIDLAND FUNDING LLC v. Goldberg, 2010 NY Slip Op 51823 - NY: Dist. Court, Nassau County, 2nd Dist. 2010. See Midland Funding v. Haye, index no. 09377/09, decision dated November 5, 2009.

"To establish standing to sue, plaintiff was required to submit admissible evidence that Discover assigned its interest in defendant's debt to plaintiff "(see Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330 [2009]).

"It is the assignee's burden to prove the assignment." Citibank, N.A. v. Martin, 11 Misc 3d 219 (Civ Ct NY Co.). It must further prove that the defendant's particular account was included in the assignment. Id.

Affidavit and Business Records

In a similar case involving a debt buyer, The Appellate Division of the Supreme Court of New York, Fourth Department stated the following:

"Although plaintiff's agent averred that the credit card statements and account balance documents were made and kept in the regular course of business, the agent did not establish that he had personal knowledge of Chase's business practices or procedures, nor did he establish when, how, or by whom the credit card statements and account balance documents were made and kept (see CPLR 4518 [a]; West Val. Fire Dist. No. 1, 294 AD2d at 950). Thus, we cannot agree with plaintiff that it established a proper foundation for the admission of the credit card statements and account balance documents under the business record exception to the hearsay rule sufficient to establish standing." UNIFUND CCR PARTNERS v. Youngman, 89 AD 3d 1377, 1378 - NY: Appellate Div., 4th Dept. 2011. (see Palisades Collection, LLC, 67 AD3d at 1330-1331; see generally Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]).

"Contrary to the misconception under which the Plaintiff labors, 'the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records (citation omitted).'" Standard Textile Co., Inc. v. National Equipment Rental, Ltd., 80 AD2d 911, 437 NYS2d 398 (2nd Dept. 1981)

"The statements of Mr. Fabacher, 'who merely obtained the records from another entity that actually generated them, was an insufficient foundation for their introduction into evidence [citing Standard Textile Co., Inc. v. National Equipment Rental, Ltd., supra.].'" Insurance Company of North America v. Gottlieb, 186 AD2d 470, 588 NYS2d 571 (1st Dept. 1992)

The above citations show that merely obtaining records from another entity is not sufficient to introduce them into evidence. Now look at the next citation.

"Employees and agents of the assignee typically cannot provide such proof through their own affidavits since they lack personal knowledge of the assignor's business and record-keeping practices." See Rushmore Recoveries X, LLC v. Skolnick, 2007 NY Slip Op 51041 (Dist Ct Nassau Co.) and Palisades Collection, LLC v. Gonzalez, 2005 NY Slip Op 52015 (Civ Ct NY Co.).

"A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures" West Valley Fire District No. 1 v. Village of Springville, 294 AD2d 949 (4th Dept 2002).

The above states that in order for the plaintiff (JDB) to establish the proper foundation to admit business records from another entity (OC), the witness (in this case the affiant) has to have knowledge of the OC's business practices and procedures. The phrase in bold letters is my emphasis. Don't do that if you use the citation.

BTW, did Midland ever send you a notice that they had been assigned the account?

"An assignee's failure to 'set forth by evidentiary material the date defendant was notified of the assignment' is enough, by itself, to warrant denial of plaintiff's motion." DNS Equity Group Inc. v. Lavallee, 2010 NY Slip Op 50298 - NY: Dist. Court, Nassau County, 2nd Dist. 2010 (citing Caprara v. Charles Court Assocs., 216 AD 2d 722 - NY: Appellate Div., 3rd Dept. 1995)

Also, see if your laws require a certificate of conformity with an out of state affidavit. In some states, an affidavit that's been signed and notarized out of state must be accompanied by such a certificate.

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Thank you both for the awesome help. I've been trying to find case law but have been overwhelmed by all of the legal speak. None of the paperwork has my name or the alleged account number on it, so how would anyone be able to say it pertains to this alleged account? I'm a nervous wreck which makes it even harder to think...

I'll work on this and let you know if I need more help and I know I need your motivation to follow this thru.

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This is for the Bill of Sale;

"But the actual "Bill of Sale and Assignment" submitted by Huber refers only to the sale of certain unspecified 'loans' identified in a 'loan schedule.' No competent proof is provided that defendant's credit card account debt was intended to be treated as one of those 'loans.'" CACH LLC v. FATIMA, 2011 NY Slip Op 51510 - NY: Dist. Court, Nassau County 2011.

What was the cause of action? Breach of contract? Account stated?

Edited by BV80

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"It is the assignee's burden to prove the assignment." Citibank, N.A. v. Martin, 11 Misc 3d 219 (Civ Ct NY Co.). It must further prove that the defendant's particular account was included in the assignment. Id.

How does this one apply? This is an OC. I've cited this case a few times for different reasons.

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"It is the assignee's burden to prove the assignment." Citibank, N.A. v. Martin, 11 Misc 3d 219 (Civ Ct NY Co.). It must further prove that the defendant's particular account was included in the assignment. Id.

How does this one apply? This is an OC. I've cited this case a few times for different reasons.

That case was actually 2 MSJs combined into one. Citibank, N.A. v. Martin and RUSHMORE RECOVERIES IV, LLC v. Viera. The assignment part of the case was related to Rushmore, but many have cited it as "Citibank v. Martin".

Citibank, N.A. v. Martin - Google Scholar

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Guest usctrojanalum

standing, assignment, and attack the affiants knowledge of business practices.

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Aren't they great? "I am the affiant for Midland. I swear Midland's records are accurate" Yeah, and what would happen to you if you refused to vouch for these pus sucking worm eating skunks? You'd be serving Beefaroni at the women's prison. Talk about a biased witness.

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Ok, huge thanks, just home from work and some things to do, like my son stranded with broken down car in the middle of no where on rt. 80 in Nevada as he travels across country for a new job. Day 3 of driving. Hard for me to concentrate on anything. I'll try to get back to this a little later.

Oh BV80, they are claiming breach of contract.

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Ok, huge thanks, just home from work and some things to do, like my son stranded with broken down car in the middle of no where on rt. 80 in Nevada as he travels across country for a new job. Day 3 of driving. Hard for me to concentrate on anything. I'll try to get back to this a little later.

Oh BV80, they are claiming breach of contract.

If the credit card statement doesn't show charges and payments, try this one:

"The plaintiff failed to establish its entitlement to judgment as a matter of law with respect to its claims sounding in breach of contract and on an account stated. The plaintiff submitted insufficient evidence of the existence of an agreement to extend credit to the defendant, the issuance of credit cards at the defendant's address, his use of credit cards, his retention of account statements, or payments on the account." (see PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]).

PRA in the above citation is Portfolio Recovery Associates...a JDB. BTW, that date is supposed to be 2008. Don't know why it keeps putting in the little angel.

Edited by BV80

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Guest usctrojanalum
BTW, that date is supposed to be 2008. Don't know why it keeps putting in the little angel.

8] the code for the angel is an 8 followed by the ] when those two are mashed together angels appear!

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I need an angel:)

Here's the points I need to crush.

1. Lawyer-familiar with facts & circumstances

2.Affirmation -no prior application for the relief sought herein???

3. Exhibit A -Summons

Exhibit B -Answer

4. Breach of contract

5.Exhibit C -Bill of Sale & Statement from Midland

6. No objection by me to account statement???

7. Account stated -no objection ???

8. Absense of triable issues of fact that shift the burden to me???

A little confused about some of these. We've had storms today and it has taken me hours to be able to connect to website today, hopefully it will get better. Not what I need right now.

Any helpful comments welcome.

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"Without demonstrable standing to bring the action and sufficient evidentiary support to make out a prima facie claim for breach of contract or account stated against defendant, plaintiff's motion for summary judgment is denied." See Cach, LLC v. Davidson, 21 Misc 3d 1106(A), 2008 NY Slip Op 51987(U) (Civ Ct NY Co).

If the JDB can't prove they have standing to sue you, then their causes of action go out the window.

Also, look at the case law I provided for Affidavit and Business Records. Their affidavits are not based on knowledge of OC's practices and procedures. Therfore, the documents are inadmissible.

If they don't prove ownership of the account, they don't have standing to sue. As a result, no cause of action.

Even if they were to prove ownership, their affidavit is insufficient to satisfy the requirements for the admission of the business (no knowledge of the OC's practices and procedures). No documents, no proof of account stated or breach of contract.

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I just found a copy of an Affidavit of Facts with the same person (Shannon McClellan) with a different signature that was notorized!!!! Can I attached it to my opposition to MSJ?

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This calls into question the validity of the affidavit, it is not trustworthy. Well worth a shot. I'd attach both. May lead to a handwriting expert issue, but well worth doing.

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Compare the signatures. Then look at your affidavit. Does the affiant's signature overlap the notary signature in any way? If it does, it could be robo signed.

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Look at the Unifund CCR vs. Youngman case out of the NY Fourth Appellate Division.

The Court denied the debt collector's summary judgment motion and dismissed the debt buyer's complaint filed by the collector's attorney.

This case which made pro-consumer case law was handled by Consumer Lawyer Jason A. Shear out of Buffalo, NY.

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Look at the Unifund CCR vs. Youngman case out of the NY Fourth Appellate Division.

The Court denied the debt collector's summary judgment motion and dismissed the debt buyer's complaint filed by the collector's attorney.

This case which made pro-consumer case law was handled by Consumer Lawyer Jason A. Shear out of Buffalo, NY.

It's a good case and was included in post #3.

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And always be ready for the to use their own case law, for every case on the consumers side I can show you one or more on the collectors side, so be ready.

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So I turned in my opposition for the plaintiff's motion for summary judgement last week. I have to be in court for it on Friday morning. I'm pulling everything together and made copies of all of the case law I used in my opposition so I can study it. Any tips on what to expect at this or anything to calm my nerves is most welcome.

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