markinri

My Objection to MSJ - Need to file tomorrow

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Hi all,

I need to file an objection to a MSJ here in RI tomorrow. I've been working all weekend since they denied my extension of time request(thanks to all who helped in my last thread).

I'm sure I have a few errors on the RI rules of evidence. They don't seem to exist anywhere on the internet so it is a bit tricky to cite them.

I have tried to pull together from different samples posted on here. Unfortunately I am a computer programmer not a lawyer.

Any feedback - positive or negative - would be great

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DEFENDANT’S OBJECTION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT

Comes now ME, Pro Se, and moves the court to deny Plaintiff’s Motion for Summary Judgment pursuant to Rule 56 of the Rhode Island Rules of Civil Procedure, and grant said judgment in favor of the Defendant on the grounds that movant has failed to proffer facts which make a prima facie case. Therefore, Defendant is entitled to Summary Judgment in his favor as a matter of law, and states as follows:

1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

2. Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment 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 “There is no genuine issue as to any material fact and Plaintiff is entitled to judgement as a matter of law.” Motion for Summary Judgment should be denied.

3. There are material issues of fact that preclude summary judgment for the Plaintiff, thus Plaintiff's request for Summary Judgment should be denied.

4. Defendant submits his Memorandum of Support in Opposition to Plaintiff’s Motion for Summary Judgment for the court’s consideration.

By the Defendant acting pro se

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DEFENDANT’S MEMORANDUM OF SUPPORT IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Under Rule 56, a party may make a motion for summary judgment when there exists no issues of genuine fact. However, “It is the province of the trial justice to determine, by an examination of the pleadings, depositions, answers to interrogatories, admissions on file, and the affidavits of the parties, whether these documents present a genuine issue of material fact.” Additionally, Due to the extreme nature of summary judgement, "'the court does not pass upon the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion.'" Lennon v. MacGregor, 423 A.2d 820 (R.I. 1980). Only after the Court determines there is no factual dispute and ambiguity as a matter of law, that judgment may be granted.

However, “if after canvassing the material presented, the court finds that genuine factual

issues remain, whose resolution one way or another could affect its outcome, the court must deny the motion.” Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

It is the Defendant’s position that the Plaintiff cannot meet the legal standard necessary for summary judgement, there are genuine issues of fact and the motion should be denied.

MATERIAL ISSUES OF FACT

I. Plaintiff fails to show that it is the owner of the debt alleged.

An essential element of Plaintiff’s action is proof that it is owner of the debt claimed.

"A valid assignment requires only two elements. First, 'the subject matter of the assignment [must be] described so that it is readily identifiable.' Second, there must exist 'clear evidence of the assignor's intent to transfer [his or] her rights.'" See MARANDOLA v. MARANDOLA MECHANICAL, INC., RI: Superior Court 2004 Super LEXIS 115 at *5-6 (citing Flanders & Medeiros Inc. v. Bogosian, 868 F. Supp. 412, 420 (D.R.I. 1994)).

In the present case, Plaintiff has clearly not produced the any agreement which is readily identifiable or that shows evidence of intent to transfer rights.

A lack of standing renders the litigation subject to dismissal. An assignee has the burden to prove the assignment; an assignee must tender proof of assignment of a particular account or, if there was an oral assignment, evidence of consideration paid and delivery of the assignment. In this case the plaintiff fails to meet any of this burden.

Plaintiff invokes Rule 56 of the Rhode Island Rules of Civil Procedure in support of its motion for summary judgment; by among other things submitting a “sworn” affidavit to the Court alleging certain facts. However, said affidavit fails to meet the basic mandates for admissibility as evidence. Rule 56 of the Rhode Island Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit”. In as much as the plaintiffs affidavit fails to meet the requirements of the very Rule that plaintiff invokes to seek judgment, plaintiff has failed to bring forth any evidence warranting the court to rule in its favor. Defendant believes that the Plaintiff’s Motion for Summary Judgment should be denied with prejudice.

Plaintiff has submitted into evidence an untitled printout (hereinafter as “the printout”) from (according to the footer) “electronic records provided by OC” which references a “Bill of Sale / Assignment of Accounts dated DATE.” The affidavit does not specify the Defendant, nor reference in any way any document which could be associated with the Defendant. These are in fact generic documents without specificity that could apply to any defendant.

The Plaintiff's reliance upon the documents it submits is insufficient to make case entitling the Plaintiff to summary judgment. Simply attaching documents to the motion is insufficient. Without a proper evidentiary foundation, “the printout” is therefore conclusory, and should be stricken from evidence in the above action. Additionally, where a statement contained in an affidavit is merely conclusory, the trial court should disregard it when ruling on a summary judgment motion.

Designated Evidence:

a. Affidavit of XXX XXX, in its entirety. Exhibit “A” to Defendant’s Response.

b. Untitled printout “the printout”, in its entirety. Exhibit “B to Defendant’s Response.

II. Plaintiff fails entirely to show the amount of damages.

The amount that Plaintiff claims as damages is not supported by competent evidence. Attached to Plaintiff’s motion is an affidavit of XXX XXX who states that she is an authorized employee of Midland Credit Management, Inc, servicer of the account on behalf of the plaintiff. Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion. Rule 56(e). Additionally “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith”. Rule 56(e). Plaintiff’s affidavit signer does not attach, or even identify the data on which her testimony is based and, as an employee of the assignee rather than the original creditor, lacks the requisite personal knowledge to support the plaintiff’s claim.

Designated Evidence:

a. Affidavit of XXX XXX, in its entirety. Exhibit “A” to Defendant’s Response.

cont...

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4. Plaintiff Fails To Lay a Proper Foundation to Admit Records of a Third Party

Plaintiff alleges that the Defendant owes $$$$ to Midland Funding LLC as an “assignee” to OC.. Plaintiff asserts that it is the successor-in-interest or assignee of OC.. In his answer, defendant asserts that he does not owe any money to OC., and further that Defendant does not owe any money to Midland Funding LLC.

Plaintiff relies exclusively on an affidavit executed by XXX XXX who identifies herself as an employee of Midland Credit Management, Inc (“MCM”) the “servicer” for the Plaintiff, and as such, she claims to be qualified to make statements on behalf of the plaintiff. Ms. XXX claims familiarity with the recordkeeping practices of MCM, and has “reviewed the records pertaining to the account.”

However, Ms. XXX does not advance any documents admissible as evidence. Moreover, Ms. XXX does not discuss any documents produced by the plaintiff or original creditor.

Through her affidavit, Ms. XXX seeks to establish three facts on which to ground Plaintiff’s claims: that Defendant opened an account with OC.; that Defendant accrued charges on alleged account; and that the Plaintiff is entitled to sue as OC.s assignee.

Ms. XXX’s affidavit as a Midland Credit Management employee is not adequate to establish any of these facts. Additionally, when text of the affidavit is compared with the Plaintiff’s attachments, it is apparent that the affidavit is merely a boilerplate recitation unconnected to the underlying documents. Also, the affidavit itself contains multiple barcodes, date formats that are not commonly used by individuals (Year-Month-Day), and has been dated with what appears to be the same stamp as the one used by the notary. As such, the affidavit lacks trustworthiness.

Defendant states that the Plaintiff’s affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, OC.. At no time was the affiant nor any of the Plaintiff’s employees present to witness any purported acts or creation of the records of transactions and communications occurring between the Defendant and OC.; As such, the affidavit of XXX XXX falls under the hearsay rule Rule 802 and is inadmissible as evidence.

Defendant further states that the affidavit is not subject to the hearsay business records exemption In Rule 803(6) because it was not made at or near the time of the purported acts or events, and ; the information contained in the document is merely an accumulation of hearsay, and; upon information and belief, the creator of the document in Plaintiff’s affidavit is not currently and has never been employed with OC. and therefore cannot have personal knowledge of how OC.’s records were prepared and maintained and; is unqualified to testify as to the truth of the information contained in Plaintiff’s affidavit.

Rhode Island courts have held that "The plaintiff had no personal knowledge of the making and keeping of the medical records and, therefore, was not a competent witness to authenticate them. Without authentication, the records are not admissible under Rule 803(6)." Boscia v. Sharples, 860 A. 2d 674, 680 - RI: Supreme Court 2004.

Rhode Island courts have also held that "Rule 803(6) does not define 'custodian' or 'qualified witness,' but the Rhode Island Supreme Court has held that a witness lacking personal knowledge of the making and keeping of the business records is not competent to authenticate them." State v. Carrera, 528 A.2d 331, 335-336 (R.I. 1987).

Defendant further claims that the underlying data used for the summary compilation of Plaintiff's Affidavit of the alleged account were not records kept in the course of regular business by Midland Funding LLC, but were records kept by OC., who is not a party to this suit. There is no record of who compiled the underlying data specifically, therefore no way to challenge and cross-examine the accuracy of this data in the course of a trial.

Pursuant to Rhode Island Rule 902 the XXX affidavit fails to authenticate the Plaintiff’s attached documents/exhibits contained in the Complaint, and; the affidavit neither makes reference to the attached exhibits, nor identifies the documents Plaintiff purports to authenticate and offer as evidence; and must be excluded and stricken in the above action.

While Ms. XXX may very well be “familiar with the manner and method by which MCM creates and maintains its business records”, the mere acceptance or incorporation of electronically transferred data from OC. info Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of 803(6) which authorizes the court to exclude business records when the "source of information or the method or circumstances of preparation indicate a lack of trustworthiness." SeeInternational Brotherhood of Electrical Workers, Local No. 99 v. United Pacific Insurance Co., 573 A.2d 270, 273 (R.I. 1990).

Defendant further states that the “Billing Statements” attached to Plaintiff’s Motion for Summary Judgment, issued by the alleged original credit grantor are not admissible as the alleged purchasing plaintiff's business records, as the alleged purchasing plaintiff does not authenticate said documents, and has no personal knowledge of how those records were created or maintained. Since the plaintiff has no personal knowledge of the making or keeping of these records, the Plaintiff is ”...not a competent witness to authenticate them. Without authentication, the records are not admissible under Rule 803(6)." Boscia v. Sharples, 860 A. 2d 674, 680 - RI: Supreme Court 2004.

Designated Evidence:

a. Affidavit of XXX XXX, in it’s entirety. Exhibit “A” to Defendant’s

Response.

b. “Billing Statements” Exhibit “C” to Defendant’s Response.

As Plaintiff has not advanced any factual basis or evidence that the Court is obliged to consider in support of its complaint, the Defendant asks the Court to deny the Plaintiff’s Motion for Summary Judgment.

CONCLUSION

For the reasons stated above, Defendant submits that Plaintiff’s motion for summary disposition should be denied.

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First of all, stop opening a new thread every time you post. Nobody will jump back and forth. here are the rules. Not too hard to find.

Title 9 - Index of Chapters

Sorry on opening a new thread, I had read in another thread earlier it was better to open a new one at times when there were major differences. I can delete this and move to the old thread if folks want.

Thanks for those rules, I had found those already. Was looking for detailed text of these: Rhode Island Rules of Evidence - Rules of Civil Procedure - State Rules of Civil Procedure - Civil Procedure

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If it were me, I'd italicize the the names of the parties and the court after quoting case law. I don't know if it's actually required, but it seems that's the way it's done in legal documents. It also makes the case law stand out a little.

"The plaintiff had no personal knowledge of the making and keeping of the medical records and, therefore, was not a competent witness to authenticate them. Without authentication, the records are not admissible under Rule 803(6)." Boscia v. Sharples, 860 A. 2d 674, 680 - RI: Supreme Court 2004.

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You can italicize, but usually that is reserved for the appellate courts and above when they cite cases. At least here it is. We just underline the name of the case. Either way should work, but underlined cases are easier to spot. What's most important is that the poster actually read the cases he cites, especially if they are from his state. Most likely the judge has seen these cases and may ask the poster what relevance they have, etc. He should be prepared to answer. Citing BV80 v. Coltfan International Collection Agency. The best thing I ever saw was a lawyer citing a case I had already used, and he tried to twist it around to something it didn't say. Guess what happened to him. See how that underlined part jumps out? You see that before you even read the post. By the way, BV80 won that case hands down. LOL (stupid me, I used to think that meant lots of luck)

Edited by legaleagle

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Sorry on opening a new thread, I had read in another thread earlier it was better to open a new one at times when there were major differences. I can delete this and move to the old thread if folks want.ce - Rules of Civil Procedure - State Rules of Civil Procedure - Civil Procedur

No worries, you're fine.

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No worries, you're fine.

Really? He's fine? Everybody does this, they open a new thread every time they post. We can't jump back and forth beteween 3-4 threads. We have enough problems with people who have no clue as to what they are doing. We don't need this on top of it.

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Really? He's fine? Everybody does this, they open a new thread every time they post. We can't jump back and forth beteween 3-4 threads. We have enough problems with people who have no clue as to what they are doing. We don't need this on top of it.

Really, it's fine. It's up to admins and moderators to point out the policy of this board. Suggestions are welcome, but that was pretty harsh language.

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I don't think it's harsh to point out the fact that posters open 3-4 new threads at will. You decide, you run the show. We will then decide who we'll respond to accordingly. As for no clue, you need to read some of what these people put up here.

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We will then decide who we'll respond to accordingly. As for no clue, you need to read some of what these people put up here.

That's right, you decide who you respond to. But you are only one person who likes things one way or another. You are not the whole board.

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You can italicize, but usually that is reserved for the appellate courts and above when they cite cases. At least here it is. We just underline the name of the case. Either way should work, but underlined cases are easier to spot. What's most important is that the poster actually read the cases he cites, especially if they are from his state. Most likely the judge has seen these cases and may ask the poster what relevance they have, etc. He should be prepared to answer. Citing BV80 v. Coltfan International Collection Agency. The best thing I ever saw was a lawyer citing a case I had already used, and he tried to twist it around to something it didn't say. Guess what happened to him. See how that underlined part jumps out? You see that before you even read the post. By the way, BV80 won that case hands down. LOL (stupid me, I used to think that meant lots of luck)

Thanks for the advice. I am making printouts of all the cases I cited.

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