notgoingdown1

Opposition to Motion for Summary Judgment oklahoma

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The Defendant has informed counsel for the plaintiff that she stipulates to the underlying account with chase bank and to the payments and activity on the account. however, she questions the plaintiff's standing as assignee. See letter from defnendant attached hereto as exhibit "a". Thus, the only remaining question is whether the plaintiff has standing to bring this suit. The Plaintiff has attached hereto as exhibit "b" the affidavit of its representative which includes assignments showing that this account was first assigned from xxxxxxxxxx bank to xxxxxx and then to the plaintiff and monthly statements providing the amt due and owing on the account.

facts

1. on or about xxxxxx defendant entered into a cc agreement with chase bank. see exhibit "a"

2. The defendant defaulted on the account. see exhibits a and b

3. on xxxxxxx the account was assigned from chase bank to turtle creek assets, see exhibit b.

4. the account was then assigned from turtle creek assets to the plaintiff, faust corp on xxxxxxx, see exhibit b.

5. the debt remains unpaid and the balance due and owing by the defendant to the plaintiff, see exhibits a and b.

ARGUMENT AND AUTHORITY

The defendant has stipulated to the creation of the account, payments and the accuracy of the card issuer's monthly statements on this account as it relates to the original lender, chase bank, and questions only the plaintiff's standing to bring suit against her. See exhibit a. Therefore, the only question that remains is whether the plaintiff has standing. Attached hereto are the assignments showing that the plaintiff does in fact have standing, as all rights to the account were assigned to it in xxxxxxxx. Therefore, the plaintiff has established that there are no questions of material fact and it is entitled to judgment as a matter of law.

THE PLAINTIFF HAS STANDING

The oklahoma supreme court in wells fargo bank v. heath____P.3d____, 2012 OK 54 held that standing is a person's legal right to see relief in a judicial forum. While the facts in heath centered around the ability of an assignee of a note and mortgage to bring suit, the analysis thereof is similar, in that in order to bring an action for the recovery of a debt, the party filing suit must demonstrate that it has been properly assigned the rights on that debt before filing suit. Here, the Defendant stipulates to the existence, payment and activity on this account, (see exhibit a) as it relates to the original lender, chase bank and as reflected in monthly statements attached hereto as exhibit b.

however, she disputes whether the plaintiff was assigned the rights to the account. see exhibit a. The plaintiff has attached hereto as exhibit b copies of the assignments that demonstrate that the plaintiff is the owner of the rights to the account and thus has the proper standing to bring this action. The account was originally assigned from xxxxxxxxxx bank to xxxxxxin xxxxxx 201 the acct was then assigned to the Plaintiff from xxxxxxx in xxxxxx. This suit was not filed until xxxxxxx. At the time of filing this suit, the Plaintiff had the proper standing as all rights on the account were assigned to the plaintiff six months prior to the time suit was filed. Therefore, pursuant to the court's analysis in Heath, the plaintiff has properly demonstrated that it had standing at the time suit was filed.

SUMMARY JUDGMENT IS PROPER

Where it appears to the court that there is no genuine dispute as to a material fact and that one party is entitled to judgment as a matter of law, the court should enter summary judgment in favor of that party. As prviously stated, the defenddant has stipulated to the fact that she opened, utilized and is currently in default on the account at issue here. exhibit a. The only remaining issue is whether the Plaintiff had standing to bring this action against the Defendant. The Plaintiff has provided the court with the assignments demonstrating that the plaintiff was assigned all rights to the account and therefore has standing to bring this action. Exhibit b. Accordingly, there are no remaining questions of fact and the plaintiff is entitled to judgment.

CONCLUSION

The Defendant stipulated to the fact that she opened, utilized and then defaulted on the account, as it related to chase bank, the original lender. The only question she raises is whether the plaintiff has standing to bring this suit. The plaintiff has clearly demonstrated its standing as it has provided the assignments from chase ban to turtle creed and then to the plaintiff, therefore, pursuant to rule 13, and 12 os 2056, there exists no question of fact and the plaintiff is entitled to judgment as a matter of law.

WHEREFORE the Plaintiff respectfully requests that this Court enter judgment in its favor and against the Defendant in the amount of $xxxxxxx with prejudgment interest at the statutory rate thereon from 07/06/2011 and then post-judgment interest at the statutory rate until paid, and costs of this action including a reasonable attorney’s fee.

*************

Exhibits

18 months of statements (beginning 3yrs after Plaintiff states account was opened)

Two Bills of Sale

a generic spreadsheet with Defendant's info

An affidavit for the Plaintiff (see following post)

Letter from Defendant to Plaintiff stipulating an account with xxxxxxx bank, but nothing else and making it clear that Plaintiff's standing was in dispute.

*************************

Working on a rough draft right now, I know I have these guys beat, I'm just having a hard time throwing it all together. Case law in Oklahoma is difficult to find on these subjects, but I've been in contact with BV80 and I think it just needs to be put out here in the open so that others can benifit from it one day!

As always any and all insight welcomed!

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AFFIDAVIT OFXXXXXXXX

The undersigned, upon being duly sworn, states as follows:

1. That I am the Collection manager of XXXXXX, and am familiar with the records of XXXXXXXpertaining to a CREDIT CARD AGREEMENT bearing account number xxxxxxxxxxxxx.

2. The original card issuer is XXXXXXXXBANK USA, N.A.

3. The name of the account debtor is XXXXXXXXXX

4. That XXXXXXXX defaulted in payment on the account and all rights to the account were assigned to faust corporation. Exhibit A

5. The amount due on said account, over and above all legal set-offs and counterclaims is 5xxx.xx with interest at the statutory rate.

6. Exhibit B is a true and correct copy of the statements provided by the card issuer and relect what is now due and owing on the account.

XXXXXXXXXX

Notarized.

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They want to use a mortgage case to prove ownership? Here you go:

"¶ 25 Therefore, if Appellee is trying to establish it is a person entitled to enforce the note by virtue of being a nonholder in possession who has the rights of a holder, the assignment of the mortgage is not supportive. A person trying to establish it is a nonholder in possession who has the rights of a holder must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. Without anything in the record establishing Appellee is a person entitled to enforce the note, either as a holder or nonholder in possession who has the rights of a holder, there is nothing to establish Appellee's standing in this case.

¶ 26 Appellee must also demonstrate it became a 'person entitled to enforce' prior to the filing of the foreclosure proceeding. We find there is no evidence in the record establishing Appellee had standing to commence this foreclosure action." CPT ASSET BACKED CERTIFICATES v. Kham, 2012 OK 22 - Okla: Supreme Court 2012.

"Following the teachings of Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ¶ 11, 270 P.3d 151, where we held:

To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing." NTEX REALTY, LP v. Tacker, 275 P. 3d 147, 148, 149 - Okla: Supreme Court 2012.

I would also point out that your stipulation to the existence, payment and activity on the account has nothing to do with whether or not the Plaintiff owns the account.

There's no evidence from the OC that your specific account was included in any sale to anyone. The bill of sale from the OC to JDB #1 doesn't reference your name or account number. There's no proof JDB #1 ever purchased your account.

The bill of sale from JDB #1 to JDB #2 makes no mention of you or your account number. The Plaintiff has provided no evidence that your account was ever sold to JDB #1 in the first place, much less that they (Plaintiff) purchased it from JDB #1.

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They want to use a mortgage case to prove ownership? Here you go:

"¶ 25 Therefore, if Appellee is trying to establish it is a person entitled to enforce the note by virtue of being a nonholder in possession who has the rights of a holder, the assignment of the mortgage is not supportive. A person trying to establish it is a nonholder in possession who has the rights of a holder must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. Without anything in the record establishing Appellee is a person entitled to enforce the note, either as a holder or nonholder in possession who has the rights of a holder, there is nothing to establish Appellee's standing in this case.

¶ 26 Appellee must also demonstrate it became a 'person entitled to enforce' prior to the filing of the foreclosure proceeding. We find there is no evidence in the record establishing Appellee had standing to commence this foreclosure action." CPT ASSET BACKED CERTIFICATES v. Kham, 2012 OK 22 - Okla: Supreme Court 2012.

"Following the teachings of Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ¶ 11, 270 P.3d 151, where we held:

To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing." NTEX REALTY, LP v. Tacker, 275 P. 3d 147, 148, 149 - Okla: Supreme Court 2012.

I would also point out that your stipulation to the existence, payment and activity on the account has nothing to do with whether or not the Plaintiff owns the account.

There's no evidence from the OC that your specific account was included in any sale to anyone. The bill of sale from the OC to JDB #1 doesn't reference your name or account number. There's no proof JDB #1 ever purchased your account.

The bill of sale from JDB #1 to JDB #2 makes no mention of you or your account number. The Plaintiff has provided no evidence that your account was ever sold to JDB #1 in the first place, much less that they (Plaintiff) purchased it from JDB #1.

What he said ^^^^ I think I also emailed you a thread that was full of opposition arguments, if not let me know.

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Rule 13© of the Oklahoma Rules of Civil Procedure states:

Rule 13. Summary Judgment.

c. The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial.

The affidavit of _______________does not comply with this rule. The Affiant does not state that she has personal knowledge of the statements made in the affidavit.

___________________states "That XXXXXXXX defaulted in payment on the account and all rights to the account were assigned to Faust corporation. Exhibit A." Plaintiff's Bills of Sale do not support that statement. In addition, ______________is an employee of JDB #2. She is not employed by OC or JDB #1. Since the Bill of Sale between OC AND JDB#1 does not reference Defendant's name or account number and Affiant could not have been privy to any alleged business dealings between OC and JDB #1, Affiant's statement cannot be based upon personal knowledge nor could she be competent to testify as to the details of the alleged sale of accounts referenced in that Bill of Sale.

Affiant also states that "Exhibit B is a true and correct copy of the statements provided by the card issuer and relect what is now due and owing on the account." This statement is also unsupported by any evidence. Plaintiff has failed to provide an affidavit or sworn statement of any kind from OC or JDB #1 attesting to the authenticity and accuracy of the credit statements.

As stated before, since the Affiant could not have been privy to an alleged sale of accounts from OC to JDB #1, she cannot have personal knowledge of any documents allegedly included in such a sale and is not competent to testify to the authenticity and accuracy of the credit card statements.

"Affidavits may be used but must be made by persons having 'personal knowledge' of the facts asserted and must 'show that the affiant is competent to testify as to the matters stated therein and ... [which] set forth facts that would be admissible in evidence.' 12 O.S. 1971, Ch. 2 App." Strickland v. COCA COLA COMPANY, 536 P. 2d 409, 411 - Okla: Court of Appeals, 2nd Div. 1974.

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Good stuff bv80. I have all thus stuff written down in a hundred different places but I have difficulty throwing it all together . I will be posting a rough draft sometime tomorrow and I'd hope to have this thing ready by tuesday at the latest.

For my counter affidavit do I just oppose everything their witness has stated?

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Ok, just going to fish for ideas here,

They petition is "breach of contract" I am brainstorming different directions, could this be used, not all elements of breach of contract are stipulated, as the plaintiff never provided the written contract or the terms etc?

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Credit card agreements can be written, or they can be implied by the conduct of the parties. This is known as use and acceptance, it is not necessarily statutory in all states. The terms are simple; you were issued a card, and by using it you allegedly consented to whatever terms were in force at the time. The terms would be in the cardholder agreement. "Elements" of breach are not usually detailed in a civil complaint. Depending on your state procedure, you may ask for a more definite statement if you do not understand what the complaint says. These are usually denied.

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Breech of contract does not matter. If they don't have standing it does not matter if you breached a million contracts. Unless they can show standing, if you breached the contract or not is irrelevant.

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Breech of contract does not matter. If they don't have standing it does not matter if you breached a million contracts. Unless they can show standing, if you breached the contract or not is irrelevant.

I think the OP is just working on other elements of the suit because of the lack of precedent in OK courts regarding debt and standing.

"In order to recover on its breach of contract theory, Digital needed to prove: 1) formation of a contract; 2) breach of the contract; and 3) damages as a direct result of the breach." DIGITAL DESIGN v. Information Builders, 24 P. 3d 834 - Okla: Supreme Court 2001.

Cardmember agreements state that use of the account indicates your acceptance of the terms and conditions. If I remember correctly, they haven't provided a copy of a cardmember agreement.

See if your state laws have anything related to use and acceptance. If there's nothing in your laws, I'd argue that the Plaintiff hasn't proven the formation of a contract. Therefore, there can be no breach.

If they were to try to argue "use and acceptance", and your state has no law related to that, you'd point out that they haven't proven "use and acceptance" implies a contract.

Did that make sense?

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Notgoingdown1 - I have a case right now in OK with almost identical scenarios in terms of lack of standing and the bogus affidavit presented. Would you mind sharing with me how you plan to approach this? Have you discovered any case law in Oklahoma that might help??

Thank you!

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Notgoingdown1 - I have a case right now in OK with almost identical scenarios in terms of lack of standing and the bogus affidavit presented. Would you mind sharing with me how you plan to approach this? Have you discovered any case law in Oklahoma that might help??

Thank you!

Hello prose789... I'm working on my opposition this weekend. My rough draft is about five pages long , these clowns wrote three pages I'm shooting for coltfan's favorite "blowing them out of the water " or "train collision " I will be posting it for critique soon, stay posted. Oklahoma is lacking in debt related case law but I think I might have what can be used in its place. You are up against LBN they are sloppy in their work. Be aggressive with them. Pm me and I'll email u my discovery I used to beat them (coltfans own handy work)

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I think the OP is just working on other elements of the suit because of the lack of precedent in OK courts regarding debt and standing.

"In order to recover on its breach of contract theory, Digital needed to prove: 1) formation of a contract; 2) breach of the contract; and 3) damages as a direct result of the breach." DIGITAL DESIGN v. Information Builders, 24 P. 3d 834 - Okla: Supreme Court 2001.

Cardmember agreements state that use of the account indicates your acceptance of the terms and conditions. If I remember correctly, they haven't provided a copy of a cardmember agreement.

See if your state laws have anything related to use and acceptance. If there's nothing in your laws, I'd argue that the Plaintiff hasn't proven the formation of a contract. Therefore, there can be no breach.

If they were to try to argue "use and acceptance", and your state has no law related to that, you'd point out that they haven't proven "use and acceptance" implies a contract.

Did that make sense?

Yes it makes sense... I've noticed there is no "account stated" ever filed in ok. Only breach of contract and indebtedness. I've also found a bit of case law re breach of contract. I can't post the link from my phone but in another thread " rebuttal of lawyer" a cic member was working on their opposition to MSJ and they included case law for account stated.

Now I have stipulated that there was a cc with chase, does this blow arguing breach of contract out of the water? I have not stipulated to a default though? Im not even sure I'll need it I have five pages in my rough draft with what we've already discussed. But I want a trial dammit!! Lol

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Hello prose789... I'm working on my opposition this weekend. My rough draft is about five pages long , these clowns wrote three pages I'm shooting for coltfan's favorite "blowing them out of the water " or "train collision " I will be posting it for critique soon, stay posted. Oklahoma is lacking in debt related case law but I think I might have what can be used in its place. You are up against LBN they are sloppy in their work. Be aggressive with them. Pm me and I'll email u my discovery I used to beat them (coltfans own handy work)

Notgoingdown1 - I really do appreciate anything you can share - I'll PM you. Thank you!

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COMES NOW, the Defendant, xxx, and in support of its Opposition to the Plaintiff’s Motion for Summary Judgment, provides the Court as follows:

The Defendant has indeed informed counsel for the Plaintiff that she stipulates to having an account with xxxxxBank and to payments and activity on account with xxxxx. However, as the Defendant asserts in the last paragraph of the letter to Plaintiff’s counsel (Please see the Defendant’s letter attached hereto as Exhibit “A”), there still remains material facts in dispute that can only be resolved at trial by a trier of the facts.

INTRODUCTION

Though the Plaintiff has submitted two bills of sale and a generic spreadsheet, attached hereto as exhibit “B”. Neither of the two Bills of Sale reference the Defendant in any manner. The generic spreadsheet is a mystery as to what its purpose or “proof of” in this instant action.

The Plaintiff has also submitted some monthly statements, attached hereto as exhibit “C”. These statements are not admissible under the hearsay business exemptions rule, as foundation has not been properly laid for the records to be self authenticated without live witness testimony nor do they present a complete accounting for the amount claimed to be owed by the Defendant to the Plaintiff. Therefore the issue arises of another material fact in dispute that can only be resolved at trial by a trier of the facts.

The Plaintiff has submitted an Affidavit made by a representative of the Plaintiff, attached hereto as exhibit “D”. Though the representative for xxxxx can authenticate the business records of xxxxx, the Affidavit is fatally defective and flawed not in compliance with Oklahoma Civil Rules of Evidence. The Plaintiff has not submitted any testimony by two other entities involved in the chain of custody of this account, to attempt to authenticate the business records of xxxxxor xxxxx(please see Exhibit “B”). Even under the Oklahoma statute for hearsay evidence under the Business records exemption, a corporation cannot take business records from another entity, drop them into their own file cabinet to later pull them out and call them “their” own business records. Attached hereto are Exhibit “E”, Defendant’s Affidavit and Exhibit “F” Plaintiff’s Responses to Defendant’s Discovery Requests which will show the Court that the Plaintiff’s witness, xxxxx neither works for, nor has access toxxxxand xxxxx records. Without a trial and the proper witness testimony with cross-examination, these issues raise a material dispute where reasonable minds would differ and summary judgement is not proper.

FACTS

1. The Defendant stipulates that she did enter into a credit card agreement with xxxxx. On or about x 2006.

2. The Defendant has not stipulated to a “default” on any account. (please see Exhibit “A”)

3. The Plaintiff has submitted 18 months worth of statements beginning xxx of 2008, ending xxxx of 2009.

4. This case involves the Defendant and three other entities. Those entities are OC, JDB1, and JDB2.(Please see Exhibit “B” Bills of Sale/Spreadsheet)

5. The Plaintiff has submitted two alleged bills of sale. Neither one offer any identifying information to prove that the Defendant’s alleged account was involved in either one of the alleged sales.(Exhibit “B”)

6. The Plaintiff has submitted a generic spreadsheet with some of the Defendant’s information, with no identifying information as to who or whom created this spreadsheet.

7. The Plaintiff’s affiant, XXXX, is not a representative for either OC or for JDB1. Please see Plaintiff’s response to #___ in exhibit “F”.

8. The Plaintiff has not submitted any testimony or evidence of any kind from OC the alleged originator of the account that is the basis of this lawsuit.

9. The Plaintiff has not submitted any testimony or evidence of any kind from JDB1, the alleged first debt buyer of the account that is the basis of this lawsuit.

10. Defendant disputes the amount $XXXXXPlaintiff claims is due and owed and avers that she owes nothing to the Plaintiff.

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ARGUMENT AND AUTHORITY

The Plaintiff is not entitled to Summary Judgment

Plaintiff is moving for Summary Judgment based on 12 O.S. § 39-2056 C “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Plaintiff states in their Motion for Summary judgment that the only “question” that remains is whether the Plaintiff has standing. Defendant avers that there are multitudes of questions that raise a material dispute where reasonable minds would differ and summary judgement is not proper. In Vance v. Federal Nat. Mortg. a$$'n, 988 P. 2d 1275 - Okla: Supreme Court 1999 The Oklahoma Supreme Court defined the “Standard of Review for Summary Judgments” by stating “¶ 6 While summary process is available to litigants to identify and isolate non-triable fact issues, its purpose is not to defeat a party's right to trial.[5] It is only apropos when tendered evidentiary materials support but a single inference favorable to the movant and then only after viewing the proffered materials in the light most favorable to the non-moving party .[6] It is not summary adjudication's function "to set the stage for trial by affidavit."[7] Although the trial court must consider factual matters when considering summary judgment, a cause's expedited resolution by this process is appropriate only when all that remains regarding a particular issue is a question of law, i.e., when "one party is entitled to judgment as a matter of law because there are no material disputed factual questions.”” In this Motion for Summary Judgment, Plaintiff has submitted evidentiary materials that do not meet their burden of proof and Summary judgment as a matter of law is improper and Summary Judgment should be denied.

1. Bills of Sale

The Plaintiff has submitted two Bills of Sale and a generic spreadsheet as proof of their alleged ownership of an account. (Exhibit “B”) Neither of these Bills of Sale makes any reference in any way to the Defendant or to any account belonging to the Defendant. There is no way for the Court or the Defendant to be sure that the Defendant’s account was sold from OC to JDB1, or from JDB1 toJDB2, the Plaintiff. The generic spreadsheet that does contain the Defendant’s name is not referenced in any manner by the Plaintiff, so the Defendant and the Court can only assume what the exact nature of the spreadsheet and what its use is in this instant action. With these items there is no way for the Defendant or the Court to know beyond a shadow of a doubt that a) JDB1 did buy an account belonging to the Defendant in any amount from OC. and that B) JDB1 actually owned an account belonging to the Defendant in which they had rights to sell to another party and that c)JDB2 is the rightful owner of any account belonging to the Defendant.

2. Affidavit of XXXXXX(Exhibit “D”)

The Affidavit of XXXXXsubmitted by the Plaintiff in support of self-authenticating their evidentiary materials, is fatally defective and flawed. Business records are hearsay, but they can be admissible hearsay under the right circumstances. For business records to be admissible, a proper foundation must be laid for the admission of the records to show that the records are authenticate and what the Plaintiff claims them to be. 12 OS 2803(6) is the business records exception that states the requirements for hearsay exceptions even though the declarant is available as a witness “6. A record of acts, events, conditions, opinions or diagnosis, made at or near the time by or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title, or with a statute providing for certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” The Plaintiff has attempted to certify their alleged business records through self-authenticating without a live witness via the Affidavit of XXXXXX. 12 OS 2902(11)a states “11. The original or a duplicate of a domestic record of acts, events, conditions, opinions, or diagnoses if:

a. the document is accompanied by a written declaration under oath of the custodian of the record, or other qualified individual that the record was made, at or near the time of the occurrence of the matters set forth by or from information transmitted by a person having knowledge of those matters; was kept in the course of the regularly conducted business activity; and was made pursuant to the regularly conducted activity,” There is nothing in the affidavit that states the records were made in the regular course of business and that it was the regular practice of that business activity to make the record. The Plaintiff's affidavit does not comply with OK Rule of Evidence 2902(11). Therefore, the Plaintiff has failed to lay a proper foundation for the admission of the alleged business records. The documents are not subject to the hearsay exception under Rule of Evidence 2903(6) and are unauthenticated, inadmissible hearsay. The court in Walker v. State ruled: "This Court held in Jones v. State, 660 P.2d 634, 642-43 (Okl.Cr. 1983), that a letter from a doctor who had examined the defendant, introduced by the State, was inadmissible because the foundational requirements of 12 O.S. 1981, § 2803(6) had not been met. "It was not necessary to call the doctor who wrote the letter, but it was necessary to call someone who could testify that the report was in fact made at or near the time and by, or from information transmitted by, a person with knowledge of the circumstances reported." Likewise, in this case, petitioner did not meet the foundational requirements of section 2803(6), therefore the documents were inadmissible. Therefore, we find that the district court did not abuse its discretion in not admitting the documents or continuing the hearing sua sponte." Walker v. State, 826 P. 2d 1002, 1006 - Okla: Court of Criminal Appeals 1992. Even though this case is a criminal case, just like standing applies to all cases, criminal or civil, the same applies to business records. 12 OS 2803(6) applies to all business records.

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Rule 13© of the Oklahoma Rules of Civil Procedure states “The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The affidavit of XXXX does not comply with this rule. The Affiant does not state that she has personal knowledge of the statements made in the affidavit. XXXXX states "That /DEFENDANT defaulted in payment on the account and all rights to the account were assigned toJDB2. Exhibit A." Yet Plaintiff's Bills of Sale do not support that statement. In addition,XXXXXX is an employee of JDB2. She is not employed by OC or JDB1. Since the Bill of Sale between OC and JDB1 does not reference Defendant's name or account number and Affiant could not have been privy to any alleged business dealings between OC and JDB1 , Affiant's statement cannot be based upon personal knowledge nor could she be competent to testify as to the details of the alleged sale of accounts referenced in that Bill of Sale. Furthermore, Affiant also states that "Exhibit B is a true and correct copy of the statements provided by the card issuer and reflect what is now due and owing on the account." This statement is also unsupported by any evidence. Plaintiff has failed to provide an affidavit or sworn statement of any kind from OC OR JDB1 attesting to the authenticity and accuracy of the credit statements. As stated before, since the Affiant could not have been privy to an alleged sale of accounts from OC TO JDB1, she cannot have personal knowledge of any documents allegedly included in such a sale and is not competent to testify to the authenticity and accuracy of the credit card statements. Oklahoma Court of Appeals 2nd Div in Strickland v. COCA COLA COMPANY have stated "Affidavits may be used but must be made by persons having 'personal knowledge' of the facts asserted and must 'show that the affiant is competent to testify as to the matters stated therein and ... [which] set forth facts that would be admissible in evidence.' 12 O.S. 1971, Ch. 2 App."

Plaintiff has not Proven Standing

The Defendant has stipulated to the creation of an account with OCand that there were payments and activity on said account at one time. Defendant has not conceeded to Plaintiff’s standing to sue in this matter. (Please see Exhibit “A”). Plaintiff has submitted inadmissible evidence in support of its Motion for Summary Judgment and this created a genuine material issue in which a trial is necessary to resolve. "This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion." Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. Though the Matter of the Estate of Doan is not a credit card related case, standing to sue is a very basic element in any case. The Oklahoma Supreme Court in Fent v. Contingency Review Bd., 163 P. 3d 512, 519 - Okla: Supreme Court 2007 defined the elements of standing with "Standing refers to a person's legal right to seek relief in a judicial forum.[20] The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision." The US Supreme Court takes this a bit further in Lujan v. Defenders of Wildlife, "In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, 'standing [must] be determined as of the commencement of suit.” Plaintiff has yet to prove they own any alleged account related to the Defendant or that the Defendant owes any amount to the Plaintiff, as a result, they have not proven there has been an injury that gives standing to bring suit in this action.

Defendant has not stipulated to the accuracy of the card issuer’s monthly statements on the account in question as it relates to the original lender. (See Exhibit “A” Defendant’s Letter) Without a trial in this matter and a live witness testimony from the originator of the records, OC, with cross-examination the Defendant has no way of knowing how the amount $XXXXX, that the Plaintiff claims is due and owing, was calculated or of its accuracy.

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You're doing a good job. However, I would remove "shadow of a doubt". That's not required in civil cases. Civil cases are based upon the preponderance of the evidence.

Under "Plaintiff has not proven standing", I might state that not only have you not conceded their standing in this case, any stipulations regarding your opening and use of the account have nothing to do with the issue of standing.

I know this is just a rough draft, but you might want to break it up a little more in order to make it easier to read and follow. Also, I'd either italicize or underline the party and court names in the case law citations.

"This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion." Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576.

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You're doing a good job. However, I would remove "shadow of a doubt". That's not required in civil cases. Civil cases are based upon the preponderance of the evidence.

Under "Plaintiff has not proven standing", I might state that not only have you not conceded their standing in this case, any stipulations regarding your opening and use of the account have nothing to do with the issue of standing.

I know this is just a rough draft, but you might want to break it up a little more in order to make it easier to read and follow. Also, I'd either italicize or underline the party and court names in the case law citations.

"This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion." Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576.

Thank you bv80, I was doubtful about the shadow of a doubt line too. Would new paragraphs help in the "breaking it up" ?

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Thank you bv80, I was doubtful about the shadow of a doubt line too. Would new paragraphs help in the "breaking it up" ?

Yes. Here's an example:

"Rule 13© of the Oklahoma Rules of Civil Procedure states “The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The affidavit of XXXX does not comply with this rule. The Affiant does not state that she has personal knowledge of the statements made in the affidavit. XXXXX states "That /DEFENDANT defaulted in payment on the account and all rights to the account were assigned toJDB2. Exhibit A." Yet Plaintiff's Bills of Sale do not support that statement. In addition,XXXXXX is an employee of JDB2."

The second to last sentence "Yet Plaintiff's Bills of Sale do not support that statement." could be the last sentence in the paragraph. That points out that the bills of sale and the affiant's claim of ownership don't mesh.

Take the next sentence, and start a new paragraph. Delete the words "In addition" and just the sentence with "XXXX is an employee of JDB2". You're now explaining how the affiant could not have knowledge of her statements.

In both paragraphs, you're referring to the affiant and the affidavit. However, you're making 2 separate points about the affiant and the affidavit.

Edited by BV80
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Hold it, hold it! I take it back. Don't start the next paragraph as I stated in the previous post. Start it with " Furthermore, Affiant also states that "Exhibit B...". I think that would be better.

I didn't read far enough into your paragraph to see what you were getting at before. Sorry about that.

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Hold it, hold it! I take it back. Don't start the next paragraph as I stated in the previous post. Start it with " Furthermore, Affiant also states that "Exhibit B...". I think that would be better.

I didn't read far enough into your paragraph to see what you were getting at before. Sorry about that.

Got it. In word there are more paragraphs formatting gets screwed up with the copy n paste. But I am working on a nice read for the judge. And me too, probably gonna have to argu this in court.

15 days is up on the 15th... Pre trial set for aug 23rd guessing well argue then.

I have not seen anything in OK RCP that talks of motion in limine or to preclude?! So I am unsure if I need to do this for the bogus poooo that the other side is flinging.... Thoughts?

They've already offered to settle a couple times, the judge basically told them I had them on standing, I feel this MSJ is their last ditch effort, but I wanna be aggressive. Another lawsuit has been filed I just haven't been served yet, I want this one gone so I can focus on the next one

Lol...

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I don't know if a motion to preclude would be appropriate right now because the judge has given the JDB the opportunity to prove standing. I don't know for sure, but such a motion might fly in the face of that opportunity. We don't upset the judge. :shock:

Don't take my word for it, but it appears the judge is on your side regarding standing. Hammer it home!

Coltfan has a gazillion examples of proof of standing. Here's one that I gave to a poster once:

If you purchase a TV from Best Buy, they'll give you a receipt showing exactly what you purchased. Their receipt will be specific. If you decide to return that TV and get a refund, what's the first thing Best Buy is going to require? They'll require the receipt showing you purchased that specific TV.

It doesn't matter if you have other documents related to the TV such as the user directions and the warranty. Those documents don't prove you purchased the TV from Best Buy. The same goes for cc statements related to the account. Those documents don't prove the JDB purchased the specific account in question. JDB's purchase hundreds or thousands of accounts at a time. What if your cc statements were included by mistake? The bill of sale, just like the Best Buy receipt, should specify your account.

In addition, any documents created by the JDB are just that...documents created by the JDB. They don't prove the JDB bought the account in question.

You could bring your mother with you to tell them you bought the TV at Best Buy. Will they take your mother's word for it? Nope. The JDB's affidavit amounts to the same thing.

Your mother could state she was present when you bought the TV. That still won't impress Best Buy. The affiant that signed the JDB's affidavit can NOT testify that he/she was present when the Plaintiff purchased any accounts from the OC.

If you want your refund, you must present the receipt that shows you purchased that specific television. No receipt proving you bought the television...no refund.

If a store wants proof of purchase before issuing a refund, shouldn't a court require the same thing?

No valid assignment (proof of purchase)...no proof of ownership.

You also have their insufficient affidavit. Considering their documents don't support the affiant's statement that they own the account, focus on that fact AND the fact that she can't have personal knowledge of any sale of accounts.

If you'll notice, I included that she's not competent to testify as to her statements in the affidavit. The reason I included that is because I read an OK case where an appeals court ruled that because a defendant did not question an affiant's compentency to testify, they could not rule on the matter.

1. The affiant in your case is definitely not competent to testify to the statements in the affidavit.

2. You want to bring it up now to preserve it for an appeal, if necessary. Hopefully it won't be necessary.

Edited by BV80
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