trynrest

HELP Illinois Small Claims Filed in TIME CRUNCH

Recommended Posts

I am in some desperate need of advise. After caring for two family members who were seriously ill (mother and father-in-law) I came home and learned my wife is being sued in Illinois small claims court. Because of the family circumstances she did not want to ad this to the other problems I was facing. She had intented to just eat the loss due to the circumstances. Yes she has been duly punished. Now I have until 9/12/12 to at least be prepare her for the first hearing.

I have been researching as fast as I can and seem to just be spinning my wheels. Can someone tell me how I can get a little breathing room to help her with this. The plantiff is Calvary Portfolio Services, The OC was Citifinicial and it was an unsecured loan. A copy of the loan agreement is attached to the complaint. I can provide any information you may need to help. Thank you.

Link to post
Share on other sites
I am in some desperate need of advise. After caring for two family members who were seriously ill (mother and father-in-law) I came home and learned my wife is being sued in Illinois small claims court. Because of the family circumstances she did not want to ad this to the other problems I was facing. She had intented to just eat the loss due to the circumstances. Yes she has been duly punished. Now I have until 9/12/12 to at least be prepare her for the first hearing.

I have been researching as fast as I can and seem to just be spinning my wheels. Can someone tell me how I can get a little breathing room to help her with this. The plantiff is Calvary Portfolio Services, The OC was Citifinicial and it was an unsecured loan. A copy of the loan agreement is attached to the complaint. I can provide any information you may need to help. Thank you.

What county is the suit filed in and how much is the alleged debt ?

If you fill out the form as the previous poster had directed you to do, we can provide better information.

One thing is do not panic, if you are fearful it shows and your opponent will know it too. keep calm.

IL Small claims court requires only an appearance to be filed and that should tell the court you are ready to defend.

Who is the law firm handling this ? (I guess we'll know when you fill out the form).

You can fight this, Cavalry it is a JDB and IL has some good consumer laws also IL collection agency act governs activities of these collectors. So violations could have occurred while you /wife were not aware of your rights.

we'll get to that later.

Remember wife is being sued not you so she must answer and appear in court unless you were named as defendant too, or she is represented by a lawyer you can not do her work.

Link to post
Share on other sites

There is not gonna be discovery, the judges typically have preconcieved notions, and no lawyers it is all parties except if the plaintiff is out of state. I would find out if there is and arbitration agreement and elect that. also If it is an older thing then they may not have documentation. You have 5 days to prepare your wife(that is no good) If we are going to help we HAVE to help her directly, we don't have time to teach you then you spend the same amount of time to teach her.

You have additional things that are more important than this. Let us now help your family and you take care of the other things that you need to sort out.

So the first thing is what is going to happen at small claims court.

you will wait in the court with others and answer whether you are going to defend.

So what you should check is if the amount is indeed a small claims matter.

If there is an arbitration agreement you could elect that. also without discovery you will be flying blind. But they have to bring actual witnesses and that is where your strength is.

The one witness they will call will already be there you will not have to subpoena that witness. This is your wife. Don't worry there is a good response to that "I don't recall" goes a long way.

she needs to understand the issues of legal capacity to sue, document foundational requirements, witness knowledge, and straight up arguing.

so post what the complaint allegations are and lets get to it.

Link to post
Share on other sites

First thank you for your help. I understand my wife must be the one to face the music as does she. I can prepare her to for her day in court with your help. I am doing the research and paperwork as I am retired and she is not.

Answers

The plantiff is Calvary Portfolio Services LLC

The Shindler Law Firm

Schamburg, IL

The amount of the suit is $2,730.59 + court costs

The orginial creditior is Citifinicial Services Inc

she was served by a County Sheriff process server

The service was legal

Correspondence I will have to verify ASAP

Union County Illinois

Last payment was made 12/09

SOL for Illinois is

THe case status is filed with an initial appearance date of 9/12/12

We are currently using SKYBLUECREDIT to help us. They have disputed the claim from Calvary Portofolio Services with Experian wich verified and with Transunion which deleted the entry. Ther has been no contact with Citifinancial.

We did not request debt validation.

We need to respond by or appear on 9/12/12 I can file an appearance before and this is in process. An interrogatory was not attached. The charges are as follows

1. Defendent (s) specific request, Defendant (s) borrowed money on 12/10/2004, as specifically set forth in Exhibit "A".

2. Defendant (s) subsequently defaulted on the terms of said note resulting in the balance due to Citifinicial in the amount of $2,172.56, as more specifically set forth in Ehxbit "B".

3. Citifinancial sold and assigned its right title and interest to defendants account to Plaintiff pursuantCalvary SPVC I LLC pursuant to a written assignment in conforminity with the Illinois Collection Agency Act, 225ILCS 425/8b.

4.Calvary SPV I, LLC assigned its right to persue the collectionod defendants account PLaintiff pursuant to a written assignment in conforminity with the Illinois Collection Agency Act, 225ILCS 425/8b.

5. In conforminity with the Illinois Collection Agency Act 225 ILCS 425/8b, Plaintiff is in possession of the aforementioned assignments which specifically state and include the effective date of assignment, the consideration paid and the identifying information for the account transferred.

6. Plaintiff is entitled to recover addintional interest pursuant to the agreement between Defendant (s) and Citifinancial.

7. Due demand has been made of the Defendant (s) to pay the amount (s) owing and the Defendant(s) has failed to do so.

8. Defendant has been credited with payments made after the charge off.

9. In accordance with said contract, Plaintiff is entitled to reasonable attorney fee's in the amount of $350.00.

Wherefore, Plaintiff prays judgement against Defendant(s) for the sum of $2,730, plus court costs.

The evidence submitted with the suit was a copy of the orginal loan paperwork titled Disclousure Statement, Note and Security Agreement.

and an Affidavit OF Claim State of New York, County of Westchester RE: Calvary Portfolio Services LLc as assignee of Calvary SPV I, LLC as assignee of Citifinicial vs my wife.

I would like to thank everyone that is trying to help, again I apologize for the time frame.

Link to post
Share on other sites

while we are here read on these;

IL has affirmative statue saying an assignment is invalid until proof is furnished "reasonably identifying the rights assigned".

AS a CONSUMER DEMAND THE ASSIGNMENT. If can’t be provided it means JDB(cavalry ) has no standing to sue.

In a paragraph alleging an assignment referring to assignment from Citifinancial, but where is the Exhibit assigning the specific account at issue? An assignment that does not identify the individual account by Acct # is not "reasonable".

Chain of title requirement in IL

The Illinois Appellate Court recently held that a collection agency has standing to sue even if the account was assigned “for collection purposes only.” Thus it is acceptable to sue if the agency has legal title only and does not own the debt. Additionally, the Court held that a collection agency can use multiple documents/contracts to establish that it has standing under Section 8b of the Illinois Collection Agency Act.

However, the Court also ruled that an affidavit cannot be used to establish chain of title as is required under Section 8b. Therefore, the collection agency must produce every assignment contract for the account. To make this point the Court stated: “we reiterate, however, that Section 8b requires each contract of assignment in the chain of title for the account, beginning with the original creditor and ending with the plaintiff, to specifically state and include the effective date of assignment, the consideration paid, and the identifying information for the account transferred.” Thereafter, the Court held that under Section 8b “a collection agency can establish an assignment of accounts receivable for collection purposes through documents attached as exhibits to the Plaintiff’s complaint where the identification of the accounts transferred, the consideration paid, and the effective date of the transfer of particular accounts are in multiple incorporated documents. However, such documents must be in the form of contracts of assignments or documents that are incorporated by reference into those contracts, rather than in the form of an affidavit.”

The opinion seems to be limited to those situations in which one entity holds beneficial/equitable title (i.e., owns the debt) and assigns legal title to another agency so that the second agency can sue in its name. However, it should be expected that opposing counsel will attempt to expand this holding in future cases so as to make it apply to debt collectors even if they own all rights and title.

Link to post
Share on other sites

In the affidavit line #7 states that in connenction with the purchase of the account Citifincial transferred copies of its electronic business records to Calvary SPV I LLC which records are loaded into the computer records of Calvary Portofolio Services and are maintained in electronic format.

No copies of records have beeen provided.

Line #5 states the account was purchased by Calvary SPV I LLC on or about 1/26/11 and the servicing and collections were assigned to Calvary Portfolio Services.

Again no copy of any record attached.

Again thanks for the help. I have contacted the Court's SC Clerk and she said we could file an appearance. I wonder if at that time I could also file a motion for leave to file answer?

Link to post
Share on other sites

Go to linda 7's post (arbitration )

There she has an excellent draft for motion to compel arbitration.

Read and modify , make 3 copies of the motion, 3 copies of the citifinancial agreement , on the day you file appearance file a motion and have the clerk schedule it for the date of the trial. No later , motion must be ruled on before anything because of subject matter jurisdiction.(you're taking their default judgement away ).

I'll copy and past in a next post how to notify the other side of the motion hearing and filing a notice.

Link to post
Share on other sites

Here is the rest:

IN THE CIRCUIT COURT OF ( ) COUNTY, ILLINOIS

( ) DEPARTMENT, ( )DISTRICT

XYZ

)

Plaintiff, ) Case NO. -______________

)

v. )

)

YOU , )

)

Defendant. )

To: Attorney for plaintiff

Address

Phone

NOTICE OF MOTION

On _____________________at, __________________ or as soon thereafter, I shall appear

Before the Honorable Judge , or any judge sitting in his/her stead, in the courtroom usually occupied by him/her in room ___________ at the (YOUR) County Courthouse at (ADDRESS ) and move to present the attached defendant’s motion To Compel (Private Contractual )Arbitration hearing.

_________________________

Defendant (Name ) Pro se

CERTIFICATE OF SERVICE[/U]

I, (NAME), Pro Se, Certify that I served this notice by mailing a copy to the above named at the address shown above and depositing the same in the U.S. mail at P.O, (LOCATION) on the date shown below, with proper postage prepaid.

DATE:_________, 2012

________________________

Signature

Name (pro se)

Address

Phone

Link to post
Share on other sites

You may need an affidavit when exhibits are attached IL requires one, so here it is:

STATE OF ILLINOIS

COUNTY OF (NAME)

PERSONALLY came and appeared before me, the undersigned Notary, the within named (YOUR WIFE)who is a resident of (WHATEVER) County, State of Illinois and makes this her statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, facts and things set forth are true and correct to the best of her knowledge:

I certify that I am over the age of 18.

DATED this day of September , 2012.

________________________

Signature of Affiant

SWORN to subscribed before me, this day , 2012

____________________________

NOTARY PUBLIC

Link to post
Share on other sites

OK, so you live in Cook County. How far are you from Daley Center. You will have to pay the appearance fee $150 +/- prior to the return date, or request to appear IFP. In Cook County, the Clerk will then tell you when you have to appear in Court for trial. You will then file any and all motions prior to the trial date.

Me personally, I would start by filing a 615 motion attacking chain of title under section 2-606--just me though. It seems that the evidence they provided falls far short of the pleading requirements.

The complaint alleges that the plaintiff acquired the debt through one or more assignments, apparently in writing, but fails to attach the documents, as is required by 735 ILCS 5/2-606. In Razor Capital v Antaal (citations omitted by me), the Appellate Court held that 2-606 requires an assigness plaintiff to attach chain of title documents to its complaint...(more citations ommitted)...for the proposition than an assignment reflecting that the plaintiff has title to the claim is a document upon which the action is founded and must be attached. Also look at unifund ccr partners v. shah.

Link to post
Share on other sites

OP lives in UNION county (Southern district ), rules and fees may vary from county to county.

I would look at the county court's web site for fees.

I agree with Motion to dismiss 735ILCS 5/2-615 based on 2-606 and motion to compel arbitration. I would also cut the snake's head and file a motion to strike the affidavit as incompetent.

IL. allows combined motions but they must be divided by separate headers.

Link to post
Share on other sites

WOW! Thanks everyone for the help.

The Arbitration Agreement has JAMS, Americian Arbitration Association and National Arbirtration Forum listed.

Union County is very small, no web site. You either call or walk in to ask questions. Filing an appearance is $135, we will do this Monday. I am working on that.

Do we need to file answers to the 9 points in the complaint. The court house said yes if they are a question, these are statements.

So the plan is:

1. File appearance

2. File Affidavit

3. File answers if necessary.

4. File Motion to dismiss 735ILCS 5/2-615 based on 2-606

5. File Motion to strike the affidavit as incompetent.

Should we file each motion on a seperate page?

I am reading all the resources you provided. Again Thanks.

Link to post
Share on other sites

File appearance, File answer with general denial , File motion to compel private arbitration and Motion to DISMISS of the compliant 735 ILCS 615 (motions can be filed together, make sure they are separated in heading ). Ask the clerk to schedule a hearing for motion to compel arbitration.

Get stamped copies and always keep one in your files. (courts have a tendency to lose stuff).

You can file a motion to strike the affidavit as incompetent if you like. (optional)

Also read the below rule: in your case **court may accept the fact that written instrument was attached to the complaint and plaintiff fulfilled that obligation**

"Pursuant to Illinois Code of Civil Procedure (735 ILCS 5/2-606), if a claim or defense found upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes. "

Go to Linda 7's arbitration posts ,where you can see how motion to compel arbitration is drafted (make sure you indicate JAMS is the chosen forum).

I would also immediately initiate in JAMS if it was me (see arbitration thread).

File affidavit because you are reattaching a copy of the exhibit (A) (the agreement) which was generously provided to you courtesy of your opponent!

Link to post
Share on other sites

Are there sample of the motion anywhere? Again thanks I have reviewed Linda7 post and started that paperwork again thanks Is there a copy of a motion to strike the affidavit as incompetent anywhere? with everyone's help I think we may get thru this Thanks again.

Edited by trynrest
OOPS
Link to post
Share on other sites

Found this motion on the web and altered it to suit this case, can some one critique it for me? Is it to long for a SC Motion?

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

UNION COUNTY ILLINOIS

CALVARY PORTFOLIO SERVICES ) NO.

Plaintiff )

)

)

Vs. )

)

)

Jane Doe )

Defendant )

MOTION TO STRIKE AFFIDAVIT

Now comes defendant, Jane Doe, Pro Se, and hereby moves this Honorable Court pursuant to Illinois Code of Civil Procedure Rule 2-615 to strike the affidavit filed by plaintiff in the above captioned cause. In support of this motion, defendant states as follows:

Plaintiff filed this action claiming that $2,730.59 is due from defendant on a purported loan account, originally held with Citifinancial Services.. Plaintiff alleges ownership of this account with an AFFIDAVIT OF CLAIM.

Plaintiff’s Affidavit Is Incompetent

The affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons.

Plaintiff’s complaint relies exclusively on an affidavit executed by employee Giovanni Rodriquez, referred to as a “Legal administrator” of Debt Buyer Partners. The affidavit claims that as such, “he is authorized to testify to the matters set forth herin.” Plaintiff Exhibit B, ¶ 1. However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish his knowledge regarding the manner or methods of the plaintiff’s business dealings. It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based. The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant. Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” Outboard Marine Corp. v. Liberty Mutual Ins. Co., supra.

60313. The affiant must have personal knowledge of the facts supporting the amount of the claim, i.e., how the original creditor’s business records were created and maintained, the entire account history, and how the claimed balance was calculated as to principal and interest. Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007).

60314. Plaintiff’s affidavit suggests that the plaintiff possess electronically transferred copies of business records of its assignor, nor could plaintiff’s employee competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor.

Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa, supra; Cole Taylor Bank v. Corrigan, 230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd Dist. 1992); Champaign Nat’l Bank v. Babcock, 273 Ill. App.3d 292, 298, 652 N.E.2d 848 (4th Dist. 1995) (affidavit allowed where affiant was personally familiar with band’s loan files, ledgers and records, and affidavit itemized payments made, interest charges, and principal balances from the date of inception); See also, In re Vee Vinhnee, 2005 WL 3609376 (BAP 9th Cir. 2005) (normal evidentiary foundation must be established for admission of business computer records, including familiarity with the way records are maintained, recognizing that computer records are not necessarily or automatically accurate); C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 139 (So. Dist. 2004) (records submitted by assignee of credit card company were inadmissible as business records because custodian of assignee served only as conduit in the flow of records, and was unable to attest to the identity and mode of preparation of records originally created by credit card company); Citibank v. Martin, 807 N.Y.S.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable, even if the defendant defaults,” and must show principal balances and additional charges from the date of inception).Palisades Collection, LLC v. Gonzalez, surpa.

Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent. Instead the actual records must be introduced after a proper foundation is provided. Apa, supra; Pell v. Victor J. Andrew High School, 123 Ill. App.3d 423, 462 N.E.2d 858, 866 (1st Dist. 2984) (letter from corporation A to corporation B is hearsay, and is thereby inadmissible as a business record of corporation B, stating that “just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business”); Cole Taylor Bank v. Corrigan, supra; Champaign Nat’l Bank v. Babcock, supra; C & W Asset Acquisition, supra; LLC v. Somogyl, supra. It is the business records that constitute the evidence, not the testimony of the witness referring to them. See In re A.B., 308 Ill.App.3d 227, 719, 719 N.E.2d 348 (2nd Dist. 1999).

The court must disregard unsupported, conclusory statements in an affidavit. Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d 961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a court will disregard all conclusions in an affidavit).

WHEREFORE, Defendant prays that this Honorable Court strike plaintiff’s affidavit in its entirety.

Respectfully submitted,

As always thx for everyones help. :confused:

Edited by trynrest
opops
Link to post
Share on other sites

Sample motions to compel arbitration and to dismiss is in Linda 7's post .

Sample motion to strike plaintiff's affidavit below is mine.

I recommend reading the 735 ILCS 5/2, if fighting this in court then I'd motion to strike affidavit, by MTC arbitration you are taking away court's jurisdiction so no need to go any further. I'd concentrate on MTC/MTD.

Motion to strike Plaintiff’s Affidavit

1.The affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons.

2.Plaintiff’s complaint relies exclusively on an affidavit executed by (name of affiant), referred to as a “employee” of debt buyer":CAVALRY". The affidavit claims that as such, “she/he is authorized to make statements and representations herein.” Plaintiff Exhibit 1, ¶ 1. However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish her knowledge regarding the manner or methods of the plaintiff’s business dealings. It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based. The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant.

3.The affiant must have personal knowledge of the facts supporting the amount of the claim, i.e., how the original creditor’s business records were created and maintained, the entire account history, and how the claimed balance was calculated as to principal and interest. Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007).

4.plaintiff’s employee can not competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor, if they did in fact exist. Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa, supra; Cole Taylor Bank v. Corrigan, 230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd Dist. 1992); Citibank v. Martin, 807 N.Y.S.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable, even if the defendant defaults,” and must show principal balances and additional charges from the date of inception).

5.Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent. ; Cole Taylor Bank v. Corrigan, supra.

6.This court must disregard unsupported, conclusory statements in an affidavit as inadmissible, therefore, affidavit should be stricken in its entirety.

Link to post
Share on other sites
Found this motion on the web and altered it to suit this case, can some one critique it for me? Is it to long for a SC Motion?

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

UNION COUNTY ILLINOIS

CALVARY PORTFOLIO SERVICES ) NO.

Plaintiff )

)

)

Vs. )

)

)

Jane Doe )

Defendant )

MOTION TO STRIKE AFFIDAVIT

Now comes defendant, A Lovely person, Pro Se, and hereby moves this Honorable Court pursuant to Illinois Code of Civil Procedure Rule 2-615 to strike the affidavit filed by plaintiff in the above captioned cause. In support of this motion, defendant states as follows:

Plaintiff filed this action claiming that $2,730.59 is due from defendant on a purported loan account, originally held with Citifinancial Services.. Plaintiff alleges ownership of this account with an AFFIDAVIT OF CLAIM.

Plaintiff’s Affidavit Is Incompetent

The affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons.

Plaintiff’s complaint relies exclusively on an affidavit executed by employee Giovanni Rodriquez, referred to as a “Legal administrator” of Debt Buyer Partners. The affidavit claims that as such, “he is authorized to testify to the matters set forth herin.” Plaintiff Exhibit B, ¶ 1. However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish his knowledge regarding the manner or methods of the plaintiff’s business dealings. It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based. The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant. Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” Outboard Marine Corp. v. Liberty Mutual Ins. Co., supra.

60313. The affiant must have personal knowledge of the facts supporting the amount of the claim, i.e., how the original creditor’s business records were created and maintained, the entire account history, and how the claimed balance was calculated as to principal and interest. Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007).

60314. Plaintiff’s affidavit suggests that the plaintiff possess electronically transferred copies of business records of its assignor, nor could plaintiff’s employee competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor.

Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa, supra; Cole Taylor Bank v. Corrigan, 230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd Dist. 1992); Champaign Nat’l Bank v. Babcock, 273 Ill. App.3d 292, 298, 652 N.E.2d 848 (4th Dist. 1995) (affidavit allowed where affiant was personally familiar with band’s loan files, ledgers and records, and affidavit itemized payments made, interest charges, and principal balances from the date of inception); See also, In re Vee Vinhnee, 2005 WL 3609376 (BAP 9th Cir. 2005) (normal evidentiary foundation must be established for admission of business computer records, including familiarity with the way records are maintained, recognizing that computer records are not necessarily or automatically accurate); C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 139 (So. Dist. 2004) (records submitted by assignee of credit card company were inadmissible as business records because custodian of assignee served only as conduit in the flow of records, and was unable to attest to the identity and mode of preparation of records originally created by credit card company); Citibank v. Martin, 807 N.Y.S.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable, even if the defendant defaults,” and must show principal balances and additional charges from the date of inception).Palisades Collection, LLC v. Gonzalez, surpa.

Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent. Instead the actual records must be introduced after a proper foundation is provided. Apa, supra; Pell v. Victor J. Andrew High School, 123 Ill. App.3d 423, 462 N.E.2d 858, 866 (1st Dist. 2984) (letter from corporation A to corporation B is hearsay, and is thereby inadmissible as a business record of corporation B, stating that “just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business”); Cole Taylor Bank v. Corrigan, supra; Champaign Nat’l Bank v. Babcock, supra; C & W Asset Acquisition, supra; LLC v. Somogyl, supra. It is the business records that constitute the evidence, not the testimony of the witness referring to them. See In re A.B., 308 Ill.App.3d 227, 719, 719 N.E.2d 348 (2nd Dist. 1999).

The court must disregard unsupported, conclusory statements in an affidavit. Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d 961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a court will disregard all conclusions in an affidavit).

WHEREFORE, Defendant prays that this Honorable Court strike plaintiff’s affidavit in its entirety.

Respectfully submitted,

As always thx for everyones help. :confused:

This is a lawyer playing a goof on us :). This is really good from a foundational knowledge standpoint, it ties the courts hands and gives the court leeway to get this case out of his court.

Here is another thing that might work, how many cases have they filed in small claims? Many jurisdictions have a set number cases any one business

can file in small claims. If you give the reasons that the court can just go to trial on that day then oila.

Edited by Seadragon
Link to post
Share on other sites
Guest
This topic is now closed to further replies.