Being sued by Midland funding - how to properly object to evidence

[Crystal]

Here is some background on my case:

1) Midland Funding is the named Plaintiff in the suit.

2) Suttell & Hammer is the name of the law firm handling the suit.

3) I am being sued for "$4457.23, together with pre-judgement interest, plaintiff's costs, together with interest thereon at the rate of 12.0000% per annum from judgement until fully paid."

4)Chase is the original creditor.

5) I received a court summons then filed a timely answer, denying everything. Just received a Motion for Summary Judgement from the Plaintiff with a court date set for 12/21/2012.

6) I was served in person at my house.

7) I believe the service was legal as required by the state of Washington which is where I live.

8)Midland Funding had sent a bunch of collection letters and there were numerous phone calls to me, all of which I ignored.

9)I live in Thurston County, Washington

10) Not sure when the last payment was made on the account but according to the information they provided it was 03/2011, which I believe is well within SOL, which is 6 years in WA.

11)The status of my case so far is this: The suit has been served and a Motion for Summary Judgement filed against me. Trial date set. So far, I have only mailed my answer to the plaintiff, with a notice of appearance.

12) I have not disputed the debt with the credit bureaus.

13) No debt validation was requested before the suit was filed.

14) The filing deadline with the courts is 5 days before the trial, so I have until, I believe, Dec. 16, 2012, to file everything. But I also thought I read that an Opposition to Summary Judgement must be filed 14 days prior to trial - not sure if this is correct.

15) There were only two FACTS listed on the MSJ, and I quote:

1 - The defendant has become indebted to plaintiff on account of goods and services rendered at defendants request and use of credit card within six years last past, on which there is now due and owing the principle sum of $4361.67, no part of which has been paid, though payment has often been demanded. Interest accrues on said account at the contract rate."

2 - The Complaint is for a sum certain which is justly due and owing.

Supporting Evidence

1. Exhibit A: Affidavit of Balance as provided by Plaintiff

2. Exhibit B: Bill of Sale as provided by Plaintiff

3. Exhibit C: Copies of Periodic Sttements as provided by Plaintiff.

4. Attached Declaration of Plaintiff's attorney.

5. Records and files herein

Here are the details regarding the evidence which they have submitted:

1. Exhibit A - is what they have titled "Affidavit of Tanya Johnson". It states that Tanya Johnson is employed as a 'Legal Spe******t' with Midland Credit Management, INC., and has access to pertinent account records for Midland. I'm assuming this is supposed to authenticate the credit card statements provided in Exhibit C.

2. Exhibit B - is what they are calling a "Bill of Sale". It is on a Chase letterhead and shows signatures from both Chase and Midland Funding supposedly proving a sale. There is no account number or even my name on this Bill of Sale that would link it directly to me.

3. Exhibit C - they have provided around 12 credit card statements from Chase. There was no original contract provided.

So far I have been reading this site and others for hours trying to determine my next course of action. I have written out my Interrogatories, Request for Production of Documents and Request for Admissions but have not sent them yet to Plaintiff, as I want to make sure I'm going about this this right way.

From what I've read I understand that it's important that I dispute their evidence, which I intend to do based on hearsay and whatever else is applicable, but I don't know the proper way to do this and exactly what I need to file at this point. I'm a little confused as to the difference between a Motion to Strike Evidence vs. an Opposing Affidavit vs. an Opposition to Motion for Summary Judgement. Do I need to file all of these and am I missing anything else that should be filed.

Thank you so much for your help! This forum is a wealth of information.

Edited November 22, 2012 by Crystal

[Flyerfan]

You can post your discovery here for review. These guys are awesome and helpful. Make sure you redact anything personal.

You need to get that sent off and then file a motion of opposition to the MSJ. There you will dispute the facts in their motion. An affidavit is to be made to counter their affidavits. If their is no affidavit from Chase at all, you're in good shape.

Take it one step at a time. Start with posting your admits, POD and Rogs first for review.

When were you served with the MSJ? That is a deadline that MUST be met.

[BrunoTheJDBkiller]

Motion to Strike Evidence

A motion to strike challenges the legal sufficiency of a pleading or any document the other side attached to it. In your case, if you wanted to MTS the affidavit, you would have to argue that it is hearsay and does not conform to the rules of evidence for your state. I don't know if it does, that's just the procedure. This affidavit is typical, it is Midland swearing that their own records are accurate. Only thing is, their records came from Chase, and Midland cannot swear to someone else's records, Chase would have to do it, and they won't. There is a document we call a forward flow document.....this is similar to the bill of sale. It always states that there are no guarantees of any kind from the OC as concerns the accounts being sold. This is powerful evidence to cast doubt on the amount they are looking for. Most of us feel that the best time to attack an affidavit is at trial, when it's too late for them to do anything about it.

Opposing Affidavit

This is your affidavit, in which you contradict everything in their affidavit. You submit this with your opposition to MSJ.

Opposition to Motion for Summary Judgment.

You have to make one of these, or their MSJ will be granted absent objection. If MSJ is granted, you have lost the case. You have to show the court that there are triable issues of fact which are unresolved. For instance, their motion is premature, as discovery has not even been conducted yet. Here is a sample, this is from federal court but the format should be acceptable in state court. The best poster for you to follow here is KentWA, he knows your area well.

Plaintiff's Opposition to Defendants' Motion for Summary Judgment on Municipal Liability | Scheier v. City of Snohomish, et al. | Venkat Balasubramani - JDSupra

For your own discovery, just document requests for now. Use these if you like, they work well.

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

[Crystal]

Thanks for such a quick response. Here is what I have for Discovery:

Interrogatories

Interrogatory No. 1

Is Midland Funding, LLC the direct assignee of Chase Bank, USA? Or, is Midland Funding, LLC an assignee of an assignee? If there are additional assignees, identify each assignee, their business address, and telephone number.

Interrogatory No. 2

Identify when the alleged account was originally opened by the Defendant and was subsequently charged off by Chase Bank, USA.

Interrogatory No. 3

Identify the person or persons answering these interrogatories. Include their business address, business phone number, and title within the Plaintiff’s Organization.

Interrogatory No. 4

Please provide the following information for each person known to the Plaintiff who has knowledge of facts relevant to this case, including but not limited to all persons interviewed by you, by your counsel, or by any person cooperating with you in the this action, giving a brief description thereof, for each person you may call as a witness in this case.

1. Name, address, and telephone number.

2. Place of Employment

3. Relation to the Plaintiff

4. The subjects and substance of the testimony the witness will give; and whether the witness is to be tendered as an expert witness.

Interrogatory No. 5

Please provide the following information:

1. Your Full Name

2. Your Full Business Name

3. Your Business Purpose (e.g. Creditor, Lender, Collection Agency, etc.)

4. Form of Business Organization (e.g. corporation, partnership, LLC, sole proprietorship, etc.)

Interrogatory No. 6

In regards to the contract or agreement alleged in this action, please state the following:

1. Terms of the Contract or Agreement:

2. Credit Limit Amount Financed in the Alleged Contract or Agreement:

3. Date and Monetary value of any valuable consideration received on the contract or agreement:

4. Date and Monetary value of any payments or credits alleged to be executed on the contract or agreement:

Interrogatory No. 7

Please provide the following information for each person who has had any involvement in any manner in any efforts on your behalf to collect or attempt to collect any debt(s) purportedly owing by Defendant.

1. His/Her Position

2. His/Her work address, telephone numbers

3. Nature and purpose of his/her involvement.

Interrogatory No. 8

Identify the persons or entities, regarding any debt(s), which you have attempted to collect from Defendant, identify all documents related or relevant to your contractual agreement(s) (Servicing, Assignment(s), etc.), or other business relationships with said persons or entities.

Interrogatory No. 9

Plaintiff or Attorney. Please Identify each person who has had any contact or communication on your behalf regarding Defendant’s purported debt(s), state when, how, where, and with whom said contact or communication occurred and in detail and with particularity the substance thereof.

Interrogatory No. 10

Attorney. Describe all collection activities, which you were authorized to perform for Midland Funding, LLC, and identify the terms of the agreement between Midland Funding, LLC and you pursuant to which you sought to collect this account.

Interrogatory No. 11

Describe Midland Funding, LLC’s procedure and policy with respect to the maintenance, preservation, and destruction of documents, stating in your answer whether any documents or things relating to any information requested in these interrogatories, or related in any way to this lawsuit, have ever been destroyed or are no longer in your custody. For each such document, please identify the document, how, when and why each document was destroyed or otherwise left your control, the identity of any person who participated in any way in the destruction and/or action for destroying the document or to transfer it out of your control or custody; and if the document still exists, identify the person now having control or custody of the document.

Interrogatory No. 12

What document states in writing in support of your Complaint that the Defendant is indebted to pay the Plaintiff and when was this agreed statement in writing entered into?

Interrogatory No. 13

On what date did the defendant become indebted to the Plaintiff for $4,457.23?

Interrogatory No. 14

Identify all witnesses with evidence in support of your Complaint that the Defendant, entered into a contract and is indebted to the Plaintiff.

Interrogatory No. 15

State all actions taken to verify the accuracy and completeness of the accounts reported and state your procedures designed to assure the maximum possible accuracy of the information reported by you.

Interrogatory No. 16

What is the date that the defendant allegedly defaulted on the original account?

Interrogatory No. 17

What was the status of the alleged contract/account when acquired?

Interrogatory No. 18

What credit card purchases and/or cash advances were made on this account? When where they made?

Interrogatory No. 19

Please identify and describe each exhibit you will use in the trial of Cause No. 12-2-02262-1.

Interrogatory No. 20

State fully, completely and at length the factual basis of each defense which you now assert or intend to assert in this action.

Interrogatory No. 21

As to each defense set out in response to Interrogatory Twenty (20), above, state the following as to notification to Defendant of such defenses; (a) the date or dates when notification was given; ( the manner in which notification was given; and © the specific party or parties to whom notification was given.

Interrogatory No. 22

How much was this account purchased for from Chase Bank, USA?

Interrogatory No. 23

Do you have the Actual Contract between the Defendant and Chase Bank, USA? And do you have the Assignment Agreement between Chase Bank, USA and Midland Funding, LLC?

Request for Production of Documents (I think I am limited to 5 Requests in the state of Washington)

Request for Production No. 1

Please produce any and all documents in your possession or control that are in any way relevant to the claims, defenses, allegations, or subject matter of this lawsuit. This includes any and all dated written agreements between you and the Defendant that have been signed by the Defendant and any and all written agreements between Plaintiff and Defendant that have been signed by the Defendant.

Request for Production No. 2

Please produce a description of all policies and procedures employed by the Plaintiff to assure that the Washington State statute of limitations had not expired for bringing an action on the credit card debt. In support of this request please produce the date of last activity or default date on the credit card as reported to the (3) three major credit bureau’s and provide documentation of the check # or draft # of the alleged last payment or charge on the debt.

Request for Production No. 3

Please provide any information or documents which show if the Defendant’s account was re-aged within the meaning of Section 623(a) (5) of the FCRA and produce any and all written communication, received by the Plaintiff from Defendant or any of the major credit reporting bureaus/agencies regarding the reporting of re-aging of the alleged account to the credit reporting bureau’s/agencies.

Request for Production No. 4

Please produce itemized statements or credit card statements from Plaintiff that demonstrates how the alleged amount of $4,361.67 was calculated. Please include copies of the last 12 billing statements from Chase reflecting any payment activity on the account. Please produce the dates of the last five transactions made on the Chase account, do not include any transactions that were interest charges, late fees, or over-limit fees.

Request for Production No. 5

Please produce any and all contracts, agreements, assignment, or other means of demonstrating that the Plaintiff has the authority and capacity, and was legally entitled to collect on the alleged debt. Please produce proof that the Plaintiff is licensed to collect debt in the State of Washington and procured a bond as required by the State of Washington. Please produce proof that the Plaintiff is licensed and authorized to solicit the right to collect or to receive payment for the claim of another in the State of Washington.

Requests for Admissions

Fact No. 1

Please admit that there is no written agreement, signed by Defendant, between you and the Defendant.

Fact No. 2

Please admit that the Defendant has not consented to any assignment of the account.

Fact No. 3

Please admit that as of the date you drafted your Complaint, you had no evidence admissible at trial that proves Defendant owes the debt.

Fact No. 4

Please admit that you are barred under the Fair Debt Collection Practices Act § 1692 f(1) from collecting interest on any account not authorized by the agreement creating the debt or permitted by law.

Fact No. 5

Please admit that you were not assigned the original creditor’s obligations under the alleged credit agreement.

Fact No. 6

Please admit that you are not the real party in interest.

Fact No. 7

Please admit that you do not have a copy of the original Chase Bank, USA agreement.

Fact No. 8

Please admit that if you did purchase the alleged account it was in default.

Edited November 22, 2012 by Crystal

[Coltfan1972]

They are going to object to a ton of those. You've got four and five requests in some of those requests. Generally speaking, you can't ask compound questions. If you don't have a limit then just ask each request as a stand alone request.

[Crystal]

Thank you for the info Bruno.

In the Bill of Sale there is a sentence that reads "No other representation of or warranty of title or enforceability is expressed or implied." Does this hold the same weight as the clause you mention in a forward flow agreement?

Is this something I would mention then in the Opposition to MSJ?

I also thought that the best time to attack the affidavit would be at trial but I wasn't sure if I could just verbally object to it at trial without having something official filed with the court.

[Guest usctrojanalum]

forget discovery for now it's irrelevant, your main concern is defeating the motion for SJ. You respond to their motion with opposition papers explaining why their evidence is faulty and why there are triable issues of fact that need to be determined.

[BrunoTheJDBkiller]

Does this hold the same weight as the clause you mention in a forward flow agreement?

Yes, absolutely. See if your court rules allow a deposition by written question. If it does, you can go after the affiant without paying for a subpoena and all the associated costs. Like Coltfan said, lose the rogs and admissions, totally worthless at this point. All you need is production of documents for now.

[Crystal]

Ok so I will send off just a Req. for Production of Documents for now and in the meantime focus on writing my Opposition to MSJ and writing an Affidavit opposing their Affidavit...is this correct?

Also, Bruno, could you please clarify what you mean when you say "the best time to attack an affidavit is at trial"? Meaning wait to file the opposing affidavit or a motion to strike affidavit, and just bring up the issues at trial instead? Don't I need to mention the reasons I oppose the affidavit in my Opposition to MSJ?

[BrunoTheJDBkiller]

You can mention it, but don't get too far into it. Just say that you want the opportunity to depose / question the affiant. They will never bring the affiant to court. They won't pay for it, they'll dismiss the case before they'll spend this money. Midland operates on 95% default judgements, when somebody fights they dismiss. It isn't in their business model to spend 20-30,000 in legal fees to prosecute a case for a credit card debt they paid $100 for. Would you?

[Crystal]

Got it...thanks!

And just to be clear I need to file both an Opposition to MSJ and an Opposing Affidavit correct?

[BrunoTheJDBkiller]

Yes, the affidavit is part of your opposition. It has to be notarized.

[Huey Pilot]

Thank you for the info Bruno.

In the Bill of Sale there is a sentence that reads "No other representation of or warranty of title or enforceability is expressed or implied." Does this hold the same weight as the clause you mention in a forward flow agreement?

Is this something I would mention then in the Opposition to MSJ?

I also thought that the best time to attack the affidavit would be at trial but I wasn't sure if I could just verbally object to it at trial without having something official filed with the court.

LCR 34 Requests for Production of Documents and Things.

( Limited Request for Production. A party will be entitled to

request the production of five separate sets or groups of

documents or things, including those authorized by CRLJ 26(,

without prior permission of the court.

{Adopted effective September 1, 1999.}

CRLJ 26(:

http://www.courts.wa.gov/court_rules/?fa=court_rules.rulesPDF&ruleId=cljcrlj26&pdf=1

R34 Rules for Production:

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes | Federal Rules of Civil Procedure | LII / Legal Information Institute

You are allowed 5 groups of documents. Appears to be categories of document types within defined Washington production categories. You can obtain prior permission from the Court to request more.

Admissions:

It appears you are limited to requesting 15.

HP

[texasrocker]

Can you post the complete exact wording of the bill of sale?

[Crystal]

Here is the exact wording of the Bill of Sale:

BILL OF SALE

Closing Date: XX/XX/XXXX

Chase Bank USA, n.a. ("Seller"), for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement date XX/XX/XXXX between Chase Bank USA, N.A. and Midland Funding, LLC ("Purchaser), its successors and assigns ("Credit Card Account Purchase Agreement"), hereby assigns effective as of the File Creation Date of XX/XX/XXXX all rights, title and interest of Seller in and to those certain receivables, judgements or evidences off debt described in the Final Data File, entitled (Account's Primary File Name) attached hereto and made part hereof for all purposes.

REDACTED INFO

Amounts due to Seller by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on (the "Closing Date") XX/XX/XXXX by 2:00 p.m. Seller's time, as follows:

REDACTED INFO

The Bill of Sale is executed without recourse except as stated in the Credit card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of title or enforceability is expressed or implied.

With respect to account information for the Accounts listed in the Final Data File, Seller represents and warrants to Purchaser that (i) the Account information is complete and accurate; (ii) the Account information constitutes Seller's own business records and accurately reflects in all material respects the information in Seller's database; (iii) the Account information was kept in the regular course of business; 9iv) the Account information was made at or near the time by, or from information transmitted by, a person with knowledge of the data entered into and maintained in the Seller's database; and (v) it is the regular practice of Seller's business to maintain and compile such data.

Chase Bank Signature Midland Funding Signature

I'm sure there are many blatant things wrong with it. If you see any other than it not having an account number or my name on it then please let me know.

[Crystal]

Also, is a Trial Brief the same thing as an Opposition to Motion for Summary Judgement or are these two separate documents that need to be filed? Thx!

[texasrocker]

The Bill of Sale is executed without recourse except as stated in the Credit card Account Purchase Agreement to which this is an Exhibit.

Right there is the key to beating these idiots. You can slam them in discovery if it gets that far by asking them to produce

that Credit Card Account Purchase Agreement.

Save your discovery for later. Defeating their MSJ is paramount now.

[Crystal]

Ok I'm sure I'm making this more complicated than it needs to be...

I'm clear on the Issues of Fact that I'm going to dispute in my Opposition to MSJ but what I'm still confused on is what then goes in the Opposing Affidavit that I submit with the Opposition to MSJ? Does it basically reiterate the same things (minus the supporting case law), or is it more of a summary of the above, with my attesting to it's truth, etc.

I've tried looking for examples of both on the site but sometimes it seems the two are used interchangeably which is what is really confusing me.

Thanks for the help!

[saytar]

Ok I'm sure I'm making this more complicated than it needs to be...

I'm clear on the Issues of Fact that I'm going to dispute in my Opposition to MSJ but what I'm still confused on is what then goes in the Opposing Affidavit that I submit with the Opposition to MSJ? Does it basically reiterate the same things (minus the supporting case law), or is it more of a summary of the above, with my attesting to it's truth, etc.

I've tried looking for examples of both on the site but sometimes it seems the two are used interchangeably which is what is really confusing me.

Thanks for the help!

Just write your opposition points to the MSJ so as to create trialable issues, thus making a SJ improper and requiring a trial, which precludes a SJ. This is your first step. Then IF you get to a "real"trial (which I doubt) you attack the affidavit in open court where the opposition has no chance of providing a witness to back it up.

I doubt very seriously that you will need to do much. Although they have been batting this around for yrs, I think you have a good argument also on a failure to prosecute in a timely matter. They can call and argue all they want, but unless you have made a payment in the last 2 yrs (resetting the SOL) the matter is now out of the SOL., thus not collectable.

Your affidavit is your statement at the end of your reply (or you opposition documument ) stating you swear that to the best of your knowlege that the statements in this document are true and correct, take it to court clerk, sign it in front of them (or a notary)and file it, make sure you have at least 3 copies of anything you file. Get all 3 stamped by Court Clerk and keep your Records.

Take everything one step at a time, you are over thinking this and stressing. Just do those first steps everyone is giving you, file it then come back and everyone will go through step 2 of "Beat those dang Credit Leeches in 4 or 5 Easy Lesson's" Course.

When you go to your local court house to file or if it is online lookup some Midland case's (preferably one's that were opposed) and get copies of all the documents in the cases for examples of the form of replies. This can help you understand what your reading in the Civil Statutes. The form of everyone's motions and such are all formatted the same way, they only differ in the content in them.

[Flyerfan]

No other representation of or warranty of title or enforceability is expressed or implied.

This line is attack-able as well. No warranty means they don't guarantee it either. How can Midland say it's accurate??

[Crystal]

Thanks so much Saytar that really helps!

[Crystal]

In the package I received from the attorney, there was only one affidavit included, called "The Affidavit of Tanya Johnson", which is referred to as an "Affidavit of Balance" in their evidence list.

The MSJ itself does not have an affidavit at the end but a "Declaration of Plaintiff's Attorney", which I'm assuming serves the same purpose as an Affidavit to support Summary Judgement (please correct me if I'm wrong).

My question then is the purpose of the "Affidavit of Tanya Johnson" to authenticate the credit card statements and generic Bill of Sale that were also annexed as evidence, even though they're not referenced specifically in her affidavit?

[bmc100]

Read this...it is from an attorney discussing Midland and evidence

“Judge, It Happens All the Time…†| John Skiba - JDSupra

[Crystal]

Great info...thanks!

[Crystal]

I would really appreciate any feedback on this Opposition to MSJ. Thanks so much!

I. INTRODUCTION

Granting Plaintiff’s Motion for Summary Judgment prior to completion of any Discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action.

When considering a summary judgment motion, the court must construe all facts and reasonable inferences in the light most favorable to the non-moving party. Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000). "The moving party bears the burden of showing the absence of a material issue of fact." Swinehart v. City of Spokane, 145 Wash.App. 836, 844, 187 P.3d 345 (2008) (citing Redding v. Virginia Mason Med. Ctr., 75 Wash.App. 424, 426, 878 P.2d 483 (1994)).

II. MATERIAL ISSUES OF FACT

1.Plaintiff Alleges That the Defendant Owes $4457.23 to Midland Funding, LLC as an “Assignee” of Chase Bank, USA. The Plaintiff Does Not Establish It’s Standing in This Matter.

The party moving for summary judgment has the burden of establishing its standing by proving its right to sue under the contract as a matter of law. Warth, 422 U.S. at 498-99; Norm Adver., Inc., 25 Wn.2d at 398; Chisholm, 834 A.2d at 225.

Washington law, RCW 19.16.270 provides that where "the fact of assignment is put in issue ... proof of the assignment is essential to a recovery by the assignee" and "[t]he burden of proof of the assignment is on the one claiming to be the assignee." Smith v. Rowe, 3 Wash.2d 320, 323, 100 P.2d 401 (1940).

Plaintiff has submitted a sworn declaration in lieu of affidavit, to the Court, alleging certain facts. However, said declaration fails to meet even the basic mandates for admissibility as evidence. Rule 56 of the Washington Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Plaintiff has submitted into evidence a “Bill Of Sale” that references a “Final Data File”, consisting of accounts that were allegedly sold to the Plaintiff by Chase Bank, USA. The Bill of Sale does not specify neither the Defendant, nor the Defendant’s alleged original account number with alleged original creditor, nor reference in any way any other document which could be associated with the Defendant. This is in fact a generic document without specificity that could apply to any Defendant. A Bill of Sale with no name, account number, or any other information identifying Defendant’s alleged account as having been sold or assigned to Midland Funding, LLC is insufficient to establish that Chase Bank, USA assigned the rights and obligations on Defendant’s alleged account to Midland Funding, LLC. Zion, 152 Wash.App. at 630-31, 218 P.3d 621.

The Plaintiff's reliance upon the documents it submits is insufficient to make out a prima facie case entitling the Plaintiff to summary judgment. Simply annexing documents to the moving papers, without a proper evidentiary foundation, makes the documents conclusory. The “Bill of Sale” is therefore conclusory, and should be stricken from evidence in the above action. A mere conclusory statement not supported by facts admissible in evidence cannot be considered on a motion for summary judgment. CR 56(e); Henry v. St. Regis Paper Co., 55 Wn.2d 148, 151, 346 P.2d 692 (1959); Gunnar v. Brice, 17 Wn. App. 819, 565 P.2d 1212 (1977).

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

Plaintiff relies exclusively on an affidavit executed by Ms. Tanya Johnson who identifies herself as a “Legal Spe******t” employed by Midland Credit Management, Inc (“MCM”) and as “servicer of this account on behalf of Plaintiff”, and as such, she claims to be qualified to make statements on behalf of the plaintiff. Ms. Tanya Johnson claims familiarity with the recordkeeping practices of MCM, and has “reviewed the records pertaining to the account” that are allegedly kept in the regular course of MCM’s business. She then annexes information and discusses or references other documents.

However, Ms. Tanya Johnson does not advance any documents admissible as evidence. Moreover, Ms. Tanya Johnson does not discuss any documents produced by the Plaintiff, but rather she annexes and discusses documents apparently originated by the alleged assignor, Chase Bank, USA.

Ms. Tanya Johnson’s affidavit, as a Midland Credit Management employee, is not adequate to establish any facts related to annexed documents. Rather, when the 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. 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, Chase Bank, USA. 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 Chase Bank, USA; As such, the affidavit of Tanya Johnson falls under the hearsay Rule ER 802 and is inadmissible as evidence.

Defendant further states that the affidavit is not subject to the hearsay business records exemption Rule ER 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 Chase Bank, USA and therefore cannot have personal knowledge of how Chase Bank’s records were prepared and maintained and; is unqualified to testify as to the truth of the information contained in Plaintiff’s affidavit.

Courts have frequently held that an employee of the assignee of a debt does not have the personal knowledge necessary to testify about events or documents pertaining to the original creditor. See: Martinez v Midland Credit Management, 250 SW2d 481 (Tex Ct of Ap. 2008), Ex 2; Asset Acceptance v Lodge, 325 SW3d 525, (MO App 2010), Ex 3; CACH v Askew, 2011 Mo App LEXIS 429 (Mo App 2011) Ex. 4.

Defendant further claims that the underlying documents for the alleged account, annexed in Plaintiff’s Motion for Summary Judgment, were not records kept in the course of regular business by Midland Funding LLC, but were records kept by Chase Bank, USA, who is not a party to this suit. Wilson v. Jenga Corp., 490 N.E. 2d 375, 377 (Ind. Ct. App. 1986) (a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge to ensure reliability). There is no record of who compiled the underlying data specifically, and therefore no way to challenge and cross-examine the accuracy of this data in the course of a trial.

While Ms. Tanya Johnson may very well be Midland Credit Management’s Legal Spe******t, the mere acceptance or incorporation of electronically transferred data from Chase Bank, USA into Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of Rule ER 803(6). The source of information or the method or circumstances of preparation indicate a lack of trustworthiness and reliability.

III. CONCLUSION

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. Further, the Defendant requests that the Court review the Plaintiff’s actions in this case in conjunction with Rule 56(g) of the Washington Rules of Civil Procedure and grant the Defendant equitable compensation.

By the Defendant acting pro se.

Dated: 11/28/2012