Does anyone have a Response to MSJ Template. AZ- URGENT- Happy Thanksgiving!

[cwrose79]

Im in urgent need of a MSJ template. Midland pulled a fast one and sent me my copy of days after they filed it. My deadline is approaching and i have no idea how i should write it. Just need to get pointed in the right direction. Thanks and Happy Holidays!

[Flyerfan]

Here is one that Huey Pilot posted earlier:

Here is an example of a MSJ answer Countering Affidavit from Indiana. You could also use the language that applies in your objection to plaintiff's affidavit.

Cut and paste the parts that pertain to your MSJ in the appropriate order and use the same general boiler plate and apply your Texas Rules for Proceedure. I doubt you will have to change much JDB lawyers are not very original.

MATERIAL ISSUES OF FACT - AFFIDAVIT OF SALE

I. Plaintiff Does Not Establish It’s Standing In This Matter.

The standing doctrine of modern jurisprudence embraces several judicially self-imposed limits on the exercise of jurisdiction, such as the general prohibition on a litigants raising of another persons legal rights. A lack of standing renders the litigation a nullity, subject to dismissal. An assignee has the burden to prove the assignment; an assignee must tender proof of assignment of a particular account or, if there was an oral assignment, evidence of consideration paid and delivery of the assignment. Plaintiffs pleadings do not meet any of these admonitions.

submitting a “sworn” affidavit to the Court alleging certain facts. However, said affidavit fails to meet even the basic mandates for admissibility as evidence. Rule 56 of the Indiana Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit”.

plaintiffs affidavit fails to meet the requirements of the very Rule that plaintiff invokes to seek judgment, plaintiff has failed to bring forth any evidence warranting the court to rule in its favor.

Plaintiff has submitted into evidence an “Affidavit Of Sale Of Account By Original Creditor” in which the Affiant, XXXX, makes reference to “a pool of charged-off accounts.” The affidavit does not specify 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. These are in fact generic documents without specificity that could apply to any defendant.

The Plaintiff's reliance upon the documents it submits is insufficient to make out a prima facie case entitling the Plaintiff to summary judgment. Simply annexing documents to the moving papers, without a proper evidentiary foundation, the “Affidavit Of Sale” is therefore conclusory, and should be stricken from evidence in the above action. Where a statement contained in an affidavit is merely conclusory, the trial court should disregard it Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990).

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

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

In the original complaint, Plaintiff relies exclusively on an affidavit executed by XXXX who identifies herself as an employee of Midland Credit Management, Inc (“MCM”) as “servicing agent” for the Plaintiff, and as such, she claims to be qualified to make statements on behalf of the plaintiff. Ms. XXXX claims familiarity with the recordkeeping practices of MCM, and has “reviewed records kept in the normal course of MCM’s business.” She then annexes information and discusses or references other documents.

However, Ms. XXX does not advance any documents admissible as evidence. Moreover, Ms. XXX does not discuss any documents produced by the plaintiff, but rather she annexes and discusses documents apparently originated by the alleged assignor, OC.

Ms. XXXX affidavit as a Midland Credit Management employee is not adequate to establish any of these facts. 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, OC. At no time was the affiant nor any of the Plaintiff’s employees present to witness any purported acts or creation of the records of transactions and communications occurring between the Defendant and OC; As such, the affidavit of XXX falls under the hearsay rule In. R.E. 802 and is inadmissible as evidence.

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

“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 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 memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

Indiana courts applying Indiana Rule 803(6) have held that the person who records the information in the regular course of business must also have personal knowledge of the information recorded in order to make it reliable. D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.Ct.App.1995) (the event recorded must have been within the personal knowledge of someone acting in the course of regularly conducted business activity).

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

While Ms. XXXX may very well be Midland Credit Management’s custodian of records, the mere acceptance or incorporation of electronically transferred data from OC info Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of R.E. 803(6); hence the need for In R.E 902(9). The source of information or the method or circumstances of preparation indicate a lack of trustworthiness and reliability.

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 they 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 Indiana Rules of Civil Procedure and grant the Defendant equitable compensation.

By the Defendant acting pro se.

Dated: 10/21/2011

[BrunoTheJDBkiller]

You should be able to get an extension of time of 30 days to respond to this. These are routinely granted. Make sure you mention what they pulled on you with the late delivery. Hopefully you have the envelope with the postal stamp.

[Seadragon]

and pound the arb in your response. Since the MTC is a big impeder to further action by the court, you should mention in opposition the ARB, and reiterate that there are significant issues that would require arbitration according to the terms of the arbitration agreement.

The fact they filed MSJ while the courts jurisdiction is at issue is of itself a reason for the motions denial.

also put in the opposition that you are responding to preserve the status quo until the court rules on the MTC.

The MSJ is wholly an attempt by the plaintiff to advance litigation not authorized by controlling agreement and is thus a breach and violation of collection laws.

Send a letter to them that their MSJ is a violation of the agreement and subject also to the FDCPA as a misrepresentation of the character and nature of the debt according to the statute. as you have elected arbitration the motion and action should be withdrawn from the court to prevent a willful violation. The statute allows a 21 day safe harbor period which is fast approaching since the arbitration was elected. If you and/or the plaintiff continues in this venue then both will be subject to the FDCPA.

and work on the opposition, and the MTC. use the meet and confer letter to lock them into the willful violation part of the attack.

[Beergoggles]

I have an MSJ thread for AZ

[Softwear8]

Im in urgent need of a MSJ template. Midland pulled a fast one and sent me my copy of days after they filed it. My deadline is approaching and i have no idea how i should write it. Just need to get pointed in the right direction. Thanks and Happy Holidays!

Does this help? It's a sample of an Affidavit of Defendant Supporting Defendant's Motion to Strike Affidavit Filed in Support of Plaintiff's Motion for Summary Judgment for Arizona.

http://www.uslegalforms.com/samples/US/US-00926BG.pdf