IdWrknGrl

Help me with generic Affidavit of OC....something is weird here.

Recommended Posts

Looking for some help on the paperwork that was recently included in the attorney's Motion for Summary Judgement. 

It included an Affidavit of Plaintiff that states the following:

 

I,  "OC grunt", the undersigned and the Assistant Custodian of Records at OC (address in Utah) certify and affirm that the claim

and cause of action against IdWrknGrl (not the name that I ever held a credit card in, ommitting my middle name) is in the

sum of $XX, XXX. 

 

I am familiar with the records of the account in this action, and I am of legal age and competency and am authorized to make

this certification for the Plaintiff.

 

In my capacity of "OC grunt" I have access to records regarding the account of the above reverenced Defendant and I 

have personally inspected said Accountand statements regarding the balance due on said account.  OC maintains these

records in the ordinary course of business and it is the regular practice to record all transactions at or near the time of

occurance.  I am the "OC grunt" and can testify as to their authenticy.

 

Defendant applied for and was issued a credit account with Plaintif which is the subject of this suit

 

Defendant used or authorized the use of the credit account to purchase goods and or services or cash advances

 

Defendant was provided with the credit account agreement and monthly billing statements that described the amount due. 

The credit account agreement and billing statements are attached (an agreement from 2009 and a couple of statements showing

an even amount of charges and payments were attached).

 

If currently available, the application and or copies of payments made by defendant to plaintiff on this account are attached hereto as composite exhibit C ( Nothing attached)

 

By use of the credit account, Defendant agreed to the terms and conditions set forth in the agreements. 

 

As of Oct 1, 20XX the balance on this account was $XX, XXX for which an account was stated for such amount.

 

Declarant has reviewed the account records and there is no unresolved notice or claim that the balance is incorrect etc.....

 

I declare under penalty of Perjury of the state of (My home state) that the foregoing is true and correct. 

 

Signed  OC Grunt and notarized in MA. 

 

There is nothing on here that references the account number, and even though they say that available applications are attached as exhibit C, there is nothing.  Is there anything to pick apart here?? 

 

 

 

 

Link to post
Share on other sites

An account stated action requires a showing of mutual

assent that an amount is a final balance of account agreed to by the

parties and a writing evidencing the final balance. Assent may be

implied from failure to object to a billing within a reasonable time.

Thus, any written account may become an account stated through

acquiescence in its correctness. (citations omitted)114 Idaho 614, 616, 759 P.2d 905, 907.

No question of fact remains

as to whether Reeses ever assented, because by virtue of not objecting to any billing

within a reasonable time, they are deemed to have implicitly assented. Id. In M.T.

Deaton, the Court of Appeals noted the absence of “any contention that the amount

Deaton claimed was incorrect or was not a final balance.” 114 Idaho 614, 617, 759 P.2d

905, 908. The Idaho Court of Appeals held that the written statement of account sent

out, setting forth the balance due, was sufficient to uphold the trial court’s judgment on

the account stated theory. Id. Similarly, here, the Court has only Reeses’ pleading

setting forth their dispute about the amount owed. “If a party resists summary judgment,

it is his responsibility to place in the record before the trial court the existence of

controverted material facts. A party may not rely on his pleadings nor merely assert that

there are some facts which might or will support his legal theory, but rather he must

establish the existence of those facts by deposition, affidavit, or otherwise.” Berg v.

Fairman, 107 Idaho 441, 444, 690 P.2d 896, 899 (1984). Having not done so here,

Reeses cannot survive summary judgment.

Link to post
Share on other sites

You have some work to do ;

 

1) MUST show there is a GENUINE and plausible issue that woud prevent the plaintiff from getting judgement. POKING hole in procedures is one way but keep in mind they can always amend and come back with more stuff.

 

2) What does your court rules say about complaints filed in court ?  in my state Contract  must be attached or if not available an affidavit explaining why.

 

I'd still try to squeeze arbitration in based on CONCEALMENT of the Material fact (not attaching a card agreement that has arbitraion clause in it ).

 

These this case involve AMEX and arbitration:

 

"Charles Aneke v. American Express Travel Related Services, Inc., et al.: USDC-D.C. – No. 11-1008(GK); January 31, 2012."

 

Judge Gladys Kessler ruled that under the Amex cardholder agreement, Utah law was controlling, and said that “a number of courts have found the Arbitration Provision to be valid and enforceable under Utah law.”

“Plaintiffs have neither distinguished this legal precedent nor otherwise argued that Utah law requires invalidating the Arbitration Provision involved in this case,” she wrote, concluding  the Arbitration was valid and enforceable and thus trumped Americans’ rights under the RFPA.

 

The plaintiffs sought to bring a class action over the outsourcing of Amex call center chores to overseas locations not subject to U.S. laws, where AmEx personnel have access to callers’ financial records the “U.S. Government is free to intercept, search, and seize this data.”

 

They alleged the U.S. government had either seized their financial information or that such information was at risk of government seizure.  They also charged that their financial information may have been seized by certain foreign governments, which regularly share such data with the United States.

Enacted in 1978, the RFPA prohibits financial institutions from providing U.S. agencies with data concerning a customer’s financial records, unless the customer authorized the disclosure of the information or the Government obtained a valid warrant or subpoena.

 

“As the Supreme Court has held, claims based on federal statutes are no exception to the general rule that arbitration agreements should be enforced according to their terms. Although all statutory claims ‘may not be appropriate for arbitration, having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude waiver of judicial remedies for the statutory rights at issue,’” she wrote.

 

“If such Congressional intent exists, ‘it will be discoverable in the text of the statute, its legislative history, or an ‘inherent conflict’ between arbitration and the statute’s underlying purpose,” Judge Kessler continued.

 

She noted that Plaintiffs could individually pursue RFPA’s civil and injunctive remedies in arbitration proceedings.  “Most significantly, they have failed to point to any language in RFPA, its legislative history, or case law suggesting that class-wide injunctive relief is mandated by or necessary to carry out RFPA’s purpose.  In short, Plaintiffs have presented no legal authority suggesting that RFPA precludes enforcement of the Arbitration Provision.  In essence, Plaintiffs have presented a policy argument about the limits of arbitration and the prejudicial impact it has on their statutory claims.  In passing the FAA, Congress established a ‘liberal federal policy favoring arbitration agreements,’” Judge Kessler wrote, concluding, “To invalidate the Arbitration Provision based upon Plaintiffs’ policy arguments would undermine this firmly established Congressional policy choice.

Link to post
Share on other sites

Not only does it not reference the account number, it doesn't appear to reference your name.  It merely refers to Defendant.  In other words, it's a preprinted, robosigned affidavit in which certain relevant information such as the amount is filled in.

 

Regarding arbitration, have you already participated in discovery?  Are they suing for a fairly large amount?

  • Like 1
Link to post
Share on other sites

I'd still MTC arbitration , if court denies gives a cause for appeal. I haven't seen any appellate court ruling against arbitration after SCT ruling in Concepcions & later COMPUCREDIT CORP. ET AL. v. GREENWOOD ET AL (Jan 2012)

 

Mine immediately orderd reversal and remanded back to proceed with arbitration in JAMS.

Link to post
Share on other sites

Yes, in fact the lady that signed the Affidavit of the Plaintiff was recently torn apart under subpoena because

she didn't know the proceedures for how the records were kept.  Check this out..... 

 

http://www.thelangelfirm.com/Debt-Defense-Blog/2012/May/Judge-dismisses-American-Express-complaint-after.aspx

 

Better yet, the notary that was used in my case works for Zwicker & Assoc in Andover, MA.  Seems weird that an Employee

of Amex in NY, under the rules of Utah, for a case in Idaho would drive to Massachusettes to have something notarized :medusa:

 

Also, the Affidavit did have my name, but it was different than my legal name and different than the name that I held my

credit card in.  For example the affidavit named me as Sheila Smith instead of Sheila A. Smith (my legal name and something I never veer from).

No account number was stated in the Affidavit, nor was there a date given when the contract began. 

Link to post
Share on other sites

Not only does it not reference the account number, it doesn't appear to reference your name.  It merely refers to Defendant.  In other words, it's a preprinted, robosigned affidavit in which certain relevant information such as the amount is filled in.

 

Regarding arbitration, have you already participated in discovery?  Are they suing for a fairly large amount?

 

I replied to their discovery and propounded my own on them.  They ignored it for 6 weeks, then sent 24 credit card statements in

which the opening balance was around $10K and the ending balance was $10K despite 40+ payments in 24 months!

Link to post
Share on other sites

 

Better yet, the notary that was used in my case works for Zwicker & Assoc in Andover, MA.  Seems weird that an Employee

of Amex in NY, under the rules of Utah, for a case in Idaho would drive to Massachusettes to have something notarized

 

 

"I,  "OC grunt", the undersigned and the Assistant Custodian of Records at OC (address in Utah)"

 

Where did she say she was from NY?  In any case, you're correct when you say the affiant would have to be in MA.  As far as I know, a notary can only notarize documents in the state in which they're licensed.  I assume the notary's stamp shows MA?   Does it say on the bottom where the affidavit was sworn (city, or county & state)?

 

 

 

I replied to their discovery and propounded my own on them.  They ignored it for 6 weeks, then sent 24 credit card statements in

which the opening balance was around $10K and the ending balance was $10K despite 40+ payments in 24 months!

 

 

It might be to late for arbitration because responding to discovery and submitting your own requests is considered participation in litigation.  That can waive the right to arbitration.

 

We concluded that a party waives the right to compel arbitration "by submitting to the jurisdiction of the district court and proceeding with litigation in that court...."  Loomis, Inc. v. Cudahy, 104 Idaho 106, 108, 656 P.2d 1359, 1361 (1982).

 

Hansen v. State Farm Mut. Auto. Ins. Co., 735 P. 2d 974 - Idaho: Supreme Court 1987:

 

"The policy underlying the enforcement of arbitration agreements or provisions in a written contract is rendered meaningless when the parties to such agreements proceed with the litigation process. That is precisely what has happened in the present case."

 

"There was no reason for State Farm to proceed with the litigation process, i.e., answering the complaint, engaging in discovery, taking the Hansens' depositions and requiring Mr. Hansen to submit to medical examination. State Farm did not move to compel arbitration until nearly eleven months following commencement of the action by Hansens."

 

That's not to say you can't try to compel arbitration, but the plaintiff may have an argument against it.  OR, if the amount is considerable, they may be willing to agree to the process.

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