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Hearing on M.S.J next month please review my OPP


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I am being sued by a JDB in Idaho.....I have a hearing on MSJ on the 28th of february, Im having a hard time finding case law for idaho... Any suggestions would be very helpful

 

This is what I have so far... Very rough draft
  

 

IN THE DISTRICT COURT FOR THE FOURTH JUDICIAL DISTRICT FOR THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

_________________________________
XPRESS COLLECTORS AGENCY, LLC,        Case No. _________________________
        Plaintiff                   

   

                VS                         DEFENDANTS REPLY AND OPPOSITION                                                         TO PLAINTIFFS MOTION FOR SUMMARY

                         JUDGEMENT                                                                    
        Defendant.
_________________________________
 

COMES NOW the defendant, , pro se, hereby responds to Plaintiff, XPRESS COLLECTORS AGENCY, LLC, Motion for Summary Judgement, and, in opposition to that motion, respectfully shows the following:

 

BACKGROUND


1. The Motion for Summary Judgement filed by the Plaintiff is insufficient as a matter of law.

   A party moving for summary judgement has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

  Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgement filed with the Court.The motion does not set forth the true facts upon which Plaintiff seeks a summary judgement. Rather the Motion states only “that there are no genuine issues of fact which must be decided, and that the Plaintiff is entitled to a judgement as a matter of law. Motion for Summary Judgment should be denied due to the fact that the Plaintiff’s motion is entirely inappropriate as Plaintiff’s assertions are lacking in actual evidentiary support.

2. Defendant received the Plaintiff's Summons through his landlord on November 20, 2012.

3. Defendant sent a Debt Verification letter to the Plaintiff and the Plaintiffs attorney
   through certified mail with a return receipt requested on November 27, 2012
  
4. Defendant answered the Complaint on December 05, 2012.

5. Defendant received a letter from Plaintiff on December 20, 2012. This letter stated that the Plaintiff was in receipt of the Defendant’s answer, and that there was documentation enclosed from U.S. Bank to verify the alleged debt.(Plaintiff’s Exhibit A). The Plaintiffs letter also requested that if the Defendant did not contact the Plaintiff’s attorney within 10 days of the DATE of the letter to settle or to set up monthly payments, they would intend to ask the court to set up a hearing on Motion for Summary Judgement. Plaintiffs letter was Dated December 10, 2012, but was not postmarked until December 19, 2012, and Defendant did not receive the letter until December 20, 2012. (Defendant’s Exhibit A).This letter was intentionally deceptive, deceitful and misleading. The 10 day period for the Defendant to respond had already passed before the the Defendant received the letter on December 20.

6. (Status / Scheduling / Settlement Conf) was set for 02/27/2013 02:00 PM.

7. Motion for Summary Judgement was filed along with Affidavit in support Of Motion by the Plaintiff on January 17, 2013.

8.Notice Of Hearing Re Motion For Summary Judgment was set for 2.27.13 @ 2pm

 

 

MATERIAL ISSUES OF FACT - STANDING

Plaintiff does not establish its 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 litigant's raising of another person’s 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. Plaintiff’s pleadings do not meet any of these requirements. Plaintiff asserts in their motion that they are a valid assignee of CARDEZ CREDIT AFFILIATES LLC, however their evidence purporting to support this falls short of expected standards.

 

 

DEFENDANT’S ARGUMENTS AGAINST PLAINTIFF’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

1. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters seated.

2. The Plaintiff’s Affidavit states as follows “I make this Affidavit of my own personal knowledge and information based upon my review of the business records for CARDEZ CREDIT AFFILIATES, LLC, and the facts herein contained are true and correct to the best of my knowledge.” It is true that the affiant might have personal knowledge of CARDEZ CREDIT AFFILIATES LLC, business records but it is highly unlikely that they possess personal knowledge of the consumer, of the debt, or of the business-record-keeping practices of the original creditor or prior assignees. XPRESS COLLECTORS AGENCY LLC, should not be able to authenticate, let alone admit into evidence, the records of third party entities as business records, because they were not created by XPRESS COLLECTORS AGENCY, LLC, and as such should be rendered as hearsay.

 

 

DEFENDANT’S ARGUMENTS AGAINST PLAINTIFF’S EXHIBITS A, B, C.


1.The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the alleged debt. Plaintiff’s (Exhibit B) does not specify the Defendant in any fashion, nor bear the Defendant’s  name, signature, address, social security number, or phone number. The Defendant respectfully requests that the Plaintiff’s (Exhibit B) be stricken from evidence in the above action.

2.Plaintiff failed to provide into evidence validated, verified and authenticated billing statements with itemization form zero balance that links the Defendant to the alleged debt.

3.Even if such documents were available, a purchasing/assignee's plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff has no personal knowledge of how those records were created and maintained.


4. Plaintiff claims the Defendant opened the alleged account on January 1, 2006, yet the earliest statement provided in the Plaintiff’s (Exhibit A) is dated May 16, 2006 through Jun 15, 2006

5. Plaintiff claims the Defendant made a last payment on March 31, 2010, yet the last the last payment received in the Plaintiff’s (Exhibit A) is dated June 04, 2008.

6.The billing statements submitted in the Plaintiff’s (Exhibit A) are a series of third-party credit statements from the alleged original creditor, U.S. Bank, which can at best be regarded as hearsay as they are not and have not been in authenticated in any fashion. Defendant respectfully requests that (Exhibit A) be stricken from evidence in the above action.

7. Plaintiff has submitted into evidence a “Bill of Sale” Plaintiffs (Exhibit C) from alleged previous owner of the alleged account (UNIFUND, CCR, LLC). This “Bill of Sale” does not specify the Defendant, nor the Defendant’s alleged original account number with the alleged original creditor, nor reference in any way any other document which could be associated with the Defendant.

8. Plaintiffs “Bill of Sale” acknowledges the receivables consist of 50 accounts in which not 1 single account is named.  It also contains numerous redacted sums of money.(see pg1 Defendant's Exhibit B) This “Bill of Sale” also states as follows:
   

 

a. “Buyer understands and agrees that certain Receivables purchased hereunder may

         not be legally collectable or enforced and as such may have little or no value.
   
    b. Under no circumstances shall the Buyer be permitted to contact the originator,
        previous owner of the Receivables or bank (collectively and individually referred
               to as “Originator”) without first receiving Seller’s express written consent, which
               consent may be withheld in its sole discretion. In the Defendants (Exhibit A) The
               Plaintiff states: Enclosed is documentation we have received from U.S. Bank. If in fact
               documentation was presented to the Plaintiff from U.S. Bank, Defendant requests the
               Plaintiff produces the Seller’s express written consent to contact the “Originator.”

8. The Plaintiff’s reliance upon the documents it submits is insufficient without a proper evidentiary foundation, the “Bill of Sale” (Exhibit C) is highly vague and Defendant respectfully requests it be stricken from evidence in the above action.











 

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http://www.kcgov.us/departments/districtcourt/opinions/20120523_CV%202011%209390_Charles%20Clock%20et%20ux%20v.%20Dart%20Club%20Management%20LLC_John%20T.%20Mitchell_Memorandum%20Decision%20and%20Order%20Granting%20Motion%20for%20Summary%20Judgment_Clock%20v%20%20Dart%20Club%20Mgmt%20Order%20on%20MSJ.pdf

 

In an appeal from an order granting summary judgment, the standard of review is the same as the standard used by the district court in ruling on a motion for summary judgment. State v. Rubbermaid Incorporated, 129 Idaho 353, 355-356, 924 P.2d 615, 617-618 (1996); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 529, 887 P.2d 1034, 1036 (1994). Upon review, the Court must liberally construe facts in the existing record in favor of the nonmoving party, and draw all reasonable inferences from the record in favor of the nonmoving party. Id.; Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). Summary judgment is appropriate if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991). If there are conflicting inferences contained in the record or reasonable minds might reach different conclusions, summary judgment must be denied. Bonz, 119 Idaho at 541, 808 P.2d at 878.

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As Seadragon has shown, you need to include ID case law to support your arguments.  You made an argument against the billing statements, but you need to support it.

 

Idaho Rule of Evidence 803(6) is the business records exemption.  You need to look it up.  It states that business records are admissible if they're accompanied by the testimony of either a live witness or an affidavit.  Either way, the testimony has to include certain things.  Here's some ID case law to support your argument that the business records are inadmissible:

 

 In State v. Hill, 140 Idaho 625, 97 P.3d 1014 (Ct.App.2004), the Idaho Court of Appeals described the foundational requirements for application of I.R.E. 803(6). 

Rule 803(6),[2] the business record exception to the hearsay rule, allows admission of a record or report if it was made and kept in the course of a regularly conducted business activity and if it was the regular practice of that business to make the report or record. See Henderson v. Smith, 128 Idaho 444, 450, 915 P.2d 6, 12 (1996); In the Interest of S.W., 127 Idaho 513, 520, 903 P.2d 102, 109 (Ct.App.1995). These foundational requirements must be shown through "the testimony of the custodian or other qualified witness." I.R.E. 803(6). That is, the record must be authenticated by someone "who has custody of the record as a regular part of his or her work or who has supervision of its creation." Henderson, 128 Idaho at 450, 915 P.2d at 12. A document is not admissible under I.R.E. 803(6) unless the person testifying has a personal knowledge of the recordkeeping system used by the business which created the document. Id., Herrick v. Leuzinger, 127 Idaho 293, 297, 900 P.2d 201, 205 (Ct.App.1995).

The Court also stated that "the mere receipt and retention by a business entity of a document that was created elsewhere does not transform the document into a business record of the receiving entity for purposes of I.R.E. 803(6)." Hill, 140 Idaho at 628, 97 P.3d at 1017.

 

You might add that the billing statements provided by Plaintiff were not created by Plaintiff and,  according to the Idaho Court of Appeals, are not the records of XPRESS Collectors for purposes of I.R.E. 803(6).  Plaintiff's affidavit is insufficient to lay a proper foundation for the admission of the billing statements and the bill of sale and, therefore, the documents provided by Plaintiff are inadmissible hearsay.

 

All that being said, do you understand what it all means?  If you had to argue those facts in court, do you understand 803(6), a proper foundation, etc.  and could you adequately explain it?

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BV80

 

Thank you for responding, This will definitely help me... and yes i do believe i understand this well enough to ague it in court I have read researched quite a bit of case law that deals with this but had been unable to find any pertaining to Idaho... This is an unbelievable help and resource and is much appreciated...I am very nervous for the hearing coming up seeing how I have little experience with the court system but I think If I study up, research and show up prepared I can handle it.... Do you think it would be smart or is it possible to make a motion of summary judgement on behalf of myself, or possibly move to strike the affidavit that's in support of the motion of summary judgement against me?

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Since I'm not in your shoes anymore, I don't know if you should file your own MSJ or affidavit to strike.  When I was being sued, if I had known what I know today and had good case law in my favor, I would tempted, but I can't say for sure because that just wasn't the case when I fighting JDBs. 

 

In my court, one can file a cross motion for summary judgment.  I would assume you'd have to oppose their motion while filing your own motion.  I didn't have to do that because my JDBs chickened out.  You need to read your rules.

 

Whatever you decide to do, hammer home the issue of proof of ownership and standing to sue.  Do the same with the records using the case law.  According to the Court of Appeals, they can't take another business's records, claim it as their own, and authenticate it.

 

Did they provide an affidavit?  If you don't mind posting it, what is stated? 

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Yes they did provide and affidavit

 

L D, being first duly sworn on oath, deposes and says:

1. That I am an agent for Cardez Credit affilliates llc , purchaser of the account from U.S. Bank through UNIFUND CCR LLC, and i make this Affidavit of my own personal knowledge and information based upon my review of the business records for Cardez Credit Affiliates LLC, and the facts herein are true and correct to the best of my knowledge.

2. The credit card for _______ under social security No. *** ** **** was opened jan 1, 2006 with U.S. Bank under acct number******************** with an interest rate of 12.0000% and made the last payment on March 31,2010.

3. that the attached hereto Exhibit A a copy of the billings for said account

4. that the attached hereto as Exhibit B a copy of the contract for said account

5.that the account was sold to Cardez Credit Affiliates, LLC through UNIFUND on may 15, 2012. Attached as Exhibit C is a copy of the Receivables Purchase Agreement.

6. There is a current balance of the account of $3980,93 together with interest from FEB 27, 2010, The amount due includes application of all credits and offsets

7. Attached hereto as Exhibit D is a copy of an Assignment showing that this account was turned over for collection to Xpress Collectors Agency LLC

8. That due demand has been made for payment of the aforesaid sums, but Defendant has failed and refused to pay the same

9. That the Plaintiff has been compelled to hire the law firm of Dalling and Dalling to obtain Judgment from the Defendant and Plaintiff has incurred additional attorney's fees in an amount not less than $1,300 and costs of $146.00

10 Further your affiant saith not

 

Another thing... It looks as if The Dallings own all three of these parties involved Cardez credit Affiliates, Xpress Collectors Agency and Dalling & Dalling Law firm... They even have the same phone numbers.... Is this a common practice? just curious.

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Where's the bill of sale from US Bank to Unifund?  Is there is a bill of sale from Unifund to Cardez?

 

 

 

4. that the attached hereto as Exhibit B a copy of the contract for said account

 

 

What is Exhibit B?

 

 

 

7. Attached hereto as Exhibit D is a copy of an Assignment showing that this account was turned over for collection to Xpress Collectors Agency LLC

 

 

What is this exhibit?  How is Xpress related to Cardez?

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Where's the bill of sale from US Bank to Unifund? 

They did not produce a bill of sale from US Bank to UNIFUND

 

Is there is a bill of sale from Unifund to Cardez?

There is a Receivables purchase agreement with redacted and omitted amounts of money paid for accounts... It states that Cardez credit purchased 50 accounts but no accounts are named and all $ amounts are redacted

 

4. that the attached hereto as Exhibit B a copy of the contract for said account

 

 

What is Exhibit B?

Exhibit B is a generic card agreement contract from U.S. bank that has no account or personal information on it... Its completely blank no signature

 

7. Attached hereto as Exhibit D is a copy of an Assignment showing that this account was turned over for collection to Xpress Collectors Agency LLC

 

 

What is this exhibit?  How is Xpress related to Cardez?

It just states that Cardez has turned over the account for collections to Xpress... Im pretty sure Cardez, Xpress and The Law Firm Dalling and Dalling are all owned by the same people. The affiant in the Affidavit even has the last name Dalling (Laurie Dalling)  Cardez bought the account, Then assigned it to Xpress for collections

 

It States: This assignment made by and between cardez and xpress whereby client assigns account of ************** to xpress for the purpose of filing suit for collection of the past due account. Client further agrees to be responsible for payment of all costs of suit.

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The use of federal authorities may be allowed. Idaho statutes parrot the federal statutes:

 

The United States Supreme Court held in The case of Anderson v. Liberty Lobby, Inc.“movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. New York Times Co. v. Sullivan, 376 U.S. 254 at Pp. 256-257”, 477 U.S. 242, 250 (1986).

 

“Rule 56(e) states: "Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." As the language of the Rule plainly indicates the requirement of personal knowledge is mandatory. See Toro Co. v. Krouse Kern & Co. Inc. 827 F.2d 155 162 n.3 (7th Cir.1987). The facts presented in the affidavit also must be admissible evidence. "The policy of Rule 56(e) is to allow the affidavit to contain evidentiary matter which if the affiant were in court and testifying on the witness stand would be admissible as part of his testimony." Pfeil v. Rogers 757 F.2d 850 860 (7th Cir.1985) cert. denied 475 U.S. 1107 89 L. Ed. 2d 912 106 S. Ct.1513 (1986) citing 6 Moore's Federal Practice SEC. 56.22[1] at 1321-22 (1982); see also Randle v. LaSalle Telecommunications Inc. 876 F.2d 563 570 n.4 (7th Cir.1989) ("Rule 56(e) requires that evidentiary affidavits 'shall set forth facts as would be admissible in evidence.' Based on this requirement our cases have stressed that we are unable to consider hearsay statements that are not otherwise admissible at trial.")” Atkins supra and further on the issues of materiality for evidence The United States Supreme Court explained in Anderson v. Liberty Lobby: "Only disputes over facts that might affect the outcome of the suit" preclude summary judgment. Anderson v. Liberty Lobby Inc. 477 U.S. 242, 248 (1986). Defendants have fully and continually disputed the allegations. (S.D.F. ¶1-5)

 

2. Defendants have raised the dispute of Plaintiff's allegations since the beginning. Summary Judgment cannot be used to deny questioning of witnesses.

Defendants have a genuine dispute over every single allegation in the case.(S.D.F. ¶1-5) granting the Motion was an error and an abuse of discretion. “An abuse of discretion occurs when there is no evidence to support a holding or the court commits an error of law when reaching a discretionary decision.” Dowling v. Stapely, 221 Ariz.at 266, ¶ 45, 211 P.3d at 1250.

 

The United States Supreme Court tells us that it is necessary to first determine if “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

 “[A] motion for summary judgment should not be granted if there is evidence creating a genuine issue of material fact.” Gatecliff v. Great Republic Life Ins. Co., 170 Ariz. 34, 37, 821 P.2d 725, 728 (1991).

 

The plaintiffs sole reliance on Rule of Evidence 803 is not the way the federal courts rule on the Business records exception to the Hearsay rule. The process is aptly reported in the cases of In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005)(requirements for federal records foundation and authentication) and extensively reported in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007)(proper foundation and admissibility of electronic records under Rules 902 and 803), and finally in a recent decision by the Missouri Supreme Court en banc CACH LLC. v. Askew, 358 S.W.3d 58(2012)(third party records admissibility and foundation in a debt collection case).

 

The reliance on cases designed for paper records admissibility on an exception to the Hearsay rule is not the way the federal courts rule in credit card related cases. The Rule 803 is closely tied to other Code of Evidence rules for records admissibility. Rule 902 is typically now used as a means in conjunction with Rule 803 for evidence. The federal courts are using the procedure cited in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), Chief United States Magistrate Judge Grimm precisely lays out the requirements for federal courts electronic records foundation and admissibility requirements. These procedures include the Business records exception to the hearsay rule discussed id at pg.572.

“Because elements for both rules are essentially identical, they frequently are analyzed together when Rule 902(11) is the proffered means by which a party seek to admit a business record. See In Re Vee Vinhnee, 336 B.R. at 446; Rambus, 348 F. Supp. 2d at 701 (holding that analysis of Rule 803(6) and 902(11) go “hand in hand,” and identifying the following requirements for authentication under Rule 902(11): (1) a qualified custodian or other person having personal knowledge makes the authenticating declaration, who must have “sufficient knowledge of the record-keeping system and the creation of the contested record to establish their trustworthiness;” (2) the declaration must establish that the record was made at or near the time of the occurrence or matters set forth in the document by someone with personal knowledge of these matters or from information provided by someone with personal knowledge thereof; (3) the declaration must show that the record is kept in the course of the regularly conducted activity of the business, and the “mere presence of a document . . . in the retained file of a business entity do[es] not by itself qualify as a record of a regularly conducted activity”; and (4) the declaration must establish that it is the regular practice of the business to keep records of a regularly conducted activity of the business, and “it is not enough if it is the regular practice of an employee to maintain the record of the regularly conducted activity . . . . it must be the regular practice of the business entity to do so”— i.e. it is at the direction of the company that the employee maintain the record).” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 572 (D. Md. 2007)

 

This opinion is widely cited in relation to electronic records and data throughout the federal system and lends itself well the state court rules based on the federal rules such as the State of Arizona. Since the court allows the citing of federal authorities a key opinion by a well respected Magistrate should be allowed to show that baseless affidavits are indeed hearsay and should properly be excluded.

 

b. The affiant has shown a lack of specific knowledge of the alleged assignors computer storage and data management practices

 

The affiant here neither purports to being involved with the making of the records nor lays out any relevant testimony concerning the particulars of the records creation, maintenance, security, nor the trustworthiness or reliability of purported records. The affiant does not disclose any working nor affiliatory relationship with the alleged assignors in this case.

The plaintiffs affiant did not show any averments beyond conclusory ipse dixits to support alleged documents submitted to the court; in the Motion to Strike and after the court granted that motion, in plaintiffs facially void Motion for Summary Judgment. The non specific recitation of generalized statements due not rise to the level necessary for authentication of anything relevant to the case.

“[A]ffidavits shall be made on personal knowledge,shall set forth such facts as would be admissible in evidence, and shall show affirmatively the affiant is competent to testify

to the matters stated therein.” Ariz. R. Civ. P. 56(e). On summary judgment, to demonstrate an affidavit was made from personal knowledge, the affiant must review the documents, show

that he is familiar with the person who prepared them, or the manner in which they were prepared. Villas at Hidden Lakes Condo. a$$’n v. Geupel Constr. Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App. 1992) (finding that an association failed to establish a prima facie case entitling it to summary judgment because its supporting affidavit did not provide foundation for the affiant’s personal knowledge and conclusion, nor did it demonstrate his familiarity with the person who prepared the affidavit exhibits or the manner in which they were prepared).

 

1. The Federal Rules and authorities on submission of evidence.

The affidavits in this case do not rise to the levels necessary under the most relevant court to hear credit card related issues the 9th circuit Bankruptcy Appellate Panel in the case styled as In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005). This case concerned the evidentiary hurdles of a national bank associated with purported business records. The bankruptcy court excluded bank records because they could not supply the necessary foundation or authentication for evidence in the case. The process the court

used was based on a well-respected book on evidentiary foundations. Edward J. Imwinkelried, Evidentiary Foundations § 4.03[2] (5th ed. 2002). The Court stated the following:

“Indeed, judicial notice is commonly taken of the validity of the theory underlying computers and of their general reliability. IMWINKELRIED § 4.03[2]; RUSSELL § 901.9. Theory and general reliability, however, represent only part of the foundation.

Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records:

1. The business uses a computer.

2. The computer is reliable.

3. The business has developed a procedure for inserting data into the computer.

4. The procedure has built-in safeguards to ensure accuracy and identify errors.

5. The business keeps the computer in a good state of repair.

6. The witness had the computer readout certain data.

7. The witness used the proper procedures to obtain the readout.

8. The computer was in working order at the time the witness obtained the readout.

9. The witness recognizes the exhibit as the readout.

10. The witness explains how he or she recognizes the readout.

11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

IMWINKELRIED § 4.03[2].

Although this is a generally serviceable modern foundation, the fourth step warrants amplification, as it is more complex than first appears. The "built-in safeguards to ensure accuracy and identify errors" in the fourth step subsume details regarding computer policy and system control procedures, including control of access to the database, control of access to the program, recording and logging of changes, backup practices, and audit procedures to assure the continuing integrity of the records.”In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) at 336 B.R. 446,447

 

As can be seen the the purported affidavits at issue in defendants’ Motion to Strike,the affiants do not even supply the level of foundation and authentication necessary in the Bankruptcy Courts. The Arizona Rules of Evidence and Civil procedure mirror the Federal Rules therefore it can be seen that Midland has failed like American Express to properly found and authenticate their claims.

The Vinhhee court further found at 336 B.R. 448 the generalized statements of the secondary witness allowed to testify after the court excluded the primary witnesses declaration and evidence:

“Here, the declarant merely asserted that he is employed by American Express and is personally familiar with the hardware and software and computer record-keeping systems in use in the credit card industry. He did not indicate his job title or anything about his training and experience that would import an aura of verisimilitude to his assertions. The trial court ruled that this was not adequate qualification of the witness because the "declaration contains no information at all about [declarant's] background and training or whether and to what extent he is knowledgeable about the American Express computers, or how he obtained such information." Since it is apparent that the trial court did not know whether the declarant was a seasoned professional manager of computer records or a janitor, we perceive no error in this ruling and do not have a definite and firm conviction that there was a clear error of judgment in rejecting the declaration on this ground.” id at 448.

 

These authorities expand upon the federal rules in a way that makes the process fair and beyond reproach. Plaintiffs witnesses suffer from similar lack of the required knowledge to authenticate and provide foundation for Midlands allegations. Affiants in credit card related actions within this state must give relevant testimony and in this case it is lacking.

A very on point analyses often cited for this very case is Cooper Offenbecher‘s, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future? the analysis of the writer strikes right to the heart of the problem in this case. The foundation of electronic data has changed since the cases cited by plaintiffs were written. As cited here:

“The Vinhnee court seemed most concerned with the witness’ knowledge of specifics regarding accuracy, security, and the potential for data error or loss. “There is no information regarding American Express’ computer policy and system control procedures, including control of access to pertinent databases, control of access to pertinent programs, recording and logging of changes to the data, backup practices, and audit procedures utilized to assure the continuing integrity of the records.”68 In doing so, the court highlights step four and step five (to the extent that it deals with the internal processes of the computer) as two of the most important foundation steps.” Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?, 4 Shidler J. L. Com. & Tech. 6 (Oct. 17, 2007), at <http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/407/vol4_no2_art6.pdf?sequence=1> at ¶20

A recent case in the Supreme Court of Missouri en banc further showed the generalized methods used to collect debts under arguably similar circumstances. This case is CACH LLC. v. Askew, 358 S.W.3d 58(2012). In Cach LLC., the Missouri Supreme Court found the following:

“All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence. State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. 1989) ("The business records exception to the hearsay rule applies only to documents generated by the business itself.... Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140.” id at pg. 63

 

The Missouri Revised Statutes §490.680 is in accord with Rule 803 and so the Cach LLC case bears a reoccurring lesson to courts, plaintiffs and to defendants’ that modern courts are evolving with the times and setting new standards for evidence.

 

Looks like someone got a new set of legal clubs for the new year. All this tears down certein inferences. For yours since the affiant is a person with a direct financial stake in the litigation the averments in the affidavit are wholly and inadmissably hearsay.

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Looks like someone got a new set of legal clubs for the new year. All this tears down certein inferences. For yours since the affiant is a person with a direct financial stake in the litigation the averments in the affidavit are wholly and inadmissably hearsay.

 

Seadragon,

 

I don't understand what you mean.  Affidavits are supposed to be made by someone with knowledge.  There's no mention of a prohibition of a financial stake in the averments or the outcome of litigation.

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Where's the bill of sale from US Bank to Unifund? 

They did not produce a bill of sale from US Bank to UNIFUND

 

 

A link in the chain of assignment is missing, so the chain of assignment is broken.  Where's the proof that US Bank sold anything at all (even a paperclip), much less any alleged account owed by you, to Unifund?

 

 

 

Is there is a bill of sale from Unifund to Cardez?

There is a Receivables purchase agreement with redacted and omitted amounts of money paid for accounts... It states that Cardez credit purchased 50 accounts but no accounts are named and all $ amounts are redacted

 

 

If your name and account number isn't on there, there's no proof any account allegedly owed by you was included in that sale.  ALSO, is US Bank mentioned in that document?

 

 

 

What is Exhibit B?

Exhibit B is a generic card agreement contract from U.S. bank that has no account or personal information on it... Its completely blank no signature

 

 

Here's a copy of a cardmember agreement for US Bank from a government site:  consumerfinance.gov.  Does it look like your agreement?

 

http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_7413.pdf

 

 

 

What is this exhibit?  How is Xpress related to Cardez?

It just states that Cardez has turned over the account for collections to Xpress... Im pretty sure Cardez, Xpress and The Law Firm Dalling and Dalling are all owned by the same people. The affiant in the Affidavit even has the last name Dalling (Laurie Dalling)  Cardez bought the account, Then assigned it to Xpress for collections

 

It States: This assignment made by and between cardez and xpress whereby client assigns account of ************** to xpress for the purpose of filing suit for collection of the past due account. Client further agrees to be responsible for payment of all costs of suit.

 

 

Look at Dalling's affidavit.  She doesn't state that US Bank sold any accounts to Unifund or that Unifund purchased the account from US Bank.  She doesn't explain how Unifund ALLEGEDLY acquired the ALLEGED account.  Did Unifund ALLEGEDLY purchase accounts from US Bank, or did Unifund purchase accounts from another debt buyer?

 

There's no evidence US Bank sold anything to anyone.

 

This also adds to your argument about the affidavit and the evidence.  The affiant makes no mention of a sale between US Bank and Unifund.  (see above).

 

In addition, because there's no bill of sale from US Bank, there's no proof that Unifund was the first purchaser of any accounts that might have ALLEGEDLY been sold by US Bank.  Other debt buyers could have purchased the unidentified accounts referenced in the Unifund bill of sale before they were sold to Unifund.  Therefore, there's no telling how many times those unauthenticated billing statements have changed hands.

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I will be following this with interest since I too am being chased by a JDB in Idaho.  From what I have looked up on the repository,

 

99.99% of the cases like mine in my county go to default judgement.  I don't see where a single person has fought back in the

 

past 5 years in my area of Idaho.  Thank you for posting on this board so I can also benefit from the incredible knowledge of these posters!!! 

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Do your search with the different names of the junk debt buyer/lawfirm

 

"The account was purchased by Cardez Credit Affiliates and later assigned to Plaintiffs, Xpress Collectors Agency (Xpress)".

 

Just another junk debt buyer trying to fool someone

 

Card Ez Credit Affiliates, 525 Park Ave, Idaho Falls, ID. Tel: 208-528-8990

Xpress Collectors Agency LLC 501 Park Avenue, Idaho Falls, ID83402 (208) 528-8990

Dalling William R - Dalling & Dalling

 

208-522-2350,501 Park Ave Idaho Falls, ID83402

http://www.lawyer.com/cases/1014883633747737514.html

 

 

 

 

 

 

 

 

 

 

 

 

 

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Do your search with the different names of the junk debt buyer/lawfirm

 

"The account was purchased by Cardez Credit Affiliates and later assigned to Plaintiffs, Xpress Collectors Agency (Xpress)".

 

Just another junk debt buyer trying to fool someone

 

Card Ez Credit Affiliates, 525 Park Ave, Idaho Falls, ID. Tel: 208-528-8990

Xpress Collectors Agency LLC 501 Park Avenue, Idaho Falls, ID83402 (208) 528-8990

Dalling William R - Dalling & Dalling

 

208-522-2350,501 Park Ave Idaho Falls, ID83402

http://www.lawyer.com/cases/1014883633747737514.html

 

Is this common practice or even legal? seeing how the affiant (L. Dalling) probably has monetary stake in the case.

 

 

 

 

 

 

 

 

 

 

 

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I'm opposing a MSJ by Midland Funding in UT. It's good to see someone else's rough draft of an opposition. I'm a long time resident of North Idaho but now live in Utah. I hope to move back to ID this summer. There isn't much case law in UT as far as I've seen yet. It's been interesting to browse case law in ID. I internet at a law firm in Sandpoint during college, but we focused on riparian rights and land use issues. Not helpful right now! 

 

Good luck, I'll be following your story!

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Wait....here is more interesting info, the plaintiff's attorney's first letter to me states that I owe $16,715.60, which includes $2,056.00 in interest fees. So $14,659 is the balance, and $2,056 is the interest = $16,715.60

 

So I'm wondering why they aren't sticking to that amount? They failed to add the interest fees to the amount they say I owe.

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Here's a copy of a cardmember agreement for US Bank from a government site:  consumerfinance.gov.  Does it look like your agreement?

 

http://files.consume...eement_7413.pdf

 

It is very similar allmost identical

 

 

First, according to ID case law, they can't authenticate the records of another business.  Plus, cardmember agreements are available online.  They can't attest to its authenticity, can't prove it came from the OC, and can't approve that the terms in the agreement apply to the account in the complaint.

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Thanks everyone, Im in the process of finalizing my opp, and will be meeting with a lawyer who is giving me a free consultation, and some advice heading forward.. Let me know if you would like me to post my final opp on here when its finshed.. Anyways wish me luck I have the hearing on the 27th of FEB and will be posting on here the ongoings of my case.... Again thanks everyone you have been a big help...

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So here's my OPP I will be filing on this coming Tueday, Hopefully its up to snuff so to speak... Let me know if you have any advice or suggestions as Im sure it could use some work. Thanks

 



 

IN THE DISTRICT COURT FOR THE FOURTH JUDICIAL DISTRICT FOR THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

_________________________________
XPRESS COLLECTORS AGENCY, LLC,        Case No. _________________________
        Plaintiff                   

   

                VS                         DEFENDANTS REPLY AND OPPOSITION                                                         TO PLAINTIFFS MOTION FOR SUMMARY

                         JUDGEMENT                                                                   ,
        Defendant.
_________________________________
 

COMES NOW the defendant,____________ pro se, hereby responds to Plaintiff, XPRESS COLLECTORS AGENCY, LLC, Motion for Summary Judgement, and, in opposition to that motion, respectfully shows the following:


In an appeal from an order granting summary judgment, the standard of review is the same as the standard used by the district court in ruling on a motion for summary judgment. State v. Rubbermaid Incorporated, 129 Idaho 353, 355-356, 924 P.2d 615, 617-618 (1996); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 529, 887 P.2d 1034, 1036 (1994). Upon review, the Court must liberally construe facts in the existing record in favor of the nonmoving party, and draw all reasonable inferences from the record in favor of the nonmoving party. Id.; Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). Summary judgment is appropriate if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991). If there are conflicting inferences contained in the record or reasonable minds might reach different conclusions, summary judgment must be denied. Bonz, 119 Idaho at 541, 808 P.2d at 878.

                                        



I. CASE BACKGROUND


1. The Motion for Summary Judgement filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary judgement has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgement filed with the Court.The motion does not set forth the true facts upon which Plaintiff seeks a summary judgement. Rather the Motion states only “that there are no genuine issues of fact which must be decided, and that the Plaintiff is entitled to a judgement as a matter of law. Motion for Summary Judgment should be denied due to the fact that the Plaintiff’s motion is entirely inappropriate as Plaintiff’s assertions are lacking in actual evidentiary support.

2. Defendant received the Plaintiff's Summons through his landlord on November 20, 2012.
    a. No Affidavit of Service has been filed with the courts as of 1/28/1013.

3. Defendant sent a Debt Verification letter to the Plaintiff and the Plaintiffs attorney
   through certified mail with a return receipt requested on November 27, 2012. (Defendants
   Exhibit A).
  
4. Defendant answered the Complaint on December 05, 2012.
    a.Defendant served a copy, by mail, to Dalling & Dalling on December 05,2013.

5. Defendant received a letter from Plaintiff on December 20, 2012. This letter stated that the Plaintiff was in receipt of the Defendant’s answer, and that there was documentation enclosed “from U.S. Bank” to verify the alleged debt.(Plaintiff’s Exhibit B). The Plaintiffs letter also requested that if the Defendant did not contact the Plaintiff’s attorney within 10 days of the DATE of the letter to settle or to set up monthly payments, they would intend to ask the court to set up a hearing on Motion for Summary Judgement. Plaintiffs letter was Dated December 10, 2012, but was not postmarked until December 19, 2012, and Defendant did not receive the letter until December 20, 2012. (Defendant’s Exhibit A). Defendant feels that this letter was intentionally deceptive, deceitful and misleading. The 10 day period for the Defendant to respond had already passed before the the Defendant received the letter on December 20.

6. (Status / Scheduling / Settlement Conf) was set for 02/27/2013 02:00 PM.

7. Motion for Summary Judgement was filed along with Affidavit in support Of Motion by the Plaintiff on January 17, 2013.

8. Notice Of Hearing Re Motion For Summary Judgment was set for 2.27.13 @ 2pm



II. MATERIAL ISSUES OF FACT - STANDING

Plaintiff does not establish its 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 litigant's raising of another person’s 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. Plaintiff’s pleadings do not meet any of these requirements. Plaintiff asserts in their motion that they are a valid assignee of CARDEZ CREDIT AFFILIATES LLC, however their evidence purporting to support this falls short of expected standards.



III. DEFENDANT’S ARGUMENTS AGAINST PLAINTIFF’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT


The use of federal authorities may be allowed. Idaho statutes parrot the federal statutes:

1. “Rule 56(e) states: "Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." As the language of the Rule plainly indicates the requirement of personal knowledge is mandatory. See Toro Co. v. Krouse Kern & Co. Inc. 827 F.2d 155 162 n.3 (7th Cir.1987).

2. The facts presented in the affidavit also must be admissible evidence. "The policy of Rule 56(e) is to allow the affidavit to contain evidentiary matter which if the affiant were in court and testifying on the witness stand would be admissible as part of his testimony." Pfeil v. Rogers 757 F.2d 850 860 (7th Cir.1985) cert. denied 475 U.S. 1107 89 L. Ed. 2d 912 106 S. Ct.1513 (1986) citing 6 Moore's Federal Practice SEC. 56.22[1] at 1321-22 (1982); see also Randle v. LaSalle Telecommunications Inc. 876 F.2d 563 570 n.4 (7th Cir.1989) ("Rule 56(e) requires that evidentiary affidavits 'shall set forth facts as would be admissible in evidence.'

3. The affiant has shown a lack of specific knowledge.The affiant here neither purports to being involved with the making of the records nor lays out any relevant testimony concerning the particulars of the records creation, maintenance, security, nor the trustworthiness or reliability of purported records.

4. “[Affidavits shall be made on personal knowledge,shall set forth such facts as would be admissible in evidence, and shall show affirmatively the affiant is competent to testify
to the matters stated therein.” Ariz. R. Civ. P. 56(e). On summary judgment, to demonstrate an affidavit was made from personal knowledge, the affiant must review the documents, show
that he is familiar with the person who prepared them, or the manner in which they were prepared. Villas at Hidden Lakes Condo. a&#036;&#036;’n v. Geupel Constr. Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App. 1992) (finding that an association failed to establish a prima facie case entitling it to summary judgment because its supporting affidavit did not provide foundation for the affiant’s personal knowledge and conclusion, nor did it demonstrate his familiarity with the person who prepared the affidavit exhibits or the manner in which they were prepared).

5. The Plaintiff’s Affidavit states as follows “I make this Affidavit of my own personal knowledge and information based upon my review of the business records for CARDEZ CREDIT AFFILIATES, LLC, and the facts herein contained are true and correct to the best of my knowledge.” It is true that the affiant might have personal knowledge of CARDEZ CREDIT AFFILIATES LLC, business records but it is highly unlikely that they possess personal knowledge of the consumer, of the debt, or of the business-record-keeping practices of the original creditor or prior assignees. XPRESS COLLECTORS AGENCY LLC, should not be able to authenticate, let alone admit into evidence, the records of third party entities as business records, because they were not created by XPRESS COLLECTORS AGENCY, LLC, and as such should be rendered as hearsay.

6. The Plaintiff”s Affidavit does not state that US Bank sold any accounts to Unifund or that Unifund purchased the accounts from US Bank.  It does not explain how Unifund ALLEGEDLY acquired the ALLEGED account.  Did Unifund ALLEGEDLY purchase accounts from US Bank, or did Unifund purchase accounts from another debt buyer? The Affiant makes no mention of a sale between US Bank and Unifund. In addition, because there's no bill of sale from US Bank, there's no proof that Unifund was the first purchaser of any accounts that might have ALLEGEDLY been sold by US Bank.  Other debt buyers could have purchased the unidentified accounts referenced in the Unifund bill of sale before they were sold to Unifund.  Therefore, there's no telling how many times those unauthenticated billing statements have changed hands.

IV.. Idaho Rule of Evidence 803(6).

1. Rule 803(6),[2] the business record exception to the hearsay rule, allows admission of a record or report if it was made and kept in the course of a regularly conducted business activity and if it was the regular practice of that business to make the report or record. See Henderson v. Smith, 128 Idaho 444, 450, 915 P.2d 6, 12 (1996); In the Interest of S.W., 127 Idaho 513, 520, 903 P.2d 102, 109 (Ct.App.1995). These foundational requirements must be shown through "the testimony of the custodian or other qualified witness." I.R.E. 803(6). That is, the record must be authenticated by someone "who has custody of the record as a regular part of his or her work or who has supervision of its creation." Henderson, 128 Idaho at 450, 915 P.2d at 12. A document is not admissible under I.R.E. 803(6) unless the person testifying has a personal knowledge of the recordkeeping system used by the business which created the document. Id., Herrick v. Leuzinger, 127 Idaho 293, 297, 900 P.2d 201, 205 (Ct.App.1995).

2.  In State v. Hill, 140 Idaho 625, 97 P.3d 1014 (Ct.App.2004), the Idaho Court of Appeals described the foundational requirements for application of I.R.E. 803(6). The Court also stated that "the mere receipt and retention by a business entity of a document that was created elsewhere does not transform the document into a business record of the receiving entity for purposes of I.R.E. 803(6)." Hill, 140 Idaho at 628, 97 P.3d at 1017.

3. The billing statements provided by Plaintiff were not created by Plaintiff and, according to the Idaho Court of Appeals, are not the records of XPRESS COLLECTORS AGENCY LLC for purposes of I.R.E. 803(6).  Plaintiff's affidavit is insufficient to lay a proper foundation for the admission of the billing statements and the bill of sale and, therefore, the documents provided by Plaintiff are inadmissible hearsay.



V. DEFENDANT’S ARGUMENTS AGAINST PLAINTIFF’S (EXHIBIT A).

 
1. Plaintiff failed to provide into evidence validated, verified and authenticated billing statements with itemization form zero balance that links the Defendant to the alleged debt.

2. Even if such documents were available, a purchasing/assignee's plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff has no personal knowledge of how those records were created and maintained.

3. Plaintiff claims the Defendant opened the alleged account on January 1, 2006, yet the earliest statement provided in the Plaintiff’s (Exhibit A) is dated May 16, 2006 through Jun 15, 2006

4. Plaintiff claims the Defendant made a last payment on March 31, 2010, yet the last the last payment received in the Plaintiff’s (Exhibit A) is dated June 04, 2008.

5.The billing statements submitted in the Plaintiff’s (Exhibit A) are a series of third-party credit statements from the alleged original creditor, U.S. Bank, which can at best be regarded as hearsay as they are not and have not been in authenticated in any fashion. Defendant respectfully requests that (Exhibit A) be stricken from evidence in the above action.



VI. DEFENDANT’S ARGUMENTS AGAINST PLAINTIFF’S EXHIBIT B


1.The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the alleged debt. Plaintiff’s (Exhibit B) does not specify the Defendant in any fashion, nor bear the Defendant’s  name, signature, address, social security number, or phone number. The Defendant respectfully requests that the Plaintiff’s (Exhibit B) be stricken from evidence in the above action.




VII. DEFENDANT’S ARGUMENTS AGAINST PLAINTIFF’S EXHIBIT C.


1. Plaintiff has submitted into evidence a “Bill of Sale” Plaintiffs (Exhibit C) from alleged previous owner of the alleged account (UNIFUND, CCR, LLC). This “Bill of Sale” does not specify the Defendant, nor the Defendant’s alleged original account number with the alleged original creditor, nor reference in any way any other document which could be associated with the Defendant.

2. Plaintiffs “Bill of Sale” acknowledges the receivables consist of 50 accounts in which not 1 single account is named.  It also contains numerous redacted sums of money. (see pg 1. (1-2) Plaintiff’s Exhibit C) This “Bill of Sale” also states as follows:
   


a. “Buyer understands and agrees that certain Receivables purchased hereunder may

         not be legally collectable or enforced and as such may have little or no value. (see pg
         1. 3(a) Plaintiff’s Exhibit C).

    b. Buyer shall at all times conform with all requirements of all applicable Federal, State,
        and local laws, rules and regulations applicable to the conduct of such activities,
        including the requirements of the Fair Debt Collection Practices Act (15 U.S.C. Section
        1692 et seq.) the consumer Credit Protection Act, and the Fair Credit Reporting Act.
        (see pg 3. (B) Plaintiff’s Exhibit C).
   
    c. Under no circumstances shall the Buyer be permitted to contact the originator,
        previous owner of the Receivables or bank (collectively and individually referred
               to as “Originator”) without first receiving Seller’s express written consent, which
               consent may be withheld in its sole discretion. In (Defendant’s Exhibit A), the
               Plaintiff states: Enclosed is documentation we have received from U.S. Bank. If in fact
               documentation was presented to the Plaintiff from U.S. Bank, Defendant requests the
               Plaintiff produces the Seller’s express written consent to contact the “Originator.” (see  
       pg 3. (d) Plaintiff’s Exhibit C ).
   
    d. Buyer’s decision to purchase the Receivables pursuant to this Agreement is and was
        was based upon Buyer’s own independent evaluation of the information deemed
        relevant to Buyer. Buyer acknowledges and agrees that, while some information
        concerning the Receivables was made available to Buyer for review prior to Sale, such
       information may not be complete.  Buyer has relied solely on its own investigation
       and it has not relied upon any oral or written information provided by Seller, or any of its
       contractors, employees or representatives, and acknowledges that no contractor,
       employee, or representative of Seller, has been authorized to make, and that Buyer
       has not relied upon, any statements other than those specifically contained in this
      agreement. (see pg. 5 (k) Plaintiffs Exhibit C).

    e. Economic Risk. Buyer acknowledges that the Receivables may have limited or no        
        value and buyer has the financial wherewithal to own the Receivables for an
        indefinite period of time and to bear the economic risk of an outright purchase
      of the Receivables and a total loss of the Purchase Price.  (see pg 5. (m)
       Plaintiff’s Exhibit C).

    f. To the extent that Buyer reports a Receivable to any credit bureau after the Closing
       Date, Buyer shall comply with all applicable consumer reporting laws including
       without limitation, the Fair Credit Reporting Act, and shall provide appropriate updates
       to those credit bureaus to which it reports in accordance with such laws. (see pg 5
      (n) Plaintiff’s Exhibit C).

    g. Account Documents. Seller makes no guarantee that account statements, affidavits
       of debt, or any other documents (“Account Documents”) shall be able to be provided.
       Such Account Documents are subject to the provisions and charges for Account
       Documents as provided by the individual issuer(s). (see pg 6 (a) Plaintiff’s Exhibit C).

    h. Buyer acknowledges that some or all of the Account Documents from the Originator
        will be supplied through a third-party document management company known as
        Convoke. (see pg 6. (B) Plaintiff’s Exhibit C).

    i. NO OTHER REPRESENTATIONS OR WARRANTIES. EXCEPT AS PROVIDED
       HEREIN, THE RECEIVABLES ARE BEING SOLD “AS-IS” AND WITH ALL
       FAULTS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER
       (WHETHER EXPRESSED OR IMPLIED) AND SELLER SPECIFICALLY
       DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
       WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE
       RECEIVABLES, AND THE STRATIFICATION OR PACKAGING OF THE
       RECEIVABLES.

3. The Plaintiff’s reliance upon the documents it submits is insufficient without a proper evidentiary foundation, the “Bill of Sale” (Exhibit C) is highly vague and Defendant respectfully requests it be stricken from evidence in the above action.

As Plaintiff has not advanced any factual basis or evidence that the Court is obligated to consider in support of its complaint, the Defendant asks the Court to deny the Plaintiff’s Motion for Summary Judgement. Further the Defendant requests that the Court review the Plaintiff’s actions in this case in conjunction with Rule 56(g) of the Idaho Rules of Civil Procedure and grant the Defendant equitable compensation. Also, pursuant to Rule 56 of the Idaho Rules of Civil Procedure, Defendant moves for summary judgement. Defendant respectfully submits that upon Defendant’s (Rule 56), Statement of Material Facts as to which there is no Genuine Issue to be tried.


Defendant’s request submitted this _________ day, of ___________ 20____.










 

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