Skeeter84g

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

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That's not evidence.  I read post #8.  The affiant, Laurie Dalling, said that the account was sold to Cardez Credit Affiliates through Unifund.  Then she mentions  Xpress Collectors Agency LLC. 

 

Where is Pilot Receivables?

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Were both affidavits made by the same person?  Have you posted exactly what was written in the 1st affidavit?

 

Yes the affidavits were made by the same person.... I also found that the accounts recievable exhibit they filed with the first affidavit that said cardez purhcased over 50 accounts from Unifund and its dated May 15 2012.... This second Affidavit also contains bill of sale exhibit that claims Cardez bought the account from Pilot management on May 16 2012...I have been trying to research and find out if Unifund and Pilot are one and the same and It looks to me as if they are (partners)....Even if they were related in that way... why would the dates of the sale of these supposid accounts be different...

 

Yes I posted the first Affidavit earlier in this thread... I believe its post # 8 in the thread

 

There is also an exhibit (bill of sale of assets) that states US bank sold accounts to Pilot Receivables Management... Has no account info other than it says it sells assets to the buyer  (Pilot). Its dated January 3, 2012 and has a signuature of the supposid sr vice president of retail loss prevention for U.S. Bank. The signature is very bad and I can hardly read it and can only make out the middle initial.. It looks as if its been photo copied so many times its fading away... under the signature it has a place to print the name but its blank... seems weird to me..

most likely the copy of the bill of sale was so bad the 5 looked like a 6 to the flunky who made that affidavit.

 

The whole affidavit is in fact IPSE DIXIT which doesn't show the stuff.

 

That is hearsay of hearsay and each layer has to be authenticated. There was something in the SJ about that.

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4 That the attached Exhibit A is a copy of the Bill of Sale form Us Bank to Pilot Receivables

 

Is there an Exhibit A?  Is so, what's written?

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In sur reply state how every single authority denies new testimony in reply because it is unrebuttable. This is a totally sham affidavit.

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Is there an Exhibit A?  Is so, what's written?

 

heres is what is written in exhibit A of the second affidavit:

 

Exhibit B

Bill of Sale of Assests

 

The undersigned Seller hereby absolutely sell, transfers, assigns, sets-over, quitclaims and conveys to Pilot Recievables Management LLC, a limited liability company organized under laws of Ohio on an "AS IS" and "With ALL FAULTS" basis without recourse and without representation or warrenties of any type, kind , character or nature, express or implied, all of Seller's right, title and interest in and to each of the assests identified in the Asset schedule. Attached hereto as Exhibit A ( the Assets) , together with the right to collect all principal, interest or other proceeds of any kind with respect to the Assets remaining due and owing as of the date hereof ( including but not limited to proceeds derived from the conversation, voluntary or involuntary, of any of the Assets into cash or other liquidated property, including,without limitation, insurance proceeds and condemnation awards) from and after the date of this Bill of Sale.

 

DATED: JANUARY 3, 2012

 

SELLER; U.S. Bank National Association ND

                                                                                                                                        By:   " very faint unreadable signature

                                                                                                                                        Name (print) "blank no printed name"

                                                                                                                                        Title: Sr Vice President of Retail Loss Prevention
 

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In sur reply state how every single authority denies new testimony in reply because it is unrebuttable. This is a totally sham affidavit.

 

 

 

 

So Im going to draft up my Sur-reply........ In my reply should I just focus on going after the inconsistencies with both the affidavits to show that there is contradicting testimony from the affiant? ... They also filed a RESPONSE BRIEF IS SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT.

 

If you recall I disputed earlier That date the account was opened and when the last payment was made on the account...  In this response.. Instead of stating the defendant opened the account on January 1 2006, they are saying the account was opened in January, 2006.  and istead of stating last payment was made on march 31, 2010 they just state the account was active through eary March.

 

In the factual background portion of this respose they state US Bank sold the account to Pilot Receivables  who sold the account  to Cardez. Next paragraph they say Cardez was an assignee of Unifund which was an assignee of Pilot Receivables which was an assignee of US Bank... ( if Cardez bought the accounts from Pilot... wouldnt cardez be an assignee of Pilot... This chain of assignment doesn't make sense to me) what do you guys think?

 

In their Argument I they claim: The assignee "stands in the shoes" of the assignor.

for common-law puposes, the assignee is the assignor. At the same time courts are careful to state that the assignee has no additonal equities or liabilities that the assignor, IN this case, Xpress, acting as the assignee of Cardez solely for the purposes of filing suit under Idaho law, has the same rights and obligations relative to the Defendant as US bank. The fact tht he plaintiff and others in the chain of title did not have a contract relationship with the Defendant is irrelevant. Similary, it is irrelevant that the Plaintiff did not loan money to the Defendant.  The Plaintiff's acquired the interest of US Bank for the acoount of the Defendant and he owes the assignee the same sums as would be payable to US Bank.

 

Next they argue that the Cases reguarding 803(6) cited by the Defendant are distinguishable from this case

here they argue against my case law Henderson v. Smith and State v. Hill

 

Next they argue Courts have routinely accepted affidavits like the ones here under 803(6) analysis

Saks Int'l. Inc. v. M/V "Export Champion", 817 F. 2d 1011, 1013 (2d Cir. 1987) (Foundation can be laid by a witness who is not an employee of the owner of the records)....... this is just one example there are probably 10+ more cases stated here.

 

Their Conclusion States:

The heresay rule was instituted to protect authenticity and reliability of testimony presented to courts. Judges have been given a broad discretion in allowing evidence that appears o its face to be heresay.Rule 803(6) provides an exception to the heresay rule for business records. Idaho appellate courts have not ruled on cases on point but other states and federal courts routinely allow admission of records similar to thos presented by the Plaintiff's in this case.

This court should consider all the factual information provided by the Plaintiff in the affidavits before the court. In doing so, only one conclusion can be rendered, The Plaintiff is entitled to summary judgement on its enire claim.

 

Then they attached the cases:

Andrew Smith v. Federated Financial Corporation of America... a print out from JustiaUsLaw.com 12 pages long

 

Evelyn V. Keyes printout from JustiaUsLaw.com 12 pages long 

 

 

I guess my question is.... Given all of this..... should I just go after the sham affidavits in my reply or should I try and rebut the Response Brief...

I am weary of filing a reply that is full of the same arguments I have already presented because I feel the judge may not want to go through all this paper work. especially the numerous pages filed by the plaintiff... Who knows if the judge will actually read through all of it.

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I just want to make sure I'm understanding everything correctly. 

 

1.  They filed an affidavit in support of summary judgment that claimed US Bank sold the account to Unfund. 

 

2.  No bill of sale was provided from US Bank to Unifund.

 

3.  In their summons and complaint, Pilot Receivables was never mentioned.

 

4.  You filed your opposition to their MSJ.

 

5.  Their reply included the new affidavit.

 

Three questions.  I'm sorry to ask so many questions, but this can get a little confusing.

 

1.  Was the bill of sale from US Bank to Pilot included with their MSJ or was it included in their reply to your opposition?

 

2.  Did they ever produce a bill of sale from Unifund to Cardez?

 

3.  Was Pilot Receivables mentioned in the either the complaint or the MSJ?

 

Not only do you have conflicting affidavits, Pilot Receivables was never mentioned in the in the first affidavit.

 

It's also possible that they've broken a rule of procedure by just now offering evidence and information that was never provided before MSJ or when they filed their MSJ.  That's something we need to find out.

 

One last question, did you request any bills of sale in discovery?

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Next they argue Courts have routinely accepted affidavits like the ones here under 803(6) analysis

Saks Int'l. Inc. v. M/V "Export Champion", 817 F. 2d 1011, 1013 (2d Cir. 1987) (Foundation can be laid by a witness who is not an employee of the owner of the records)....... this is just one example there are probably 10+ more cases stated here.

 

 

Oh my gosh!  That's case law from the 2nd Circuit Court of Appeals.  Your case is a state case, not a federal case.  Plus, the 2nd Circuit Court of Appeals has nothing to do with Idaho.  Federal appeals cases from ID are heard in the 9th Circuit.  Case law from the 2nd Circuit Court of Appeals is not binding on your court.

 

What other case law did they cite in their reply to your opposition?

 

State v. Hill is most certainly NOT distinguishable from your case.  In State v. Hill, the Idaho Court of Appeals specifically stated:

 

In the case before us, the State introduced the reclamation document, which was generated by the Federal Reserve Bank or some other agency, through the testimony of a Bank of Commerce employee. The witness testified that the document was received by the Bank of Commerce and kept by the Bank of Commerce as part of its regular business procedures, but he could not testify about the preparation of the document and was unaware of the procedures used and followed in its preparation. There was no testimony presented by any witness familiar with the system used to create the document. As we held in In the Interest of S.W., mere receipt and retention of a document created by another entity cannot transform the document into a business record of the recipient for the purposes of the business record exception. Accordingly, the district court erred in admitting the reclamation document under I.R.E. 803(6).  State v. Hill, 140 Idaho 625, 631, 97 P.3d 1014, 1017 - 1018 (Ct. App. 2004).

 

 

That is exactly what has happened in your case.  Any billing statements they try to submit fit the above citation to a tee.

 

Did you request oral arguments?

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1.  They filed an affidavit in support of summary judgment that claimed US Bank sold the account to Unfund.

correct (purchaser of the account from US Bank through Unifund) see post 8

 

2.  No bill of sale was provided from US Bank to Unifund.

correct

 

3.  In their summons and complaint, Pilot Receivables was never mentioned.

correct

 

4.  You filed your opposition to their MSJ.

correct

 

5.  Their reply included the new affidavit.

correct

 

1.  Was the bill of sale from US Bank to Pilot included with their MSJ or was it included in their reply to your opposition?

It was attached to the second affidavit and marked as exhibit A. (they never mentioned pilot in their MSJ)( no name or bank account info on the bill of sale from U.S Bank to Pilot) .... see post post 56.. thats verbatum

 

2.  Did they ever produce a bill of sale from Unifund to Cardez?

Yes, it was attached to the first affidavit that was filed along with the MSJ....(but again no account names or #'s on the bill of sale, It just states they are purchasing 50 accounts from unifund)

 

One last question, did you request any bills of sale in discovery?

I did when I mailed them a Debt varification letter, (not in Discovery) but i did not recieve any bills of sale until they filed the first bill of sale from unifund to Cardez with their first affidavit and MSJ. The bill of sale from U.S to Pilot was filed until the second affidavit was.

 

I sent them a request for documents with my DV after I had recieved the summons/complaint at the very beginning.

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What other case law did they cite in their reply to your opposition?

 

Russo v. Abington Mem. Hosp. Healthcare Plan, 1998 U.S. Dist Lexis 18595(E.D.Pa. 1998)

 

United States v. baker, 224 u.s. app. d.c 68, 693 f.2d 183(d.c.cir 1982)

 

wilson v. zapata off-shore co., 939 f.2d 260 (5th cir. 1991)

 

united states vs. Keplinger, 776 f.2nd 678, 693 (7th Cir.1985)

 

weeks v. western auto supply co., 2003 u.s. dist. lexis 10977 (wd. va. 2003) n2 (dicta)

 

United States v. sokolow, 91 f.3d 396, 403 (3d Cir. 1996) cert denied, 136 L. ed. 2d 846, 117s. ct. 960 (1997)

 

In connecticut, New England saving bank v. bedford realty corp, 246 conn 594, 603, 717 A2d 713 (1998)

 

In Massachusettes, Beal Bank SSB v. Eurich, 444 Mass 813, 813 Ne2d 909 (2005)

 

In Indiana  Miller v. Javitch, 397 F. Supp 2d 991, 997-98 (N.D. Ind. 2005)

 

Garden State Bank v. Graef, 341 N.J. Super. 241, 246 (App.Div. 2001)

 

United states v. Baker, 224 U.S. App D.C. 68, 693 F .2d 183, 187 (D.C. CIR 1982)

 

There are like 10 more of these as well....

There are pages and pages of this case law from states other than idaho... I dont see a judge reading through all of this B.S.

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State v. Hill is most certainly NOT distinguishable from your case.  In State v. Hill, the Idaho Court of Appeals specifically stated:

 

In the case before us, the State introduced the reclamation document, which was generated by the Federal Reserve Bank or some other agency, through the testimony of a Bank of Commerce employee. The witness testified that the document was received by the Bank of Commerce and kept by the Bank of Commerce as part of its regular business procedures, but he could not testify about the preparation of the document and was unaware of the procedures used and followed in its preparation. There was no testimony presented by any witness familiar with the system used to create the document. As we held in In the Interest of S.W., mere receipt and retention of a document created by another entity cannot transform the document into a business record of the recipient for the purposes of the business record exception. Accordingly, the district court erred in admitting the reclamation document under I.R.E. 803(6).  State v. Hill, 140 Idaho 625, 631, 97 P.3d 1014, 1017 - 1018 (Ct. App. 2004).
 

 

That is exactly what has happened in your case.  Any billing statements they try to submit fit the above citation to a tee.

 

Thats what Iam saying I cant see how a judge would think that this case is distinguishable from my case... its exacly the same situation..

 

Did you request oral arguments?

 

No I have not... What is this?^^^^^^

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Not only do you have contradictory affidavits, you have contradictory evidence.

 

The 1st affidavit states that Unifund bought the account. There's a bill of sale from US Bank to Unifund.

 

The 2nd affidavit states that Pilot Receivables bought the account, and there's a bill of sale from US Bank to Pilot Receivables.

 

Summary Judgment Rule 56(e)

 

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.

 

It's more than obvious that the affiant has no personal knowledge of the account or this case.  She contradicts her claims as to which company allegedly purchased the account in question from US Bank. 

 

Next, in her second affidavit, she claims she is "personally familiar with the practice employed by banks like US Bank in issuing credit cards and their ongoing practice of billing and reciept of payment for credit cards."

 

Considering the fact that in her second affidavit, she contradicts her very own statements in her first affidavit, the above statement is untrustworthy.  She can't figure out who bought the alleged account from US Bank, but yet she has knowledge of the practices of US Bank???  Sure she does.

 

Third, Pilot Receivables is not referenced in Plaintiff's Complaint, the Motion for Summary Judgment, or in the affidavit of L D.  The first time that entity is referenced is in Plaintiff's reply to your opposition. 

 

Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

 

Plaintiff has offered 2 bills of sale from US Bank.  US Bank could not have sold the alleged account to 2 different entities.  The statements made in LD's second affidavit, along with the bill of sale attached to that affidavit, contradict her very own statements in her first affidavit and the documentation attached to that first affidavit.

 

Affidavits are supposed to be made under oath.  She swore to the statements she made in both affidavits.  Considering her statements, along with the documentation attached to both affidavits, are contradictory, the affiant has shown her statements to be untrustworthy.

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Not one of the cases in their reply is binding on your court.  None of them are from Idaho.  They may be persuasive, but they are not binding.  Point out that the plaintiff has cited cases that are outside the state of ID and not binding on ID courts.  You cited ID case law from the ID Court of Appeals that's applicable to your case.  It's binding. 

 

Oral arguments means that you get to stand in front of the judge and argue your case.   I've heard that in some states you have to request oral arguments.  Maybe it's not the case in ID.  If a date has been scheduled for a hearing, that might be oral arguments.

 

Personally, I'd want to argue my case just to make sure the judge has all the facts (that is, if he lets anyone get in a word).  You might ask the clerk of court if oral arguments have to be request or if that's what the hearing is for.

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The 1st affidavit states that Unifund bought the account. There's a bill of sale from US Bank to Unifund.

 

there is no bill of sale from U.S. Bank to Unifund... the first affidavit just states that cardez purchased the account from U.S. bank through Unifund...There is a bill of sale from Unifund to Cardez in the first affidavit...

 

The second affidavit contains a bill of sale (exhibit A) a copy of the bill of sale from US bank to Pilot Receivables Management Compay.( first affidavit stated they purchased the account through Unifund not Pilot)  Also a bill of sale (exhibit B) from Pilot to Cardez...( not Unifund to Cardez as stated in the first affidavit)

 

Still contradicting statements... But they have not produced a bill of sale from US bank to Unifund... just stated they purchased the account through Unifund in their first affidavit...

 

I hope this clears it up for you..( sorry if i confused you before). your help is greatly appreciated.

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Not one of the cases in their reply is binding on your court.  None of them are from Idaho.  They may be persuasive, but they are not binding.  Point out that the plaintiff has cited cases that are outside the state of ID and not binding on ID courts.  You cited ID case law from the ID Court of Appeals that's applicable to your case.  It's binding. 

 

Oral arguments means that you get to stand in front of the judge and argue your case.   I've heard that in some states you have to request oral arguments.  Maybe it's not the case in ID.  If a date has been scheduled for a hearing, that might be oral arguments.

 

Personally, I'd want to argue my case just to make sure the judge has all the facts (that is, if he lets anyone get in a word).  You might ask the clerk of court if oral arguments have to be request or if that's what the hearing is for.

 

 

I have a status/ scheduling hearing on the 27th of feb... I called the clerks office a while ago and they said the motion for summary judgment will also be evaluated at this hearing. So Iam going to have to have everything in order by then.. i will definitely take your advice and call about the oral arguments on monday as well as if I am allowed to file a Sur-reply

 

thank you for all the help

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The 1st affidavit states that Unifund bought the account. There's a bill of sale from US Bank to Unifund.

 

there is no bill of sale from U.S. Bank to Unifund... the first affidavit just states that cardez purchased the account from U.S. bank through Unifund...There is a bill of sale from Unifund to Cardez in the first affidavit...

 

The second affidavit contains a bill of sale (exhibit A) a copy of the bill of sale from US bank to Pilot Receivables Management Compay.( first affidavit stated they purchased the account through Unifund not Pilot)  Also a bill of sale (exhibit B) from Pilot to Cardez...( not Unifund to Cardez as stated in the first affidavit)

 

Still contradicting statements... But they have not produced a bill of sale from US bank to Unifund... just stated they purchased the account through Unifund in their first affidavit...

 

I hope this clears it up for you..( sorry if i confused you before). your help is greatly appreciated.

 

There's MAJOR contradictions. 

 

 In the first affidavit, she claimed US Bank sold the account to Unifund.  Then Unifund sold the account to Cardez.  

 

The second affidavit makes completely different claims.  She claims US Bank sold the account to Pilot, and Pilot sold it to Cardez.  The 2nd affidavit contradicts her Unifund claims.

 

According to the 2nd affidavit, Unifund is not even in the picture. 

 

According to the complaint, the 1st affidavit, and the Motion for Summary Judgment, Pilot is not in the picture.  No reference was made to Pilot until they replied to your opposition.  

 

If they referenced Unifund in their MSJ, the 2nd affidavit and attached bill of sale is an attempt to change the claims they made in their 1st affidavit and in their own MSJ.  That 2nd affidavit and bill of sale don't match or support the claims made in the MSJ.

 

In 2 separate affidavits, she claims US Bank sold the account to 2 completely different companies.  In those affidavits, she claims each of those companies sold the account to Cardez.  Her statements are untrustworthy.

 

Either the affiant has no personal knowledge of the statements in either of her affidavits, or the plaintiff is attempting to change the facts they presented in their MSJ.

 

More than likely, it's both.

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In sur reply state how every single authority denies new testimony in reply because it is unrebuttable. This is a totally sham affidavit.

 

 

 

 

So Im going to draft up my Sur-reply........ In my reply should I just focus on going after the inconsistencies with both the affidavits to show that there is contradicting testimony from the affiant? ... They also filed a RESPONSE BRIEF IS SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT.

 

If you recall I disputed earlier That date the account was opened and when the last payment was made on the account...  In this response.. Instead of stating the defendant opened the account on January 1 2006, they are saying the account was opened in January, 2006.  and istead of stating last payment was made on march 31, 2010 they just state the account was active through eary March.

 

In the factual background portion of this respose they state US Bank sold the account to Pilot Receivables  who sold the account  to Cardez. Next paragraph they say Cardez was an assignee of Unifund which was an assignee of Pilot Receivables which was an assignee of US Bank... ( if Cardez bought the accounts from Pilot... wouldnt cardez be an assignee of Pilot... This chain of assignment doesn't make sense to me) what do you guys think?

 

In their Argument I they claim: The assignee "stands in the shoes" of the assignor.

for common-law puposes, the assignee is the assignor. At the same time courts are careful to state that the assignee has no additonal equities or liabilities that the assignor, IN this case, Xpress, acting as the assignee of Cardez solely for the purposes of filing suit under Idaho law, has the same rights and obligations relative to the Defendant as US bank. The fact tht he plaintiff and others in the chain of title did not have a contract relationship with the Defendant is irrelevant. Similary, it is irrelevant that the Plaintiff did not loan money to the Defendant.  The Plaintiff's acquired the interest of US Bank for the acoount of the Defendant and he owes the assignee the same sums as would be payable to US Bank.

 

Next they argue that the Cases reguarding 803(6) cited by the Defendant are distinguishable from this case

here they argue against my case law Henderson v. Smith and State v. Hill

 

Next they argue Courts have routinely accepted affidavits like the ones here under 803(6) analysis

Saks Int'l. Inc. v. M/V "Export Champion", 817 F. 2d 1011, 1013 (2d Cir. 1987) (Foundation can be laid by a witness who is not an employee of the owner of the records)....... this is just one example there are probably 10+ more cases stated here.

 

Their Conclusion States:

The heresay rule was instituted to protect authenticity and reliability of testimony presented to courts. Judges have been given a broad discretion in allowing evidence that appears o its face to be heresay.Rule 803(6) provides an exception to the heresay rule for business records. Idaho appellate courts have not ruled on cases on point but other states and federal courts routinely allow admission of records similar to thos presented by the Plaintiff's in this case.

This court should consider all the factual information provided by the Plaintiff in the affidavits before the court. In doing so, only one conclusion can be rendered, The Plaintiff is entitled to summary judgement on its enire claim.

 

Then they attached the cases:

Andrew Smith v. Federated Financial Corporation of America... a print out from JustiaUsLaw.com 12 pages long

 

Evelyn V. Keyes printout from JustiaUsLaw.com 12 pages long 

 

 

I guess my question is.... Given all of this..... should I just go after the sham affidavits in my reply or should I try and rebut the Response Brief...

I am weary of filing a reply that is full of the same arguments I have already presented because I feel the judge may not want to go through all this paper work. especially the numerous pages filed by the plaintiff... Who knows if the judge will actually read through all of it.

The federal courts have now distinguished 803(6) and have tied it with 902(11) all those cases are old law new authorities support your decision the Markel case Liberty Lobby Incorporated, in re:vinhee and their progeny.

They didn't do much research because the Markel is more recent and the supreme court has weighed in on this. New York Times Co. v. Sullivan, 376 U.S. 254 at Pp. 256-257”, 477 U.S. 242, 250 (1986). Also these cases show that the opposite is true that sham affidavits are not to be allowed.

 

"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).

 

But additionally they cannot introduce new evidence in reply In sur reply I would merely show that they are not allowed to make new evidence and cannot push hearsay of hearsay befor the court. Save the other authorities to tear down their position for the hearing, because if you argue in sur reply the reply you waive objection to the introduction of new affidavit.

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Rule 56(a) A party seeking to recover upon a claim, counterclaim, or cross-
  claim or to obtain a declaratory judgment may, at any time after
  the expiration of twenty (20) days from the service of process upon
  the adverse party or that party's appearance in the action or after
  service of a motion for summary judgment by the adverse party, move
  with or without supporting affidavits for a summary judgment in
  that party's favor upon all or any part thereof. Provided, a motion
  for summary judgment must be filed at least 60 days before the
  trial date, or filed within 7 days from the date of the order
  setting the case for trial, whichever is later, unless otherwise
  ordered by the court.

  (Amended March 28, 1986, effective July 1, 1986; amended June 15,
  1987, effective November 1, 1987.)
 

Rule 56(g). Affidavits in summary judgment proceedings made in bad
  faith.
  Should it appear to the satisfaction of the court at any time that
  any of the affidavits presented pursuant to this rule are presented
  in bad faith or solely for the purpose of delay, the court shall
  forthwith order the party employing them to pay to the other party
  the amount of the reasonable expenses which the filing of the
  affidavits caused that party to incur, including reasonable
  attorney's fees, and any offending party or attorney may be
  adjudged guilty of contempt.

 

Maybe these will help some. Summary judgment is supposed to dispose of things that are not contested it is plain to see that the issues are contested.

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But additionally they cannot introduce new evidence in reply In sur reply I would merely show that they are not allowed to make new evidence and cannot push hearsay of hearsay befor the court. Save the other authorities to tear down their position for the hearing, because if you argue in sur reply the reply you waive objection to the introduction of new affidavit.

 

But doesn't the new affidavit actually strengthen the OP's defense?  The new affidavit claims the account was sold to a completely different JDB than was claimed in the 1st affidavit and the MSJ. 

 

Yes, he should object, but I think the introduction of the affidavit shows the duplicitousness of the plaintiff.

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Is there an Exhibit A?  Is so, what's written?

 

heres is what is written in exhibit A of the second affidavit:

 

Exhibit B

Bill of Sale of Assests

 

The undersigned Seller hereby absolutely sell, transfers, assigns, sets-over, quitclaims and conveys to Pilot Recievables Management LLC, a limited liability company organized under laws of Ohio on an "AS IS" and "With ALL FAULTS" basis without recourse and without representation or warrenties of any type, kind , character or nature, express or implied, all of Seller's right, title and interest in and to each of the assests identified in the Asset schedule. Attached hereto as Exhibit A ( the Assets) , together with the right to collect all principal, interest or other proceeds of any kind with respect to the Assets remaining due and owing as of the date hereof ( including but not limited to proceeds derived from the conversation, voluntary or involuntary, of any of the Assets into cash or other liquidated property, including,without limitation, insurance proceeds and condemnation awards) from and after the date of this Bill of Sale.

 

DATED: JANUARY 3, 2012

 

SELLER; U.S. Bank National Association ND

                                                                                                                                        By:   " very faint unreadable signature

                                                                                                                                        Name (print) "blank no printed name"

                                                                                                                                        Title: Sr Vice President of Retail Loss Prevention

 

I have been reading over your posts this afternoon and saw your description of the US Bank Bill of Sale and signature fro 1/3/12.  My JDB has an exhibit with the same BOS from US Bank except that it has added "And Assignment of Assets" .  It was done on 1/6/12 and signed by a US Bank Nation Association (ND) Sr.  Vice President of Retail Loss Prevention.  The space for the printed name is blank also.  The last name is hard to read, but I did some research and there was a SrVP name that matched my BOS - Daniel M Rose.  I was rather suspicious of the unprinted name - plus the BOS is on plain paper - NO US BANK logo/letterhead - nothing.

 

So I googled him to try and find more info.  He left US Bank a couple of weeks after signing in Jan 2012.  I ALSO ran across a BOS (that was almost exactly the same as the one from my JDB)  that he signed 11/30/2007 and was an exhibit in an Arkansas JDB suit.  The signatures are different - the earlier one is an abbreviated, scrawly signature with the name Daniel Rose kind of printed. If the signatur on your exhibit is the same name, it would be interesting to compare the signature you have with both of mine.  I kind of just tucked it away because I am no handwriting expert and I thought the judge was going to throw my case out right away (NOT!). 

 

It is also weird that that BOS was not on letterhead either nor was an affidavit from a US Bank Recovery Manager.  Maybe that is par for these cases. You have so much going for you that you probably don't need to chase down this bunny trail, but if you should need more we could figure out how to compare the signatures.  Best of luck to you - I will be watching to see how you come out! 

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Unless you're an expert on signatures, you're opinion wouldn't matter to the court.  You would need the opinion of an expert. 

 

I certainly can't say this about everyone, but I have several different signatures.  I have a signature for formal documents, one for initials, and another for everyday transactions such as checks.  Then I have my really sloppy signature when I'm in a hurry.

 

My point is that the court might not be persuaded by our opinions.

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I have been reading over your posts this afternoon and saw your description of the US Bank Bill of Sale and signature fro 1/3/12.  My JDB has an exhibit with the same BOS from US Bank except that it has added "And Assignment of Assets" .  It was done on 1/6/12 and signed by a US Bank Nation Association (ND) Sr.  Vice President of Retail Loss Prevention.  The space for the printed name is blank also.  The last name is hard to read, but I did some research and there was a SrVP name that matched my BOS - Daniel M Rose.  I was rather suspicious of the unprinted name - plus the BOS is on plain paper - NO US BANK logo/letterhead - nothing.

 

So I googled him to try and find more info.  He left US Bank a couple of weeks after signing in Jan 2012.  I ALSO ran across a BOS (that was almost exactly the same as the one from my JDB)  that he signed 11/30/2007 and was an exhibit in an Arkansas JDB suit.  The signatures are different - the earlier one is an abbreviated, scrawly signature with the name Daniel Rose kind of printed. If the signatur on your exhibit is the same name, it would be interesting to compare the signature you have with both of mine.  I kind of just tucked it away because I am no handwriting expert and I thought the judge was going to throw my case out right away (NOT!). 

 

It is also weird that that BOS was not on letterhead either nor was an affidavit from a US Bank Recovery Manager.  Maybe that is par for these cases. You have so much going for you that you probably don't need to chase down this bunny trail, but if you should need more we could figure out how to compare the signatures.  Best of luck to you - I will be watching to see how you come out!

_____________________________________________________________________________________________________________________________

 

Harree, It wouldn't be any trouble to email you a picture of the signature.... U can private message me your email adress if you would like.... I would be interested In taking a look at your signatures as well Cuz Im a little curious... thanks and let me know...

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So I finally recieved a call back from the Courts yesterday.... The rather polite lady I talked to wasn't really sure about me filing a Sur-Reply.... She suggested I just file another affidavit in opposition to the Plaintiff's second affidavit... What are your guy's thoughts?
 

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In my opinion, it wouldn't matter about the signature or the person who signed it.  The complaint and the first affidavit state that UNIFUND purchased the account from US Bank.  The affidavit to which your referring referenced Pilot Receivables.

 

 

In the JDB's motion for summary judgment, did they claim the account was purchased from US Bank by Unifund?  Did the JDB claim to purchase the account from Unifund?  I'm not referring to the 2nd affidavit.  Just the MSJ.

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