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Midland Funding's Reply to my Opposition to MSJ(help please)


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I haven't really seen this topic broached on here, I'm being sued in Arizona by Midland Funding for a Chase credit card account, this has been ongoing for awhile, Midland sought MSJ, I sent my Opposition a week ago, Midland send there's a few days later and I'm just now getting their response about a week after the court did.   A lot of what they wrote is BS but they seem to think that if they can repeat even more loudly, it will get them summary judgment.    They are also seeking partial summary judgment in the reply.    I've copied down the pertinent sections below, I'd like to get a response to this together and get it out to the Court ASAP, any help would be tremendously appreciated.

 

From their Memorandum-

 

 

Plaintiff is a Valid Assignee of CHASE BANK

 

The affidavit attached to Plaintiff's complaint states that the Plaintiff is the assignee of all of the rights under the contract.   The affidavit lists the specific account number referenced on the statements attached in Exhibit A to Plaintiff's Motion for Summary Judgment.   Together with the Bill of Sale, the assignment is valid as a matter of law.  For a valid assignment there must be "mutuality of assent, proper parties with the capacity to make a contract, consideration and legal subject matter."-Certified Collector, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P P .2d 769, 771(1977).   Here the Bill of Sale language clearly establishes the mutual assent and there is no legal impediment to the sale of credit card accounts.  The signing parties are authorized representatives of each company and valuable consideration was passed between the parties.  The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee.

 

 

Defendant has entered into a contract

 

  The Defendant's response to the Plaintiff's Motion for Summary Judgment reasserts the claims that the Defendant made in other pleadings that he never owed a debt to Citibank(this is bullshit strawmen nonsense, I challenged Midland on their standing).   In essense, the Defendant is only relying on allegations in the pleadings which as a matter of law cannot defeat a motion for summary judgment.  An issue of fact is genuine only if "the evidence is such that a reasonable jury could return a verdict for the non-moving party" Anderson V Liberty Lobby, Inc. 477 U.S. 242.  Also see Orme School vs Reeves, 166 Ariz. 301, 802 P.2d 1000(1990).  

 

   Here the Defendant has not provided any evidence that would warrant a reasonable jury to find for him.  In essence the Defendant is claiming that summary judgment should not be granted because a jury may not believe the Plaintiff's evidence that he owed money to CHASE BANK.

 

     The statements attached as Exhibit A to Plaintiff's Motion for Summary Judgment clearly show charges made and payments made on a CHASE BANK credit card account in the name of the Defendant at the Defendant's current address.  A party cannot defeat a motion for summary judgment by claiming that there is some metaphysical doubt that a reasonable jury won't believe the Plaintiff's evidence(see Matushita Elec. Indus. Co v Zenith Radio Corp. 475 U.S. 574 and Orme School vs Reeves).

 

 

 Conclusion

 

 

  Based on the foregoing, Plaintiff has demonstrated that the Defendant entered into the Contract, Defendant breached the contract by failing to repay the outstanding balance, Plaintiff is a valid assignee of the contract.  Plaintiff's damages are equal to the outstanding principal of the debt, plus interest, court costs and attorney fees.

 

 

   Plaintiff respectfully requests that this court enter summary judgment in favor of the Plaintiff against the Defendant.

 

 

  In the alternative, the Plaintiff asks the Court, per Rule 56(d) to grant partiaul summary judgment as to each issue established as a matter of law:Existence of Contract between CHASE BANK and Defendant, Breach of that Contract, Assignment of the amount due under the Contract from CHASE BANK to the Plaintiff, and the Amount of Damages.

 

 

 

 

     I need to jump on this and am already searching some court cases to challenge the affidavit which is really the central portion of their case, additionally, they're claiming that my defense is only that I don't owe the money to CHASE BANK, which is completely inaccurate, they ignored my challenges to standing and are trying to assert that the Affidavit is a business record, even though the data its based on is the result of a third party.

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I don't know that they ignored your challenge of standing. They addressed it in this part:

 

Here the Bill of Sale language clearly establishes the mutual assent and there is no legal impediment to the sale of credit card accounts.  The signing parties are authorized representatives of each company and valuable consideration was passed between the parties.  The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee.

 

The problem they have with that part, is the affidavit.

 

First, does the affiant claim or demonstrate personal knowledge? (Personal knowledge is HUGE in an MSJ per the rule 56 that they are relying on).

 

Second, if there is no documentary evidence that supports the statement made in the affidavit that specifies your account being part of the sale, that statement is conclusory. Rule 56 also states 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 stated.

 

The affidavit must authenticate a document that would be admissible into evidence tying your account to the bill of sale. The affidavit is not evidence.

 

Attack the affidavit and stress that the bill-of-sale makes no reference to your account number and you will get past summary judgment. Any inference (assuming something is true based on surrounding evidence) must be in favor of the non-moving party, you.

 

Key words - personal knowledge, documentary evidence and conclusory.

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I don't know that they ignored your challenge of standing. They addressed it in this part:

 

Here the Bill of Sale language clearly establishes the mutual assent and there is no legal impediment to the sale of credit card accounts.  The signing parties are authorized representatives of each company and valuable consideration was passed between the parties.  The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee.

 

The problem they have with that part, is the affidavit.

 

First, does the affiant claim or demonstrate personal knowledge? (Personal knowledge is HUGE in an MSJ per the rule 56 that they are relying on).

 

Second, if there is no documentary evidence that supports the statement made in the affidavit that specifies your account being part of the sale, that statement is conclusory. Rule 56 also states 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 stated.

 

The affidavit must authenticate a document that would be admissible into evidence tying your account to the bill of sale. The affidavit is not evidence.

 

Attack the affidavit and stress that the bill-of-sale makes no reference to your account number and you will get past summary judgment. Any inference (assuming something is true based on surrounding evidence) must be in favor of the non-moving party, you.

 

Key words - personal knowledge, documentary evidence and conclusory.

 

 

 

     Here is the affidavit.

 

 

    I am employed as a Legal Specialist and have access to pertinent account records for MCM, servicer of this account on behalf of the plaintiff.  I am competent person(how do I know this?) over eighteen years of age and make the statements herein based upon personal knowledge of those accounts records maintained on plaintiff's behalf.  Plaintiff is the current owner of and or successor to the obligation sued upon, and was assigned all the rights, title and interest to CHASE BANK USA N.A. ACCT#.   I have access to and have reviewed all the records pertaining to the account and am authorized to make an affdavit on platinffi's behalf.

 

 

  I am familiar with manner and method by which MCM creates and maintains its business records pertaining to this account.  The records are kept in the regular course of business.  It was in the regular course of business for a person with knowledge of the act or event recoorded to make the record or data compliation, or for a person with knowledge to transmit information thereof to be included in such record.  In the regular course of business, the record or compliation is made at or near the time of the act or event.   The relevant financial information concerning the account includes the following:

 

  MCM's records show that the defendant(s) owed a balance of *****.   Such balance may continue to accrue interest at the rate set forth in the cardholder agreeement/original contract as required by law.

 

 

   END. 

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 For a valid assignment there must be "mutuality of assent, proper parties with the capacity to make a contract, consideration and legal subject matter."-Certified Collector, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P P .2d 769, 771(1977).  

 

Your counter affidavit or response to this one must claim there has never been any mutual assent. (account stated) or contract with plaintiff (breach of contract).

 

The signing parties are authorized representatives of each company and valuable consideration was passed between the parties. 

 

Where is the proof of transfer of title (forward flow documents)

 

 The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee.

Affiant lacks personal knowledge of day to day transactions of the Original Creditor. 

 

I have access to and have reviewed all the records pertaining to the account and am authorized to make an affdavit on platinffi's behalf.

Access and reviewed doesn't get it - business rule exception is quite clear on these requirements. 

 

familiar with manner and method by which MCM creates and maintains its business records pertaining to this account. 

No factual basis for personal knowledge of how records were created or maintained by the OC.

 

Hit their standing harder with case law. Look up rules of evidence Arizona for requirements of Breach of Contract and Requirements for Account Stated

 

BeerGoggles beat two of these in Arizona do a search on his reply's.

 

Also your trying to beat a MSJ and it just takes one triable fact to defeat their MSJ. Try to search and dig up 5 or 6 and respond to their reply.

 

HP

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 For a valid assignment there must be "mutuality of assent, proper parties with the capacity to make a contract, consideration and legal subject matter."-Certified Collector, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P P .2d 769, 771(1977).  

 

Your counter affidavit or response to this one must claim there has never been any mutual assent.

 

The signing parties are authorized representatives of each company and valuable consideration was passed between the parties. 

 

Where is the proof

 

 The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee.

Affiant lacks personal knowledge of day to day transactions. 

 

I have access to and have reviewed all the records pertaining to the account and am authorized to make an affdavit on platinffi's behalf.

Access and reviewed doesn't get it - business rule exception is quite clear on these requirements

 

familiar with manner and method by which MCM creates and maintains its business records pertaining to this account. 

No factual basis for personal know how records were created or maintained by the OC.

 

Hit their standing harder with case law. Look up rules of evidence Arizona for requirements of Breach of Contract and Requirements for Account Stated

 

HP

 

 

 

   Along with a response, should I also file a MTS and really go after the Affidavit? 

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Here is part of whay I've put together thus far

 

 

"

Affiant is a direct employee of the Plaintiff.  She  claims personal knowledge of the Plaintiff’s records but has no knowledge as to how records were originally produced by the alleged original creditor or acquired by the Plaintiff.  The rules regarding the business records exemption for hearsay are quite specific.

 

 

[R]ule 803(6) requires either the custodian of records or other qualified witness testify that the record was made 1) contemporaneously, or nearly so, with the underlying event; 2) by, or from information transmitted by, a person with first-hand knowledge acquired in the course of a regularly conducted business activity; 3) completely in the course of that activity; and 4) as a regular practice for that activity.

McCurdy, 216 Ariz. at 572-73, ¶ 9, 169 P.3d at 935-36; Ariz. R. Evid. 803(6).

 

     Under these standards, the Affidavit of affiant must be regarded as hearsay.   Her remarks are conclusory and she can not demonstrate familiarity with the creation of the account through the alleged original creditor, Chase Bank USA. 

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Plaintiff is a Valid Assignee of CHASE BANK

 

The affidavit attached to Plaintiff's complaint states that the Plaintiff is the assignee of all of the rights under the contract.   The affidavit lists the specific account number referenced on the statements attached in Exhibit A to Plaintiff's Motion for Summary Judgment.   Together with the Bill of Sale, the assignment is valid as a matter of law.  For a valid assignment there must be "mutuality of assent, proper parties with the capacity to make a contract, consideration and legal subject matter."-Certified Collector, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P P .2d 769, 771(1977).   Here the Bill of Sale language clearly establishes the mutual assent and there is no legal impediment to the sale of credit card accounts.  The signing parties are authorized representatives of each company and valuable consideration was passed between the parties.  The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee.

 

 

In my opinion, that paragraph shows desperation.  They know the bill of sale proves nothing other than a sale of some accounts to Midland.

 

"The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee."

 

All you have to have to prove your case is an affidavit?  If affidavits are that's needed, then why does anyone have to bother with evidence?

 

Note that in Certified Collectors, Inc. v. Lesnick, the court dismissed the case against the defendant because Certified Collectors failed to prove a valid assignment.  Nothing was mentioned about an affidavit as Midland implies by stating "The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee."

 

The court didn't say that an affidavit providing certain details from Certified Collectors would have been sufficient to prove a valid assignment.  In fact, the court made no reference to an affidavit at all.

 

Midland brought the Certified Collectors case, so use it against them.

 

It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.  Certified Collectors, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P.2d 769, 771 (1977).

 

That citation indicates 2 requirements.

 

1.  there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action

2.  the subject matter of the assignment must be described sufficiently to make it capable of being readily identified

 

The bill of sale does not meet either of those requirements.

 

Back to their affidavit.  They claim that the inclusion of the account number in the affidavit along with the unspecific bill of sale serves to prove a valid assignment.  That is not what is stated in the citation.

 

It says "evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action".  The operative phrase is "evidence of an intent to assign or transfer".

 

Who allegedly intended to assign or transfer?  Not Midland.  It was Chase who was assigning or transferring.  Therefore, Chase had to show there was an intent to assign or transfer some specific debt which, in this case, would be an account that was allegedly owed by you.

 

By claiming the inclusion of the alleged account number in the affidavit proves a valid assignment, Midland, who is not the alleged Assignor, is attempting to show intent.  They are attempting to show the intent of the alleged Assignor, Chase Bank. 

 

Midland was not the Assignor and cannot show what was intended by the alleged Assignor.  Only the alleged Assignor can evidence what was intended to be assigned or transferred.

 

The bill of sale not comply with the requirements of a valid assignment as described the court in Certified Collectors, Inc. v. Lesnick.  The bill of sale offers no evidence that Chase Bank, the alleged Assignor, intended to assign an account allegedly owed by you to Midland.

 

The only so-called evidence of the intent of Chase Bank is Midland's unproven claim.

 

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In my opinion, that paragraph shows desperation.  They know the bill of sale proves nothing other than a sale of some accounts to Midland.

 

"The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee."

 

All you have to have to prove your case is an affidavit?  If affidavits are that's needed, then why does anyone have to bother with evidence?

 

Note that in Certified Collectors, Inc. v. Lesnick, the court dismissed the case against the defendant because Certified Collectors failed to prove a valid assignment.  Nothing was mentioned about an affidavit as Midland implies by stating "The affidavit of affiant makes the account tied to the Bill of Sale "capable of being readily identified."  Id.  As a result, the Plaintiff is a valid assignee."

 

The court didn't say that an affidavit providing certain details from Certified Collectors would have been sufficient to prove a valid assignment.  In fact, the court made no reference to an affidavit at all.

 

Midland brought the Certified Collectors case, so use it against them.

 

It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified.  Certified Collectors, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P.2d 769, 771 (1977).

 

That citation indicates 2 requirements.

 

1.  there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action

2.  the subject matter of the assignment must be described sufficiently to make it capable of being readily identified

 

The bill of sale does not meet either of those requirements.

 

Back to their affidavit.  They claim that the inclusion of the account number in the affidavit along with the unspecific bill of sale serves to prove a valid assignment.  That is not what is stated in the citation.

 

It says "evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action".  The operative phrase is "evidence of an intent to assign or transfer".

 

Who allegedly intended to assign or transfer?  Not Midland.  It was Chase who was assigning or transferring.  Therefore, Chase had to show there was an intent to assign or transfer some specific debt which, in this case, would be an account that was allegedly owed by you.

 

By claiming the inclusion of the alleged account number in the affidavit proves a valid assignment, Midland, who is not the alleged Assignor, is attempting to show intent.  They are attempting to show the intent of the alleged Assignor, Chase Bank. 

 

Midland was not the Assignor and cannot show what was intended by the alleged Assignor.  Only the alleged Assignor can evidence what was intended to be assigned or transferred.

 

The bill of sale not comply with the requirements of a valid assignment as described the court in Certified Collectors, Inc. v. Lesnick.  The bill of sale offers no evidence that Chase Bank, the alleged Assignor, intended to assign an account allegedly owed by you to Midland.

 

The only so-called evidence of the intent of Chase Bank is Midland's unproven claim.

 

 

 

 

     I was surprised to see them cite that particular case as I had cited it in my Response to their MSJ.   I'm somewhat less surprised that they cited it out of context and were attempting to make it mean something that it really doesn't.   I'm definitely going to include that as a response to their 2nd paragraph.  

 

 

 

   I'm looking to further attack their affidavit, have been scouring for court cases that would challenge it but so far everything I've seen is mostly out of state.   I found one case from an Appeals Court that can't be cited but reading through it gave me a few clues, in that case, the Appeals court regarded an affidavit from the ORIGINAL CREDITOR as hearsay because it did nothing to authenticate a series of billing statements since the affiant was not involved in the production of those statements.  

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No foundation has been laid for that affidavit. Its the same one that I've seen here in Illinois before. No foundation = weak house of cards.

 

 

  Can you elaborate further?   I understand that there's no foundation for the billing statements as they cannot be authenticated so they can also be regarded as hearsay.  

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As always BV80 and gwheelock,huey are on the job.

An affidavit is a substitute for direct testimony offered on the witness stand.
It is subject to all of the same rules that govern the admission of live testimony.
Accordingly, the preparation of an affidavit should present the testimony in the same way it would be presented if the attorney were conducting a direct examination. The affidavit must lay all the necessary evidentiary foundations to support the conclusion the attorney seeks to have the court draw, without presenting the testimony in a way that is forbidden (for example, by offering
conclusions of law, or opinions).
All evidence must be admissible and persuasive, or it is worthless. To be admissible, testimony in an affidavit must be offered by a competent witness.To be persuasive, the affidavit must be trustworthy. The court must have confidence that the information being offered is correct.

A competent witness has first hand knowledge of the facts related. That means the witness personally observed the facts being offered. If the witness does not have personal knowledge of the facts, that witness is not competent and the facts are not admissible.Just my 2 cents

 

In order to properly offer a business record into evidence, two foundations must

be established. A “foundation” is a sequence of facts that lead the court to the

logical conclusion that the offered evidence meets the criteria for admission.

The first “foundation” the witness must lay is authentication or identification of

the document being offered. That is, the witness must say what the document is.

This means the document should be attached to the affidavit as an exhibit and

the witness should refer to it.

 

Second, the witness must offer all of the elements of the exception to the

hearsay rule. That is, the witness must testify:

1. that the record was made by a person with first hand knowledge,

2. at or about the time of the event described,

3. that it was the regular practice of the business to make this type

of record, and

4. that this particular record was made and kept in the course of

that regularly conducted business activity.

Note that the affiant does not necessarily need to identify each person who

made each entry in the record to be admitted. A payment history, for example,

may be created by a number of people depending on who entered the various

payments and charges. A set of servicing notes may include entries by a number

of people, and the affiant may not know all of them. But the affiant knows that

when payments are received, the general practice is that information about the

particular payment is recorded by a person who has first hand knowledge about

the amount of that payment. It is enough that the affiant knows that the record

is typically made by persons with firsthand knowledge of the facts.

Don’t forget about persuasion. Laying these foundations is not just important to

cover the technical bases for admission of the documents that establish the facts

you need to obtain a judgment. They are also intended to persuade the court that

the evidence you are offering is reliable and “worthy,” and that you are entitled

to the relief you are seeking.

 

 

 



 

 


 




 

 

 

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As always BV80 and gwheelock,huey are on the job.

An affidavit is a substitute for direct testimony offered on the witness stand.

It is subject to all of the same rules that govern the admission of live testimony.

Accordingly, the preparation of an affidavit should present the testimony in the same way it would be presented if the attorney were conducting a direct examination. The affidavit must lay all the necessary evidentiary foundations to support the conclusion the attorney seeks to have the court draw, without presenting the testimony in a way that is forbidden (for example, by offering

conclusions of law, or opinions).

All evidence must be admissible and persuasive, or it is worthless. To be admissible, testimony in an affidavit must be offered by a competent witness.To be persuasive, the affidavit must be trustworthy. The court must have confidence that the information being offered is correct.

A competent witness has first hand knowledge of the facts related. That means the witness personally observed the facts being offered. If the witness does not have personal knowledge of the facts, that witness is not competent and the facts are not admissible.Just my 2 cents

 

In order to properly offer a business record into evidence, two foundations must

be established. A “foundation” is a sequence of facts that lead the court to the

logical conclusion that the offered evidence meets the criteria for admission.

The first “foundation” the witness must lay is authentication or identification of

the document being offered. That is, the witness must say what the document is.

This means the document should be attached to the affidavit as an exhibit and

the witness should refer to it.

 

Second, the witness must offer all of the elements of the exception to the

hearsay rule. That is, the witness must testify:

1. that the record was made by a person with first hand knowledge,

2. at or about the time of the event described,

3. that it was the regular practice of the business to make this type

of record, and

4. that this particular record was made and kept in the course of

that regularly conducted business activity.

Note that the affiant does not necessarily need to identify each person who

made each entry in the record to be admitted. A payment history, for example,

may be created by a number of people depending on who entered the various

payments and charges. A set of servicing notes may include entries by a number

of people, and the affiant may not know all of them. But the affiant knows that

when payments are received, the general practice is that information about the

particular payment is recorded by a person who has first hand knowledge about

the amount of that payment. It is enough that the affiant knows that the record

is typically made by persons with firsthand knowledge of the facts.

Don’t forget about persuasion. Laying these foundations is not just important to

cover the technical bases for admission of the documents that establish the facts

you need to obtain a judgment. They are also intended to persuade the court that

the evidence you are offering is reliable and “worthy,” and that you are entitled

to the relief you are seeking.

 

 

 

 

 

 

 

 

 

 

 

 

   Thanks.   This is my response to the Affidavit portion, I have a couple case laws that I will cite here as well in addition. 

 

 

 

Affiant is a direct employee of the Plaintiff.  She  claims personal knowledge of the Plaintiff’s records but has no knowledge as to how those records were originally produced by the alleged original creditor or acquired by the Plaintiff.  The rules regarding the business records exemption for hearsay are quite specific.

 

[R]ule 803(6) requires either the custodian of records or other qualified witness testify that the record was made 1) contemporaneously, or nearly so, with the underlying event; 2) by, or from information transmitted by, a person with first-hand knowledge acquired in the course of a regularly conducted business activity; 3) completely in the course of that activity; and 4) as a regular practice for that activity.

McCurdy, 216 Ariz. at 572-73, ¶ 9, 169 P.3d at 935-36; Ariz. R. Evid. 803(6).

 

     Under these standards, the Affidavit of affiant must be regarded as hearsay.   Her remarks are conclusory and she can not demonstrate familiarity with the creation of the account through the alleged original creditor, Chase Bank USA.   This is important as there’s no way verify the validity of a debt without having full knowledge of its origin.  

 

 Additionally, Chase Bank USA has had a myriad of problems and has been investigated for fraud and inconsistent account balances and recordkeeping as shown in the attached Exhibit C.  These problems occurred during the time of the alleged account.  Plainly, affiant can not speak of personal knowledge of an account that she was not a party to.   Her knowledge is limited to the scope of what her employer, the Plaintiff, has provided her with and nothing else.

 

  In junk debt buyer situations, the original creditor does not provide any sort of implied warranty or any guarantees as to the accuracy of any accounts sold.  Information is only as good as its source and claiming “personal knowledge” of business records obtained from a third party source is hearsay.  How can you verify the accuracy of records that were created and maintained by someone else, sold without any guarantee as to their accuracy.

 

 

   One cannot simply obtain records from another business and claim them as their own business records.   The Affidavit provided by the Plaintiff lacks proper foundation and cannot be used to support other third party documents  generated by the alleged originalc creditor, Chase Bank USA.

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Plaintiff is the current owner of and or successor to the obligation sued upon, and was assigned all the rights, title and interest to CHASE BANK USA N.A. ACCT#.

 

No proof of this statement except for Midland's claim that they were assigned the account. 

 

 

I have access to and have reviewed all the records pertaining to the account and am authorized to make an affdavit on platinffi's behalf.

 

If the affiant is basing her statements on the records that have been provided to you, then her statement that the account in question was assigned to Midland is unsupported.   Since the bill of sale offered by the plaintiff does not show that Chase, the alleged Assignor, intended to include any account allegedly owed by you in a sale of accounts to Midland, it is unclear what record the affiant allegedly viewed to support her statement that Midland was assigned the account in question.

 

 

 

I am familiar with manner and method by which MCM creates and maintains its business records pertaining to this account.

 

 

Look closely at her statement.  She is familiar with the manner and method by which MCM creates and maintains ITS business records. 

 

Midland will claim that "maintains it records" means any record they have on the account including records from other entities.  They maintain records they get from other business.  But that's not what she says.

 

She says creates and maintains.    First, MCM did not create the billing statements or the bill of sale.  Then you have the word "and".  She put the 2 actions (creates, maintains) together by connecting them with the word "and".  That word means "together with".  Therefore, creating and maintaining go together.

 

She did not say "creates OR maintains".  That would imply creation of records OR maintenance of records...either one..one or the other.   By connecting the words with the word "and", she stated that she was familiar with records they create and the maintenance of those same records that they created.

 

Notice that she did not mention Chase's records at all.   Now go to the next few sentences:

 

 

The records are kept in the regular course of business.  It was in the regular course of business for a person with knowledge of the act or event recoorded to make the record or data compliation, or for a person with knowledge to transmit information thereof to be included in such record.  In the regular course of business, the record or compliation is made at or near the time of the act or event.

 

Since she did not refer to Chase's records, and she only claimed she was familiar with the creation and maintenance of MCM's records, the above statements have to be in reference to records created by MCM or Midland.  Her statements cannot be in reference to Chase's records.  She's stating that MCM's records are kept in the regular course of business.  It was in the regular course of business for a person with knowledge of the act or event recoorded to make the record or data compliation, or for a person with knowledge to transmit information thereof to be included in MCM's records.  In the regular course of MCM's business, the record or compliation is made at or near the time of the act or event.

 

As a result, the billing statements and the bill of sale have not been authenticated.  The affidavit is insufficient to lay a proper foundation for the admission of those records.

 

Further proof:

 

 

MCM's records show that the defendant(s) owed a balance of *****.   Such balance may continue to accrue interest at the rate set forth in the cardholder agreeement/original contract as required by law.

 

Again, no mention is made of Chase.  She says "MCM's records". 

 

Not once in that affidavit did she claim to have reviewed any records created by Chase.  The affidavit is not only insufficient to lay the foundation for the admission of alleged Chase records, it's also insufficient to support a motion for summary judgment.

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*Updated Reply Addressing Their Affidavit*     Tell me if this is too much. 

 

 

        Affidavit of affiant is Inadmissible Hearsay

  Affiant affiant is a direct employee of the Plaintiff.  She claims personal knowledge of the Plaintiff’s records but has no knowledge as to how those records were originally produced by the alleged original creditor or acquired by the Plaintiff.  The rules regarding the business records exemption for hearsay are quite specific.

 

[R]ule 803(6) requires either the custodian of records or other qualified witness testify that the record was made 1) contemporaneously, or nearly so, with the underlying event; 2) by, or from information transmitted by, a person with first-hand knowledge acquired in the course of a regularly conducted business activity; 3) completely in the course of that activity; and 4) as a regular practice for that activity.

McCurdy, 216 Ariz. at 572-73, ¶ 9, 169 P.3d at 935-36; Ariz. R. Evid. 803(6).

 

     Under these standards, the Affidavit of affiant does not qualify and must be regarded as hearsay.   Her remarks are conclusory and she can not demonstrate familiarity with the creation of the account through the alleged original creditor, Chase Bank USA.   This is important as there’s no way verify the validity of a debt without having full knowledge of its origin.  At no point in the Affidavit does the Affiant mention having knowledge of Chase Bank USA’s records and the process by which they are created, maintained and transferred and how what the expected accuracy of those records might be.

“Competency to testify must be established by evidence of the offeror's familiarity with the preparer or the manner in which the documents were prepared.” State v. Johnson, 184 Ariz. 521, 524, 911 P.2d 527, 530 (App. 1994)

 

 

 Additionally the Affidavit itself is not a business record of any sort but simply a form designed for the purpose of aiding litigation.  

 

t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like[,] these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.  Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943).

 

A document prepared for the purposes of litigation is not a business record because it is lacking in trustworthiness. Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981)

 

Memoranda which are not typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls are not in the class of records made "in the regular course of business." Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719 (1943).

 

 

Additionally, Chase Bank USA has had a myriad of problems and has been investigated for fraud and inconsistent account balances and recordkeeping as shown in the attached Exhibit C.  These problems occurred during the time of the alleged account. 

 

Plainly, affiant can not speak of personal knowledge of an account that she was not a party to nor involved in the slightest.  How can her claims be considered relevant when the third party business records of whom those claims are allegedly based on, has had so many problems with account integrity.   

 

“Because the affidavit in support of summary judgment did not contain admissible evidence of the Developer's liability for assessments, interest, and late charges, the Association did not establish a prima facie case against the Developer entitling it to summary judgment.” VILLAS AT HIDDEN LAKES v. GEUPEL CONST., 847 P. 2d 117 - Ariz: Court of Appeals, 1st Div., Dept. D 1992

 

  In junk debt buyer situations, the original creditor does not provide any sort of implied warranty or any guarantees as to the accuracy of any accounts sold.  Information is only as good as its source and claiming “personal knowledge” of business records obtained from a third party source is hearsay.  How can you verify the accuracy of records that were created and maintained by someone else, sold without any guarantee as to their accuracy?

   In essence, the Plaintiff seems to be arguing that they can take a file of business records, take all the paperwork out of the file, place them in a new file and as a result call them their own business records.

 

And while conclusory affidavits stating liquidated amounts may be sufficient in the default context, the Allens appeared and defended in this action. That appearance required Wells Fargo to carry its burden of proof with admissible evidence — whether on summary judgment or at trial.  WELLS FARGO BANK, NA v. Allen Ariz: Court of Appeals, 1st Div., Dept. D, 2012

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I'm not sure about this part:

 

 

 

 Additionally the Affidavit itself is not a business record of any sort but simply a form designed for the purpose of aiding litigation.

 

 

You're correct that an affidavit is not a business record, but it's also not just a form designed for the purpose of aiding litigation.   An affidavit is testimony.  It's a necessary and required document.  Therefore, you can't claim that it's untrustworthy because it was prepared for litigation.  All affidavits are prepared for litigation.  if the fact that it was prepared for litigation makes it untrustworthy, your affidavit could be deemed untrustworthy, as well. 

 

What you want to point out is that it doesn't serve the purpose(s) for which it was intended.  It was intended to lay the proper foundation for the admission of Chase's records and also to support summary judgment.

 

The State v. Johnson citation is a good one.  She claims to have viewed all the records pertaining to the account, but she doesn't specify which records.  She makes no mention of the records of Chase Bank.  She refers to her knowledge of MCM's creation and maintence of records.  In the last sentence, she states that "MCM's records show...".  Again, no mention of Chase's records.  

 

Because she failed to reference the alleged records of Chase Bank, she also failed to establish familiarity with manner in which those documents were prepared. (the State v. Johnson  citation)  The affidavit does not comply with Rule of Evidence 803(6).  The billing statements and bill of sale are inadmissible hearsay.

 

Then I would point out that the affidavit is also insufficient to support a motion for summary judgment.

 

She claims Midland was assigned all rights to the account in question.   None of the records provided to you support that statement.  Point out that it's unclear as to what record she viewed that indicated any account allegedly owed by you was by Chase to Midland because none of the business records provided to you support such a claim.  Nor does the affiant explain how she came to that conclusion. 

 

She's making a claim based upon a record that doesn't seem to exist.  The affiant's statement that Midland was assigned the account in question is unsupported and, therefore, conclusory which does not support a motion for summary judgment.

 

Chess v. Pima County, 126 Ariz. 233, 235, 613 P.2d 1289, 1291 (App. 1980) (conclusory affidavit did not comply with rule governing affidavits submitted in support of motion for summary judgment).

 

Rule 56(e) is explicit in requiring that "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." (Emphasis added.)  Obviously mere conclusions of ultimate fact as are permitted in pleadings and conclusions of law do not meet this test. Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963).

 

She never claimed to have personal knowledge of Chase's business records.  She only claims to have knowledge of records created by her employer, MCM.  Because the affiant did not claim to have knowledge of the records of Chase Bank, there is no record from Chase Bank that specifies that the account in question was sold to Midland, the affiant is not an employee of Chase Bank, and she did not indicate what record she viewed that allegedly showed that Chase sold the specific account in question to MCM, she has not shown that she is competent to testify to the matters stated in the affidavit. 

 

As a result, the affidavit is insufficient to support a motion for summary judgment. 

 

Then you stress their failure to prove ownership of the account and standing to sue.  That's where the case law about a valid assignment comes in.  They haven't shown a valid assignment from Chase to Midland.   The bill of sale does not reference your name or the alleged account number.  In fact, it doesn't reference any specific accounts.  Therefore, it does not indicate which specific accounts Chase Bank, the Assignor, intended to assign or transfer to Midland.  It doesn't comply with the requirements of a valid assignment as set forth by the court in Certified Collectors, Inc, v. Lesnick.

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I'm not sure about this part:

 

 

You're correct that an affidavit is not a business record, but it's also not just a form designed for the purpose of aiding litigation.   An affidavit is testimony.  It's a necessary and required document.  Therefore, you can't claim that it's untrustworthy because it was prepared for litigation.  All affidavits are prepared for litigation.  if the fact that it was prepared for litigation makes it untrustworthy, your affidavit could be deemed untrustworthy, as well. 

 

What you want to point out is that it doesn't serve the purpose(s) for which it was intended.  It was intended to lay the proper foundation for the admission of Chase's records and also to support summary judgment.

 

Remember she claims to have viewed all the records pertaining to the account.  In the next sentence, she claims Midland was assigned all rights to the account in question.   None of the records provided to you support that statement.  Point out that it's unclear as to what record she viewed that indicated any account allegedly owed by you was by Chase to Midland because none of the business records provided to you support such a claim.  Nor does the affiant explain how she came to that conclusion. 

 

She's making a claim based upon a record that doesn't seem to exist, and she makes no mention of Chase's records.  She didn't authenticate anything.

 

The affiant's statement that Midland was assigned the account in question is unsupported and, therefore, conclusory. 

 

Then I would point out that the affidavit is insufficient to support a motion for summary judgment.

 

Rule 56(e) is explicit in requiring that "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." (Emphasis added.)  Obviously mere conclusions of ultimate fact as are permitted in pleadings and conclusions of law do not meet this test. Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963).

 

She never claimed to have personal knowledge of Chase's business records.  She only claims to have knowledge of records created by her employer, MCM.  Because the affiant did not claim to have knowledge of the records of Chase Bank, there is no record from Chase Bank that specifies that the account in question was sold to Midland, the affiant is not an employee of Chase Bank, and she did not indicate what record she viewed that allegedly showed that Chase sold the specific account in question to MCM, she has not shown that she is competent to testify to the matters stated in the affidavit. 

 

As a result, the affidavit is insufficient to support a motion for summary judgment. 

 

Then you stress their standing to sue.  That's where the case law about a valid assignment comes in.  They haven't shown a valid assignment from Chase to Midland.   The bill of sale does not reference your name or the alleged account number.  In fact, it doesn't reference any specific accounts.  Therefore, it does not indicate which specific accounts Chase Bank, the Assignor, intended to assign or transfer to Midland.  It doesn't comply with the requirements of a valid assignment as set forth by the court in Certified Collectors, Inc, v. Lesnick.

 

In regards to the Affidavit, Midland has been trying to argue that the Affidavit is not hearsay because it was produced in the regular course of business, however, I can't think of any legitimate businesses purposes that this would be used for other than litigation.   There's nothing else that they would use this Affidavit for, making the Affidavit itself question, supported by some of the cases I cited such as this one.

 

"A document prepared for the purposes of litigation is not a business record because it is lacking in trustworthiness. Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981)"

 

 

    I agree that I can word it better, but I want to get off the idea that this is a legitimate business record that they would use for any number of purposes. 

 

 

 

 

   I amended the first part to read like this

 

 

  Affiant  is a direct employee of the Plaintiff.  She claims personal knowledge of the Plaintiff’s records but has no knowledge as to how those records were originally produced by the alleged original creditor or acquired by the Plaintiff.  Her interpretation of records reviewed is vague and makes it unclear how she reached her conclusions in regards to records pertaining to Chase Bank USA that she has no personal knowledge of.  As a result, affiant is not qualified to set a foundation for the admission of any documents that originated from the alleged original creditor Chase Bank USA.

 

             “Generally, an employee of a debt buyer is not competent to offer testimony concerning the records of an assignor.  Ms. Lark is not an employee of the original creditor (Sears) and cannot authenticate documents from another business. This affidavit is also conclusory and fails to establish a prima facie case.” PRA III, LLC v. Mac Dowell, 15 Misc. 3d 1135A, 841 N.Y.S.2d 822 (N.Y. Civ. Ct. 2007).

 

Rule 56(e) is explicit in requiring that "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." (Emphasis added.)  Obviously mere conclusions of ultimate fact as are permitted in pleadings and conclusions of law do not meet this test. Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963)."

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In regards to the Affidavit, Midland has been trying to argue that the Affidavit is not hearsay because it was produced in the regular course of business, however, I can't think of any legitimate businesses purposes that this would be used for other than litigation.   There's nothing else that they would use this Affidavit for, making the Affidavit itself question, supported by some of the cases I cited such as this one.

 

"A document prepared for the purposes of litigation is not a business record because it is lacking in trustworthiness. Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981)"

 

 

 

Arguing that an affidavit is untrustworthy because it was prepared for litigation doesn't work.  They HAVE to submit an affidavit.  It's required.  When an afffidavit is required in order to authenticate documents or support a motion, you can't say untrustworthy because it was prepared for litigation.  Of course it was prepared for litigation, but the court rules require them to prepare it.

 

An example of a document prepared for litigation would be a summary of an account that was prepared using a bunch of other business records, but those business are not provided.  There's only the summary.  That summary was prepared for litigation and there's nothing to support the information in it.  It's also not an affidavit that is made under oath and notarized.  It's strictly an unsworn document that was prepared to support that party's claims.

 

I like the last 2 case law citations.  Those are good.  I made some changes in my previous post.  Check them out when you get a chance.

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Arguing that an affidavit is untrustworthy because it was prepared for litigation doesn't work.  They HAVE to submit an affidavit.  It's required.  When an afffidavit is required in order to authenticate documents or support a motion, you can't say untrustworthy because it was prepared for litigation.  Of course it was prepared for litigation, but the court rules require them to prepare it.

 

An example of a document prepared for litigation would be a summary of an account that was prepared using a bunch of other business records, but those business are not provided.  There's only the summary.  That summary was prepared for litigation and there's nothing to support the information in it.  It's also not an affidavit that is made under oath and notarized.  It's strictly an unsworn document that was prepared to support that party's claims.

 

I like the last 2 case law citations.  Those are good.  I made some changes in my previous post.  Check them out when you get a chance.

 

 

   I understand, I re-worded it simply to be able to cite case law, to express disbelief that they could try to legitimize the Affidavit through the business records exception.   As for the rest, I've added a ton of case law, if anything I worry it might be too wordy, I've got 7 pages total which includes commentary and case law addressing Midland's various claims and assorted BS.  

 

 

   I did see the re-wording you made previously, that's definitely a better way of stating what I'm trying to get across to the Court, to build up the expectation that this Affidavit is pure hearsay and is inadmissible and not applicable to the business records exception.

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You need to make sure that you can reply to their reply.  I honestly don't know if that's allowed.  Hopefully, some AZ posters will chime in.

 

By the way, it's not that the affidavit is not applicable to the business records exception.  The affidavit is simply to show that the business records are admissible under Rule 803(6). The purpose of 803(6) is to admit business records into evidence.  They can only be admitted if there is an affidavit or a live witness who can lay the foundation for their admission.  That foundation is the listed requirements in the rule (made in the regular course of business, etc.)

 

You want to say that the affidavit does not comply with the requirements of 803(6).  Therefore, the affidavit does not lay the proper foundation for the admission of billing statements and bill of sale under the business records exception (803(6)).

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Keep in mind, an affidavit is hearsay. That is a fact. You attack an affidavit saying it is hearsay. They know it is. For that matter, the bililng statements and the bill of sale are hearsay... until they're authenticated. Then they are admissible hearsay. Still hearsay, just admissible. Question their admissibility, not the fact that they are hearsay.

 

When the affiant states that "records were reviewed", if they don't attach and identify which records, how do you know that the document the plaintiff is trying to introduce is part of the "records" that were reviewed? You don't. They could attach ANYTHING to that affidavit and call it evidence if it was not necessary to identify it in the affidavit.

 

They want to get the records in under the business records exception to hearsay using that affidavit as testimony.

 

Imagine how stupid it would sound if this affidavit was live testimony.

 

Q:  Did you check this bill-of-sale for accuracy?

 

A:  I reviewed the records.

 

Q:  Yes, but did you review this bill-of-sale?

 

A:  I reviewed the records.

 

Q:  Was the bill-of-sale part of those records?

 

A:  I reviewed the records.

 

Q:  OK. When was the bill-of-sale generated?

 

A:  In the normal course of business.

 

Q:  Sorry, I mean on what date?

 

A:  In the normal course of business.

 

Q:  You say the information was transmitted by a person with knowledge. What is their name, this person with knowledge?

 

A:  A person with knowledge.

 

Q:  How do you know they have knowledge?

 

A:  A person with knowledge.

 

No more questions.

 

Believe it or not, if this was a good affidavit, that could have made sense. A mere recitation of the requirements of the business records exception does not in any way satisfy those requirements.

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When the affiant states that "records were reviewed", if they don't attach and identify which records, how do you know that the document the plaintiff is trying to introduce is part of the "records" that were reviewed? You don't. They could attach ANYTHING to that affidavit and call it evidence if it was not necessary to identify it in the affidavit.

 

That's what I was pointing out, as well.  There's AZ case law that says an assignment has to show what was intended to be assigned.  Needless to say, the bill of sale doesn't show what specific debt was assigned.  The affiant claimed she reviewed the records, and then stated that Chase sold the account to Midland.  However, the records provided to the OP don't show which accounts were sold.   Nothing supports her claim.  Based upon what's been provided to SanTanStan, the affiant is making a claim based upon non-existent information.

 

Since the case law says an assignment has to be specific and show what was assigned, Midland is trying to complete the assigmment by stating in the affidavit that the OP's debt was included.  That doesn't complete the assignment.

 

The case law says the assignment has to evidence what was intended to be assigned or transferred.  Well, who does the assigning or transferring?  It's done by the Assignor which is Chase Bank.  It's Chase who has to show what was intended to be assigned.  Midland is not the Assignor.  They can't try to evidence the intent of what was to be assigned which is what they're trying to do with the affidavit.

 

Even if the affidavit isn't thrown out, a valid assignment still has not been shown because there's nothing from Chase that states Chase's intent to include certain specific accounts in the sale.

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Here is part of whay I've put together thus far

 

 

"

Affiant is a direct employee of the Plaintiff.  She  claims personal knowledge of the Plaintiff’s records but has no knowledge as to how records were originally produced by the alleged original creditor or acquired by the Plaintiff.  The rules regarding the business records exemption for hearsay are quite specific.

 

 

[R]ule 803(6) requires either the custodian of records or other qualified witness testify that the record was made 1) contemporaneously, or nearly so, with the underlying event; 2) by, or from information transmitted by, a person with first-hand knowledge acquired in the course of a regularly conducted business activity; 3) completely in the course of that activity; and 4) as a regular practice for that activity.

McCurdy, 216 Ariz. at 572-73, ¶ 9, 169 P.3d at 935-36; Ariz. R. Evid. 803(6).

 

     Under these standards, the Affidavit of affiant must be regarded as hearsay.   Her remarks are conclusory and she can not demonstrate familiarity with the creation of the account through the alleged original creditor, Chase Bank USA. 

 

 

Now read what is in post 3

 

 

It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compliation, or for a person with knowledge to transmit information thereof to be included in such record

 

This is how they cover themselves. They comply with the wording of the statute, and never claim to have personal knowledge of the OC's records. They just say that they got them from someone who does. That's the person you have to go after. Find out who they are in discovery, and subpoena them. You can have lots of fun questioning them about your account. Of course they won't know a darn thing about it.

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One thing I also noticed while reviewing the data Midland provided during discovery is that there's a substantial amount of statements missing.   Midland is claiming that the account was opened in 2005 according to their computer screen printout, yet all their statements are from 2008 or later and the generic credit card agreement is from 2008 as well, they start off showing 3/4 of the balance already existing without accounting for how it was generated whatsoever. 

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Now read what is in post 3

 

 

It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compliation, or for a person with knowledge to transmit information thereof to be included in such record

 

This is how they cover themselves. They comply with the wording of the statute, and never claim to have personal knowledge of the OC's records. They just say that they got them from someone who does. That's the person you have to go after. Find out who they are in discovery, and subpoena them. You can have lots of fun questioning them about your account. Of course they won't know a darn thing about it.

 

 

   I'm already through Discovery, Midland filed MSJ, I opposed, they replied to my Opposition, I'm replying to that here.   I requested a great deal of information through Discovery, very little was sent to me, all I received was:

 

 

 

 

 

A generic cardholder agreement from 2008

 

 

18 months of statements

 

 

A computer screen print-out from Midland, attesting to be based on data provided by Chase.   With something like this I think Re: Vee Vinhnee in regards to authentication of electronic records is helpful in responding to this document. 

 

A Closing Statement between Chase and Midland that is virtually 100% redacted other than dates and signatures at the bottom.

 

A Bill of Sale, showing a date, more redacted info about accounts and a brief open-ended warranty that refers to a Credit Card Account Purchase Agreement which is not provided.

 

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

 

 

      They're trying to cover the bases in regards to that, however their own affiant can't attest to the accuracy of this data itself, additionally the Bill of Sale doesn't refer to a single individual account, the Closing Statement itself lists "number of accounts", "total unpaid balance", "purchase price percentage" and "purchase price", all redacted, there is no specific identifying information on those.

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A Bill of Sale, showing a date, more redacted info about accounts and a brief open-ended warranty that refers to a Credit Card Account Purchase Agreement which is not provided.

 

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

 

 

1.  That warranty contains the language required by an affidavit for the purpose of 803(6), but it is not an affidavit. 

 

2.  Midland didn't create the bill of sale that contains that warranty.

 

3.  The affiant did not make any reference to Chase documents, so the Chase documents including the bill of sale that contains that warranty have not been authenticated.

 

4.  That warranty doesn't specify any accounts.  It states "With respect to account information for the Accounts listed in the Final Data File".   That phrase doesn't prove your account is among the accounts in the Final Data File.

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