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Would like some suggestions (or more specifically a template) to assist in compiling a memorandum of points and authorities. Have already created the motion similar to Linda7's offered template.  The absence of Oregon Case Law is a challenge so can possibly use 9th District. 

 

Original Creditor - Chase Bank

Buyer #1 - Purchasers Advantage Colorado

Buyer #2 - Professional Bureau of Collections of Maryland (Colorado Same address as Buyer #1) Yeah! I know!

 

I realize this is not an account just a file of random numbers

The Complaint is for both Account Stated and Breach of Contract. Have answered and provided Defendants Affidavit of Denial for Plaintiff's NEW account. 

 

Thanking you in advance for your assistance.

 

HP

 

 

 

Memorandum of Points and Authorities for Motion to Strike Affidavit

 

"Plaintiff's Affidavit of Assignment of Rights"

 

This Affidavit of Assignment of Rights ("Assignment") is made and entered into as of

this ____ day of _____ 2012 by and between Purchasers Advantage, LLC, a

Colorado limited liability company with a place of business at 5295 DTC Parkway, Greenwood

Village, CO 80111 ("Assignor") and Professional Bureau of Collections ojf Maryland, Inc., a

Maryland Corporation with a place of business at 5295 DTC Parkway, Greenwood Village, CO

80111 ("Assignee"), both of whom may be collectively referred to throughout this Assignment

as "Parties," or individually as "Party."

 

Whereas, Assignor has purchased a file of certain charge-off accounts, which consists of certain

Wells Fargo accounts hereinafter referred to as the "Purchased Receivables" and

 

Whereas Assignor has forwarded the Purchased Receivables to Assignee for collection

activity; and 

 

Whereas Assignee has determined that certain of the Purchased Receivables are eligible

for Legal Action and wishes to take such legal action as contemplated, by Section 6 of that.

certain Collection Agreement ("Collection Agreement") made by and between the Parties on June 28th, 

2011; and

 

Whereas, Assignor wishes to grant formal written consent to Asignee to proceed with

such legal action as Assignee deems necessary to secure collection on the account

 

Now therefore, the Parties mutually agree to the following promises, the receipt and

sufficiency of consideration for which is hereby acknowledged!

 

I. Account. The following information and any corresponding account information which

shall be attached to this Assignment shall collectively be known as the "Account."

Account Holder: Huey Pilot

Account Number. xxxxxxxxxxxxxx9999

Holders Last Known Address: 5200 Airport Road. Cirrus, OR 97000

 

2.Assignment Assignor hereby assigns all rights title and interest in the aforementioned

Account to Assignee for the sole purpose of initiating legal action on and pursuing subsequent

collection activity on the judgment of the Account.

 

3. Acceptance. Pursuant to the requirements of the Collection Agreement, Assignee hereby

accepts the assignment of all right title and interest in the aforementioned Account to Assignee

for the sole purpose of initiatingj^gal jdion on and pursuing subsequent collection activity on

the judgment of the Account

 

IN WITNESS WHEREOF the Parties have executed this Assignment on the date first written

above.

 

s/s_Buyer #1

Purchasers Advantage

a Colorado Limited Liability Company

 

s/s    Buyer #2

Professional Bureau of Collections of

Maryland, Inc.

 

On this any day of Month 2012 before me undersigned, a Notary

Public in and for the State of Colorado personally appeared JDB Name #1 and JDB name #2,

to me personally known, who, being by me duly sworn, did say the within and foregoing

instrument was signed on behalf of said Buyer by authority of its Board of Directors; and that the

said person as such officer, acknowledged the execution of said instrument to be the voluntary

act and deed of said Buyer

 

Notary Stamp                     Notary Signature  (Kind of Bogus - may be a challenge?)

(Circle not Square)

(Missing Notary Number)

(absent expiration date)

 

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You should look at the rules of evidence, take the statute number, and search Oregon Courts on Google Scolar with the statute number as a keyword. You may also want to search Delaware where Chase is from, after all, they specify DE law in the cardholder agreement. One thing is unclear, you mention Wells Fargo, which is confusing

 

 

Whereas, Assignor has purchased a file of certain charge-off accounts, which consists of certain
Wells Fargo accounts hereinafter referred to as the "Purchased Receivables" and

 

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Thanks "Big Sis" that was helpful. 

 

Thanks Bruno - The account definitely is Wells Fargo and in my hurry to obfuscate search possibilities by wrong interests I overlooked one edit. As always your mastery of search terms and ability to make Google Scholar dance is amazing.

 

Best,

 

Huey

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I would suggest you check the CO rules for notaries.  If there a requirement that a date of expiration appear on an affidavit?

 

Is the notary number within the stamp? If not, then you need to find out if the notary's number is required to be included on the affidavit.

 

If either one or both of those are required, it's possible the affidavit could be deemed invalid.

 

Finally, is there a bill of sale from Wells Fargo to Purchaser's Advantage?

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Thanks BV 80,

1.

There is an affidavit of debt from one, Lisa O'Meara, claiming to be "The Loan Servicing Specialist of the Card Services Division of Wells Fargo Bank, N.A.("Creditor") (This is a Line of Credit Debt) and she is duly authorized by her employer Wells Fargo Bank, N.A. (title) and sworn to make the following statements:

 

In her three paragraphs of statements can be summed as:

 

  1. Due and payable an amount pursuant to terms and conditions of the account's agreement (the agreement)
  2. The account was, sold, transferred, assigned and converted to Purchasers Advantage LLC ("Buyer") No offsets!
  3. Creditor is the originator of the account and servicer. Due to non payment creditor sold charged off account to buyer.

s/s _________(affiants Signature

 

Correct Notary (Dallas, Iowa)

___________________________

 

2.

Affidavit of Assigned Rights  (Affidavit #2) (Plain paper no letter head - fabricated for legal action)

(This Affidavit Declares assignment between JDB #1 and JDB#2 for promise of receipt and sufficiency of consideration)

This is the one I posted earlier with the phony notary. (I believe it's an in house stamp - good enough for quick default)

 

Colorado Notary Requirements

Appointment for four years
CRS Title12-55-112.  Official signature - rubber stamp seal  - seal embosser - notary's 
electronic signature. (1)  At the time of notarization, a notary public shall sign his or her official 
signature on every notary certificate or, in the case of an electronic record, a notary public shall 
affix his or her electronic signature. 
 (2)  Under or near his or her official signature on every notary certificate, a notary public 
shall clearly and legibly stamp his or her official seal. The official notary seal must be 
rectangular. The official notary seal shall contain only the outline of the seal and the following 
information contained within the outline of the seal: 
 (a)  The printed legal name of the notary; 
 ( b  The notary's identification number, the notary's commission expiration date, the 
words "STATE OF COLORADO"; and 
 (c )  The words "NOTARY PUBLIC". 
 (2.3)  The fact that a notary attests to an instrument relating to real property by affixing a 
notary seal that is not in compliance with this section does not render the instrument or the 
attestation invalid or ineffective, nor does it render a title unmarketable. 
 (2.5)  A notary who obtained an official seal before August 8, 2012, may continue to use his or her seal 
until renewal of his or her notary commission. 
 (3)  Repealed. 
 (4)  A notary public shall not provide, keep, or use a seal embosser. 
 (4.5)  In the case of notarization of an electronic record, the application of a notary's 
electronic signature in lieu of a handwritten signature and rubber stamp seal is sufficient. A 
notary shall not use an electronic signature unless: 
 (a)  The notary uses a journal if maintaining the journal is required by section 12-55-111; 
and 
 ( b  The notary attaches to the document a document authentication number issued by the 
secretary of state. 
 (5)  The illegibility of any of the information required by this section does not affect the 
validity of a document or transaction. 
 (6)  For purposes of this section, "notary certificate" means a certificate or other statement 
of a notary relating to a notarial act performed by the notary.
 
12-55-119.  Affirmation procedures - form. (1)  If an affirmation is to be administered 
by the notary public in writing, the person taking the affirmation shall sign his name thereto, and 
the notary public shall write or print under the text of the affirmation the fact that the document 
has been subscribed and affirmed, or sworn to before me in the county of           , state of 
Colorado, this        day of       , 2011 ( Hand written change to 2012-no initial)     . 
       (official signature, seal, and commission expiration date of notary)
 
It appears that a "Round Notary Stamp" without a notary number, and does not have an expiration date, are three reasons notary is not in compliance with CRS Title 12-55-112 (Colorado) and any out of state notary would fail Oregon's transfer requirement for certificate of conformity.
 
Your thoughts - Thanks, 
 
HP

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You need to find out a little more about the notary.

 

(2.5)  A notary who obtained an official seal before August 8, 2012, may continue to use his or her seal 

until renewal of his or her notary commission.
 
It's possible that the seal on the affidavit was legal before the above date.  But that's something else you can research.  It would seem strange that even an older seal would not be required to have some information in it.
 
Here's the notary search from the CO Sec. of State's website.  Find out if the notary is still licensed.  See if it shows the date her commission was renewed.  If her commission was renewed after 8/8/2012, the seal isn't valid. 
 
 
Also, does OR recognize out-of-state affidavits without a certificate of conformity?  I think it's called uniform recognition. 

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Thanks BV 80,

 

You read it the same way I did. I was hoping for tired eyes. 

 

Verify a Notary
 
 
 
 
 
 
  Found 4 matching record(s).  Viewing page 1 of 1. # Name up.gif City Zip Start End Commission Status 1 del C Salas, Maria  Centennial  80112  12/28/2007  12/28/2011    2 del C Salas, Maria  Greenwood Village  80111  12/28/2007  12/28/2011  CURRENT  3 del C Salas, Maria  Centennial  80112  12/28/2011  12/28/2015    4 del C Salas, Maria  Greenwood Village  80111  12/28/2011  12/28/2015  CURRENT 
     

I attached the notary stamp I don't think I can paste the scanned image. Still looks phony as a 3 dollar bill but might be legit. Doesn't matter in Oregon. Department of State doesn't care unless it gets money. One of the more greedy states.

I doesn't look good for the defense. Maybe you see something there I don't to disqualify this document. 

 

Thanks,

 

HP

 

 

Notary Stamp.pdf

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It's difficult to say if the notary stamp is valid because we don't know what the stamp looked like before 8/8/2012.  It appears the notary renewed her commission before 2012, so she can still use the old stamp.  More than likely, she works for one of the companies.  If you'll notice, she stated that the they "personally appeared to me personally known". 

 

However, I did find a few interesting tidbits.

 

Gregory Gerkin is an attorney.  He appears to not only be the VP of Professional Bureau of Collections, but he's also their in-house counsel.  I can't find any info as to who owns or formed that company.

 

Here's something else that's interesting.  If you look up Purchaser's Advantage's articles of incorporation, guess who formed that company?   Mr. Gerkin, himself.

 

Articles of Incorporation

4. The true name and mailing address of the person forming the limited liability company are Gregory James Gerkin.  Does that mean he owns the company?  I would assume so, but I don't know for sure.

 

So, he formed the company that sold the account to the company for which he's vice-president.  

 

Travis Justus is the registered agent for both companies.

 

Do a corporation search on the CO Secretary of State's website.  You can look up the information.  Whether anything is illegal or unethical here, I don't know.  It's just very interesting.

 

In the Wells Fargo affidavit, was it stated that your specific account was sold the Purchaser's Advantage?

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Thanks "Big Sis" that was helpful. 

 

Thanks Bruno - The account definitely is Wells Fargo and in my hurry to obfuscate search possibilities by wrong interests I overlooked one edit. As always your mastery of search terms and ability to make Google Scholar dance is amazing.

 

Best,

 

Huey

 

 

 

Thanks, that's a little trick I learned the hard way. After trying every keyword known to man in some of these cases, it was a "DUH" moment.....in every case I found, there was the statute number staring at me. Oh, and forget DE in this case, Wells Fargo is  in Nevada. Not sure where their drug money laundering operation is located.

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Not sure where their drug money laundering operation is located.

 

:ROFLMAO2:

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Huey,

 

Was your name and account number specifically stated in the Wells Fargo affidavit by Lisa O'Meara?

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It was added after the fact in both the Affidavit of Debt by Lisa O'Meara as well as the Buyer 1 to Buyer 2 agreement (share same office - Maybe Jaurez Colorado) affidavit. 

 

HP

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It's times like this I wish I was an attorney. 

 

Of course, we don't like the fact that your name and account number were added later, but I'm not sure that matters.  If we needed to add something to an affidavit at a later date, we'd want to be able to do so.

 

If the affidavits reference documents (such as a forward flow agreement or "the agreement between Wells Fargo and Purchaser's Advantage) that have not been provided, I'd point out that the claims in the affidavits are unsupported.  And we need to find case law that supports that argument.

 

It may not be enough to strike an affidavit, but it might be enough for you to cast doubt on their claims.

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BV 80,

 

Good points!  Their Complaint  has the usual two counts.  Claims for Account Stated or Open Account and a count for Breach or Contract. Good idea I will add that to my Pre-Hearing Memorandum. Took forever to find Oregon Caselaw that was applicable. All that MERS stuff is pretty iffy. 

 

Thanks again,

 

HP

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Thanks, that's a little trick I learned the hard way. After trying every keyword known to man in some of these cases, it was a "DUH" moment.....in every case I found, there was the statute number staring at me. Oh, and forget DE in this case, Wells Fargo is  in Nevada. Not sure where their drug money laundering operation is located.

 

I find it best to use the old version of Google Scholar that says "revert to venerable look."  The search capability is better.

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I find it best to use the old version of Google Scholar that says "revert to venerable look."  The search capability is better.

 

 

That's the one I use. The new one is terrible.

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I find it best to use the old version of Google Scholar that says "revert to venerable look."  The search capability is better.

 

I agree.  For some reason, the "venerable look" is easier to read.  At least it is for me.

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