Business Records Exception hearsay - Missouri

[tiger12be]

So I found a bench book from Missouri online and read the following:

 

Under §490.680, any portion of the books or records of a corporation or business may be used in

evidence if the custodian of the records or other qualified witness testifies as to their identity and

the mode of preparation and if it was made in the regular course of business, at or near the time

of the act, and the source of information was clear to the preparer. Missouri rules also allow an

affidavit to be prepared by the custodian, so the custodian would not have to appear personally,

and the records that are produced ten days prior to the actual trial to the opponent. Likewise,

hospital records are admissible as business records and generally fall within §490.680 RSMo.

The courts have increasingly dealt with business records with great latitude. For examples see

Director of Revenue cases beginning with Peace v. Director of Revenue, 765 S.W.2d 382

(Mo.App. W.D. 1989) and continuing, wherein essentially any witness who is familiar with the

records or can testify as to the general preparation of the documents can provide the requisite

affidavit for admission, see State v. Graham, 641 S.W.2D 102 (Mo. Banc 1982).

 

 

Am I mistaken or do I understand this to mean that essentially there is no way to get an affidavit from a JDB struck as hearsay in Missouri? It also appears that issuing a subpoena for the affiant is basically useless because the attorney would argue what is laid out here - that they aren't required to appear in person.

 

Would my argument then be that their 'custodian' was not an employee of <insert OC here> and therefore could not have knowledge of the mode of preparation, etc...?

 

I have to be missing something, right?  :'>

[BrunoTheJDBkiller]

It would depend on the wording of the affidavit. I've yet to see one where the affiant claims to have knowledge of the OC's records. They always say they have knowledge of the JDB's records, which were transmitted to the JDB by a person of knowledge. That person would be working for the OC. You have to cast doubt on the accuracy of the records. Best way to do that is point out the fact that the OC refuses to guarantee the accuracy of the accounts sold, this is always in the bill of sale. If they won'r guarantee this junk, how can the new owner swear ti its accuracy? Or, you can conduct more discovery and try to get the name of the person who trasnsmitted the records to the JDB. They porobably won't know and will object. That makes them look bad. If they do give a name, subpoena the person as a witness and ask them why they refuse to guarantee accuracy, etc.

[tiger12be]

Thanks Bruno.

 

I'm being sued by Gamache & Myers (MF) in Missouri. My initial court date was back in January. At that time, the judge basically gave me the opportunity to decide if I wanted to hire an attorney or represent myself. He continued my case until later this month. I haven't filed anything at this point. I've been doing all the reading and research I can on this website as well as others. I plan to go ahead and submit a formal Answer (already finished typing this up) as well as request Discovery, although I'm not sure how to 'officially' do that. Is Discovery the same as Request for Production of Documents? I've seen templates for the RPoD's but not for Discovery. I feel pretty confident with what I've read on here. I think my biggest fear at this point is making some kind of a procedural error or making some mistake in creating a document.

[racecar]

http://www.creditinfocenter.com/community/topic/314603-need-midland-advice-in-missouri/

This link has how to send discovery,rogs,admissions to the plaintiff and other useful information same law firm.

[Flyerfan]

 Is Discovery the same as Request for Production of Documents? I've seen templates for the RPoD's but not for Discovery.

 

Request for production of documents is a form of discovery. Request for admissions and interrogatories are others. If you have a template for RPoD, then you have a template for discovery.

[BrunoTheJDBkiller]

Send them these. The format is easy. Copy the case header from any papers you have, put that at the top. Then this.

 

Requests for Production of Documents

 

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document  produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

 

 

If this is an OC, leave off the last two. Don't send anything else until you get their responses. Then for each item they failed to produce, send a Request For Admissions. "Admit or Deny that you do not have and cannot produce XXXXX" Like that. One step at a time. Don't file any motions, don't do anything until we approve it for you. Always post your papers here before sending them.

 

We need the details, fill out the 20 questions. These are on the home page at the bottom of the list of topics with green boxes next to them, or Racecar will post them for you.

[BV80]

Bruno's list is great.  I would add one request just to cover any sneaky tricks by the JDB. 

 

15.  All documents that Plaintiff intends to produce at a hearing on this matter.

 

That would cover anything they might try to claim you didn't request.

[tiger12be]

Beautiful!! Thanks so much everyone!! You've all been a tremendous help! 

[Seadragon]

The case of CACH LLC. v. Askew is highly relevant to the point. It is a missouri Supreme Court unanimous decision and kills the affidavit abuse in missouri. Read it here:http://scholar.google.com/scholar_case?case=6176501071132996397&hl=en&as_sdt=2&as_vis=1&oi=scholarr It will break down the requirements and let you know what the issues are.

[Anon Amos]

 

 

Am I mistaken or do I understand this to mean that essentially there is no way to get an affidavit from a JDB struck as hearsay in Missouri? It also appears that issuing a subpoena for the affiant is basically useless because the attorney would argue what is laid out here - that they aren't required to appear in person.

 

 

1)    An affidavit is not a business record, it is an assertion under oath.

2)    It is not the "regular course of business" for a jdb to produce affidavits.

3)    Issuing a subpoena is "basically useless" for the simple fact that there is no reason for you to subpoena the affiant, they are the one that will need the affiant as a witness (if you oppose, and defend the case properly)

4)    When you receive an affidavit; file your own counter-affidavit, disputing all the statements of their affidavit line for line.

[BTO429]

Can an affidavit speak for its self? can you ask an affidavit questions and have it answer?

 

Business records hearsay does not include a document that is generated for the use of court litigation only. An affidavit is a legal document for use in court only. It does not apply to the exception.

 

Palmer vs Hoffman

1943, the .S. Supreme Court

Documents not produced "in the regular course of business, but were prepared for litigation purposes, are not sufficiently reliable to be admitted as evidence.

 

Business records must be distinguished from records and documents that have an independant legal significance.

[tiger12be]

Thanks again for all your advice.

 

Seadragon - you mention a case that I've tried to become VERY familiar with. This is something I should have brought up initially:

 

I've read through the CACH vs Askew case a few times now. One of the things that caught my eye/ear was the fact that I saved a copy of an older credit report of mine and I noticed that Equable Ascent must have purchased this at one point (there was a TL on my CR from Equable) and evidently never really pursued collecting on it. At least, I don't recall hearing from them. This was PRIOR to Midland buying it. The TL from Equable is gone from my CR, however there is now a TL from Midland on there.

 

Three questions:

 

1) I think I understand from CACH vs Askew that Midland would need to come up with the entire chain of sale/events/documentation/whatever from Chase to Equable to Midland (and/or whoever else may have been involved at any point)??

 

2) Would there be a case for a counterclaim against Midland for reporting this on my CR?

 

3) Also, the cause of action (when I actually defaulted - last payment was around April 2009) for this suit would have actually occurred in Oklahoma, not Missouri. I do reside in Missouri now (which has 5 yr SOL) but I've seen numerous websites that state  'open end' contracts in Oklahoma have a 3 yr SOL, which would make this debt time-barred. However, I have also read other sites that state credit card SOL cases in Oklahoma are 5 yrs. Does anyone have any solid info/case law on this? I can't seem to find any.

[tiger12be]

We need the details, fill out the 20 questions. These are on the home page at the bottom of the list of topics with green boxes next to them, or Racecar will post them for you.

1. Who is the named plaintiff in the suit? Midland Funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)   Gamache & Myers

3. How much are you being sued for?  ~$7500.00

4. Who is the original creditor? (if not the Plaintiff)   Chase Bank

5. How do you know you are being sued? (You were served, right?)   Served

6. How were you served? (Mail, In person, Notice on door)    In person - process server

7. Was the service legal as required by your state?  Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  None

9. What state and county do you live in?   Jasper County, Missouri

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  ~April 2009

11. What is the SOL on the debt? In question. Account was defaulted on while I lived in Oklahoma. I have seen 3 or 5 years, depending on which website you go to.

 

12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  Status of counsel  (basically the judge gave me time to hire an attorney if I want to - obviously I'd like to fight this pro se)  Case cont'd to 3/20/13

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.   No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  I believe showing up in court in Missouri is suffiicient for an 'answer'. However, I do have a formal answer prepared. I have not submitted it yet. 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Typical Midland employee affidavit and 'statement' (from Midland, not the OC).

[BTO429]

Thanks again for all your advice.

 

Seadragon - you mention a case that I've tried to become VERY familiar with. This is something I should have brought up initially:

 

I've read through the CACH vs Askew case a few times now. One of the things that caught my eye/ear was the fact that I saved a copy of an older credit report of mine and I noticed that Equable Ascent must have purchased this at one point (there was a TL on my CR from Equable) and evidently never really pursued collecting on it. At least, I don't recall hearing from them. This was PRIOR to Midland buying it. The TL from Equable is gone from my CR, however there is now a TL from Midland on there.

 

Three questions:

 

1) I think I understand from CACH vs Askew that Midland would need to come up with the entire chain of sale/events/documentation/whatever from Chase to Equable to Midland (and/or whoever else may have been involved at any point)??

 

2) Would there be a case for a counterclaim against Midland for reporting this on my CR?

 

3) Also, the cause of action (when I actually defaulted - last payment was around April 2009) for this suit would have actually occurred in Oklahoma, not Missouri. I do reside in Missouri now (which has 5 yr SOL) but I've seen numerous websites that state  'open end' contracts in Oklahoma have a 3 yr SOL, which would make this debt time-barred. However, I have also read other sites that state credit card SOL cases in Oklahoma are 5 yrs. Does anyone have any solid info/case law on this? I can't seem to find any.

 

Thanks again for all your advice.

 

Seadragon - you mention a case that I've tried to become VERY familiar with. This is something I should have brought up initially:

 

I've read through the CACH vs Askew case a few times now. One of the things that caught my eye/ear was the fact that I saved a copy of an older credit report of mine and I noticed that Equable Ascent must have purchased this at one point (there was a TL on my CR from Equable) and evidently never really pursued collecting on it. At least, I don't recall hearing from them. This was PRIOR to Midland buying it. The TL from Equable is gone from my CR, however there is now a TL from Midland on there.

 

Three questions:

 

1) I think I understand from CACH vs Askew that Midland would need to come up with the entire chain of sale/events/documentation/whatever from Chase to Equable to Midland (and/or whoever else may have been involved at any point)?? yes they need to prove this

 

2) Would there be a case for a counterclaim against Midland for reporting this on my CR? it depends, how old is the debt if its past 7 years then no

 

3) Also, the cause of action (when I actually defaulted - last payment was around April 2009) for this suit would have actually occurred in Oklahoma, not Missouri. I do reside in Missouri now (which has 5 yr SOL) but I've seen numerous websites that state  'open end' contracts in Oklahoma have a 3 yr SOL, which would make this debt time-barred. However, I have also read other sites that state credit card SOL cases in Oklahoma are 5 yrs. Does anyone have any solid info/case law on this? I can't seem to find any. you do not live in

OK now so that wont work, you need ta base your laws on Missouri.

[tiger12be]

It would depend on the wording of the affidavit. I've yet to see one where the affiant claims to have knowledge of the OC's records. They always say they have knowledge of the JDB's records, which were transmitted to the JDB by a person of knowledge. That person would be working for the OC. You have to cast doubt on the accuracy of the records. Best way to do that is point out the fact that the OC refuses to guarantee the accuracy of the accounts sold, this is always in the bill of sale. If they won'r guarantee this junk, how can the new owner swear ti its accuracy? Or, you can conduct more discovery and try to get the name of the person who trasnsmitted the records to the JDB. They porobably won't know and will object. That makes them look bad. If they do give a name, subpoena the person as a witness and ask them why they refuse to guarantee accuracy, etc.

The affidavit states:

 

Douche Bag, whose business address is xxxx xxxxx Rd Loserville, XX, certifies and says:

 

1. I am employed as a Legal Spe*****ist and have access to pertinent account records for Midland Credit Management, Inc. ("MCM"), servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account 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 defendant's <OC named here> account xxxxxxxxxxxxx (MCM Number xxxxxxxxxx) (hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiff's behalf.

 

2. The account shows that the defendant(s) owed a balance of $7xxx.xx

[tiger12be]

BTO - Thanks for the input.

 

Regarding the age of debt - it was defaulted on around 4/2009.

 

3) Also, the cause of action (when I actually defaulted - last payment was around April 2009) for this suit would have actually occurred in Oklahoma, not Missouri. I do reside in Missouri now (which has 5 yr SOL) but I've seen numerous websites that state 'open end' contracts in Oklahoma have a 3 yr SOL, which would make this debt time-barred. However, I have also read other sites that state credit card SOL cases in Oklahoma are 5 yrs. Does anyone have any solid info/case law on this? I can't seem to find any. you do not live in OK now so that wont work, you need ta base your laws on Missouri.

 

Correct. I do not live in OK now but I do know that Missouri is a choice of law/borrowing statute state. Would that not apply in this case? If Oklahoma is indeed 3 years, could I not argue that Midland is forum shopping by trying to use the longer SOL for Missouri (which was not involved at all at any time during the default/cause of action)?     I read this somewhere in a court case (I'll have to dig it up now) but I guess I'm just thinking out loud here. 

[Seadragon]

on this the collection is SOL if the SOL expired in one state then it would have expired for collection and court in missouri. And to bake your noodle more what does any choice of law provision in the agreement say? Most say Delaware for Choice of law.

[tiger12be]

The Missouri borrowing statute, section 516.190, provides for application of a foreign statute of limitations when the alleged action originated in the foreign jurisdiction and the foreign statute of limitations would bar the action.   Specifically, section 516.190 provides:

Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.

 

The statute was enacted primarily to prevent forum shopping for a statute of limitations, thereby preventing a plaintiff from gaining more time by simply suing in a different forum than where the cause of action actually accrued.   Green Acres Enterprises, Inc. v. Freeman, 876 S.W.2d 636, 639 (Mo.App. W.D.1994);  See, Nettles v. American Tel. And Tel. Co., 55 F.3d 1358, 1362 (8th Cir.1995).

 The term “originated” as used in section 516.190 has been held to have the same meaning as the term “accrued” as used in section 516.100, RSMo. Thompson by Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992).  Section 516.100, RSMo 1994, defines “accrued” as “when the damage resulting therefrom is sustained and is capable of ascertainment․”  Damage is sustained and capable of ascertainment when it can be discovered or made known, not when the plaintiff actually discovers the injury or wrongful conduct.  Carr, 793 S.W.2d at 150.   Therefore, Missouri has specifically rejected a discovery rule to determine when a cause of action accrues and instead, has adopted a middle of the road test.  Jepson v. Stubbs, 555 S.W.2d 307, 312-13 (Mo. banc 1977);  Vandenheuvel v. Sowell, 886 S.W.2d 100, 102 (Mo.App. W.D.1994).   In applying this test, the courts have held that a cause of action accrues when an injury is complete as a legal injury.   Vandenheuvel, 886 S.W.2d at 102-103.   This occurs when the plaintiff could have first successfully maintained the action.  Polytech, Inc. v. Sedgwick James of Missouri, Inc., 937 S.W.2d 309, 312 (Mo.App. E.D.1996);  Murray, 949 S.W.2d at 206.

 

 

I don't completely understand every word of this but the text is red is primarily what I was referring to. Does that make sense with regard to my point about Oklahoma vs Missouri SOL?

[tiger12be]

on this the collection is SOL if the SOL expired in one state then it would have expired for collection and court in missouri. And to bake your noodle more what does any choice of law provision in the agreement say? Most say Delaware for Choice of law.

 

I do not have 'my' actual agreement, but I do know that EVERY Chase Bank CC agreement I have seen (for ANY year) says Delaware, which I learned is also 3 yrs.

[BTO429]

HEARSAY she does not specifically say for whom she is employed, While she may be able to attest for how Midland handles their accounts, she cannot attest to how the OC or any other subsequent owners of the debt handle their accounts. Since she claim she is a legal specialist she has opened herself up tp proving her education and any licensing she has in order to be a legal specialist.

 

Remember, and I know you have heard it, what you say can and will be used against you in a court of law.

 

You can ask for her diploma and any other training he may have had.  if they object the you answer that it goes toward her credibility. 

 

While she may have access to the records the affidavit does not say that she has any direct involvement in the accounting process. i e she did not perform any of the accounting of the account in question. 

 

Since the affidavit attests to the fact that Midland owns or is the successor of the alleged account the chain of custody needs to be proven, the mere statement that midland owns the account is not enough proof of the allegation.

 

I would make a notion to strike the affidavit as hearsay.                                                   

[Flyerfan]

What is required for the affidavit to make the claim that Midland now owns the account is documentary evidence. A bill of sale which specifically identifies your account must be specifically referenced (not just as "records" and it must be attached as an exhibit. If the bill of sale is referenced but does not include your account number, the statement that MF is the current owner is conclusory, meaning that (a) MF has the documents regarding your account and ( here is a bill of sale so one can conclude (or come to the conclusion) that your account is part of that sale. Of course, that is not proof but that is how you have to attack it. The affiant did not supply proof that your account was part of the sale and, if she did, she must state on which document she saw that information, reference it specifically and attach it as an exhibit. 

 

That is how you attack the affidavit and BTO429 is right, you should strike it using that strategy.

[numbersguy]

The affidavit states:

 

Douche Bag, whose business address is xxxx xxxxx Rd Loserville, XX, certifies and says:

 

1. I am employed as a Legal Spe*****ist and have access to pertinent account records for Midland Credit Management, Inc. ("MCM"), servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account 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 defendant's <OC named here> account xxxxxxxxxxxxx (MCM Number xxxxxxxxxx) (hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiff's behalf.

 

2. The account shows that the defendant(s) owed a balance of $7xxx.xx

The questions that come to mind when looking at your post are these:

• What do "pertinent account records for Midland Credit Management" consist of?
• What does "reviewed the records pertaining to the account" consist of?
• It looks like the affiant is attesting to MCM's records. What about the accuracy of the OC's records?

Unless there were other documents sent to you, it looks like all they are saying is that MCM's records indicate you MCM money and that you need to take their word for it.     

[Flyerfan]

Unless there were other documents sent to you, it looks like all they are saying is that MCM's records indicate you MCM money and that you need to take their word for it.     

 

Exactly. The attorney could attach a placemat with lasagna stains all over it and say it was part of "the records". How do you know that if she doesn't specifically reference and attach something to the affidavit. Documentary evidence is HUGE for an affidavit if you attack it.

[tiger12be]

Thought I would go ahead and post my petition as well:

 

PETITION

 

COUNT I - SUIT ON CONTRACT

 

Comes now Plaintiff, Midland Funding LLC and for its cause of action against Defendant(s), states as follows:

 

1. All times pertinent therein, Plaintiff was at all times relevant herein a A LIMITED LIABILITY COMPANY, duly organized and existing under law.

 

2. Plaintiff is the holder of a valid assignment of an account which originated with CHASE BANK USA NA with an account number ending in xxxxxxxxxxxxxxxxyyyy

 

3. Defendant(s) is/are resident(s) of <my> COUNTY, Missouri.

 

4. CHASE BANK USA NA and Defendant(s) entered into a contract, whereby CHASE BANK USA NA extended credit pursuant to the terms and conditions of a credit agreement (hereinafter referred to as "Agreement") and Defendant(s), in exchange for the use of the credit extended, agreed to pay CHASE BANK USA NA for all amounts due resulting from the authorized use pursuant to the Agreement, including any finance charges and any other charges due under the terms of the Agreement.

 

5. CHASE BANK USA NA fully abided by the terms and conditions as set forth in said Agreement.

 

6. Defendant(s) has/have not made all payments to CHASE BANK USA NA pursuant to the Agreement.

 

7. CHASE BANK USA NA sent monthly statements to the Defendant(s).

 

8. Defendant(s) breached the Agreement by failing to pay the amount owed.

 

9. As a direct and proximate result of the Defendant(s) breach of the Agreement, CHASE BANK USA NA has sustained damages in the sum of $7xxx.xx

 

10. CHASE BANK USA NA has fully performed, pursuant to the terms of the Agreement or its performance has been excused due to the Defendant's breach.

 

11. CHASE BANK USA NA, and subsequently, Plaintiff, have made demand for payment of the outstanding sum of $7xxx.xx, but Defendant(s) has/have failed and refused to pay. Plaintiff seeks interest from <Aug 2012>, which is the date of demand or subsequent to the date when demand for payment was made.

 

WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count I against Defendant(s), in a sum of $7xxx.xx plus interest and for all costs expended herein and for any other and further relief this Court deems just and proper.

 

COUNT II - MONEY HAD AND RECEIVED

 

COMES NOW, Plaintiff, and for its alternative cause of action against Defendant(s), states as follows:

 

1. Plaintiff restates and re-alleges each and every paragraph of Count I as if fully set forth herein.

 

2. Defendant(s) received and used (or authorized the use of) the credit knowing that CHASE BANK USA NA expected to be repaid for all monies advanced, together with interest thereon. With each use of the credit CHASE BANK USA NA paid money on Defendant's behalf to the merchant with whom the credit was used. Defendant(s) accepted said funds for the purchase of goods, wares, merchandise or services and has/have been unjustly enriched by failing to repay such sums.

 

3. Plaintiff is the assignee of the Issuer's right to be repaid by Defendant(s) for such money had and received, and it is entitled to recover from Defendant(s) the sum of $7xxx.xx, that being the balance due through <Aug 2012>

 

WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count II against the Defendant(s) in the sum of $7xxx.xx, together with interest as provided by law from <Aug 2012> , all costs expended herein and for any other and further relief this Court deems just and proper.

 

COUNT III - ACCOUNT STATED

 

COMES NOW, Plaintiff, and for its alternative cause of action against Defendant(s), states as follows:

 

1. Plaintiff restates and re-alleges each and every paragraph of Counts I and II as if fully set forth herein.

 

2. Defendant(s) and CHASE BANK USA NA had previous financial transactions related to the Agreement issued to Defendant(s) by CHASE BANK USA NA, at Defendant's insistence and request.

 

3. Pursuant to said transactions, CHASE BANK USA NA sent Defendant(s) statements of account, to which Defendant(s) did not object.

 

4. Pursuant to the terms and conditions sent to Defendant(s) in the Agreement, and governing its use, the Defendant(s) made an unconditional promise to pay the amount due with the use of said card.

 

5. The balance agreed to by the parties is $7xxx.xx

 

6. The Defendant(s) has/have failed to keep his/her/their promise to pay said balance, despite demand for same having been made.

 

7. Plaintiff is the assignee of CHASE BANK USA NA to be repaid by Defendant(s) on the account, and it is entitled to recover from Defendant(s) the sum of $7xxx.xx, that being the balance due through <Aug 2012>

 

WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count III against the Defendant(s) in a sum of $7xxx.xx, together with interest as provided by law from <Aug 2012>, all costs expended herein and for any other and further relief this Court deems just and proper.

[Brotherskeeper]

The Missouri borrowing statute, section 516.190, provides for application of a foreign statute of limitations when the alleged action originated in the foreign jurisdiction and the foreign statute of limitations would bar the action.   Specifically, section 516.190 provides:

Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.

 

The statute was enacted primarily to prevent forum shopping for a statute of limitations, thereby preventing a plaintiff from gaining more time by simply suing in a different forum than where the cause of action actually accrued.   Green Acres Enterprises, Inc. v. Freeman, 876 S.W.2d 636, 639 (Mo.App. W.D.1994);  See, Nettles v. American Tel. And Tel. Co., 55 F.3d 1358, 1362 (8th Cir.1995).

 The term “originated” as used in section 516.190 has been held to have the same meaning as the term “accrued” as used in section 516.100, RSMo. Thompson by Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992).  Section 516.100, RSMo 1994, defines “accrued” as “when the damage resulting therefrom is sustained and is capable of ascertainment․”  Damage is sustained and capable of ascertainment when it can be discovered or made known, not when the plaintiff actually discovers the injury or wrongful conduct.  Carr, 793 S.W.2d at 150.   Therefore, Missouri has specifically rejected a discovery rule to determine when a cause of action accrues and instead, has adopted a middle of the road test.  Jepson v. Stubbs, 555 S.W.2d 307, 312-13 (Mo. banc 1977);  Vandenheuvel v. Sowell, 886 S.W.2d 100, 102 (Mo.App. W.D.1994).   In applying this test, the courts have held that a cause of action accrues when an injury is complete as a legal injury.   Vandenheuvel, 886 S.W.2d at 102-103.   This occurs when the plaintiff could have first successfully maintained the action.  Polytech, Inc. v. Sedgwick James of Missouri, Inc., 937 S.W.2d 309, 312 (Mo.App. E.D.1996);  Murray, 949 S.W.2d at 206.

 

 

I don't completely understand every word of this but the text is red is primarily what I was referring to. Does that make sense with regard to my point about Oklahoma vs Missouri SOL?

Courts take a very dim view of forum shopping. We won 2 lawsuits (actually 2 Motions for Summary Disposition) using Michigan's borrowing statute to use California's 4-yr. SOL in 1 suit, and Cali's borrowing statute to use Delaware's 3-yr. SOL in the other suit. In fact, the JDB actually bought the alleged Chase debt months after the Delaware SOL had expired! Check all alleged dates on everything very carefully. Michigan has a 6-yr. SOL and considers SOL to be procedural in choice/conflict of law, so that Michigan borrowing statute was the key to our wins. The important question is did you move from Oklahoma to Missouri before or after the 3 year limitations period was up? If you moved before the limitations period was up, they may be able to argue you tolled the SOL. Hope this makes sense. I know it's confusing. In our 1st suit, the JDB attorney seemed blindsided by the borrowing statute and made a feeble argument. In the 2nd suit, the JDB attorney understood the borrowing statute and made us really work for the win. Good luck.