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Through the kind and thoughtful help on this forum I was able to defeat a MSJ and I am now scheduled for a trial date in 2 weeks. I have to send in a Trial Brief outlining my case. Can anyone help with form or advice on content?

 

I am being sued for approx. $5,000 CC balance. I am worried if I lose (which a court ordered mediator told me I would) that they will be able to garnish my wages? Can anyone help me on that subject?

 

Should I ask for arbitration?

 

I believe that the attorney who filed is really a JDB and does not represent the CC company like he claims. How can I prove this or bring it up in court? Do I have the right to a Jury trial? If so, how do I ask for one?

 

Any advice would  be greatly appreciated.

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Through the kind and thoughtful help on this forum I was able to defeat a MSJ and I am now scheduled for a trial date in 2 weeks. I have to send in a Trial Brief outlining my case. Can anyone help with form or advice on content?

 

I am being sued for approx. $5,000 CC balance. I am worried if I lose (which a court ordered mediator told me I would) that they will be able to garnish my wages? Can anyone help me on that subject?

 

Should I ask for arbitration?

 

I believe that the attorney who filed is really a JDB and does not represent the CC company like he claims. How can I prove this or bring it up in court? Do I have the right to a Jury trial? If so, how do I ask for one?

 

Any advice would  be greatly appreciated.

 

You are way beyond asking for arbitration or a jury trial. A trial brief is basically an outline of your case. I never got that far so I will let others help you with the brief.

 

You are not yet sure if it is a JDB and you defeated the MSJ? Who is the plaintiff in your case?

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The Plaintiff is listed as the OC. The suit was filed by a Law Firm that is a well known JDB.

 

Law firms are not the JDB. They can file suits for either JDB's or OC's.

 

Ex:  Lyond, Doughty and Velduis file tons of cases for JDB's but they do not own the debt. They file them on behalf of Midland, CACH, etc. They could also file suits for Chase, BOA, etc.

 

Helping with your trial brief will be very difficult this late without knowing anything about your case.

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I am not looking for someone to write it. I just need to know what should be in it. I plan to attack two things:

 

1) they never have provided a signed original agreement stating that I agreed to their terms and conditions and to repay the debt (yes, I know about the Account Stated defense).

2) The affidavit they filed in support of their MSJ and purporting to validate my debt seems to be a "robo-document" signed by someone without personal knowledge of my debt and even states that the person who signed the affidavit "may or may not be employed" by the OC. I am going to try to say that this invalidates the "Account Stated" defense.

 

I have no idea what the Trial Brief should look like or what information it should contain. I would be happy to provide more details if needed.

 

Thank you for your replies.

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I am not looking for someone to write it. I just need to know what should be in it. I plan to attack two things:

 

1) they never have provided a signed original agreement stating that I agreed to their terms and conditions and to repay the debt (yes, I know about the Account Stated defense).

 

That's because in credit card cases, there is no such thing as a signed agreement. Did you sign one? If you did, you'rd be the first.

 

2) The affidavit they filed in support of their MSJ and purporting to validate my debt seems to be a "robo-document" signed by someone without personal knowledge of my debt and even states that the person who signed the affidavit "may or may not be employed" by the OC. I am going to try to say that this invalidates the "Account Stated" defense.

 

How do you know they do not have personal knowledge of your debt? Your claim that you know what they know is no better than the affidavit. There are ways to fight affidavits, this is not one of them. You are speculating where you need proof. The afidavit usually has nothing to do with account stated.

 

I have no idea what the Trial Brief should look like or what information it should contain. I would be happy to provide more details if needed.

 

Thank you for your replies.

 

Trial briefs should be on line, they usually lay out the facts of the case, your defense, and / or the theories of litigation you intend to use.

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If you don't show up for court you'll have a default judgment for the full amount plus legal fees. If you show up with an invalid defense like what you outlined above, ditto. These lawyers are not very good, but they sense when they can win. Maybe you should discuss a settlement plan if you have no viable defense. You'll have this opportunity before court. Wages can be garnished in Ohio, so can bank accounts.

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You defeated their MSJ ......... how did you do that?

What was your contention? ........ your issue of material fact?

Don't give up .......... base your trial brief on the reason that you beat the MSJ.

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So, do I just give up and not even show up for court?

 

That's a guaranteed loss. I am not a fan of quitting in any aspect of life. Have you denied the debt? We don't know much about your case other than the tidbits you gave us.

 

You've made it this far by defeating their MSJ. Keep fighting. Bruno is not telling you to quit, he's just telling you to use better arguments.

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Below is the conclusion I used to contest their MSJ. I am confused! The arguments I listed are what defeated the MSJ but now they are no good?

 

Defendant opposes Citibank's motion for summary judgment on the grounds that (a) Citibank did not submit any evidence that a written contract existed; (B) Citibank did not authenticate any account statements because its fact witness submitted only a conclusory affidavit with no detail and providing no information suggesting she had personal knowledge of Citibank's record systems; © Citibank submitted no evidence at all that account statements were mailed to the defendant.

 

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

 

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather, the Motion states only “There exists no genuine issue as to any material fact.” Therefore, Plaintiff is not entitled to summary judgment as a matter of law pursuant to Rule 56 of the Ohio Civil Procedure.” The Motion for Summary Judgment should be denied as the motion is insufficient as a matter of law.

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Those are good and all are required for an MSJ. What they do is create triable issues, meaning there are issues of material fact that need to be addressed at trial. They do not mean that unless they cure them, they will lose, just that a judge must decide on them and their case is not prima fascie.

 

I suggest you filing an affidavit that counters theirs. Then you have dueling affidavits and that usually requires them to have a live witness which is uncommon.

 

Lack of authentication of documents is also good. If they are not authenticated they will again need a live witness to do that.

 

Proof of mailing monthly statements is also good. 

 

You are doing well. Just make THESE points clear in your trial brief.

 

In this post you said there was no contract. In an earlier post you stressed signed contract. Requiring a contract is fine but, as Bruno said, no one signs them so don't harp on that.

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Thanks Flyerfan.

 

I had found another case online in Ohio where they made an issue of not having a signed contract as their main defense. They stated that in Ohio you must have a valid, signed contract in order to sue for breach of contract.

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Thanks Flyerfan.

 

I had found another case online in Ohio where they made an issue of not having a signed contract as their main defense. They stated that in Ohio you must have a valid, signed contract in order to sue for breach of contract.

 

I thought yours was account stated? Perhaps both?

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Thanks Flyerfan.

 

I had found another case online in Ohio where they made an issue of not having a signed contract as their main defense. They stated that in Ohio you must have a valid, signed contract in order to sue for breach of contract.

 

You should verify this in the civil code. I assume the case you found quotes the appropriate code section?

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I based my response to their MSJ on 3 issues:

 

1)Their affidavit (which I believe that they are trying to claim account stated through) did not provide sufficient detail to support their claim.

2) That Plaintiff has not produced a valid contract, upon which a claim for damages could be based. Defendant has stated in the Answer as an Affirmative Defense that the Plaintiff has failed to state a claim on which relief may be granted.

3) Plaintiff has failed to provide any contract, any agreement bearing the signature of the Defendant or any itemized statements or billing of said debt which would constitute intimate knowledge of the creation of the debt, but rather have relied upon the submission in support of their claim of an affidavit an employee, possibly not an employee of the original creditor. At no time was the creator of the affidavit, or any of Plaintiff's employees present to witness any alleged acts or creation of the records of any alleged transactions occurring between the Defendant and Citibank N.A. Said affidavit falls under the hearsay rule and is inadmissible as evidence, and as such, the Defendant asks that the AFFIDAVIT OF _________  MADE IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT submitted by Plaintiff, be stricken from these proceedings.

 

The Defendant, motions this court to compel Plaintiff, to produce the sufficiency of pleadings, as well as proof of standing, required to bring this action, to wit, to produce the original contract with ink signature of the Defendant and to produce the competent witness with first hand knowledge of the records attached as Exhibit “A” to Plaintiff’s Motion for Summary Judgment.

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I

 

I based my response to their MSJ on 3 issues:

 

1)Their affidavit (which I believe that they are trying to claim account stated through) did not provide sufficient detail to support their claim.

2) That Plaintiff has not produced a valid contract, upon which a claim for damages could be based. Defendant has stated in the Answer as an Affirmative Defense that the Plaintiff has failed to state a claim on which relief may be granted.

3) Plaintiff has failed to provide any contract, any agreement bearing the signature of the Defendant or any itemized statements or billing of said debt which would constitute intimate knowledge of the creation of the debt, but rather have relied upon the submission in support of their claim of an affidavit an employee, possibly not an employee of the original creditor. At no time was the creator of the affidavit, or any of Plaintiff's employees present to witness any alleged acts or creation of the records of any alleged transactions occurring between the Defendant and Citibank N.A. Said affidavit falls under the hearsay rule and is inadmissible as evidence, and as such, the Defendant asks that the AFFIDAVIT OF _________  MADE IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT submitted by Plaintiff, be stricken from these proceedings.

 

The Defendant, motions this court to compel Plaintiff, to produce the sufficiency of pleadings, as well as proof of standing, required to bring this action, to wit, to produce the original contract with ink signature of the Defendant and to produce the competent witness with first hand knowledge of the records attached as Exhibit “A” to Plaintiff’s Motion for Summary Judgment.

I am interested to know how did Citibank file suit if it didn't attach a contract or billing statements?

 

is there any deficiency in their filing that could be cured by amendment or refiling? I would be direct on those state law deficiencies, for example in my state it is required to attach the written instrument if the suit is based on contract, etc. So state requirements are important here.

 

I would cite to "The Federal Truth in Lending Act" which requires material terms of a credit card relationship to set forth in a written agreement. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. (read Regulation Z ) Federal Regulation Z, §226.5, general disclosure requirements, and (look up OH law for  failure to disclose). Credit cards issued without an application violate Regulation Z § 226.12 (a) (1), which states that no credit card shall be issued unless there is an application.   

 

UNDERLYING WRITTEN AGREMENT  or ORIGINAL SIGNED APPLICATION is what I would ask for to instead of a signature bearing agreement (that does not exist).

 

Cite to The  "terms" of the agreement or any sort of amendment to the agreement, any notice of a change in any term of the agreement, or any schedule of interest rates or fees applicable to the account must be supplied (I doubt Citibank supplied any but a generic card agreement, don't let them get away with it).

 

If there is a “starting balance” on billing statements, Citibank must prove the accuracy of it, look and cite to state statue possibly OH Uniform Commercial code (UCC) see if your state requires accounting from ZERO balance.

 

Brief should also state compliance with applicable laws, for instance Citibank claims SD law is binding when you get a Citi credit card, you want to argue SD law is a scham and only SD interest rate can be imported per (Nation Bank Act) not its other statues, which Citibank tries to impose .

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You have done pretty well for yourself up to now. Did you do any discovery? I would file a motion for discovery, and look around here on the the type of questions to ask. You would ask the court for leave to file for discovery, if granted, It would give you time to find out exactly what they have as evidence, and you could see if any of it could be objected to before being admitted into evidence.  I am not great at this, in fact going through my own lawsuit where I have no idea what to do lol, but these are the things I have read about. I am sure there are more people here that could help.  You should start by answering the 20 questions by racecar, and more people would jump in if they knew all the facts relevant to the case.  At anyrate, there is my limited advice, but I am sure someone can and will correct me. ;)

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I only have a minute right now because I need to leave and get my dog to the vet, however, here is my Motion in Limine that I filed here in Ohio two weeks before trial.  Shortly after that I received a Notice of Voluntary Dismissal from the other side.  Granted, my case was against a JDB and not an OC, but still, there might be things in it you can use in your case.  I will be glad to talk with you when I get back if you have any questions.

 

I did not have to do a trial brief so I'm not that familiar with how that works.  However, some of the cases below may be of use.

 

I do know that in Ohio they don't have to produce an actual contract (if they issued the card and you used it and they can prove it) but I think they'd need a governing Cardmember Agreement or some kind of agreement to prove the interest rate they are charging you.

 

Motion in Limine to Exclude Evidence

 

    Now comes Defendant XXXXXXXXXXX, a pro se litigant, and moves the Court that the following evidence should be excluded from admission in the above-referenced case for the following reasons:

    The Affidavit of XXXXXXXXXX, attached to Plaintiff's Complaint, (Exhibit A) should be excluded from submission due to an ongoing investigation into the authenticity of the signature of notary, XXXXXXXXX.  After comparing the signature on the Affidavit to the official notary signature on file with the Secretary of State of Missouri and finding significant discrepancies, the Defendant has good reason to question the authenticity of the signature of the notary on the Affidavit.  

    After such discovery, Defendant filed a complaint with the office of the Secretary of State of Missouri (Exhibit B ) and an investigation is currently ongoing per communication from the office of Jason Kander, Secretary of State for the State of Missouri (Exhibit C).  Defendant suspects that the Affiant's signature may be a sign of robo-signing practices already proven against many credit card companies when it comes to their debt collection practices.

    The signature of the notary on the Affidavit also does not follow the rules of the State of Missouri when it comes to a notary's signature.  Pages 22 and 23 of the "Missouri Notary Handbook" (Exhibit D) states that a notary may use initials for his or her first and middle names, but that the last name is to be written out in full.  That is not the case with the notary's signature on this Affidavit.  

    In the Affidavit, Affiant XXXXXXXX states that her statements are based on "personal knowledge" or "review of the business records of Citibank."  XXXXXXXXXXXXX does not definitively prove that her statements were made on the required personal knowledge.  They may have been made solely based on the review of business records.  

    Also, the Affiant, XXXXXXXXX, offers no information in her affidavit as to how the records are compiled, what type of programming is used, how the information is entered and what safeguards are used.  She also does not reference her training, background or knowledge regarding the use of the computers or how records are transmitted.  See Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-Ohio-6596 and John Soliday Fin. Group, L.L.C. v. Pittenger, 190 Ohio App.3d 145, 2010-Ohio-4861.

    Also, the Affidavit fails to specifically identify, attach or reference the documents which were consulted by Ms. XXXXXXX.  As such, it cannot authenticate any of the documents submitted in support of Plaintiff's case.  See TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App.3d 38, 2011-Ohio-1405.  The documents attached to the Complaint behind Ms. XXXXXX's Affidavit are exhibits of the Complaint and not exhibits of the Affidavit.

    Last, but not least, regarding the Affidavit, it appears to have been created in preparation for litigation, rather than at or near the time of the alleged sale of this account from Citibank to CACH LLC.  The date of the alleged sale is August 23, 2011 while the date of the affidavit is August 13, 2012, one year after the alleged sale of this account and merely a few months before suit was filed.  

    The next document that comes under scrutiny and should be excluded from evidence is the "Citibank Mastercard Cardmember Agreement" which is attached to the Plaintiff's Complaint as Exhibit B (Exhibit E).  The Agreement submitted by Plaintiff and purported to control the account in question is an agreement governing only Citibank Canada accounts.  The Defendant does not, and never has, lived in Canada or had a credit card associated with any Canadian company.  Therefore, this Agreement should not be admissible as evidence.  The submission of this Agreement attached to the Complaint also brings into question the trustworthiness of all of Plaintiff's records.  

    Without a governing Agreement, it is impossible for the Court to ascertain the correctness of the calculation of interest for the account in question.  While the credit card statements do contain an interest rate, there is no way to confirm that this is the correct interest rate governing the account in question without a valid and governing cardmember agreement.  See Capital One Bank (USA), N.A. v. Heidebrink, 2009-Ohio-2931.

    Similarly, the "Bill of Sale and Assignment" (Exhibit F) provided to Defendant during discovery is insufficient to prove CACH's ownership of the account in question.  The Bill of Sale makes no specific reference to the name or account number of the account allegedly transferred in this transaction.  

    The redacted document attached to the Bill of Sale as Exhibit 1 (Exhibit G) does not offer sufficient proof that the account was sold.  Also, the date of birth contained in Exhibit 1, July XX, 19XX, and purported to be that of the Defendant is clearly not the Defendant's date of birth and can be proved by the Defendant.  Once again, the Plaintiff's records veer off into the territory of untrustworthiness.  

    While it is necessary to remove account numbers and social security numbers associated with the other accounts in the document submitted to the Court, there is a plethora of information regarding those other accounts that could have been included to add to the authenticity of this document as evidence.  That information was not included.  The fact that the redacted document shows no other information about the other accounts sold in the transaction lends an air of untrustworthiness.  It's possible this document was simply created solely for the purpose of litigation and not kept as an ordinary part of business and therefore, should not be admissible as evidence.  This document is neither an original or a true duplicate.

    The trustworthiness of the Plaintiff's information is once again called into question due to the fact that the Plaintiff states in it's Complaint that it should receive interest of 3.0% beginning as of September XX, 2011, five days after it allegedly made it's first demand upon Defendant.  However, in Plaintiff's Request for Admissions to Defendant (No. 21) (Exhibit H), Plaintiff  indicates that "On or about May XX, 2012, Plaintiff, through counsel, sent a demand letter . . . indicating the transfer of ownership of the account" to Plaintiff.  The Plaintiff seems in doubt as to when a demand for payment was made.  This is a discrepancy of eight months.  

    Defendant also requests that the 13 credit card statements beginning with August 5, 2010 (Exhibit I) through August 5, 2011 (Exhibit J), provided to Defendant by Plaintiff during the course of discovery be excluded from evidence.  Case law has shown that it is preferable that accounts begin with a balance of zero and show charges and interest rates accumlated along the way.  These statements begin with a balance of $XXXXX and provide no evidence that this amount was true and correct, especially in light of no governing cardmember agreement.  See Capital Fin. Credit, L.L.C. v. Mays, 191 Ohio App.3d 56, 2010-Ohio-4423.

    Last, but not least, it appears that Plaintiff is attempting to admit the records of another business under the hearsay law.  These records are not those of Plaintiff, but are purported to be the records of Citibank.  Therefore, they should not be admitted under the business records exception of hearsay law.  A business cannot simply take the records of another company, drop them into their own file and call them their own business records without proper authentication, which Plaintiff does not provide via testimony or affidavit.  See Great Seneca Financial v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618.  

 

 In light of the evidence submitted above, Defendant requests that the aforementioned documents be excluded from admission at trial.
 

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