Sued by Unifund and Daniel Gordon, PC

[chicamarie]

Hi there.  I'm being sued by Unifund LLC, and they are represented by Daniel Gordon here in Oregon.  I filled in the following questions:

 

1. Who is the named plaintiff in the suit?:   Unifund, llc.

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) :  Daniel N Gordon, Eugene, OR

3. How much are you being sued for? :  $11xxx.00 plus interest

4. Who is the original creditor? (if not the Plaintiff) :  Citibank

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

6. How were you served? (Mail, In person, Notice on door)  In person (my husband)

 

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? : Only letters from them - I never replied.

9. What state and county do you live in?:  Oregon, Multnomah

 

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

11. What is the SOL on the debt? 6 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B)looking it up online (many states have this information posted - when you find the online court site, search by case number or your name):  Plaintiff and I have both been sent a list of arbitrators.  Mandatory arbitration in Oregon for money suits under 50,000.  I still have to send my list in with names crossed off.

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 answered the summons on time.  And I received the questionnaire - also answered.  I just returned the Requests for Admission also.   They are claiming breach of contract.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.:  Affidavit from a Citbank employee, Bill of Sale and Assignment, two credit card statements.

 

 

I am at the point where I need to send my own interrogatories.  I was doing ok unitl I realized that arbitration wasn't exactly mediation and that it might be worse than court.  Now I'm freaking out.  Daniel Gordon wins most, 90%, of his cases because he gets default judgments.  I don't know what happens with the other 10% but I'd prefer to be one of them. 

 

Thanks!

[shellieh98]

what did you put in your answer and your admissons?  I think huey piolot is our expert oregon person.  There are a couple of threads with Daniel Gordon, PC going on right now.  You should compare notes.  What does your affidavit say from citi?  I would research that person also.  In the article of the week section there is an article about robosigned affidavits.  I can't recall if the other cases with DGP were with citi, but if they are, compare affidavits.  Also how does the affidavit reference your account?  "the records" and not specific references to each part of  your account? 

[Huey Pilot]

We CAN'T use interrogatories in Oregon. Don't even bother with them they will get denied and thrown out. You can request production of Documents (Defendants' Request for Production of Documents on Plaintiff) and maximum of 30 RFA's (Defendant's Request for Admissions on Plaintiff). The usual process is to pretty much request the same things that Plaintiff requested back on Plaintiff's attorney. Then once DNG returns the requested you can ask for admissions. (Suggest 10 good ones) Then maybe ask for some more (Defendant's Second Request for Admissions on Plaintiff)

 

DNG will usually be late on discovery to stick very closely to the allowed thirty days and  do a Motion to compel with sanctions. 

 

Oregon Arbitration is a Kangaroo Court and you more than likely will not win so plan on a loss considering it a dress rehearsal for the real trial, Trial de novo, in front of a real Court with a real Judge and you can win. DNG knows that and will usually drop the case and dismiss without prejudice. Mean time send all the documents you will need in the future and run up the costs so you will have then cost DNG more preparation time than it's worth to continue. Hopefully you have denied everything and admitted nothing in your answers to the complaint and DNG;s Discovery requests.

 

Complaint/Answer

File Request for Production of Doc's

File Request for Admissions on Plaintiff

File motion to compel with sanctions (suggest dismissal)

Send letter to Judge/arbitrator (failure of Plaintiff to return complete discovery you requested

File Defendant's second request for admissions

File Motion to Deem Missing Admissions Admitted

File Motion to Strike Affidavit, Bill of Sale, two statements (Incomplete has to be from day one or it's inadmissible)

File Motion for Limine (Exclusion) of existing documents

File Motion to Dismiss

Appear at Arbitration and loose your butt to a very unjust and Creditor Friendly Mandatory Oregon Arbitration System.

File Motion Denying Arbitration Award

File Request for Trial De Novo (It's an automatic award)

 

Start over. 

 

Be thinking about filing a counter claim with your new Answer (You have to take leave of the Court to file amended answer)

Review all the potential FDCPA Claims, FCRA Claims, ORCPA Claims and the TILA claims for all the phone calls. 

Add them to your new Answer and wait for the Dismissal. 

 

All this is sad but true due to all the abuse of the legal system in Oregon and the overloaded Court system. DNGPC wants default judgments and fighting is not in the business model so fight. (It's kind of an expensive game you have to play)

 

HP

[chicamarie]

Hey HP, thanks for the helpful info.  I'm at the stage where I have turned in my Arbitrator deletions and now have to wait for a date.

 

Question - when you say "automatic award" after a request for Trial De Novo, do you mean that a new trial is automatocally awarded to the defendant? 

 

Based on what I saw on another thread, in an answer you gave to someone else it sounds like DG dismissed the case after you were granted the Trial De Novo, but here it sounds like you had to jump through quite a few hoops even after that.  Educate me? 

 

No sure if it's proper, but I go out to Washington County (parents) all the time and I'd buy you coffee to pick your brain!

 

Thanks,

Christy

[Huey Pilot]

Oregon Arbitration is more or less a dress rehearsal for real Court. Once an Arbitrator has been assigned your time is limited and you only have a nominal 49 days to do all the paperwork and prepare for Arbitration. If you haven't requested discovery from DNGPC you have to do that immediately. They have 30 days to respond plus 3 for mailing. That leaves you only two weeks to strike documents and get motion's filed. It's a tight line. 

 

Automatic Award - Pretty much so.  When you loose at Oregon Arbitration (most likely - it's creditor friendly and Arbitrators know where the money comes from) you can file for appeal of arbitration and request a redo via trial de novo. In just about every case it gets awarded unless you do something really flagrant to disrespect the Court. JDB's pretty much have to go as far as trial de novo to avoid sanctions for filing frivolous law suits. It's at this point where they will aggressively negotiate for settlements or dismissal once you have filed your simple appeal. 

 

HP

[chicamarie]

Thanks for the solid info about what to expect in arbitration.  I am trying to have no illusions about what the process will be like.

 

So, I am preparing my Defendant's RFPOD and I am wondering if there is a pdf/form somewhere with all the legal portions at the beginning, or do I just copy what the Plaintiff's request looked like?  I was searching around these forums but I could only find ones where that part was edited out for brevity.

 

And, are they they same, generally, from state to state?  Or does Oregon have a specific format?

 

Trying to get this ball rolling, as you suggested.  They have not sent me a notice yet with the arbitrator or the date.

 

But I did get a call from the nice lady at DNG offering me a settlement of $12,000.  She's so nice.

 

Thanks!

[Huey Pilot]

Our DNG collection lady is such a sweetheart (Jan) and she's predictable also. Keep track of everytime she calls and leaves a "Call Jan at this 800 Number" and doesn't identy herself or her company. That's a FDCPA violation you can save for your counter claim.

 

 

Use the Microsoft Word Pleading Wizzard and Make you Caption and Banner headers look identical to the one you received. Suggest even the header and footers identify the Midland Funding LLC v. chicamarie, and the footer name the document with the page numbers identically to DNG's.  If you use the same font's and style just maybe you can cause some confusion and DNG will forget something.

 

Here is LegalEagle's 14 basic requests for Discovery I would suggest using.

 

Fourteen Basic Requests for Production of Discovery

(Defendants Requests for Documents from Plaintiff)

 

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 legitimacy 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."
 

Chain of Custody and Forward Flow

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.

 

========================================================================

Plaintiff has not provided proof that complaint is based on a foundation of facts or has omitted facts establishing the chain of custody of alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the alleged debt was allegedly transferred to subsequent assignees, any and all account numbers and/or the names of the account holders, or forward flow documents governing all transactions providing no standing for complaint, injury or cause for relief in this action.

======================================================================

Credit Card Collection Defense Mantra

The old  credit  card  collection  defense  mantra,  "Deny

everything,  say  nothing  and  demand  strict  proof,"  has  forced

creditors  to  more  ardently  pursue  collection  defendants  for

requested  discovery  as  to  whether  one  used  a  credit  card,  or

made  payments  thereupon,  or  received  monthly  statements.

==========================================================================

 

 

requestfordocuments.pdf

Admissions.pdf

definitions.pdf

Batteling Discovery Problems..txt

How To Set UP Pleading Wizard..pdf

[Huey Pilot]

At some point you will or have allready received some kind of bogus "Robo-Signed" affidavit from the Plaintiff. Any affidavit is considered testimony and admissable as evidence unless opposed.  I've attached a template for:

 

Defendant's Affidavit in Opposition to Plaintiff's Affidavit of "what ever her bogus name is"

 

Go ahead and modify it so that it corresponds to Plaintiff's affidavit of Sale or what ever the tittle preserving your objection. Try to counter Plaintiff's affidavit Point by Point so you have objections to everything in affiant's testimony. 

 

HP

Counter Affidavit opposing OC Affidavit of Sale_HP CIC Forum2.doc

[chicamarie]

Thanks Huey for the attachments.  Will look at them when I have more time at the computer.

 

One thing I've been stressed about, which I suppose I would be anyway, is that when I answered the original summons and admissions, I took the advice of some folks on another forum where they said to admit things like opening the account, etc, and deny the items regarding current ownership of the account, the current account balance, breaching the terms of the contract, etc. The logic seems to be that there would be more scrutiny attached to denying everything rather than just disputing some of the more salient aspects of the complaint.

 

So, while I plan to go forth and conquer with the requests for documents and such, I am wondering if I am screwed that I even admitted to anything in the first place.  I realize that they are trying to prove that I owe Unifund 15,000, so that's the most important thing they have to establish, but the complaint is breach of contract.  So, does any of that matter?

 

Thanks!

[Huey Pilot]

The axiom of Admit nothing, Deny Everything, and make the Plaintiff prove anything and everything is best. The only thing I would admit on an answer is that you live in the correct county where the Court is. (they already know that)

 

It might be too late but I would take leave of the Court and amend your answer. Don't give them anything - these people are trying to ruin your life. Don't do anything to help them make their case.  I'm thinking ahead to Arbitration. Your still with the Judge until Arbitration is assigned.  He might let you and allow for it. 

 

I can't remember - did you post your answers?  Maybe we should take a look at a redacted version rounding up the balances so you can remain un-identified to the internet. Might have been the counsel for the plaintiff on the other forum that made the bad suggestion. 

 

Your going to have to study everything on standing you can read or lay your hands on. Go to the Law library and find other cases similar to yours and see what was done to win. It's all public records. 

 

If they ask you when you want to take leave - suggest you want to add some counter claims and it should fly even if you don't.

 

HP

[chicamarie]

So, I won't post all of my answers to the Requests for Admission, but upon revisiting them it's not as bad as I thought.  Again, on the advice of a different forum, I answered "Defendant lacks the information to affirm or deny.  The accuracy of the attached documents is contingent on the veracity of the plaintiff's presentations."  This was on most of the questions regarding the attached documents.  The only place I actually "affirmed" anything was that I lived in Multnomah County and that entered into a contract with Citibank for a credit card, and that I used the credit card. 

 

I know it may sound bad, about admitting to the card and contract, but I actually had two credit cards with Citibank that were opened fairly close to each other.  One of them I kept open and continue to make payments on, after my financial debacle that got me here in the first place.  I thought it would be prudent to have one account in good standing.  It's current, albeit closed, per Citibank, after I stopped paying on the other one, which of course I did not foresee. 

 

Since I did not affirm that I was issued the card number they provided, I'm fairly convinced that I was being truthful without incriminating myself.  If it came down to it, it sounds resonable that I could claim that I had two accounts so was answering an inherently vague question.  But, we'll see.

[Huey Pilot]

OK!

 

"entered into a contract with Citibank for a credit card, and that I used the credit card". 

 

When asked I would stick to your story that you have/had a credit card with Chase (You can identify the good one) and that you are not in default status and that no action is being taken against you in it's current status. You should be good. I would not for any reason admit to anything on the other one. You will have to figure all the ways you can to prove Unifund does not meet any of the six elements of standing to sue in Oregon under ORCP 21A.

 

DNG as a law firm are pretty good and have successfully been doing debt collection law suits for years. They still don't like spending any more money then they have to to collect on debt. DNG files a lot of frivolous Complaints and get's away with it because people don't fight back and allow for easy default judgments against debtors. The Courts are overloaded and don't care. That's their business model. Make then pay then make them quit.

 

HP

[chicamarie]

So I'm sitting down with my template writing the RFPOD and I have a question about the wording - in all of the requests listed above, you have the word "agreement" in the document request.  Since I am being sued for breach of contract, should I substitute the word "contract" whenever possible"

[Huey Pilot]

So I'm sitting down with my template writing the RFPOD and I have a question about the wording - in all of the requests listed above, you have the word "agreement" in the document request.  Since I am being sued for breach of contract, should I substitute the word "contract" whenever possible"

 

Be careful on that one and only use where applies. We are asking for a "Credit Card Agreement", a "Contract with Original Creditor", a "Contract between Plaintiff and Defendant", a copy of the "Attorney Client Agreement" between Counsel and Plaintiff to prove the attorney has the right to sue on the behalf of the Plaintiff in Oregon. The tense really matters.

 

HP 

[Anon Amos]

So I'm sitting down with my template writing the RFPOD and I have a question about the wording - in all of the requests listed above, you have the word "agreement" in the document request.  Since I am being sued for breach of contract, should I substitute the word "contract" whenever possible"

I don't know that you need to substitute "contract" with anything; but I would make a habit of  often applying the word "alleged" in front of it.

[chicamarie]

So many little questions . . . I can't seem to find an account number for Unifund, to use in the RFPOD.  Is there a chance it isn't listed anywhere in the summons or "exhibits"?  Of course the original Citibank account number is indicated, but I can't see the other one for the life of me.  There are numbers in the upper right corner of the "assignment" to Unifund, but they don't seem to be account numbers.

[Anon Amos]

 I can't seem to find an account number for Unifund, to use in the RFPOD.  Is there a chance it isn't listed anywhere in the summons or "exhibits"? 

I would think there is a good chance of that (or you may just be missing it & it will jump off the page after a break) . The cases are usually filed with minimal info and no evidence. They usually don't start creating this stuff until there is a need, remember; most people don't fight. You should be able to word it without the alleged account number anyway, and may be better off . They may come up with different numbers if you don't help them out by giving them the number. They spend as little time as possible on these cases, and they are not at all personal to them. Ultimately they are just going to object to the discovery anyway, but it should  be done.

[Huey Pilot]

This is good advise from AMOS don't mention anything regards this "alleged account" the key is to request PROOF. Since they don't have any it looks good for your case if DNGPC doesn't comply with your request and you can ask for sanctions for being late. Stick to the 14 basic requests LegalEagel suggested and ask for the Attorney Client Contract to prove DNGPC has a right to represent the Plaintiff in an Oregon Court. More then likely you will get absolutely nothing. Now you can motion for deem admited, request sanctions, motion for dismissal etc.  If DNGPC has sent you requests for production you can pretty much ask the same questions back at them in your request for PODs. 

 

HP

[Anon Amos]

  If DNGPC has sent you requests for production you can pretty much ask the same questions back at them in your request for PODs. 

 

HP

Always use your opponents own weapons against them.

[chicamarie]

Based on what I've learned, I am not filing the RFPOD with the court, right?  But do I need to submit a copy down at the courthouse, just for the records of the case? 

 

And, in the template that you gave me, Huey, it states that the documents are to be made available at the attorney's, DNGPC's office. Is that really what I'm supposed to ask for, or am I supposed to indicate that they be sent to me?  It says for "inspection and copying" at the attorney's office, but I don't want to go meet Dan and Jan and all my buddies down there, do I???

 

And, lastly, since he provides both a physical address and a PO Box (where I've been sending things), which one do I use?  If I'm using CMRRR, then the physical address, right?

 

Thanks for all the good advice!

[Huey Pilot]

Marie,

 

If the Court Clerk will let you file them you will have a record of the filing with the time date stamp. Unofficially this is not required but DNGPC will be late with the production and you can prove it with the time date stamp and that it's a public record they were sent. 

 

Otherwise this procedure is very informal you just create your requests, attach a cover letter and include a certificate of service and I would send them CMRRR so they can't wiggle out of it. I filed with the Court because I didn't want DNGPC to say they received an envelope but it was open and any inside documents must have fallen out. 

 

Have them send the documents to you. (Inspect at your location at address 1234 any street, cirrus, OR etc...) That other is the way the ORCP reads. 

[chicamarie]

Current state of affairs - the case has been sent to the arbitrator.  I have to submit cash (ouch) and three potential trial dates by next week, the 10th.  I mailed my Defendant's RFPOD on June 20th, so at least I have some room to breathe there, I hope, in regards to whether or not they comply with the 30-day requirement.

 

I combined a couple of different sample RFPODs from posters here, the ones you suggested and others.  So now I am ready to send my Requests for Admissions and the Opposition to the Affadavit. 

 

It seems that many people's RFAs are just restatements of the RFPODs, just with a "admit that the plaintiff doesn't possess this document" wording.  I am leaning toward simple admissions like you have above, but pared down, as in, "admit that plaintiff cannot prove conclusively the accuracy of the amount owed on the alleged account," for example.  I like the idea of rewording every one of their admission requests to my advantage, but I haven't quite finessed that one yet.  I did copy their introductions word for word (unless it needed to be flipped - plaintiff/defendant, e.g.) on both the RFPOD and RFA.  I like that it might confuse them.

 

As to the opposition of the affadavit, I started out by using your sample, Huey Pilot, but then I noticed that some of the things you mention are indeed covered in this Robo-affadavit - knowledge of and access to business records, regular course of business, etc.

 

So, for example, she "says" this:

 

"My duties include having knowledge of, access to, business records relating to the Citibank account referenced above.  These records are kept by Citibank in the regular course of business and it was in the regular course of business of Citibank for an employee or representative with personal knowledge of the act, event, condition, or opinion recorded to make memorandum or records or to transmit information thereof to be included in such memorandum or records; and that the records were made at or near the time of the act and/or event recorded or reasonably soon thereafter."

 

As I type this I realize that what she is saying is that she has access to Citibank's business records.  This account is part of Citibank's business records.  Therefore she has has knowledge of this account.  Right?  So my opposition is along the lines of . . . just because she has access to and knowledge of Citibank accounts, she is not stating that she had personal knowledge of the account in question.  She has access to information about the account which was obviously generated long after the selling of the account, but that is all.  I just want to keep it simple, but effective.  I'll pursue this course of action unless anyone has better advice!

 

Thanks for the help so far.  Arbitration sounds depressing but I'm just going to keep doing the work, as they say.

[shellieh98]

 she is not stating that she had personal knowledge of the account in question.  She has access to information about the account which was obviously generated long after the selling of the account, but that is all.  I just want to keep it simple, but effective

 

she has to state she reviewed your account.  she may have access, but did she review your specific account and make sure it was correct? no.

[chicamarie]

In the mail today I received the responses to my RFAs, and a Motion for Summary Award.  They are basing this on my responses to their RFA's and their supporting documentation. 

 

My answers to their admissions requests were not as focused on denying everything a perhaps they should have been.  I admitted that I had a Citibank card and that I used it, but that was about it.  I was following advice from other forums and maybe some from posters on this board, and my gut, to be honest.  As much as I believe the CAs and JDBs are a bunch of hateful losers, I am a bad liar.  I just wanted them to have to prove that they owned my debt, prove the accuracy of the debt, and prove that they have standing to sue me.  My responses, and my RFAs to them, were based on that tactic.

 

So, they don't really have any new information in the giant envelopes I received, and they are basing this MSA on my admissions, it seems.

 

My next step was going to be the Opposition to the Affadavit (now two of them with the one from the JDB's attorney).

 

Now I should also be filing a Motion to Deny/Oppose the MSA?  Is that correct?  Is that the same as a MSJ? 

 

Is there a chance that they can get this granted even before the arbitration hearing, which is not even scheduled yet?  It has to be scheduled before July 22nd and has to happen before September 22nd, I think.

 

I'm panicking.  Sorry.  Just when I think I know the next steps to take I'm hit from the side. 

[chicamarie]

I finished panicking, sort of, and sat down to write my opposition to their MSA.  I'm going to try and paste it in here and get some feedback.  I realize it's a holiday weekend so it might be slow getting any response!

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR MULTNOMAH COUNTY

 

XXXXXXXX,

                  Plaintiff,

vs.

XXXXXXXX

                  Defendant

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Case No.: XXXXXXX

OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY AWARD
(ORCP 47: UTCR 13.100(8))

 

COMES NOW THE DEFENDANT in opposition to Plaintiff’s Motion for Summary Award in favor of Plaintiff and Plaintiff’s claim against Defendant. 

Plaintiff is not entitled to summary judgment because there are genuine issues as to material facts (ORCP 47 C; ⁽Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997)) as they relate to (a) the Plaintiff’s Request for Admissions and ( the evidence the Plaintiff has provided through Discovery, which does not support an award as a matter of law.

1. Standard for Summary Judgment

A party is entitled to summary judgment:

      “(I)f the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  ORCP 47 C

      In this case as discussed below, there are genuine issues of material fact.  The pleadings, affidavits, admissions, and evidence on file are incomplete, inconclusive, or irrelevant and therefore Plaintiff is not entitled to judgment or award as a matter of law.

                 

 

a. Material allegations in Plaintiff’s Requests for Admissions

     The Plaintiff relies on two (2) affirmative responses as evidence that the Defendant entered into a contract with Citibank and used the Citibank line of credit.  The Defendant has taken the matters of this case very seriously and has made every effort to answer the Plaintiff’s requests with honest and accurate responses.  As to the two (2) affirmative responses cited by the Plaintiff, “(1) Defendant entered into a contract with Citibank, N.A. (“Citibank”) for a credit card,” and “(2) Defendant used the Citibank line of credit,” the Defendant has had or currently has more than one credit card account with Citibank.  Answering in the affirmative was an accurate answer regarding the Defendant’s history with Citibank.  The affirmative responses were in no way an admission to the allegations presented in this case, as can be evidenced by Defendant’s other responses in the Plaintiff’s Requests for Admissions.  The Defendant does not affirm the accuracy or obligation to the Citibank N.A. account number in question (Plaintiff's Request for Admissions #4).

     Thus, the Defendant’s admissions support that there is an issue of material fact and that Plaintiff is not entitled to award as a matter of law.

         b.  Plaintiff’s Documentary Evidence is Incomplete and

         Inconclusive

     The Plaintiff has produced evidence in this case which has failed to provide adequate records to prove the accuracy of the claimed sum of alleged indebtedness, and which does not support the Plaintiff’s standing to sue as the Assignee of the alleged account. 

     (1) Plaintiff provides a limited view of the accounting for the original Citibank account in question (Exhibit 2).  Defendant requested additional supporting documents (pursuant to ORCP 43 B, Defendant’s Request for Production of Documents #2,4) and was provided with the limited scope of account statements as presented here by the Plaintiff as Exhibit 2.  The Plaintiff must provide accurate records as to the calculation of the sum of the alleged indebtedness, or the Defendant is obliged to take such sums at face value, without the ability to verify the calculated sums based on interest rates, fees, penalties, and the like.

     (2) Plaintiff provides, as documentary evidence of chain of title, a signed affidavit from a purported employee of Citibank, Tina Weedin; a photocopy of a Bill of Sale and Assignment to Pilot Receivables Management, LLC; and a copy of an Assignment between Pilot Receivables Management, LLC and Unifund CCR, LLC. 

     The affidavit from Tina Weedin contains redacted account information, and an address for the affiant, as provided as a business address, is, upon researching the provided address, a vacant building in Kansas City, MO.  An effort to subpoena the affiant would be very burdensome (ORCP 55, D,F) 

     The Bill of Sale and Assignment to Pilot Receivables Management, LLC contains no mention of the Citibank account number in question nor does it contain any information regarding the Defendant.  It is, for all intents and purposes, a generic document referring to a sale and assignment of any account, or group of accounts, from Citibank, N.A., to Pilot Receivables Management, LLC. 

     The letter of Assignment between Pilot Receivables, LLC and Unifund CCR, LLC is also a generic letter of Assignment that contains no relevant information to this motion or to this case.  There is no account number, either from the original creditor (Citibank) or Pilot Receivables that could be referenced.  The Defendant is not mentioned by name in the document. 

     The two latter documents, the Bill of Sale and Assignment to Pilot Receivables Management, LLC; and the Assignment between Pilot Receivables Management, LLC and Unifund CCR, LLC do not meet the standard for the State of Oregon definition of “relevant evidence” and can therefore not be used to support an award as a matter of law for the Plaintiff (ORS 40.150 Rule 401 Definition of Relevant Evidence.) 

 

            “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. [1981 c.892§21]

 

 

I haven't written my conclusion to this yet - waiting to hear a critique first, I guess.

 

 

 

      

Dated this [day] of [Month], [year]

[Attorney Name]