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Hello!

 

I'm working on an msj against the complaint on 3 accounts, account stated, money had and received and suit on contract.  I've seen a few of these cases, but haven't seen anything about having to file an msj.  I've started it, but would love some tips (especially for MO)

 

Also, along with this, should I file a motion to strike affidavit too? Since the bill of sale is bogus? Just a long run on sentence about PRA purchasing charged off accounts from GE BANK.

 

THANK YOU in advance!

 

* I have another post on here about my suit, but just wanted some advice specifically on creating a msj.

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To clarify, are you preparing an MSJ to file or you are responding to an MSJ they filed?

 

Motions to strike are almost always premature. Check your local rules of procedure. A MIL (motion in limine) to determine the admissibility into evidence is usually best. You can't strike evidence until it is admitted as evidence.

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@Flyerfan..I'm preparing a msj...I've gotten their production of documents, and all bogus of course, so I was going to move for summary judgment and thought maybe to strike their affidavit, but the affidavit is from someone at the OC, so not sure if that would be the best route, but I had created a MIL and was just about to file the next morning and that afternoon I saw they had file a certificate of service, meaning they sent their documents.  So I figured it would be best to file a msj rather than wait for them to do so and have to respond.

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@Flyerfan..I'm preparing a msj...I've gotten their production of documents, and all bogus of course, so I was going to move for summary judgment and thought maybe to strike their affidavit, but the affidavit is from someone at the OC, so not sure if that would be the best route, but I had created a MIL and was just about to file the next morning and that afternoon I saw they had file a certificate of service, meaning they sent their documents.  So I figured it would be best to file a msj rather than wait for them to do so and have to respond.

 

Hmm. I've never filed one, only responded. It's a pretty big undertaking.

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Do you think that's your best move? An MSJ basically says that this case is so clear cut that there is only one way to rule on it.

 

For example, an OC has every statement, cancelled checks with your last payment, a good affidavit that references specific records complete with exhibits, etc. They file an MSJ saying, look, we have everything.

 

OR:  A JDB files a suit with no affidavit or bill of sale and one credit card statement from the OC. They don;t respond to discovery and their admissions are deemed admitted. They're dead in the water so you file an MSJ. If their evidence exists (even if it is half assed) I think an MSJ on your part will be tough. Prima fascie (on its face) the case looks better for them than you. You can argue that their evidence is crap but that is what MIL's and trials are for. 

 

I honestly don't know everything about your case, just want you to know what you're in for. Do they have any evidence?

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@Flyerfan...well last night after chatting with racecar and doing some (lots and lots) of research we decided an msj is NOT the way to go, as it's a lot of work and i'm afraid if i do one thing wrong it will be dismissed.  so we're thinking an mil is the way to go...but now i just reviewed your post in jwsjohn's thread and am now wondering if i should just wait for them to file something and be ready for an opposition of their msj and attack their evidence...or would it be best to be proactive and file an mil.

 

i'm actually surprise they haven't folded yet...

 

here's a quick rundown of case

 

1. responded to their discovery

2. sent discovery

3. they didn't respond

4. filed a motion to compel

5. hearing on my motion to compel and their general objection (because of the whole electronic rule, even though i sent them the same disk they sent me)

6. my motion was granted, their objection was denied (yay!)

7. they responded to the production of documents (the final day they could..boo)

8. they sent me a bill of sale (with no reference to name or account, just the ol "pool of accounts"), affidavit of sale from an OC worker, blanket certificate of conformity for notary, and two account summaries, one from 2010 and one from 2011 (which doesn't show how they arrived to the final balance, right? as the card was opened in 2008)

   for most of the requests they wrote "plaintiff does not have said document in its possession.  if this document becomes available to plaintiff, plaintiff will timely supplement"

9.  That is where we're at...no court date on file...no hearing...no motions filed...

 

so should i wait it out and just be super prepared? or file a mil?

 

THANK YOU for any and all help!

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@Spikey Well that makes me feel better...from some of the other posts I've read, it seems as though they've dismissed as soon as discovery had been sent to them.  I was afraid that they're out for us for some reason, but if most of them rarely fold until the bitter end, I feel better about that.

 

@Spikey you filed a mil and msj at the same time, right?  then they dismissed at your trial hearing? is that correct? would you suggest i wait it out or file a mil?

 

THANKS!

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@edc88 It depends and from my own experience, you just need to keep fighting and not let the small setbacks get you down.

 

I did file a MIL and MSJ at the same time. They sure tried to dismiss, but I wasn't letting them get off that easy, especially since my MSJ was with prejudice. 

 

I don't know if you have a slam dunk case like I did, Illinois has quite a bit of pro-consumer case law in place for credit card cases. The JDB in my case didn't do the things required to prove standing or breech of contract plus they failed to file a disclosure statement. I basically had them by the short hairs.

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I'm a big fan of filing motions. MIL, Motion to Preclude, Motion to Compel, etc...

 

These guys pump their crap out so many times that it is easy for them to file motions. They're cookie cutter. Now when YOU file a motion, they have to be REactive instead of PROactive. No cookie cutter responses or they lose. It makes them work. All the gears have to shift. THAT (IMO) is what makes them dismiss.You cause them a hell of a lot of time and grief by filing motions. Not part of their business model.

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I'm on it.  Thank you!!!!

 

@Spikey...what is a disclosure statement? I don't think they included that with their bogus paperwork. I don't believe they have a standing to sue, but instead of breach of contract, the one count in their claim is suit on contract, therefore I can't use all the case law on breach of contract...suit on contract doesn't require them to have a signed written contract...it's implied. But they still don't have proof that they own my account.

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Also when citing cases do you need to cite the original case the quote came from? I've noticed when looking through cases it will cite a case that when going to that case actually quoted another case  ( i had to go like 5 cases back to find the one original quote).  I assume I need to quote the original case.

 

THANKS!

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@Spikey...what is a disclosure statement? 

 

@edc88 While not uncommon in other states, Illinois requires mandatory disclosure on certain types of civil cases. Which means both parties in a lawsuit have to share all of their evidence, witnesses, etc prior to trial. Usually there's is a time frame this needs to be done in. If you miss the time frame, there are repercussions, like not being able to use any of the evidence that wasn't disclosed. 

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One more question...not sure it's in relation to creating a MIL, but...they objected to two of my requests for production of documents:

 

1) A notarized statement, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally.

Answer: OBJECTION: Plaintiff objects to this request as it is vague, overly broad, ambiguous, unduly burdensome, and is not calculated to lead to the discovery of admissible evidence.

 

***does that mean they can no longer produce any such documents if we were to go to trial?

 

2) Any and all notes, memos, or likewise, be they handwritten....regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or account #.

Answer: OBJECTION: Plaintiff objects to this request as it seeks information that is protected by the attorney client privilege and the work product doctrine.

 

***what does it have to do with client attorney privilege?!?

 

THANKS!

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@Flyerfan...how would I attack the following documents:

 

  1. Blanket Certificate of Conformity for Notary  dated 12/13/2011
  2. PayPal Plus Summary of Account from 2010 and 2011
  3. Spreadsheet of Data printed by Plaintiff from electronic records provided by Original Creditor

I know the law for the bill of sale and affidavit, the hearsay exception law...but for the above, i'm unsure what to use...i found case law which i used in my argument section, but for the second section for law, do i have to address every single document?

 

THANKS!

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@Flyerfan...how would I attack the following documents:

 

  1. Blanket Certificate of Conformity for Notary  dated 12/13/2011
  2.  
  3. PayPal Plus Summary of Account from 2010 and 2011
  4.  
  5. Spreadsheet of Data printed by Plaintiff from electronic records provided by Original Creditor
  6.  

I know the law for the bill of sale and affidavit, the hearsay exception law...but for the above, i'm unsure what to use...i found case law which i used in my argument section, but for the second section for law, do i have to address every single document?

 

THANKS!

 

First of all, are the all authenticated? Were they specifically referenced in an affidavit and attached as an exhibit (has to be both). Authentication is huge. How do you know that sheet was printed up by the plaintiff FROM the OC's data file, or just typed up on Excel. You don't until a itness can confirm it.

 

I honestly don't know what the Blanket Certificate of Conformity for Notary is. Just a certificate that says "yeah, she's a notary"? OK, so she's a notary. And...

 

What does the PayPal Plus Summary show?  Back to authentication. Then find out if they obtained it legally. Did they need a subpoena? If so, did they get one? Lastly, does it show payments to the OC or the JDB? If it shows payments to the OC and it manages to be admitted by the judge it does not help them prove their standing at all!  

 

Attacking standing is what will win this case. Of course, attack it all, but the bill of sale and that BS spreadsheet are big to attack.

 

JMO

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@Flyerfan...thank you!  It does show one payment on the account summaries, but the summaries are only from two years and the account was opened for more than that, so it doesn't show how they came to the balance.  the original complaint was filed with the account summary from 2011, showing a charge off, when they produced documents during discovery, they added one from 2010, i'm thinking if they had them all they would have supplied them...so they can't prove an account stated without showing how the correct and true balance came to be.

 

the blanket conformity was exactly that...some lawyer swearing that the notary was a notary...stupid!

 

how would i find out if they obtained the paypal account summaries legally?

 

so the excel spreadsheet basically wouldn't be an exception to hearsay because they didn't provide a certified witness, just like the bill of sale (as their witness is someone with the OC and how can someone that works for GE testify on the ownership of the account by PRA?!?)

 

Thank you again for your help...it's MUCH appreciated!

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Correct. To be admissible under the business records exception they have to show that it was produced in the normal course of business, etc. How can they show the requirements of the business records exception without a witness (live or via affidavit) to testify to those requirements? They can't. So no affidavit or witness for authentication, no business records exception.

 

OK, the notary is a notary. They won a pretty big battle there, eh? Haha

 

You'll have to check with YOUR courts rules. Maybe someone here from Missouri went through something similar? But that is your personal account information. I highly doubt they can go get them without some sort of court order to do so.

 

Actually, the OC is the best person to testify that the JDB owns the account. They have no motive to lie. Nothing to gain. You still attack the OC's affidavit but also attack the bill of sale (doesn't have your name or account), the spreadsheet is a joke, probably says the accounts are sold with no warranty of accuracy and is also most likely incomplete as it is an exhibit to the larger document (Forward Flow) that governs the sale. Attack anything that has to do with their purchase of the account like it is trying to hurt your children! That is where 80% of your "attack" focus should be.

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@Flyerfan, thank you again!  I will attack their lack of standing to sue...but as far as the MIL, that is merely to get their documents inadmissible, correct?  So that's not where I would attack their standing to sue, correct?  I would bring that up, if they were to file an msj, my opposition would be all about that (and thanks to CACH, LLC v. Askew, I'm ALL over that!).

 

Thanks again!

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@Flyerfan, thank you again!  I will attack their lack of standing to sue...but as far as the MIL, that is merely to get their documents inadmissible, correct?  So that's not where I would attack their standing to sue, correct?  I would bring that up, if they were to file an msj, my opposition would be all about that (and thanks to CACH, LLC v. Askew, I'm ALL over that!).

 

Thanks again!

 

Yes and no. In your MIL you will try to get their evidence deemed inadmissible (bill of sale, BS spreadsheet, affidavit) which all support their standing to sue.

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. So no affidavit or witness for authentication, no business records exception.

 

I agree, but I would not submit to an affidavit. I do not agree that we can receive due process (our constitutional right) thru an affidavit (regardless of whether or not it's been notarized or under oath). Try to poke as many holes in an affidavit as possible (attack the affiant and foundation).  I would check  what your court rules say about affidavits and how the appellate courts in your state feel about them as well.

 

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I agree, but I would not submit to an affidavit. I do not agree that we can receive due process (our constitutional right) thru an affidavit (regardless of whether or not it's been notarized or under oath). Try to poke as many holes in an affidavit as possible (attack the affiant and foundation).  I would check  what your court rules say about affidavits and how the appellate courts in your state feel about them as well.

 

Agreed. But we also would poke holes in a witness (not literally of course). My point was if neither an affidavit or a witness exist, then they did not even attempt to authenticate it. Should be a slam dunk "inadmissible" unless you get a bad judge. 

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