Recommended Posts

I was given a bill of sale and attached with it was a "schedule" showing info about me and what appears to be account information. The bill of sale doesn't say my name or give any specific account info but refers to the schedule to identify the accounts included with the sale.

How do I defeat this?

Share this post


Link to post
Share on other sites

@Harry Seaward

 

How does the bill of sale refer to the schedule?  Is there anything on the schedule that indicates its creator?   If an affidavit has been provided, does it reference either document?

Share this post


Link to post
Share on other sites

@BV80 Here is the Bill of Sale with Schedule and then the Affidavit.  The Bil of Sale says " EXHIBIT C" at the top, but they marked it Exhibit D in their SoF to coincide with the Affidavit.  My redactions include partial balance, my full name, correct last 4 of my SSN and last 4 of an account number.  The first 5 of the SSN and first 12 of the account were redacted before it was sent to me.

 

BofA Bill of Sale_Redacted.pdf

Saland Affidavit_Redacted.pdf

Share this post


Link to post
Share on other sites

@Harry Seaward

 

It's the typical documentation.  The bill of sale doesn't reference you or the alleged account.

 

Notice that the bill of sale includes a phrase that accounts were sold "without recourse and without representations or warranties of any type", etc.  In other words, that bill of sale does not guarantee that the accounts are accurate or that any documentation is accurate or complete.  We don't know what the actual sales agreement states.   If BofA doesn't guarantee the accounts, how can a JDB do so?

 

While the bill of sale references a loan schedule, nothing on the alleged loan schedule indicates that the schedule is the one referenced in the bill of sale.  In fact, nothing on that schedule indicates that it was created by BofA.  That schedule is something that a 10-year old could have typed up and printed out. 

 

The affiant states that the records were made in the ordinary course of BofA's regularly conducted business activities.  How does he know this?  He doesn't work for BofA.  He's ASSUMING they were made by BofA in the regular course of business.

 

In paragraph 5, he states that the documents were transferred to the plaintiff via the chain of title described in the bill of sale.  Well, that bill of sale doesn't say what documentation was included in the alleged sale.  Like I said, that schedule could have been typed up by anyone. 

 

You also want to point out that Saland can't authenticate those documents.  His claims that the docs were created by BofA in the regular course of business are unsupported.    There's nothing from BofA that references any of the docs.  There's only PRA's word that the docs were created by BofA, and that the docs are accurate.

  • Like 1

Share this post


Link to post
Share on other sites

That Bill of Sale looks just like the piece of garbage another JDB used on my case. Hammer them on the lack of warranty on the accuracy of the data. I'm surprised that they don't have something referencing their own case file on that made-up loan schedule. There should be hundreds if not thousands of accounts in the sale. Why does the schedule only show your alleged account? Because it's not the actual loan schedule that was provided to them.

Share this post


Link to post
Share on other sites

@BV80 and @Spikey I have already filed my OMSJ (it's posted on the previous page of this thread).  I brought up the lack of my name and reference to a specific account in the Bill of Sale but I wasn't sure how to get around the reference to the Schedule.  I knew it wasn't what came over from BofA, but when I asked them in my Roggs to state the total number of accounts in the portfolio they objected stating it would not lead to discoverable evidence.  I don't know how else to get at this info other than to question them about the Schedule at trial.  I also completely missed the lack of a guarantee verbiage.

 

I'm expecting them to file a response to my OMSJ any day now and I think I can get in another quick reply before it goes to the judge and can bring up these issues then.  If their MSJ gets denied, is the next step to file a MiL to preclude their junk?

Share this post


Link to post
Share on other sites

@BV80 and @Spikey I have already filed my OMSJ (it's posted on the previous page of this thread).  I brought up the lack of my name and reference to a specific account in the Bill of Sale but I wasn't sure how to get around the reference to the Schedule.  I knew it wasn't what came over from BofA, but when I asked them in my Roggs to state the total number of accounts in the portfolio they objected stating it would not lead to discoverable evidence.  I don't know how else to get at this info other than to question them about the Schedule at trial.

 

I think your "mistake" was asking for an exact count of the number of accounts in the sale. I asked them to admit it was a bulk sale which they admitted to without objecting. The actual number of accounts is somewhat irrelevant. Obviously the greater the number of accounts the higher there is a chance of an error.

Share this post


Link to post
Share on other sites

@Harry Seaward

 

If i'm not mistaken, a MIL can be filed after discovery is completed.  A motion to strike evidence can be filed before a trial because when a MSJ is filed, any included exhibits are evidence.   I believe you can also file a motion to strke an affidavit.

 

Check your rules.

Share this post


Link to post
Share on other sites

@BV80 @Spikey @Seadragon

 

Today I got their Response to my OMSJ.  Most of what they are going into here is way over my head (or they are just trying to baffle the court with legal jargon).

 

I think I can handle the SOL part of my response, but I'd like some help with their claim that Bennet v. Napolitano doesn't apply (I think I can make use of Certified Collectors, Inc. v. Lesnick here) and mostly the "verbal act of independent legal significance" part of their evidence.

 

Plaintiff's response ISO MSJ_Redacted.pdf

 

I thought it was interesting that they don't really deny the Bill of Sale is crap, and they don't even mention the Schedule that allegedly ties me to the debt.

 

Share this post


Link to post
Share on other sites

Breach of Contract? Which one or where is the contract?

What about the explicit terms of the cardholder agreement? Not to include the Choice of law as the assignee?

Did it mention in your cardholder agreement if the state law changed that the state the cc agreement was bound would change?  And thats really pathetic to use Texas law on hearsay.   They tried to dish me at my trial for using a recent supreme court ruling in another state .

Keep up the good fight!!!!!!!!!

Share this post


Link to post
Share on other sites

@Harry Seaward

 

They say Bennet v. Napolitano doesn't apply because it dealt with standing to sue against government officials?  That's their argument?  This is from the Bennet case:

 

This mandate underlies our own requirement that as a matter of sound jurisprudence a litigant seeking relief in the Arizona courts must first establish standing to sue. Bennett v. Napolitano, 206 Ariz. 520, 525, 81 P.3d 311 (2003).

 

Where does it say one must only have standing to sue government officials?  It doesn't say one must only prove standing to sue if one is suing a government official.

 

From the Supreme Court of the United States :

 

"Standing to sue is part of the common understanding of what it takes to make a justiciable case," Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). (emphasis mine)

 

Standing generally requires an injury in fact, economic or otherwise, caused by the complained-of conduct, and resulting in a distinct and palpable injury giving the plaintiff a personal stake in the controversy's outcome. Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 562-63, ¶ 18, 81 P.3d 1016, 1021-22 (App.2003) (quotations and citations omitted).

 

We interpret the law of standing in conjunction with Arizona Rule of Civil Procedure 17(a), the real party in interest rule. See, e.g., Toy v. Katz, 192 Ariz. 73, 87, 961 P.2d 1021, 1035 (App.1997).

 

Plaintiff has mischaracterized Defendant's argument regarding the issue of standing to sue.   Defendant has not argued that all assignees are precluded from asserting a cause of action.  Instead, Defendant argues that assignees who cannot prove a valid assignment have no standing to sue.  Plaintiff has not proven the existence of a valid assignment from Bank of America and has not proven their ownership of the alleged account in question.  Absent proof of ownership of the alleged account, Plaintiff has failed to prove an injury in fact and, therefore, has failed to prove its standing to sue.

  • Like 1

Share this post


Link to post
Share on other sites

Thanks for reaffirming what I used in my answer and my MOSJ.  Just want to say you are awesome. Alot of times people here get an opposition like this and panic and give up. Sometimes they do not even know the case law in the opposition is not admissable. And that is because they figure the judge doesn't know it either and will not read up on it. 

The courts are so overloaded that the "judge is not going to take the time out to read case law".

Pro pers  have to educate them and make their own case.

  • Like 1

Share this post


Link to post
Share on other sites

@BV80 That's pretty much where my head has been on the Standing issue.  Their argument struck as me as really lame, but I wanted to make sure I wasn't skipping over something obvious.

 

What I perceive as my real problem now is their "verbal act of independent legal significance" angle that they are trying to use to get around the hearsay rule.

Share this post


Link to post
Share on other sites

Breach of Contract? Which one or where is the contract?

What about the explicit terms of the cardholder agreement? Not to include the Choice of law as the assignee?

Did it mention in your cardholder agreement if the state law changed that the state the cc agreement was bound would change?  And thats really pathetic to use Texas law on hearsay.   They tried to dish me at my trial for using a recent supreme court ruling in another state .

Keep up the good fight!!!!!!!!!

Hey, you're not supposed to be agreeing with me on my SOL argument!  :-D

Share this post


Link to post
Share on other sites

I couldn't find Keefe v. State, but I found the other cases.

Plaintiff argues that the billing statements, bill of sale, and schedule are admissible as a verbal act of legal significance under the Doctrine of Legal Significance and cites caselaw from various cases to support its assertion.  This argument has nothing do with the fact that the documents offered by Plaintiff are considered business records and that under Arizona Rule of Evidence 803(6), a proper foundation must be laid for the admission of business records.

The cases cited by Plaintiff in its response to Defendant's opposition make no mention of "business records" in relation to the Doctrine of Legal Signifance.  In State v. Nightwine, the issue before the court was whether or not taped words of a "co-conspirator" in a crime were admissible as evidence.

State v. Palmer was in regard to a statement made concerning evidence evidence in a crime and it's admissibility under 801(a), not 803(6).

Likewise in State v. Chavez, no mention is made of Federal Rule of Evidence 803(6).  However, in Millenkamp v. Davisco Foods Inter., Inc., the Ninth Circuit Court of Appeals cited that rule which contains the same requirements as the state rule of evidence.  See Millenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971, 980 (9th Cir.2009).

An act of independent legal significance, verbal or otherwise, has nothing to do with the authentication of business records under Arizona Rule of Evidence 803(6) (the business records exception).  Plaintiff's contention that the records are admissible under the Doctrine of Legal Significance is in opposition to A.R.E. 803(6).  Plaintiff has offered no legal precedent that shows that business records are admissible under that doctrine and that the requirements outlined in 803(6) do not have to be met.

 

More later.

Share this post


Link to post
Share on other sites

Here's a suggestion for their next argument that the records are admissible under 803(6).

 

Plaintiff also asserts that the documents are admissible under business records exception and offers a Texas case to support its definition of a qualified witness.  That non-binding case does not support Plaintiff's contention because one only needs to look to Villas at Hidden Lakes v. Geupel Construction, which Defendant cited in his opposition, to determine what is required of a qualified witness to sufficiently lay the foundation for the admission of business records.  According to the Court in Villas:

"Although Neal states he made the affidavit on personal knowledge, he does not lay a foundation for either the admission in evidence of the exhibits or the admission of his conclusions based on the exhibits. The affidavit does not say that Neal ever reviewed the exhibits or that he is familiar with the person who prepared them or the manner in which they were prepared. We conclude that Neal's affidavit did not affirmatively show that he was competent to testify to any conclusions derived from the exhibits attached to the affidavit."


In addition to the aforementioned case, Defendant offers the following comment contained in Arizona Rules of Evidence 803.

COMMENT TO 2012 AMENDMENT   (You can find this comment at the bottom of 803 in the rules of evidence.)

 

To conform to Federal Rule of Evidence 803(6)(A), as restyled, the language “first hand knowledge” in Rule 803(6)(B) has been changed to “knowledge” in amended Rule 803(6)(A). The new language is not intended to change the requirement that the record be made by--or from information transmitted by--someone with personal or first hand knowledge.

 

Mr. Saland does not state that the record was "made by--or from information transmitted by--someone with personal or firsthand knowledge".  In fact, he does not state that the records were made by anyone with knowledge at all as is required by that rule.

It is a fact that he does not state that the records were made by or transmitted from someone with knowledge.  It is a fact that he has not stated that he is familiar with person who prepared the records or the manner in which they were prepared as mandated by the court in Villas at Hidden Lakes v. Geupel Construction.  It is also a fact that Mr. Saland is not a custodian of records for Bank of America and therefore, would not be familiar with the person who prepared the records and could not testify as to the manner in which the records were prepared.

 

Wherefore, the affidavit of Mr. Saland is insufficient to lay the foundation for the admission of the business records submitted by Plaintiff or to support a motion for summary judgment.

 

Something like that.

 

Share this post


Link to post
Share on other sites

I told you in a PM I was hoping you would set precedent on the SOL. I just play the devil's advocate to make people work harder to find a case. Believe me, I searched hard and lond as my case is over a year old, I acually used Villas at Hidden Lakes in my defense in my trial briefs. I think this is a really good defense. My whole trial was stopped and based on the new hearsay rules 803 (6) A and this is important to cases in Az. And I can say that because when the plaintiff mentioned it, and then I used it , The judge stopped the trial. So this is a key point in your defense

Share this post


Link to post
Share on other sites

@BV80 Wow, buddy, that's far and away more than I was looking for.  I really just wanted some direction on where to start looking.  I certainly wasn't expecting you to draft my response for me, so THANKS a ton!

 

It turns out the judge DENIED their MSJ ::punk:: but granted their Motion to Continue.  :<img src=:'>:" /> The whole point for the continuance was to make their MSJ timely. Maybe there is some other reason the JP continued the case, but if it was in response to the Plaintiff's motion, it makes no sense in light of the MSJ being denied. Also, the Clerk told me that my Motion to Strike was treated as a response to the MSJ, and since the MSJ was denied, the MtS is moot. My MtS was as much about getting their evidence stricken as cutting them off at the knees with their MSJ, so what's my next move here? File a MiL to get their evidence precluded?

Share this post


Link to post
Share on other sites

I told you in a PM I was hoping you would set precedent on the SOL. I just play the devil's advocate to make people work harder to find a case. Believe me, I searched hard and lond as my case is over a year old, I acually used Villas at Hidden Lakes in my defense in my trial briefs. I think this is a really good defense. My whole trial was stopped and based on the new hearsay rules 803 (6) A and this is important to cases in Az. And I can say that because when the plaintiff mentioned it, and then I used it , The judge stopped the trial. So this is a key point in your defense

I was teasing you.  :razz:

I'm happy about the MSJ getting denied, but now I'm nervous about what's coming up next.  If the JP is considering Plaintiff's 803(6) argument, you're right.  I'm going to need to be on my A game to do battle with these guys.

 

At this point, I don't have anything in writing explaining why the JP denied the MSJ, but I'm not holding my breath that I'll get anything meaningful when I get the notice from the Court.  Past experience has been less than satisfying in terms of getting explanations from this particular JP.

Share this post


Link to post
Share on other sites

@Harry Seaward

 

Sometimes I'll write things out, but it's not for the purpose drafting a response.  I just show how I would respond if I were the one being sued.  :-)

 

This is included in Rule 56(b):

 

The amendments to Rule 56(a) and (b), requiring a motion for summary judgment to be filed 90 days prior to the trial date, change the practice of permitting the superior court to adopt local rules setting deadlines for the filing of summary judgment motions. Such amendment does not, however, preclude the superior court from enlarging the period for filing a summary judgment motion pursuant to Rule 6(b) of these rules.
 
Rule 6(b). Enlargement

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(d), (g) and (l), and 60©, except to the extent and under the conditions stated in them, unless the court finds (a) that a party entitled to notice of the entry of judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (b) that no party would be prejudiced, in which case the court may, upon motion filed within thirty days after the expiration of the period originally prescribed or within 7 days of receipt of such notice, whichever is earlier, extend the time for taking such action for a period of 10 days from the date of entry of the order extending the time for taking such action.

 

You need to find out exactly why the MSJ was denied.  It's possible the continuance was granted in order to keep their MSJ from being denied due to the untimeliness of the filing.  In that case, it seems that the MSJ would have to have been denied for another reason, but I don't know.

 
 

Share this post


Link to post
Share on other sites

@BV80

 

@Harry Seaward

 

Sometimes I'll write things out, but it's not for the purpose drafting a response.  I just show how I would respond if I were the one being sued.  :-)

 

This is included in Rule 56(b):

 

The amendments to Rule 56(a) and (b), requiring a motion for summary judgment to be filed 90 days prior to the trial date, change the practice of permitting the superior court to adopt local rules setting deadlines for the filing of summary judgment motions. Such amendment does not, however, preclude the superior court from enlarging the period for filing a summary judgment motion pursuant to Rule 6(b) of these rules.
 
Rule 6(b). Enlargement

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(d), (g) and (l), and 60©, except to the extent and under the conditions stated in them, unless the court finds (a) that a party entitled to notice of the entry of judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (b) that no party would be prejudiced, in which case the court may, upon motion filed within thirty days after the expiration of the period originally prescribed or within 7 days of receipt of such notice, whichever is earlier, extend the time for taking such action for a period of 10 days from the date of entry of the order extending the time for taking such action.

 

You need to find out exactly why the MSJ was denied.  It's possible the continuance was granted in order to keep their MSJ from being denied due to the untimeliness of the filing.  In that case, it seems that the MSJ would have to have been denied for another reason, but I don't know.

 
 

 

 

The phrase that jumps out at me is "excusable neglect".  Plaintiff didn't even try to excuse it's neglect.  I know it's the judge's call on granting continuances, but it seems like a judge should expect a party to at least come up with a reason for it's failure to act within the time set by the rules, even if it's to admit they forgot to put the date on their calendar and throw themselves on the mercy of the court.  Cavalry basically said, "yeah, we know the rules.  So what?  We're entitled."

 

Anyway, if I don't get a detailed explanation from the JP, should I file a Request for Clarification?

 

 

Edit: Also, the date of the new trial does not grant them enough time to file another MSJ, so it makes even less sense to continue the case based on their MtC.

Share this post


Link to post
Share on other sites

Anyway, if I don't get a detailed explanation from the JP, should I file a Request for Clarification?

 

That I can't tell you, because I don't know what your rules allow.  Perhaps one of the AZ residents here on the boards will know.   Until then, I would go ahead and see what's in the court records. 

Share this post


Link to post
Share on other sites

I got the ruling in the mail just now. I'm walking out the door so I can't post it right now but the judge signed the plaintiff's form of order saying the MSJ was granted but hand written above the judge's seal is the word "denied". Not only did I get no clarification on why it was denied, I'm now more confused because of the way it was denied.

And yes, I did include a proposed form of order TWICE with my pleadings. Why the judge chose to use the plaintiff's form? No idea.

I can file a Request for Clarification. The plaintiff did that earlier on another confusing ruling by this JP in this case so that's what I'll do.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.