Az Piano Lady 14

Thank You All!!---A Midland Win

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JCRCP RULE 129e For summary judgment motions. Affidavits. Affidavits must meet the requirements of Rule 109(d). Affidavits in support of or opposing a summary judgment motion must be based on personal knowledge and must
contain only facts that would be admissible as evidence at trial under the Arizona Rules of
Evidence. If a party opposing a summary judgment motion cannot obtain affidavits or exhibits
within the time allowed for filing a response to the motion, the opposing party may ask the court
for more time to respond by stating the reasons why additional time is required. The judge may
impose a penalty on a party who submits an affidavit in bad faith, or who files an affidavit only
to delay the lawsuit. [ARCP 56(e)–(g)]

 

So a Statement of Disputed Facts would be necessary.

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That is what I have said all along. Especially in case #2   If you do not file a notarized affadavit denying debt, then you have not opposed.  An answer is not notarized.. The Plaintiff can say it is self serving.  BUT so is their affadavit, with NO witness!!!

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Sorry the rule didn't paste into the post correctly, I edited it. Section (a) is the part. To attest to the records incorporation they would have to be able to say that the witness was personally there when the records were transferred, that the system was running error free, and that they were accurate before they were introduced. You see electronic records have different authentication measures. the copies you get in discovery are not copies of paper documents, they are electronic records which have to be vouched for when they are added to the system.

 

Lorraine v. Markel is a great case to read about that. Judge Grimm breaks the whole summary judgment procedure down including evidence requirements. Specifically, it cites Imweinklereid, McCormick, and even state statutes.

http://www.mdd.uscourts.gov/Opinions/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf

more reading:

http://en.wikipedia.org/wiki/Lorraine_v._Markel_American_Insurance_Company

Not being controversial, just trying to help people fight MSJ.

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@Seadragon

 

It's a good case to read.  One can use it in opposing an MSJ and attacking the evidence.  But it's a federal ruling and not binding on any state court.   Just because some states' rules of procedure and evidence mirror the federal rules doesn't mean the state court have to apply the rules the same way federal courts do.

 

If there's precedent similar to Lorraine v. Markel , it would be great.  Defendants have to research how their own courts have ruled on the issue of computer-generated records and the business records exception.

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That is what I have said all along. Especially in case #2   If you do not file a notarized affadavit denying debt, then you have not opposed.  An answer is not notarized.. The Plaintiff can say it is self serving.  BUT so is their affadavit, with NO witness!!!

Yes, my observations on reading all of these appealed cases seems to strongly support the notion that if the defendant denies opening the account or denies using the card, the appellate court will not allow summary judgment to stand in the plaintiff's favor.  This seems to be a reliably repeatable method of surviving summary judgment.  I assume no responsibility for how one may choose to use that information.

 

Note that I 'line item' denied all of Plaintiff's allegations in my answer.  When discussing my response to Plaintiff's MSJ, the appellate court ruled that this is not sufficient:

 

Defendant did not deny owing the credit card debt. Instead, Defendant asserted he filed an Answer and avowed that if a debt was owed to Bank of America, no payment could have been made following November 2008. Defendant failed to controvert Plaintiff’s facts. The failure to controvert facts may be taken as an admission that the moving party’s facts are true.

 

Incidentally, I believe the last sentence to be false based on this ruling from Allen.

 

 

A plaintiff's motion for summary judgment does not operate to shift that burden of proof. Put differently, the mere absence of a genuine dispute of material fact does not automatically entitle a plaintiff to judgment — the plaintiff must also demonstrate that the evidence entitles it to judgment as a matter of law.

 

I argued this using Allen and Mahmoodi in a motion for reconsideration and it was rejected.  Apparently the appellate court felt that the plaintiff demonstrated that the evidence entitled it to judgment as a matter of law when combined with my failure to deny under oath that I owed a credit card debt.

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@Harry Seaward

 

I argued this using Allen and Mahmoodi in a motion for reconsideration and it was rejected.  Apparently the appellate court felt that the plaintiff demonstrated that the evidence entitled it to judgment as a matter of law when combined with my failure to deny under oath that I owed a credit card debt.

 

 

I'm just going to throw this in here:  That might work to get you past summary judgment as long as the plaintiff has no evidence of payments, and they don't subpoena your bank records in order to match payments from your account to payments on the credit card statements.

 

I can only remember one case here on this site in which the plaintiff JDB subpoenaed the defendant's bank records, so I don't know how often it's done.  I do know that there is a law firm in my state that routinely subpoenas the bank records of defendants who deny owing a debt.

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I'm just going to throw this in here:  That might work to get you past summary judgment as long as the plaintiff has no evidence of payments, and they don't subpoena your bank records in order to match payments from your account to payments on the credit card statements.

I'm with you and this is just one of the plethora of things that can get you into hot water in denying knowledge of the debt and why I disclaimed my observations.

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No the court wouldn't make them do it, but a plaintiff can subpoena of their own accord if the defendant is denying under oath all knowledge of the account.

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However, for others, who don't "already know what you know" and do stand a chance of getting themselves past an MSJ, as many others before them have, I will make 1 more response to an earlier request of yours: "take a look at rule 902.11".

 

I did, and I'm paraphrasing and speaking from memory for those who must heavily scrutinize all post, (and I am assuming any one interested will do their own research). Your version of 902.11 allows affidavit, but states it has to comply with 803 - 6 which  also allows for affidavit, so that's pretty rough, BUT it states UNLESS A CHALLENGE TO FOUNDATION is made or issue of UNTRUSTWORTHINESS are brought up.

 

Even allowing for paraphrasing, it does not "state" that all you have to do is bring up a challenge to the foundation or the issue of untrustworthiness.

A challenge to a foundation or trustworthiness must be valid. To simply bring up a challenge or the issue of untrustworthiness is not enough to disqualify an affidavit.  If all we have to do is say "Objection. Hearsay", no affidavit would ever survive and no business records would ever be admissible. 

 

 

I know you guys think the bottom feeders are a professional trustworthy, public traded and fortune 500 business etc. so you will be quick to dismiss TRUSTWORTHY

 

 

What an asinine statement.

"You guys"?  Really?  One person pointed out that the JDBs are not criminals or doing anything illegal simply because they buy debts.  He pointed out that they're not making up accounts that never existed.  That's a far cry from believing JDBs are trustworthy.

 

Your comment was rude and baseless.

 

 

 

but I have always said to challenge the lack of FOUNDATION.

 

The problem is that you don't usually explain what it means.  In various threads, a number of us have provided specifics to explain how to challenge an affidavit, as well as applicable case law to support the challenge. 

 

@Harry Seaward did those very things yet you had the nerve to ask him how well he knew his "states rules of evidence, authentication and foundation procedures relating to the admittance of evidence".  Based on his question about affidavits and evidence, you told him "It amazes me that you can actually ask 'what difference does it make if an affidavit is evidence or not' when talking about a trial, but it does not surprise me that you lost yours..."

If you had bothered to read his thread and documents, you would have found out exactly how he had opposed the affidavit AND the fact that there was no trial.  He never made it past summary judgment.   

 

 

 

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Even allowing for paraphrasing, it does not "state" that all you have to do is bring up a challenge to the foundation or the issue of untrustworthiness.

I never said it did. There have been  a few people (that I know of) who did not know that the trustworthy or foundation language was even in there. I'm just heading them in  possible direction. I didn't say only do that. 

A challenge to a foundation or trustworthiness must be valid.

I never said it shouldn't be valid. It could raise a material issue however, and this was MSJ. It could raise a material issue that would then warrant a trial where a trier of fact (a judge in court) would determine if it was "valid". The MSJ should just decide if there are material issues to head to trial, not weigh the evidence.

To simply bring up a challenge or the issue of untrustworthiness is not enough to disqualify an affidavit. 

I have said many times that you most likely will NEVER be able to disqualify an affidavit in a MSJ. MSJ's are handled by affidavit and should be. Most of the time you probably would never even challenge the affidavit IN AN MSJ. You might challenge the affiant's ability to lay a foundation for anything, you may be able to show something is not trustworthy, and you show as many triable issues as possible, demonstrating the need for trial. An MSJ is stating there is nothing disputed and everything is correct so there is no need for trial, and if that's was the case then it shouldn't matter that they used an affidavit in an MSJ.

I am not saying that IF YOU COULD get the affidavit stricken from the msj that you would not win the MSJ, but good luck getting the affidavit stricken from the MSJ. If you are attacking the affidavit in an MSJ rather than the foundation, trustworthiness, and triable issues then you most likely will lose the MSJ.

Further, IF you CAN'T do ANY of the above, and you find everything is trustworthy etc. then it could also be that there are no triable issues and you don't contest anything. That's another reason you may not get past an MSJ.

If all we have to do is say "Objection. Hearsay", no affidavit would ever survive and no business records would ever be admissible. 

That's "an asinine statement". And I have never ever suggested anything remotely close to that. But it probably will be an objection people should make a lot. We have had this same argument so many times I should just cut and paste

 

 

 

What an asinine statement.

"You guys"?  Really?  One person pointed out that the JDBs are not criminals or doing anything illegal simply because they buy debts.  He pointed out that they're not making up accounts that never existed.  That's a far cry from believing JDBs are trustworthy.

 

Your comment was rude and baseless.

I never should have said "you guys". It was mostly just directed at Goody and a bit at Harry (but you could clearly see it was not at you) . He has pointed out in several post that the bottom feeders are legitimate business etc. and not criminals etc. But that is not always the case. Congress has even acknowledged that they often break laws, add to divorce and BK rates etc. The comment may have been rude but it wasn't baseless. The rudeness stemmed from an earlier Goody post that I ignored. He asked (amongst other  things) If "I subpoena  the representative from HUD every time I try to rent an apartment". The only time I ever deal with HUD is when my company contracts for them (but I don't look down on people who are helped by HUD, or comment on their personal finance). I wasn't offended, but two other people who are in the HUD system were. One of them I helped win her case, and she used to make good money. She felt ashamed and embarrassed for a while after having to be helped by HUD. In any event they were both very offended,  let me know about it, and some of that trickled into this post.

 

 

 

The problem is that you don't usually explain what it means.  In various threads, a number of us have provided specifics to explain how to challenge an affidavit, as well as applicable case law to support the challenge. 

Actually I do explain this, often. Just not in open forum. And it will very case to case. And I also say that if anyone wants my opinion they can PM me. I don't explain this and a few other things for several reasons:   1) The strong possibility that you will try to discredit me or what I say. Kind of like what you do when you repeatedly say things like "you have to do more than just shout hearsay, hearsay."  Foundation is important and I don't want you to argue against what I say on it.    2)  There are times when I won't go too far into explaining something in open forum because I am not trying to tip off a bottom feeder or send them a bone. 3) I may not always have the time.  There are a few other's but for the most part it's #1 so I am just going to leave it with these.  

 

@Harry Seaward did those very things yet you had the nerve to ask him how well he knew his "states rules of evidence, authentication and foundation procedures relating to the admittance of evidence". 

This was not rude and was said during a very civil discussion between Harry and I, and I had genuine concern that he may have missed something. It didn't have anything to do with you and it was last year (did you run out post to correct ?). Also Harry later said that he did miss something and read a few cases wrong (he even said I had mentioned some of this)

Based on his question about affidavits and evidence, you told him "It amazes me that you can actually ask 'what difference does it make if an affidavit is evidence or not' when talking about a trial, but it does not surprise me that you lost yours..."

So what? I am not even sure what your point is here. I have seen him give people "an almost zero chance of wining your case" etc. etc. in  their thread, and then I see him ask "what difference does it make if an affidavit is EVIDENCE or not ?"  And Yes, that absolutely amazes me. I am sorry if that offends you for some reason. Would it help if it just really, really surprises me? Because I could get on board with that.

 

EDIT: After re reading it; I guess your point was that I said trial and he never got that far. I can still stand behind the "so what" however. Regardless, trial, msj, motion, etc etc. If you cannot distinguish the difference between AFFIDAVIT and EVIDENCE you can expect to have some serious problems.

 

 

 

If you had bothered to read his thread and documents, you would have found out exactly how he had opposed the affidavit AND the fact that there was no trial.  He never made it past summary judgment.

 

******** I wasn't interested in how he opposed the affidavit. Again, it probably wasn't even necessary or possible to oppose the affidavit as this was an MSJ.  If you just oppose the affidavit in summary judgment then you most likely will lose. Summary judgments are conducted by affidavit. I was trying to find out what he did BESIDES opposing the affidavit. I did not need to read what he did to oppose the affidavit to know that wasn't going to work. I was trying to find out if he could have done more to challenge foundation, trustworthiness, and show material issue of fact better, so that it might help others in AZ. 

 

I also said that I would now stay out of it and post in CA threads only, but I guess you feel compelled to dig up older  post that were to someone else (and already responded to). Sorry you found my comments so offensive, but I think it was pretty evident that the "you guys" was not directed at you, and I doubt the other 98% of members thought it was to them. But if anyone did, then apologies to you as well..

However these post and issues have already been discussed and played out. The OP has also asked to allow the thread to get back on track and I said I would post in CA threads. Not sure why you feel the need to bring this up now.

 

In any event, I will go back to posting in CA threads only, and as I have stated before, if anyone wants my opinion or explanation on it  they can feel free to PM me.

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@Anon Amos
As an intended target of your comments, I feel I should respond.

I wasn't personally offended by your comments, but they were definitely insulting. My feelings on the matter are that you are either oblivious to the way things you say sound to others or that you say them that way intentionally to get a reaction. Either way, I haven't had much success in trying to have a civilized debate with someone that continues to act the way you do when people have tried to be reasonable. Admittedly, I'm lazy and I'll only give it a limited number of tries before I give up on diplomacy.

I know you can't fathom the idea that it's possible there is no way to keep a JDB or OC from getting a judgment against someone, and you don't like when I say things to you and others that make you have to think about it, but I have good reasons. I have my own personal experience and the anecdotal evidence I read about here (and you're fooling yourself if you think what you read here isn't anecdotal), but much more importantly, I have done some fairly scientific research to back up my statements. The most scientific I've seen here, anyway. As far as I can tell, you haven't done any research. You haven't spent time reading through threads of the people that worked harder than most, yet ended up with judgments regardless. Maybe you just think they are losers in life and aren't worthy of your time. I personally think it's that you can't read those cases because it challenges your fundamental belief that "everyone can win if they do it right!" You have had some people PM you that they "won", whatever that means, and then say people that don't win didn't do it right or got out of their case what they put into it. You haven't presented a repeatedly successful strategy that works in all situations demonstrated by a proven record of "wins". I know your response is that "each case is different", but if that's true (and I happen to believe that it is), there are only so many bases one person can be expected to cover and after that, all we're really taking about is luck. To tell anyone otherwise feels like bullying to me. Albeit passive aggressive bullying, but the person you are directing it to comes away with the feeling that they did something wrong.

Edit: If it's anything but luck, I beg you to prove me wrong. I and all of the other "Arizona losers" will be eternally grateful for enlightening us on how to do what no one here, including top NACA lawyers, have yet been able to accomplish.


 

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OK people, I'll work on it. Less rude, more polite. I make people feel bad. I'll see what I can do to clean it up.

However these are old post that are being brought up and I had already established that I would only be posting in CA threads or PM, so it shouldn't be a problem. Of the hundreds of people I have spoken to here; I have only been rude to 4, who were also rude to me (but no one has issues with that)

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What an asinine statement.

"You guys"?  Really?  One person pointed out that the JDBs are not criminals or doing anything illegal simply because they buy debts.  He pointed out that they're not making up accounts that never existed.  That's a far cry from believing JDBs are trustworthy.

 

Your comment was rude and baseless.

 

 

@BV80,

 

A little more about usage of "you guys".

that I myself originally (after moving to Phoenix in 2001) considered rude :-)

 

http://en.wiktionary.org/wiki/you_guys

 

"..you guys

(idiomatic, colloquial, chiefly North America, Australia, New Zealand) You (plural).

Hey you guys!

Usage notes

 

The term guy is generally restricted to males, as in Was that a guy or a girl?,

but the form you guys may be used for groups of any combination of genders whether it is all male, all female or any combination."

Edited by GDayMateAZ
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Not to take away from your research, but I wouldn't think you would need to look the term "you guys" up. In any event I said I should not have used "you guys" and that I would only post in CA or PM. Sorry you found it rude after moving to Phoenix. We use that term a lot in Cali, but not to be rude.

again, these are old post from last year that are being brought up.

Apologies to anyone I've offended.

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Sorry if HUD touched a nerve - I could have said IRS, EPA, AARP or the Electric Company. There was no insult intended in the agencies mentioned. The point was to ask if you are as paranoid about the rest of the modern economy as you are about the banking sector.

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It didn't bother me; I have very thick skin. As I stated, someone else took offense in that you mentioned subpoena to a HUD rep in reference to a low rent apartment which requirg .Government assistance to afford. Not saying that's your exact words but that's how it was taken. She lost her home, needed assistance to rent apartment and it struck a nerve with her.

I'm not paranoid about the banking industry and the modern economy is much better now. I was talking about bottom feeders anyway so I don't know how that's relevant.

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Not to take away from your research, but I wouldn't think you would need to look the term "you guys" up.

 

Just one click.

 

In any event I said I should not have used "you guys" and that I would only post in CA or PM.

 

Sorry you found it rude after moving to Phoenix.

 

Only in Phoenix people answer "No problem" or "U-hu" to "Thank You" (elsewhere they say "You are welcome")

 

We use that term a lot in Cali, but not to be rude.

again, these are old post from last year that are being brought up.

Apologies to anyone I've offended.

 

No offense taken. Only FUN. :-)

 

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Well now, should I change the title of this thread to men who disagree?  What has happened in here?

  I will not say my win was luck!!!  It was hard work , a lot of motions,  some bad advice that I could have prevailed maybe sooner.  But I was not bitter as I could have been on top of things myself, and not relied on others here.

 

Goodness , This thread has gone to a place where nothing positive is being accomplished. No one asks to stay in your own state and not try to help anyone else. However, that being said there are people in your own state that don't put out a good vibe.

 

Let's try to focus on why we are here. Not to be an addiction, for some maybe it is becoming that.

 

Let's get back to the point of this thread. I won  Thanks for the help. And lets continue on to figure a way not only to help others but to fight JDB's and their bogus affadavits.  Lets concentrate on the real problem  and quit the bickering!!!!!!!!!!! XhairX

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@Az Piano Lady 14

You're right. No one else here worked as hard as you. You're the only one that deserved to win. And deserve it you did, baby!

Everyone, back to defaulting on your credit cards. With enough hard work, Piano Lady has scientifically proven beyond any doubt that everyone can get out of paying their debts.

Party on.

Ok, back to reality...

YOU LOST YOUR OTHER CASE!!!

If that's not enough proof FOR YOU OF ALL PEOPLE that this is all a game of chance, especially when you think the "bad advice" you got in THIS case that you won negatively affected the progress, I just don't know what else to say.

Then again, maybe it's just sour grapes on my part...

I can't take the insanity any more. Please understand nothing I say from now on is personal. I just refuse to go along for the ride when someone decides they want to live in denial.

Y'all have fun now, ya hear?

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