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Being sued and Summary Judgement Filed by collection Agency


Clubchill
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Hello I am being sued in Civil court by none other then Asset Acceptance via Fulton and GUllace LLP

1. Who is the named plaintiff in the suit? I am

2. What is the name of the law firm handling the suit? fulton freidman Gullace

3. How much are you being sued for? 3000

4. Who is the original creditor?5/3 bank

5. How do you know you are being sued? I was served

6. How were you served? mail
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? A notice of the debt , They sent to my old address so I never got it

9. What state and county do you live in? Ohio Cuyahouga

10. When is the last time you paid on this account? 2010

11. What is the SOL on the debt? To find out: no



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). Asset has filed a summary judgement

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 have 2 weeks to response to the summary judgement

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. after discovery they sent Two credit statements one from 2011 and the final statement from 5/3 a affavit from a Asset acceptance employee a bill of sale from 5/3 and a bulk sale and bill of sale from 5/3 for bulk sale of accounts

 

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It is hard to know what is going on in your case when we don't know what was sent.  What specifically did you ask for in your discovery to them?  What specifically did they send back to you in their response?  You need to type it out.

 

Case law is always good, it is cases that have already been decided.  It is the rules that can change.

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  1. Please provide the alleged credit card contract upon which your claim is based.

Objection calls for information not with the possession or control of plaintiff . plaintiff will supplement upon receipt.

 

  1. Please provide a contract, agreement, assignment, or other means of demonstrating that the Plaintiff has the authority and was legally entitled to collect on the alleged debt.

See attached documents

 

  1. .Please provide reasonable proof, such as an original, or copies of the assignment or assignment agreements, transferring the alleged contract and /or account from 5/3 to Asset Acceptance to show an assignment has been made and that Midland is the real party in interest.

See attached documents

 

  1. Please provide a copy of the assignment between 5/3 Bank and Asset Acceptance.

See attached documents

 

 

 

  1. Please provide proof of the defendants alleged debt to plaintiff including specifically the alleged contract, between the plaintiff and defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the plaintiff and defendant bearing defendant's signature.

Objection calls for information not with the possession or control of plaintiff . plaintiff will supplement upon receipt

  1. .Please provide the contract that legally requires the defendant to pay the alleged amount entered into complaint with plaintiff.

See attached documents

 

  1. Please provide the original or copy of the alleged account agreement that states interest rate, grace period, finance charge, assignment and specifically state laws that the alleged agreement and account are governed plus other important facts. 

Objection calls for information not with the possession or control of plaintiff . plaintiff will supplement upon receipt

 

  1. Please provide copies of the amount paid and/or the consideration due for the alleged contract/amount.

Objection  irrelevant , calls for proprietary information and not reasonably calculated to lead to discoverable evidence.

 

  1. please provide all copies of manuals, procedures, and protocols used by plaintiff regarding communication with 5/3 bank regaurding purchased debts

Objection  irrelevant , calls for proprietary information and not reasonably calculated to lead to discoverable evidence.

 

 

 

  1. Please provide evidence authorization of plaintiff to do business and collect debts in the state of Ohio , Objection , overbroad , however plaintiff is a public enetity with all records publically avaible.

 

 

  1. Please provide a document or documents that proves plaintiff did send the defendant a no Objection calls for information not with the possession or control of plaintiff . plaintiff will supplement upon receipt tification of assignment of the alleged account or assignment of rights.

 

 

  1. Please provide any and all notices sent to defendant by plaintiff in regards to the alleged account demanding payment.  See documents

 

  1. Please provide copies of all statements generated while this alleged account was opened with plaintiff. See attached documents , plaintiff reserves the right to supplement

 

  1. Please provide any and all notices sent to defendant by plaintiff announcing changes in interest, fees or penalties and/or the terms of this alleged debt.

 

No changes in fees or penalties to plaintiffs knowledge.

 

  1. . Please identify each credit reporting agency (credit bureau) to which the plaintiff reported defendants alleged debt and the dates of each such report.

Objection , irrelevant calls for information not releveant in this matter

 

  1. Please provide the original dunning letter that was sent to defendant.  See attached docuemnt

 

  1. Please provide any and all notices sent to defendant by plaintiff in regards to the alleged account announcing transfer and/or assignment of credit card account from plaintiff to any collection agency or collection attorney.

 

Objection irrevlant , calls for information not relevant in this matter

 

  1. Please provide a copy of the agreement with plaintiff that grants attorney the authority to collect this debt.

Objection irrelevant calls for proprietary information and not reasonably calculated to lead to discoverable evidence.

 

  1. Please provide ALL documents evidencing any communication between plaintiff and defendant in connected with alleged agreement described in plaintiff's petition, including letters and correspondence.

See attached plaintiff reserves the right to supplement

  1. Please provide itemized credit card statements from asset acceptance  and 5/3 bank that demonstrate how the alleged amount was calculated.

See attached

 

  1. Please provide a contract, agreements, assignment, or other means demonstrating how asset acceptance  and 5/3 Bank calculated alleged amount.

See attached

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

None avaible at this time , plaintiff reserves the right to supplement this respone with name of account rep that will provide affidavit of account

 

  1. Please provide any and all credit reports plaintiff and/or plaintiff's attorney obtained from any credit reporting agency concerning defendant.

Objection irrelevant calls for information no relevant to this matter

 

  1. please provide any and all notes, memorandum, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts that relate to defendant.

Objection irrelevant calls for proprietary information and not reasonably calculated to lead to discoverable evidence.

  1. Please provide the full account number for account xxxxxxxxxxxx-3632

They provided a number

 

  1. Admit asset acceptance violates the fair debt collection act in at least one state.

 

deny

 

  1. Please provide a list of all witness that will be used in this case. 

Plaintiff does not anticipate calling an expert witness at this time. Reserves the right to supplemtn this response with name of account rep that will appear at trial.

 

 

  1. Admit that asset acceptance used  forged  documents to collect debts in at least one state

deny

 

  1. Admit asset acceptance violates  the federal trade commission’s ruling by using illegal debt-collection practices, including misrepresenting the character, amount, or legal status of a debt; providing inaccurate information to credit reporting agencies; and making false representations to collect a debt;

deny

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To beat a MSJ you need to have at least one triable issue of fact, is your discovery period over? They did not produce half of what you asked for, and I didn't see a request for the forward flow. If discovery is not over I would send more requests, then in your opposition you could put discovery is on going.

There are many motions in limine, look at some of those as well as other MSJ S that are posted around here, lots focus on the bill of sale, billing statements being unauthinicated, as well as affiant does not have personal knowledge of original creditors record keeping practices, how records were kept in the oridinary coarse of business at 53 bank, any computer programs used, how they prevented errors, what they did to correct them. Hammer in on bill of sale, and the unqualified affiant in your brief.

Look for others posts from your state, ight be some that already have some case law you can look up and cite if applicable .

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@Clubchill

 

 

First, they have to prove that they have standing to sue.  Standing to sue means that the plaintiff has suffered an injury and has a right to be compensated for that injury.  In the case of a JDB, that means they have to prove they own the account.  If they can't prove ownership of the account, they can't prove they've been injured by not being paid.  So, no standing to sue.

 

The bill of sale doesn't reference your name or the alleged account number.  Neither does the Affidavit of Bulk Sale of Accounts.  Where's the proof that any account allegedly owed by you was included in any sale from Fifth Third Bank to Asset Acceptance?  All the bill of sale and affidavit of sale prove is that SOME accounts were sold.  It doesn't prove that any account allegedly owed by you was one of them.  Therefore, I would argue that they haven't proven that they own the account in question.

 

The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115.

Elements of standing are an indispensable part of a plaintiff's case. Lujan v. Defenders of Wildlife (1992), 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351.

Standing requires demonstration of a concrete injury in fact, rather than an abstract or suspected injury.  State, ex rel. Consumers League of Ohio, v. Ratchford (1982), 8 Ohio App.3d 420, 424, 8 OBR 544, 548, 457 N.E.2d 878, 883.  See Hudson & Keyse, LLC v. Carson, 10th Dist. No. 07AP-936, 2008-Ohio-2570, ¶ 11 (noting the appellee "could not prevail on the claims assigned by the bank without proving the existence of a valid assignment agreement").

 

 

Next, the credit card statements, bill of sale, and unknown schedule A have to be authenticated under Rule of Evidence 803(6).  That's the business records exception.  Business records are hearsay, but they can be admissible hearsay under 803(6).

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

 

There must be an affidavit or testimony that says the records were made at or near the time (that means at or near the time you made charges and payments) from information by a person with knowledge.  It must also say that the records were made in the regular course of business and that it was the regular practice of the business to make the records.  That's called laying the proper foundation so that the records can be considered admissible as evidence.

 

All of that is to show that the documents being submitted are really business records.   First, the JDB didn't create the records.  They were ALLEGEDLY created by another business.

 

Second, none of the affidavits presented in your case contain the language from 803(6).   Not one of the affidavits states that the documents were made in the regular course of business, etc.  In other words, it hasn't been shown that they're business records that fall under the business records exception (803(6)).   As a result, I'd argue that they are inadmissible because there is no testimony that shows that the documents made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the documents.  The plaintiff has failed to lay the proper foundation for the admission of the credit card statements, the bill of sale, the Account Information created by the plaintiff and the Unknown Schedule A (include the proper Exhibit designations for each one).  Therefore, the documents do not fall under the business record exception and are inadmissible hearsay.

 

A party seeking to admit a business record into evidence under Evid.R. 803(6) must establish three essential elements: (i) the record must be one regularly made in a regularly conducted activity; (ii) the contents of the record must have been entered or transmitted by a person with knowledge of the act, event, or condition recorded therein; and (iii) the act, event, or condition must have been recorded at or near the time of the transaction. See Evid.R. 803(6). The "custodian of the records" or other qualified witness under Evid.R. 901(b)(10) must lay the requisite foundation for admissibility. Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, at ¶ 10.

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You can also argue that the plaintiff hasn't proven the amount claimed in the complaint.

 

 

An action on an account to recover money owed, such as on a credit card account, requires the plaintiff to make a prima facie showing of the existence of the account and the party's name,

    and it must also establish (1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due. Great Seneca Financial v. Felty, 170 Ohio App.3d 737, 869 N.E.2d 30, 2006-Ohio-6618, ¶6, citing Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123, 223 N.E.2d 373 (1967).

 

 

Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due." Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 2004-Ohio-623, ¶12 (4th Dist.), quoting Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123, 126 (10th Dist.1967).

 

None of the billing statements show any charges or payments made by you.  According to the above case law, the courts require a balance along with charges and payments in order to add to that balance in order to determine if the amount claimed is accurate.   It doesn't mean they have to provide every billing statement that was ever issued on the account.   It just means the court needs a balance and items to add to that balance.

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Finally, I would argue that Heather's affidavit is insufficient to support a motion for summary judgment.  Heather does not state that her affidavit is based upon personal knowledge as is required by Civil Rule 56(E).

 

 

Rule 56(E) states that "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

 

Ohio courts have defined "personal knowledge" as "knowledge gained through firsthand observation or experience, as distinguished from a belief based upon what someone else has said." Zeedyk v. Agricultural Soc. of Defiance Cty. Defiance App.No. 4-04-08, 2004-Ohio-6187, ¶ 16, quoting Bonacorsi v. Wheeling & Lake Erie Railway Co. (2002), 95 Ohio St.3d 314, 320, 767 N.E.2d; Black's Law Dictionary (7th Ed. Rev.1999) 875. 

 

Personal knowledge is knowledge of factual truth which does not depend on outside information or hearsay. Brannon v. Rinzler (1991), 77 Ohio App.3d 749, 756, 603 N.E.2d 1049, 1053-1054.

 

 

She also claims that Asset is the assignee of Fifth Third Bank.  However, none of the documentation provided proves that the specific account in question was included in any sale to Asset.

 

Affidavits, which merely set forth legal conclusions or opinions without stating supporting facts, are insufficient to meet the requirements of Civ.R. 56(E). LaSalle Bank National Association v. Street, Licking App. No. 08CA60, 2009-Ohio-1855, ¶ 21.

 

You also need to include your own affidavit.

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BV80 just gave you an excellent analysis of your case. I will just supplement it by including this excerpt from "Chase Bank v. Curren," (Oh Crt of App. 2010).

IV. Proving an Account

{¶ 14} "Because an action on an account is founded upon contract, the plaintiff must prove the necessary elements of a contract action, and, in addition, must prove that the contract involves a transaction that usually forms the subject of a book account." Crown Asset Mgt., L.L.C. v. Gaul, Washington App. No. 08CA30, 2009-Ohio-2167, 2009 WL 1263966, at ¶ 10, quoting Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 2004-Ohio-623, 804 N.E.2d 975, at ¶ 12. For a creditor to adequately plead and prove an account, the account "must show the name of the party charged." Id., quoting Asset Acceptance Corp. at ¶ 12, 515*515 quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 126, 38 O.O.2d 143, 223 N.E.2d 373. Moreover, the account must "begin[ ] with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum.[2] Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due." Id.

V. Chase's Initial Summary-Judgment Burden

{¶ 15} In his third assignment of error, Curren complains that Chase failed to meet its initial burden to demonstrate its entitlement to a summary judgment. Chase filed Alcaraz's affidavit to support its summary-judgment motion. Curren complains that the court erred when it considered the affidavit and attached account statements because Alcaraz's averments were not based on personal knowledge and failed to lay the proper foundation for admission of the attached documents. He also contends that Alcaraz failed to properly sign the affidavit because it is "initialed[,] not signed."

{¶ 16} "For evidentiary material attached to a summary judgment motion to be considered, the evidence must be admissible at trial." See Civ.R. 56(E) and Pennisten v. Noel (Feb. 8, 2002), Pike App. No. 01CA669, 2002 WL 254021, at *2. Although we conduct a de novo review of the trial court's decision to grant summary judgment, we review the court's rulings on the admissibility of evidence for an abuse of discretion. Lawson v. Y.D. Song, M.D., Inc. (Sept. 23, 1997), Scioto App. No. 97 CA 2480, 1997 WL 596293, at *3. See State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, at paragraph two of the syllabus. The term "abuse of discretion" implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. When applying the abuse-of-discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.

{¶ 17} Civ.R. 56(E) states: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to 516*516 the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit." "Personal knowledge" is "[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.'" Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 26, quoting Black's Law Dictionary (7th Ed.Rev.1999) 875. It is "`knowledge of factual truth which does not depend on outside information or hearsay.'" Residential Funding Co., L.L.C. v. Thorne, Lucas App. No. L-09-1324, 2010-Ohio-4271, 2010 WL 3516785, at ¶ 64, quoting Modon v. Cleveland (Dec. 22, 1999), Medina App. No. 2945-M, 1999 WL 1260318, at *2.

{¶ 18} Here, Alcaraz did not explicitly state that his averments were made on "personal knowledge." Contrary to Curren's assertion, this omission is not fatal to the affidavit's admissibility. "[P]ersonal knowledge may be inferred from the contents of an affidavit * * *." Carter v. U-Haul Internatl., Franklin App. No. 09AP-310, 2009-Ohio-5358, 2009 WL 3221468, at ¶ 10; Flagstar Bank F.S.B. v. Diehl, Ashland App. No. 09 COA 034, 2010-Ohio-2860, 2010 WL 2512380, at ¶ 25.

{¶ 19} However, in this case, the contents of Alcaraz's affidavit were insufficient for the trial court to make such an inference. Alcaraz vaguely avers that he is a "duly authorized agent of Chase Bank" and that "there is due" from Curren various amounts of money. But none of Alcaraz's averments demonstrate that he has any personal knowledge about Curren's account. The basis for Alcaraz's knowledge of the balance due appears to be his review of the account statements attached to the affidavit, which as we explain below, constitute inadmissible hearsay. Moreover, we note that Alcaraz's averments standing alone would be insufficient to prove the claimed account balance of $10,385.53 because the court could not independently calculate the balance from those averments. See Crown Asset Mgt., L.L.C., 2009-Ohio-2167, 2009 WL 1263966, at ¶ 11.

{¶ 20} The account statements attached to Alcaraz's affidavit constitute the only evidence Chase submitted from which the court could independently calculate the alleged $10,385.53 balance. However, they constitute inadmissible hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Proctor v. Hall, Lawrence App. Nos. 05CA3 and 05CA8, 2006-Ohio-2228, 2006 WL 1195671, at ¶ 37, citing Evid.R. 801©. Chase submitted the account statements to prove the truth of the matters those documents asserted, i.e., that Curren made various purchases and payments on the account, resulting in a $10,385.53 balance. These records might have qualified for the business-records 517*517 exception to the hearsay rule, see Evid.R. 803(6), but Alcaraz's affidavit failed to lay the proper foundation for their admissibility.

{¶ 21} Evid.R. 803(6) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

{¶ 22} "While the witness need not have personal knowledge of the creation of the particular record in question, and need not have been in the employ of the company at the time the record was made[,]* * * he must be able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business." State v. Davis (1991), 62 Ohio St.3d 326, 342, 581 N.E.2d 1362, quoting Dell Publishing Co. v. Whedon (S.D.N.Y.1984), 577 F.Supp. 1459, 1464, fn. 5. But here, Alcaraz did not aver that he had personal knowledge of the creation of these records or of Chase's record-keeping system, and that knowledge cannot be inferred from the affidavit. Thus, Alcaraz's affidavit did not authenticate the attached documents under Evid.R. 803(6). Therefore, the trial court abused its discretion when it considered the affidavit and account statements to decide the summary-judgment motion. See generally Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, at ¶ 11 (in deciding summary-judgment motion, trial court erred by considering documents that purported to assign a credit-card account when the documents were not filed "with an accompanying affidavit setting forth a proper foundation under Evid.R. 803(6) for their admissibility into evidence").

{¶ 23} Curren did not admit that he owed Chase the $10,385.53 balance alleged due. And without the account statements, Chase had no other evidence that would permit the court to independently calculate the claimed balance. Accordingly, Chase was not entitled to judgment as a matter of law. See Crown Asset Mgt., L.L.C., 2009-Ohio-2167, at ¶ 16.

518*518 {¶ 24} We sustain Curren's third assignment of error in part, reverse the trial court's judgment, and remand for further proceedings consistent with this opinion. This decision renders moot Curren's argument that Alcaraz did not properly sign the affidavit. It also renders moot Curren's first and second assignments of error, in which he contends that he properly rebutted Chase's summary-judgment motion, so we need not address them. App.R. 12(A)(1)©.

Judgment reversed and cause remanded.

McFARLAND, P.J., and ABELE, J., concur.

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Case law is always good, it is cases that have already been decided.  It is the rules that can change.

 

Contrary, case law is frequently rendered "no good" by subsequent rulings, appeals, statutes, etc. Before citing to any case, you should always attempt to verify that it is still "good law." For those who have no access to Westlaw, Lexis, or some other legal research program, or who do not have access to a law library where you can manually Shepardize your cases, ensuring you cite to good case law can be next to impossible. Just try to cite the most recent cases you can. Hint: Citing to appellate cases, rather than to lower court cases increases the odds that you're citing "good law."

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You can argue the infirmities of the evidence all day long, but unless you can get an affidavit from someone with personal knowledge that contradicts the affidavits, you're going to lose. In order to have fighting chance, you must also file your own affidavit detailing contradictory facts of which you have personal knowledge. 

 

That said, what  personal knowledge do you have that contradict Asset's claim that: (1) you had the subject 5/3 account: (2) the terms of the account were as Asset states; (3) you owed $[x] dollars; (4) you defaulted on the 5/3 account; (5) Asset bought the account, and; (6) you have failed to pay as demanded?

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You can argue the infirmities of the evidence all day long, but unless you can get an affidavit from someone with personal knowledge that contradicts the affidavits, you're going to lose. In order to have fighting chance, you must also file your own affidavit detailing contradictory facts of which you have personal knowledge. 

 

That said, what  personal knowledge do you have that contradict Asset's claim that: (1) you had the subject 5/3 account: (2) the terms of the account were as Asset states; (3) you owed $[x] dollars; (4) you defaulted on the 5/3 account; (5) Asset bought the account, and; (6) you have failed to pay as demanded?

 

From "Citibank v. Ogunduyile," (Oh. Crt of App. 2007), finding for Citibank and holding that defendant's affidavit did not set forth specific facts rebutting Citibank's claims.

 

 

 14} Ogunduyile argues that his affidavit is sufficient to establish a genuine issue of material fact, because the affidavit disputes the amount of the debt owed, whether Ogunduyile was given notice of the account, and whether the account was waived or deemed uncollectible by Citibank. We disagree, because Ogunduyile's affidavit is too general and vague to create any genuine issue of material fact.

{¶ 15} Ogunduyile's statement that he does not owe the amount of the debt that is claimed by Citibank is nothing more than a general denial of Citibank's claim, which is insufficient to satisfy Ogunduyile's reciprocal burden under Dresher and Civ. R. 56(E). Instead, Ogunduyile was required to set forth specific facts that would permit a trier of fact to find that the amount of debt claimed by Citibank was incorrect.

 

Nascar's point is well taken.  In "Curren," the court found for the defendant, but there are many other Ohio cases such as the one above in which the courts have found for  the plaintiff because the plaintiff met the burden of proof, while the defendant did not offer evidence to contradict the plaintiff's affidavit and exhibits.

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Contrary, case law is frequently rendered "no good" by subsequent rulings, appeals, statutes, etc. Before citing to any case, you should always attempt to verify that it is still "good law." For those who have no access to Westlaw, Lexis, or some other legal research program, or who do not have access to a law library where you can manually Shepardize your cases, ensuring you cite to good case law can be next to impossible. Just try to cite the most recent cases you can. Hint: Citing to appellate cases, rather than to lower court cases increases the odds that you're citing "good law."

 

How to use Google Scholar to Shepardize

 

http://www.lawgorithms.com/content/google-scholar-creates-more-useful-way-shepardize#.Uj-CydJQHkp

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You can argue the infirmities of the evidence all day long, but unless you can get an affidavit from someone with personal knowledge that contradicts the affidavits, you're going to lose. In order to have fighting chance, you must also file your own affidavit detailing contradictory facts of which you have personal knowledge. 

 

That said, what  personal knowledge do you have that contradict Asset's claim that: (1) you had the subject 5/3 account: (2) the terms of the account were as Asset states; (3) you owed $[x] dollars; (4) you defaulted on the 5/3 account; (5) Asset bought the account, and; (6) you have failed to pay as demanded?

 I am not sure , This confuses me.

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@Clubchill

 

You need to include an affidavit with your opposition.  If the account is yours, it's hard to flat out deny that it's yours.   You have to make truthful statements.  One truthful statement is that the statements in your affidavit are made based upon your personal knowledge.  Another truthful statement would be that you have never had a business relationship with the plaintiff.

 

Do you have any old credit card statements from the account?  If not, you might possibly state that you do not know that this is your account because you've made a diligent search for billing statements from _____(the OC) but have been unable to locate any statements or records from the business. 

 

If you don't have any billing statements, do you have anything that shows that account number?  If not, I might state that fact.  I have no documentation or records that reference account # __________.

 

The billing statements provided by the plaintiff show no activity by you.  As a result, you have no way of knowing if the account in question was an account to which you would have made charges and payments.

 

Also, since you can't locate any documentation associated with ______(OC), you might dispute the amount claimed and deny owing any sum to the plaintiff.

 

The above are just suggestions.  Hopefully, some others will chime in.

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