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Being sued by Midland Funding llc in Florida

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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

 

Defendant, opposes the Motion for Summary Judgment filed by the Plaintiff, Midland Funding, LLC; and asks this Court to deny the Plaintiff s Motion as genuine issues of material fact exist, and Plaintiff is not entitled to judgment as a matter of law.

 

Introductory Statement

            The Complaint alleges that Plaintiff is the successor to an account between Defendant and the alleged original creditor (Chase Bank N.A.), and that the account is in default. This Opposition challenges the sufficiency of Plaintiff’s evidence to prove all elements of its claim, and lack of standing to sue.

 

This Opposition is made in good faith based on Defendant’s general understanding of the debt buying industry. While not offered as evidence, that understanding is explained here to justify the Defendant's Opposition. Defendant understands that, when a debt buyer purchases an account, it is one of hundreds or thousands of accounts acquired as a pool and the information as to each account is contained in an electronic spreadsheet (such as a Microsoft Excel file) called “placement information.” Placement information is a collection of data elements about an account created after the account is in default and, therefore, cannot be a business record for purposes of the hearsay exception.

            Debt buyers refer to “media” as the original creditor’s records concerning the account such as the account application, the written contract(s), and the billing statements. Those could be admissible if a competent witness were to lay the requisite foundation under the business records exception to the hearsay rule. In the purchase transaction, debt buyers obtain little or no media and, depending on the terms of the purchase, may be able to request some media.

     It is this understanding which informs the basis for the opposition as there is a reasonable basis to believe that Plaintiff lacks standing to sue and the evidence to prove the elements of its cause of action.

     

                                                                       

             

Statement of Material Facts

Defendant submits this Statement of Material Facts in support of his Opposition to Motion for Summary Judgment. As this Opposition pierces the pleadings and tests the sufficiency of Plaintiffs evidence, Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to grant summary judgment.

 

1There is no admissible evidence as to the purchase by Plaintiff of the alleged account which is the subject of this Complaint either directly from Chase Bank or through intermediate debt buyers.

2. There is no admissible evidence of true and correct copies of monthly statements.

3.. There is no admissible evidence as to the debits, credits, and payments associated with the alleged account, including the fees, charges, and interest from which to determine the amount purportedly due.
4. There is no admissible evidence regarding the mailing of any written agreements by the Bank to Defendant.
5. There is no admissible evidence regarding the mailing of any billing statements by the Bank to Defendant.

 

Legal Arguments

        This is a suit by a debt-buyer asserting that it is the owner of an alleged Chase account in default. Plaintiff, Midland Funding L.L.C., filed a two-count Complaint alleging:

1. Defendant states that the Plaintiff lacks standing to sue the Defendant since at no time did the Defendant cause any harm to the Plaintiff

2. Defendant states that Plaintiff has been unable to provide a basis for the total amount due and how that amount was calculated from its origin including how much various fees, interest and other amounts figure into the total amount the Plaintiff is asking for. 

"In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, 'standing [must] be determined as of the commencement of suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S.Ct. 2130, 2142, 119 L.Ed. 351 (1992).

3. Plaintiff is relying on unauthenticated documents, including internally generated electronic records that in previous legal matters have been found to be grossly insufficient in meeting a burden of proof.  

“The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created." Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md. May 4, 2007)

 

 

Standard For Summary Judgment

 

The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action.

 

"We will not affirm a grant of summary judgment, however, even in the absence of controverting evidence, if the motion and evidence filed in support of the motion for summary judgment are insufficient to show that no material issue of fact exists or that the movant is entitled to judgment as a matter of law." United Bank v. Allyn, 167 Ariz. 191, 194-96, 805 P.2d 1012, 1015-17 (Ct.App. 1990)

 

The Plaintiffs Motion for Summary Judgment should not be granted as there is a general dispute of material facts. "Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts." Farmers Ins. Co. of Arizona v. Vagnozzi, 675 P. 2d 703 - Ariz: Supreme Court 1983.

 

The Plaintiffs Motion for Summary Judgment should not be granted as the Plaintiff has not demonstrated that there are no genuine issues of material fact and has provided inadmissible evidence supporting its standing in this matter. 

 

“Initially, a party moving for summary judgment has the burden of showing there are no genuine issues of material fact and it is entitled to summary judgment as a matter of law. Only if the moving party satisfies this burden will the party opposing the motion be required to come forward with evidence establishing the existence of a genuine issue of material fact that must be resolved at trial.” National Bank of Ariz. v. Thruston, 218 Ariz. 112, 114-15, ¶ 12, 180 P.3d 977, 979-80 (App. 2008).

 

 

 

 

Plaintiff Lacks Standing To Sue

 

 Absent a valid assignment from Chase Bank, Plaintiff has failed to prove ownership of any account allegedly owed by Defendant. Wherefore, Plaintiff has failed to prove standing to sue. 

"It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified. Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977"

"We therefore hold that the basic elements of a legal assignment are so lacking in this case that we can find no basis in the record on which to conclude that Certified Collectors, Inc. has any right to bring an action on this claim as the real party in interest." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977.

"As a matter of sound judicial policy, however, this court has long required that persons seeking redress in Arizona courts must first establish standing to sue." Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003.

 

Improper Foundation Of Credit Card Statements

 

     Plaintiff has provided credit card statements allegedly representing an agreement between Chase Bank and Defendant. The credit card statements have not been authenticated by a custodian with personal knowledge who can testify that the alleged statements were made by Chase Bank in the regular course of business. Plaintiff, Midland Funding, did not create or maintain the credit card statements, nor can Plaintiff prove the billing statements are true and correct copies of any documents created by Chase Bank.

 

Therefore, the documents do not meet the hearsay exception in Arizona Rules of Evidence 803(6). In addition, as Plaintiff has not proven ownership of the account in question, Plaintiff has not laid a proper foundation for the admission of the credit card statements. For the foregoing reasons, the documents are inadmissible hearsay.

"Rule 56(e), Arizona Rules of Civil Procedure, provides that affidavits submitted in support of a motion for summary judgment must be based on personal knowledge, setting forth facts which would be admissible in evidence and establishing the affiant's competence to testify to those facts." GM DEV. v. COMMUNITY AMERICAN MORTG., 795 P. 2d 827 - Ariz: Court of Appeals, 1st Div., Dept. C 1990

"Furthermore, the records must be introduced through the testimony of a custodian who can be cross-examined concerning the methods of preparation, the qualifications of the preparer, and other relevant matters." Transamerica Ins. Co. v. Trout, 701 P. 2d 851 - Ariz: Court of Appeals, 1st Div., Dept. A 1985

     Particularly significant to what evidence Plaintiff must submit are the Business Records Exception, Evid.R. 803(6); the requirement for a witness's personal knowledge, Evid.R. 602; proper authentication of documents, Evid.R. 901 and Evid.R. 902; and submission of originals, Evid.R. 1002. Read together, these rules require that:
1. Plaintiff produce competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of any and all hearsay materials, and
2. The admissible records be sufficient to carry Plaintiff's evidentiary burden.

 
In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343 the court upheld the trial court’s entry of summary judgment in favor of the defendant where the plaintiff had offered hearsay documents which may or may not have been sufficient to overcome summary judgment had they been properly authenticated pursuant to the Ohio Rules of Evidence. The point was moot as the hearsay documents were not properly authenticated:
Once the appellee established by reference to appellant’s unauthenticated documents attached to the complaint that there was insufficient evidence to establish that the appellant had acquired the account by assignment and that there was insufficient evidence to prove the balance due on the account, the burden shifted to the appellant to demonstrate the existence of genuine issues of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264Because the appellant failed to properly authenticate the assignment documents and the account statements, the appellant essentially presented nothing of evidentiary value to rebut appellee’s argument and did not create a genuine issue of material fact. Although it is a harsh result, we find that the appellant’s failure to follow the requirements of Civ.R. 56 put the trial court in a position in which it could only come to one conclusion. That conclusion is that the appellee had affirmatively established that there was nothing of evidentiary value to support the essential elements of appellant’s claim for an action on an account. We therefore find that the trial court did not err in granting appellee’s motion for summary judgment.
 

In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission evidences that were allegedly issued or created before the Plaintiff’s alleged ownership of the alleged account.
 

 

Proof of Actual Amount Claimed to be Due

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343:
In order to establish a prima facie case for money owed on an account, “[a]n account must show the name of the party charged and contain: (1) a beginning balance (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 which permits the calculation of the amount claimed to be due.” Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus.


In this present case the Plaintiff has presented alleged monthly statements, however said statements do not contain all the information needed to establish a prima facie case.
In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of billing statements that were allegedly created before the Plaintiff’s alleged ownership of the alleged account.

 

Proof of Contract and Terms

 

Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637(a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet "the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan." 15 U.S.C. § 1632(d)(1).
Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract.
Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract and, in the absence of Defendants' signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of a contract that was allegedly formed before the Plaintiff’s alleged ownership of the alleged account.
Turning to breach and damages, Plaintiff must have a competent witness who can establish that each charge was authorized because the Truth in Lending Act imposes that burden on Plaintiff. 15 U.S.C. § 1643

 

 

                      CONCLUSION
Plaintiff's failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for Defendant.

For the foregoing reasons, Defendant, respectfully requests that summary judgment be denied in his favor and against Plaintiff, Midland Funding LLC and that the Complaint be dismissed with prejudice.

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF MATERIAL FACTS IN DISPUTE

1.            The Plaintiff alleges that Defendant established a credit card account yet no cardholder agreement was attached to the Plaintiff s Complaint or the Plaintiff s Motion for Summary Judgment. 15 U.S.C. §1642 provides that no credit cards shall be issued to any person except in response to a request or application for a credit card.

2.            The Plaintiff s Complaint alleges that all conditions precedent to the bringing of this action have occurred, been performed, or waived; yet Plaintiff has no record evidence proving Plaintiff complied with the requirements of §559.715, Fla. Stat

 

4.            is not proper or admissible summary judgment evidence because it refers to an exhibit not attached to said affidavit. Affiant states that Plaintiff is the current owner of the                                account and attached a copy of a Bill of Sale as part of Plaintiff s Composite Exhibit "A". The Bill of Sale references Section 4 of an Agreement that is not attached to said affidavit.

5.            Plaintiff's Complaint alleges a cause of action of Money Lent. The attached Composite Exhibit "A" of Plaintiff's Complaint includes copies of statements that contradict and contravene the allegations of Plaintiff's Complaint. The Plaintiff did not lend money to the Defendant as alleged in the Plaintiff's Complaint, nor did the Plaintiff advance the sum to any third parties.

6.            Plaintiff's Motion for Summary Judgment states that Plaintiff purchased the subject account "On or about November 7, 2012'', which contradicts and contravenes the Bill of Sale in Plaintiff's Composite Exhibit "A" that is attached to the Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgment. The Bill of Sale states that the subject account was purchased by the Plaintiff on January 30, 2012.

 

WHEREFORE, Defendant,             requests that the Court (a) sustain the objections to the summary judgment evidence offered by Plaintiff, (B) strike the affidavit of I

-or, alternatively, strike the improper or inadmissible portions of said affidavit, and ©                                                        grant such other and further relief that may be awarded at law or in equity.

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@300turbozx

 

"Rule 56(e), Arizona Rules of Civil Procedure, provides that affidavits submitted in support of a motion for summary judgment must be based on personal knowledge, setting forth facts which would be admissible in evidence and establishing the affiant's competence to testify to those facts." GM DEV. v. COMMUNITY AMERICAN MORTG., 795 P. 2d 827 - Ariz: Court of Appeals, 1st Div., Dept. C 1990

 

 

You cited an AZ ruling about the AZ rules.  You need to cite cite FL rulings from the court to which you would appeal (the appeals court in your district) or the FL Supreme Court, if possible.  Those are the only rulings that would be binding on your court.  If there are no rulings from your court of appeals, then rulings from other FL courts would be more persuasive than rulings from courts in other states.  A FL judge isn't going to pay much attention to the rulings of other state courts.

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10-4 I'm working on those now, this was simply a foundation, glad to see you back @BV80

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That is the problem with a cut and paste motion.  You can use it as a guide, but you Must Must have case law relevant to your state, and it needs to fit.  Not all states have the same rules, or they may rule differently, so you really need to watch it.

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Yes mam I have been working on case laws and direct information in my case. This is only a guide to start going off of. I have been working dillengently to incorporate relevant case from my state into this.

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@300turbozx

 

I think if Midland believes that you have a good chance of convincing the court that their claim is time-barred by FL's borrowing statute, they will dismiss w/o prejudice in order not to have a court set a legal precedent in debt collection cases.  

 

I would omit the Introductory Statement and cites from CT and OH law and fed law.

 

 

You have two paragraphs titled "Statements of Material Dispute."  You should combine it all into one.

 

Your "Conclusion" should be incorporated into your "Wherefore." (prayer for relief)

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Title

 

 

DEFENDANT’S MEMORANDUM IN OPPOSITION TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

Defendant, now files this Memorandum In Opposition to Plaintiff Motion For Summary Judgment in the above-captioned case. Fla. R. Civ. P. 1.510(a).  For the reasons set forth below, Defendant  contends that Plaintiff's summary judgment motion should be overruled in its entirety.

 

 

 

 

Intro Statement

 

 

Defendant  asserts that Plaintiff is not entitled to summary judgment because Plaintiff  as moving party, has not met its initial summary judgment burden to show conclusively the complete absence of any genuine issue of material fact and its entitlement.  [T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact." Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

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Add this in reference to your Affirmative Defenses that you pleaded in your Amended Answer. 

 

 

 

In Florida, “[t]he law is clear that where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment.” Maung v. National Stamping, LLC, 842 So.2d 214, 216 (Fla. App. 3rd DCA 2003).

 

Now  tell the court  that Midland has not negated or denied your  SOL defense based on the FL borrowing statute.  (Cite the statute.) in their MSJ.

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question, does amending my Affirmative defenses enough, or do i need to oppose to the MSJ as well. I have been working on both just in case. 

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I think you need to do both.  Their MSJ only addresses your original Answer and Aff Def.  You have to show in your Opp to MSJ that genuine issues of material dispute remain in your Amended Answer and Aff. Def.

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Yes if you look at one of my previous post I added a pdf document containing all the documents other then cc statements. I had to take pictures of them with my phone because the court didn't want to give me a copy and it was 76 pages long, and to get a copy it was a dollar a page. So I took pictures of them.

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@300turbozx

 

I just read it, but the Midland affidavit seems to have 2 pages, but the docs you uploaded only show the 1st page (ending at paragraph 3).  Did I miss the 2nd page?

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@300turbozx

Where's the rest of Midland's affidavit?   I don't see anything beyond paragraph #3 and nothing that shows the affidavit was notarized.

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I can't read the affidavit on the computer I am on now.  In FL it is not required that affidvits be notarized IF they contain this language:

 

http://notaries.dos.state.fl.us/education/faq/oath.html

 

 

 

The alternative method of making verified (or sworn) documents is set forth in section 92.525, Florida Statutes, and provides that a signed written declaration can substitute for a notarized oath if it contains the following language: "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true." The written declaration must be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. By signing a document with that language, a person can make a sworn written statement without having it notarized

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@debtzapper

 

The affidavit doesn't show that.  It doesn't show a signature, date, anything.  It seems that there should be another page that would contain more statements made by the affiant along with his signature.

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