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Looking for advice about next step in summary judgement process


JSRA
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Looking for advice about the next step.....

 

Do I need to file an opposition to motion for summary judgement and/or a motion to compel discovery.

 

And/or do I need to file a dismiss of summary?

 

 

 

These are the steps taken thus far:

 

- Served with complaint with affidavit attached in court of common plea.  Nature of action listed as debt collection.

 

- Submitted answers with affirmative defenses.

 

- Sent request for production of documents.

 

- Received a copy of 2 credit card statements.

 

Now I have received notice of motion and motion summary judgement pursuant to rule 56 of the South Carolina rules of civil procedure.  There was attached affidavit in support of motion for summary judgement.  Also with certificate of service.

 

Thanks for any suggestions or advice

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Step 1 is to beat the summary judgement by filing an opposition. Take their motion point by point and show that there are issues that require trial. Only 1 issue is enough to toss it but the more the merrier.

 

A motion to compel makes sense depending on how the responded to your document production request. If they just sent 2 statements and that's it, then you should hit them with a request for admissions and make them admit to not having the documents you requested. If they objected to your requests, then it makes a sense. But it does depend on what you asked for and how they responded. Also many states require an attempt to work out discover issues prior to filing a motion to compel. You need tor review the rules on that.

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This is what we requested for production of documents:  

 

1. please produce any credit application signed by defendant.

 

2. Please produce a copy of the executed contract in Portfolio Recovery Associates LLC's possession setting forth the terms the defendant is alleged to have agreed to in connection with the card at the beginning.

 

3. Please produce a copy of any modifications to those terms specifically agreed to by defendant.

 

4. Please produce a copy of all statements from the beginning of time to present.

 

5.Please produce detail regarding alleged charges by amount, type and date.

 

6. Please produce evidence of all payments received.

 

7. All documents the creditor intends to introduce as evidence at the trail in this action.

 

8. All reports or statements of potential witnesses that the defendant violated the terms of any agreement.

 

With the 2 credit card statements received the letter with it stated "Please find enclosed documentation evidencing the name and address of the original creditor."

 

Are there templates available for filing opposition?

 

Thanks for your help

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1. Who is the named plaintiff in the suit?  Portfolio recovery Associates LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Richardson Plowden & Robinson P.A.

 

3. How much are you being sued for? $2,060.65

4. Who is the original creditor? (if not the Plaintiff)  General Electric Capital

5. How do you know you are being sued? (You were served, right?)  Served papers

6. How were you served? (Mail, In person, Notice on door)  Mail and in person.  Received notice in the mail to pick up papers, but the next day the papers were delivered.

7. Was the service legal as required by your state? Not sure, but was served by the sheriff’s department.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  None

 

9. What state and county do you live in?  Lexington, SC

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  Acct. was charged off in June 2011

11. What is the SOL on the debt? To find out:   For SC it’s 3 years
 

12. What is the status of your case? Suit served? Motions filed?  

- Served with complaint with affidavit attached in court of common plea.  Nature of action listed as debt collection.

- Submitted answers with affirmative defenses.

 - Sent request for production of documents.

 

- Received a copy of 2 credit card statements.

 

Now I have received notice of motion and motion summary judgement pursuant to rule 56 of the South Carolina rules of civil procedure.  There was attached affidavit in support of motion for summary judgement.  Also with certificate of service.

 

 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, responded “defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of plaintiff’s claim, and based on this denies generally and specifically plantiff’s claim.”
 

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 already responded with answers and affirmative defenses within the time frame for the complaint that was filed.
 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Affidavit, and 2 original credit card statements.

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@JSRA

 

I have some questions for you.

 

1.  What is the cause of action?  Account stated?  Breach of contract?

 

2.  Do the credit card statements show any charges and/or payments?

 

3.  What was stated in the affidavit?

 

4.  They didn't provide a bill of sale?

 

5.  How did they answer the following request?

 

7. All documents the creditor intends to introduce as evidence at the trail in this action.

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I'll defer to @BV80 but after a quick look at the rules, it appears that "reasonable notice" is required. A meet and confer letter should cover the requirement. Send them a letter, telling them that they're response to your production of document request is deficient. Give them 10-days to comply or you'll file a motion to compel.

 

Just so you know regarding: 1. please produce any credit application signed by defendant.

 

This likely doesn't exist. Requests for credit may be signed, although applying on the internet is quite common, so there wouldn't be any signature.

 

Are there templates available for filing opposition?

 

I'm sure some exist, a search on google using the terms "south carolina opposition to MSJ" or something similar should yield some results. No matter what it'll need to be tailored to the Plaintiff's motions.

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1.  What is the cause of action?  Account stated?  Breach of contract?

Nature of action:  There is a column titled contracts, in this column is listed constructions, debt collections, employment, general, breach of contract and other.  The one they have checked is debt collections.

 

2.  Do the credit card statements show any charges and/or payments?

One of the statements shows an automatic payment and the other shows charge off

 

3.  What was stated in the affidavit?

The complaint affidavit states:

I, the undersigned _________________, custodian of records, for the portfolio recovery associates, llc hereby depose, affirm and state as follows:

1. I am competent to testify to the matters contained herein.

2. I am an authorized employee of portfolio recovery associates, llc (“account assignee”) which is doing business at riverside commerce center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein, and do so based upon review of the business records of the account assignee and those records transferred to account assignee from general electric capital corp/rooms to go(“account seller”), which have become a part of and have integrated into accounts assignee’s business records, in the ordinary course of business.

3. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the account assignee, all of the account seller’s interest in such account having been sold, assigned and transferred by the account seller on 6/27/2011.  Further, the account assignee has been assigned all of the account seller’s power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the account seller has retained no further interestin said account or the proceeds thereof, for any purpose whatsoever.

4. According to the records transferred to the account assignee from account seller, and maintained in the ordinary course of business by the account assignee, there was due and payable from (my name) (“debtor and co-debtor”) to the account seller the sum of $1,895.65 with the respect to account number ending in **** as of the date of 6/13/2011 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

5. According records of said account assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, account assignee claims the sum of $1,895.65 as due and owing as of the date of this affidavit.

6. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the defendant is not on active military service of the United States.

The affidavit in support of motion for summary judgment states:

 

_____________ personally appeared before me this day, and after being duly sworn, according to law upon his oath, deposes and says:

1. (S)He is the authorized agent for portfolio recovery associates, llc, as purchaser from the assignee of general electric capital rooms to go, or any other assignee that may have or have had any interest in defendant’s account or any interest in any obligation relating to such account.

2. (S)He makes this affidavit for and on behalf of the portfolio recovery associates, llc, as purchaser from and assignee of general electric capital rooms to go, being duly authorized to do so.

3. The amount currently due to portfolio recovery associates, llc is $1,895.65plus costs in the amount of $165.00 for a total balance due and owing of $ 2,060.65 on account number ****************.

4.The last payment date on account **************** is 11/07/2010.

5. Account number **************** has been credited properly.

 

4.  They didn't provide a bill of sale?

No bill of sale

 

5.  How did they answer the following request?

 

7. All documents the creditor intends to introduce as evidence at the trail in this action.

All that was sent was the copy of 2 credit card statements.

At the end of the notice of motion it states this motion is based upon the affidavits filed with the court, the pleading, and the common and statutory laws of South Carolina, together with other evidence the court deems proper.

 

 

I hope this answers the questions properly.  Thanks again

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@JSRA

 

South Carolina case law is woefully lacking in debt collection cases.  They're just not there.  So hopefuly the following will help.

 

1.  The biggie is standing to sue.  They have not proven that they standing to sue you.  Standing means that a party has been injured (in this case,an economic injury) and has a right to be compensated for that injury.   However, in order for the JDB to show an injury, they have to show that they own the account.  You can't sue for payment of something you don't own or haven't proven that you own.

 

There is no bill of sale from GE to Portfolio that shows any accounts at all were sold by GE.  All you have is Portfolio's word (affiant's testimony) that they bought an account for which you allegedly owe money.  You requested all of the documentation that they would  introduce at a trial, but they have not provided a bill of sale evidencing a purchase of accounts from GE.

 

Even if they prove that you owe the money, without proof of ownership of the account which is the subject of Plaintiff's complaint, Portfolio Recovery has not proven standing to sue.

 

Standing to sue is a fundamental requirement in instituting an action. Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 639, 528 S.E.2d 647, 649 (1999).

Standing is comprised of three elements:

    First, the plaintiff must have suffered an "injury in fact"— an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Smiley v. South Carolina Dep't of Health & Envt'l Control, 374 S.C. 326, 329, 649 S.E.2d 31, 32-33 (2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (alteration in original)).

 "The party seeking to establish standing carries the burden of demonstrating each of the three elements." Sea Pines a$$'n for the Protection of Wildlife, Inc. v. South Carolina Dep't of Natural Res., 345 S.C. 594, 601, 550 S.E.2d 287, 291 (2001).

 

2.  In the affidavit, the affiant claims that Portfolio purchased the account on 6/27/2011.  Plaintiff has presented no evidence to support that statement.  Therefore, that statement is not only hearsay, it is inadmissible hearsay.

 

3.  Business records are hearsay, but they can be admissible hearsay.  A business must present an affidavit or testimony that authenticates the business records.  It's called "laying the foundation" for the admission of those records.  That falls under South Carolina Rule of Evidence 803(6):

 

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, 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; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

 

The affiant does not state that the credit card statements were made by a person with knowledge (an employee of GE). 

 

It is also not stated in the affidavit that the information on the credit card statements was made at or near the time of the acts or transactions.  So there's 2 elements of 803(6) that are missing.   I'd argue that the affidavit does not comply with Rule of Evidence 803(6) due to that omission.

 

Business record entries must have been made at or near the time of the act to which they relate; the purpose of this mandate is to aid in establishing that the record was honestly and fairly kept. South Carolina Nat'l Bank v. Jones, 302 S.C. 154, 155, 394 S.E.2d 323, 324 (1990).
 

We also have § 19-5-510 (Uniform Business Records as Evidence Act) of the South Carolina Code of Laws:

 

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

 

The affiant did not state that he/she could testify to the mode of preparation of the credit card statements.  Of course, it stands to reason that he/she could not do so because an employee of Portfolio Recovery would have no knowledge as to the method of preparation of credit card statements created by GE.

 

A business record without evidence about the manner in which it is prepared or the source of its information does not meet the requirements in either section 19-5-510 or Rule 803(6), SCRE. See State v. Sarvis, 317 S.C. 102, 107, 450 S.E.2d 606, 609 (Ct.App.1994).

 

Therefore, I would argue that Plaintiff's affidavit does not comply with Rule of Evidence 803(6) and does not lay the proper foundation for the admission of the credit card statements.

 

Does the motion for summary judgment reference a contract?
 

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First off thank you so much for your time and knowledge on this matter.

 

I think this is what your asking for,but i'm not absolutely sure (Does the motion for summary judgment reference a contract?)

 

This is with the notice of motion and motion for summary judgement affidavit.

 

It's listed as notice of motion and motion for summary judgement pursuant to rule 56 of the South Carolina rules of civil procedure.

 

To the Defendant _____________

please take notice that the plaintiff, portfolio recovery associates, llc through it's undersigned attorney, will move pursuant to rule 56 of the South Carolina rules ofcivil procedure, for summary judgement before the presiding judge of the in the court of common pleas of lexington county, in the lexington county courthouse, on the tenth (10th) day after service hereof at 10:00 o'clock in the forenoon, or at such other time and place as is convenient to the court and counsel as follows:

The plaintiff be granted summary judgement, pursuant to rule 56 of the South Carolina rules of civil procedure, as to the within action, as alleged in the plaintiff's complaint for the reason that there is no genuine issue of material fact and the plaintiff is entitled to judgement as a matter of law.

This motion is based upon the affidavits filed with the court, the pleadings, and the common and statutory laws of South Carolina, together with other evidence the court deems proper.

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We received the MSJ on January 11, 2014.  It was filed on 1/7/14.  

 

I'm not sure what the body of the motion is, I've copied all documents and posted them here for the MSJ.

 

We received:

pg.1 Cover letter

pg.2 Motion and order information form and cover sheet

pg.3 Notice of motion and motion for summary judgement pursuant to rule 56 of the South Carolina rules of civil procedure

pg.4 Affidavit

pg.5 Certificate of service

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This is the only thing I see in here that cites a law, it is on pg. 3

 

"The plaintiff be granted summary judgement, pursuant to rule 56 of the South Carolina rules of civil procedure, as to the within action, as alleged in the plaintiff's complaint for the reason that there is no genuine issue of material fact and the plaintiff is entitled to judgement as a matter of law.

This motion is based upon the affidavits filed with the court, the pleadings, and the common and statutory laws of South Carolina, together with other evidence the court deems proper."

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@JSRA

 

Your kidding!   I've never heard of such a flimsy excuse for a MSJ.

 

I hate to ask, but if you don't mind, what were the allegations listed in the complaint?  Since they didn't say anything else in their MSJ, it looks like your opposition will have to be based on the allegations in the complaint and the affidavit.

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Defendant_________________

Plaintiff, portfolio recovery associates, llc the purchaser and assignee of the obligation under suit, complaining of the defendant(s), alleges that:

1. Plaintiff is a corporation organized and existing under the laws of the United States of America and is doing business in South Carolina.

2. Upon information and belief, Defendant, ______________, is a resident of the above captioned county and subject to the jurisdiction of this court.

3. The plaintiff is the holder of an account originally issued by general electric capital corporation and subsequently assigned to portfolio recovery associates, llc.

4. The original account holder issued credit to the defendant at defendants request.

5. There is currently due and owing on account no. **************, the sum of  One thousand eight hundred ninety-five and 65/100 Dollars ($1,895.65).  Attached to the complaint is a verified statement of account which is incorporated herein by reference.

6. Demand has been made on defendant for the amount due, but the defendant has failed to cure the default.

Wherefore, plaintiff, portfolio recovery associates, llc, prays for judgement against defendant, _____________, in the amount of One thousand eight hundred ninety-five and 65/100 Dollars ($1,895.65) actual damages, together with the cost of this action; and for such other and further relief as this court deems just, proper and appropriate.

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  • 3 weeks later...
So we submitted our opposition and affidavits on January 27th 

 

Just checked the mail, and we received 3 things from the law office:

 

1. Affidavit of sale of account by original creditor (Which basically states they sold a pool of charge off accounts)

 

2. Blanket certificate of  conformity for notary Diane Stone

 

3. A sheet titled: Exhibit A Bill of sale (which no where states our name or any of the account information.)

 

 

Looking for advice on how to proceed, they mailed this to us the day they received our opposition. Can they send this information after they have already filed MSJ? And how can I fight this on Wednesday(our court date) or do I need to file something on Monday opposing this new evidence sense it was not in my original opposition?

 

Any advice would be much appreciated. 

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Looking at your rules, they did not have to have all their evidence in their pleading, so I guess yes they can do this.  You however have up until 2 days before the hearing to respond.

You can ammend your opposition to include any of the new evidence, such as the Bill of Sale no where contains your name and account number, 

Also if the BOS states there are no guarentees on the account, you would want to bring that up, that you need to see the agreement Portfolio has with GE. (the bos probably says something like they do not guarentee the accounts except for what is provided in the purchase agreement)

Hammer home that the affiant is not qualified to testify to such matters, she says she is qualified, but she doesnt say how she is qualified, she states she reviewed your records, but does not tell you they are correct. only that they show you owe.  She also has no knowledge of how GE kept and maintained their records, only that they took their records and made them portifolios.

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Is this for breach of contract?  If so, where's the contract they claim you breached?

And if it's account stated, they have to demonstrate you caused charged to be made to the account (i.e. billing statements with your name and itemized charges, receipts bearing your signature, etc).

 

The way I see it, they have failed to prove the most basic foundation of their claims.  Is a MTD in order here?

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@Harry Seaward

 

They've already filed an MSJ. 

 

What about a motion in limine?  Look at Summary Judgment Rule 56(e):

 

(e) Form of Affidavits; Further Testimony; Defense Required. 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

 

Their evidence was not attached to the MSJ.  However, "therewith" could mean "soon after".

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3.  What was stated in the affidavit?

The complaint affidavit states:

I, the undersigned _________________, custodian of records, for the portfolio recovery associates, llc hereby depose, affirm and state as follows:

3. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the account assignee, all of the account seller’s interest in such account having been sold, assigned and transferred by the account seller on 6/27/2011.  Further, the account assignee has been assigned all of the account seller’s power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the account seller has retained no further interestin said account or the proceeds thereof, for any purpose whatsoever.

 

Where is the documentation supporiting this underlined statement?

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Their evidence was not attached to the MSJ.  However, "therewith" could mean "soon after".

 

Two sources I sought referenced 'therewith' as meaning "soon after".

 

(e) Form of Affidavits; Further Testimony; Defense Required. 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

 

To me, this would indicate that the underlying documents "referred to in an affidavit" should have been attached to the complaint.

The MSJ refers to this with the statement "as alleged in the plaintiff's complaint for the reason that there is no genuine issue of material fact".

 

" ...............an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."

 

Motion in Limine or ammended opposition ? .......... good question.

I don't know SC rules at all so am replying as to the points in the posts.

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