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Motion for Summary Judgement - need help to answer!!!


manutd
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1. Who is the named plaintiff in the suit?

CFH
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  
Carlson, McMahon & Sealby
3. How much are you being sued for?
$7,xxx
4. Who is the original creditor? (if not the Plaintiff)
Chase
5. How do you know you are being sued? (You were served, right?)
Served by mail
6. How were you served? (Mail, In person, Notice on door)
Mail
7. Was the service legal as required by your state? 
Yes
Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in? Washington State, Snohomish County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
2010/5
11. What is the SOL on the debt? To find out: 
6 years
Statute of Limitations on Debts

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).  Motion for 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? Next week thursday

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.Affidavit. Statements.  Card Agreement.  Bill of sales

17. Read this article: 

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

20140208123409094.pdf

20140208123448088.pdf

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Lost one summary judgement because I didn't deny the debt.  How should I deny the debt if they have statements?  Just don't remember?

So far,  I found case law that they need to have cancelled check to prove I used the account.

SOL is no use in WA.  I learnt that WA consider CC as written contract because of the card agreement.

(how about Line of Credit, anyone from WA can answer this??)

 

Thanks!

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Please post a link to the case you mentioned so we might read it. No doubt others want to study that case too!

Now, when I searched for the SOL, I found Washington has a 3 year SOL. I'm not from your state so I don't know about any specific cases that definitively say that a credit card is a written contract.

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RCW 4.16.040

Actions limited to six years.
    
The following actions shall be commenced within six years:

     (1) An action upon a contract in writing, or liability express or implied arising out of a written agreement



RCW 4.16.080

Actions limited to three years.
    
The following actions shall be commenced within three years:

 (3) Except as provided in RCW 4.16.040(2), an action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument;

 

 

A credit card agreement could be considered a written instrument because it contains the terms of the agreement between the parties.

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For SOL:

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION IIUNIFUND CCR PARTNERS, No. 39244-5-II Respondent/Cross-Appellant, v.PAUL B. SUNDE, PUBLISHED OPINION (This it?)

I was hoping for the case law OP is referring to which pertains to the cancelled check and proving the account based on that. Do you have that BV80? Seems like a concrete hurdle people ought to know about. I mean, I'd want to be aware of it if I were a Washington resident.

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@manutd

The second affidavit for the sale from GACC to CFH references an Exhibit A.  Were there any documents accompanying this affidavit?  If not, attack the affidavit on these grounds.

 

Focus your opposition on the fact that, while CFH's affiant may be qualified to testify about it's own records, it cannot have personal knowledge of the original creditor's records and record keeping practices, and cannot know whether or not the records were made at or near the time and made in the ordinary course of business, etc,  and cannot know whether or not Chase's computers/data (or GACC's, for that matter) were ever compromised by corruption, virus or hacker.

 

Also, compare the balance on the most recent Chase CC statement to that from the bill of sale from Chase to GACC.  If these are the same amount, it means Chase did not apply interest to the account after it charged off.  Then try to calculate the interest CFH/GACC claims is owed and see if that amount fits with the period of time before or after the account was sold to GACC.  If it's clear the amount of interest they claim has to include the period of time after charge-off and before the account was sold to GACC, it means GACC and/or CFH applied interest to the account after Chase waived it's right to do so.  I don't have time to search for caselaw right now, but try to find something from Washington about what constitutes 'waiver of a right'.  The idea here is that if Chase waived it's right to charge interest, you need to argue that the successors are prohibited from retroactively adding the interest back in.

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@BV80. I'm not sure, but regardless, it still achieved the same goal. OP merely made mention (whoa say that three times fast!) of a case and I wanted to find it! Washington hails from the Ninth and so appellate decisions determined for them, matter to California residents.

Questions; does the unpublished decision still carry the same weight as a published one? And;

OP states "So far, I found case law that they need to have cancelled check to prove I used the account."

I'm concerned that OP might be relying on this case when the courts have determined an account belongs to a defendant with far less. With a decision such as the one you located for me, thanks by the way, can we use it to say the creditor requires proof of a payment to establish the account as ours? Because, well hey, that'd be pretty great.

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@HotWheels96

 

While they may be persuasive (or may not), npublished decisions are not binding on any court. 

 

Yes, WA is in the 9th Circuit, but I'm not sure that WA state court decisions would carry any weight with CA state courts.  Federal court decisions might carry more weight because both states would appeal to the 9th Circuit Court of Appeals.   But that would not be the case with state court appeals.

 

OP states "So far, I found case law that they need to have cancelled check to prove I used the account."

 

 

I don't know where he got that.  Many people don't write checks anymore.

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The exact language from Discover Bank v. Bridges, 226 P. 3d 191 - Wash: Court of Appeals, 2nd Div. 2010 is

 

Nor do they show that the Bridges acknowledged the debt, for example, through evidence of cancelled checks or online payment documentation.

 

So they need to show a form of payment, not just a cancelled check. 

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Isn't Chase getting sued right and left for falsifying documents?

 

I don't know anything about defeating a MSJ and that is why I'm a firm believer in using arbitration against the JDBs.

Defeating a plaintiff's MSJ is technically as simple as showing there are "genuine issues as to material fact".  The hitch is many judges are motivated by things other than justice so they have their own standard of what constitutes a "genuine issue as to material fact".

 

Fortunately a party can appeal if a MSJ was granted in error.

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@manutd

The second affidavit for the sale from GACC to CFH references an Exhibit A.  Were there any documents accompanying this affidavit?  If not, attack the affidavit on these grounds.

 

Focus your opposition on the fact that, while CFH's affiant may be qualified to testify about it's own records, it cannot have personal knowledge of the original creditor's records and record keeping practices, and cannot know whether or not the records were made at or near the time and made in the ordinary course of business, etc,  and cannot know whether or not Chase's computers/data (or GACC's, for that matter) were ever compromised by corruption, virus or hacker.

 

Also, compare the balance on the most recent Chase CC statement to that from the bill of sale from Chase to GACC.  If these are the same amount, it means Chase did not apply interest to the account after it charged off.  Then try to calculate the interest CFH/GACC claims is owed and see if that amount fits with the period of time before or after the account was sold to GACC.  If it's clear the amount of interest they claim has to include the period of time after charge-off and before the account was sold to GACC, it means GACC and/or CFH applied interest to the account after Chase waived it's right to do so.  I don't have time to search for caselaw right now, but try to find something from Washington about what constitutes 'waiver of a right'.  The idea here is that if Chase waived it's right to charge interest, you need to argue that the successors are prohibited from retroactively adding the interest back in.

They attached the pool id documents there.  And the pool id is hand-written.

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I will try to post my Opp MSJ tonight.  I thought I knew how to answer but I am confessed here.

 

In their MSJ, they have Relief Requested, Evidence relied upon, Factual Background, Statement of the issue, Discussion and Conclusion.

Do I need to answer all of them or only the discussion?

How to deny I have knowledge of the account?

Sorry, I sounds stupid but I am really confused with all the documents they attached.

 

Also, in the Declaration of Fair,

Exhibit A, bill of sale from the Chase to GACC.  and from GACC to CFH

Exhibit B, Affidavit of sale from Chase was made 2013 for the account of 2010?  and he is not the custodian of record.  Confused, how does it work?

Exhibit C, just the statements.

Exhibit D, Card Agreement

Exhibit E, Declaration of Service

Exhibit F, my appearance and answer.

 

I will do more research but if there is any sample you guys can share with my.  I would be great.

Btw, is it possible for the forum to have secions for each states?

 

Thanks for all your help

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@manutd

 

If it were me, in the opposition, I would attack their standing to sue.  None of the bills of sale reference your name or the account number of the subject account.   There is no evidence that any account allegedly owed by you was sold by Chase to Global.  It only shows that some accounts were sold, but those accounts and account holders are not identified.  The same applies to Global's bill of sale to CFH.  It only references accounts.  It doesn't reference you or the specific account in question.

 

Since there's no evidence that Chase sold the alleged account to Global, there can be no evidence that Global ever owned it in order to sell it to CFH.

 

Since CFH hasn't proven ownership of the subject account, they haven't proven that they have standing to sue you.

 

I would find out how my courts have ruled on standing to sue and valid assignments, and chain of ownership or assignment (chain means there's been more than one owner).  You would need some rulings from your higher WA courts to support your defenses.

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