Neobane

Interesting Turn in Case Def. against Midland Funding, OK

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So, way back in July 2012, my wife was serviced a notice to sue by Midland Funding in Oklahoma.  The details of the first couple of years of BS is available in this thread

 

http://www.creditinfocenter.com/community/topic/315007-midland-lbn-and-petition-for-indebtedness/

 

An update on what has occured:

 

The plaintiff's attorney filed a Motion for Summary Judgement, but only included the Generic Bill of Sale and their own computer generated statements on the account.  We filed motions to strike both pieces of evidence and when it came time for us to appear before the judge, the attorney tried to counter our motion to strike by stating the "Affidavit" gives them standing.  When the judge asked me if I have any issues with this statement, I advised the judge that no such affidavit was filed with the MSJ.  The attorney said "Maybe it was with the initial filing".  I said no, it was never filed.  The judge asked if the Plaintiff were granted a motion to stay to amend her MSJ, would I have any issues.  That's when I hammered the inadmissibility of the document even if it was filed.

 

So, they are granted a stay for 2 more months.  The next trial comes and the Plaintiff failed to file their amended MSJ and asks the just to throw out the MSJ entirely, including our motions and they would refile.  Judge concurs and that ends our day.

 

Now comes the new Motion for Summary Judgement.  Here's the twist.  This motion has NEW documents not previously turned over to us during interrogatories.  Further, the documents were CREATED this year.

 

The original affidavit is NOT attached to this filing which was sworn by a Susan Rasmussen sword on June 27, 2012 notarized on June 27, 2012 in Minnesota.  However, a NEW affidavit is filed sword by Bonnie Gohman, sworn on March 5, 2014 and notarized on March 5, 2014 in Minnesota.

 

A 2nd bill of sale (original generic one is still attached) was also attached citing a sale date of January 7, 2011 and is signed by the president of WebBank while the original attached BoS cites January 29, 2011 and is signed by the president of Dell Financial.  Note that neither document specifically indicates which account was sold or the contents of that account.  The new bill of sale mentions a schedule 1.  That "page" only references an excel spreadsheet hanging out on webex somewhere.  The spreadsheet is not attached.

 

2nd new affidavit is by the president of WebBank stating the same as the other affadavits.

 

"Exhibit A-1 to Bill of Sale" (though It doesn't say WHICH bill of sale this is an exhibit of) references a text file dated January 29, 2011.  The text file is not attached.

 

3rd new Affidavit is by the senior recovery manager of Dell Financial.  The statement is dated 2/1/2012 in New York County, NY.  It was notarized in Texas 2/1/2012.

 

I've read through a lot of cases regarding Midland Funding.  I've seen lots of blow away wins versus them, but I've never seen a case last 2 years and during the MSJ a whole slew of new evidence emerges that was not previously released to the defense.

 

Initial reaction is that all this evidence contradicts itself.  Conflicting sale dates, people making statements in NY that were signed IN-PERSON in Texas the same day.  So, my question is where do I start?

 

They filed these items under 3 separate exhibits:

 

Exhibit A: Computer generated Account statement "created by Midland from records provided"

Exhibit B: Grohman's Affidavit

Exhibit C: New Bill of Sale

 

After that, the rest of the documents are attached, but not marked as Exhibits.  Not sure if they are included in Exhibit C or just stapled in.

 

---------------------------------------------------------------------------------------------------------------

Directory of Topics of Note in this Thread:

 

Documents entered into evidence by Plaintiff

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you are going to need to write an opposition, and include all of these facts.  You only need one issue of material fact, you have several.  I would include the old evidence they sent and the new evidence, state how they contradict each other.  Look in your rules of civil procedure, there should be something in there about affidavidts, and how they are created.  I can't remember how it goes, and I have seen the same type rule in more than one state, but it is the same effect of creating an affidavidt for litigation.  (I know affidavidts are created solely for litigation but this was more of an after the fact creation, after the case was filed)  Just look in your rules and see if there is anything aobut that, you may be able to use.

Did you write an opposition to the first one? You can use the same format, just add to it.  I would especially point out that the NEW bill of sale dated Jan. 7 references a data sheet dated Jan. 29, which happens to be the date on the Old bill of sale. neither bill of sale references the alleged account.  Plaintiff is trying to submit any bill of sale they think would work, and you deny the account. Midlands records are not reliable.  You also object to the affidavidts trying to authinticate these records as they contridict each other.

 

They are trying to build a whole new case, and hope none of the old stuff will be looked at.

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Doc 1-2:  post-92469-0-77645200-1402631714_thumb.ppost-92469-0-27738100-1402631720_thumb.p

New Affidavit of Indebtedness on behalf of MCM.  Identical to the AI from the interrogatories except the person testifying is different.  Claims to have first hand knowledge of the sale of the account from Webbank to Midland.

 

Doc 3: post-92469-0-73636300-1402633109_thumb.p

Bill of Sale.  Describes the sale of accounts on 1/7/2012 from WB to DFS.  Conflicts with Affidavit of Sale (Doc 5) as Doc 5 claims the accounts were transferred on 1/26/12.  Of interest is that the Purchaser of the Accounts, Account Details, or any other identifier other than the Seller is recorded.  Schedule 1 referenced here is Doc 4.

 

Doc 4:  post-92469-0-06056600-1402631728_thumb.p

Schedule 1 to Bill of Sale (Doc 3): References Accounts in a spreadsheet stored on a Dell WebEx service.

 

Doc 5-6: post-92469-0-13171900-1402631731_thumb.p post-92469-0-01574500-1402631739_thumb.p

Affidavit of Sale of Accounts By Original Creditor.  References the sale and transfer of accounts from Webbank to Dell Financial Services on January 26, 2012.  No references to any transaction of accounts outside of WB/DFS or identity of the accounts moved. 

 

Doc 7: post-92469-0-44238300-1402631742_thumb.p

Exhibit A-1 to Bill of Sale.  This is a description of another text file containing account information, but not the account information or the contents of the text file, that is referenced in Doc 10. 

 

Doc 8-9: post-92469-0-72428500-1402631746_thumb.p post-92469-0-68703500-1402631755_thumb.p

Affidavit of Sale of Accounts By Debt Seller: Sworn statement from Sr. Recovery Mgr of DFS.  References the transfer of "accounts" to MCM on 2/1/2012 to which DFS acquired from WB on 1/26/2012.  No identifiable account information, reference to file containing account information, or otherwise useful info.  Note that the Affidavit has State of New York at the top, but was notarized the same day in Texas.

 

Doc 10: post-92469-0-30089400-1402631761_thumb.p

Bill of Sale.  Describes the sale of accounts on 2/1/2012 from DFS to MCM as identified in Exhibit A-1 (the page that gave the name of the text file that has the account information that is not attached).

 

*Edit: Doc 11: post-92469-0-70462900-1404412587_thumb.p

Customer Account Information.  Describes itemization of transactions.  Claims to be a record built by MCM based on electronic records provided by OC.  Electronic records were not made available.

 

I still have the motions from earlier, though I will have to rewrite them to fit the new records.  I have the rules on evidence, but they are doing some balsy stuff that will be hard to find case law for.  I.E. Admitting generic receipts or conflicting documents as evidence.

 

While I object to the MSJ, add my Motion to Strike Evidence, can I file for a motion to dismiss or should I wait until after the judge rules on the MTJ?  Frankly, once we start to look at the evidence, I find it hard to believe the court will take all this as clear record keeping.  It should certainly get the MSJ overruled and pushed to a court trial.  But frankly, they still haven't proven standing and I'm trying to figure out how to force that out.

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Your in Cali. If you get past the MSJ, they have to get past your mil you will write objecting to the declaration, and their witness you won't be able to serve. Big hurdle, most JDB' s will not fly out a witness, and if you object to all those other affidavidt's if they can't provide a addy for you to serve them, then those go out the window too.

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I'm trying to draft the Opposition to the Motion tonight.  An issue I've been running into is case law regarding the admissibility of vague Bills of Sale.

 

Now, I can easily say that if "I bought a TV from Walmart using my credit card, then tried to return that TV, the store would not accept the Credit Card Receipt as proof that the TV I am returning is the TV I purchased.  The CC receipt lacks specific invoice information relating to the indentity of the exact TV in my possession.  The store receipt would however have that information.  Plaintiff is offering the Credit Card Receipt for a load of accounts they purchased without producing the store invoice of the accounts purchased.

 

The closest I could get to any case law that backs this analogy is actually a Court of Appeals against Midland...in Indiana, not Oklahoma.  http://www.in.gov/judiciary/opinions/pdf/11081301ewn.pdf

 

So how to I present this issue without having relative case law to back it?

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No, the only documents they provided through out the suit was what I posted above.  Most of that was not revealed to us until just now, 2 years after the suit went under way.  They don't hide the fact that they were created right around when we moved to strike their motion for summary judgement.

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@Neobane

 

Without billing statements from the OC, where's the proof the amount claimed?  Where's the proof of the existence of an account in your name?

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They are using a load of circumstantial evidence that they are hoping is substantive enough to sway the judge.  I think they dine together alot...

 

They have a "Transaction History" to which they are saying will be admissible because of the Affidavit.  I counter that it fails the hearsay exemption rule because it has been altered and "the source of information or the method or circumstances of preparation indicate lack of trustworthiness"

 

Oklahoma Law permits "account stated" as proof of a contract to which they further rely on more affidavits to prove they acquired.

 

The question is that the "account stated" strategy is based on the use of billing statements, not an account transaction document.  I'm not sure that would hold up or the best way to challenge that yet.

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@Neobane

 

I don't even see an account number referenced in the Midland affidavit.

 

None of the other documents reference you or an account number.  So, they're claiming ownership of an account they haven't even proven exists.  Here's some case law to get you started.

 

Summary judgment is appropriate only when there is no substantial controversy as to any material fact. 12 O.S. 2001, ch. 2, app. 1, Rule 13; Copeland v. Tela Corp., 1999 OK 81, ¶ 4, 996 P.2d 931, 932. The moving party has the initial burden of showing that there is no substantial controversy as to any material fact. Bowers v. Wimberly, 1997 OK 24, ¶ 14, 933 P.2d 312, 315.

All facts and inferences must be viewed in a light most favorable to the non-moving party.  Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455.

 

Standing refers to a person's legal right to seek relief in a judicial forum. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact—i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. J.P. Morgan Chase Bank, National Association v. Eldridge, 2012 OK 24, 273 P.3d 62 (citing Fent v. Contingency Review Board, 2007 OK 27, ¶ 7, 163 P.3d 512, 519-520).

 

In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. Id., at 65.

 

And, thus, "standing [must] be determined as of the commencement of suit;..."  Wells Fargo Bank, N.A. v. Heath, 2012 OK 54, 280 P.3d 328, 332 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n. 5, 112 S.Ct. 2130, 2142, 119 L.Ed.2d 351 (1992)).

 

 

They can't prove ownership of an account they haven't proven ever existed.  As a result, they haven't proven they've suffered an injury.  No injury, no standing to sue.

 

I'll see what I can find on an account stated.

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Faust v. Priddy, 309 P.3d 140 (Okla. Crt. of Civ. App. 2013).  This is a OK credit card case that the JDB won.  The court said the JDB was required to prove assignment and did to the trial court's satisfaction.  The appeals court then discusses the elements of account stated as well as what is necessary to overcome a motion for summary judgment.

 

 


¶ 15 Priddy further contends that Faust cannot prevail without a credit card agreement. He correctly states that Faust has not produced such an agreement.¶ 14 Because Faust was not the original creditor, it had to present evidentiary materials showing that it owned the debt. Faust did so by presenting a series of assignments with it as the final assignee. Priddy then had the burden of showing that evidence is available which justifies a trial of that issue. Akin v. Missouri Pac. R.R. Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946. He did not do so, arguing instead in his motion to vacate that the assignment documents did not qualify as assignments or as assignments of any account where he was the obligor. Therefore, Faust's summary judgment materials establish that there is no substantial issue of material fact regarding whether it is the assignee of the accounts in question.

¶ 16 However, in addition to showing the assignments, Faust had produced evidentiary materials to show that Priddy had accounts and engaged in purchase and fund advances transactions and made payments. He also acknowledged receipt of at least some of these statements and that he had not protested them in any manner. An account stated is a new and independent agreement, express or implied, superseding and merging the antecedent causes of action represented by the particular constituent items. Discover Bank v. Worsham, 2008 OK CIV APP 6, ¶ 13, 176 P.3d 366, 369

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Here's my opposition to Summary Judgement.  I'm going to go back through and insert case law where needed (hopefully for each rule/statute I cite).  I do get a bit snarky as I'm a wee bit pissed that they withheld items from me.
 

Questions:

1.  In the last motion for summary judgment they filed, they forgot to include the affidavit of Susan Rasmussen.  Judge gave them a stay to fix it.  When we returned, they dropped their motion with intent to refile.  Refile includes new affidavit (created after I filed my opposition to their MSJ) but not the one they gave me in the Request for Documents.  Do I mention this and include the original affidavit as evidence.  I believe they lost the affidavit and created the new one.  I'm afraid that if I use the old one as evidence, they would be able to use it against me.  To ...well...prove that they don't know jack about OC's practice...but still.

 

2.  I know I can't accuse them of anything without putting myself in a position of burden to prove it.  But O.S. 12-2056(G) covers submission of affidavits in bad faith for MSJs and affords restitution to the other party.  In my summary, I mentioned that I wanted to reserve the right to seek reprieve for the submissions in bad faith...how do I say that without being accusatory?

 

----------------------------------------------------------------------------------------------------------------------------

 

DEFENDANT’S OPPOSITION TO PLAINTIFF’s
MOTION FOR SUMMARY JUDGMENT

AND BRIEF IN SUPPORT

 

            Comes now, Defendant and respectfully states the following:

SUMMARY

1.     Plaintiff has submitted into evidence a record claiming to be the Customer Account Information in support of Plaintiff’s claims in Plaintiff’s Motion for Summary Judgment (Hereinafter referred to as “EXHIBIT A”).

2.    Defendant has issue with Plaintiff’s Exhibit “A” as the document is either an altered copy of an original record provided by the Original Creditor or a copy of a fabricated record made to reflect the original record from data received in another format.  In either case, Plaintiff’s Exhibit “A” is not an accurate reproduction of an original record in IAW 12 O.S. 3001.4

3.    Plaintiff enters into Exhibit B an affidavit to which Plaintiff claims supports the validity of Exhibit “A” record IAW 12 O.S. 2803(6).

4.    Defendant has issue with Plaintiff’s Exhibit “B” as the affidavit is dated March 5, 2014, more 2 years after the transaction was said to have occurred. 

5.    Plaintiff’s Exhibit “B” is not the same affidavit provided to Defendant in “Plaintiff’s Response to Defendant’s Requests for Production of Documents”.

6.    Plaintiff’s Exhibit “B” was not presented to, nor was sufficient notice of its use as evidence given to, Defendant prior to the filing as evidence in support of Plaintiff’s Motion for Summary Judgment on June 11, 2014 as required O.S. 12-2902.11

7.    Plaintiff claims to have “acquired all right title and interest” in the account and supports this claim with a “Bill of Sale” entered into evidence as Exhibit “C”.

8.    Defendant has issue with Plaintiff’s Exhibit “C” as it fails to uniquely identify the Defendant’s account as being a part of the accounts purchased by the Plaintiff.

9.    The “Bill of Sale” references “Schedule 1” in order to “describe certain account”.

10.  Documents submitted as Exhibit “C” were withheld from the Defendant until June 11, 2014 in conflict with O.S. 12-2901.11

 

ARGUMENT AND AUTHORITY

                Plaintiff is not entitled to summary judgment in this matter as there is an existence of material issue to many claims, evidence, and admissions made by the Plaintiff.  12 O.S. 2056 permits the court, “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact”, to render judgment. 

                Plaintiff’s Exhibit “A” appears to be a duplicate of an original record altered by Plaintiff or a record generated by Plaintiff based on records not provided to the court.  “Duplicates are admissible to the same extent as an original under this rule or as may otherwise be provided by statute unless a genuine question is raised as to the authenticity of the original”, 12 O.S. 3003.  In this instance, the record is not an original or true copy as indicated by the markings made by the Plaintiff at the bottom of each page.  The origin, and trustworthiness, of said document at this point can no longer be ascertained.

                Plaintiff attempts to admit into evidence Exhibit “B”, an affidavit purporting to testify as to the authenticity of the record in Exhibit “A”.  However, Defendant challenges Exhibit “A” as it was dated March 5, 2014, more than 2 years after the Plaintiff claims to have acquired the account and filed this suit.  Exhibit “B” is not the same affidavit provided to the Defendant in Plaintiff’s Response to Defendant’s Request for Documents.  Exhibit “B” was not provided to Defendant prior to submission as evidence, nor was sufficient notice given to Defendant in accordance with O.S. 12-2902(11).  Defendant has issue with the withholding of this affidavit from the Defendant. 

                O.S. 12-2803(6) allows exceptions to the inadmissibility of hearsay evidence for “record of acts, events, conditions, opinions or diagnosis, 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 record, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title, or with a statute providing for certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”  As Exhibit “A” is supposed to be a copy of a “Customer Account” from the Original Creditor, Defendant has issue with the ability of the affiant, and employee of the Plaintiff, to testify in matter of the Original Creditor’s business practices.  All of these issues reveals a true “lack of trustworthiness” of Exhibit “A” and IAW O.S. 12-2803(6) fails to meet the exemption tests required to be admissible hearsay evidence.

                Defendant raises issue with Plaintiff’s Exhibit “C” on multiple grounds.  Exhibit “C” shows a change of ownership of a bulk of unidentified accounts from Webbank to Dell Financial Services, LLC., to the Plaintiff.  Each transfer of accounts is supported by a “Bill of Sale” and an affidavit of an individual having personal knowledge of the “Seller” side of the records.  Beginning with the “Bill of Sale” referencing the transfer of “accounts” from Webbank to Dell Financial Services, Defendant points out that the document only references “Schedule 1” in relation to the identify of accounts or persons responsible for accounts being transferred.  Though “Schedule 1” is provided in the exhibit, it only references another spreadsheet file which was not included.  The “Bill of Sale”.  Defendant raises issue with Plaintiff’s withholding of the “Bill of Sale”, the “Affidavit”, and the “Schedule 1” from the defendant as required by O.S. 12-2902(11).  The second “Bill of Sale” in Exhibit “C” also fails to uniquely identify any specific account or individual associated with any account transferred from Dell Financial Services to Plaintiff.  The “Exhibit A-1” referenced in the “Bill of Sale” was attached, but is yet another reference to a text file containing specific account information.  That text file was not attached to this motion as evidence.  Defendant raises issue with the withholding of “Exhibit A-1” and the affidavit of Kelly Barnett from the Defendant as required by O.S. 12-2902(11).

SUMMARY

                Plaintiff is seeking a Summary Judgment in this matter and has submitted multiple pieces of evidence to support that motion.  Defendant has challenged and raised issue with many aspects of Plaintiff’s claims and evidence.  Defendant has raised issue with Plaintiff’s withholding of evidence from Defendant and production of record created after a previous motion was objected by Defendant.  In accordance with O.S. 12-2056, Defendant now asks the court to overrule Plaintiff’s motion for summary judgment.  Defendant also asks that her right to seek reprieve for submission of evidence in bad faith as stipulated in O.S. 12-2056(G).

 

Respectfully,

 

----------------------------------------------------------------------------------------------------------------------------

 

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Motions to Strike Evidence (or do I use Motion in Limine?) x 3 coming

 

I also think that 2 years is long enough to file my own MSJ.

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@Neobane

 

As Exhibit “A” is supposed to be a copy of a “Customer Account” from the Original Creditor,

 

 

Which one of the docs you showed us is Exhibit "A"?

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Muratore v. State of Oklahoma ex rel, Dept. of Public Safety, (Oklahoma Supreme Crt. 2014) discusses Oklahoma Rule of Evidence 2803(6) and business records.

 

10 The certificates are also not admissible in this case under the business records exception to the hearsay doctrine.[10] Section 2803(6) excludes from the hearsay rule:

A record of acts, events, conditions, opinions or diagnosis, 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 record, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title, or with a statute providing for certification, 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.

12 O.S. 2011 § 2803(6).

¶11 Section 2803(6) requires a proper foundation for the admission of documents pursuant to this exception. A "custodian or other qualified witness" must testify that the record was made "at or near the time by or from information transmitted by a person with knowledge," the record was "kept in the course of a regularly conducted business activity," it was "the regular practice of that business activity to make the record," and no "source of information or the method or circumstances of preparation indicate lack of trustworthiness." 12 O.S. 2011 § 2803(6).

¶12 Although these certificates may have been "kept in the course of a regularly conducted business activity," no custodian or other qualified witness testified as to whether the certificates were made at or near the time of the events memorialized in the certificates or whether it was the regular practice of either CMI, Inc. or ILMO Specialty Gases to make certificates of these types. The "[r]eliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation."[11]DPS presented no evidence indicating the reliability of these certificates as required by § 2803(6).[12]

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This case, like the case above, discusses the foundational requirements for submitting documents in court,

 

 

This Court held in Jones v. State, 660 P.2d 634, 642-43 (Okl.Crt of App. 1983), that a letter from a doctor who had examined the defendant, introduced by the State, was inadmissible because the foundational requirements of 12 O.S. 1981, § 2803(6) had not been met. "It was not necessary to call the doctor who wrote the letter, but it was necessary to call someone who could testify that the report was in fact made at or near the time and by, or from information transmitted by, a person with knowledge of the circumstances reported." Id. at 643. Likewise, in this case, petitioner did not meet the foundational requirements of section 2803(6), therefore the documents were inadmissible. Therefore, we find that the district court did not abuse its discretion in not admitting the documents or continuing the hearing sua sponte.

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@BV80, if you don't mind, I am going to repost some excellent advice you gave in 2012 about how to write a Motion in Opposition to Summary Judgment:

 

My comment is based upon what an attorney once told me. (Thankfully, I've never had to rely on the advice). 

He said that an opposition to an MSJ should be made paragraph by paragraph. In other words, if their first argument (or paragraph) is in support of summary judgment, your first argument should cite case law against summary judgment at this time.

You should cite case law from your state court in support of any of your arguments.

If their next argument is in support of an account stated, your next argument should argue and cite precedent (case law) against their argument and show how they haven't proven an account stated. 

He said to follow the order of the arguments in the MSJ. I don't know if courts are strict about that order, but I guess it's better to be safe than sorry.

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@BV80 @debtzapper

 

I'll rewrite it as you suggest.  Thanks to you all for the case laws.  I'd been up and down OSCN, Google Scholar, and Google in general trying to find case law to cite.  The only other two I am interested in finding is case law that tossed evidence for not being relevant and/or a bill of sale that was tossed for lack of identifying info.  Logic says it shouldn't hold up, but this is the legal system.  There has to be a case out there where someone tried to enter one in.

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@Neobane

 

In my opinion, you need to be sure to focus on the fact that there is no proof of the existence of the account.  Did they ever provide an account number?

 

Even if the bills of sale are admissible, what do they prove?  There's no billing statement that shows an account in your name ever existed.   Does the Webbank affidavit reference an account opened by you?  No.  Does the Dell affidavit?  No.

 

The Midland affidavit contains a statement that you opened an account, but where's the evidence to support that statement?  There's not even a mention of an account number in that affidavit.

 

An account that was never opened could not have been included in a sale of accounts.  So far, they haven't proven an account in your name was ever opened.

 

If billing statements were not necessary to prove the existence of an account, any creditor, collection agency, or JDB could sue for a trumped up debt and win simply by saying "you owe us xxxx amount". 

 

Billing statements are also necessary to prove the amount they claim you owe.  That goes to the account stated claim.  An account stated is an agreement between the parties that a certain amount is owed.  What document shows an agreement of an amount between you and anyone?

 

Other than their word (affidavit), there is no evidence that the account exists nor is there any document that evidences the amount they claim is owed.

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For some reason, I didn't get the Exhibit A scanned and uploaded.  I've attached the file as "Exhibit A" to my original post above.

 

It is a printout of itemized purchases on a charge account with Dell.  There is personal information on the header including name, address, and account number.  It has a Dell Header, but the bottom of each page is printed "Data printed by Midland Credit Management, Inc. from electronic records created, maintained, and provided by Dell Finan[omitted by "exhibit stamp"]

 

As you said, there is not indication that the accounts purchased contained this account referenced by this statement.  I'm going to hammer that hard in my next draft.

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@Neobane

 

"Data printed by Midland Credit Management, Inc. from electronic records created, maintained, and provided by Dell Finan[omitted by "exhibit stamp"]

 

 

That's only Midland's word that they printed the information from electronic records created, maintained, and provided by Dell.  Where are the records that contain that information (both the charges and account number)?   In order for Midland to itemize the charges, they had to have records to go by.  Why didn't they include those records to prove that the itemization is true and accurate?

 

As of yet, there is no documentation from the original creditor that shows the alleged account number or the charges allegedly made to the account in question.  There is no evidence from either Webbank or Dell that supports Exhibit A.

 

In theory, and based upon Exhibit A, you could make up an account number, write up an itemization of charges, and  without any documentation to support it, sue anyone.

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