CrazyDaisy

Lost Motion for Summary Judgement Midland Funding WA State

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After spending countless hours researching these forums, and hundreds of dollars for a ghost written response to the plaintiff's claim, the judge granted the motion for summary judgement at the hearing in favor of the plaintiff.  I am still not certain what I did wrong, but my well crafted answers to the complaint were not even considered because I did not have an affidavit to support them.  Entire hearing was over in 4 minutes. I clearly thought I was prepared to argue standing in court, but was not.  

Can anyone tell me exactly what I type of affidavit I needed in addition to my response that would have resulted in either a denial or at best in my favor? Hopefully it will help others going through this.  Thanks.

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Additional details: King County Small Claims - hearing - judgement amount $3400.

 

Within 60 seconds of approaching the bench, the judge told me that clearly Midland had a solid case against me, and had no choice but to grant the Judgement due to the fact that my written response ( I was not even allowed to talk) had no accompanying affidavit. I was asked "Do you have an affidavit to support these arguments?" I had not the slightest clue what he was talking about. For instance, I am not sure what piece of paper I could have furnished the court with that would have served as an affidavit to support the argument "Exhibit B- Affidavit of Sale

The affidavit refers to a batch transaction. Batch transactions contain hundreds or possibly thousands of accounts. The affidavit does not refer to defendant’s account in any way. There is no evidence that any account that may have belonged to defendant was included in this batch transaction."
 
I feel foolish, and am kicking myself that I overlooked this one detail that MIGHT have allowed this to go to trial where I could have had the opportunity for oral arguments, or allowed it to be dismissed.  I might as well have just missed the hearing entirely and saved some time and gas money - same result; judgment granted.  

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. Without all the specifics of your case, if you provided any case law as to why their evidence should not be allowed in, you can appeal. (Assuming they only had a Bos, and few statements. ) What ever affidavit they supplied to authenticate the records, you would need one from yourself stating the opposite.

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Oh dear.  I had no case laws to quote in my response.  I erroneously thought that step that was reserved for trial, not for a hearing, and that a response with arguments was all I needed to avoid an immediate judgement against me.  It's a shame.  Missed one step!

 Well, hopefully this helps someone else who is representing themselves. Quote cases on each argument outlined in your response.  I didn't do this, and it cost me the hearing.  Nuts.  Thanks for the clarification on this.

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It's unfortunate, but lawyers do this for a living, so they know the inns and outs of court proceedings better than the public.  I have read that even with a judgement you might be able to negotiate a reduced settlement.  I have read where some have posted that they have been able to settle a judgement for 75% in a lump sum payment.  Try to read on settling a judgement.

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Daisy,

I am sorry to hear of your defeat, as others have mentioned you maybe able to still cut a deal if you have a lump sum of cash.

Here is what I believe is where the judge was going. Motion of Summary Judgement is done via pleadings, or said another way on the paperwork submitted by both sides. The court can only consider what is submitted.

If you didn't supply an affidavitt or declaration in support of your positions/arguments, there was no testimoney for the judge to consider regarding your arguments. That is why he asked you prior to ruling against you do you have an affidavit?

For others that may read this, if faced with defending/answering a MSJ, you must generally supply your affidavit, which would be your testimony in support of your version of the facts. Otherwise the court is left with no option but to rule against you.

The hearing on a MSJ, is answering any questions the court may have on the written testimoney already filed. Or could be about a question of law, but it is not to take testimony from eitherside....

Unfortunatly your arguments may have forced the MSJ to trial, had you supplied an affidavit. I lost my very first case in simalar fashion, based on not understanding the rules and filing needs. Didn't feel so good, but haven't lost one since.

Now I am not from Washington, so making sure you understand the rules of court and procedure are key for your jurisdiction.

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As mentioned, you might consider an appeal. It wwill take more work and research. But, if your up to it and prepare well, you just might pull it off. Good luck.

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Appeal seems to be the only way, but it unfortunately requires a bond in an equivalent of the judgement amount. I was screwed up in the same district. The judge said my affidavit did not deny the fact of having an account with the original creditor !!! What the /$/#$$/÷

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Well sasha0378 sounds like we had the same judge. I had my msj hearing this morning in Thurston County Superior Court and it was awful. I felt 110% prepared. I had filed everything including an affidavit of sworn denial of debt. However when I got up there it seemed as if the judge had already made his decision and what it boiled down to was like you my affidavit did not deny the fact of having an account with the original creditor (wtf?) I had only denied owing the debt and owing the debt to the plaintiff but not to the original creditor. He didn't even consider my issue of fact of the plaintiff not proving they had standing to sue.

 

I did quote plenty of case law in my opposition to their MSJ. Should I try and appeal this?

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Yup, seems like people have recently failed across the state due to a similar lack of consideration of standing by judges. Either we have been doing something really wrong or it is a sort of cartel thing: if you are without a lawyer, you have no business in the court.


 


However, the good news is that a bond is actually required only for a small claim court and since my amount was over that, I filed my appeal today, which is the last day for that. My judge had a lot of his decisions appealed and overturned in the past and at some point was he no longer allowed to sit on criminal cases anymore, which gives me hope.


 


All in all, even if my case is lost on appeal, I will bleed them financially before filing for bankruptcy (yeah, I hope you are reading this, dear JDB)


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. Without all the specifics of your case, if you provided any case law as to why their evidence should not be allowed in, you can appeal. (Assuming they only had a Bos, and few statements. ) What ever affidavit they supplied to authenticate the records, you would need one from yourself stating the opposite.

I am confused. What should one state as the opposite to this:

I, Eileen Gonzalez, being duly sworn on oath, depose and say:

1. I am an agent and duly authorized representative for Plaintinf

2. I am acting in the capacity of Legal Administrator for my employer... blah-blah and have access to my employer's computer records blah-blah-blah

3. that the defendant opened an account on XX/XX/XXXX with FIA Card Services...

4. The principal was $XXXX.XX...

5. The account was purchased

?

 

I prepared an affidavit denying -- general denial, the judge said -- that the money is owed to the plaintiff AND I supplemented in my opposition to MSJ why both affidavits (such as the affiant is not qualified to testify) and statements should be stricken from evidence

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@sasha0378

 

It could depend upon the evidence provided.  Did they provide credit card statements?  Did those statements show charges and/or payments?   If your bank records were subpoenaed, would those records show payments to the OC, and would they match up with payments shown on the credit card statements?

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@sasha0378

 

It could depend upon the evidence provided.  Did they provide credit card statements?  Did those statements show charges and/or payments?   If your bank records were subpoenaed, would those records show payments to the OC, and would they match up with payments shown on the credit card statements?

like in four different WA cases recently lost and reported on this board, the following was provided as evidence by the plaintiff:

- Affidavit of Claim (with the account's date originally opened with OC, date of purchase by JDB, reference to an account);

- Bill of Sale;

- Statements (6 months history, showing payments, yes);

 

According to the judge, each of the element above together "prove" the case. The only issue the judge would consider was denial of the opening of the account by the defendant in the first place.

 

 

 

I am appealing and only because in the Sunde vs UNIFUND CCR PARTNERS's case, the defendant did not raise his objection to the evidence presented for MSJ:

 

We do not address Sunde's other arguments regarding proof of assignment because he failed to preserve them for appeal. RAP 2.5(a) provides that we may refuse to review any claim of error not raised in the trial court. When a party makes a supported motion for summary judgment, 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 CR 56, must set forth specific facts showing that there is a genuine issue for trial. CR 56(e). If he does not so respond, summary judgment, if appropriate, shall be entered against him. CR 56(e). CR 56© allows an adverse party to file and serve opposing affidavits, memoranda of law, or other documentation not later than 11 calendar days before the hearing.Here, Sunde failed to file any affidavits in support of his opposition to Unifund's motions for summary judgment. He did not challenge any of the affidavits submitted in support of Unifund's motions on the ground that the affiants lacked personal knowledge of the facts or statements made therein. Nor did Sunde object to or move to strike the statements in those affidavits about information contained in the business records of the original creditors or any of the exhibits attached to the affidavits on the grounds of hearsay. - See more at: http://caselaw.findlaw.com/wa-court-of-appeals/1574743.html#sthash.gvtxmaSF.dpuf

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@sasha0378

 

We have to be careful with our own affidavits.  As you know, we have to be truthful.

 

Credit card statements that show charges and payments (assuming they are valid) make it difficult to deny the account unless it's the result of ID theft or one is merely an authorized user.

 

If the statements had not shown charges or payments, one might could state that he once had an account with OC but no longer has any records related that account.  The lack of charges and payments on the statement makes it difficult for Defendant to determine if this is the account he once held.  (something like that)

 

Anyway, usually in situations like yours, you attack their claim of ownership of the account and try to defeat the JDB affidavit in order to keep documents out of the record and to show that the affiant is not a qualified witness with the required personal knowledge who could sufficiently testify in court.

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First of all, lawyers are not allowed in Small Claims court in WA State.  (Weird - I thought we always had a "right to an attorney" when defending ourselves, but no, were are not.)  Representing yourself pro-se is not for the faint of heart.

 

Second, I also felt the judge had made his decision already - nothing I could say or do would change that.  Note that some judges have a bias against debt-owers - that is just the way it is.  An attorney friend told me it is a crazy game; there were cases he has won that he thought he wouldn't stand a CHANCE in heck of winning, and cases he argued with the most indisputable facts that he still lost.  It's a crap shoot he says. Sigh.

 

In my case, the plaintiff had NO records of statements or amounts due - that was what I was trying to argue - but the judge didn't care. In fact, it makes me shudder to think the plaintiff could have sued me for ANY amount they chose, whether it was accurate or not, and I would have had to pay it since the judge did not force them to "prove it".  

 

I am not appealing.  Too costly with the bond amount and paperwork fees to appeal, and frankly, I have lost my faith in getting my "day in court".  

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@BV80, thank you, that is why -- being truthful - I never denied the fact of having the account with OC and the only thing the judge said he would consider to proceed to trial

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@CrazyDaisy

 

If you're referring to the U.S. Constitution, the right to an attorney only applies to criminal court. 

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@sasha0378

 

You did the right thing and did not damage your credibility with the court. 

 

However, the fact that you opened the account doesn't mean you owe the money to the JDB.   Obviously, the judge was satisfied that they had proven ownership of the account.  If you raised that issue, you can argue it on appeal.

 

Did you object to the admission of their documents and attack their affidavit?

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@sasha0378

 

You did the right thing and did not damage your credibility with the court. 

 

However, the fact that you opened the account doesn't mean you owe the money to the JDB.   Obviously, the judge was satisfied that they had proven ownership of the account.  If you raised that issue, you can argue it on appeal.

 

Did you object to the admission of their documents and attack their affidavit?

 

I did object to the admission of their documents. The judge, like in the other recent WA cases, just reviewed my opposition briefly and put it away and went arguing on behalf of the plaintiff's attorney, who acted like an accused in a criminal court exercising his right to remain silent. Perhaps, the judges here are just too used to rubber-stamping default/summary judgments and an appeal is the only way to go.

 

Nah, the judge also said there was only one case that went to trial and only after the defendant denied opening the credit card in the first place, which revealed to be false (the judge did not elaborate on what happened to the defendant afterwards).

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@sasha0378

 

This is from the King County Small Claims Website:

 

The Parties Present Their Cases Themselves: Attorneys and paralegals are excluded from appearing or participating with the plaintiff or defendant in a small claims suit unless the judge grants permission. You may consult an attorney before you go to court or after.

 

According to what is on the court's website, Midland's attorney should have been EXCLUDED from appearing in court, yet you said he was present, but remained silent?  Was he given permission to be there by the judge? The whole scene just seems bizarre:  Midland's lawyer is silently present in court, while the judge argues his case for him.  Something is wrong with this picture.

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Kings County WA is in WA Crt of Appeal Division I.  This Division follows the case law in Discover Bank v. Bridges, which held that in addition to the credit card agreement and statements of account, cancelled checks showing payments on the account are also required.

 

Division III of the WA Crt of Appeals follows the case law in Discover Bank v Ray, which held that the credit card agreement plus credit card statements were sufficient to establish the debt to be owing.

 

The above info was from my link 50 "State Debt Collection Laws" under case law.

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@sasha0378

 

This is from the King County Small Claims Website:

 

The Parties Present Their Cases Themselves: Attorneys and paralegals are excluded from appearing or participating with the plaintiff or defendant in a small claims suit unless the judge grants permission. You may consult an attorney before you go to court or after.

 

According to what is on the court's website, Midland's attorney should have been EXCLUDED from appearing in court, yet you said he was present, but remained silent?  Was he given permission to be there by the judge? The whole scene just seems bizarre:  Midland's lawyer is silently present in court, while the judge argues his case for him.  Something is wrong with this picture.

My apologies. There is a misunderstanding. My case was different (vs Cavalry) and it was not of small claim. But yes, in my case, it was just like that: the judge did all the talking as if he was representing the plaintiff, not their attorney. I can't say the experience was too bad for the judge was patient and lenient, but nonetheless he was adamant that the credit card statements completed the picture for him. My understanding is other people's experience was similar to mine.

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@sasha0378

 

I understand.  I am glad you are going to appeal.  As I said yesterday, since you are located in Division I of the Washington Court of Appeals, your judge should have followed the caselaw set in Discover Bank v. Bridges, 154 Wn. App. 722, 226 P.3d.191 (2010).  As the court ruled:

 

 

1.

¶ 13 To establish a claim, Discover Bank had to show that the Bridges mutually assented to a contract by accepting the cardmember agreement and personally acknowledged their account. Discover Bank's pleadings disclose neither a signed agreement between Discover Bank and the Bridges nor detailed, itemized proof of the Bridges' card usage. Nor do they show that the Bridges acknowledged the debt, for example, through evidence of cancelled checks or online payment documentation. The record contains only monthly statements summarizing the Bridges' alleged account balance and payments purportedly made thereon and affidavits from DFS employees, who were familiar with the Bridges' purported account records.

¶ 14 In Discover Bank v. Ray, 139 Wash. App. 723, 728, 162 P.3d 1131 (2007),Division Three affirmed summary judgment in favor of Discover Bank under circumstances differing from those here. It reasoned that sufficient evidence established that Ray had accepted the terms of his cardmember agreement by using his credit card, which constituted mutual assent to a contract. Ray, 139 Wash.App. at 726-27, 162 P.3d 1131.

¶ 15 But in Ray, Discover Bank introduced copies of several cancelled checks that Ray had sent as payment on his credit card account. 139 Wash.App. at 725, 162 P.3d 1131. Thus, the present case is distinguishable from Ray because Discover Bank did not produce any similar evidence of the Bridges' personal acknowledgment of the account.[4] It produced only a generic summary of the purported account balance and payments made on it. Therefore, material issues of fact preclude summary judgment

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@sasha0378

 

...

 

Anyway, usually in situations like yours, you attack their claim of ownership of the account and try to defeat the JDB affidavit in order to keep documents out of the record and to show that the affiant is not a qualified witness with the required personal knowledge who could sufficiently testify in court.

@BV80,  the question is: should my attacking their affidavit have been a response with my sworn affidavit? Or was it sufficient to raise the issue in my motion in opposition to summary judgment? if it is the former, then my appeal is screwed :neutral: for I put everything in my motion in opposition (an attack on affidavit, requests to strike their affidavit, statements and bill of sale)

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@sasha0378

 

This is from the King County Small Claims Website:

 

The Parties Present Their Cases Themselves: Attorneys and paralegals are excluded from appearing or participating with the plaintiff or defendant in a small claims suit unless the judge grants permission. You may consult an attorney before you go to court or after.

 

According to what is on the court's website, Midland's attorney should have been EXCLUDED from appearing in court, yet you said he was present, but remained silent?  Was he given permission to be there by the judge? The whole scene just seems bizarre:  Midland's lawyer is silently present in court, while the judge argues his case for him.  Something is wrong with this picture.

By the way, I have been reviewing Washington State Court Handbook for Pro Se: corporations, such as Midland, are required to be represented by lawyers in WA courts. They may be represented by non-lawyer, if so they choose, in Small Claim or District courts only.

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