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Lost Motion for Summary Judgment in Wa state - Should I File an Appeal?


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I had my MSJ hearing on Thursday and lost. After hundreds of hours of research and preparation the judge still granted plaintiff's motion for summary judgment.

 

I had filed an Opposition to Plaintiff's Motion for Summary Judgment, citing all kinds of Wa case law to back up my arguments. I objected to all their generic evidence and I also filed an affidavit of sworn denial of debt as well.

 

It was a rather horrible and humiliating experience. I'm sharing this not to freak anyone out, but if you live in Washington state I'm hoping my experience will help you have a better outcome than I did. The problem was the judge's mind seemed already made up even before the hearing started. The worst part was the judge had not even read my Opposition and didn't even realize I had filed one until I pointed it out to him. he said he must have "overlooked" it in the file. He then took about 2 or 3 minutes to skim over my opposition and still seemed unmoved in his decision.

 

In my opposition I said the material issue of fact remaining was that the plaintiff had not proven they had standing to sue. I cited case law from the Wa court of appeals which set a precedent clearly stating why the OC's credit card statements should not be admitted.

 

It was unbelievable. What it all boiled down to for the judge was that nowhere in any of my documents did I deny owing the original creditor. In my affidavit I denied that I owed the debt. I denied that I owed the Plaintiff. But that didn't matter. The judge heard nothing that I presented and said he was going to allow their generic affidavit from Midlands legal specialist in as evidence and that it met the business records exemption (all of which I objected to in my Opposition). When I tried to speak up again he shut me down and said "I don't want to argue about this" and just so you know I was not being argumentative at all before this. Just clearly trying to state my case when it was my turn to talk.

 

So My question after all this is should I appeal? I'm feeling really deflated and a little dumbfounded that I lost. I thought I did everything right. 

 

I really feel like I should appeal and that the judge did not give fair consideration to my opposing arguments. In fact he said, right before he gave his ruling, "well I see here that these statements were sent to your current address and that at some point the balance changed" and in his mind that was good enough to confirm that I owed the debt.

 

Any thoughts on whether or not I should appeal would be greatly appreciated. I just don't want to throw more time and money out the window.

 

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Here is what I had written in my Opposition:

 

1.   Exhibit A: Affidavit of Balance as provided by Plaintiff

 

Plaintiff has submitted an Affidavit of Balance to the Court, alleging certain facts. However, said affidavit fails to meet even the basic mandates for admissibility as evidence. Rule 56 of the Washington Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

 

Plaintiff relies exclusively on an affidavit executed by Lily Haas, who identifies herself as a “Legal Specialist,” without specifically identifying her employer, but only identifying for whom she is testifying. Lily Haas claims familiarity with the recordkeeping practices of Midland Credit Management, and has “reviewed the records pertaining to the account” that are allegedly kept in the regular course of MCM’s business. She then annexes information and discusses or references other documents.

 

However, Lily Haas does not advance any documents admissible as evidence. Moreover, Lily Haas discusses records generated by the Plaintiff, but does not advance any such documents.  The only documents included in Plaintiff’s request for summary judgment, which Lily Haas references and annexes, are apparently originated by the alleged assignor, Chase Bank, USA, N.A. although none are authenticated by the original creditor.

 

Courts have frequently held that an employee of the assignee of a debt does not have the personal knowledge necessary to testify about events or documents pertaining to the original creditor. See: Martinez v Midland Credit Management, 250 SW2d 481 (Tex Ct of Ap. 2008), Ex 2; Asset Acceptance v Lodge, 325 SW3d 525, (MO App 2010), Ex 3; CACH v Askew, 2011 Mo App LEXIS 429 (Mo App 2011) Ex. 4. Lily Haas’s affidavit, as a Midland Credit Management employee, is not adequate to establish any facts related to annexed documents.

 

Defendant states that the Plaintiff’s affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, Chase Bank, USA, N.A.. At no time was the affiant nor any of the Plaintiff’s employees present to witness any purported acts or creation of the records of transactions and communications occurring between the Defendant and Midland Funding LLC; as such, the affidavit of Lily Haas falls under the hearsay Rule ER 802 and is inadmissible as evidence.

 

Defendant further states that the affidavit is not subject to the hearsay business records exemption Rule ER 803(6) because it was not made at or near the time of the purported acts or events, and; the information contained in the document is merely an accumulation of hearsay.

 

Defendant further claims that the underlying documents for the alleged account, annexed in Plaintiff’s Motion for Summary Judgment, were not records kept in the course of regular business by Midland Funding LLC, but were records kept by Chase Bank, USA, N.A. who is not a party to this suit. Wilson v. Jenga Corp., 490 N.E. 2d 375, 377 (Ind. Ct. App. 1986) (a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge to ensure reliability). There is no record of who compiled the underlying data specifically, and therefore no way to challenge and cross-examine the accuracy of this data in the course of a trial.

 

While Lily Haas may very well be Midland Credit Management’s Legal Specialist, the mere acceptance or incorporation of electronically transferred data from Chase Bank, USA, N.A., into Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of Rule ER 803(6). The source of information or the method or circumstances of preparation indicate a lack of trustworthiness and reliability.

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In 2010, Bridges, a pro se litigant, appealed and won his case.

 

http://scholar.google.com/scholar_case?case=14765562245446551771&q=credit+card&hl=en&as_sdt=4,48&as_ylo=2010

 

This is a 2011 case won by the JDB

 

http://scholar.google.com/scholar_case?case=6881248198285580411&q=credit+card&hl=en&as_sdt=4,48&as_ylo=2010

 

 

I noticed in your Exhibit A, you cited a number of non-Washington cases.  It is always preferable to cite cases from your own state.  Other cases may be persuasive, but are not binding on a trial court.

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I did cite the following Wa case law. It says that the assignment is presumed valid unless objection is made thereto by the debtor. I assumed that by filing an affidavit of a sworn denial of debt that would qualify as an objection and they would then have the burden to prove their assignment.

 

Under Washington law, RCW 19.16.270 provides that "the assignment of the claim to licensee by his or its customer shall be conclusively presumed valid, if the assignment is filed in court with the complaint, unless objection is made thereto by the debtor in a written answer or in writing five days or more prior to trial." Where "the fact of assignment is put in issue ... proof of the assignment is essential to a recovery by the assignee" and "[t]he burden of proof of the assignment is on the one claiming to be the assignee." Smith v. Rowe, 3 Wash.2d 320, 323, 100 P.2d 401 (1940). Proof of assignment is a question of fact and we will not disturb the trial court's finding unless it is against preponderance of evidence. Isings v. Cugini, 178 Wash. 698, 34 P.2d 359 (1934); see also Rowe, 3 Wash.2d at 322, 100 P.2d 401 (citing 6 C.J.S., Assignments, § 139).

 

I also cited the following Wa case law regarding the bill of sale because the document was generic and didn't reference my name or account number.

 

A bill of sale with no name, account number, or any other information identifying Sunde's debt as having been sold or assigned to Unifund is insufficient to establish that U.S. Bank assigned the rights and obligations on Sunde's contract to Unifund. See, 921*921 e.g., Zion, 152 Wash.App. at 630-31, 218 P.3d 621 (where debt collector provides no direct or even indirect proof of any written assignment by the original debt holder, reversal of summary judgment is appropriate).

 

I even cited the following case law regarding the credit card statements they provided:

 

Credit card statements as proof of use of a credit card requires detailed, itemized documentation of the alleged cardholder’s actual use, from zero to alleged balance. Discover Bank vs. Bridges, 154 Wn. App. At 727-28. 

 

I don't get it. I would have thought any one of these things would have resulted in a denial since there was a clear material issue of fact.

 

What did I miss or do wrong? Is it worth an appeal.

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Hopefully that citing is in the transcript too.  I think you have an appealable case.  The appellant court will look and find your objects with supporting arguement, and actually read it unlike the judge.  It shouldn't matter if the debt was yours, they didn't prove their case.  I say go for it if you can afford it.

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And by the way I did cite the Bridges case even verbally at the hearing and the judge just basically rolled his eyes. It was brutal.

 

Crystal,

 

I generally don't post on issues for states I have no knowledge of the RCP or Rules of Court.  But from a general perspective I see that you have done good research and used relevant law along with persuasive law from other jurisdictions.  Given this, but understanding you are the one that has to do the work, I would encourage you to continue the fight.

 

I did notice in the Bridges case that Bridges, must have filed a Motion to Reconsider, prior to appeal, something you may want to consider.

 

Doing so would force the judge to double down, on the errors you believe were made.  Meaning, if your reading of the case law is accurate, not only did he/she make an error at the SJ hearing, you gave them an opportunity ot correct via MTR.

 

If you file a MTR, you may want to see if there are rules of civil procedure that would force a written opinon from the judge on the MTR.  In esscene getting him/her to put his legal reasoning on paper, prior to appeal.  I know in California there is what is called a "Statement of Decision", frankly not sure if it can be used in a Motion heaing even in California.

 

Many judges play the odds in moving cases along.  Meaning they want to clear the calendar and espiecally collection cases.  Even if the pro se defendant has made a lawful argument that should move the case to the next phase, they rule so the case ends.  Betting you will give up.

 

Your call on how to move forward, if you file a MTR, better besure based on your rules that this preserves your right to appeal, meaning you don't loose your appeal rights based on timing.  An MTR and Appeal may need to be done concurrently, you will need to check.....

 

Best of Luck

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Sounds like the judge just rolled you.  They, unfortunately, can pretty much do as they wish. 

 

This is an article by a WA lawyer on writing a Motion for Reconsideration.

 

You need to get started.  You have 10 days.

 

You also need to check your county rules about the Motion.  

 

http://www.schwabe.com/showarticle.aspx?Show=12314

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Many judges play the odds in moving cases along.  Meaning they want to clear the calendar and espiecally collection cases.  Even if the pro se defendant has made a lawful argument that should move the case to the next phase, they rule so the case ends.  Betting you will give up.

 

 

 

 

 When judges are used to granting default judgments against debtors 90% of the time,  they tend to assume ALL defendants owe the money.  Plus, the sheer number of collection cases on the docket pressures them to clear it out.

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From:

 


 

 

There is a dispute between the various divisions of the Washington Court of Appeals regarding the “proof” 

required to obtain summary judgment upon a debt arising from the use of a credit card. In Discover Bank 

v. Ray, 139 Wn.App. 723, 162 P.3d 1131 (2007), Division III of the Court of Appeals held that the 

cardholder agreement plus credit card statements were sufficient to establish the debt to be owing.

However, in Discover Bank v. Bridges, 154 Wn.App. 722, 226 P.3d 191 (2010), Division III of the Court of 

Appeals held that, in addition to the credit card agreement and statements of account, cancelled checks 

showing payments upon the account were required. In City Bank South Dakota, NA v. Ryan, 160 

Wn.App. 286, 247 P.3d 778 (2011), Division I of the Court of Appeals agreed with the analysis of Division 

II outlined in Bridges.

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Not such a bad thing, that is where you would have ended up anyway.  So just saves you doing the work.  I suggested based on the Bridges case, which noted appeal filed after a MTR.  Your judge would have not changed the ruling, becuase that would mean to admit a mistake.

 

So long run you are better off, less work....

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Calling a court is the WORST place to get legal advise. The clerks are not trained in legal matters.  I have had to educate my local clerk a couple of times on what I was allowed and not allowed to do.

 

I am not saying that you can file a Motion to Reconsider, but I would not take the word of the clerk.

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I spoke with a lawyer yesterday and I would have to go through the appeal process. He said even if I could, which I can't in district court, a motion to reconsider was a bad idea. He had experience with this and said the judges don't look too nicely on those. The bad news is since my case was filed in District court I would have to file an appeal AND put up a bond in twice the amount of the judgment which would be close to 10K for me, with 10% down. He said it was very risky because if I lost I would owe all that money. He said the judges in the District Courts here are terrible and it really just depends on what side of the bed they woke up on as to whether or not they decide to rule in your favor. He said Wa tends to be a very creditor friendly state.

 

So I'm really stressed about this. Though I'm not working my husband is and since Washington is a community property state I think they can garnish his wages or even go after our bank account. It looks like my options are either trying to negotiate a payment arrangement with Midland hoping they won't take the garnishment route or just filing for Ch. 7 bankruptcy. But since our overall debt is less than 10k it seems like a pretty drastic solution.

 

Any suggestions at this point? I'm so disillusioned with this whole process :(

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I know appeals can be expensive. Here too the bond is the cost of the judgement won.  Can you quailfy for a fee waiver? (do they have that in WA?)  The problem with BK is if you only have that judgement, and no other bills except house, car payment, it would be hardly worth it.

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