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Small Claims Court Wisconsin


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Hey Guys,

 

I'm in small claims court in Wisconsin... no discovery. I had pre-trial earlier this week. The plaintiff, a JDB is anticipating a summary judgment to which I will have to respond. I have several questions I hope you can help me with:

 

In my answer, I used several affirmative defenses and stated that I was never given a notice of right to cure 15 days prior to the suit. I asked for several things pursuant to Wisconsin State Statutes which are part of the Wisconsin Consumer Act. They responded by sending me an improperly notarized Affidavit of Sale from the OC, a certificate of conformity stating that the  "foregoing instrument" conforms to the laws of the state and is in all respects valid and effective in the state it was taken in, BOS from OC and another JDB and a handful of cc statements.

 

JDB atty was asked by judge where Notice to Cure was... attorney mumbled something about how he doesn't know what else I, the defendant, want. He was told he better have it in SJ. I was told my response needed to be in proper formal with an affidavit.

 

Now what? What are my next steps? What is the proper format? What do I need to say in my affidavit? I dropped the ball by not moving for dismissal on right to cure, don't want to do that again.

 

HELP!

 

 

 

 

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If they file a sj, you need to respond with an opposition, and your own affidavit that swears it's true.

Being that the debt was sold twice means they will actually need 3 affidavits to prove their case. One from the oc to JDB one. Now this is different than the one you got swearing they sold a pool of accounts, they need one from the oc stating their title, they are familiar with how oc keeps and maintains their business records, that this affidavit was made at or near the time of charge off ,they have reviewed your account, and the records are correct, you owe xxxx.xx. Then they need one from JDB 1 that says the same thing, and again from JDB 2 that says the same thing.

They will try and send only one from the latest JDB, and this is where you will tear their case apart. The affiant does not, nor never has worked for the oc, so they cannot testify to the validity of the records. They state they reviewed the records, but failed to attach and reference which actual records they reviewed, it was not made at or near the time of the event, they are not qualified to attest to another entities business records, the records are in admissible, and hearsay. You would also need to find some case law on google scholar for your state that supports those arguments.

Then in your opposition you would also include arguments for all the other evidence they are trying to introduce. Such as the bill of sale does not list your name or account number, only that a pool of accounts were sold. It also has a disclaimer on it's face that says they make no warranties the accounts are accurate except what is provided in the purchase agreement. (Most say this, does yours?). They did not include the purchase agreement, therefore it is incomplete, and in admissible heresay.

If they included a data sheet, then it was printed by the JDB with no reference as to where they got those records, how they were kept end and maintained to ensure accuracy they are heresay made in any excel spread sheet, etc.

statements that show your name show no payments ( unless they do) that would indicate you assented into an account stated. They have not shown how the final amount was reached, and they are unauthinticated heresay documents, and lack trustworthiness. There has been no testimony that can lay foundation for any of the heresay documents.

All of those arguments need case law from your state to back up your statements. Look around for oppositions to sj, you will get the idea of the format. Basically it will look like their format for the sj, and you will tear down each of their paragraphs with one of your own using the info I posted above along with your reference to case law for each one. It is a lot of work, but well worth it.

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Thank you so much, Shellie!  You are a gem. What about the docs I asked for pursuant to the Wisconsin Consumer Act and got none of... NOTHING I asked for.  The judge asked him for the Right to Cure Notice and he didn't have it...Hindsight's 20/20, ya know. Argh!

 

The judge made it a point to tell me to document everything I asked for. If I didn't receive it , can I ask for it to be precluded?  

 

Sorry for all the questions, but I hope my ignorance will help someone else as well.

 

I love this board!

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  • 2 weeks later...

@Yawon you are not going to get a lot of responses because you have given no details. Post what has happened this far in your case, along with the wording (type it out) of any affidavits they sent. In the pm you said there are 2 cases, if that is true, you should have 2 threads, even though they may seem the same, there will be differences

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@shellieh98 Thanks for the suggestion. This is what I have so far. Went to first pre trial, at that time attorney anticipated filing for MSJ, and the judge gave me instructions regarding how to respond. He said they would be sending me a document saying these are the reasons defendant owes us the money. I am supposed to send back an opposing affidavit that is in proper form. I am to list what they sent me, and give reasons why these documents cannot be used for a summary judgment.

This is what they sent me.

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

 

PLEASE TAKE NOTICE that the plaintiff will move the above-named Court in the County Courthouse at 1234 Courthouse Way, My Town, County of Here, Wisconsin before the Honorable I.M. Judge, Judge of the Circuit Court, on _______________, at ______________, for an order of summary judgment in favor of the Plaintiff herein, plus the costs and disbursements of said action. Said motion is based upon the accompanying affidavit, as well as the documents included herein.

Dated this July XX, 2014.



AFFIDAVIT OF XXXXX XXXXX

XXXXX XXXXX whose business address is 123 JDB Road, Suite 000, City, State Zip, certifies and says:

1.     I am employed as a leg** spe******* and have access to pertinent account records for Junk Debt Buyer, Inc. ("JDB"), servicer of this account on behalf of the Plaintiff. I am a competent person over 18 years of age and make the statements herein based on personal knowledge of those account records maintained  on plaintiff's behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all rights, title and interest to defendant's (OC NAME) 1234567 (JDB Number 89101112) (hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiff's behalf.

2.     I am familiar with and trained on the manner and method by which JDB creates and creates and maintains its business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person of knowledge of the act or event recorded to make the record or date of compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record of compilation is made at or near the time of the act or event. The relevant financial information regarding the account includes the following:

3.     JDB's records show that the defendant owed a balance of XXXX.XX as of 2014 (date here)
4.     JDB's records state that this action is based upon a revolving credit agreement entered into between defendant and original credit grantor. JDB's records further state that defendant used or authorized the use of the credit card account but failed to make the payments due pursuant to the agreement.

I certify under penalty of perjury that the foregoing statements are true and correct.

(DATE) (SIGNATURE)

(is notarized)

SECOND AFFIDAVIT

 

AFFIDAVIT OF SALE OF ACCOUNT BY ORIGINAL CREDITOR

State of (state here)

County of (name here)

 

(persons name here), being duly sworn deposes and says:

I am the Fin****** Acc**** Man**** of (original creditor) located at (address here), am authorized to make the statements and representations herein and I am over 18 years of age. In this position, I have access to the creditor's books and records and I am aware of the process of the sale of accounts and electronic storage of business records.

On, or about (Date here) ORIGINAL CREDITOR sold off a pool of charged off accounts (the accounts) by a Purchase and Sale Agreement and a BOS to a$$** Acc*******. As part of the sale of the accounts, certain electronic records were transferred on individual accounts to the debt buyer. These records were kept in the ordinary course of business of creditor.

I am not aware of any errors in the information provided about the Accounts. The above statements are true to the best of my knowledge.

Signed this (date here)                                            (affiant's signature)

Sworn before me this (date here)

My commission expires (date here)                         (notary signature)(notary stamp)

NO NOTARY STAMP

There IS one more, but it pretty much says the same thing the other one from a$$** Acc******* says. If I find a link, I will post it here.



 

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The affidavits that were provided to you seem similar to what was provided in the Central Prairie Financial case I gave you when you asked for case law.  The defendant lost.  Read the case carefully.  But in that case, a  Cardmember  Agreement and billing statements were also included.  These are some key sections of the court's ruling

 

 

http://scholar.google.com/scholar_case?case=17142756381471654578&q=credit+card&hl=en&scisbd=2&as_sdt=4,50

 

 

 

1. An affidavit from the custodian of Central Prairie's records that Central Prairie's business practices included purchasing defaulted 
credit 
card
accounts from Chase Bank, that in such purchases Central Prairie obtains and integrates Chase's electronic records of those accounts into Central Prairie's own business records, and that review of those regularly kept records reflected that Yang was issued a 
credit 
card
 by Chase, failed to make payments and therefore defaulted on the terms of the Cardmember Agreement, and that Central Prairie thereafter acquired "all right and title" in Yang's account.

2. "True and correct copies" of Yang's Cardmember Agreement, Yang's monthly billing statements, the Bill of Sale and other documents substantiating the purchase and sale of Yang's defaulted account and its assignment from Chase to Central Prairie, as well as an affidavit establishing the transfer of the electronic records of Yang's account from Chase Bank to Central Prairie.

 

 8 In addition to this contract and the billing statements for the associated account, Central Prairie also documented the transactions through which a set of defaulted accounts including Yang's account was sold and assigned to Central Prairie. Central Prairie furthermore submitted proof that it sent Yang a notice validating its status as the current assignee of Yang's indebtedness to Chase.

 

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Okay here is the Bill of Sale.

BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT

 

THIS BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT is dated (date here), between OC (state here), a national banking association organized under the laws of the United States, located at (address here) (the "Bank") and a$$** Acc*******, LLC ("Buyer"), organized under the laws of the Del*****, with its headquarters/principal place of business at (address here).

For value received and subject to the terms and conditions of the Purchase and Sale Agreement dated (date here, one day earlier), between buyer and the bank (the "Agreement"), the Bank does hereby transfer, sell, assign, convey, grant, bargain, set over and deliver to Buyer, and to Buyer's successors and assigns, the Accounts described in Section 1.2 of the Agreement

OC                                                                      a$$** Acc*******, LLC

(signature)                                                           (signature)

(printed name)                                                    (printed name)

(title)                                                                   (title)

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Yes, I have seen the Palisades case. In my Affidavit Opposing SJ, does anyone know if I need to include Case Law at this point?  I am under the impression  that case law belongs in the memo of law in the MSJ. I am currently putting together my affidavit and am only using Wisconsin state statutes to support my statements. Is this correct? My affidavit and opposition for summary judgment is due at the end of this week. I hope to have it done in the next few days. Any suggestions anyone has would be welcome.

Thank you so much.

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Has anyone out there ever done an affidavit to oppose motion to summary judgment? How detailed does it have to be? Seeing that there is a hearing, where I could defend myself and argue my points, what should I do?

I know I have to respond, I only have a few more days. Ive spent hours and hours this week putting together my affidavit but I don't want to be argumentative.

Case law is for briefs, so.....what do I say in regard to missing information?

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Here is one by another Michigan poster, but format is good for your affidavit, will help you word yoursBe sure and list what they dind't provide in it.

 

NOW COMES Defendant in Pro Per,me, whose residence is 123 My Dr, my city, MI 48xxx, certifies and says the following:

 

1.  I am a resident of the State of Michigan, Oakland County, and I am a competent person over 18 years of age. This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

2.  On June 23, 2014, I drafted a discovery Request for Production of Documents and served a copy upon Plaintiff via USPS certified mail, tracking number #xxxxxx. Attached is a true and correct copy of the Request for Production of Documents mailed to the Plaintiff, marked as Defendant's Exhibit #2. 

3.  On or around July 22, 2014, I received Plaintiff's response with objections to the Request for Production of Documents.  A true and correct copy of Plaintiff’s discovery objections and response is attached as Defendant’s Exhibit #3.

4.  Plaintiff provided two exhibits in its response to the Request for Production of Documents.  Exhibit “A” are the same account billing records attached to Plaintiff’s motion for summary disposition as Exhibit “B”.  Exhibit “B” is the same Chain of Title records attached to Plaintiff’s motion for summary disposition as Exhibit “A”.

5.  Plaintiff did not provide the “Account Agreement” with the terms and conditions purportedly governing the alleged Heritage First USA account as requested in my Request for Production.  I deny having this alleged agreement in my possession.

6.  Plaintiff did not provide all statements on the alleged account while it was open, to demonstrate use or to show how the alleged account balance was computed, as requested in my Request for Production. I deny having these statements in my possession.

7.  On July 18, 2014, pursuant to a phone conversation with a “Rebecca”, the case manager at Stenger & Stenger P.C., counsel for Plaintiff, I emailed an authorization for email contact.  A true and correct copy of this email is marked by Defendant’s exhibit #4.

8.  On July 28, 2014, I emailed Plaintiff a Letter to Confer and a true and correct copy of this email is marked by Defendant’s exhibit #5.  The Letter to Confer was attached to the email, and a true and correct copy of this letter is marked by Defendant’s Exhibit #6.  After emailing the letter, I called the same day and confirmed with Rebecca that Plaintiff did receive my letter and that the method of email was acceptable.

9.  As of the drafting of this affidavit, Plaintiff still has not responded to my Letter to Confer, has not provided the alleged “Account Agreement” that governs the account, has not provided all statements while this alleged account was open, and also has not provided the Purchase Agreement mentioned in its Chain of Title exhibit that was attached to Plaintiff’s response to discovery.

 

I certify under penalty of perjury that the foregoing statements are true and correct.

 

 

 

Dated: August ___, 2014                                    _________________________

                                                                                      Justiceforall3

 

STATE OF MICHIGAN

COUNTY OF OAKLAND

Signed and sworn to (or affirmed) before me on:____________

My commission expires on:___________

 

Signature______________________________________________

Printed name___________________________________________                                                                                    

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When amending an affidavit, do you just draft an entirely new instrument with corrections to amend the problems with the first? How do you refer to the 1st affidavit?

 

I assume you use the date the new one was drafted on, is that correct?

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