help with PRA summons answer?

[BV80]

@Bond007

 

You need to read your rules of civil procedure regarding disclosure and/or discovery.   If they allow for discovery, then you'd send discovery requests such as a request for production of documents.  Do some searching on this site and you can find samples of discovery requests.

 

Have you checked your credit report?   If not, see if the OC's entry is still there.  If it is, note the last date the OC updated.   It would be after that date that the account was sold.  Once an account is sold, the only update by the OC would be to report a -0- balance.    Anyway, you could compare the date of the last update to the date PRA claims to have purchased the account.

[Bond007]

There are two references to the same account in the credit report. The first Charged off as bad, Debt purchased by another lender on 02/17/2013. That had to be Phillips and Cohen. The second reference to the same account on 03/28/2014 was Portfolio.

 

Kansas rules do allow for discovery. If I'm reading them right They allow for 10 discovery questions.

 

I have been reading the posts on this site for the last week or so, spent all  day today, after the hearing reading. I am still at it, Blood shot eyes and all.

 

The more I read the more I get discouraged. Sounds like this could get pretty hairy. I don't want to give up yet. But I've thought about it several times.

 

Your posts have gotten me this far, And I thank all of you who have helped. 

[Clydesmom]

There are two references to the same account in the credit report. The first Charged off as bad, Debt purchased by another lender on 02/17/2013. That had to be Phillips and Cohen. The second reference to the same account on 03/28/2014 was Portfolio.

 

Portfolio is the one who bought the debt.  Phillips and Cohen is the law firm they prefer to hire to litigate.  

[Bond007]

@BV80

 

After reading the Court Rules, I may be able to file for Summery Judgment as to:

 

K.S.A. Statute 60-256: (e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith, the court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summery judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this section, must set fourth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 

Since the affiant did not support her testimony in the affidavit, ("the account and all proceeds of the account are now owned by the Account Assignee and transferred by the Account Seller on 3/28/2014"), with proof of the transfer in any form, such as a bill of sale. And the only form of proof she attached thereto or served therewith was the Account Statement, which does not prove that there ever was an assignment between the original creditor and the alleged ("Account Assignee"). This shows that there is no genuine issue as to any material fact and the Defendant is entitled to a judgment as a matter of law.

 

What do you think? any response would be appreciated!

[BV80]

@Bond007

 

The rule you've cited is for an affidavit in support of a motion for summary judgment.  They haven't filed an MSJ.   See if your rules require evidence to be attached to the complaint.

[saytar]

@BV80

 

After reading the Court Rules, I may be able to file for Summery Judgment as to:

 

K.S.A. Statute 60-256: (e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith, the court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summery judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this section, must set fourth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 

Since the affiant did not support her testimony in the affidavit, ("the account and all proceeds of the account are now owned by the Account Assignee and transferred by the Account Seller on 3/28/2014"), with proof of the transfer in any form, such as a bill of sale. And the only form of proof she attached thereto or served therewith was the Account Statement, which does not prove that there ever was an assignment between the original creditor and the alleged ("Account Assignee"). This shows that there is no genuine issue as to any material fact and the Defendant is entitled to a judgment as a matter of law.

 

What do you think? any response would be appreciated!

 

Citibank/Sears Card Agreement-see Page 6

 

Arbitration agreement is on page 6.....Can use JAMS......Demand for Arbitration

 

That's just so you can look over what's involved........arbitration is risky if the amount is extremely large AND it is NOT any easier than going to court. BUT, if used appropriately it could be used to obtain leverage on the JDB........Leverage is good what ever route you go....either to arb and get them out of court...trying to beat their MSJ and push them to full trial.....with settlement available at nearly every step. More leverage, possibilities of better settlement if desired. They don't want to have to go to court any more than you do....cost them too much time and money, they'd rather get it easy by you rolling over and default.

 

Now from the sounds of your situation.......I believe you could just as successfully litigate this in court, sounds like they have a messy case and are trying to put the lipstick on a pig. At least you could find out more about your judge and do like the attorney's do..................go shopping for a judge.....

 

IF you decide to litigate:

 

Going straight for a Summary Judgment (Dismissal) just right now would up the  ante on your participation level,,,,from moderate to high speed. You as of yet it doesn't appear you have a good handle on all what documentation they have or don't have......and the Plaintiff would likely protest your dismissal request....requiring you most likely have to do more paperwork and finally discovery in any case. Save your energy, take it one step at a time, methodically.

 

Don't remember if you said you answered yet...either way it can be amended if need be, so don't panic....I'd just do a general denial of all their claims, list any affirmative's you might have (remember you would have to back up your defenses at some point with legalese, but it won't count against you if one or two don't fit, judge will just throw them out....don't do them would hurt more...maybe), add them to your initial answer, then get some good pointed discovery ready.....people here can help with those.

[debtzapper]

This is from my post #10.  They will have to have a records custodian to testify.  You will have to attack his or hers credibility at trial.

 

 

 Kansas has not enacted a statute providing that such evidentiary foundation be set by and through any Business Records Affidavit. As a result, a business records custodian or other qualified witness must be present at all trials in order to lay a proper foundation for the admission of relevant account documentation into evidence over a hearsay objection. The witness need not be present during the production or creation of the record, but merely familiar with the records such that he or she can testify as to the records’ general method of preparation, and that such information would have been recorded on the record at or near the time of the events or information so recorded

[Bond007]

I guess if they come up with a bill of sale in discovery, I'm dead in the water. Oh well they cant take my home, just put a lien on it. They will never collect on it because it will stay in the family for the next several generations. They cannot garnish my bank account because the only monies that go in there are my Disability checks. My wife don't work. I don't have any savings accounts. I got the shaft from work comp. when I was injured, so no settlement so speak of. Guess I can give them a kidney if that would help. I wonder if they will take a couple of expensive pussy cats for payment?

[debtzapper]

This is a 2013 PRA Kansas thread.  Read it all, especially @BV80's post on pg.2, #39.  The defendant unfortunately lost.  That does not mean you will too, but KS is not a debtor-friendly state.

 

 

http://www.creditinfocenter.com/community/topic/321014-summons-from-portfolio-recovery-associates/

[Bond007]

Thanks for that. I seen that when you posted it and copied it and printed it out so I can use it at the next hearing, I guess the judge can take it or leave it as she likes. She has already jumped down my throat for something I said at the pre trial hearing. So I guess it wont hurt to bring it up, I have looked up the COR. She is listed on a professionals website called LINKEDIN. She only been working for PRA for a short time. Probably less than a year.

[Bond007]

Thanks! I will read it entirely tomorrow. I have a Dr. apt. early in the morning so I'm going to hit the hay. Ill be back at it again tomorrow. Don't have much else to do. So I can spend a lot of time on this. Thanks again for the posts. You guys are more than helpful. Good night and GOD bless! 

[saytar]

Thanks for that. I seen that when you posted it and copied it and printed it out so I can use it at the next hearing, I guess the judge can take it or leave it as she likes. She has already jumped down my throat for something I said at the pre trial hearing. So I guess it wont hurt to bring it up, I have looked up the COR. She is listed on a professionals website called LINKEDIN. She only been working for PRA for a short time. Probably less than a year.

 

Check in to reclusing the judge...............ask the attorney's around your area about the judges in the area, maybe you would be better moving for a change of venue to a more friendly county or courtroom. Or make sure that everything you do is with an eye to appealing.........those judges might not be so "bottom feeder" friendly.

 

Also, since your disabled you should be eligible for Free Legal Assistance ...i.e. Legal Aid........They could at least advise you, maybe.

 

Here's your Civil Procedures

 

The Official State SIte - for Citation and Case Law search's

 

Chapter 60: Procedure, Civil - Article 2: Rules Of Civil Procedure

 

Statute 60-245a: Subpoena of records of a business not a party. (a) As used in this section:

      (1)   "Business" means any kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

      (2)   "Business records" means writings made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded.

      (    A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed.

      Unless the personal attendance of a custodian of the business records and the production of original business records are required under subsection (d), it is sufficient compliance with a subpoena of business records if a custodian of the business records  (NOTE: This means from the Original Creditor, NOT the JDB) delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described in the subpoena and mails a copy of the affidavit accompanying the records to the party or attorney requesting them within 14 days after receipt of the subpoena.

 

Chapter 60: Procedure, Civil

Article 2: Rules Of Civil Procedure - Statute 60-256: Summary judgment.This one you need to pay attention to, as this is how they go about their Default Judgment

 

Chapter 60: Procedure, Civil - Article 4: Rules Of Evidence

 

Statute 60-460: Hearsay evidence excluded; exceptions. Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

      (a)   Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.(JDB record custodian cannot testify to the Original Creditors Records or files)

      (    Affidavits. Affidavits, to the extent admissible by the statutes of this state.

      ©   Depositions and prior testimony. Subject to the same limitations and objections as though the declarant were testifying in person, (1) testimony in the form of a deposition taken in compliance with the law of this state for use as testimony in the trial of the action in which offered or (2) if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when (A) the testimony is offered against a party who offered it in the party's own behalf on the former occasion or against the successor in interest of such party or ( the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection © shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.

      (d)   Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.

    

    (g)   Admissions by parties.(Be careful how you answer their discovery!) As against a party, a statement by the person who is the party to the action in the person's individual or a representative capacity and, if the latter, who was acting in such representative capacity in making the statement.

     

(h)   Authorized and adoptive admissions. As against a party, a statement (1) by a person authorized ( by the O.C, not the JDB) by the party to make a statement or statements for the party concerning the subject of the statement or (2) of which the party with knowledge of the content thereof has, by words or other conduct, manifested the party's adoption or belief in its truth.

    

      (m)   Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.

[Bond007]

The COR states in her Affidavit "According to the business records, which are "maintained" in the ordinary course of business, the account is now owned by the Account Assignee".

 She sais "Maintained". she does not state that they were "made" in the ordinary course of business.

 

 

 

K.S.A. statute 60-40 states that evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

 

(m). Business entries and the like. Writings offered as memoranda or records of acts,  conditions or events to prove the facts stated therein if the judge finds that (1). They were "MADE" in the regular course of a business at or about the time of the act, condition or event recorded. (it does not say "They were "MAINTAINED" in the regular course of business"). and (2). the sources of information from which "MADE" (not "MAINTAINED") and the method and circumstances of their preparation were such as to indicate their trustworthiness.

 

The words "Made" and "Maintained" have two different meanings. In The COR's Statement she is only maintaining the business records. After they magically appeared in her possession.

 

In the statute the Judge must find that (1). they were "Made" in the regular course of business. and

(2). The sources of information from which "made" and the method and circumstances of their preparation were such as to indicate their trustworthiness.

[saytar]

The COR states in her Affidavit "According to the business records, which are "maintained" in the ordinary course of business, the account is now owned by the Account Assignee".

 She sais "Maintained". she does not state that they were "made" in the ordinary course of business.

 

 

 

K.S.A. statute 60-40 states that evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

 

(m). Business entries and the like. Writings offered as memoranda or records of acts,  conditions or events to prove the facts stated therein if the judge finds that (1). They were "MADE" in the regular course of a business at or about the time of the act, condition or event recorded. (it does not say "They were "MAINTAINED" in the regular course of business"). and (2). the sources of information from which "MADE" (not "MAINTAINED") and the method and circumstances of their preparation were such as to indicate their trustworthiness.

 

The words "Made" and "Maintained" have two different meanings. In The COR's Statement she is only maintaining the business records. After they magically appeared in her possession.

 

QUESTION:  HOW do you maintain something that has no ongoing debts and credits AND is nothing more that records created by another???????????

 

In the statute the Judge must find that (1). they were "Made" in the regular course of business. and

(2). The sources of information from which "made" and the method and circumstances of their preparation were such as to indicate their trustworthiness.

 

This is the item your arguments (with legal foundation) should lead the judge by the nose to that conclusion. Allow him no wiggle room to allow them as records. Then when in any hearing always object to any attempt to introduce them as evidence.....preserve your appeal rights if they are needed. Objections give an appeal court something to overturn on...don't object and they won't look at that item.

Check the dates on when account was sold....and the date the "affidavit" was created. If it is more than 6-8 months after sale how could it have been created at or around the time of the event's, created specifically for litigation, is this in the normal course of business??? Have they stated who created the records and how, circumstances? If the O.C. did where is their certified statement attesting to the accuracy of these made-maintained records?

 

Just saying.................

[BV80]

@saytar

 

 

The affidavit does not have to be created at or around the time of the events.   It's purpose is to show that the referenced records are business records subject to the hearsay exception.

[saytar]

@saytar

 

 

The affidavit does not have to be created at or around the time of the events.   It's purpose is to show that the referenced records are business records subject to the hearsay exception.

Ahhh yes, but if created months later some record had to be accessed to verify that...........but how could they verify accuracy, manner of preparation. The person was only looking at transffered computer records (from the O.C).....heresay. Second hand knowledge.

[BV80]

@saytar

 

I agree with what you're saying verifying the accuracy of records, etc., but that wasn't my point..  You referenced the date the affidavit was created.  My point was simply that the affidavit itself does not have to be created at or around the time of events in the business records.  

[saytar]

True...........but the affiant doesn't state any dating on "the records" referred to............This creates some doubt as to trustworthiness, Thus is up to interpretation of the reader, that's the lead the judge by the nose in effect to the conclusion you what him to make........................there is some Federal case's that have ruled that affidavit's created just for litigation are inherently defective as to the business rule.

 

That's just something else that OP can use (with a little legal foundation, possibly) to impeach the trustworthiness of the affiant's affidavit. Nothing states when.............at least nothing from the affiant or O.C.....................to much a$$-UMPT-ION of facts................Knock out the affidavit and Plaintiffs case ie. standing evaporates........not to say that some dingy judge won't grant a MSJ anyway, but leaves things for the record that an appeals court could rule differently on....

 

Plan to win..................either at MSJ or on de novo review........3 judges looking at a case on appeal is very different than just one who might or might not agree with you on his turf.

 

I don't trust anything they send to be 100% correct .............or complete.

 

But your right..............don't hang your hat or whole case on JUST that. No one size fits all.

[Bond007]

Just trying to pick the Affidavit apart at the seems.

1. the records attached are not prominently marked as an exhibit as to Rule 5.45. 

2. PRA ("hereinafter Assignee"), has been omitted throughout the entire complaint. So anywhere the word "Assignee" is stated without "PRA" before or after it, throughout the complaint and the affidavit, "Assignee" could refer to any entity.

3. The business records were "maintained" and not "Made"in the ordinary course of business.

4. The accuracy of the records, Knowing that the account number is not accurate.

5. The fact that The OCR was not working for PRA or The OC at the time the records were produced.

6.It has long been recognized that standing imparts justifiability and must be determined as a threshold issue. e.g.. (Harrison v.   Long,241 Kan. 174. 176.734 P. 2d. 1155 (1987)

 

Standing to sue means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm'rs. 32 Kan. App. 2d 1168, 1173, 1174. 95 P.3d 1012 (2004) (citing Dutoit v. Board of County Commr's., 233 Kan 995. 1003. 667 P. 2d 879 (1983)

 

Without proof of ownership of the account, they have not proven that they have a "sufficient stake" in the outcome.

 

And without a pleading of an Assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and the case must be dismissed.

[BV80]

@Bond007

 

1. the records attached are not prominently marked as an exhibit as to Rule 5.45.

 

 

Where is rule 5.45?

 

2. PRA ("hereinafter Assignee"), has been omitted throughout the entire complaint. So anywhere the word "Assignee" is stated without "PRA" before or after it, throughout the complaint and the affidavit, "Assignee" could refer to any entity

 

 

In which document does it say "hereinafter Assignee"?

[saytar]

That's basically it, pick every piece of everything they sent or provide for errors, admissability, trustworhiness, standing. Then get your citations of case law, statutes and arguments and put it in a well written form.....that's my issue, I am never satisfied that mine's perfect....Most of us haven't had a "writing course" little lone a legal one in decades....

 

A response to an MSJ should start by Points: every contention of the plaintiff addressed item by item and denied, similar to your ROGS etc., then you have your Standard of Review section laying out by Statute the items and elements that they Have to Prove....that burden is on them etc., then an Arguments and Authorities seciton where you make you your "Legal" arguments against each of the points using the statute and case law citation's to give arguments legal standing (arguments or statements without foundation won't get you far with either the judge or appellate courts), then a Summary of the entire suit and and general arguments against their suit, then you Pray to the Court section asking for dismissal with prejudice (I asked for summary disposition of dismissal, check with your rules on this), they take naught, etc.

 

It would be good to Object to each element of your Argument and Authorities at the very least. This will preserve and give you things to argue for if an appeal is necessary...don't object and the appeals courts will consider an item admitted as a rule and not consider it in review. I objected and motion to strike item..check with your rules on just how do this....but at least object..(if you forget in court hearing at least it will be in your brief) If something comes up in court that wasn't in their MSJ Object to it and motion to strike from the record as not produced in discovery etc.

 

You might if you get a chance look up Responding to MSJ.....Writing a Trial Brief...find some examples that could give you a more definitive outline for assembling your facts. Don't think most courts really expect perfection from a pro se, but they will expect it to be in a reasonable format and with the Legal foundation as your Legally supported points and arguments are really all want to look at.

 

Your getting the idea.....don't accept anything on face value...Turn all the stones over and check them......Think what impression they are trying to put in the courts head and put YOUR idea's in the courts head and undermine their's.....

 

All any of us can do is do our best. What works for one, may not be enough for another. Every State is a little different, every judge is different. That's why I advocate attacking all their points, evidence and statements, identifying the key things that will deny them a MSJ and attacking those the hardest.

 

I have must have shaken the tree because I have had discovery come from the Mothership in Denver direct. They didn't send it through their Trick Pony in T Town........their's a sheet with his sig on it, but the envelope and affidavit of completion came from Denver.

[saytar]

@Bond007

 

 

Where does it say "hereinafter Assignee"?

 

Good catch on that one BV80....see....more eyes, more seen

[Bond007]

Neither document has PRA "(hereinafter Assignee"). The complaint mentions them as Plaintiff only.   The Affidavit mentions them as Portfolio Recovery Associates, LLC. ("Account Assignee") in the first sentence but there after "assignee" has no label before or after.

[BV80]

@Bond007

 

In post #25, you wrote that the affidavit references "account assignee" throughout the affidavit.  In any case, how they are referenced in the affidavit is for the affidavit only.  It's not for the complaint.

 

Where did you find Rule 5.45?

[Bond007]

On one of the earlier posts, and I can not remember who's post it was, they asked what the Rule was when the pleading was based on a written instrument. I found it  in

 

Chapter 60: Procedure, Civil

Article 2: Rules of Civil Procedure

 

K.S.A. 60-209: Pleading Special Matters

 

(h). Pleading written instrument.  When ever a claim, defense or counterclaim is founded upon a written instrument the same may be ;leaded by reasonably identifying the same and stating the substance thereof or it may be recited at length in the pleading or a copy may be attached to the pleading as an exhibit.

 

So I take it that that means the "Assignment" referred to in the Affidavit should have been attached to the complaint as an exhibit.?

and since it was not, I probably should have mentioned this Rule in my "Motion To Strike Affidavit".

 

 I stated in my Motion  (2.) Plaintiff claims in their affidavit ("Exhibit A") that they are the owner of a "NAME OF BANK" account, yet Plaintiff provides no documentation referencing that entity.

 

Then I failed to mention the Rule. I am wondering if I can submit another revised Motion To Strike.

 

I guess I will go back and read the rules on motions and revisions.