Jump to content

ILLINOIS, I Motioned 2 Strike & Dismiss, They Responded, Now What


Recommended Posts

As the title indicates,, I have responded with a Verified Motion To Strike Plaintiffs Affidavit Of Claim and also a separate Verified Motion To Dismiss Complaint. 

Now, the Plaintiff has responded 5 days after their Court Ordered 21 Day Deadline.  I presume that the Judge will forgive that if I do not Object, but does that really matter?

Now, I have 21 Days from that point to do my response to the Plaintiffs response.   I have not seen much information online regarding that situation, when the Debt Buyer actually pursues it to this stage.

How do I respond?

I will scan their Response later, but for the time being I will attach the Name Redacted Versions ofMy Motion To Strike and Motion To Dismiss.  They are VERY THOROUGH and detailed.   The Motion To Dismiss is 17 pages and the Motion  to Strike is 5 pages.

FBPS

 

P.S.

I had to reload the attachments of the Motions below a couple of posts down to make sure that they opened properly.

Link to comment
Share on other sites

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT

McHENRY COUNTY

 

RESURGENCE CAPITAL, LLC

                        Plaintiff,

vs.                                                                                                        Case No.:  14 AR XXX

 

Me

                        Defendant.

VERIFIED MOTION TO STRIKE PLAINTIFFS AFFIDAVIT OF CLAIM  

 

NOW COMES the Defendant, Me, Pro Se, who requests this Honorable Court to Strike the Plaintiff’s Affidavit of Debt for the Following Reasons:

 

1.      The Plaintiff, Resurgence Capital, LLC, has filed Plaintiff’s Exhibit “B”, Affidavit of Eileen M. Mahon in support of judgment.

 

2.      Exhibit “B”, Affidavit of Eileen M. Mahon pertains to acts and events that allegedly occurred between Defendant and a third party, Chase Bank, USA NA.

 

3.      At no time was the creator of the affidavit nor any of the Plaintiffs employees present to witness Any alleged acts or creation of the records of transactions occurring between defendant and the third party, Chase Bank, USA NA.

 

4.      As such said affidavit falls under the hearsay rule and is inadmissible as evidence.

 

5.      Plaintiff’s affidavit does not attach or suggest that plaintiff possess the business records of its assignor, nor could plaintiff’s employee competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor, if they did in fact exist.  Plaintiff’s affidavit is therefore utterly incompetent and insufficient.

 

6.       Defendant further states that the affidavit is not subject to the hearsay business records exemption because it was not made at or near the time of the alleged acts or evens, and;

 

7.       The information contained in the document is merely an accumulation of hearsay, and;

 

8.      Upon Information and belief, the creator of the document in Plaintiff's Exhibit No. “B” is not currently and has never been employed with Chase Bank, USA NA and therefore cannot have personal knowledge of how Chase Bank, USA NA records were prepared and maintained and;

 

9.      The Affiant, Eileen M. Mahon, Is unqualified to testify as to the truth of the information contained in Plaintiff's Exhibit No. “B”.

 

10.  A. Because debt buyer personnel have no personal knowledge of the underlying transactions or the recordkeeping practices of the original creditor, debt buyers frequently submit affidavits and testimony that are incompetent, if not outright fraudulent.

 

B. A witness cannot testify that a file or business record shows that the defendant is in default. Such testimony is both hearsay (it is an out of court assertion by whoever prepared the records) and violates the best evidence (original document) rule (since it is an attempt to prove the contents of a document without introducing it). Wahad v. Federal Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In re McLemore, 2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio App. 2004); Nebraska v. Ward, 510 N.W.2d 320, 324 (Neb. App. 1993).. Nor can such testimony or affidavits be made sufficient by omitting the fact that it is based on a review of loan records, if it appears that the witness or affiant did not personally observe the underlying transactions. Hawaii Community Federal Credit Union v. Keka, 94 Haw. 213, 11 P.3d 1, 10 (2000).

 

11.  If the witness has not personally observed all of the transactions, the only permissible form of testimony is to lay a proper foundation for business records showing the transactions and introduce the business records. It is the business records that constitute the evidence, not the testimony of the witness referring to them. If the records are voluminous, they can be summarized and made available, but under no circumstances is the testimony summarizing the records admissible if the records are not tendered. In re deLarco, 313 Ill.App.3d 107, 728 N.E.2d 1278 (2nd Dist. 2000). See generally, Luke v. Unifund CCR, 2-06-444-CV, 2007 Tex. App. LEXIS 7096 (2d Dist. Ft. Worth Aug. 31, 2007).

 

12.  The affidavit of Eileen M. Mahon claims that as such, she is authorized to make statements and representations herein. Plaintiff Exhibit No. “B”.  However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish her knowledge regarding the manner or methods of the plaintiff’s business dealings.  It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based.  The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant.  Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

13.  Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.”  Outboard Marine Corp. v. Liberty Mutual Ins. Co., supra.  

 

14.  Similarly, if the plaintiff is suing by virtue of an assignment it must introduce an assignment identifying the particular debt. Oral testimony about the contents of a written assignment is not admissible.  Palisades Collection, LLC a/p/o AT&T Wireless v. Gonzalez, 10 Misc. 3d 1058A; 809 N.Y.S.2d 482 (N.Y.County Civ. Ct. 2005):  Finally, Ms. Bergmann claims that plaintiff is entitled to sue because of an assignment to it from AT&T. However, she does not attach a copy of the alleged assignment. In the absence of the document on which her statement is based, her statement is of no probative value . . .

Consequently, Ms. Bergmann has failed to establish that plaintiff has the right to collect this debt MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148A, 841 N.Y.S.2d 826 (N.Y.Civ. Ct. 2007):

 

15.  The court must disregard unsupported, conclusory statements in an affidavit.  Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d 961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a court will disregard all conclusions in an affidavit).

 

16.  Because the sole basis of plaintiff’s claim, including the balance allegedly due and the interest rate accruing, is an inadmissible affidavit, the affidavit should be stricken in its entirety.

 

17.  Pertinent cases:

A.    Manufacturers & Traders Trust Co. v. Medina, 01 C 768, 2001 WL 1558278,

2001 U.S. Dist. LEXIS 20409 (N.D.Ill., Dec. 5, 2001) (affidavits by attorneys and

others lacking personal knowledge insufficient)

 

B.  Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 129, 595 N.E.2d 177, 181-82 (2nd Dist. 1992) (where bank officer's "affidavit essentially consisted of a summary of unnamed records at the bank," unaccompanied by records themselves and unsupported by facts establishing basis of officer's knowledge, foundation was lacking for admission of officer's opinion regarding amount due on loan). 

 

C.     In re A.B., 308 Ill.App. 3d 227, 236, 719 N.E.2d 348 (2nd Dist. 1999) (“Under the business records exception . . . it is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible . . . . In other words, a witness is not permitted to testify as to the contents of the document or provide a summary thereof; the document speaks for itself. M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 803.10, at 825 (7th ed. 1999).”)

 

D.    Topps v. Unicorn Ins. Co., 271 Ill. App. 3d 111, 116, 648 N.E.2d 214 (1st Dist. 1995) (“under the business record exception to the hearsay rule, only the business record itself is admissible into evidence rather than the testimony of the witness who makes reference to the record”).

 

E.     Northern Illinois Gas Co. v. Vincent DiVito Constr., 214 Ill. App. 3d 203, 215, 573 N.E.2d 243, 252 (2nd Dist. 1991) (“The business records exception to the

hearsay rule (134 Ill. 2d R. 236) makes it apparent that it is only the business

record itself which is admissible, and not the testimony of a witness who makes

reference to the record”).  “There is no hearsay exception . . . that allows a witness to give hearsay testimony of the content of business records based only upon a review of the records.” Grant v. Forgash, 1995 Ohio App. LEXIS 5900, *13 (Ohio App. 1995).

 

F.      “Business records” must be prepared in the regular course of business, where

there is little or no motive to falsify. Documents prepared after the event for

litigation purposes are not admissible as business records. People v. Smith, 141

Ill. 2d 40, 72, 565 N.E.2d 900, 914 (1990)

 

G.    People ex rel. Schacht v. Main Ins. Co., 114 Ill. App. 3d 334, 344, 448 N.E.2d 950, 957 (1st Dist. 1983) (“since the probability of trustworthiness is the rationale for the business records rule, records prepared for litigation are not normally admissible even if it is a part of the regular course of business to make such records”). No document prepared by a debt buyer regarding a charged-off account as a predicate for suing the consumer should be a business record.

 

 

 

 

 

 

 

 

 

 

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT

McHENRY COUNTY

 

RESURGENCE CAPITAL, LLC

                        Plaintiff,

v.                                                                                                         Case No.:  14 AR XXX

 

Me

                        Defendant.

 

VERIFIED SWORN RESPONSE BY CERTIFICATION

WHEREFORE, the Defendant, Me, prays that this Honorable Court take Nothing of Plaintiff's Complaint and Strike Plaintiff’s Hearsay “Affidavit Of Claim” in its entirety and assignments/bills of sale attached by virtue and will deny the Plaintiff the relief requested and dismiss the Complaint.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-109], the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he or she verily believes the same to be true.

 

_____________________________________________                  ________________________

(Signature)                                                                                         (Date)

 

_____________________________________________

(Name Printed)

 

 

 

 

Link to comment
Share on other sites

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT

McHENRY COUNTY

 

RESURGENCE CAPITAL, LLC

                        Plaintiff,

v.                                                                                                                     Case No.:  14 AR XXX

 

My Name

                        Defendant.

VERIFIED MOTION TO DISMISS COMPLAINT

NOW COMES the Defendant, My Name, Pro Se, and swears and states the following and hereby moves this Honorable Court pursuant to Illinois Code of Civil Procedure Rule 2-615 to strike the affidavit and also Rule 5/2-606 along with Rule 5/2-403 and due to the Illinois Collection Agency Act (ICAA) (225 ILCS 425/8b, plus other pleadings, and therefore shall dismiss the Complaint with prejudice filed by Plaintiff in the above captioned cause.  A copy of the Plaintiff’s Complaint is attached hereto, entitled Defendants EXHIBIT “A”

In support of this motion, defendant states as follows:

1.      Plaintiff filed this action claiming that $34,464.78 is due from Defendant on a purported charge account, originally held with CHASE BANK USA N.A., the alleged initial issuer of the alleged debt.

 

2.      We hereby give this Honorable Court Notice, that the Defendant is not a trained Attorney or Lawyer and has not ever been to Law School and that this Motion may have typical pro se defects, and that the Defendant is functionally illiterate in the law and does not readiy speak legalese, and that the Defendant has had to rely on law dictionaries, internet research along with Court cases of similar nature along with the Illinois Codes Of Civil Procedure and other Legislative Acts as they came to the Defendants awareness and to specifically request leave of the Court to make allowances for such minor defects and deficiencies because it would be nearly impossible for the Defendant to file any Pleadings with the Court that would not be technically defective in some manner, as the laws and codes are written for trained Licensed Bar Attorneys which precludes why all of the relevant codes and acts are written in such a way to limit and potentially incapacitate a pro se Defendant opposing such extremely well versed Legal Counsel.  We request in advance some slight leniency towards this particular Defendant in this instant case and to construe the intent of our Motions in the most lenient light possible, rather than be defeated due to minor technical errors as they may appear.

 

3.      The Plaintiffs Complaint in its intentional vagueness, ambiguity and lack of specifity to identifying the Defendant, My Name, does not set forth a cause of action for either an account stated or a breach of contract, as demonstrated below.

 

4.      The Plaintiff has failed to state whether they are pursuing this matter as an alleged complaint alleging breach of an unwritten contract, aka account stated or alternatively as an alleged breach of a written contract.  This places an undue burden of responsibility of the Defendant to interpret what the Plaintiffs intentions are so as to properly formulate an accurate response or motion, in doing so, in such an egregious manner, if this motion winds up needing to be amended in whole or part at a future hearing, this Defendant should rightfully be allowed to do so without any time barred restrictions or penalty.

 

5.      The Plaintiff has not identified any alleged original credit card account in any manner, including the alleged original account number, the alleged signed written agreement that would be necessary to infer that there was ever any acceptance of any such alleged agreement, nor any other such written instruments that would be readily available if in fact there ever was such an agreement, and they have not indicated any alleged date of any last transaction,  nor have any of the multiple following alleged successors to the alleged debt properly and accurately identified the current Defendant, My Name in any specific particularity in even one of the multiple assignments labeled “Bills Of Sale”, with specific privity, particularity and individuality.

     

6.      The Defendant specifically references each of the listed assignments, previously which designated all 3 of the alleged assignments as Plaintiff’s EXHIBIT “A”, but for better identification purposes, the Defendant will resubmit them as follows and identify them as Defendants EXHIBITS; “B”, “C” and “D" as follows:

 

A.    Chase Bank USA, NA, (Seller) to Thunderbolt Holdings Ltd, LLC, (Purchaser) 

Defendants EXHIBIT “B”

B.     Thunderbolt Holdings Ltd, LLC, (Seller) to Pilot Receivables Management, LLC, (Purchaser), Defendants EXHIBIT “C”

C.     Pilot Receivables Management, LLC, (Seller) to Resurgence Capital, LLC, (Purchaser) 

Defendants EXHIBIT “D”

In the Plaintiff’s alleged “Affidavit Of Claim” purportedly written by Affiant, Eileen M. Mahon, reference is made to the above listed multiple alleged assignments labeled “Bills Of Sale”, and inclusive in each and every one of these alleged assignments, they allude to various undefined verbiage, which Never even remotely identifies the Defendant, My Name, entitled;

EXHIBIT “B”, Chase Bank USA, NA, (Seller) to Thunderbolt Holdings Ltd, LLC, (Purchaser)  (Account’s Primary File Name), and states “attached hereto and made part hereof for all purposes...”, yet there are no attached files included, specifically any of which identify the Defendant, My Name.  

EXHIBIT “C”, Thunderbolt Holdings Ltd, LLC, (Seller) to Pilot Receivables Management, LLC, (Purchaser), it states, (the “Accounts”), and further states that there is an “Account Schedule Attached”, yet no such schedule is in fact attached, nor once again, there is no reference specifically, any of which identify the Defendant, My Name.  Furthermore, the referenced “Purchase And Sale Agreement” that is part of this alleged transaction is not included or attached.

EXHIBIT “D”, Pilot Receivables Management, LLC, (Seller) to Resurgence Capital, LLC, (Purchaser), where no document title is referenced, yet the alleged “Bill Of Sale” states that it also includes a document referenced as its own “Attached Exhibit A”, which also is missing from any inclusions or attachments.

  1. As the Plaintiff has as of now, had 14 months from the date of their initial filing; Surely, it would not have been excessively burdensome for them to have attached at least any specific document which would accurately identify the Defendant, My Name, as required by the specific listed Statutes referenced in the Defendants motion To Dismiss with prejudice .  Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D. Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain:  The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

By omitting any specific documents which show privity with the Defendant and any alleged account, the Plaintiff has not shown that they have any Legal Standing and that the entire basis of the Plaintiffs Merits for their Complaint are the Plaintiffs EXHIBIT “A”, which are 3 separate assignments and Plaintiffs EXHIBIT “B”, their “Affidavit Of Claim”, which are mere Hearsay and not part of the business records exemption and all references insinuated by any such means must be stricken from the record in their entirety and thereby Dismiss the Plaintiff’s Claim with prejudice .  The non-definitive verbiage and redacted unknowns included in the alleged assignments reduce their practical effectiveness no null and void, or in other words, As If The Complaint Had Not Attached Any Assignments at all and these must be excluded and Stricken from the Complaint rendering these documents utterly worthless and of no substantive value to identify the alleged Defendant.

Even if the redacted information on these Multiple Assignments were unobscured, it is obviously evident to any reasonable man that there are no titled lines referencing where any specific naming of any one particular individual and social security number or associated account number would logically be construed, as this seems to be only some reference to some multiple aggregate accumulation of unknown accounts and are all to be deemed as mere Hearsay and not part of the business records exemption and all references insinuated by any such means and must be stricken from the record in their entirety and thereby Dismiss the Plaintiff’s Claim with prejudice.  

8.      Even if this debt collection agency were to somehow show that they have Standing, their Complaint is Deficient per the following reason previously decided:  In Unifund CCR Partners v. Shah, No. 1-10-0855, 2011 WL 477725 (Ill. App. Ct. Feb. 1, 2011);  The trial court dismissed the collection complaint because the requirements of Illinois Collection Agency Act (ICAA) (225 ILCS 425/8b (West 2008) § 8b apply to all assignments in the chain of title. The appellate court affirmed, finding that the debt collector failed to establish the requirements of Section 8b. The court ruled that Section 8b applies to every contract for collection in the chain of title. Therefore, a collection agency must establish the account assigned, the effective date of the assignment, and the consideration for the assignment in order to comply with Section 8b. The court found that the debt collector failed to meet the requirements of Section 8b because the redacted copies of its assignment to collect the consumer’s account did not show consideration nor the account information for the assignment………………..  Unifund CCR Partners v. Shah, 2011 Ill.App. LEXIS 61 (1st Dist., Feb. 1, 2011).  The written agreement must also specifically identify the account at issue. An Illinois Appellate Court has held that a collection agency had standing to sue a debtor in its own name under Illinois law but that the collection agency's complaint was deficient because it failed to include documents evidencing the debt's assignment as required by Illinois law.

 

The Asset Schedule was attached as “Exhibit 1” to the Citibank-Portfolio A agreement. But the copy of “Exhibit 1” in the record has been completely redacted. In support of its claim that defendant’s account was one of the accounts transferred, plaintiff has instead attached another free-standing exhibit to the complaint that consists of only a single line of information on three otherwise blank pages. This appears to be the identifying information for defendant’s account, but there is no indication in the document that it was part of the Asset Schedule referenced in the Citibank-Portfolio A agreement.  Indeed, the only basis for the claim that defendant’s account was part of the assets transferred from Citibank to Portfolio A is plaintiff’s allegation that it was. The problem is the same with the Portfolio A-Cliffs agreement, which also contains an asset schedule that has been completely redacted. This means that the documents attached to the complaint that purport to manifest the assignments between Citibank, Portfolio A, and Cliffs do not actually contain any information regarding the accounts transferred.

 

9.      In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla. County Court, Orange County July 20, 2007), the court held :  The Court has reviewed the documents presented by the Plaintiff, Bill of Sale and the Assignment, and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff. Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders. They do not provide any information that would allow the Court to determine if the alleged account of Defendant was one of the accounts sold or assigned to the Plaintiff.  Without any indicia of ownership that would sufficiently identify the true owner of the account at the time that Plaintiff filed this action, the Plaintiff is unable to prove that it had standing to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of the Court in the first place and is therefore an essential element of proof. Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2nd DCA 2005); Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). “Only the insured or medical provider ‘owns' the cause of action against the insurer at any one time.” Id. at 470.

 

10.  The Plaintiff has not pleaded on oath and allege that they are the actual bona fide owner of the alleged account and based on their own submitted Plaintiff’s Exhibit “A” is deficient and lacking of even having the slightest potential of alleging such a pledge on oath and is completely lacking any veracity of privity and identification with the Defendant and therefore should be dismissed with prejudice.                                                                                                   (735 ILCS 5/2-403) (from Ch. 110, par. 2-403)
    Sec. 2-403. Who may be plaintiff - Assignments - Subrogation. (a) The assignee and owner of a non-negotiable chose in action may sue thereon in his or her own name. Such person shall in his or her pleading on oath allege that he or she is the actual bona fide owner thereof, and set forth how and when he or she acquired title. The action is subject to any defense or set-off existing before notice of the assignment.

 

11.  Motion To Strike Plaintiffs Affidavit:  The Plaintiff attached an affidavit allegedly supporting the complaint, yet there is no reasonable inference contained in that affidavit that the affiant, Eileen M. Mahon, has ever had any actual first hand or business rule exception knowledge of the charges being claimed for in the complaint.

 

12.  Motion To Strike Plaintiffs Affidavit:  The affidavit of Eileen M. Mahon are at best, conclusory as to the alleged charges as this affiant has no direct first-hand knowledge of the alleged original creditors accounts, any indication of knowledge of any alleged agreement, or any practices of record keeping kept in the normal operational practices of the alleged original creditors business operations.

 

13.  The Plaintiff has not attached or otherwise shown any Standing in this case.  There is no chain of assignment attached that referenced The Defendant, My Name, nor any statement of the amount tendered to purchase the alleged account, nor any other remedial documentation that even reflect what account they are allegedly referring to other than their own personal account number nor the proof of sale of the assignment of the Defendant, My Name specifically and shown any valid proof of showing that it is legally entitled to state they are the successor of assignment of the complained for alleged account and if in fact the Plaintiff is the Real Party in Interest to the alleged account.  All of the information needs to be included as referenced in 735 ILCS 5/2-615 as listed below in line number 18.

 

14.  In Midland Funding LLC v. Wallace, 34 Misc. 3d 1206A; 946 N.Y.S.2d 67; 2012 N.Y. Misc. LEXIS 12; 2012 NY Slip Op 50008U, *12-13 (City Ct. Mt. Vernon, January 5, 2012), the court stated: “Clearly, plaintiff's counsel knows that under New York law, a full chain of assignment in addition to documentary proof of the contract and debt is required in order to prove a prima facie case in a consumer debt action where the plaintiff is an assignee of the original creditor. See, Citibank v. Martin, 11 Misc 3d 219, 807 N.Y.S.2d 284 (Civ. Ct. NYC 2005); Palisades Collection, LLC v. Gonzalez, 10 Misc 3d 1058A, 809 N.Y.S.2d 482 (Civ. Ct. NYC 2005); DNS Equity Group, Inc. v. Lavalle, 26 Misc. 3d 1228[A], 907 N.Y.S.2d436, 2010 NY Slip Op 50298 (Dist. Ct. Nassau Cty. 2010). Without proof of the chain of assignment plaintiff is unable to show its standing to sue the defendant and a lack of standing renders a litigation a nullity, subject to dismissal without prejudice. Citibank v. Martin, 11 Misc 3d 219,807 N.Y.S.2d 284 (Civ. Ct. NYC 2005). . . .”

 

15.  Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments

as to the nature of the purported assignment or evidence of valuable consideration;

Plaintiff's Complaint fails to allege whether or not the purported assignment was partial

or complete and there is no evidence that the purported assignment was bona fide.

 

16.  The Plaintiff failed to state a claim upon which relief can be granted.

 

 

17.  Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this

action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

 

18.  The Plaintiff’s pleadings are defective and do not follow the strict interpretation of 735 ILCS 5/2-615. Code of Civil Procedure §2-615(c) provides: “Upon motions based upon defects in pleadings, substantial defects in prior pleadings may be considered.” 735 ILCS 5/2- 615(c). Again, it is not necessary to attach or quote from the prior pleadings as long as they and the specific portions of them in question are adequately identified for convenient reference. See S.Ct. Rule 134.  (735 ILCS 5/2-615) (from Ch. 110, par. 2-615)
Sec. 2-615. Motions with respect to pleadings. (a) All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.
    (b) If a pleading or a division thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading, because it is substantially insufficient in law, the motion must specify wherein the pleading or division thereof is insufficient.
    (c) Upon motions based upon defects in pleadings, substantial defects in prior pleadings may be considered.
    (d) After rulings on motions, the court may enter appropriate orders either to permit or require pleading over or amending or to terminate the litigation in whole or in part.
    (e) Any party may seasonably move for judgment on the pleadings.
(Source: P.A. 82-280.)

 

The Complaint Fails To Establish The Existence Or Set Forth A

Cause Of Action For Breach Of A Written Contract

 

19.  If the complaint is allegedly based on an alleged breach of a written contract, then the following paragraphs 20-28 are sufficient grounds for dismissal with prejudice.

 

20.  In violation of Section 2-606 of the Illinois Code of Civil Procedure, no contract is attached to the complaint, nor does the complaint state that no contract is available and explain its absence.

 

21.  The Plaintiff has failed to attach a copy of the credit card contract to the complaint, failed to recite the

terms of the contract within the complaint, and failed to attach an affidavit showing that the document is

inaccessible, which are each grounds for dismissal.  In Velocity Investments LLC v. Alston, 397 Ill. App. 3d 296, 922 N.E.2d 538 (2d Dist. 2010).  The Second District Appellate Court, however vacated the judgment, holding that “Plaintiffs failure to attach a copy of the credit card contract to the complaint, failure to recite the terms of the contract within the complaint, and failure to attach an affidavit showing that the document is inaccessible is grounds for dismissal.”

 

22.  Instead of account agreements and assignments, plaintiff attaches a meaningless and defective Hearsay affidavit purporting to state that the defendant owes a sum of money by the affiant, Eileen M. Mahon, who is identified under the title “Account Administrator.”

 

23.  Under Section 735 ILCS 5/2-606 of the Illinois Code of Civil Procedure, where a complaint is founded on a written instrument, either: (a) the instrument must be attached as an exhibit to the complaint, or (b) the plaintiff must attach an affidavit stating facts showing that the instrument is inaccessible.  In a credit card collection case, Section 2-606 requires the plaintiff to attach any written instruments upon which its claims are based, such as the written credit agreement and credit card statements sent to the defendant.  If the written instrument is inaccessible, then Section 2-606 requires the plaintiff to attach an affidavit stating facts regarding the inaccessibility of the instrument.  The affidavit is insufficient if it merely states that the instrument is inaccessible—it must provide supporting facts “so as to excuse the failure to attach the written contract.”  735 ILCS 5/2-606 provides:  Sec. 2-606. Exhibits. If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit.     In either case the exhibit constitutes a part of the pleading for all purposes. 

 

In addition to the underlying contract, the assignment(s) showing that plaintiff has title to the claim is a document on which the action is founded. Candice Co. v. Ricketts, 281 Ill.App.3d 359, 362, 666 N.E.2d 722 (1st Dist. 1996), see also V.W. Credit, Inc. v. Alexandrescu, 13 Misc. 3d 1207A; 824 N.Y.S.2d 759 (N.Y.Civ.Ct. 2006), and MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148A, 841 N.Y.S.2d 826 (N.Y.Civ. Ct. 2007).  At the time the parties’ rights are determined, actual assignments sufficient to vest title to the obligation sued upon in the plaintiff must be in the record. Bayview Loan Servicing, L.L.C. v. Nelson, 5-06-0664, 2008 Ill. App. LEXIS 596, 890 N.E.2d 940 (Ill.App., 5th Dist., June 16, 2008).

 

24.  The Plaintiff, per Section 2-606 of the Illinois Code of Civil Procedure, did not include or submit any such required affidavit stating facts regarding the inaccessibility of the instrument.

 

25.  Plaintiff has no application, agreement, or transactional documents bearing the defendant’s signature, and alleges no facts in support of the alleged agreement.  In fact, plaintiff’s complaint is devoid of anything manifesting the defendant’s actual agreement to any terms or amount due related to this alleged account.

 

26.  In order to comply with The Truth in Lending Act (TILA), 15 U.S.C. § 1642, the original lender must have a signed request or application, or in absence of such writing, there must be a record detailing the date and circumstances of the request or application for credit.  15 U.S.C. § 1642.  The plaintiff’s complaint includes none of these requirements.

 

27.  Further, under federal law, “n any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.”  15 U.S.C. §§ 1643(b).

 

28.  The unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action. Pollack v. Marathon Oil Co., 34 Ill. App.3d 861, 341 N.E.2d 101 (5th Dist. 1976).  Here, plaintiff makes no mention of any contractual relationship and alleges no facts supporting a claim for breach of contract, and therefore, the complaint should be dismissed with prejudice.

The Complaint Does Not Allege The Elements of Account Stated

 

29.  If the complaint is allegedly based on an alleged breach of an account stated, then the following Paragraph Line Numbers 30 through 44 apply and are sufficient legal cause for dismissal.

 

30.  A cause of action for an “account stated” must allege four elements: (a) transactions of a monetary character involving the parties to the action; (b) the existence of accounts embodying such monetary transaction; (c) an agreement by the parties to such transactions that all items of such accounts are true and that the balance is correct; and (d) a promise to pay such balance.  Canadian Ace Brewing Co. v. Swiftsure Beer Serv. Co., 17 Ill.App.2d 54, 149 N.E.2d 447 (1st Dist. 1958);  O’Neill v. Reamon, 335 Ill.App. 327, 81 N.E.2d 749 (2nd Dist. 1948).

 

31.  In Razor Capital v. Antaal, 2012 Ill. App. LEXIS 571, 2012 IL App (2d) 110904, 972 N.E.2d 1238 (July 11, 2012), Razor Capital, “final transferee” of an alleged credit card debt, sued to collect it. The Appellate Court held that even though a credit card is technically an unwritten contract, it is necessary for the plaintiff to allege and prove the terms of the contract and that they apply to the particular account. 2012 IL App (2d) 110904, ¶ 29-32. “To properly plead that the generic agreement attached to the complaint applied to defendant’s account when she used the card, plaintiff must, at a minimum, allege facts reflecting that those terms were communicated to defendant, via mail to defendant’s most recent billing address or in another similar manner by which it would be reasonable to presume that defendant received them, and that defendant accepted those terms by subsequently using the card.” 2012 IL App

 

32.  Plaintiff does not allege that it contacted the defendant at any time in regards to this purported debt, or that any agreement was reached as to the balance allegedly due.  Instead, plaintiff merely makes the conclusory allegation that the defendant is “in default” and an amount is allegedly due. 

 

33.  Plaintiff has failed to plead: (a) that there was any agreement between the parties regarding accounts representing previous transactions; (b) that there was an agreement that the items in an account were true; (c) that there was an agreement that the balance struck was correct; and (d) that there was a promise to pay such balance.   “In an action for an account stated the complaint should allege all the material facts on which the liability of the defendant depends.” 1 I.L.P. Account Stated § 6 (1988). See W.E. Erickson Construction Inc. v. Congress-Kenilworth Corp.,  132 Ill. App.3d 260, 268, 477 N.E.2d 513, 519 (1st Dist. 1985); and see Allied Wire Products, Inc. v. Marketing Techniques, Inc., 99 Ill. App.3d 29, 40, 424 N.E.2d 1288, 1296 (1st Dist. 1981).

 

34.  Since Illinois is a fact-pleading jurisdiction, complaints must contain a plain and concise statement of the pleader’s cause of action.  (735 ILCS 5/2-603) (from Ch. 110, par. 2-603) Sec. 2-603. Form of pleadings. (a) All pleadings shall contain a plain and concise statement of the pleader's cause of action, counterclaim, defense, or reply.

 

35.  Just as the unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action, the bare allegation that an account is in default with a balance due does not adequately plead an account stated claim.  “An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for payment of such balance.”  LaGrange Metal Products v. Pettibone Mulliken Corp., 106 Ill. App.3d 1046, 1053, 436 N.E.2d 645, 651 (1st Dist. 1983) (“The meeting of the parties’ minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto.”); See Palisades Collection LLC v. Haque, NYS (Queens County Civil Court, April 14, 2006). Here, there have been no previous transactions between plaintiff and defendant, and no subsequent agreement as to the correctness of the account.  

 

36.  . A cause of action for an “account stated” must allege four elements: (a) transactions of a monetary character involving the parties to the action; (b) the existence of accounts embodying such monetary transactions; (c) an agreement by the parties to such transactions that all items of such accounts are true and that the balance is correct; and (d) a promise to pay such balance. McHugh v. Olsen, 189 Ill.App.3d 508, 514, 545 N.E.2d 379 (1st Dist. 1989); Canadian Ace Brewing Co. v. Swiftsure Beer Serv. Co., 17 Ill. App.2d 54, 149 N.E. 2d 447 (1st Dist. 1958); O’Neill v. Reamon, 335 Ill. App. 327, 81 N.E.2d 749 (2nd Dist. 1948).

 

37.  Plaintiff fails to establish any of the elements required on an account stated: (a) there have been no transactions between the parties involved in this action; (b) the only alleged accounts are based on inadmissable hearsay; (c) no agreement has been reached regarding the amounts claimed; and (d) there has been no promise to pay such balance. Therefore, the complaint is thus deficient at law and should be dismissed.

 

38.  “An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance." McHugh v. Olsen, supra; LaGrange Metal Products v. Pettibone Mulliken Corp., 106 Ill. App.3d 1046, 1053, 436 N.E.2d 645, 651 (1st Dist. 1983) (“The meeting of the parties’ minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto”)

 

 

39.  Moreover, the mere sending of a demand cannot create liability based on the defendant’s silence. Such an allegation is insufficient to establish that the defendant agreed the claimed balance was correct, particularly where there is no competent evidence of any original obligation. Motive Parts Co. Of America v. Robinson, 53 Ill.App.3d 935, 941 (1st Dist. 1977) (“mere presentation of a claim, although not objected to, cannot of itself, create liability”); Toth v. Mansell, 207 Ill.App.3d 665, 670-673(1st Dist. 1990)(held plaintiff cannot establish an account stated based on invoices, monthly statements or ledgers, when the amount claimed due was not liquidated, plaintiff added charges to each successive billing statement, and there was no proof that defendant agreed the amount claimed due was correct); Drayer Medical Clinic v. Corral, 227 Ill.App.3d 221, 226 (2nd Dist. 1992)(“An account stated cannot be made the instrument to create an original liability; it merely determines the amount of the debt where a liability exists . . . . an account stated is merely a form of proving damages for the breach of a promise to pay on a contract). Since there is no evidence of a contract in the first place, plaintiff’s claim must fail.

 

40.  Furthermore;

A.        “Although complaints do not need to contain evidence, a complaint cannot be merely conclusory but must allege facts sufficient to bring a claim within a legally recognized cause of action.”         

Redelmann v. Claire Sprayway, Inc., 375 Ill. App. 3d 912, 874 N.E.2d 230, 239 (1st Dist. 2007).

 

B.        Accordingly, although complaints do not need to contain evidence (Chandler v. Illinois Central R.R. Co., 207 Ill.2d 331, 348, 278 Ill.Dec. 340, 798 N.E.2d 724 (2003)), a complaint cannot be merely conclusory (Anderson v. Vanden Dorpel, 172 Ill.2d 399, 408, 217 Ill.Dec. 720, 667 N.E.2d 1296 (1996)) but must allege facts sufficient to bring a claim within a legally recognized cause of action. (Marshall, 222 Ill.2d at 429-30, 305 Ill.Dec. 897, 856 N.E.2d 1048, citing Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997)).

 

41.  Additionally, plaintiffs must plead facts in support of each element of each cause of action asserted.  Rodriguez v. Illinois Prisoner Review Bd., 376 Ill.App.3d 429, 876 N.E.2d 659, 664 (5th Dist. 2007)

In other words, a complaint is insufficient if it merely recites the elements of a cause of action, instead of setting out specific facts of the case that establish that each of the elements is met. 

 

42.  If the Plaintiff alleges that an individual credit card transaction forms the basis for the existence of a contract, then the plaintiff must either attach a copy of any documents that it alleges forms the basis for the contract, or allege sufficient facts to establish the existence of a valid and enforceable oral agreement.  Indeed, Velocity Investments cites Portfolio Acquisitions with approval for the proposition that a credit card issuer’s standard terms and conditions cannot generally provide the foundation for a credit card lawsuit.  Velocity Investments, 397 Ill. App. 3d 296, 922 N.E.2d at 541, citing Portfolio Acquisitions, 391 Ill.App.3d 642, 651, 909 N.E.2d 876.

 

43.  For the foregoing reasons, the complaint fails to state a cause of action for account stated.  The complaint is therefore deficient at law and should be dismissed with prejudice.

 

44.  Defendant requests this court to Move for Dismissal with prejudice of all Complaints for failure to comply with Section 2-606 of the Illinois Code of Civil Procedure.

45.  Defendant claims Accord and Satisfaction as Defendant alleges that the alleged original creditor

accepted payment from a third party for the alleged debt, or a portion of the allege debt, or that the alleged original creditor received other compensation in the form of monies or credits from the Plaintiff.

 

46.  Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged original creditor for the purported debt, for which Plaintiff failed to reference an original account number in their Complaint, nor to cite any value or consideration paid for the specific alleged account of the Defendant, My Name.

 

47.  Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome.  Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

 

48.  The Plaintiff has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the Plaintiff to collect the debt on behalf of the original creditor.

 

49.  Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

 

50.  Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

 

Plaintiff’s Complaint Is/May Be Time-Barred Pursuant To The Statute Of Limitations

 

51.  Plaintiff’s Complaint is/may be time-barred Pursuant to the Statute Of Limitations for either a breach of a written contract or for an alleged account stated account.

A.        “The test for whether a contract is written under the statute of limitations in Illinois is not    whether the contract meets the requirements of the Statute of Frauds, but whether all essential terms of the contract, including the identity of the parties, are in writing and can be ascertained from the written instrument itself.” Brown v. Goodman, supra, 147 Ill. App. 3d at 940-41 (emphasis added).

B.        If any essential element of the contract is omitted from the writing, “‘then the contract must be treated as oral for purposes of the statute of limitations.’” Armstrong v. Guigler, 174 Ill. 2d 281, 288, 673 N.E.2d 290, 295 (1996); accord, Toth v. Mansell, 207 Ill. App. 3d 665, 669, 566 N.E.2d 730, 733 (1st Dist. 1990); Schmidt v. Niedert, 45 Ill. App. 3d 9, 13, 358 N.E.2d 1305 (1st Dist. 1976).

 

C.        “Illinois courts give a strict interpretation to the meaning of a written contract within the statute of limitations. For statute of limitation purposes, a contract is considered to be written if all the essential terms of the contract are in writing and are ascertainable from the instrument itself.” Brown, 147 Ill. App. 3d at 939. If the agreement necessitates resort to parol testimony to make it complete, the law is that in applying the statute of limitations, it must be treated as an oral contract. Toth, 207 Ill. App. 3d at 671.

 

D.        “The law is clear in Illinois that to constitute a written contract under the statute of limitations, the written instrument itself must completely identify the parties to the contract.” Brown, 147 Ill. App. 3d at 940 (emphasis added); accord, Railway Passenger & Freight Conductors’ Mutual Aid & Benefit Association v. Loomis, 142 Ill. 560, 32 N.E. 424 (1892); Munsterman, 106 Ill. App. 3d at 238-39; Pratl v. Hawthorn-Mellody Farms Dairy, Inc., 53 Ill. App. 3d 344, 347, 368 N.E.2d 767, 770 (1st Dist. 1977); Matzer v. Florsheim Shoe Co., 132 Ill. App. 2d 470, 472, 270 N.E.2d 75 (1st Dist. 1971); Wielander v. Henich, 64 Ill. App. 2d 228, 231-32, 211 N.E.2d 775, 776 (1st Dist. 1965).

 

E.         “The issue is not whether the identity of [the parties] can be readily ascertainable from subsequent writings, the issue is whether the identity of the parties can be readily ascertained” from the alleged written contract “so as to avoid the resort to parol evidence.” Brown, 147 Ill. App. 3d at 940.

 

F.         If testimony is necessary to establish any of these elements, the contract is treated as oral, and subject to the five-year statute. Wielander v. Henich, 64 Ill.App.2d 228, 231, 211 N.E.2d 775, 776 (1st Dist. 1965); Armstrong, 174 Ill. 2d at 288. “In the parol evidence cases, the dispositive question is whether evidence of oral representation is necessary to establish the existence of a written contract. If such evidence is required, then the contract is treated as oral for purposes of the statute of limitations. In other words, where a party is claiming a breach of written contract, but the existence of that contract or one of its essential terms must be proven by parol evidence, the contract is deemed oral and the five-year statute of limitations applies.” Id.

 

G.        A credit card agreement that is subject to change upon notice does not contain all essential terms. Even if the debtor signed a written application which set forth all material terms at the time of the application, the “change by notice” provision – whether expressly included in the contract or implied therein by statute – makes it impossible to determine from mere examination of the document that those terms are still in effect.  Either the creditor must rely on the fact that a current version of the agreement was sent to the debtor, or establish that no change notices were mailed.  In either case, parol testimony is essential, and there is no document which conclusively establishes the terms of the agreement.

 

H.        In Classified Ventures, Inc. v. Wrenchead, Inc., 06 C 2373, 2006 U.S. Dist. LEXIS 77359 (N.D.Ill., October 11, 2006) (Darrah, J.), the court held that where a contract went through several revisions, the need to use parol evidence to show which of the several versions was in effect made the contract not one wholly in writing. The same logic applies to a credit card agreement that can be changed by notice without a signature.

 

I.                   If nothing amounting to a contract wholly in writing is attached to the complaint pursuant to section 2-606 of the Code of Civil Procedure, 735 ILCS 5/2-606, or proven to exist by the evidence at trial, the court must presume that the contract is one not wholly in writing. Barnes v. Peoples Gas Light & Coke Co., 103 Ill.App.2d 425, 428, 243 N.E.2d 855 (1st Dist.1968) (“The complaint does not purport to be based on a written instrument such as a tariff. If it were, then, of course, the relevant portions of that instrument would have to be recited in, or attached to, the pleading, and, as indicated, they were not.”); O.K. Electric Co. v. Fernandes, 111 Ill.App.3d 466, 444 N.E.2d 264, 266-67 (2nd Dist. 1982) (“Unless the complaint purported to be based upon a written instrument, it is assumed to be an oral contract.”).

 

52.  The Illinois Collection Agency Act was amended to include debt buyers as “collection agencies” effective 1/1/08.  The amendment may also make applicable the special assignment requirements of 8b of the Collection Agency Act, 225 ILCS 425/8b. Section 8b provides:  Sec. 8b. An account may be assigned to a collection agency for collection with title passing to the collection agency to enable collection of the account in the agency's name as assignee for the creditor provided:

(a) The assignment is manifested by a written agreement, separate from and in addition to any document intended for the purpose of listing a debt with a collection agency. The document manifesting the assignment shall specifically state and include:

(i)  the effective date of the assignment; and

(ii) the consideration for the assignment.

(b) The consideration for the assignment may be paid or given either before or after the effective date of the assignment. The consideration may be contingent upon the settlement or outcome of litigation and if the claim being assigned has been listed with the collection agency as an account for collection, the consideration for assignment may be the same as the fee for collection.

(c) All assignments shall be voluntary and properly executed and acknowledged by the corporate authority or individual transferring title to the collection agency before any action can be taken in the name of the collection agency.

(d) No assignment shall be required by any agreement to list a debt with a collection agency as an account for collection.

(e) No litigation shall commence in the name of the licensee as plaintiff unless: (i) there is an assignment of the account that satisfies the requirements of this Section and (ii) the licensee is represented by a licensed attorney at law.

(f) If a collection agency takes assignments of accounts from 2 or more creditors against the same debtor and commences litigation against that debtor in a single action, in the name of the collection agency, then (i) the complaint must be stated in separate counts for each assignment and (ii) the debtor has an absolute right to have any count severed from the rest of the action.

53.  Failure to establish ownership of the debt deprives the debt buyer of standing to sue.

 

PLAINTIFF’S AFFIDAVIT IS INCOMPETENT AND INADMISSIBLE

 

54.  Since the only statement making reference to any time frame appropriated to the Defendants alleged account is contained in the affidavit of Eileen M. Mahon and that affidavit consists of nothing but Hearsay and should properly be Stricken from the Complaint by our Motion To Strike Plaintiffs Affidavit, then there remains no other meaningful and accurate representation of the Statute Of Limitations for this alleged account and therefore this Complaint should be Dismissed with as a matter of law and supported in Paragraph Line Numbers 54 through 65.

 

55.  Finally, the affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons.

 

56.  Plaintiff’s complaint relies exclusively on an affidavit executed by employee Eileen M. Mahon, referred to as the “Account Administrator” of Debt Buyer, Resurgence Capital, LLC.  The affidavit claims that as such, “she is authorized to make statements and representations herein.” Plaintiffs EXHIBIT “B”.  However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish her knowledge regarding the manner or methods of the plaintiff’s business dealings.  It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based.  The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant.  Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

 

57.  Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.”  Outboard Marine Corp. v. Liberty Mutual Ins. Co., supra.

  

58.  The affiant must have personal knowledge of the facts supporting the amount of the claim, i.e., how the original creditor’s business records were created and maintained, the entire account history, and how the claimed balance was calculated as to principal and interest.  Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007).

 

59.  Plaintiff’s affidavit does not attach or suggest that plaintiff possess the business records of its assignor, nor could plaintiff’s employee competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor, if they did in fact exist.  Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa, supra;  Cole Taylor Bank v. Corrigan,  230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd Dist. 1992); Champaign Nat’l Bank v. Babcock, 273 Ill. App.3d 292, 298,  652 N.E.2d 848 (4th Dist. 1995) (affidavit allowed where affiant was personally familiar with bank’s loan files, ledgers and records, and affidavit itemized payments made, interest charges, and principal balances from the date of inception); See also, In re Vee Vinhnee, 2005 WL 3609376 (BAP 9th Cir. 2005) (normal evidentiary foundation must be established for admission of business computer records, including familiarity with the way records are maintained, recognizing that computer records are not necessarily or automatically accurate);  C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 139 (So. Dist. 2004) (records submitted by assignee of credit card company were inadmissible as business records because custodian of assignee served only as conduit in the flow of records, and was unable to attest to the identity and mode of preparation of records originally created by credit card company);  Citibank v. Martin, 807 N.Y.S.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable, even if the defendant defaults,” and must show principal balances and additional charges from the date of inception).  Palisades Collection, LLC v. Gonzalez, surpa.

 

60.  Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent.  Instead the actual records must be introduced after a proper foundation is provided.  Apa, supra;  Pell v. Victor J. Andrew High School, 123 Ill. App.3d 423, 462 N.E.2d 858, 866 (1st Dist. 2984) (letter from corporation A to corporation B is hearsay, and is thereby inadmissible as a business record of  corporation B, stating that “just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business”);  Benford v. Chicago Transit Authority, 9 Ill. App.3d 875, 877-878 (1st Dist. 1973); Cole Taylor Bank v. Corrigan, supra;  Champaign Nat’l Bank v. Babcock, supra; C & W Asset Acquisition, supra; LLC v. Somogyl, supra.  It is the business records that constitute the evidence, not the testimony of the witness referring to them.  See In re A.B., 308 Ill.App.3d 227, 719, 719 N.E.2d 348 (2nd Dist. 1999).

 

61.  The court must disregard unsupported, conclusory statements in an affidavit.  Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d 961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a court will disregard all conclusions in an affidavit).

 

62.  Plaintiff, through their Affiant, Eileen M. Mahon, therefore, cannot testify as to the business records of the 3 times removed from the alleged original creditor.

 

63.  Because the sole basis of plaintiff’s claim, including the balance allegedly due and any interest rate accruing is Hearsay, it is an inadmissible affidavit, the affidavit should be stricken in its entirety. Also, in the Plaintiff’s alleged “Affidavit Of Claim” purportedly written by Affiant, Eileen M. Mahon, reference is made to the previously listed multiple alleged assignments labeled “Bills Of Sale”, marked Defendants EXHIBITS “B”, “C” and “D” and inclusive in each and every one of these alleged assignments, they allude to various undefined verbiage, which Never even remotely identifies the Defendant, My Name.

 

64.  “Business records” must be prepared in the regular course of business, where there is little or no motive to falsify. Documents prepared after the event for litigation purposes are not admissible as business records. People v. Smith, 141 Ill. 2d 40, 72, 565 N.E.2d 900, 914 (1990)

 

65.  People ex rel. Schacht v. Main Ins. Co., 114 Ill. App. 3d 334, 344, 448 N.E.2d 950, 957 (1st Dist. 1983) (“since the probability of trustworthiness is the rationale for the business records rule, records prepared for litigation are not normally admissible even if it is a part of the regular course of business to make such records”). No document prepared by a debt buyer regarding a charged-off account as a predicate for suing the consumer should be a business record.

 

66.  Therefore, plaintiff has not established a claim for either breach of contract or for an account stated or as a written contract, and the complaint should thereby be dismissed with prejudice.

 

67.  Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT

McHENRY COUNTY

 

RESURGENCE CAPITAL, LLC

                        Plaintiff,

v.                                                                                                                     Case No.:  14 AR XXX

 

My Name

                        Defendant.

 

VERIFIED SWORN RESPONSE BY CERTIFICATION

WHEREFORE, the Defendant, My Name, prays that this Honorable Court take Nothing of Plaintiff's Complaint and Strike Plaintiff’s Hearsay “Affidavit Of Claim” in its entirety and assignments/bills of sale attached by virtue and will deny the Plaintiff the relief requested and dismiss the Complaint.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-109], the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he or she verily believes the same to be true.

 

_____________________________________________             __________________________________________

(Signature)                                                                             (Date)

 

____________________________________________

(Name Printed)

 

 

Link to comment
Share on other sites

 

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT

McHENRY COUNTY

 

RESURGENCE CAPITAL, LLC

                        Plaintiff,

v.                                                                                                                     Case No.:  14 AR XXX

 

Me

                        Defendant.

 

VERIFIED SWORN NOTICE TO COURT EXPLAINING LATE FILING DATE

 

1.      As a matter of courtesy to this Honorable Court and Judge On Bench personally, I would like to make written notice of the legitimate reasoning that the documents were unable to get filed on February 17th as so ordered by His Honor and the Court.

 

2.      On Tuesday, February 16th, the braking system on my only vehicle, a 2001 Chevy 3500 Cargo Van, suffered a complete and total system failure, requiring the diagnosis and repair and replacement of not only the brake pads, but also the brake rotors also known as the discs, in addition to the calipers and the wheel cylinders.  The receipt is attached as an Exhibit for proof of truth.

 

3.      As a matter of attempting to resolve the situation, I, My Name firstly attempted to see if the documents and motions could be filed electronically, but it seems as if one would have to be a registered Attorney to have access to that system.

 

4.      Therefore, I, My Name contacted the Resurgence Legal Group, PC on Wednesday, February 17th and requested to speak with any Attorney that could assist me in coming to an agreeable solution.

 

5.      I, My Name was eventually put in contact with a person who identified herself as Hayley Schechter, whom is believed to be one of the Attorney’s on staff at the Resurgence Law Group.

 

6.      Through several phone tag voicemails, Ms.Haley Schechter advised me that I should just show up on the scheduled court date on February 24th and file the necessary documents at that time, since that particular court hearing was set up only as a Status Call and that nothing would likely be getting finalized at that time anyways and that I could hand over the documents directly to their scheduled Attorney, Mr. Plaintiffs Attorney.  All was agreed to upon belief that the statements were made in good faith and presented as truthful by Ms. Haley Schechter, as an Officer Of The Court, and were relied on to have no punitive consequences for failing to meet the Ordered Filing Due Date by His Honor, Judge On Bench.

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT

McHENRY COUNTY

 

RESURGENCE CAPITAL, LLC

                        Plaintiff,

v.                                                                                                                     Case No.:  14 AR XXX

 

Me

                        Defendant.

 

VERIFIED SWORN NOTICE BY CERTIFICATION

 

WHEREFORE, the Defendant, Me, prays that this Honorable Court take Nothing of Plaintiff's Complaint and Strike Plaintiff’s Hearsay “Affidavit Of Claim” in its entirety and assignments/bills of sale attached by virtue and will deny the Plaintiff the relief requested and dismiss the Complaint.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-109], the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he or she verily believes the same to be true.

 

_____________________________________________             __________________________________________

(Signature)                                                                             (Date)

 

____________________________________________

(Name Printed)

 

 

Link to comment
Share on other sites

I will scan those documents tomorrow, but the original complaint is sparse.

Thank you @BV80

In the meantime, I do have the Plaintiffs Response to my Motion To Dismiss.  He did not specifically address by motion title, my Motion To Strike Plaintiffs Affidavit Of Claim.  This is what I need to respond to next.

The attached Affidavit was handed to me personally at the court when I filed my motions, but not included in the mailed packet of their Response To My Motion To Dismiss, and currently is not part of the court record.

FBPS

Resurgence Response To My Motion To Dismiss Complaint.pdf

Link to comment
Share on other sites

13 hours ago, Fighting Back Pro Se said:

Now, I have 21 Days from that point to do my response to the Plaintiffs response.   I have not seen much information online regarding that situation, when the Debt Buyer actually pursues it to this stage.

How do I respond?

I think the title would be REPLY TO RESPONSE TO MOTION TO DISMISS

@Fighting Back Pro Se in the latest doc you posted one of the things they're saying is credit card is unwritten contract so 2-606 doesn't apply but you covered that in your other papers with Razor vs. Antaal. Lots of interesting things there but note how the defendant initially challenged standing but didn't when the Plaintiff amended their complaint so the court said standing wasn't an issue when they attempted to appeal. What exactly did they attach to show chain of title? That's required under 2-606. Also, that case covers that every version of the terms that applies is to be provided.

This isn't small claims, right?

 

 

  • Like 1
Link to comment
Share on other sites

No, it is not in Small Claims Court.

It is a Mandatory Arbitration case between $20,000  and $50,000 with the actual claim for around $34,464.78

They sent me an alleged copy of a credit card statement from Chase Bank.

In Person, upon leaving court after I filed my Motion To Strike Plaintiffs Affidavit Of Claim and Motion To Dismiss Claim, the Plaintiff Attorney handed me an Affidavit from Assignee/Assignor Debt Buyer #3 alleging that this account was sold to  Assignee Debt Buyer #4.

I understand after I filed my Motion, that using the Unifund V Shah that the 2nd case on remand decided differences between a Debt Buyer and Debt Collector in Unifund V Shah II, so I have to read more thoroughly about that in regards to the Illinois Collection Agency Act (ICAA) (225 ILCS 425/8b (West 2008)

What are you suggesting regarding the case of:  Razor vs. Antaal  ?  Is it that the Defendant in that case did not pursue the Standing issue after it initially was responded to?

 

I have read the Chase FDPA robosigning case, but am unsure if it applies, as i need to review your link again, which I will tonight.

 

I will upload the scanned versions of their 4 separate Assignments and the original Complaint and the original Affidavit of the clerk/legal assistant who works for Resurgence tonight.

Basically, None of the Assignments provided ANY information indicating myself or any individual account number.

The original Affidavit attached to the Complaint only referenced the last 4 digits of an alleged credit card account, allegedly belonging to me.

But, as I stated above in this post, the Plaintiff Attorney did personally present me with an Affidavit from Assignee #3 alleging transfer of my alleged account and balance and all rights her under as Assignee Of The Debt.

Any other questions???

 

And.....  Thank You Very Much!!!

FBPS

Link to comment
Share on other sites

Reading up on Mandatory Arbitration. I see if you don't agree with their decision, for your case amount (over $30k), it's a $500 fee to go to trial. This would be one of those things that would probably make me opt for JAMS and pay $250 or less if it was in the cardmember agreement. There isn't a lot on the boards about court ran arbitration. If you can post about your experiences (pluses and minuses) there, I'm sure it would be helpful.

When preparing your motions, did you use Dan Edelman's Debt Collection Litigation works as a reference to help? I see he quit updating those in late 2012 and some of these decisions like Shah II didn't come along until later so it's easy to get surprised when a Plaintiff pulls something like that. I hope he updates his papers, they're pretty useful otherwise.

10 hours ago, Fighting Back Pro Se said:

What are you suggesting regarding the case of:  Razor vs. Antaal  ?  Is it that the Defendant in that case did not pursue the Standing issue after it initially was responded to?

That and even when they try to get out of 2-606 with the unwritten agreement excuse they still have to recite or attach all cardmember agreements in effect over the life of the account. Yeah, every card use is a new contract like Garber states but it's based on the cardmember agreement active at the time of the charge. I'm sure this will get interesting as Chase unloaded this account years ago and it's been sold three times now for a junk debt buyer Chase never dealt with to gather this detail. The original bill of sale Chase had with JDB#1 saying no-guarantees, as-is along with the detail in that CFPB order should give an idea of what these guys have.

Link to comment
Share on other sites

Real Quickly, because I am staying at an inexpensive Motel with my 13 year old Son for his school Spring Break.....

1)  I know nothing about the JAMS you mentioned.

2)  Dan Edelman and other associates still publish more current version as well as a firm by the name of Henshaw.   First, they get published for membership into an organization called IICLE, Illinois Institute For Continuing Legal Education.   You CAN obtain a FREE 30 Day Membership and go crazy copying EVERYTHING published that is current before the 30 day free trial expires. I know that for sure when I did that regarding construction contract law and lawsuits, since I was a contractor.   The stuff online is the older stuff, yet still useful.

I did not get to the library in town prior to them closing earlier than I am used to.

I have the Original Complaint Filed by Resurgence,

I have the Affidavit from the girl at Resurgence.

I have the Redacted Assignment from Chase to Thunderbird, 

I have the Redacted Assignment from Thunderbird to Pilot,

I have the Redacted Assignment from Pilot to Resurgence.

Also, although it was not in the package mailed to me with the Response from Resurgence to m Motions o Strike And Dismiss, I have a New Affidavit from a person at Pilot alleging

Assignment  from Pilot to Resurgence as Ownership of Account versus Collector of Debt on Account.

 

I already posted the Response To my Motions To Strike Affidavit Of Claim And my Motion To Dismiss Complaint that Resurgence filed 5 days late.

 

Thank you very much once again.

 

FBPS

Link to comment
Share on other sites

Here you go CCRP626
 
The remaining documents necessary as required for forum advice and review..........
 
Resurgence Original Complaint, Assignments And Resurgence Employee Affidavit Of Debt

And
Resurgence Affidavit Of Debt Ownership Assignment From Pilot To Resurgence

 

FBPS

Forum, Resurgence Original Complaint, Assignments And Resurgence Employee Affidavit Of Debt.pdf

Forum, Resurgence Affidavit Of Debt Ownership Assignment From Pilot To Resurgence.pdf

Link to comment
Share on other sites

@Fighting Back Pro Se I think it would be a good idea for you to send all documents the Plaintiff has sent you and filed with the court to the CFPB Assistant Director of Enforcement address found on page 41 of 49 of the consent order. You can also file a complaint on their site. Name all the companies involved. Illinois Atty General's office would be another.

Looking at your latest two docs-

Looks like a dismiss is again in order for that complaint so they can attempt to amend it. The terms are not referenced or attached as covered in Razor vs. Antaal.

Exhibit A the Bill of Sale from Chase is not notarized. You can't even tell the name of the "Team Leader". Seems like you'd need the original. Best Evidence Rule. Illinois Rules of Evidence 1001-1003. How does this meet the business records exception to the hearsay rule 803 (6), 902 (11)? None of the highlighted references in there are provided and your alleged account is never identified. It's all As-Is, no warranty expressed or implied. This is where you bring the CFPB order into your reply.

Thunderbolt and Pilot are more no warranty documents. Nothing identified. One says page 22 out of 33. Where are the rest?

Resurgence affidavit trying to cover documents that weren't theirs and not attaching anything claimed such as where is this account issuance by Chase documentation among other detail? Rule 191 standard along with business records exception.

Doc 2 Hollon affidavit is more of the same. It's within her personal knowledge that you owed Chase however much?

Link to comment
Share on other sites

CCRP626

Thank you very much for your time and efforts.  It is really appreciated.

I will also need to carefully scrutinize the Plaintiffs Response To My Motion To Dismiss. I will read through his Response Paperwork thoroughly later today, as I am supposed to be taking my Son on some entertainment stuff to do in the Wisconsin Dells today still.

In there, upon recalling a few things, He alleged that their Resurgence Employee Affidavit had merit because it pointed out in particularity the alleged Last 4 Digits of my supposed Account Number from the Chase Bank Credit Card.  I personally do not believe that is accurate, but does he have any leg to stand on?

I intend on once again reiterating my Motion To Strike The Plaintiffs Affidavit Of Claim based on Hearsay,  and also to restate my original Motion To Dismiss Claim.

Along with that, I believe that the Affidavit from Michelle Hollon, Authorized  Representative Of Pilot Receivables attesting to transferring ownership to Resurgence Capital does not have any Legal Merit and should be considered Hearsay also.  Am I correct in this presumption, or should the actual Transfer Of Assignment Of Ownership Of Debt be attacked instead?

Do you have any direction or input as to precisely how I should attack the validity of Her Affidavit, (Michelle Hollon, Pilot To Resurgence Affidavit)?

Do I just restate all of my previous Motions that dealt with Striking The Affidavit Of Claim, or similarly just allude to them by reference?

If you have ready access to another forum Poster who had to deal with the Response By Plaintiff which addresses a similar situation, I would appreciate and follow and read any Link you know of.

Also, I read this in another Post on this forum regarding Thunderbolt Holdings regarding a Poster Username of:

Quote:  ( Posted By FlyerFan, Flyerfan  To susan374, susan374 ) "Therefor, it is Conclusory, Hearsay and will not holdup without Affiant to testify.  The "Bill Of Sale" doesn't mention your account specifically, right?  It shows something was purchased.  Worthless.  The Credit Card Statements are not Authenticated and will not be Admissible in Trial as long as you Object to it."  Unquote:

 

How does the Plaintiff go about Authenticating the Credit Card Statements?  Is this a correct strategy?  What verbiage or case citation do I need to look up to reference and Cite to be able to Challenge the lack of Authentication of the Credit Card Statement?

That is all I can think of off the top of my head for now.  Once again, our input and time and efforts are very much appreciated.  I am sure I will think of more after I scrutinize the Plaintiffs Response and his case citations referenced.

 

FBPS

 

P.S.  Is there ANYTHING else you need for me to upload that you feel would be pertinent?  I intentionally left out the Credit Card Statements, but if those are necessary, I will attach them also.

 

 

 

.

 

 

 

Link to comment
Share on other sites

I don't know IL rules, but here's some IL case law for you.

A motion to dismiss brought pursuant to section 2-615 attacks the legal sufficiency of the complaint. Vitro v. Mihelcic, 209 Ill.2d 76, 81, 282 Ill.Dec. 335, 806 N.E.2d 632 (2004). When ruling on such a motion, the court must accept as true all well-pleaded facts in the complaint, as well as any reasonable inferences that may arise from them. Doe v. Chicago Board of Education, 213 Ill.2d 19, 28, 289 Ill.Dec. 642, 820 N.E.2d 418 (2004). The merits of the case, at this point, are not yet considered. See Kilburg v. Mohiuddin, 2013 IL App (1st) 113408, ¶ 19, 371 Ill.Dec. 392, 990 N.E.2d 292. However, a court cannot accept as true mere conclusions unsupported by specific facts. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009). The court is to construe the complaint liberally and should not dismiss it unless it is clearly apparent from the pleadings that "no set of facts can be proved which would entitle * * * plaintiff to recover." Napleton v. Village of Hinsdale, 229 Ill.2d 296, 305, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008).

 A motion to dismiss under section 2-615 tests only the legal sufficiency of the complaint based on facial defects. Tuite v. Corbitt, 224 Ill.2d 490, 509, 310 Ill.Dec. 303, 866 N.E.2d 114 (2006).

The sufficiency of the evidence is not germane to the determination of whether a count in a complaint was properly dismissed on the pleadings.  Heastie v. Roberts, 226 III. 2d 515, 877 N.E.2d 1064 (2007).

In order to get a dismissal at this point, you have to show how the complaint is deficient.  The merits of the lawsuit and sufficiency of the evidence are not an issue right now.

 

Link to comment
Share on other sites

Does a 4 Year 1 Statute Of Limitations Apply instead of the5 year SOL?

Only application of the four-year Uniform Commercial Code statute of limitations for the sale

of goods would have done McCray any good.  Pg. 18 or 23

 

http://edcombs.com/wp-content/uploads/2013/05/Amicus-Brief-final-8-19-08_Appeal_5.pdf

 

Judge Coar discussed at length Arrow’s contention, repeated by Portfolio

Acquisitions and its amici in this case (NARCA/DBA Brief pp. 5-8), that Harris Trust &

Savings Bank v. McCray, 21 Ill.App.3d 605, 316 N.E.2d 209 (1st Dist. 1974), supports the

somewhat remarkable proposition that “all credit card agreements are considered written

contracts” regardless of what documentation if any exists in a particular case.

This is not a correct reading of Harris Trust. In that case, the Illinois

court of appeals found that a credit card agreement constituted a contract for

the loan of money, rather than a contract for the sale of goods. An action based

on a contract for the loan of money has a statutory period of 10 years if it is

found to be "written," whereas an action based on a contract for the sale of

goods has a statutory period of four years under Illinois law. The court's analysis

centered on whether a credit card agreement was a loan contract or a sales

contract, not whether the agreement was written or unwritten. Thus, the

reasoning and analysis in Harris Trust does not apply to the present case, where

The transaction at issue in McCray had occurred between four and five years

prior to the filing of suit. The debtor did not argue for the application of the five-year statute

because Harris Bank would have prevailed whether the five-year or the ten-year statute applied.

Only application of the four-year Uniform Commercial Code statute of limitations for the sale

of goods would have done McCray any good.

Recognizing the limited issue before it, the McCray court stated: “[t]he only

question presented in this appeal is whether a credit card issuer may commence an action based

upon the holder’s failure to pay for the purchase of goods more than 4 years after the issuer’s

cause of action accrued.” 21 Ill.App.3d at 606. To the extent it referred to the ten-year statute,

the McCray court expressly noted the signed documents that existed in that case, including

charge slips which expressly incorporated the account agreement.

Much has changed in credit card documentation in the 40 years since the

McCray transactions occurred.

 

Pg. 23

the four-year Uniform Commercial Code statute of limitations for the sale of goods

Link to comment
Share on other sites

@Fighting Back Pro Se

I'm thinking the 4-year SOL for the sale of goods would not apply.   The reason is because a credit card encompasses more than the sale of goods.   You have to look at the definition of "goods" under the IL UCC.   Credit card agreements allow for cash advances and payments for other bills.   Those would not fit the definition of "goods".

Link to comment
Share on other sites

On 3/31/2016 at 1:24 PM, Fighting Back Pro Se said:

Real Quickly, because I am staying at an inexpensive Motel with my 13 year old Son for his school Spring Break.....

1)  I know nothing about the JAMS you mentioned.

2)  Dan Edelman and other associates still publish more current version as well as a firm by the name of Henshaw.   First, they get published for membership into an organization called IICLE, Illinois Institute For Continuing Legal Education.   You CAN obtain a FREE 30 Day Membership and go crazy copying EVERYTHING published that is current before the 30 day free trial expires. I know that for sure when I did that regarding construction contract law and lawsuits, since I was a contractor.   The stuff online is the older stuff, yet still useful.

I did not get to the library in town prior to them closing earlier than I am used to.

I have the Original Complaint Filed by Resurgence,

I have the Affidavit from the girl at Resurgence.

I have the Redacted Assignment from Chase to Thunderbird, 

I have the Redacted Assignment from Thunderbird to Pilot,

I have the Redacted Assignment from Pilot to Resurgence.

Also, although it was not in the package mailed to me with the Response from Resurgence to m Motions o Strike And Dismiss, I have a New Affidavit from a person at Pilot alleging

Assignment  from Pilot to Resurgence as Ownership of Account versus Collector of Debt on Account.

 

I already posted the Response To my Motions To Strike Affidavit Of Claim And my Motion To Dismiss Complaint that Resurgence filed 5 days late.

 

Thank you very much once again.

 

FBPS

Someone may correct me if I am wrong but I thought I remember reading they have to prove that chain of assignments FULLY. IMO they will never be able to do that....

Can you imagine them successfully having every person in EACH and EVERY assignment at trial to testify? NO LOL....

Link to comment
Share on other sites

5 hours ago, Fighting Back Pro Se said:

Does a 4 Year 1 Statute Of Limitations Apply instead of the5 year SOL?

Not for a regular credit card but would for a single store card usable only at that merchant.

Quote

I will also need to carefully scrutinize the Plaintiffs Response To My Motion To Dismiss. I will read through his Response Paperwork thoroughly later today

You can reply with another motion to dismiss covering your original areas and anything they attempted to use to defeat them in their response. Standing as well as failure to correct the pleading deficiencies in their complaint for unwritten contract (one more time- Razor vs. Antaal).

Quote

Do you have any direction or input as to precisely how I should attack the validity of Her Affidavit, (Michelle Hollon, Pilot To Resurgence Affidavit)?

Look at my previous post for all of them. Each JDB can only cover its own records by meeting the business records exception to the hearsay rule. They cannot meet this for someone else's records. Hollon says it's within her personal knowledge that you owe Chase yet she's never shown she's been a records custodian at Chase. Also, records must be attached to the affidavit, reading off a computer screen is not sufficient.

 

Quote

How does the Plaintiff go about Authenticating the Credit Card Statements?  Is this a correct strategy?  What verbiage or case citation do I need to look up to reference and Cite to be able to Challenge the lack of Authentication of the Credit Card Statement?

They would need Chase to do that. Again, this is the company in the consent order which has plenty to assist you. Chase hasn't been shown to provide anything yet as addressed above. Their bill of sale isn't even notarized.

To meet the business records exception when introducing records this must be followed- Illinois Rules of Evidence 803 (6) and 902 (11).

One thing to keep an eye on is Supreme Court Rule 222. If they don't indicate any additional records or name any witnesses to appear at trial, they will not be able to introduce them

 

 

 

5 hours ago, BV80 said:

In order to get a dismissal at this point, you have to show how the complaint is deficient.  The merits of the lawsuit and sufficiency of the evidence are not an issue right now.

@BV80 Suing on an unwritten contract without stating the terms in the complaint or attaching them is deficient.

  • Like 1
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.