Looking for someone familiar with Louisiana open account law

[Terrevue]

I have compiled the attached Memorandum in Opposition to MSJ I received from a debt collector and was looking for anyone who could give it a quick read and let me know if I am on the right track.  I think I've covered all the bases but then I could just be another delusional pro se and could really use a second set of eyes.  Any assistance would be appreciated.

Thanks!!Redacted - Memorandum in Opp to MSJ - 20181109.pdf

[TowerRat]

Impressive.

[BV80]

22 hours ago, Terrevue said:

I have compiled the attached Memorandum in Opposition to MSJ I received from a debt collector and was looking for anyone who could give it a quick read and let me know if I am on the right track.  I think I've covered all the bases but then I could just be another delusional pro se and could really use a second set of eyes.  Any assistance would be appreciated.

Thanks!!Redacted - Memorandum in Opp to MSJ - 20181109.pdf

I cannot comment on your statements regarding the plaintiff’s affidavit and authentication of documents due to the fact that you did not provide a copy of the affidavit for us to read. 

 However, I can point out a mistake that you had made  regarding your section on the Securities and Exchange Act.  You stated:

a. In U.S. Code, Title 17, Chapter II, Part 240, Section 240.16a-1 defines the reporting requirements...

You incorrectly cited the statute.  Your citation implies the U.S. Code of Laws when in actuality, the title and section you cited is the Code of Federal Regulations.  Here is the correct citation.

17 CFR § 240.16a-1

 do you understand that regulation? It is possible that the plaintive could dismiss the lawsuit before the summary judgment hearing, but in the event that it does not, what would you do it the judge asks you about that law?   Do you understand it well enough to explain it to the judge? 

 Did you check out Form 3?   The person must include the title of securities he or she owns.   What is the officer doesn’t own any securities?  

Here is the definition of “officer” in 17 CFR § 240.16a-1(f):

(f) The term “officer” shall mean an issuer's president, principal financial officer, principal accounting officer (or, if there is no such accounting officer, the controller), any vice-president of the issuer in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the issuer.

Do you know for a fact that affiant performs “policy-making functions” for the issuer?

In regard to the statute of limitations, your argument is a good one provided they offered no credit card statements that show no charges or payments made by you within the SOL.

If they have nothing that shows the account is with the SOL, I would expand upon your argument providing caselaw as to how your court has ruled on allegations without supporting evidence. 

[Terrevue]

Thanks for taking the time to review and for the detailed response!

Thank you for the catch on my citation of the Federal Reg.  I wasn't sure how that should be done so I just walked down the Reg hierarchy in hopes that would be close.  I'll update to include your cite.

As for the Reg itself, I believe I have a pretty good grasp on it.  In its simplest form, it's a mechanism by which "insiders" and their ability manipulate stock prices through policies, communications and transactions can be made visible to the company's investors and the general public.   The key to using this Reg and approach here is to shed light on the use of the title "Officer".  They clearly chose that title for the affiant as an attempt to broadly scope her role.  However, in a publicly traded organization, that title has very specific connotations and as a result comes with a bevy of legal requirements.  Since in a MSJ the court's role is not to weight evidence but determine if there are true material facts in question.  The use of the specific title of "Officer" in a general manner for an organization in which that title is anything but general, speaks to intent and the overarching trustworthiness of the affidavit. 

I have reviewed Form 3 and from what I understand about the Reg, an insider doesn't have to own securities to be considered an insider.  Any individual in the role of officer, director, etc who has the policy making ability to affect the public's perception of the company's stock through policies and/or transactions is a person of interest to current and prospective investors.

Thanks for the comments on the SOL.  While there are statements attached, they are a part of Exhibit I and are not accompanied by an affidavit and, based on  Code of Civil Procedure articles 966 and 967, they are not admissible in a MSJ proceeding and should be stricken.  While the objection I raise in the Opp to MSJ should trigger the court to strike that Exhibit, I am also filing a Motion to Strike as well to ensure the bases are covered.  

Thank you again for taking the time to review and provide feedback.  This has been extremely helpful and intend to make a few updates based on your feedback.

 

Thanks!

 

[BV80]

23 minutes ago, Terrevue said:

As for the Reg itself, I believe I have a pretty good grasp on it.  In its simplest form, it's a mechanism by which "insiders" and their ability manipulate stock prices through policies, communications and transactions can be made visible to the company's investors and the general public.   The key to using this Reg and approach here is to shed light on the use of the title "Officer".  They clearly chose that title for the affiant as an attempt to broadly scope her role.  However, in a publicly traded organization, that title has very specific connotations and as a result comes with a bevy of legal requirements.  Since in a MSJ the court's role is not to weight evidence but determine if there are true material facts in question.  The use of the specific title of "Officer" in a general manner for an organization in which that title is anything but general, speaks to intent and the overarching trustworthiness of the affidavit. 

I have reviewed Form 3 and from what I understand about the Reg, an insider doesn't have to own securities to be considered an insider.  Any individual in the role of officer, director, etc who has the policy making ability to affect the public's perception of the company's stock through policies and/or transactions is a person of interest to current and prospective investors.

If the above were to come to an argument in court, the burden of proof would be on you.  Have you researched court rulings?

In regard to the affiant’s title, a loan officer would be an “officer”.  How would you prove she is trying to “broaden her scope” or that she is angaged in policy-making decisions?

Your understanding of the statute doesn’t matter to the court. The court court wants facts and proof.