Jackie1989

Arbitration, Staute of limitations or Standing

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16 hours ago, Brotherskeeper said:

@Jackie1989 

Did you post a copy of the Complaint? 

@Jackie1989 It's important that we know what the Complaint alleges in order to know the most effective way to fight this. It's why I asked about seeing a copy of the Complaint.

Remember, we can't see what you see. We have to rely on your descriptions if you haven't posted the entire document for us to look at. Your understanding of the importance of what's before you is growing. 

Not a criticism, but when was the last time you reread your entire thread? 

 

 

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On 4/26/2019 at 12:36 PM, Jackie1989 said:

Contract does have the word "(seal)" next to signature box. But , from what I am reading online, that may not be adequate.

Can you explain this a bit more?

Beneath where your faint signature appears, is the blue redacted part where your name is misspelled? If yes, is your signature misspelled as well? 

At that point in your business career, do you think you would have signed a contract right above where your name was misspelled without bringing it to the attention of the bank? 

How many times in that contract does your misspelled name appear? 

Does the correct spelling of your name appear anywhere in that contract? 

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1 hour ago, Brotherskeeper said:

Can you explain this a bit more?

Beneath where your faint signature appears, is the blue redacted part where your name is misspelled? If yes, is your signature misspelled as well? 

At that point in your business career, do you think you would have signed a contract right above where your name was misspelled without bringing it to the attention of the bank? 

How many times in that contract does your misspelled name appear? 

Does the correct spelling of your name appear anywhere in that contract? 

I read somewhere, its been awhile now, that having just the word "seal" may not be enough.

there is always the possibility that I may have signed something. I just can not make the signature out and from what I can see, it doesn't look like mine.

My last name is misspelled throughout contract, 3 places I think.

The correct spelling of last name does not appear anywhere on contract

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2 hours ago, Brotherskeeper said:

@Jackie1989 It's important that we know what the Complaint alleges in order to know the most effective way to fight this. It's why I asked about seeing a copy of the Complaint.

Remember, we can't see what you see. We have to rely on your descriptions if you haven't posted the entire document for us to look at. Your understanding of the importance of what's before you is growing. 

Not a criticism, but when was the last time you reread your entire thread? 

 

 

i have gone through thread a few times.

here is complaint.

Thanks as always and I am never offended!

complaint-mbc (1).pdf

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42 minutes ago, Jackie1989 said:

what is the cause of action?

Speaks of ''loan agreement'' sounds like a breach of contract cause of action. Also might investigate #7 attorneys fees. Although attorney's fees may be in the contract some states prohibit attorney's fees, and they are seeking said fees.

 

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5 hours ago, Jackie1989 said:

what is the cause of action?

cause of action
n. the basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the "elements" required by statute. Examples: to have a cause of action for breach of contract there must have been an offer of acceptance; for a tort (civil wrong) there must have been negligence or intentional wrongdoing and failure to perform; for libel there must have been an untruth published which is particularly harmful; and in all cases there must be a connection between the acts of the defendant and damages. In many lawsuits there are several causes of action stated separately, such as fraud, breach of contract, and debt, or negligence and intentional destruction of property.

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Okay, so, I am not sure if my objection is sound but, I need to get something in soon.

 My question is, do I need to provide an affidavit? If so, any help with forming that would be greatly appreciated.!!

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18 minutes ago, Jackie1989 said:

Okay, so, I am not sure if my objection is sound but, I need to get something in soon.

 My question is, do I need to provide an affidavit? If so, any help with forming that would be greatly appreciated.!!

When is your deadline to get this in?

I've suggested that you include more detail from plaintiff's submitted records (with exhibit citations) to make your case. Your judge is not going to do your job and hunt through the documents to find the discrepancies on your behalf. 

I've given you my opinion about the importance of submitting your own affidavit to get your factual statements in as sworn testimony. Your guide should be plaintiff's affidavit's format. Several posts back, I discussed the issue with your misspelled name as something to go into an affidavit. 

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1 minute ago, Brotherskeeper said:

I've suggested that you include more detail from plaintiff's submitted records (with exhibit citations) to make your case. Your judge is not going to do your job and hunt through the documents to find the discrepancies on your behalf. 

a couple of examples of what i have on objection. I am using their documents and exhibit citations. i am not sure what you mean.

deadline is 19th

 

4. Agreement (Plaintiff’s Exhibit A)

  • a. Section 1.5 paragraph a. states: “Effective April 28, 2012 the interest rate is a rate per year equal to the Wall Street Journal Prime Rate plus 6.25 percentage point (s). Until such date, interest shall accrue at the interest rate currently in effect under the Original Loan Documents.”

    The plaintiff has not provided the original loan documents referenced in “agreement”. As stated in Exhibit A, the bank has all copies of the original loan documents.

3. Payment History (Exhibit D)

The affiant states that Exhibit D represents all payments, associated with Agreement , yet first payment is not marked until 9/03/2013 (almost 17 months). Plaintiff’s “Agreement” ( Exhibit A) states that starting May 28, 2012 money was to be automatically withdrawn for the alleged agreement. Exhibit D has "Legal Balance Information" across the top/table header. Affiant does not state what entity prepared that payment history, where the data in it came from is not indicated on the face of the document and if it was prepared in the ordinary course of business.

 

If the Affiant did not calculate the starting balance on exhibit D, then like Jenzack Partners, LLC v. Stoneridge Associates, LLC, 192 A. 3d 455 - Conn: Appellate Court 2018”, it too should not be admissible under the business records exception.

The presumption that a business record is reliable is based in large part on the entrant having a business duty to report.... The mere fact that the [party] received this letter in the ordinary course of business and included the document in its files tells us nothing about the motivation of the maker of record, and therefore would not ordinarily satisfy the requirements of § 52-180." (Citations omitted; emphasis in original.) Id. Additionally, the court stated: "We emphasize ... that the mere receipt of documents in the ordinary course of business, in the absence of any duty owed by the entrant to the business to prepare the record, would not ordinarily establish such documents as business records." Id., at 801 n.14, 595 A.2d 839.

The starting balance was not calculated by the plaintiff, and therefore, it was received, rather than made, in the ordinary course of business. Accordingly, because the first requirement of § 52-180 is not satisfied, we conclude that the starting balance as shown on exhibit 22 was not admissible under the business records exception.”

 

  • C. Paragraph B (#3) of Affidavit mentions, in part, Defendant (erroneously indicating his name as) executed and delivered to Bank of America N.A. (“BofA”),..”

    The defendant did not create this document and is not a.k.a . Defendant did not agree to this “Agreement”. Affiant goes on to say that “a true and accurate copy of “Agreement is attached”. Affiant would have no personal knowledge of any of this as he did not partake in any aspect of the alleged agreement. Affiant would not know if “Agreement” is true and accurate, as it was purchased “AS IS”, as stated in Bill of Sale. Furthermore, Bill of Sale Doesn’t even mention this particular “Agreement”.

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On 7/12/2019 at 11:25 AM, Jackie1989 said:

4. Agreement (Plaintiff’s Exhibit A)

  • a. Section 1.5 paragraph a. states: “Effective April 28, 2012 the interest rate is a rate per year equal to the Wall Street Journal Prime Rate plus 6.25 percentage point (s). Until such date, interest shall accrue at the interest rate currently in effect under the Original Loan Documents.”

    The plaintiff has not provided the original loan documents referenced in “agreement”. As stated in Exhibit A, the bank has all copies of the original loan documents.

From the date of the Amended and Restated Loan Agreement, dated April 13, 2012, until April 27, 2012, the interest rate was to accrue at the interest rate in effect under the Original Loan Documents. Starting on April 28, 2012, the interest changed to WSJ Prime Rate plus 6.25 percentage points. In the spreedsheet or the damages section is there evidence of this interest rate change? If not, why is the rate change missing? If yes, is it accurately computed? How can you know, how can the court know, that it is correct without knowing what the original loan rate was? Including this in your argument strengthens it because it calls into question the accuracy of their figures. If the rate change for the 15 days in April is nowhere to be found, it calls into question the trustworthiness of the data. 

Right now, you only state that Plaintiff didn't provide original loan documents. If Plaintiff wasn't required (by court rule or state law) to attach them to the complaint or MSJ, and you didn't request them in discovery, the fact that original loan documents aren't there isn't likely to be a winning argument for you at the MSJ hearing. 

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3 hours ago, Brotherskeeper said:

From the date of the Amended and Restated Loan Agreement, dated April 13, 2012, until April 27, 2012, the interest rate was to accrue at the interest rate in effect under the Original Loan Documents. Starting on April 28, 2012, the interest changed to WSJ Prime Rate plus 6.25 percentage points. In the spreedsheet or the damages section is there evidence of this interest rate change? If not, why is the rate change missing? If yes, is it accurately computed? How can you know, how can the court know, that it is correct without knowing what the original loan rate was? Including this in your argument strengthens it because it calls into question the accuracy of their figures. If the rate change for the 15 days in April is nowhere to be found, it calls into question the trustworthiness of the data. 

Right now, you only state that Plaintiff didn't provide original loan documents. If Plaintiff wasn't required (by court rule or state law) to attach them to the complaint or MSJ, and you didn't request them in discovery, the fact that original loan documents aren't there isn't likely to be a winning argument for you at the MSJ hearing. 

got it! sounds good!

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3 hours ago, Brotherskeeper said:

Right now, you only state that Plaintiff didn't provide original loan documents. If Plaintiff wasn't required (by court rule or state law) to attach them to the complaint or MSJ, and you didn't request them in discovery, the fact that original loan documents aren't there isn't likely to be a winning argument for you at the MSJ hearing. 

Let me make sure I have this right.  The plaintiff has not provided a copy of the agreement described in the complaint?

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6 minutes ago, BV80 said:

Let me make sure I have this right.  The plaintiff has not provided a copy of the agreement described in the complaint?

"the "agreement/contract" is provided.it is where my name is misspelled..it is actually called a restated and amended loan agreement.

contract1.GIF

contract2.GIF

contract3.GIF

contract5.GIF

contract6.GIF

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18 minutes ago, BV80 said:

Let me make sure I have this right.  The plaintiff has not provided a copy of the agreement described in the complaint?

No, Plaintiff provided a copy of the Amended and Restated Loan Agreement that it claims it purchased from Bank of America. OP had business loans with Fleet Bank which was acquired (merged?) by Bank of America. The "original loan" was amended into the agreement alleged in the complaint. 

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@Jackie1989 In Plaintiff's Affidavit in Support of Motion for Summary Judgment, the affiant states:

"B.   As President for Plaintiff, I am fully familiar with the facts and circumstances contained herein, and the same are true to the best of my knowledge, information and belief. Further, I have personal knowledge of the books and records of Plaintiff as those books and records relate to this action."

Plaintiff's affiant claims to have personal knowledge only of the books and records of his company as those records relate to this action (lawsuit). He avers only familiarity with the facts and circumstances contained in his affidavit to the best of his knowledge, information and belief. He makes the distinction between facts he has "full" familiarity with and those he has personal knowledge of. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein. . . ." (Emphasis added.) Practice Book § 17-46.

 

State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 573, 2 A.3d 843 (2010).

"A distinction should be drawn [however] between a witness who has no personal knowledge and one who has only hearsay knowledge. A person who has no personal knowledge about the subject matter of his or her testimony, i.e., the person is guessing or speculating, is an incompetent witness as to that matter. A witness who is testifying to information that is not admissible in evidence, such as inadmissible hearsay or privileged evidence, is a competent witness as to that matter because he or she has some personal information, but the evidence is inadmissible because the evidence is incompetent." C. Tait & E. Prescott, supra, § 6.4, at p. 301.

These sources indicate that the touchstone of competence is personal knowledge. "Personal knowledge" is variously described as knowledge acquired firsthand or from observation. See Black's Law Dictionary (9th Ed. 2009); 1 C. McCormick, supra, § 10, at p. 47. Black's Law Dictionary (9th Ed. 2009) defines "personal knowledge" as "[k]nowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said." See also Ballentine's Law Dictionary (3d Ed. 1969) ("[P]ersonal knowledge" is defined as: "One's own knowledge. With more accuracy, knowledge derived from the exercise of one's own senses.... A person's direct knowledge of anything, as distinguished from that which he learns by hearsay." [Citation omitted.]). Accordingly, the rule that a witness must testify from personal knowledge requires "that a witness testifying about a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed that fact." 1 C. McCormick, supra, § 10, at p. 47. As the Second Circuit Court of Appeals has explained: "When A testifies that B told him of an event, A usually has personal knowledge only of B's report. It is B who has personal knowledge of the event." (Emphasis added.) United States v. Stratton, 779 F.2d 820, 829 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986)." State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 573, 2 A.3d 843 (2010).

 

Pursuant to our Supreme Court's holding in Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 391 A.2d 157 (1978), we do not presume that a corporate officer is necessarily competent to testify on behalf of a corporation. Accordingly, an affiant making averments on behalf of a corporate entity in the context of summary judgment proceedings "must aver or affirmatively show personal knowledge of the matters stated therein." Id., at 515, 391 A.2d 157.

 

"Section 52-180 has been interpreted to require the proponent to show: (1) that the document was made in the regular course of business; (2) that it was the regular course of business to make such a record; and (3) that the record was made when the act, transaction or event occurred or shortly thereafter. C. Tait J. LaPlante, Connecticut Evidence (1976) 11:14, p. 227." Struckman v. Burns, 205 Conn. 542, 551 (Conn. 1987).

 

 

 

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Brotherskeeper, good stuff!!!!

Simply outstanding. 

Cut and paste? 

The 52-180 I have throughout objection. What are your thoughts?

Thank you so much for taking the time. 

 

 

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@Jackie1989  According to the Bill of Sale, the "Asset Schedule" is "attached hereto and made a part of" the Bill of Sale (Plaintiff's Exhibit B ). "Certain loans" or "evidences of debt" are described in that part of the Bill of Sale. Plaintiff claims that a loan of the Defendant's is one of those "certain loans," and that evidence of this debt is described in that omitted part of the Bill of Sale. "Evidences of debt" is further described in that part of the agreement called the Asset Schedule, but is not described on the first page of the Bill of Sale. While omitting the Asset Schedule, and thus the complete Bill of Sale, Plaintiff's affiant swears that its Exhibit B is a true and accurate copy of the Bill of Sale. (Plaintiff's Affidavit, paragraph 9.) The affiant goes on to aver that the undescribed evidences of debt of the certain Amended and Restated Loan Agreement includes, "any and all documents, agreements and/or instruments of any kind whatsoever executed and/or delivered in connection therewith (collectively, the "Loan Documents")." (Pl.'s Aff. para. 9.)  

By signing the Bill of Sale, Plaintiff's President <<name>>, "ACCEPTED and AGREED" that the attached Asset Schedule was a part of the Bill of Sale. Plaintiff's President <<name>> also "ACCEPTED and AGREED" that Bill of Sale and the Asset Schedule's described loans and evidences of debt were  “AS IS”, “WHERE IS”, “WITH ALL FAULTS”, without recourse and without representation of or warranty of title, collectability, or otherwise, express or implied, oral or written." (Emphasis added.) (Pl.'s Ex. B )

BILL OF SALE

“This Bill of Sale is by and between Bank of America, N.A.(“Seller”) and JDB (“Buyer”). For value received, Seller does hereby sell, assign, and convey to Buyer all right, title and interest of Seller in and to those certain loans, judgments or evidences of debt described in the Asset Schedule attached hereto and made a part of.

This Bill of Sale is executed “AS IS”, “WHERE IS”, “WITH ALL FAULTS”, without recourse and without representation of or warranty of title, collectability, or otherwise, express or implied, oral or written. 

EXECUTED on the date below-indicated to be effective on September 5, 2018.
((Signed by Tamara Laughinghouse, BOA director))

ACCEPTED and AGREED:  
((Signed by JDB President))”
 

Here's what JDB President's Affidavit swears to: 

" 9.  Pursuant to a certain Bill of Sale dated as of September 5, 2018 from BofA to Plaintiff (the "Bill of Sale"), BofA sold, assigned and conveyed to Plaintiff all of BofA's right, title and interest in and to the Agreement and any and all documents, agreements and/or instruments of any kind  whatsoever executed and/or delivered in connection therewith (collectively, the "Loan Documents"). As a result of the foregoing, Plaintiff is the current holder and owner of the Loan Documents. A true and accurate copy of the Bill of Sale is attached hereto as Exhibit B, is referenced as being attached as Exhibit B to the Complaint, is attached as Exhibit B to the Exhibits Filing, and is incorporated herein and made a part hereof by this reference. . ."

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@Jackie1989 The B of A agreement states:

"2. Fees and Expenses

2.1 Fees.

(a) Restructure Fee.  The Borrower agrees to pay a restructure fee in the amount of Three-Hundred-Seventy-Four and 95/100 Dollars ($374.95). This fee is due on the date of this Agreement. "

Does this $374.95 restructure fee amount (due on April 13, 2012) appear anywhere on Exhibit D or in Plaintiff's Damages section? 

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1 hour ago, Brotherskeeper said:

@Jackie1989 The B of A agreement states:

"2. Fees and Expenses

2.1 Fees.

(a) Restructure Fee.  The Borrower agrees to pay a restructure fee in the amount of Three-Hundred-Seventy-Four and 95/100 Dollars ($374.95). This fee is due on the date of this Agreement. "

Does this $374.95 restructure fee amount (due on April 13, 2012) appear anywhere on Exhibit D or in Plaintiff's Damages section? 

no

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7 minutes ago, Jackie1989 said:
 

 

no

Well, according to the JDB's exhibits, the Amended and Restated Loan Agreement's express terms of a $374.95 restructure fee due upon signing date and the first 17 months of payments of $500 then $658.14 from May 28, 2013 thereafter, to be automatically debited from your account listed in the Agreement, were waived! 

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3 minutes ago, Brotherskeeper said:

Well, according to the JDB's exhibits, the Amended and Restated Loan Agreement's express terms of a $374.95 restructure fee due upon signing date and the first 17 months of payments of $500 then $658.14 from May 28, 2013 thereafter, to be automatically debited from your account listed in the Agreement, were waived

how so?

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3 minutes ago, Jackie1989 said:

how so?

I'm kidding, sorry. If you were contractually obligated to pay a restructure fee of $374.95 on April 13, 2012, wouldn't that fee be listed as being paid or unpaid somewhere in B of A's accounting? Or on your business bank statement? Do you remember making any payments at all during the 17 months following the April 13, 2012 signing date? 

My aim here is not to get you to answer questions to satisfy my curiosity, but to steer you to look at facts, omissions and/or discrepancies that may be worth including in your objection. I'm trying to help you impeach the exhibits' accuracy and trustworthiness. 

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 Do you remember making any payments at all during the 17 months following the April 13, 2012 signing date? 

Payments were deducted from my checking account and it is impossible that they would of  let me slide 17 months without taking any money out. I dont have statements from them account has been closed for 4 years. i probably have some banking statements (last 6 years, so would have statements for 2 years showing deductions from checking?) I have no proof of payments in 2012 but, again, they were taking money out monthly.

i had loans with fleet bank that were automatically withdrawn monthly and when bank of america took over, they just continued to withdraw.

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My aim here is not to get you to answer questions to satisfy my curiosity, but to steer you to look at facts, omissions and/or discrepancies that may be worth including in your objection. I'm trying to help you impeach the exhibits' accuracy and trustworthiness. 

i get it

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