Jackie1989

Arbitration, Staute of limitations or Standing

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harry,

i truly appreciate your insight and please forgive me, if I come across any other way. I am just nervous.

thanks again for reading and replying!

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I understand you're nervous, but we're all a bunch of hobbyist litigants giving out free opinions.  Asking the same question 5 times doesn't change our answer. You might get a different opinion from someone else, if that's what you're looking for. 

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i guess I should really say, "I am not the sharpest tool in the shed". So please excuse me if I am asking the same question.

 I am just going to sit tight and wait on their next move.

thanks again

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You're plenty 'sharp' - that's not the problem. You're a "thinker", is the problem. Ask me how i know.  😁

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lol

last thing.

 I noticed in a particular case, here in connecticut, with this same law firm and similar complaint, the defendant filed an answer, like mine and law firm cam back with MSJ.

in their MSJ they had the memorandum with affidavit from creditor, which was the original bank and just rehashed complaint.

A few days later, court granted it. and in doing so stated...

Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.

So, if they put up affidavits purporting to be fact, I am then going to be required to supply affidavits or papers to disprove them?

in this case the defendant never did reply or object to their MSJ.  I am just hoping that I can refute their affidavit and exhibits with some connecticut case law about their "facts".

okay, enough from me for today. feel like a sitting duck.

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1 hour ago, Jackie1989 said:

Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.

If you don't oppose the MSJ then the court will grant it.  Silence is interpreted as agreement with the motion. If you disagreed you would have opposed it.

1 hour ago, Jackie1989 said:

So, if they put up affidavits purporting to be fact, I am then going to be required to supply affidavits or papers to disprove them?

Yes.

 

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2 hours ago, Jackie1989 said:

So, if they put up affidavits purporting to be fact, I am then going to be required to supply affidavits or papers to disprove them?

Well, here's the thing. Once you file the MTC, the court case is required by the Federal Arbitration Act to be stayed until the court rules on the MTC. If the court grants the MTC, it no longer has jurisdiction so the plaintiff's MSJ is moot. The only valid reason for a court to deny a MTC is if it finds there is no agreement between the parties to arbitrate. We've seen courts deny a MTC and turn around and grant a MSJ. We've also seen them completely ignore a MTC and grant a MSJ. But you really can't control any of that. Just follow the steps and if the MTC is denied, or ignored, you always have the option to appeal. 

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okay,

 I am not filing a MTC as this is a commercial situation and would be treated that way in arbitration.

So, this is why I am concerned with them filing these exhibits. Although they have not filed an affidavit, I imagine -if they follow suit like a similar case here in Connecticut - they will introduce and affidavit in their MSJ and will refer to these exhibits. But, I guess they could of always just thrown the exhibits in their filing MSJ. Why would they file them with complaint? Does filing these exhibits early on establish them as fact if I do not object? And how is one to refute them? My plan was to use case law in Connecticut in an attempt to do so but, am wondering if I need to doing something  prior to them filing a MSJ. They say I owe $xxx. I do not agree at all. They have a contract with original balance and a partial payment history sheet (which they did not file and only sent to me). I do not know how they have come up with the balance, I do not see the sale of my specific account...you know the deal.

 

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35 minutes ago, Jackie1989 said:

Why would they file them with complaint?

To support a default judgment. That's it. Once you answer/MTC/MTD/whatever, default is no longer an option and exhibits attached to the complaint hold no value.

37 minutes ago, Jackie1989 said:

But, I guess they could of always just thrown the exhibits in their filing MSJ.

This is exactly what they will (have to) do. The time to address them is in objection to the MSJ. If by chance the MSJ is denied, then you go to trial where they get a second chance, and they will re-introduce all of the evidence again, possibly with a live witness. 

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Okay so,

Plaintiff filed MSJ today.

Affidavit reiterated complaint and also had the "loan history" which is incomplete spreadsheet. Starts at a balance 8k less from original.

The affidavit also has an "account damages page" it shows interest but, the rates and amount conflict with the spreadsheet from OC. This is for a loan and considered and commercial debt. The affidavit doesn't seem to focus on reliability accuracy etc. Like the credit card debts. It states that the affiant -who is president of company- is familiar with company records and to the best of his knowledge they are true and correct. Not a lot of "verbiage". I have 10 days , if I want to file an extension for objection and 5 days before short calendar date. Which I have no idea when that will happen.

I have gone through plenty of cases and just need to figure out how to implement them in my objection.

There is some caselaw here stating that if the moving party does not show that there is no genuine issue of material facts, the nonmoving party doesn't need to files affidavits and so on.

They purchased this debt "as is" no warranties" they have a spreadsheet and the affiant/ owner calculated account damages based on what he "received". Again, his dates and interest calculated do not match up with OC. example: on OC spreadsheet for Jan 2016 they show an interest rate around 10% his shows 15%

According to contract, his calculations make sense but the spreadsheet tells a different story.

Also, there were definitely late fees accessed along the way but, no mention of it in calculations.

Any input is greatly appreciated, I really want to give this a shot.

Thanks!

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52 minutes ago, Jackie1989 said:

According to contract, his calculations make sense but the spreadsheet tells a different story.

This is what you need to concentrate on. Forget about "no warranties". It doesn't mean what you think it means. 

53 minutes ago, Jackie1989 said:

Any input is greatly appreciated, I really want to give this a shot.

If you point out the discrepancies in the records vs. affidavit statements, you have a pretty good shot of the judge denying the MSJ. Just know that they well get a second shot in the form of a trial. 

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I want to post something and hopefully you guys can take a look and critique. I'm sure it will be rough but, that's why I'm here. 

Harry, 

You think that pointing out "as is" is a waist of time?

The discrepancy is really just interest. Is that enough to cancel MSJ?

What about amount in question? The total damages (principal and interest). I am thinking of attacking that as well. There is caselaw here where plaintiff "received" records, and because they received them, they did not create them. The calculated amounts with interest were based on these records. It was ruled that the affiant could not attest to their accuracy. I will post this stuff later. Also, spreadsheet doesn't even have complete history. We are talking only 48 entries. They start entries after one year from start of contract. And again, they show no late fees. Don't they need to show that?

Okay, I am probably all over the map.

I will post some stuff later.

Thanks !

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One more thing.

If, big if, I can defeat this MSJ and it goes to trial. Wouldn't be in my best interest to refute any and everything now in affidavit. If I don't, is everything in it that I do not contest in objection to MSJ considered true?

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4 hours ago, Jackie1989 said:

Affidavit reiterated complaint and also had the "loan history" which is incomplete spreadsheet. Starts at a balance 8k less from original.

 

Spreadsheets are templates that consist of formulas populated by data that comes from a data source.  Not only would I question where the spreadsheet originated from (who created it), I'd also question the origin of the data file and how the data file was obtained.

 

4 hours ago, Jackie1989 said:

The affidavit also has an "account damages page" it shows interest but, the rates and amount conflict with the spreadsheet from OC.

Do you know if the interest calculated differs from the terms of the loan agreement?

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Lane

The interest calculations seem correct. 

They have this spreadsheet that spans from about May 2013 (loan originated April 2012) to July 2018.

It shows payments interest and has a column for fees charged (shows none, which I know my account had late fees charged) for each payment it has the corresponding interest rate.

Check these out. On spreadsheet from bank , apparently last payment was Jan 7 2016. On that same date $832 in interest was added! It looks like someone manipulated and just add it these numbers in there because that interest would not have accrued like that. The affidavit has different calculations.

Also, again, I rarely received statements and had to call many times over the years when to try an get a balance or when they would sometimes withdraw double payments in a month. The spreadsheet actually shows and instance where they did and refunded but, there were other times as well. That is why I would like to see entire history. It's only 12-13 more entries. Also, like to see breakdown of late fees I know I received a few letters stating late fees.

thanks for input about verifying spreadsheet.

I am hoping to create my objection by early next week.

 

 

Screenshot_20190612-083309.png

Screenshot_20190612-083331.png

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Lane

The interest calculations seem correct. 

They have this spreadsheet that spans from about May 2013 (loan originated April 2012) to July 2018.

It shows payments interest and has a column for fees charged (shows none, which I know my account had late fees charged) for each payment it has the corresponding interest rate.

Check these out. On spreadsheet from bank , apparently last payment was Jan 7 2016. On that same date $832 in interest was added! It looks like someone manipulated and just add it these numbers in there because that interest would not have accrued like that. The affidavit has different calculations.

Also, again, I rarely received statements and had to call many times over the years when to try an get a balance or when they would sometimes withdraw double payments in a month. The spreadsheet actually shows and instance where they did and refunded but, there were other times as well. That is why I would like to see entire history. It's only 12-13 more entries. Also, like to see breakdown of late fees I know I received a few letters stating late fees.

thanks for input about verifying spreadsheet.

I am hoping to create my objection by early next week.

 

 

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Affidavit pages are out of order..sorry.  Also, I calculated interest on spreadsheet it states $2410 but affidavit states $4800.00 this is as of June 14 2018. They purchased this debt in September 2018.

Not included:

Bill of sale is for a portfolio. Sold as is. I have seen this exact bill of sale for 3 or 4 cases here. Obviously, they were all part of the sale.20190612_112924.thumb.png.d852fd143d34d554133617a5dc425ada.png20190612_113338.thumb.png.314b44cd798f0099fa857420efb14d15.png

20190612_112351.png

20190612_112654.png

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One more thing, please look at January 7 2016 on spreadsheet. I am assuming that is the last payment date (they do not mention this in affidavit). The payment is entered and then interest is added (like it was monthly on this spreadsheet) and it is for $832! You will see monthly interest added each month no where near that figure. It was not in default. payment was withdrawn from account that month. I can not imagine that their computer system just came up with that number. I am thinking, who ever prepared this spreadsheet (which was done in July 2018) just added these numbers manually.

 

okay, i am ranting on here.  Once again, I truly appreciate this community and the advice that is given.

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I didn't have time to look at everything right now.

I understand your loan is dated April 13, 2012, and that the spreadsheet you referenced starts on October 27, 2014 with a balance of $18,446.90.  The spreadsheet shows payments being made to the account through January 2016.  When the payments stopped, there's an interest rate change each month.  The last line is dated June 14, 2018.

Is this the only page they provided?

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This is just some of case law I am looking at, let me know what you guys think. Is it useful/relevant? There are more. I would like to integrate these, if applicable, into my objection.

 

Jenzack Partners, LLC v. STONERIDGE ASSOCIATES, LLC

Our Supreme Court has noted, however, that when a document is received, rather than made, in the ordinary course of business, it ordinarily will not satisfy the requirements of § 52-180. In River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 801, 595 A.2d 839 (1991), the court stated, "[the authorized representative] testified that the document would have been received in the ordinary course of business, not that it would have been made in the ordinary course of business. 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.

Midstates Resources Corp. v. Dobrindt, 70 Conn. App.

National Loan's argument focuses on the reliability of the business record. It contends that because the record was admissible, it was inherently trustworthy, and, therefore, the court could not discredit the evidence. Admissibility, however, is not the issue before us. Although business records do contain independent "indicia of reliability"; see, e.g., State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518 (conformity with statutory conditions that permit admission of business records is deemed to provide reasonable indicia of reliability), cert. denied, 200 Conn. 807, 512 A.2d 231 (1986); it is for the trier of fact to determine the weight to be given to the business record. To require the court to extend the standards for admissibility to apply to the weight to be given the evidence would be to invade the sole province of the fact finder. This, we will not do.

"Conformity with the statutory conditions which permit the admission of business records is deemed to provide reasonable indicia of reliability.... Even when properly admitted, [however,] such records carry no presumption of accuracy, their credibility remaining a question for the trier of fact...

 In its memorandum of decision, the court found that Tubbs "did not prepare exhibit [four], was not employed by the bank that prepared the document, did not know who prepared the document, did not know the Saybrook Bank and Trust Company officers or procedures, did not work for the FDIC when it took over the Saybrook Bank and Trust Company, did not know from her own knowledge the accuracy of the figures contained in exhibit four, and, could not testify whether or not Saybrook Bank and Trust Company followed general banking procedures on a day-to-day basis." In addition, the court concluded that "the credibility and accuracy of the balance due under the note was not established by the [substitute] plaintiff by a preponderance of the evidence."

American Exp Centurion Bank v. Head

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any 94*94 genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; emphasis added; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

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10 minutes ago, LaneBlane said:

I didn't have time to look at everything right now.

I understand your loan is dated April 13, 2012, and that the spreadsheet you referenced starts on October 27, 2014 with a balance of $18,446.90.  The spreadsheet shows payments being made to the account through January 2016.  When the payments stopped, there's an interest rate change each month.  The last line is dated June 14, 2018.

Is this the only page they provided?

Here is first page

spreadsheet.GIF

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it shows the starting date April 2012 but , does not start showing payments until the following year.  if you press control/alt and left arrow, you can view it right side up

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