Jackie1989

Arbitration, Staute of limitations or Standing

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10 hours ago, Jackie1989 said:

This contract is suspect, not only because of the spelling of my last name but, because I can not make out signature. I don't trust that someone at bank didn't copy it. There was a time when they stopped sending statements and  the spreadsheet, if correct, 

Because a substantial number of payments were made to BofA, you've acknowledged a debt to them.  Now that the account is alleged to have been purchased by a JDB, you can try to attack the validity of the loan agreement.  Still, how do you account for all the payments you allowed BofA to debit from your account?

The signature on the loan agreement is very faint.  Do they have an original, or just an electronic copy?  Is a misspelled last name and a questionable signature enough to call the validity of the agreement into question?  The likely answer is no.

 

10 hours ago, Jackie1989 said:

I had a lot going on for a few years and never paid attention to details. Money was withdrawn from my business checking account and I didn't give it much thought. Every so often double payments were withdrawn and I would sometimes only notice because of a returned payment. Any time I called, I would get bounced from department to department. From commercial to personal, then sometimes I would get the "special" department which would have some information and could correct issues with my account being overdrawn but, they couldn't send me anything in writing. 

This is when I would have personally walked into a BofA branch and sat down with a manager.  If they couldn't give me the answers I needed, I would wait as they nervously called around trying to reach the right department.

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I do not deny, I had many accounts with BofA and made payments on them for years. This is for an amended and restated loan agreement. I do not believe I agreed to this. Money was withdrawn from my account for years so if this agreement went into affect, I would not of necessarily have known a difference, unless they were taking a substantial amount more. I do not know if they have an original signed copy. I suspect not because , again, I do not recall agreeing to this.

And with regards to my dealing with this situation, I handled it poorly. There were times when I did go into branch to get information and left with no resolution. I felt, if I pursued it too aggressively, they would demand complete payment of account and could not afford to pay complete amount. It was around this time that they were reigning in all accounts that they had received from the acquisition of Fleet Bank. These loans and lines of credit did't fit into their business model. That is probably for this account as the amount seems to be about the amount I had with one of the accounts  (had one for 45k one for 30k and one for 15k). And they were never "nervously" waiting and in fact they could not of cared less. Even when I called them over the years. I was like the stepchild😊. Now this debt buyer comes along and I would like them to show me the goods. I realize that I may easily flop on my face but, I am going to give a go.

 

Thanks again Lane!

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On 6/15/2019 at 1:40 PM, Brotherskeeper said:

@Jackie1989 

Connecticut Code of Evidence Sec. 8-2

ARTICLE VIII—HEARSAY

These two paragraghs come from the code of evidence Connecticut.

Can some dumb them down?

Thanks @brotherkeeper

The purpose for which the statement is offered
is crucial; if it is offered for a purpose other than to establish
the truth of the matter asserted, the statement is not hearsay.

"(7) Public records and reports. Records,
reports, statements or data compilations, in any
form, of public offices or agencies, provided (A)
the record, report, statement or data compilation
was made by a public official under a duty to
make it, (B) the record, report, statement or data
compilation was made in the course of his or her
official duties, and (C) the official or someone with
a duty to transmit information to the official had
personal knowledge of the matters contained in
the record, report, statement or data compilation."

 

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Do I go "all in" with a objection to MSJ. pointing out , at least trying to, every deficiency? 

No asset schedule

No mention of business records being part of ordinary course of business and their reliability.

No default date with principle , interest and fees

No original contract referenced in amended agreement which mentions that an interest will remain at original contract rate for a short period of time.

Bill of sale states "as is"

Incomplete payment history

Please, any help is appreciated.

I thought I had something with them having different interest rates the OC ☹️

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55 minutes ago, Jackie1989 said:

The purpose for which the statement is offered
is crucial; if it is offered for a purpose other than to establish
the truth of the matter asserted, the statement is not hearsay.

"The truth of the matter asserted" means the statement itself is being used as evidence to prove the substance of that statement. For example, if a witness says, "Margot told me she loved Matt" to prove that Margot did in fact love Matt, the witness's statement is hearsay. Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay.

If a statement is being used to prove something other than the truth of what the statement asserts, it is not hearsay and will not be prohibited by this rule. A quintessential example appears in the Malaysian case, Subramaniam v Public Prosecutor. The defendant-declarant testified that terrorists told him he would be killed if he refused to carry ammunition. On appeal, this statement was held not hearsay because it was being used to prove defendant's duress defense - that he reasonably believed he would be killed if he did not comply with the terrorists. The statement was not being used to show that the terrorists were in fact going to kill him if he did not comply (which would qualify as hearsay)."

The debt buyer's affiant states in her affidavit that the account records transferred in the sale of accounts indicates a balance of $1253.27 due on the account of Jackie1989, versus Jackie1989 owes $1253.27. 

1 hour ago, Jackie1989 said:

"(7) Public records and reports. Records,
reports, statements or data compilations, in any
form, of public offices or agencies, provided (A)
the record, report, statement or data compilation
was made by a public official under a duty to
make it,
 (B) the record, report, statement or data
compilation was made in the course of his or her
official duties
, and (C) the official or someone with
a duty to transmit information to the official
had
personal knowledge of the matters contained in
the record, report, statement or data compilation."

public record noun
Legal Definition of public record
: a record required by law to be made and kept:
a : a record made by a public officer or a government agency in the course of the performance of a duty
b : a record filed in a public office
NOTE: Public records are subject to inspection, examination, and copying by any member of the public.

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28 minutes ago, Brotherskeeper said:

"The truth of the matter asserted" means the statement itself is being used as evidence to prove the substance of that statement. For example, if a witness says, "Margot told me she loved Matt" to prove that Margot did in fact love Matt, the witness's statement is hearsay. Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay.

If a statement is being used to prove something other than the truth of what the statement asserts, it is not hearsay and will not be prohibited by this rule. A quintessential example appears in the Malaysian case, Subramaniam v Public Prosecutor. The defendant-declarant testified that terrorists told him he would be killed if he refused to carry ammunition. On appeal, this statement was held not hearsay because it was being used to prove defendant's duress defense - that he reasonably believed he would be killed if he did not comply with the terrorists. The statement was not being used to show that the terrorists were in fact going to kill him if he did not comply (which would qualify as hearsay)."

The debt buyer's affiant states in her affidavit that the account records transferred in the sale of accounts indicates a balance of $1253.27 due on the account of Jackie1989, versus Jackie1989 owes $1253.27. 

public record noun
Legal Definition of public record
: a record required by law to be made and kept:
a : a record made by a public officer or a government agency in the course of the performance of a duty
b : a record filed in a public office
NOTE: Public records are subject to inspection, examination, and copying by any member of the public.

"The debt buyer's affiant states in her affidavit that the account records transferred in the sale of accounts indicates a balance of $1253.27 due on the account of Jackie1989, versus Jackie1989 owes $1253..27"

So, in my case, affiant states, under account damages, that $9000.00 is owed in principle and $4000 in interest.

No mention of what amounts were transfered.

This is hearsay? Or am I not following this correctly?

And with regards to records,

The affidavit makes no mention of "records" rather exhibits and the bill of sale. It says nothing about amounts shown in payment history exhibits , except that "it reflects all payments", which can not be the case. Also, not in the ordinary course of business.

Am I getting this right at all? Having an eighth grade education can sometimes be a hindrance😕

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@Jackie1989 When is this due? I'm not able to dive in to your case details today. (I am not a lawyer.) I would suggest you refute/rebut every material fact that presents a genuine issue in your response in opposition to their motion for summary judgment. If they've failed to meet their burden with competent evidence on any required element of their cause of action, point that out and where their evidence is missing. 

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well, they filed June 11th. I have 10 days to file an extension , if needed. And I believe it needs to be filed 5 days before judge addresses it. which I believe I would be notified of a date on the "short calendar"?

Quote

Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to said motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.” Conn. P.B. sec. 17-45

 

Thanks, I really do appreciate it!

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so this affidavit, does not mention the word "business records" it states "exhibits". "Account Damages" true and accurate copy of account history showing "all" payments (which is false).  it also shows the principle and interest owed -according to them-. the loan history sheet  shows different interest rates. I understand , now, that they can charge what the default rate is even if original creditor did not. the bill of sale just mentions a "offering" I have a feeling the asset schedule ( not provided) account numbers may not match up with this loan agreement. Just a hunch.

I am really curious about the "business records" "ordinary course of business" The affidavit says nothing like: "debt buyer purchased this account and a balance of xxx with interest of xxx was due on such date. loan was defaulted on such date. I reviewed these business records and they were received and kept in the ordinary course of business. I am familiar with how the records are kept by plaintiff and systems are reliable"

  Also, the original contract. They don't provide that, even though the agreement states it has all of the "original documents" The Amended agreement was to maintain the original contract interest until the amended one took over. Albeit, it was only 16 days

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one more thing.  in their MSJ , you can see they state that "defendant did not file any special defenses". Is that a problem?

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Can I just file my objection stating affidavit is inadmissible because it is hearsay?

It doesn't meet requirements statute 52-180 in Connecticut.

Thanks!

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@Jackie1989  (IANAL) An affidavit is a sworn written statement(s). If the affidavit itself does not comply with the Connecticut rules governing affidavits, it would be an invalid affidavit. https://www.lawserver.com/law/state/connecticut/ct-laws/connecticut_statutes_1-65bb

In a response to a motion for summary judgment you could draft your own affidavit (fyi--under penalty of perjury) to present facts within your personal knowledge and/or to attach as exhibits "true and correct copies" of your own documents. Depending on your state's standards for summary judgment, if your properly drafted, valid affidavit states facts and attaches documents that present a genuine issue of material fact in dispute, your judge may deny their motion. This article discusses affidavits: http://www.gwblawfirm.com/wp-content/uploads/2014/01/cmk_affidavit_article.pdf

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1 hour ago, Brotherskeeper said:

@Jackie1989  (IANAL) An affidavit is a sworn written statement(s). If the affidavit itself does not comply with the Connecticut rules governing affidavits, it would be an invalid affidavit. https://www.lawserver.com/law/state/connecticut/ct-laws/connecticut_statutes_1-65bb

In a response to a motion for summary judgment you could draft your own affidavit (fyi--under penalty of perjury) to present facts within your personal knowledge and/or to attach as exhibits "true and correct copies" of your own documents. Depending on your state's standards for summary judgment, if your properly drafted, valid affidavit states facts and attaches documents that present a genuine issue of material fact in dispute, your judge may deny their motion. This article discusses affidavits: http://www.gwblawfirm.com/wp-content/uploads/2014/01/cmk_affidavit_article.pdf

Hi

So, I don't have documents. They have an alleged contract and I don't.

They have a spreadsheet, I assume from Bank of America, and I don't.

They claim they own this specific account, although bill of sale only references an "offering". How do I refute that in an affidavit?

So according to statute 52-180 in Connecticut the business records acception to hearsay rule.

The business records need to be created and maintained in the ordinary course of business otherwise, I believe they are considered hearsay. If they are electronic, which they are, then they must also declare that computers are reliable.

In my case, they make no mention of "business records" they refer to "exhibits" being true and correct.

Also, in Connecticut, there is caselaw where it states that "the onus is on the moving party to provide evidence that there is no genuine issue of material facts and if they cannot it is not Required that non-moving party provide any evidence or affidavits.

So what I'm getting at is I would hope that I can strike this motion for summary judgment by the affidavit not stating anyting about records being made in the ordinary course of business therefore they have not proven that there is no genuine issue of material facts and I would not need to provide an affidavit or any other type of documentation.

Is my thinking wrong? Weak?

I feel like they have nothing solid.

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okay,

 I think I am annoying everyone. perhaps because I may be asking the wrong questions. I am still plugging away. what the hay!

 

anyways, i am posting this objection. its rough, real rough but, I am looking for any and all help. check it out, call me stupid, laugh, anything. 

Any help or insight is always appreciated as I am in over my head.

infocreditcenter2.pdf

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On 6/11/2019 at 5:26 PM, Jackie1989 said:

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!

@Jackie1989 I'm sorry but I don't have time to read to see if you've addressed this: do you have any of your own records to submit with your affidavit that rebut/refute any of their records? An affidavit of facts within your personal knowledge as the business owner, and any sworn attached records (Defendant's Exhibit A) that demonstrate their records may be wrong or untrustworthy, would likely present a dispute of a materal fact: no sum certain can be awarded by summary judgment. 

If you have no records of your own, the statements I highlighted in your post above are where I would focus in your MSJ response in opposition. Pointing out--with citations to the specific JDB exhibit and page number (Plaintiff's Exhibit A, page 3, or Plaintiff's John Smith Affidavit, paragraph 4) so the judge can easily find it--where the discrepancies can be found between the JDB claims and the OC records. 

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@LaneBlane has given you the best arguments for you to focus on. Also, somewhere in your thread you mention that an affidavit states all payments have been shown, which you claim is false. If they are missing a page of records, how can they assert all payments have been accounted for and deducted? Lane pointed out that a difference in interest rates may be due to a default interest rate. Did the JDB explain this? (IANAL) but I wouldn't cede this argument. Can they prove their right to change the interest rate to the rate they did?  You may lose, but it may be worth it if it defeats their MSJ. Others may have a different opinion. 

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1 hour ago, Brotherskeeper said:

@LaneBlane has given you the best arguments for you to focus on. Also, somewhere in your thread you mention that an affidavit states all payments have been shown, which you claim is false. If they are missing a page of records, how can they assert all payments have been accounted for and deducted? Lane pointed out that a difference in interest rates may be due to a default interest rate. Did the JDB explain this? (IANAL) but I wouldn't cede this argument. Can they prove their right to change the interest rate to the rate they did?  You may lose, but it may be worth it if it defeats their MSJ. Others may have a different opinion. 

Thanks brotherskeeper.

I posted a objection here. Would you give an opinion on it?

There calculated interest is based on contract. They don't explain it, which is why at first I thought I had something as it didn't match with spreadsheet. Spreadsheet has an entry date that matches date of agreement start date but the first entry showing balance is not until 15 months later! And first payment is not entered until 17 months from origin date. With a balance 8k less. So it obviously is not complete.

If you, and anyone else, could look at my objection, a few post prior, it would be greatly appreciated. I either need to file this 5 days prior to "short calendar" or file for an extension by this Friday.

 

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2 hours ago, Brotherskeeper said:

 

@Jackie1989 I'm sorry but I don't have time to read to see if you've addressed this: do you have any of your own records to submit with your affidavit that rebut/refute any of their records? An affidavit of facts within your personal knowledge as the business owner, and any sworn attached records (Defendant's Exhibit A) that demonstrate their records may be wrong or untrustworthy, would likely present a dispute of a materal fact: no sum certain can be awarded by summary judgment. 

If you have no records of your own, the statements I highlighted in your post above are where I would focus in your MSJ response in opposition. Pointing out--with citations to the specific JDB exhibit and page number (Plaintiff's Exhibit A, page 3, or Plaintiff's John Smith Affidavit, paragraph 4) so the judge can easily find it--where the discrepancies can be found between the JDB claims and the OC records. 

Brotherskeeper, yes I am planning on addressing these issues. I had left out interest rate but, will add it back in, as they do not explain discrepancy. Actually, they do not explain where spreadsheet is from so, I guess I should point that out. If it was created by them then they are contradicting themselves.

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I just glanced at your motion response. What is the purpose of the "Facts" you've listed? What facts are in dispute? What facts of theirs have no evidence or incomplete or admissible evidence in the record to support the assertion? 

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7 minutes ago, Brotherskeeper said:

I just glanced at your motion response. What is the purpose of the "Facts" you've listed? What facts are in dispute? What facts of theirs have no evidence or incomplete or admissible evidence in the record to support the assertion? 

Confession, I dont know what I am doing.  trying to immolate my response as I have seen in other cases. This is why I posted it here. 

I am disputing just about everything in their case but, obviously I am going about it wrong?

 

What I was trying to get across was what the plaintiff had filed in the facts and then refuting them in the argument.

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1 minute ago, Jackie1989 said:

Confession, I dont know what I am doing.  trying to immolate my response as I have seen in other cases. This is why I posted it here. 

I know. We all start out this way. I think LaneBlane had given you the arguments to focus on. I realize you are under the gun to get this in. I don't know your Connecticut rules. You mentioned filing an extension. Is this possible and do you know how to do this according to your court rules? It would be tragic if you didn't get your motion response in and failed to execute a proper extension request. 

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Just now, Brotherskeeper said:

I know. We all start out this way. I think LaneBlane had given you the arguments to focus on. I realize you are under the gun to get this in. I don't know your Connecticut rules. You mentioned filing an extension. Is this possible and do you know how to do this according to your court rules? It would be tragic if you didn't get your motion response in and failed to execute a proper extension request. 

I have seen extensions filed online and believe I can get it done right.

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43 minutes ago, Brotherskeeper said:

Okay. A lot is riding on this.

I hear you.

The worst that can happen is that it is not granted. I still would have 5 days prior to "short calendar" date where a judge would review the MSJ.

 I really would like to get something in soon anyways but, obviously, I am not prepared. I need to figure out how to properly form my objection.

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