Jackie1989

Arbitration, Staute of limitations or Standing

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13 hours ago, Harry Seaward said:

The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue of material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.

Am I not understanding this properly? It sounds like moving party (plaintiff) has the burden of "showing the absence" of any genuine issue of material facts, which entitle them to a judgment.  The paragraph goes on to say "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.” This was "american express v. head"

In my case, the plaintiff has not showed the absence of any genuine issue of material facts.

Please let me know.

 Affiant does not state that books and records are maintained in the ordinary course of business.

               You need to cite an authority (caselaw, rule of evidence, etc) establishing this requirement.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See Connecticut Bank & Trust Co. v. Reckert, 33 Conn.App. 702, 708, 638 A.2d 44 (1994). "Unless subject to an exception, hearsay is inadmissible." Id. If the proffered evidence consists of business records, the court must determine whether the documents satisfy the "`modest requirements'" under § 52-180[3] to admit them under the business records exception to the hearsay rule. Federal Deposit Ins. Corp. v. Carabetta, 55 Conn.App. 369, 374, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999). When the proffered business records are computer generated, however, the proffering party must satisfy a two part test.

 "To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.... To 7*7 qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met.

Second, the proponent of the computer generated business records "must establish that the basic elements of the computer system are reliable." Federal Deposit Ins. Corp. v. Carabetta, supra, 55 Conn.App. at 376, 739 A.2d 301. The genesis of the second part of the test dates back to American Oil Co. v. Valenti,179 Conn. 349, 358-59, 426 A.2d 305 (1979), in which our Supreme Court noted that "usiness records that are generated by computers present structural questions of reliability that transcend the reliability of the underlying information that is entered into the computer.

Affidavit has a page attached referencing: The Demand letters for Loan Agreement #487- 68271023267499, dated June 28, 2016 and September 27, 2016, from Seller to Defendant are not provided.

           Did you mean Plaintiff?  And are you saying the letters were not provided to you?

            Yes, Plaintiff  and No they were not provided to me or filed with court.

6. Payment History (Plaintiff’s Exhibit D) for this alleged agreement is incomplete. A. There are entry dates April 13, 2012 B. Balance and Interest Accrual entered July 31, 2013 C. First payment of principle and interest are not entered until September 3, 2013. Affiant claims that the “Payment History” represents all payments, associated with Agreement #487- 68271023267499, yet first payment is not marked until 9/03/2013 (almost 17 months). Affidavit doesn’t state who prepared “Payment History” spreadsheet and if it was prepared in the ordinary course of business. Payment History spreadsheet page 2 (at bottom left corner) references “version 44901”. Are there other versions?

So far this is the most solid argument in your opposition.  You need to drill down on this to drive home the point that they haven't established how they came up with the balance due.  By the way, do you have anything showing you made payments during the first 17 months?  Do you have a copy of the original agreement that says when payments should have started?  Sometimes loans have deferred payment arrangements, so you need to know if it's possible they could show that was the case with this loan.

I haven't located any payment proof. Do not have an original of loan agreement with fleet. Their agreement states it started May of 2012 and that is when they were beginning to deduct from my account under this new agreement. No mentions of deferments.

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1 hour ago, Jackie1989 said:

In my case, the plaintiff has not showed the absence of any genuine issue of material facts.

Got it. The way you presented it, it didn't look like you were citing caselaw. It said "entitle him to judgment", like you were saying you were entitled to judgment. 

 

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37 minutes ago, Harry Seaward said:

Got it. The way you presented it, it didn't look like you were citing caselaw. It said "entitle him to judgment", like you were saying you were entitled to judgment. 

 

hey, i am grateful for your input and time!

 

okay, I worked on my objection a bit more.  last edit for the day. please, let me know what you guys think. rip it to shreds if need be.

 

lastly, I am wondering if i am applying caselaw properly. let me know

 

 

Objection-to-motion-mbc7-1 (4).pdf

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2 hours ago, Jackie1989 said:
 

Anyways, I noticed that you stated "purported BofA legal balance exhibit D" although I believe it is from BofA, I thought that since it had no markings/logo and was not specified in affidavit as "Seller's Payment history" I wasn't going to address it as that?

I need to get this all down in objection.

Refer to Plaintiff's Exhibit D however you think works best. Just make certain that you refute it's admissible, sworn, authenticated documentary evidence from B of A, that falls under the business records exception to the hearsay rule. (IANAL) A document titled "Legal Balance Information" noted as "Version 44901" appears more like information not created during the regular course of business as a transaction "payment history," but rather for another purpose. 

I'm reposting info from this link 

Motion for Summary Judgment: “In any action, including administrative appeals which are enumerated in Section 14-7, any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial.” Conn. P.B. sec. 17-44 (2017).
Opposition to Summary Judgment: “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 (2017).
Affidavits: “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 the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.” Conn. P.B. sec. 17-46 (2017).
 Judgment: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Conn. P.B. sec. 17-49 (2017).
 Material Fact: “is a fact which will make a difference in the result of the case.” Hosp. of Cent. Connecticut v. Neurosurgical Associates, P.C., 139 Conn. App. 778, 783, 57 A.3d 794, 797 (2012).
Partial Summary Judgment as to Liability: “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of
the damages.
If the determination is by a jury, the usual procedure for setting aside the verdict shall be applicable. Upon the conclusion of these proceedings, the judicial authority shall forthwith render the appropriate summary judgment.” Conn. P.B. sec. 17-50 (2017)

§ 3:140 Sample supporting and opposition briefs
Motion for summary judgment by defendant — Plaintiff's oppositionWritten objections to evidence
submitted in support of motion for summary judgment

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In addition to what @Brotherskeeper mentioned, a lot of states require a Controverting Statement of Facts wherein you, line by line, admit or deny each claim made in Plaintiff's Statement of Facts that would have been filed with their MSJ. If there is no SoF in the MSJ, there's no need for a CSoF.

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2 minutes ago, Brotherskeeper said:

Just make certain that you refute it's admissible, sworn, authenticated documentary evidence from B of A, that falls under the business records exception to the hearsay rule. 

So, how can I state that it is from Bank of America when they are not claiming it to be and it has no BofA markings on it?

 

5 minutes ago, Brotherskeeper said:

A document titled "Legal Balance Information" noted as "Version 44901" appears more like information not created during the regular course of business as a transaction "payment history," but rather for another purpose. 

yes, as stated yesterday  on the spreadsheet it has "AFS Obligor" "AFS customer number" "AFS etc"  The AFS stands for Available For Sale. This is per the Bank of America pdf  file online.  But again, no mention on this spreadsheet that it is from BofA and affidavit doesn't mention where it is from.

 

9 minutes ago, Brotherskeeper said:

opposing affidavits

i see you bolded this but there is caselaw which is in the end of my objection that states the opposing party need not submit affidavits if the movant has not proved the absence of material fact.

 

 

11 minutes ago, Brotherskeeper said:

Partial Summary Judgment as to Liability

is this , "we dont have proof on exact amount but, you owe us some money so we deserve partial judgment?"

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4 minutes ago, Harry Seaward said:

In addition to what @Brotherskeeper mentioned, a lot of states require a Controverting Statement of Facts wherein you, line by line, admit or deny each claim made in Plaintiff's Statement of Facts that would have been filed with their MSJ. If there is no SoF in the MSJ, there's no need for a CSoF.

So, there memorandum of law in support of motion for summary judgment states "facts" as the heading. is this a statement of facts?

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14 minutes ago, Jackie1989 said:

So, there memorandum of law in support of motion for summary judgment states "facts" as the heading. is this a statement of facts?

Check your court rules to see if you need to make a specific response to this, but usually a SoF is a separate document filled with the MSJ that has numbered paragraphs. 1. On xx,xx,xxxx defendant applied for and opened a credit account with ABC bank. 2. Defendant caused or otherwise allowed charges to be made to said account. 3. Defendant failed to pay the full amount due despite repeated demands made to this effect. Etc, etc, etc. Then you would file a CSoF addressing each itemized claim. 

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Looking at plaintiff's Memorandum in support of MSJ. I believe I need to create one as well. If so, like plaintiff's, I assume Ishould be putting caselaw in memorandum rather than objection?

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4 minutes ago, Harry Seaward said:

Check your court rules to see if you need to make a specific response to this, but usually a SoF is a separate document filled with the MSJ that has numbered paragraphs. 1. On xx,xx,xxxx defendant applied for and opened a credit account with ABC bank. 2. Defendant caused or otherwise allowed charges to be made to said account. 3. Defendant failed to pay the full amount due despite repeated demands made to this effect. Etc, etc, etc. Then you would file a CSoF addressing each itemized claim. 

I will. Just the affidavit is numbered. the affidavit is the statement of facts

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19 minutes ago, Jackie1989 said:

So, how can I state that it is from Bank of America when they are not claiming it to be and it has no BofA markings on it?

I'm sorry, but I thought the JDB was claiming "Exhibit D" was a B of A document transferred with the sale. Whose document is this supposed to be from? Was it submitted to the court? 

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Just now, Brotherskeeper said:

I'm sorry, but I thought the JDB was claiming "Exhibit D" was a B of A document transferred with the sale. Whose document is this supposed to be from? Was it submitted to the court? 

they do not state where it is from. they just refer to it as exhibit D "which is a true and accurate copy of the account history for the Agreement"

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1 minute ago, Harry Seaward said:

You probably don't need to worry about a CSoF then. 

Terms Used In Connecticut General Statutes 52-278c

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.

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1 minute ago, Jackie1989 said:

Affidavit: A written statement of facts

Does it say anywhere that, in your opposition, you specifically need to controvert each individual factual statement made in the affidavit?

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On 6/30/2019 at 9:56 AM, Jackie1989 said:

 

No Proof. I just assumed it was from BofA🤔

 

 

The date of affidavit is June 6 2019      Exhibit D Account History (see attachement )   It doesn't state whether or not if it was created for litigation purposes.

 

They do not state a default date, just that "defendant failed to make certain monthly payments when due under the agreement" I don't know about "where is the evidence?" I assume that the evidence is from BofA and contained in the "loan documents" they mention? when looking at "payment history" spreadsheet, it appears that last payment was on January 2016.

accountdamages.pdf 75.92 kB · 2 downloads

account damages pdf above that references exhibit D

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6 minutes ago, Jackie1989 said:

they just refer to it as exhibit D "which is a true and accurate copy of the account history for the Agreement"

Sorry to be a pest, but where is this Exhibit D language found--in which document?

 

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8 minutes ago, Harry Seaward said:
 

Does it say anywhere that, in your opposition, you specifically need to controvert each individual factual statement made in the affidavit?

Unless otherwise ordered by the judicial authority, any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence.

 

...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.” (Emphasis omitted; internal quotation marks omitted.) American Express Centurion Bank v. Head, supra, 115 Conn. App. At 14-15, 971 A 2.d; See also: Midland Funding, LLC v. Mitchell-James 137 A 3d 1 – Conn. App. (2016) Also:Boone v. William W. Backus Hosp., 864 A. 2d 1 - Conn: Supreme Court 2004 see also: Harvey v. Boehringer Ingelheim Corp., [52 Conn.App. 1, 8-9, 724 A.2d 1143 (1999) ] (where summary judgment movant's affidavit did not dispense with factual issues raised by opponents' counterclaim, burden of proof did not shift to opponents, and their failure to file supporting affidavits was not a fatal flaw to their objection); cf. 49 C.J.S. 379, [Judgments § 266 (1997) ] (if the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings)." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

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IANAL. When in doubt about the "typical" format for your court--after reading your rules of civil procedure and any local court rules--I think it makes sense to follow the format of the attorney-prepared motion you're responding to. They have a "Facts" section and have listed the "facts" they think important to winning their motion. You need to demonstrate that there are genuine issues with those material facts--whether or not your rules require a separate statement of facts. Others may have a different opinion, but if I were in your shoes, I'd follow the same format and include an affidavit if necessary. 

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