BrendaG

Received a Motion for Summary Judgment from Portfolio Recovery

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I have a court date scheduled 10/10/19, but received a Motion for Summary Judgement dated 9/19/19.  They have copies of statements where payments were made and the default payments.  (Was in over my head and $800 in the hole every pay period).  They included an Affidavit of Account, bill of sale with the spreadsheet typically attached, copy of Synchrony Bank's credit care agreement.  

The Affidavit says they reviewed the business records of the original creditor and those records assigned to account assignee.  

In the Motion for Summary Judgment they state:
 

1. Defendant filed an answer to their complaint (which they included my answer) and copies of plaintiff's complaint, plaintiff's affidavit, itemization of accounts and the defendant's answer are Exhibit 1 and 2.

2.  States Defendant is indebted to Plaintiff for remaining balance due.

3. Defendant entered credit agreement with Synchrony Bank

4. Defendant accepted and used credit extended and they attached monthly statements dated 10/28/16 through 8/29/17 (which are Exhibit 3)

5. Defendant's acceptance of use of credit card ratified terms and conditions (which are attached as Exhibit 4)

6. Account statements further evidence defendant made periodic payments

7. Payment amount of $.... posted to Defendant's account on or about 2/5/17 as shown by statement dated 2/26/17

8. Thereafter, Defendant defaulted on her obligations under Account Agreement and account statements from 3/29/17 through 8/29/17 are included

9/ Synchrony Bank then declared all sums due and payable

10. That Portfolio Recovery purchased the debt, as evidenced by Bill of Sale, together with its attached redacted Sale File, which contains the information to identify the Defendant's Account. And that they now own all rights, title, and interested in account.  Bill of Sale is Exhibit 5.

11.  Defendant's use of credit card and payments created a contract requiring defendant to make payment on full balance due.

12. Evidence, including Plaintiff's affidavit, shows preponderance of evidence that pursuant to Rule 56 of South Carolina Rules of Civil Procedure, there is no genuine issue in this matter as to any material fact.  Therefore Plaintiff should be entitled to summary judgment as a matter of law.  

 

Hopeless, helpless, and scared.  How do I respond to this???

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That is good.  I can help you when you file a Motion to Compel Arbitration and they attempt to argue you waited way too late.  You can state that you only just saw it when they filed their exhibit with the MSJ.

What I would do is file an opposition to their MSJ.  You must counter argue their point that there is no "genuine issue" for the court to decide.  You must make it clear that the genuine issues are 1.  There is an arbitration clause and the Defendant has filed a Motion to Compel Arbitration, which renders this Court the incorrect venue to decide this matter, and I would also argue that they have not proven that the subject account was among the accounts sold to PRA and have not shown they are the proper party in interest for the subject account.

I would file the MTC at the same time as your opposition - and I would file them VERY quickly.  Remember to mail a copy of both to the attorney as well.

Your time is extremely limited, so here is your crash course on using arbitration to beat them: 

 

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9 hours ago, fisthardcheese said:

That is good.  I can help you when you file a Motion to Compel Arbitration and they attempt to argue you waited way too late.  You can state that you only just saw it when they filed their exhibit with the MSJ.

What I would do is file an opposition to their MSJ.  You must counter argue their point that there is no "genuine issue" for the court to decide.  You must make it clear that the genuine issues are 1.  There is an arbitration clause and the Defendant has filed a Motion to Compel Arbitration, which renders this Court the incorrect venue to decide this matter, and I would also argue that they have not proven that the subject account was among the accounts sold to PRA and have not shown they are the proper party in interest for the subject account.

I would file the MTC at the same time as your opposition - and I would file them VERY quickly.  Remember to mail a copy of both to the attorney as well.

Your time is extremely limited, so here is your crash course on using arbitration to beat them: 

 

Here is my reply to the Motion for Summary Judgment.  Can you please tell me if this is adequate or what I might need to change?

 

NOW COMES the Defendant herein, Brenda G, Pro Se and moves the Court, to

Dismiss Plaintiff’s Motion for Summary Judgement, herein Portfolio Recovery, as pursuant to Rule 56 of

the South Carolina Rules of Civil Procedure, for judgment to be rendered if there is no genuine issue to

material fact.  In support of its Motion, the Defendant shows the Court the following genuine issues to

material fact presented by Plaintiff:

                1. Plaintiff has not satisfactorily proven that they have Legal Standing to seek judgment

against Defendant as evidenced below:

                                a. Bill of Sale entered into as Exhibit “5” by Plaintiff does not identify a name or an

                                   account number showing that Plaintiff purchased subject account.

                                b. Attached spreadsheet which lists basic account information does not have any              

                                    identification of where the spreadsheet originated, and contains no identifying logos

                                    or company name.

                                c. Affidavit submitted by Plaintiff as Exhibit “1” states business records were reviewed

                                   but does not specify what business records were reviewed or what business records

                                   are maintained by the Plaintiff.

                2. Enclosed Lowe’s Credit Card Account Agreement, labeled Exhibit “4” by Plaintiff, states

“most disputes will be subject to individual Arbitration”.  (See page 3 of attached Credit Card

Agreement which has been labeled as Exhibit “4” by Plaintiff, Section Titled “Resolving a

Dispute with Arbitration”.) 

                3. Whereas, Plaintiff has not satisfactorily proven that they own the subject account and have

not proven the Plaintiff has Legal Standing to sue Defendant, and whereas, the Defendant is attaching a

Motion for Arbitration that was filed with JAMS, formerly known as Judicial Arbitration and Mediation

Services, the Defendant submits that the above shows genuine issues to material fact.

                WHEREFORE, the Defendant moves the Court to Dismiss the Motion for Summary Judgment by

Plaintiff, and to dismiss case to Arbitration.

                This the ______________ day of October, 2019.

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Here is my Motion to Strike Affidavit:

 

COMES NOW Defendant, Brenda G, and respectfully states the following:

                1. Plaintiff has submitted into evidence, an affidavit claiming that the affiant has reviewed

business records of the Original Creditor, but does not state how those business records were

maintained by Original Creditor for review, nor whether business records were reviewed by affiant

 before they were transferred to Account Assignee or after transfer (hereinafter referred to as Plaintiff). 

AFFIDAVIT OF DEBT IN SUPPORT OF PLAINTIFF’S CLAIMS (hereinafter referred to as Exhibit “1”). 

                2. The Affiant writing the AFFIDAVIT of DEBT (Exhibit “A”) claims that the records were sold to

Plaintiff, however, the affiant makes this claim “according to business records, which are maintained in

the ordinary course of business” and does not make any claim to having personal knowledge of the sale

or assignment of the debt.

                3. The Affiant writing the AFFIDAVIT OF DEBT (Exhibit “A”) states that “according to the records

transferred” the specific amount owed is the sum of $4,445.15, but does not state whether the affiant

has any knowledge of the accuracy of the records transferred from Original Creditor.

                WHEREFORE, the Defendant, moves the Court that Plaintiff’s Exhibit “1” be stricken from

evidence in the above action.

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@BrendaG

Your opposition tto the Motion for Summary Judgment needs to include SC case law that support ps your opposition.  The same goes for your Motion to Strike the affidavit.

SC courts are pretty tough.  Here’s a decision from the SC Court of Appeals in defendant appealed a lower court’s ruling in favor of the debt buyer.  The Court of Appeals affirmed that the ruling was correct. 

It goes into the information that was contained in the debt buyer affidavit.

https://www.sccourts.org/opinions//unpublishedopinions/HTMLFiles/COA/2014-UP-438.pdf

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I would also specifically state, not only that the credit card agreement contains an arbitration agreement, but that the Defendant has file a motion to compel arbitration according to the terms of this contract provided by the Plaintiff, and that such evidence renders This Court the improper venue to hear this matter due to lack of subject matter jurisdiction.

Also, I am not sure if I would bother with the Motion to Strike, as the Motion to Compel Arbitration would render that moot and asking the court to rule on evidence COULD be considered your choosing court to hear the case and waive your right to arbitration.  Your position should be that the court has NO JURISDICTION to rule either way on the evidence.  That is for the arbitrator to decide on.

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I won.  The judge dismissed both cases against me, told them that the burden of proof was on them, and that they came to court unprepared, since they did not bring a witness with them that could testify to the legitimacy of the records.  The second one asked to approach the bench afterwards, and was asking the court what they would have to do to prove the debt and why an affidavit would not count.  The judge told him that if debtor admits to owing the debt, that it's not a problem for them, but that if the debtor objects to the amount the owed, or claims the debt is not theirs, then the burden of proof falls on them to prove they own the debt and that the records are accurate.  

The first one kept telling me "We'll let the judge the decide" because she asked me if I objected to her admitting records, and I told her that I didn't object to her admitting those records, but that I objected to the whether they could confirm the accuracy of the record.  Again, the judge told them that they came to court unprepared and that it was not on me to prove anything.  That particular lawyer was NOT happy.

But I want to thank you BV80 and fisthardcheese, because I wouldn't have been anywhere near prepared without the two of you.  Thank you thank you thank you!

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Wow - congratulations. Sounds like you got extremely lucky with an ignorant judge.SC has the same Adoptive Business Records as most States, which your judge chose to ignore. 

Plaintiff's lawyer messed up, as well, by not correcting the judge. Sounds like they were shocking by the goofy ruling.

 

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20 minutes ago, Goody_Ouchless said:
Quote

 

Wow - congratulations. Sounds like you got extremely lucky with an ignorant judge.SC has the same Adoptive Business Records as most States, which your judge chose to ignore. 

Plaintiff's lawyer messed up, as well, by not correcting the judge. Sounds like they were shocking by the goofy ruling.


 

I don't think they expected me to fight back.  I think they thought they could just come to court and the judge would rule in their favor.  With the first lawyer, she complained that she did not get the motions I had sent, and therefore did not have time to prepare a rebuttal.  But I could show where the motions were sent to them, and they sat in their PO Box for days before someone picked them up.  

The second one wanted a continuation so they could bring a witness but the judge denied it stating that it was on them to come to court today prepared, and that it is not the defendant's fault that they were not prepared.  

 

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29 minutes ago, Goody_Ouchless said:

Wow - congratulations. Sounds like you got extremely lucky with an ignorant judge.SC has the same Adoptive Business Records as most States, which your judge chose to ignore. 

Plaintiff's lawyer messed up, as well, by not correcting the judge. Sounds like they were shocking by the goofy ruling.

 

Actually, we don’t use the adoptive business records doctrine.  We have no case law that says one business can authenticate the records of another business as long as it relies on those records. 

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1 hour ago, BrendaG said:

they did not bring a witness with them

was asking the court ... why an affidavit would not count.

In a trial, usually they need at least their custodian to testify in order to introduce documents into evidence.  Affidavit(s) might be enough in a summary motion, but not usually in a trial.

 

1 hour ago, BrendaG said:

she asked me if I objected to her admitting records, and I told her that I didn't object to her admitting those records

Waving objection could have been a fatal mistake.  If the judge was unwilling to admit the documents into evidence without supporting testimony from a witness (or waiver of any objection), and you stipulated to the admission of the documents without testimony from such supporting witness, then the judge could have considered the evidence once admitted.

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Pro-consumer judges like this are rare these days. But he still only dismissed the cases and did not give a judgement in your favor, so he cut them a small break.  They don't have to appeal a dismissal, they only have to file again.  It is extremely rare that they ever do this, but I suppose this attorney could have an extra grudge against this judge and use that as motivation.  I wouldn't worry about it, though, because if they do, you will just go for arbitration right from the start and beat them again.  So for now, revel in your win over an experienced attorney.  Great job!!

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