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Noreturn

Opposition to Summary Judgment *update* MSJ Denied

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Help understanding how to respond in opposition to Plaintiff's (P.R.A) undisputed material facts and memorandum. Cause of action in Plt's Complaint is clearly account stated  theory. Plt has admitted in discovery they are suing on the theory of account stated, therefore do not have to provide proof of a contract. Plt filed their MSJ, looks to me like breach of contract. Any advice?

Plt's Undisputed Material Facts

1. Defendant executed a contract in favor of CapOne and thereafter used or authorized the use of the credit card to obtain credit from the Plaintiff for the purpose of obtaining goods, services and or cash advances

2. CapOne sent written periodic statements to Defendant which reflected each transaction, including purchases and cash advances, finance charges, late charges and payments made. See attachments and Affidavit. (12 months worth of statements account open for 5 years, oc affiant does not produce testimony about the statements debt buyer affiant does not produce testimony about these statements)

3. Defendant failed to make payments to CapOne pursuant to the terms of the contract. Said payments are now delinquent in the amount of $5555.555. See OC Affidavit ( the only oc affidavit is a "affidavit of assignment" does not mention anything about a contract or agreement)

4. Defendant has failed to make payments to Plaintiff pursuant to the terms of the contract, Defendant owes Plaintiff $5555.55

In my reply I understand I basically counter everything here citing to proof on the record and providing a declaration or affidavit. In my argument section should I still argue my position defending against account stated? Advise for counter response to these a-holes 

Plt's Memorandum

In this case there is no genuine issue of material fact. Plt has established in this memorandum and the accompanying affidavits facts which are material to this case. Defendant entered into a contract with CapOne, establishing a credit account. Thereafter, Defendant used said account to obtain good, services. Periodic written statements where sent to Defendant. Defendant then failed to make payments pursuant to the terms of the contract. Plt is entitled judgement as a matter of law. 

Is this not sounding like a breach of contract MSJ?

Edited by Noreturn
oh really moment

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On 12/7/2019 at 9:51 AM, Noreturn said:

Plt has admitted in discovery they are suing on the theory of account stated, therefore do not have to provide proof of a contract. Plt filed their MSJ, looks to me like breach of contract.

The two are not mutually exclusive. They established that underlying debt was created via contract. If PRA sent a demand for payment and you didn't dispute it, they can then sue you on account stated. 

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3 hours ago, Harry Seaward said:

The two are not mutually exclusive. They established that underlying debt was created via contract. If PRA sent a demand for payment and you didn't dispute it, they can then sue you on account stated. Ok I see they can't Sue on account stated without establishing the original agreement. I did dispute the debt upon payment demand prior to being served via debt validation. Of course they responded that the debt was valid. 

 

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12 hours ago, Noreturn said:

Ok I see they can't Sue on account stated without establishing the original agreement.

They can. Not every debt originates with a contract. But in your case, they are making sure the court knows that your debt did originate with a contract for simplicity purposes. 

 

12 hours ago, Noreturn said:

I did dispute the debt upon payment demand prior to being served

I would address that this necessarily precludes them from being able to make an account stated claim. Somewhere in their complaint they should have alleged that you didn't dispute the amount claimed. Did you send your dispute via certified mail? 

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Attached as an exhibit is my debt disbute letter and PRA response. Also I've submitted plaintiffs request for admissions, I denied their admissions that " you have not disputed this debt". Plaintiffs complaint does not claim the debt hasn't been disputed. I'm searching now for Idaho case law, specifically account stated theroy cause of action involving disputed debt prior to commencement. 

Part of my defense is Portfolio does not have a affidavit from the OC. No foundation to submit billing statements. No testimony that OC sent the billing statements. Just an affidavit from PRA custodian claiming the documents are their business records. I'm afraid my opposition is too long, PRA memorandum is 2 pages. 5 undisputed material facts, one paragraph  S.J legal standing and one paragraph summarizing their facts. 

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34 minutes ago, Noreturn said:

Attached as an exhibit is my debt disbute letter and PRA response. Also I've submitted plaintiffs request for admissions, I denied their admissions that " you have not disputed this debt". Plaintiffs complaint does not claim the debt hasn't been disputed. I'm searching now for Idaho case law, specifically account stated theroy cause of action involving disputed debt prior to commencement. 

Part of my defense is Portfolio does not have a affidavit from the OC. No foundation to submit billing statements. No testimony that OC sent the billing statements. Just an affidavit from PRA custodian claiming the documents are their business records. I'm afraid my opposition is too long, PRA memorandum is 2 pages. 5 undisputed material facts, one paragraph  S.J legal standing and one paragraph summarizing their facts. 

https://scholar.google.com/scholar_case?case=5217588372009441389&q=“credit+card”+AND+“debt”&hl=en&as_sdt=4,13

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36 minutes ago, BV80 said:

"made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation"

As usual, where the rubber meets the road on these cases lies within the wording of the affidavit. 

@Noreturn can you post a redacted copy of the affidavit they used? 

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1 hour ago, Noreturn said:

Attached as an exhibit is my debt disbute letter and PRA response.

What did you dispute, specifically, with PRA? For Account Stated they are most likely using the final balance that was never disputed with the Original Creditor. As for the rest, the problem with arguing against an MSJ is that you need something concrete - like a witness that will testify PRA made up the whole thing just to stick it to you. Just saying "I dispute this because I never entered into a relationship with PRA" is a waste of time.

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I wasn't sure what I was doing. I asked them to basically verify the amount. Without admitting to the debt I questioned what information they used to determine the balance and why they thought I was the responsible party. Thanks for the link! I really needed this. 

I am also filing a cross motion for summary judgment based on the credit card agreement which states virgina law governs and that per virgina code 8.01-246 the action is time barred. 

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5 hours ago, Harry Seaward said:

"made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation"

As usual, where the rubber meets the road on these cases lies within the wording of the affidavit. 

@Noreturn can you post a redacted copy of the affidavit they used? 

This is totally my case except OC and cause of action. Rightous!

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Need help creating a memorandum of judicial notice for forien law consideration. My case is time barred by Virgina Statute of limitations code 8.01-246 the case is being heard in Idaho magistrate court.

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28 minutes ago, Noreturn said:

Need help creating a memorandum of judicial notice for forien law consideration.

While this seems straightforward, there's potentially a lot here to unpack. First and foremost, you need to find out if your state has a borrowing statute. Absent that, you have to see if there is any Idaho caselaw that has previously decided on SOL issues where a contract elects a foreign SOL. If neither of those things yield results, you need to find out if Idaho relies on Restatement (second) of Contracts. Traditional views are that SOL is procedural as opposed to substantive, meaning courts will generally apply their own state's SOL statutes. However, courts in states that rely on Restatement may be persuaded to apply Section 187, which says that the foreign SOL should be used, absent any local laws (including caselaw) to the contrary.

I highly doubt you'll get past both of the first two checkpoints, though.  SOL is of the most litigated issues and I'm nearly 100% positive you'll find several Idaho cases that have ruled on this exact issue. 

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1 hour ago, Harry Seaward said:

This should have answers to all of your questions. It seems the decision will hinge on the "most significant relationship" as analyzed in Section III.

49-3-jorgensen-andrew-s.pdf 593.18 kB · 0 downloads

Idaho does recognize and relies on the second restatement of contracts including the relationship test. I've found case law where Idaho noticed Delaware Sol in Unifund vs ? ( Can't recall) however I believe arbitration was a factor.

At this point it's really my only option unless the Court buy's into my objections to PRA's affidavits. I am thinking of filing a motion to take judicial notice of Virgina law, I guess just cite Virgina code, case law and statutes ?

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43 minutes ago, Noreturn said:

Idaho does recognize and relies on the second restatement of contracts including the relationship test.

The key will be convincing your court that VA has a more significant relationship to the debt. FWIW, I tried this in AZ and it didn't work. 

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I'm gonna give it a shot thanks for the help getting started and suggesting to focus on the most significant relationship test. I found case law applying California Sol hopefully i can convince the Court 

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On 12/28/2019 at 3:14 PM, Harry Seaward said:

The key will be convincing your court that VA has a more significant relationship to the debt. FWIW, I tried this in AZ and it didn't work. 

Summary Judgment Hearing in a couple days. Reviewing material, thoughts on plaintiff's statement of undisputed fact.... I was certain the opposing attorney would have attempted to address  #1 with a reply brief. Nope. Nothing filed time is up. Seems like this jacked up statement would be enough for the judge to deny their motion???    Also #2 statement, no testimony made in either affidavit, by oc or plaintiff that cap1 "sent periodic written statements" isn't this testimony essential for an account stated theory? does the lack of testimony show plaintiff failed to establish the elements for the cause of action?

1. Defendant executed a contract in favor of CapOne and thereafter used or authorized the use of the credit card to obtain credit from the Plaintiff for the purpose of obtaining goods, services and or cash advances. Response; There is no admissible evidence to show Defendant entered into a contract with Cap1 to obtain credit from the Plaintiff . See record- plaintiff's complaint

2. CapOne sent written periodic statements to Defendant which reflected each transaction, including purchases and cash advances, finance charges, late charges and payments made. Response; There is no admissible evidence or testimony showing Cap1 sent written periodic statements See exhibit c- defendant's response to plaintiff's request for admissions.

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Summary Judgment Hearing in a couple days. Reviewing material, thoughts on plaintiff's statement of undisputed fact.... I was certain the opposing attorney would have attempted to address  #1 with a reply brief. Nope. Nothing filed time is up. Seems like this jacked up statement would be enough for the judge to deny their motion???    Also #2 statement, no testimony made in either affidavit, by oc or plaintiff that cap1 "sent periodic written statements" isn't this testimony essential for an account stated theory? does the lack of testimony show plaintiff failed to establish the elements for the cause of action?

1. Defendant executed a contract in favor of CapOne and thereafter used or authorized the use of the credit card to obtain credit from the Plaintiff for the purpose of obtaining goods, services and or cash advances. Response; There is no admissible evidence to show Defendant entered into a contract with Cap1 to obtain credit from the Plaintiff . See record- plaintiff's complaint

2. CapOne sent written periodic statements to Defendant which reflected each transaction, including purchases and cash advances, finance charges, late charges and payments made. Response; There is no admissible evidence or testimony showing Cap1 sent written periodic statements See exhibit c- defendant's response to plaintiff's request for admissions.

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8 hours ago, Noreturn said:

There is no admissible evidence or testimony

What do you mean by this? What was included with the MSJ?

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On 12/12/2019 at 4:45 PM, Harry Seaward said:

"made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation"

As usual, where the rubber meets the road on these cases lies within the wording of the affidavit. 

@Noreturn can you post a redacted copy of the affidavit they used? 

In the case I cited, the ID Supreme Court stated this:

MacDonald argued that the statements contained in the Robertson Affidavit are likely based on information contained on a computer screen. We agree. The fact that Robertson's statements are based on electronic information, however, still implicates Rule 803(6). The Rule makes it clear that a business record can be in any format. In other words, a paper printout is not required to fall under the Rule. Having said that, however, we recognize that electronic information raises heightened concerns about accuracy and authenticity. This is where the foundation for Robertson's statements falls apart.

Robertson stated in his affidavit that Citibank records showed that the account linked to MacDonald was sold to PRA. He did not identify the records he examined and did not explain when or how the information was entered into the Citibank records. Robertson also stated that Citibank prepared and delivered a spreadsheet to PRA reflecting account information as of the sale date. Robertson does not explain, however, how that spreadsheet was made or the procedural safeguards that were used to make sure that the information taken from Citibank records and put on the spreadsheet was accurate. His affidavit also does not contain any statement verifying that the information on the spreadsheet was still accurate at the time of his affidavit. The reality is that consumers do not always know or understand when accounts are sold and may make payments to their credit card company that are not reflected on a spreadsheet created at the time of the sale of the debt. For these reasons we find that the foundation for the statements contained in the Robertson Affidavit was not adequate under Rule 803(6).

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Plaintiff Affidavit 3 pages

Capital One Services affidavit single page

Untitled spreadsheet document not referenced  single page

1739904460_Scan_20200102(4).thumb.png.9952716115c12fa7b7c87de586e0f34e.png1371239202_Scan_20200102(5).thumb.png.fefaa90fbdf00e3f3f483c87586a8992.png

Edited by Noreturn
Removed docs in case opposition surfs this forum

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3 hours ago, Harry Seaward said:

What do you mean by this? What was included with the MSJ?

I meant that plaintiff does not have evidence to support their material fact. The evidence they are attempting to admit into evidence has been objected to- hearsay among others not admissible. If my thinking is a$$ backwards please advise

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2 hours ago, Noreturn said:

The evidence they are attempting to admit into evidence has been objected to- hearsay among others not admissible.

Objecting to it isn't the end of the road. The court will evaluate your objection, and supporting arguments, and then either sustain or overrule it. 

FYI, the records are not hearsay if they are properly introduced, which can be accomplished via affidavit. This is why we keep asking to see the affidavit. 

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