Noreturn

Opposition to Summary Judgment *update* MSJ Denied

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30 minutes ago, Harry Seaward said:

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. 

Plaintiffs affidavit are posted now

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PRA's affidavit is solid. Cap1s doesn't say "personal knowledge", but the affiant says she is an employee, so the court may infer personal knowledge. 

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25 minutes ago, Harry Seaward said:

PRA's affidavit is solid. Cap1s doesn't say "personal knowledge", but the affiant says she is an employee, so the court may infer personal knowledge. 

In the ID Supreme Court ruling, the affiant of the Citibank affidavit was a Citibank employee, yet the court ruled the affidavit was insufficient.  

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1 minute ago, BV80 said:

he court ruled the affidavit was insufficient.

Because she didn't say "personal knowledge"?

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14 minutes ago, BV80 said:
 

In the ID Supreme Court ruling, the affiant of the Citibank affidavit was a Citibank employee, yet the court ruled the affidavit was insufficient.  

Do you think being an affiliate of cap1 without person knowledge makes the affiant competent? 

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5 minutes ago, Harry Seaward said:
 
 

Because she didn't say "personal knowledge"?

In this paragraph, the court doesn’t mention personal knowledge. 
 

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).
 

The only affidavit in this case that mentions “personal knowledge” is the JDB’s affidavit.  There is no mention of it in the OC’s affidavit.

 The JDB affiant says her knowledge is based upon how the Plaintiff keeps and maintains its records.  She did not say she had knowledge of how Cap1 maintains its records.   The court pointed out that the OC “did not identify the records he examined and did not explain when or how the information was entered into the Citibank records.”  That information is not included in either of the affidavits in this case.  

 

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1 minute ago, Noreturn said:

Do you think being an affiliate of cap1 without person knowledge makes the affiant competent? 

The Supreme Court pointed out the deficiencies in the Citibank affidavit.   The affidavit is included in the ruling.  Study what the court said should be in the affidavit and point out that the requirements laid out by the ID Supreme Court are not included in either affidavit in your case.  

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4 minutes ago, BV80 said:

In this paragraph, the court doesn’t mention personal knowledge. 
 

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).
 

The only affidavit in this case that mentions “personal knowledge” is the JDB’s affidavit.  There is no mention of it in the OC’s affidavit.

 The JDB affiant says her knowledge is based upon how the Plaintiff keeps and maintains its records.  She did not say she had knowledge of how Cap1 maintains its records.   The court pointed out that the OC “did not identify the records he examined and did not explain when or how the information was entered into the Citibank records.”  That information is not included in either of the affidavits in this case.  

 

Used in my objection to affidavit

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9 minutes ago, BV80 said:

The Supreme Court pointed out the deficiencies in the Citibank affidavit.   The affidavit is included in the ruling.  Study what the court said should be in the affidavit and point out that the requirements laid out by the ID Supreme Court are not included in either affidavit in your case.  

👍 Will I be able to to supplement my objections orally during the hearing? I wish I would have emphasize a little stronger

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MSJ DENIED

Motion for summary judgment based on allegations of an account stated w/ Capital One DENIED.  Because of this forum! I immediately filed a sworn declaration attesting that the bank did not provide "periodic account statements" more specifically a final statement. I made valid objections to PRA's affidavits, all learned here. Thanks y'all. Now should I file my own MSJ or let it move onto trial?

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I doubt you will get your own MSJ granted because PRA has the right to defend against your claims that you made in opposition to their MSJ. What happened was that you had shown the judge that there were issues that required a trial to oppose their MSJ. Now if you file a MSJ yourself, you are suddenly telling the court that there are no issues requiring a trial. That will not fly.

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3 hours ago, WhoCares1000 said:

I doubt you will get your own MSJ granted because PRA has the right to defend against your claims that you made in opposition to their MSJ. What happened was that you had shown the judge that there were issues that required a trial to oppose their MSJ. Now if you file a MSJ yourself, you are suddenly telling the court that there are no issues requiring a trial. That will not fly.

I hadn't thought of that...thanx

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15 hours ago, Noreturn said:

Now should I file my own MSJ or let it move onto trial?

I beat Cavalry's MSJ, then got cocky and filled my own MSJ. Not only did my MSJ get denied, Cavalry filed a second MSJ, identical to the first, that was then granted. 

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5 hours ago, Harry Seaward said:

I beat Cavalry's MSJ, then got cocky and filled my own MSJ. Not only did my MSJ get denied, Cavalry filed a second MSJ, identical to the first, that was then granted. 

Pointers to prepare for trial? Opposing mentioned something about providing me a notice to obtain additional documents, any idea what notice he may send?

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On 1/2/2020 at 4:26 PM, Harry Seaward said:

PRA's affidavit is solid. Cap1s doesn't say "personal knowledge", but the affiant says she is an employee, so the court may infer personal knowledge. 

Reading through this thread and it made me wonder about my case.

On the Affidavit of Debt, the Affiant states she is a designated full time employee of the Plaintiff (Unifund).  She goes on to say, I am familiar with the record keeping practices of Plaintiff.  The following representations are true according to documents kept in the normal course of Plaintiff's business and/or my personal knowledge.

The account number that plaintiff filed is incorrect, according to the copies of credit card statements sent with the MSJ they filed.

Is there something to this?

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9 hours ago, cedric_86 said:

Is there something to this?

There is whatever the court makes of it. Some judges would end the trial right there, full stop. Others would brush it off as a harmless clerical error, provided everything else mates up. 

There's no magic bullet in any of this stuff. Evidence admission is almost entirely at the court's discretion, so the judge is always a wild card. Best advice I can give anyone is to find a day where their court has a few debt collection trials scheduled, and go sit in on them to see how it works, and how the judge tends to lean.

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3 minutes ago, Harry Seaward said:

There is whatever the court makes of it. Some judges would end the trial right there, full stop. Others would brush it off as a harmless clerical error, provided everything else mates up. 

There's no magic bullet in any of this stuff. Evidence admission is almost entirely at the court's discretion, so the judge is always a wild card. Best advice I can give anyone is to find a day where their court has a few debt collection trials scheduled, and go sit in on them to see how it works, and how the judge tends to lean.

Can you take a look at my post on my thread Being Sued by Unifund in Indiana. I don't want to hijack the OP's thread but could use some help.  Thanks

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