As I do research on various topics, or read cases that have come out just to keep on top of the law, certain cases or parts of cases stand out as being particularly useful. They say helpful or insightful things that will be useful – if not today – then predictably at some point. So I save these citations or phrases and call them snippets. They aren’t focused on anything other than debt law in general, but reading this page will be educational at least. And you may very well find them helpful at some point.
Legal Precedents to Strike Affidavits of Debt and Motions for Summary Judgment
In Colorado Capital Investments, Inc. v. Villar, 5894/2005 (1’J.Y. Civ. Ct., June 4, 2009), “(“None of these assignments, however, contain a list of the accounts which were included in the transfer. Thus on their face, these assignments and bills of sale do not specify that defendant’s account was included in any transfer, and cannot support movant’s contention that defendant’s account was so transferred”).”
In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L. Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt buyer “assignment” that does not refer to specific accounts does not establish ownership by the plaintiff, nor is testimony based on a computer screen sufficient.
In Velocity Investments, LLC v. Alston, 2-08-746 (2nd Dist., Jan. 15, 2010), supra, “Generic” (i.e. Bill of Sale) contracts that cannot be identified as pertaining to the specific account sued upon.
In re A.B., 308 Ill.App. 3d 227, 236, 719 N.E.2d 348 (2nd Dist. 1999), “It is the business records that constitute the evidence, not the testimony of the witness referring to them.”
In Kleet Lbr. Co., Inc.v. Lucchese, 2007 NY Slip Op 51928U, 2007 NY Slip Op 51928U, 17 Misc. 3d
1111A, 2007 N.Y. Misc. LEXIS 6909 (Dist. Ct., Nassau County, Oct. 10, 2007), “If records are submitted, they must be properly authenticated.”
The next legal precedent, which also includes several important precedents, is very interesting as it involves the junk debt buyer Unifund and affidavits in support of summary judgment.
In Luke v. Unifund CCR, 2-06-444-CV, 2007 Tex. App. LEXIS 7096, “Affidavits in support of summary judgment must set forth such facts as would be admissible in evidence at trial.” Tex.R. Civ. P . 166a(f); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997); Abe’s Colony Club, Inc. v. C & W Underwriters, Inc., 852 S.W.2d 86, 88 (Tex.App.-Fort Worth 1993, writ denied).
“Affidavits are competent summary judgment evidence if they are made on personal knowledge and show affirmatively that the affiant is competent to testify to the matters stated therein.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Abe’s Colony Club, Inc., 852 S.W.2d at 88.
An affidavit that is conclusory is substantively defective. Brown, 145 S.W.3d at 751.
A conclusory statement is one that does not provide the underlying facts to support the conclusion. Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 50 (Tex.App.-San Antonio 2005, no pet.); Brown, 145 S.W.3d at 751.
When an affidavit in a summary judgment proceeding refers to other papers, sworn or certified copies of those papers must be attached to the affidavit. Tex.R. Civ. P. 166a(f); Brown, 145 S.W.3d at 752.
An affidavit is substantively defective when the absence of the referenced papers from the summary judgment evidence leaves the affidavit conclusory. Brown, 145 S.W.3d at 752.
In Wirth v. CACH, LLC, 300 Ga. App. 488, 490-491, 685 S.E.2d 433, 435-436 (2009), “Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth’s account number as one of the accounts Washington Mutual assigned to Cach. The record is also devoid of any evidence which reflects that Washington Mutual purchased Providian to support the chain of assignment to Cach. See Ponder v. CACV of Colorado, LLC, 289 Ga. App. 858, 859 (658 SE2d 469) (2008) (record was devoid of evidence supporting CACV’s allegation that it was the successor in interest to Fleet Bank’s right to recover any outstanding debt from Ponder). Given the foregoing, we conclude that “[t]his evidence, even together with the reasonable inferences from it, was insufficient to establish all essential elements of [Cach’s] case.” Nyankojo, supra, 298 Ga. App. at 10. We therefore reverse the trial court’s order granting summary judgment in favor of Cach.”
In Norfolk Financial Corp. v. Mazard, 2009 Mass. App. Div. 255, 2009 Mass App. Div. LEXIS 54, *10-11 (Nov. 12, 2009), “Nor, finally, do the business records attached to the Medeiros affidavit establish Norfolk’s status as the valid assignee of Mazard’s alleged Household account. By the ten bills of sale attached to the affidavit, Norfolk showed only that, between April, 2001 and March, 2005, multiple accounts were assigned from Bank of America, N.A. (“BOA”) to Worldwide Asset Purchasing, L.L.C. (“Worldwide”), from Worldwide to Seller and Risk Management Alternatives Portfolio Services, LLC (“SRMAPS”), from SRMAPS to North Star Capital Acquisition, LLC (“North Star”), from North Star to Global Acceptance Credit Corporation (“Global”), and finally, in March, 2005, from Global to Norfolk. Norfolk failed, however, to present any evidence of an assignment of Mazard’s account from Household to BOA. Further, although the attached exhibits were admissible under the business records exception to the hearsay rule, see G.L. c. 233, § 78; Beal Bank, SSB v. Eurich, 444 Mass. 813, 817, 831 N.E.2d 909 (2005), not one makes any reference to Mazard’s Household account. Mazard’s account is not identified in any of the ten bills of sale. And although each bill of sale states that the accounts being assigned are listed in respectively attached schedules, none of those schedules were provided by Norfolk in support of its motion.
In Citibank (South Dakota), N.A. v. Martin, 11 Misc. 3d 219; 807 N.Y.S.2d 284 (Civ.Ct. 2005), “as to assigned claims, it is essential that an assignee show its standing, which “doctrine embraces several judicially selfimposed limits on the exercise of … jurisdiction, such as the general prohibition on a litigant’s raising another person’s legal rights” . . . A lack of standing renders the litigation a nullity, subject to dismissal without prejudice . . . . It is the assignee’s burden to prove the assignment . . . . Given that courts are reluctant to credit a naked conclusory affidavit on a matter exclusively within a moving party’s knowledge . . . an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment”
Fraudulent and False “Personal Knowledge” affidavit legal precedents
Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 Tex.App. LEXIS’ 7096 (2nd Dist. Ft. Worth Aug. 31, 2007). (see above)
Palisades Collection LLC v. Haque, 2006 N.Y. Misc. LEXIS 4036; 235 N.Y.LJ. 71 (Civ. Ct. Queens Co., April 13,2006) (Pineda-Kirwin, 1.) “Ms. Bergman testified that plaintiff is authorized to perform any and all acts relating to certain accounts assigned to plaintiff by AT&T Wireless pursuant to a limited power of attorney and a bill of sale and assignment of benefits. These two documents, both dated July 2004, were admitted into evidence as plaintiffs ExhibitlA and lB. These documents, however, name, as the assignee, an entity which is a Delaware limited liability company, not a New Jersey Corporation, as this plaintiff alleges itself to be. Nor do the documents contain an indication that consideration was paid for the assignment and neither document is executed by plaintiff as the assignee. Further the assignment refers to a “Purchase and Sale Agreement” and indicates that an “Account Schedule” is attached to that agreement. Plaintiff did not seek to introduce the “Purchase and Sale Agreement” with its annexed schedule into evidence.”
Palisades Collection, LLC a/p/o AT&T Wireless v. Gonzalez, 10 Misc. 3d 1058A; 809 N.Y.S.2d 482 (N.Y.County Civ. Ct. 2005): Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432 (6th Cir. 2006) “Finally, Ms. Bergmann claims that plaintiff is entitled to sue because of an assignment to it from AT&T. However, she does not attach a copy of the alleged assignment. In the absence of the document on which her statement is based, her statement is of no probative value … Consequently, Ms. Bergmann has failed to establish that plaintiff has the right to collect this debt.”
WHITTIKER v. DEUTSCHE BANK NATIONAL TRUST COMPANY, 2009 “false affidavit attached to complaint” all the while knowing that they did not have means of proving the debt”
Gearing, 233 F.3d at 472 (finding violation of Section 1692e(10) (of FDCPA) “where debt collector filed complaint to collect debt with attached affidavit falsely claiming collector was subrogee (i.e. assignee) of original creditor).”
Definition of subrogee (as used above): n. the person or entity that assumes the legal right to attempt to collect a claim of another (subrogor) in return for paying the other’s expenses or debts which the other claims against a third party.
Rushmore Recoveries.x; LLC v. Skolnick, 15 Misc. 3d 1139A; 841 N.Y.S.2d 823 (Nassau Co. Dist. Ct. 2007), “the documents upon which the Plaintiff relies do not support the Plaintiffs claim. While the Plaintiff alleges that it is the assignee of this account, the Plaintiff fails to provide proper proof of the alleged assignment sufficient to establish its standing herein. The Plaintiff has made no effort to authenticate the alleged assignments, NYCTL 1998-2 Trust v. Santiago, 30 AD3d 572,817N. Y.S.2d 368 (2nd Dept. 2006); [**9] and, there is a break in the chain of the assignments from Citibank down to the Plaintiff. The purported assignment from NCOP Capital, Inc. to New Century FinanCial Services, Inc., Plaintiffs alleged assignor, is not signed at all on behalf of NCOP Capital, Inc. There being no competent proof that the assignment to New Century Financial Services, Inc. was valid, the Plaintiff cannot establish the validity of the assignment from New Century Financial Services, Inc. to the Plaintiff, preventing [*4] the granting of summary judgment for this reason as well….”
MBNA America Bank, NA. v. Nelson, 13777/06,2007 NY Slip Op 51200U; 2007 N.Y. Misc. LEXIS 4317 (N.Y.Civ. Ct. May 24, 2007), “It is imperative that an assignee establish its standing before a court, since “lack of standing renders the litigation a nullity.” It is the “assignee’s burden to prove the assignment” and “an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment.” Such assignment must clearly establish that Respondent’s account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner”
Other legal precedents regarding false or fraudulent affidavits
Griffith v. Javitch, Block & Rathbone, LLP, 1:04cv238 (S.D.Ohio, July 8, 2004);
Gionis v. Javitch, Block & Rathbone, 405 F. Supp. 2d 856 (S.D.Ohio. 2005);
Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 655 (S.D.Ohio 2004), later opinion, 395 F.Supp.2d 662 (S.D.Ohio 2004);
Stolicker v. Muller, Muller, Richmond, Harms, Meyers & Sgroi, P.C., 1:04cv733 (W.D.Mich., Sept. 8, 2005).
Hartman v. Great Seneca Fin. Corp., Nos. 08-3773/3804, 2009 U.S. App. LEXIS 14110 (6th Cir., June 30, 2009). (Fake Statement)
There are some judgments that will be very helpful for you to know – both because they may actually apply to your jurisdiction or be persuasive to your court, and also because they will give you ideas about the things you need to argue.
Motions to Dismiss
Target_Decision (Pennsylvania, Account Stated, breach of contract on motion to dismiss)
Motions for Summary Judgment
Discover-Bank-v-Sura-w (New York, Account Stated, breach of contract on summary judgment)
Royal Financial vs. PerkinsPerkins
This is a case in which the Eastern District of the Missouri Court of Appeals holds that the pleadings of a lawsuit filed by a debt collector can violate the Fair Debt Collection Practices Act (FDCPA) by being both an “unfair means” and “deceptive communication” as well as equating to an “empty threat.” It’s a powerful decision, and while it seems obvious in a way, the debt collectors always argue that the actions they take in a lawsuit are exempt from the FDCPA as being under the “inherent” control (only) of the trial court.
The courts seldom exercise their power to control debt collectors during the initial litigation (in which the debt collector is suing a debt defendant), but sometimes you can get a much better result through bringing an action under the FDCPA.