Summary Judgment options in AZ Justice Court

Key issue is the usual hearsay evidence of affidavit.

In prior case in same Court last year got a motion to strike Affidavit APPROVED and got Motion for Summary Judgment dismissed. But now I have the opposite result in another case.

Now I did a far more extensive memorandum of law in my opposition to Summary Judgment with even more case law to support and it was ignored and Summary Judgment entered against me. My next step was going to be the motion to strike affidavit but basically that was also in my opposing Summary Judgment motion to show legal issues so should not get Summary Judgment but they did.

The Plantiff attorneys (Zwicker) in their response to my motion opposing Summary Judgment cited the infamous Chaudhry v. Gallerizo suit which as often mentioned here had NOTHING to do with affidavits as evidence in a civil case but was a FDCPA violation case and an argument over attorney fees.

Again no relevance to my current credit card/affiant case yet the day after I received their response using it I was sent the notice of Summary Judgment.

I am now confused over my options. Not clear from all I read - I know I can file an Appeal (Notice of Appeal followed by Memorandum) to Superior Court but unless you post bond for the full amount of the judgment (Supersedeas Bond) it will not stop collection action such as levy etc.

I believe there is a way to file Motion For Reconsideration or to vacate Summary Judgment but so far have not found a good example or exactly how.

If anyone can point me in the right direction would be much appreciated.

 

Thanks for comments.

1) I don't think a "judge" ever saw either. On the Summary judgment scrawled impossible to read on the order the Plaintiff attorney prepared with an a Court stamp and an initial under the signature.

On my earlier motion to strike affidavit it was a check the box Court document that was sent to me which had approved checked for my strike affidavit and another with disapprove of the Summary Judgment filed by Plaintiff. The same judge is listed for the case but both seem to have been done by a clerk with the opposite results. I had basically repeated and expanded in my Answer to Summary Judgment and Memorandum of law my earlier Strike motion but it had far more cites and Memorandum in support. This was in addition to the normal wording about there were legal issues and why should not have a summary judgment.

2) Yes extensive "Response to Motion For Summary Judgment and Objection to Plantiff's Affidavit in Support of Claim." I used much same wording as before which was approved and went further on the striking of affidavits because the Plaintiff did a long Memo on law and facts as part of his SJ motion.

There is no signed application only a computer record and used additional case law where computer records tossed as hearsay.

Actually if I can post this all here - here is most of my response:

1. Plaintiff purports to have its principal place of business in Newark Delaware yet the hearsay affidavit (Plaintiffâ??s Exhibit 3) of Kevin Fletcher, who claims to have reviewed the records in sworn statement sore the statement that indicates that it was prepared and the Notary Public is from Bexar County Texas. The purported Statements of Account have as the only address shown as Palatine IL.

2. Exhibit 3.1 of Plaintiffâ??s Statement of facts shows a purported unsigned computer record with â??First USAâ? I have never heard of them and there is no evidence of any transfer of ownership to Chase Bank.

3. The purported Statements in Plaintiffâ??s Exhibit 3.6 are from â??Amazon.com.â? There is no documented evidence that Chase Bank USA,N.A. is the purported credit card owner or that the statement being a purported copy is not altered. And the only purported application is from â??First USAâ?.

4. The purported â??Business Credit Card Agreementâ? Plaintiffâ??s Exhibit 3.9 is a generic, undated and unsigned document.

5. There is NO evidence that Chase Bank USA.N.A. is an assignee of First USA or Amazon.com and would be entitled to anything from Defendant.

6. Plaintiff purports be representing Chase Bank, USA, N.A. but there is no documentation that they hired Zwicker & Associates, P.C. to represent them as attorneys. If they are acting as a debt collection firm. Zwicker & Associates is not licensed with the Arizona Department of Financial Institutions in their listings.

MEMORANDUM OF POINTS AND AUTHORITIES

Requirements for Summary Judgment Not Met

The only evidence of the debt is a hearsay affidavit with as stated in the facts the validity is in question.

On summary judgment, a witness must demonstrate (1) familiarity with the person who prepared the document and (2) the manner in which it was prepared. See Villas at Hidden Lakes Condos Assâ??n v.Geupel Constr. Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App. 1992) (finding that an association failed to establish a prima facie case entitling it to summary judgment because its supporting affidavit did not provide foundation for the affiantâ??s personal knowledge and conclusions, nor did it demonstrate his familiarity with the person who prepared the affidavit exhibits or the manner in which they were prepared); Chess v. Pima County, 126 Ariz. 233, 235, 613 P.2d 1289, 1291 (App. 1980) (an affidavit does not comply with the rule when â??it contains conclusions and fails to show that the affiant is competent to testify to the matters stated thereinâ?). ¶

The Ninth Circuit follows this approach. See Canada v. Blainâ??s Helicopters, Inc., 831 F.2d 920 (9th Cir. 1987) (holding that â??this court has consistently held that documents which have not had a proper foundation laid to authenticate them . . . may not be relied upon for a summary judgmentâ?) (citing Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976); United States v. Dibble, 429 F.2d 598, 601-02 (9th Cir. 1970)); see also Alganesh Beyene v. Coleman Security Svcs., Inc., 854 F.2d 1179, 1181-82 (9th Cir. 1988) (citing Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 n. 9 (9th Cir. 1980)).

The proffered exhibits have not been authenticated by someone with first-hand knowledge, do not qualify for the business records exception and are thus inadmissible and should be excluded from the Courtâ??s consideration.

OBJECTION TO PLAINTIFFâ??S AFFIDAVIT IN SUPPORT OF CLAIM

Too long will have to post another reply...

 

There is No Admissible Evidence to the Validity or Accuracy of the Debt.

Arizona Rule of Civil Procedure 56 sets the standard for affidavits used for Summary Judgments: â??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.â? See also Ariz. R. Evid. 901(b)(1) (authentication includes â??[t]estimony that a matter is what it is claimed to beâ?).
Affidavit only states Affiant has â??reviewed the recordsâ? regarding the purported account. He has no personal knowledge of the signing and the preparation or the original agreement alleged to create this supposed debt.

Furthermore, plaintiff has not established sufficient foundation for the application of the business records exception to the hearsay rule with respect to the proffered exhibits. Plaintiffâ??s attempt in their affidavit to â??authenticateâ? these exhibits is insufficient as a matter of law to qualify them for the business records exception to the hearsay rule. See Capital Funding, VI, LP v. Chase Manhattan Bank USA, N.A., 2005 U.S. Dist. LEXIS 2212 (E.D. Pa. Feb. 11, 2005). Similarly, plaintiffâ??s attempt to â??authenticateâ? these exhibits is insufficient.

It is the business records that constitute the evidence, not the testimony of the witness referring to them. In re A.B., 308 Ill.App. 3d 227, 236, 719 N.E.2d 348 (2nd Dist. 1999) (â??Under the business records exception . . . it is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible . . . . In other words, a witness is not permitted to testify as to the contents of the document or provide a summary thereof; the document speaks for itself.

Concerns about the accuracy of computer are growing that there should be stricter standards for courts for admitting computer records into evidence. The Vinhnee decision of the Ninth Circuit Bankruptcy Appellate Panel in Am. Express Travel Related Servs v. Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir 2005) lays out an approach that reflects common concerns by courts and commentators that maybe should be considered by other jurisdictions.

In Vee Vinhnee the court pointed out that authenticating a paperless electronic record in principle poses the same issue as for a paper record. But because "one must demonstrate that the record that has been retrieved from the file, be it paper or electronic, is the same as the record that was originally placed into the file," there is an important distinction. When one retrieves the paper that was put in the file, there usually is no issue that it may have been altered after its creation.

When one retrieves an electronic file, there must be some showing that the computer system ensures the integrity of the original because "digital technology makes it easier to alter the text of documents that have been scanned into a database, thereby increasing the importance of audit procedures designed to ensure the continuing integrity of the records." Id. at 445.

In Vinhnee, American Express called a witness who identified himself as the custodian of records for the monthly statements and laid the foundation for the records under the traditional 803(6) method. The court was not satisfied with the witnessâ?? knowledge of the hardware and software used to produce and store the information, and refused to admit the records into evidence, even after American Express was afforded the opportunity to make a post-trial supplementary submission.

The United States Bankruptcy Appellate Panel of the Ninth Circuit upheld the exclusion of the records and further articulated the necessity of laying a careful and detailed foundation for computer records: â??The paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records The court specifically noted that the complexity of â??ever-developing computer technologyâ? requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. Technological processes such as those that allow one to alter the text of documents, the court explained, necessitate the need for a new, more in-depth foundation. Vinhnee also cited The Manual for Complex Litigation as well as other contemporary commentators who have highlighted the need to protect, and inquire into, the integrity of electronic documents.

The Vinhnee court seemed most concerned with the witnessâ?? knowledge of specifics regarding accuracy, security, and the potential for data error or loss. â??There is no information regarding American Expressâ?? computer policy and system control procedures, including control of access to pertinent databases, control of access to pertinent programs, recording and logging of changes to the data, backup practices, and audit procedures utilized to assure the continuing integrity of the records.â?

Vinhnee was also cited in a latter case as support involving Alan Dolch; Jerund Dolch and American Express and MBNA by the same Ninth Circuit Appellate Panel in a Memorandum BAP No. CC-07-1467-KBMd at
Generic Credit Card Contract without Signature Is Not Proof of a Debt In 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) the court ruled against MBNA which only provided a standard form contract without a signature and did not tie its boiler-plate terms to the user at issue in each particular case. An Exhibit labeled "Credit Card Agreement and Additional Terms and Conditions" lacks Respondent's signature.

CONCLUSIONS
Genuine issues of material fact exist and the Plaintiff is not entitled to judgment as a matter of law. The Plaintiffâ??s Affidavit and related documents presented in Exhibit to their Statement of Facts has inconsistencies, has an application from First USA Internet, which I have never heard of and is not the Plaintiff, and the affidavit constitutes hearsay and is thus inadmissible. There is no admissible evidence to the validity or accuracy of the debt, and the business records exception does not apply.

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End of most of argument
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I am trying to contact some Phoenix attorney to see if can help, but they usually just want to take a whole case from the beginning and not jump in the middle as I understand it... and can't afford high legal fees - a mess.

I am just surprised I didn't raise enough issues to defeat the SJ unless I did something procedurally wrong.

The Plantiff responded to my response citing the usual Fair Credit cases which have a far lower hurdle and are usually defeated but the day after I got the answer I got the SJ and I don't think you can respond to the answer of the answer...

 

Update - My mistake they didn't use Chaudhry v. Gallerizo, that was another case I am fighting.

In this case they Plaintiff cites United States v Ray in arguing that affiant meets the requirement of Rule 902 (11) etc. This is a totally different criminal case from 1990 and deals with public assistance benefits and is now moot because of U.S. Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 68 (2004).

Talked to an attorney and am doing an extensive Motion to Alter or Amend Order and/or motion for reconsideration.

It can be done in Justice Court (AZ) and holds off any collection action while motion is before the Court.

If that fails can file Appeal to Superior Court.. sigh....

Again irony is in this same court I got prior affidavit stricken in case 6 months ago with far less ammo than in this case.
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