Professional Documents
Culture Documents
20140407.petition For Certification and Appendix
20140407.petition For Certification and Appendix
TABLE OF AUTHORITIES.................................ii
I. Factual Background..........................2
QUESTIONS PRESENTED...................................8
CONCLUSION...........................................20
Cases
Atlantic N. Airlines v. Schwimmer, 12 N.J. 293 (1953)......... 17
Berkowitz v. Haigood, 256 N.J. Super. 342 (Law Div. 1992)5, 11, 15
Garden State Bank v. Graef, 341 N.J. Super. 241 (App. Div.
2001) ..................................................... 14
Rules
N.J.R.E. 106........................................... 9, 10, 16
N.J.R.E. 803(c)(6)............................................. 6
R. 2:12-4..................................................... 14
Other Authorities
Federal Trade Commission, The Structure and Practices of the
Debt Buying Industry (2013), available at
http://ftc.gov/sites/default/files/documents/reports/stru
cture-and-practices-debt-buying-
industry/debtbuyingreport.pdf ............................. 18
federal district courts. Each court found that the debt buyer
testify-on-purchased-account-records-appeals-court/. Likewise,
I. Factual Background
sufficient.
acquired the account. This Petition concerns the debt and its
Sale one for Chase's assignment and one for Main Street's
346.
(1837).
2. DEBT:
a. FOUNDATIONAL WITNESS:
b. FOUNDATION:
traditional rules.
QUESTIONS PRESENTED
1. Third Party Writings: Whether documents are
creator's business;
into evidence which stated that its terms are subject to and
explanation.
ERRORS COMPLAINED OF
1. Third Party Writings: The court improperly admitted
accuracy.
Court, lower New Jersey courts, courts from sister states and
Id.
jurisdictions.
court, and a New York trial court have rejected debt buyer
cases from this Court, lower New Jersey courts and from sister
The two Bills of Sale, Da115 and Da117, are the only
was provided.
for that intent. Jacobs v. Great Pac. Century Corp., 104 N.J.
http://ftc.gov/sites/default/files/documents/reports/structure
-and-practices-debt-buying-industry/debtbuyingreport.pdf
("Report").
sellers when that was the case." Report at C-8. The examples
26 to C-27.
material fact.
Data File" from Chase or, for that matter, that the Bill of
Plaintiff-Respondent,
v.
AHLAM OUGHLA,
Defendant-Appellant.
____________________________
Plaintiff-Respondent,
v.
AZEEM H. ZAIDI,
Defendant-Appellant.
_______________________________________
ACCURSO, J.A.D.
debt buyers and attempt to collect the debts, that is, the
1
See Federal Trade Commission, The Structure and Practices
of the Debt Buying Industry 11 (2013), available at
http://ftc.gov/sites/default/files/documents/reports/structure-
and-practices-debt-buying-industry/debtbuyingreport.pdf
[hereinafter "Debt Buying Report"].
2 A-6078-11T4
banks that issued the credit cards to defendants. Defendants
the debts and did not offer admissible evidence of the amounts
allegedly owed.
debt and the amount due the card issuer when it charged off the
the debtor of the sale of the debt does not affect the validity
3 A-6078-11T4
The Summary Judgment Motions
Ahlam Oughla
the account on October 25, 2007; made her last payment on March
2, 2008; and that Credit One charged off the account on October
4 A-6078-11T4
11(a)(ii), not at the rate charged by Credit One when the
One to Oughla with the same address she noted on her answer,
5 A-6078-11T4
particular facts New Century asserted, but contended that there
that preceded its acquisition, the first being from Credit One
6 A-6078-11T4
that he is an authorized representative for MHC Receivables,
2
New Century also presented a certification from its counsel
Steven A. Lang, Esq., who attached credit reports from 2008 and
2009 for Oughla that counsel's firm "obtained in another
matter." We do not rely on these reports because they are
plainly inadmissible hearsay. See, e.g., Cruz v. MRC
Receivables Corp. 563 F. Supp. 2d 1092, 1095 (N.D. Cal. 2008)
(credit reports offered to prove the accounts and amounts
therein are inadmissible hearsay); Konop v. Rosen, 425 N.J.
Super. 391, 402 (App. Div. 2012) (noting that hearsay within
hearsay requires a separate basis for admission).
7 A-6078-11T4
that New Century had established a prima facie case that it was
the owner of the account and that Oughla was in default in the
motion was that she "was not satisfied" with New Century's
summary judgment.
Azeem H. Zaidi
to its proofs.
8 A-6078-11T4
interest, CHASE-WAMU, extended credit to Zaidi, and that as set
3
Whipple further certified that MSW Capital's records are
maintained electronically, and he attached a "Computer Generated
Report of Financial Information From 1/31/11 to 04/19/12,"
created by MSW Capital for Zaidi's account. We do not rely upon
this report, which was apparently intended to conform to the
requirements of Rule 6:6-3(a), because it cannot qualify as a
business record under N.J.R.E. 803(c)(6). The case caption and
docket number on the document make clear it was prepared in
anticipation of litigation and thus not kept in the normal
course of business. See State v. Berezansky, 386 N.J. Super.
84, 94 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007),
appeal dismissed, 196 N.J. 82 (2008).
9 A-6078-11T4
claims based on its "failure to provide proof that it owns the
MSW Capital's "records and the manner in which those records are
10 A-6078-11T4
out of the Purchased Accounts described in
the Agreement and contained in the Sale File
provided to the Purchaser on July 18, 2011.
attached.
opened on August 16, 2004, that the last payment on the account
Chase Bank charged off the account on January 31, 2011, that the
11 A-6078-11T4
MSW Capital's counsel, Steven A. Lang, submitted a
had sent to Zaidi before the complaint was filed, informing him
and placed with the firm for collection. Lang also explained
Co., the parent of Chase Bank USA, N.A., the firm's credit card
MSW Capital and the objections to that evidence from Zaidi, and
Colvell, 421 N.J. Super. 1 (App. Div. 2011), and that Whipple's
Capital. The judge noted that Zaidi had not offered anything to
12 A-6078-11T4
dispute his responsibility for the account, the accuracy of the
Capital had proved its claim, the judge entered summary judgment
1692, issued after the FTC assessed the effect of debt buying
credit low and ensuring its wide availability, the FTC was
13 A-6078-11T4
they are trying to collect, resulting in debt buyers attempting
to collect from the wrong debtor or more than the debtor owes.
http://ftc.gov/os/2010/07/debtcollectionreport.pdf, [hereinafter
1 (2009) available at
http://ftc.gov/sites/default/files/documents/reports/collecting-
consumer-debts-challenges-change-federal-trade-commission-
Report"].
the savings and loan crisis of the late 1980s when the
14 A-6078-11T4
the end of the month in which they become one hundred and eighty
five of the six largest credit card issuers sold at least some
17. Debt buyers purchasing the portfolios from the credit card
4
U.S. Gov't Accountability Office, GAO-09-748, Credit Cards:
Fair Debt Collection Practice Act Could Better Reflect the
Evolving Debt Collection Marketplace and Use of Technology 25
(2009), available at http://www.gao.gov/assets/300/295588.pdf
[hereinafter "GAO Report"].
5
Zaidi's account appears to have been included in a portfolio of
8,842 charged-off accounts that Chase assigned to Main Street.
15 A-6078-11T4
All of the information the debt buyers receive about the
each debtor, along with the credit card account number, the
time of sale or the right to request such from the seller for a
16 A-6078-11T4
limited period of time, and often for a fee.6 Id. at 26-28, 39-
40.
leaves plaintiffs unable to prove that they have sued the right
however, that its study did not permit any conclusions as to the
before us.
6
Significantly, the FTC found that original sellers typically
had no obligation to provide copies of documents to purchasers
of resold debt; instead, those purchasers had to channel their
requests upstream to the original purchaser for transmission to
the issuer. Debt Buying Report, supra, at 27-28. This was the
manner in which MSW acquired Zaidi's Chase account statements.
7
The FTC speculates that one reason debt sellers may not warrant
the account information on the debts they sell is the cost to a
seller in assessing a warranty claim, that is in trying to
determine if the information it supplied to a buyer about a debt
was inaccurate or whether the debt simply proved uncollectible
for the buyer. Debt Buying Report, supra, at 25, n.108.
17 A-6078-11T4
Standing
justiciable."
own the charged-off credit card debts on which they sue, whether
N.J.L. 543, 550 (Sup. Ct. 1902), aff'd, 69 N.J.L. 452 (E. & A.
1903); Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 79-
82 (App. Div. 2001); Wells Fargo Bank, N.A. v. Ford, 418 N.J.
parties.
on assigned credit card debts must prove that they own the debt
18 A-6078-11T4
and the amount due. The proofs on these issues are generally
(1999).
taken the position that plaintiffs must prove they own the debt
that plaintiffs had not proved that they owned the debts sued
parties. See Seiden v. Allen, 135 N.J. Super. 253, 255-56 (Ch.
19 A-6078-11T4
discovery in these collection matters by asserting plaintiffs'
lack of standing.
Proof of Assignments
The parties and amicus agree that the assigned credit card
2A:25-1. Our law does not dictate any precise formula for such
Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998) (citing
v. Lipo Chem., Inc., 193 N.J. Super. 456 (Cty. Dist. Ct. 1983)).
8
We do not view Tirgan v. Mega Life & Health Ins., 304 N.J.
Super. 385 (Law Div. 1997), on which defendants rely, to be to
the contrary. Notice was not at issue in that case, which
involved a patient's assignment of his rights under an insurance
contract to his physician. Id. at 391. The Law Division's
statement that "[t]o be effective, . . . the assignment must be
(continued)
20 A-6078-11T4
411 (Ch. 1932) (creditors may dispose of a debt as they choose
Notice simply charges the debtor with the duty to pay the
N.J.S.A. 12A:9-406(a).
(continued)
noticed to the obligor," plainly refers only to the obligor's
duty to pay the assignee upon proper notice. Id. at 390.
9
The exception in Oughla's case regarding the first link in MSW
Capital's chain of ownership is discussed infra.
21 A-6078-11T4
supra, 418 N.J. Super. at 599-600. We review the grant of
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).
22 A-6078-11T4
The central question presented with regard to the
equally here. An affiant must aver that the facts presented are
23 A-6078-11T4
in which New Century purchased Oughla's account from Sherman
off.
24 A-6078-11T4
The Galic certifications plainly do not suffer from the
identifies his position with New Century and describes the basis
under N.J.R.E. 901. See Celino v. Gen. Accident Ins., 211 N.J.
25 A-6078-11T4
readily identifiable, K. Woodmere Assocs., supra, 316 N.J.
in the chain because the account was not owned by Credit One."
26 A-6078-11T4
We cannot agree that because the credit card accounts are
necessary.10 New Century's assertion that Credit One did not own
10
This situation is different from a scenario in which a
successor bank has acquired active credit card accounts through
acquisition of another bank. See Garden State Bank v. Graef,
341 N.J. Super. 241, 245-46 (App. Div. 2001), and our discussion
of this point, infra at 33.
27 A-6078-11T4
Credit One's transfer of Oughla's account to MHC Receivables,
reversed because New Century did not establish the full chain of
599-600.
Super. 155, 158 n.1, 162-63 (App. Div. 2002); Blaisdell Lumber
Co. v. Horton, 242 N.J. Super. 98, 101 (App. Div. 1990). While
we are of the view that critical facts must be proved and not
28 A-6078-11T4
merely assumed, notwithstanding the lack of formality in the
352 N.J. Super. 538, 543 (App. Div. 2002), we express no view of
the form those proofs may take and whether relaxation of the
11
We reject defendants' contention that New Century may not
avail itself of the relaxation rule because it is intended to
assist self-represented parties. By its terms, the rule applies
to all parties in matters within the cognizance of the Small
Claims Section. See N.J.R.E. 101(a)(2)(A).
29 A-6078-11T4
of Main Street's rights to the "purchased accounts" described in
File Name) attached hereto and made part hereof for all
30 A-6078-11T4
the purchaser's records to document proof of ownership of the
State v. Mazowski, 337 N.J. Super. 275, 292 (App. Div. 2001)
to prove that the FDIC had taken over WAMU and subsequently sold
31 A-6078-11T4
and sale of its assets to Chase. While Zaidi contends that
Fed. App'x. 580, 583 (9th Cir. 2012); Arguenta v. J.P. Morgan
JPMorgan Chase Bank, N.A. (In re Shirk), 437 B.R. 592, 596 n.1
(In re Stewart), 473 B.R. 612, 618 n.2 (Bankr. W.D. Pa. 2012),
Bank, N.A., 154 Cal. Rptr. 3d 394, 401-09 (Ct. App. 2013),
modified 2013 Cal. App. LEXIS 280, rev. denied, 2013 Cal. LEXIS
4861.
assignments, it was not necessary for the court to have done so.
32 A-6078-11T4
record document credit card transactions between Zaidi and
Chase. See Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542,
aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J.
they owned the debts on which they sued, their proofs on the
disagree.
12
We reject defendants' contention that plaintiffs needed to
present the cardholder agreements in order to prove the
contracts giving rise to the debts on which they sued. While
production of the cardholder agreement would be required in a
suit in which the terms of the agreement were in dispute, no
such dispute exists in these cases. Plaintiffs' claims are for
(continued)
33 A-6078-11T4
Plaintiffs offered the monthly credit card statements as
[N.J.R.E. 803(c)(6).]
N.J. Super. 199, 219 (App. Div. 1996). As the Supreme Court
(continued)
a sum certain, the balance due on the periodic statement for the
last billing cycle; they do not seek interest or attorneys fees
at the contract rates. See Chase Bank U.S., N.A. v Staffenberg,
419 N.J. Super. 386, 388 n.1 (App. Div. 2011) (production of
cardholder agreement unnecessary where counsel fees awarded as
taxed costs pursuant to N.J.S.A. 22A:2-42).
34 A-6078-11T4
Adoption of the shopbook rule stemmed from a
realization that mercantile and industrial
life is essentially practical, that what is
the final basis of calculation, reliance,
investment, and general confidence in every
business enterprise may ordinarily be
resorted to in proof of the main fact, and
that what the common experience of man
relies upon ought not to be summarily
discredited.
[Ibid.]
35 A-6078-11T4
writing must justify allowing it into
evidence."
Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975), certif.
36 A-6078-11T4
record system used and (3) can establish
that it was the regular practice of that
business to make the record. If a party
offers a computer printout into evidence
after satisfying the foregoing requirements,
the record is admissible "unless the sources
of information or the method, purpose or
circumstances of preparation indicate that
it is not trustworthy."
37 A-6078-11T4
the inception of any controversy between the parties.'" Ibid.
a credit card bill. See State v. Swed, 255 N.J. Super. 228, 239
hearsay rule under N.J.R.E. 803(c)(6). See Sears, Roebuck & Co.
38 A-6078-11T4
(discussing admissibility of such records under prior Evid. R.
39 A-6078-11T4
notice of billing errors be placed either on
the periodic statement or on a summary
statement of the consumer's billing rights
included with the periodic statement.
40 A-6078-11T4
We have held that Rule 6:6-3(a) provides a guide to the
13
As the account statements were before the trial courts in both
cases, the concerns we raised in Colvell where such statements
were not admitted are not present here. Colvell, supra, 421
N.J. Super. at 6-8.
41 A-6078-11T4
accounts that have been assigned several times, but they have
Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007)
of the Law Division of the New Jersey Superior Court Phase Two
14
Zaidi contends that the legend "This Statement is a Facsimile
Not an Original," on the account statements, provides yet
another reason for not admitting them, relying on Am. Express
Travel Related Servs. v. Vinhee (In re Vee Vinhee), 336 B.R. 437
(B.A.P 9th Cir. 2005) (upholding trial court decision to require
foundational evidence of reliability of American Express's
computer hardware and software because statements proffered bore
term "duplicate copy" as a result of being maintained
electronically). In re Vee Vinhee is not in accord with New
Jersey case law. See Carmona, supra, 189 N.J. at 380, Biunno,
Weissbard & Zegas, supra comment 2 on N.J.R.E. 803(c)(6) (2013).
42 A-6078-11T4
notices/2010/n100722.pdf. Like the litigants that appear in our
Dennegar, 394 N.J. Super. 595, 599 (App. Div. 2007) (concluding
43 A-6078-11T4
MSW Capital is the owner by assignment of Zaidi's Chase-WAMU
on which MSW's prima facie claim was based. Brill, supra, 142
N.J. at 529.
statements. The trial court found that Zaidi had not offered
44 A-6078-11T4
The assignments presented did not consistently identify the
398 N.J. Super. 299, 310-11 (App. Div.), certif. denied, 195
these cases.
45 A-6078-11T4
document for which there exists a genuine question of
1:6-6 (2014).
jurisdiction.
46 A-6078-11T4
SUPERIOR COURT OF NEW JERSEY
MONMOUTH COUNTY
LAW DIVISION - SPECIAL CIVIL PART
DOCKET NO.: MON-DC-004774-12
x- - - - - - - - - - - - - x
MSW CAPITAL LLC,
Plaintiff, TRANSCRIPT
-vs- OF
Defendant.
x- - - - x
A P PEA RAN C E S:
1 I N D E X
2
3 ORAL ARGUMENT PAGE
4
5 BY MR. LANG 3/26/34
6 BY MR. STERN 12/30
7
8 DECISION 36
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Lang/Argument 3
r 21
22
23
proofs so I'm willing to keep my mouth shut.
to supply thoroughly evasive answers to
interrogatories.
I'm going
r
Lang/Argument 5
Lang/Argument 7
1 sufficient.
r 2
3
4
5
It is sufficient to support the entry of
judgment at least for purposes of a default judgment.
The point being that these are --
THE COURT: And according to Cavell before a
6 summary judgment.
7 MR. LANG: That would be my position, Your
8 Honor. Let's look at other indicia of reliability,
9 Your Honor. Again, I understand and do not disagree
10 with the proposition that one doesn't have to come
11 forward with rebuttal evidence, but in the face of a
12 mountain of evidence, the mere fact that one does not
13 deny it, is additional indicia of reliability. It is
14 incomprehensible that one who did not have the account,
15 legitimately, it was not this person's account would
16 not say so. Your Honor sees that frequently.
17 Your Honor sees that claim frequently whether
18 it's a bona fide claim or not. Irrespective of whether
19 it's bona fide or not, it creates a material issue of
20 fact to be decided by the trier of fact. We have
21 nothing here. What do we have? A general denial.
22 Now, recognizing the deficiency in that general denial,
23 in the complaint, we see it repeated in the
24 certification.
25 And the certification is straightforward,
Lang/Argument 9
Lang/Argument 11
Stern/Argument 13
Stern/Argument 15
Stern/Argument 17
1 interest.
2 THE COURT: On that figure.
3 MR. STERN: Okay.
4 THE COURT: Which I normally don't grant
5 anyway so.
6 MR. STERN: Okay. But let's talk about
7 interest and let's talk about late charges. An account
8 arises from some form of an agreement. It's a
9 contract. There's not even a contract here that has
10 been submitted. There's no agreement that has been
11 submitted. What's the basis for charging a late fee?
12 What's the basis for charging a particular amount of
13 interest? They have not, if you're proving a contract
14 claim, you need to prove that my client accepted,
15 entered into an agreement with their predecessor and
16 that the term of that agreement was breached.
17 There's no evidence for it. There's no
18 evidence to support it. So the point comes back to
19 what I originally started off by saying is. There is
20 no competent admissible evidence as to assignment. At
21 the most that Mr. Whipple could testify to is that he
22 bought something from somebody else and here's what
23 somebody else told him that somebody else told him
24 about what he bought. That's hearsay. There's no
25 exception to the hearsay rule for that information to
Stern/Argument 19
1 come in.
2 If there's no foundation for any of the
3 records that supposedly are Chase's records. There's
4 not even an affidavit, you know, that supports from
5 Chase saying these are documents created in the regular
6 course of business. You know, all the requirements of
7 Evidence Rule 803(c) (6), we call it the business
8 records exception, you know, records are regularly kept
9 activities.
10 What you do have is, you have Mr. Lang who
11 testifies, gives an affidavit about settlement
12 discussions, gives an affidavit and talks about things
13 he found on the Internet filed on the SEC website. You
14 have Mr. Kipnist (phonetic) who attaches credit
15 reports. I think I've touched upon that in the reply.
16 The credit reports are mUltiple levels of hearsay.
17 There's no basis for that coming in.
18 The fact that you know, I mean, Mr. Lang
19 argues now that, you know, the entire industry relies
20 upon the accuracy of those reports. Yeah, but there's
21 also tons of litigation about why those reports are a
22 bit inaccurate and it's an ongoing problem. But it
23 really doesn't matter whether they're accurate or
24 they're not accurate.
25 The point is that at best without knowing it,
Stern/Argument 20
Stern/Argument 21
1 records?
2 The records are documents which are not even
3 admissible and don't even stand for the proposition of
4 what, don't even state what he says the information
5 that he's asserting. And then, he's the one who
6 submits the account statements. How could he possibly
7 know that these are the account statements? Well, the
8 only way he could know is what he says.
9 I asked Main Street to go get them from Chase
10 and this is what Main Street gave me. And that's
11 simply not admissible evidence. Certainly not to prove
12 what the statements contained in those statements.
13 Then they submit, the last thing is a certification
14 from a Mr. Labreto (phonetic) at Main Street. Mr.
15 Labreto says oh yes, Mr. Zaidi owes so much on an
16 account. How could Mr. Labreto in any way know what's
17 in the account, because he's assuming that the
18 information he got, the records he's looking at were
19 accurate. That's fine. He's entitled to assume that.
20 But that doesn't make it admissible evidence.
21 The records have to be submitted into
22 evidence that he's relying upon. They haven't done
23 that. But I want to close by just referring to, well,
24 actually there's two comments, typical lawyer, right?
25 I'm almost done. I'm done, but I'm almost done. I
Stern/Argument 22
Stern/Argument 23
Stern/Argument 25
1 the obligor.
2 You do need notice to the obligor. The whole
3 point of an assignment. Your Honor, I would ask Your
4 Honor consider the fact of someone standing in the
5 (inaudible) reasonably prudent person, standing in the
6 position of saying I'm interested in purchasing a
7 chosen action, a claim that you have against a third
8 party.
9 THE COURT: Excuse me just one second.
10 MR. STERN: Go ahead.
11 THE COURT: Sorry.
12 MR. STERN: You have against a third party.
13 You're going to want to know that that third party who
14 is obligated knows that you now own the obligation and
15 you're going to want to make sure that the person who's
16 selling it to you is properly and clearly identifying
17 what it is they're selling to you and that they are in
18 fact articulating that they're selling it to you. So
19 that you can stand in the position of saying to the
20 exclusion of everybody else that you own that account.
21 Because it's not something like real estate where we've
22 got a recording office. It's not something like
23 negotiable instrument where we've got endorsement and
24 delivery of the document.
25 This is very loose kind of stuff so you want
Stern/Argument 26
Lang/Argument 27
Lang/Argument 29
r 2
3
4
5
matter is the proofs that are before the Court that
this is the account are mountainous.
reliable.
They are
The idea that an SEC filing is not a
reliable document, Your Honor, I think is perhaps the
6 best proof of the lack of merit of defendant's
7 arguments. That document is publicly available on the
8 Internet on the FDIC's website.
9 As I understand the argument, I had to get an
10 affidavit from the FDIC that yup, this is what's on our
11 website. In sum, Your Honor, every element of our
12 claim has been proven. There are sufficient proofs.
13 There is nothing to rebut it. My client is entitled to
14 summary judgment. And even if my client hadn't moved
15 for summary judgment, Your Honor, there's would have to
16 be denied simply because they did no discovery and
17 cannot now be heard to say well, this is what you're
18 limited to.
19 MR. STERN: Let me address first that Mr.
20 Lang's first comment about 901 and 101(a) (4). I cited
21 to the Court the Hahnemann case. The Hahnemann case
22 specifically talks about when a witness is competent to
23 lay the foundation for identifying electronic records.
24 Mr. Lang says all he has got to do is say this is what
25 it is. Well, I would say that Mr. Whipple is no more
Stern/Argument 31
r 2
3
4
Hahnemann Hospital versus Dudek and he just can't.
It's no different, Your Honor, than someone testifying
about an accident, an automobile accident because they
5 read about it in the newspaper. Mr. Watner (phonetic)
6 is no different than anybody else with respect to these
7 records. He got them from somebody who said they got
8 them from somebody else so that he believes that that's
9 what they are.
10 His belief that what they are doesn't make
11 him a competent witness to have them admitted into
12 evidence. The 101(a) (4) again that argument turns, I
13 said it before, I don't want to repeat myself too much,
14 but it turns civil litigation on its head. That rule
15 exists and the commentary says that I know New Jersey
16 practice, it was not addressed in the paperwork, talks
17 about two things. Number one, when you have a
18 stipulation, the Court can take stipulated facts.
19 That's 101(a) (4) is.
20 This is preliminary, tangential stuff.
21 Things that are stipulated to or things, the example I
22 know in New Jersey practice that the New Jersey
23 practice here is it talks about this rule, says it also
24 deals with the situation where you may have like a lay
25 witness on the stand who may testify, give some opinion
Stern/Argument 33
r 21
22
23 recourse.
But Chase, they want nothing to do with these
accounts anymore. So they're disclaiming without
It's without warranty of title. It's
24 without representation and it's all in accordance with
25 an agreement that's never produced. So we don't even
Lang/Argument 34
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We only know what's represented in the bill of sale.
But the bill of sale clearly says one of
these says that it's an exhibit to the agreement which
is another issue that we've raised in our papers by the
6 way, Evidence Rule 106 which is completeness doctrine.
7 You can't submit a document that's part of a bigger
8 document without submitting the entire document if the
9 opponent objects and we do object.
10 But putting that aside, the bottom line is
11 that Mr. Lang's discussion about warranty of
12 collectability is really irrelevant and that's not the
13 point we're making. It has to do with the warranty of
14 title, disclaimer of the warranty of title. Thank you,
15 Your Honor.
16 MR. LANG: Your Honor, I'm sorry. I thought
17 that when opposing counsel pointed out the disclaimer
18 of the warranty of collectability he thought it
19 relevant. That said, I just need to point out two
20 things. First, to equate the nature of the evidence
21 before Your Honor, materials before Your Honor with a
22 newspaper article, I think underscores the difference
23 between the law and what defendant hopes will happen,
24 that being getting out from under a debt.
25 Lastly, I would like to correct opposing
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your proofs and now you have a bona fide dispute.
This is a
6 motion for summary judgment. It's a revolving credit
7 account. The plaintiff seeks $12,487.36 plus $75.97
8 interest. The plaintiff includes a certification from
9 the plaintiff's agent, a computer generated account
10 which attest to the amount sought. The plaintiff also
11 includes account statements from August 12th, 2009 to
12 January 12th, 2011, all of which bear the defendant's
13 name. The last shows a balance equal to the
14 plaintiff's demand and the address on the account
15 statements is the same as the address on the answer.
16 Defendant opposes due to a lack of proof of
17 the assignment, the lack of proof of the establishment
18 of the debt from Chase Bank. The plaintiff argues that
19 at no point did the defendant argued that the account
20 was not his. I should note that there was, defendant
21 was informed of the transfer to MSW on January 27th,
22 2012.
23 The assignments are attached here. The
24 plaintiff, rather defendant takes the position that the
25 -- just bear with me a second. Defendant rather the
Decision 37
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in the summary judgment motion. And it seems to me
they're saying that 6:6-3{a) is the poll star
That being the case, in this case not only was the
final billing statement attached but a number of them
6 were attached in this case. There's no evidence that
7 has been adduced, I think you have to look at obviously
8 the evidence in total. The defendant is really taking
9 a very passive position and it certainly is the
10 plaintiff's burden to prove their case.
11 I think the defendant is taking a very
12 passive position here saying he has not offered
13 anything to indicate that he disputed any, that he
14 didn't receive any of these bills, all these bills went
15 to the present address of the plaintiff, rather
16 defendant.
17 He offers nothing to indicate that has
18 disputed any of the bills in this case as they were
19 sent to him. He doesn't offer anything to indicate
20 that, he didn't make any of the transactions. He
21 doesn't offer any information that he has been paying
22 the debt to some other entity besides MSW.
23 I think in taking the evidence as a whole,
24 the billing statements I find satisfy 6:6-3{a). As I
25 say, there's no dispute as to any of the billing
Decision 41
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that it was transferred. There was also notice of the
transfer sent by January 27th which is included in page
5 of the initial motion for summary judgment. So I
find that the requirements of Cavell have been met.
25 That there's no genuine issue of material fact and I
Decision 42
43
1 CERTIFICATION
2
3 I , TRACY GRIBBEN , Certified Agency Director
4 /Transcriber , do hereby certify that the foregoing
5 transcript of proceedings on Digital Time 04:33 : 28 to
6 05 : 41 : 28 , is prepared in full compliance with the
7 current Transcript tormat for Judicial Proceedings and
8 is a true and accurate compressed transcript of the
9 proceedings as recorded in the matter of MSW CAPITAL
10 LLC vs . AZEEM ZAIDI , heard by the Monmouth County
~~ ; ; Jerior cCi.iJ..:..1Y
13, 2012 . (tf3
14 'RA~"" AOC "".00';:;
i~ O~Z 1&
17 TERRY GRIBBEN ' S TRANSCRIPTION SERVICE DATE
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