Author Topic: Arizona -Conclusory Affidavit doesn't support MSJ Asset Acceptance  (Read 1554 times)

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quill

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ASSET ACCEPTANCE, LLC v. GORAJ, Ariz: Court of Appeals, 1st Div., Dept. A 2013 ( not published opinion )
 

¶8 We agree with Goraj that Asset Acceptance failed to carry its evidentiary burden. As we explained in Allen, a plaintiff is not automatically entitled to summary judgment merely because there is no genuine dispute of material fact.[2] 231 Ariz. at 213, ¶¶ 16-17, 292 P.3d at 199. To prevail on summary judgment, the plaintiff must submit "undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim." Id. at ¶ 18 (citation omitted). A custodian's affidavit generally avowing that unattached or unspecified records establish indebtedness is insufficient to carry this burden.[3] Id.

 
¶9 Here, the only evidence that Asset Acceptance provided was the bill of sale, the "Unknown Schedule A" list, and the employee's affidavit. Asset Acceptance contends that the bill of sale and the list were "[t]he records reviewed and identified in the affidavit." But the list was never identified in the affidavit, attached to it, or otherwise authenticated or explained, and was therefore not admissible. Allen, at 214 n.3, ¶ 20, 292 P.3d at 200 n.3. The employee's conclusory affidavit, unaccompanied by the documents upon which she relied, could not support summary judgment. Id. at 213-14, ¶ 18, 292 P.3d at 199-200. Further, her affidavit failed to establish her familiarity with the manner in which Citibank's records are kept, as required by Ariz. R. Civ. P. 56(e)(1).


Published 'Allen' opinion cited above.

Wells Fargo Bank, NA v. Allen, 292 P. 3d 195 - Ariz: Court of Appeals, 1st Div., Dept. D 2012



¶ 18 To carry its burden of persuasion, a plaintiff who seeks summary judgment must submit "undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim." Mahmoodi, 224 Ariz. at 293, ¶ 20, 229 P.3d at 1035.

Here, the only evidence submitted in support of the motion was a paralegal's affidavit and its two attachments. Ariz. R. Civ. P. 56(e) states that "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." 200*200

In his affidavit, the paralegal made a general avowal that he is the custodian of records and that he personally reviewed records that established the amount of the Allens' indebtedness to Wells Fargo.

Those records were neither described nor attached, nor was there anything in the affidavit to provide a reviewing court with the means to evaluate the accuracy of the paralegal's calculation of the amount claimed to be due.[1]

The affidavit also failed to establish the admissibility of the November 2010 computer-generated account statement, which was hearsay because it was offered to prove the truth of its statement of the amount that the Allens owed.

To be admissible, the exhibit would have to qualify under an exception to the hearsay rule, such as the business-records exception contained in Ariz. R. Evid. 803(6). Without ever referring to any of the specific documents submitted to the trial court, the paralegal summarily asserted that he was familiar with the Allen account "records" that Wells Fargo kept in the ordinary course of business.
« Last Edit: October 20, 2013 02:01:55 PM by quill »

coltfan1972

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Re: Arizona -Conclusory Affidavit doesn't support MSJ Asset Acceptance
« Reply #1 on: October 20, 2013 03:23:47 PM »
Goes right along with what I post in every thread about summary judgment and a junk debt buyer.  If you will just stay focused on what is and is not part of the MSJ process a JDB can never win on a MSJ. 

It is impossible due to the "undisputed" requirement and the fact a junk debt buyer can never (or as close to never there is in the law) reach the incredibly high threshold in summary judgment because the records they will attempt to use are not their own, so how in the world can the argument be made they are "undisputed"

Of course this all is assuming the defendant is using a sound defense strategy and not making bone headed moves along the way that dooms their case by their own bone headed actions.   

However, if just focusing on the simple concept of what summary judgment really is and the fact the opponent can't meet their burden without a complete debacle from the defense, a junk debt buyer should never get summary judgment.   Rulings like this are pretty much the norm all over the country, as they should be and I personally feel JDB's should be sanctioned when they bring their frivolous motions for summary judgment with nothing more than garbage they know if even a token argument is made they lose. 
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

quill

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Re: Arizona -Conclusory Affidavit doesn't support MSJ Asset Acceptance
« Reply #2 on: October 20, 2013 03:58:03 PM »
Now Only if the Justice court magistrates in AZ would just read and enforce  the Appeals court rulings, every JDB in AZ would be stopped.



Justice of the Peace Qualifications
 The requirements to be a justice of the peace are that you be a registered voter in Arizona, reside in the justice court precinct and understand the English language.  While some justices of the peace are attorneys, there is no requirement that a justice court judge be an attorney.


coltfan1972

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Re: Arizona -Conclusory Affidavit doesn't support MSJ Asset Acceptance
« Reply #3 on: October 20, 2013 04:28:53 PM »
Now Only if the Justice court magistrates in AZ would just read and enforce  the Appeals court rulings, every JDB in AZ would be stopped.

Oh man, if you have been following my saga in Arkansas you know I could not agree with you more.   I'm in the court of appeals right now due to a judge either not reading the law or reading it and then saying "whatever, I'm doing what I want anyway"

If this district court on my case would have just read and enforced the appeals court and even higher rulings then not only would I not be at the appeals level now, but my opponents would have been laughed out of the courtroom with the arguments and so called evidence they submitted and based their arguments.

We can only do so much as far as putting the arguments together and framing them so if the court will just read and apply the law like the higher courts have instructed there is no reason for most of the successful appeals to have ever been filed. 

Justice of the Peace Qualifications.  The requirements to be a justice of the peace are that you be a registered voter in Arizona, reside in the justice court precinct and understand the English language.  While some justices of the peace are attorneys, there is no requirement that a justice court judge be an attorney.

Pretty much the same here.  You should see the requirements to be a constable. 

Are you breathing?
Are you at least 150 pounds overweight?
Do you lack social skills and any confidence what-so-ever?
Have you been denied employment with every law enforcement agency in the state?
Have you been denied to even be allowed to volunteer with no pay from every agency in the state?
Do you consider jay walking a felony punishable by death?
Greatly enjoy showing up places where professionals are doing their job and getting in everybody's way?
And do you live for the moment to throw around some authority because you've never in your life had anybody pay attention to the fact you are even walking this earth?

Answer yes to all the above, buy your own gun and handcuffs, buy your own vehicle to use including paying out of your own pocket to have the lights and siren put on the vehicle, buy your own gas and pay for your own upkeep, buy your own bullet proof vest, and then go grab your 1970's looking badge and get your tail to work.   
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).