Maine Media Resources Home American Civics Research Library Bank Loans, Credit Cards and Counterfeit Money: The Fraud of Contracts
SAMPLE ORIGINAL COMPLAINT
STATE OF
MAINE
DISTRICT COURT
(Your
County), SS.
DISTRICT TWO
PRESQUE ISLE
Civil Action, Docket No._________
BANK OF
AMERICA, N.A.
)
)
Plaintiff
)
vs. ) RESPONSE TO PLAINTIFF'S ) MOTION FOR SUMMARY
)
JOHN H. DOE,
)
)
Defendant
)
NOW COMES the
Defendant, John Henry Doe, In Propria Persona, and files this his RESPONSE TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, against
Plaintiff, BANK OF AMERICA, N.A., and would show unto the Court the
following, to-wit:
I
INTRODUCTION
1. "Courts
are permitted a wide discretion in allowing amendments to pleadings, and this
discretion is limited only by the requirement that the amendments must be in
furtherance of justice and not substantially change the cause of action." -
Bensinger v. West, 35 ALR2d 1296
2. The
Maine Rules of Civil Procedure provide that summary judgment may be granted when
there are no genuine issues of material fact in dispute supported by evidence
requiring trial.
In
interpretation of this, Defendant would show unto the court the following case
law:
Corey v. Skelton, 834 So. 2d 681 (Miss, 2003) quoting Short
v. Columbus Rubber & Gasket co., 535 So.2d. 61,63 (Miss 1988) the Court
states: …The burden of demonstrating that there is no genuine issue of
material fact falls upon the party requesting the summary judgment. Id at
63-64.
Keywell
Corp. v. Weinstein, 33 F. 3d 159 (2nd Cir. 1994),
the party seeking summary judgment bears the burden of demonstrating absence of
any genuine factual dispute,
In Tolentino v. Friedman, 46 F. 3d 645 (7th Cir.1995), it
was held summary judgment is not granted unless there are no triable issues, And
as noted by the Plaintiff, The Court must carefully review all evidentiary
matters before it; admissions in pleadings, answers to interrogatories,
depositions, affidavits, etc. in the light most favorable to the party against
whom the motion for summary judgment is made.
Brown
v. Credit Ctr. Inc. 444 So. 2d, 358, 362 (Miss 1983),
Essentially considered to mean, “When considering a motion for summary
judgment, a Court must review the evidence in the light most favorable to the
non moving party and give the non moving party the benefit of every doubt.”
In Anderson v. liberty Lobby, Inc. 477 U.S. 242 (1986); and City
Mgm’t Corp. v. U,S. Chemical Co., Inc., 43 .3d 244 (6th Cir. 1994),
it was determined the role of a judge at summary judgment
stage is not to weigh evidence but to determine whether there is genuine
issue of material fact requiring trial that would make summary judgment
improper.
Rule 56 of the Maine Rules of Civil Procedure states at paragraph (e),
"When
a motion for summary judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials of that party's
pleading, but must respond by affidavits or as otherwise provided in this rule,
setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse party."- M.R. Civ.
Proc. 56 (e)
"...[for]
the purposes of the rule is not to cut litigants off from their right of trial
by jury if they really have issues to try." - Sartor v. Arkansas Natural
Gas Corp. 321 US620, 627, 88 L ed 967, 972, 64 S Ct 724 (1924)
Again, summary judgment may be granted when there are no genuine issues
of material fact in dispute supported by evidence requiring trial.
II.
3.
What evidence does the Defendant have to show "there are genuine
issues of material fact in dispute," and "evidence to support the
defendant's case." Atlas Enterprises Limited Partnership v. United
States 32 Fed. Cl. 704 (1995) and. " triable issues of fact "
Tolentino v. Friedman, 46 F. 3d 645 (7th Cir.1995)?
4. As stated in
Defendant’s Separate Statement of Undisputed Material Fact of record before
the court, by this the Court is asked to assume the bank made a loan of money
that was already there before the transaction they have an equitable risk of
loss to recover, as they agreed., and now have such loss and damage as a result
of Defendant's default under the terms of the agreement.
But In the age of fractional reserve banking and commercial paper that
acts as money or money equivalent in finance, the fact that loan proceeds checks
or disbursements for credit card obligations were written or electronically
transferred out of the bank in behalf of the Defendant is not proof the bank
made a loan of money that was already there before the transaction they have
equitable risk of loss to recover, which is the basis for the terms of the
agreement.
The payment of the card obligations does not prove this.
5. All money in existence is
created from nothing:
"...suppose
a bank buys part of a new issue of municipal bonds.
The bank's cashier draws a check to pay for the bonds - check addressed
to himself, and calling on himself to pay money to the order of the city which
sold the bonds. This check goes to
increase the city's bank balance, just as much as if the bonds had been bought
by a private citizen. But the check
does not come out of any private balance with the bank.
You never opened your bank-statement envelope and found a memorandum that
your balance was reduced from $496.88 to $472.36 because the bank had bought
some bonds or made a loan - and you never will.
The check with which the bank pays for the bonds immediately becomes a
deposit liabiltiy of the bank...This leaves the bank's books in perfect balance
because at the same moment the bonds become an asset.
An extra deposit has been "created."
The same thing happens when the bank makes a loan, or buys
stationary." - Money Debt and Economic Activity, © 1948 Albert
Gailord Hart, Professor of Economics, Columbia University, p. 65
And,
from: 169 Questions and Answers
on Money - A Supplement to a Primer on Money, SUBCOMMITTEE ON DOMESTIC
FINANCE COMMITTE ON BANKING AND CURRENCY, HOUSE OF REPRESENTATIVES, 88th
Congress, 2d Session. Document 87-240
"33.
Do private banks issue money today?
Yes.
Although banks no longer have the right to issue bank notes, they can
create money in the form of bank deposits when they lend money to businesses, or
buy securities. (The next chapter
will explain how banks create money.) The
important thing to remember is that when banks lend money they don't necessarily
take it from anyone else to lend. Thus,
they "create" it.
47.
Where does the Federal Reserve get the money with which to create bank
reserves?
It
doesn't "get" the money, it creates it.
When the Federal Reserve writes a check, it is creating money.
This can result in an increase in bank reserves - a demand deposit - or
in cash; if the customer prefers cash he can demand Federal Reserve notes, and
the Federal Reserve will have the Treasury Department print them.
The Federal Reserve is a total moneymaking machine.
It can issue money or checks. And
it never has a problem of making its checks good because it can obtain the $5
and $10 bills necessary to cover its check simply by asking the Treasury
Department's Bureau of Engraving to print them."
6.
From authoritative sources of the banking and accounting industries
Defendant's documentary evidence has already shown, when the bank received the
Defendant's note/credit agreement, this is a tangible commercial paper money
equivalent asset in the world of finance on its books that expands the bank’s
payable deposit money credits by the same amount as the loan, offsetting the
book entry transfers in settling of the card obligations without expending any
of the bank’s other assets to make its loan.
7.
I believe the book entries say this is what has happened.
And that’s why I have sought it in discovery. Plaintiff's
answers will establish that the accounting will show in this loan transaction
what happened from the time the bank received Defendant’s signed note/credit
agreement to the time the card obligations were settled, where the money came
from and who or what, in equity, provided the assets and deposit money credits
that were dispersed as the “bank’s loan”.
8.
Failure to establish injury leaves the Court without a means to
effectuate a remedy and certainly without a basis to allow Defendants to lose
their property interest by means of foreclosure. See DeCastro v. Wellston
City Sch. Dist. Bd. of Educ., 94 Ohio St. 3d 197;761 N.E.2d 612 (2002),
(finding that a breach of contract claim without allegation and evidence of
actual damage does not provide a means for judicial relief and wastes the
Defendant’s and Court’s time and resources).
A Plaintiff must prove damages in order for a judgment to be awarded - Restatement
(Second) of the Law of Contracts, §§ 346, 352
The prevailing party on default judgment of liability must still
prove damages, American Red Cross v. Community Blood Center of the Ozarks,
257 F.3d. (8th Cir. 07/25/2001)
9.
And in the maxims of law: “One who has not been damaged or put at
risk by another has no basis to make claims or charges against him.”
Therefore, whether the plaintiff has suffered actual equitable
loss of money from its other assets and deposits already existing and in its
possession before this loan transaction was made as basis to claim loss and
damage as a cause for action against the Defendant is clearly a relevant and
material fact to be determined in Plaintiff claims against the Defendant.
10. Fact is "material," for purposes of motion for summary judgment, if proof of that fact would have effect of establishing or refuting one of the essential elements of cause of action. Brown v. Oklahoma State Bank & Trust Co. of Vinita, Oklahoma., 860 P.2d 230 (1993). A fact is material if it might significantly affect the outcome of the suit under the governing Law. Hafen V. United States, 30 Fed. Cl. 470 (1994). Yet at this point, such fact of Plaintiff's actual equitable loss of money or deposits loaned already existing before the making of the transaction has not been determined as fact by any documentation or evidence presented in the making of Plaintiff's case, and has hardly been alleged. Therefore it is a material fact in dispute, which is totally ignored in Plaintiff's motion for summary judgment.
11.
A borrower must repay sums loaned according to the terms of an agreement.
The agreement of the Defendant to the contract was not made solely on the
fact I would receive money out of the bank, but that this money represented the
same risk of loss to the bank as the benefit it was to us to receive it,
justifying the terms of repayment they wrote.
12.
An indisputable fact of this case is that the Defendant provided a signed
note/credit agreement to this transaction, before a loan was made. And as noted
from authoritative sources of the banking and accounting professions, and from
the SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS, of record before the Court,
If Defendant’s signed note/credit agreement was taken by the plaintiff for its
own unjust enrichment as commercial paper of substantive money equivalence, and
recorded into the bank as an asset, bringing new payable deposit money credits
onto its books by that amount to fund its card obligations without risk to its
other assets or deposits, these are not the conditions which Plaintiff implied
or allowed to be understood by the terms of the agreement under which the money
was to be provided to the Defendant. Plaintiff has misrepresented the basic
fundamental risk all the terms of the agreement were based on.
And now Plaintiff has been charging me principle and interest this entire
time as if they had such risk, in
total breach of its agreement, that
was based on this purported risk.
13.
This is guile and deception on its customer that would not be allowed to
pass in any other commercial realm. The
equitable cost and risk to the bank to make the loan has been misrepresented and
it is this misrepresentation of an extension of its own consideration of face
principle it has not had to make that has been the foundation for the terms of
the agreement.
14.
All the obligations and terms of repayment and the rights of the lender
under the contract are based on the supposed equitable risk to the bank for
extension of its own consideration of face principle to have made the loan. When
the book entries show under GAAP this didn’t happen, they have breached the
agreement in numerous ways:
1)
They have withheld material fact they have used the borrower’s note, given for
no other purpose but security, as an asset to cover its loan and avoid risk to
its own assets it had promised to lend without him knowing it.
2)
From another perspective, they have used the borrower’s note to originate the
consideration for the bank’s loan without giving anything to get the note, as
the only consideration ever given in the transaction was originated from the
note and cannot be consideration given before hand for the bank to gain and so
use it.
3)
Origination of the loan, therefore, has been made through unjust enrichment to
the bank from its fraudulent conversion of the borrower’s asset without his
knowledge.
4)
By this the bank has failed to extend and risk its own good consideration that
was already theirs before the transaction as they implied they would do to meet
its agreement.
5)
And by so doing the bank has drastically changed the equitable cost and risk to
itself to have made the loan as they represented and allowed to be understood
they were making: that is a loan of their own money that was already there
before the transaction they would have a present equitable risk to recover. This
representation of a present equitable risk to have made the loan was the sole
basis for the terms and obligations of the agreement.
But
when the dust clears and all loan proceeds checks are settled, the bank has no
present equitable risk to its other assets or cash reserves to recover any loss
of principle extended from them to have made the loan as they represented, but
has continued to enforce the terms of the agreement on its customer as if it
did.
DISCOVERY INCOMPLETE
19.
Because the issue of discovery and what has been or will be produced to
be evidence in this case is presently not resolved, (Defendant has filed a
Request for Production of Documents which has not yet yielded documents and a
Request for Admissions) it is impossible for the court to know what of
Defendant's defenses and allegations noted above can or cannot be proven,
despite the fact she has sought the evidence that will prove his contentions and
defenses in discovery and to corroborate the facts established by his other
authoritative documentary sources of evidence.
But, neither can Plaintiff’s basis in asserting its motion for summary
judgment be proven either at this time.
According
to Ryland
v. Shapiro, 708 F.2d. 987 (5th Cir.1983),( and Morris v. National
Cash Register Co. , 44 S.W. 2d 433), Defendant’s
factual allegations in the complaint must be accepted as true, if not rebutted
along with any reasonable inferences that may be drawn there from.
20. As I have
noted in Defendant's REPLY TO MOTION FOR TELEPHONIC HEARING, of record before the court,
nothing the plaintiff has presented as evidence rebuts any of the specific
allegations of fact I have made about this loan. Specifically, the facts alleged,
in Defendant's SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS remain unrebutted
by the Plaintiff.
21.
Plaintiff's breach of contract by fraudulent misrepresentation in the
making of the loan contract is supported by Defendant's sworn affidavit of
eyewitness first hand knowledge of the events of the credit agreement
transaction at issue as well as knowledge of excerpts from Federal Reserve bank
publications and authoritative sources of the banking and accounting industry of
record before the court in this response showing how such loans are made which
will corroborate the withholding of material fact and fraudulent conversion
of the borrower’s asset to fund the loan when the book entry accounting
from discovery is fully examined. Plaintiff’s
testimony and evidences make no rebuttal of these facts or their authoritative
foundations. They stand unchallenged as truth before the Court.
22. Let the
Court examine plaintiff’s testimony and evidences, including the affidavit of
Shelly Laing submitted in support of summary judgment. In no way are they
factual rebuttal of Defendant’s sworn affidavit of eyewitness first hand
knowledge of Plaintiff’s fraudulent inducement and misrepresentation in the
events of this specific loan transaction, or Defendant's authoritative sources
cited from publications of the Federal Reserve system and from the banking and
accounting industry showing how loans may be made in fractional reserve banking
without actual equitable risk to the lending institution as is represented and
allowed to be understood by the borrower.
Plaintiff's affidavit simply makes no claim to knowledge of how the loan
in this line of credit extended has been made that in any way contradict or
dispute the facts of how such loans may be made as stated from Defendant's
documentary authoritative sources. In
fact, they make no claim to knowledge of how the loan in this line of credit
extended has been made period. They
neither rebut nor refute any of such evidence or testimony by the Defendant, to
be a valid testimony in support of its allegations or its defenses.
It must speak to the facts alleged by the Defendant, not ignore them.
And therefore Defendant’s SEPARATE STATEMENT OF UNDISPUTED MATERIAL
FACTS still stands unrebutted before the Court as to the factual events of the
signing and making of this specific loan transaction that necessitate trial on
the facts of this particular loan to get at the truth of Defendant’s
allegations regarding it.
23. Unsupported general
assumptions and statements by the plaintiff are not rebuttal of Defendant’s
testimony and evidences. I have
stated that I have not seen anything that factually demonstrates by GAAP
accounting, which plaintiff acknowledges is the economic substance of the event,
the bank has ever suffered a book entry or cash reserve loss to have made the
loan or that the bank is presently at risk for the loan at issue. And I believe
no such accounting exists to show this. This allegation is unchallenged by the
plaintiff.
24.
I have not been invited to view and examine the note/credit agreement to
see the bank is still Holder in Due Course of the alleged debt despite numerous
requests. This is unchallenged.
25.
Pursuant to the Uniform Commercial Code (UCC) sections 3-308, and the
Maine Revised Statutes (MRS) 11 MRS 3-1308, the validity of the signature on all
of the charge slips is hereby specifically denied by the Account Holder as an
attestation to their authenticity, until such time as the uses made of the
charge slips if any can be verified,” and possession by the Plaintiff of the
original account agreement and all charge slips.
26.
Plaintiff’s affidavit and other testimony and documents offer no evidence that would
be admissible at trial to refute this and establish the validity of the
documents over Defendant's denial of it, or any of the denials or allegations of
fact Defendant has made.
27.
And if
Defendant’s factual allegations in the complaint of,
fraudulent inducement, misrepresentation, withholding of material fact, and
unjust enrichment by fraudulent conversion of the borrower’s asset, must be accepted as true, if not rebutted (which they have not been), and
accepted along with any reasonable inferences that may be drawn there from, as required
under the standards for summary judgment here noted, and are supported by
evidence of affidavit or other authoritative documentary information Defendant
is able to present, which when seen" in the light most favorable" to the Defendant
and accepted as true, as case law and summary judgment standard herein noted
require, since it is not rebutted by the Plaintiff, then:
material fact in dispute that will determine the outcome of the case will
have been established and Plaintiff has no basis to seek summary judgment.
28.
“Where doubt exists as to whether there is a genuine issue of material
fact, the trial judge should err on the side of denying the motion and
permitting a full trial on the merits.” Ellis v. Pows, 645 So. 2d. 947, 950
(Miss 1994) also Brown v. Credit Ctr. Inc. 444 So. 2d, 358, 362 (Miss 1983).
If any triable of issues of fact exist, the lower Court’s decision to
grant summary judgment will be reversed, Free v. Bland 369 US 668.
29.
Plaintiff’s evidences have factually rebutted none of the specific
facts of Defendant’s sworn testimony about the events of this specific loan,
when it was there duty to do so. Would the Court wonder if plaintiff is silent
in this regard because under penalty of perjury they cannot do so?
30.
Does the Court wonder why the plaintiff with its professional Certified
Public Accountants, would not perform this simple audit on the loan under GAAP
and make factual report of what it shows if to do so would factually rebut and
refute all affirmations and all allegations I have made about this loan and
factually prove me wrong? Does the Court wonder why the Plaintiff refuses to
demonstrate the source of the funds used to fund the alleged loan and produce a
clearly legible certified copy of the original contract? There is only one
reason why they would not. It is
because such an examination would not support their position but mine.
31.
At the present time Defendant’s factual allegations in the complaint
must be accepted as true, since they are not rebutted, and any reasonable
inferences that may be drawn there from accepted as true, Ryland v. Shapiro,
708 F.2d. 987 (5th Cir.1983),( and Morris v. National Cash Register
Co. , 44 S.W. 2d 433), And since they are material allegations of
fact that, if
proven, will act to void this agreement from the beginning and any obligations
supposedly under it the Plaintiff would have a basis to recover on in action
against us, and are breaches of contract we are due damages for against the
Plaintiff, summary judgment is out of place and out of order in his case at this
time and should be denied.
IV.
SUMMARY JUDGMENT PREMATURE
32.
Summary judgment is really an issue over evidence. Plaintiff’s case law
summary states, "where the facts before the court so conclusively preclude
a party's [defense] that the court could conclude, as a matter of law, that only
one conclusion of fact [is] possible.."Field, McKusick & Wroth,
Maine Civil Practice ; Hayes v. Larsen's Manufacturing Co. 871 F.Supp. 56, 58
(D. Me.1994)
33. The
fact is, the Defendant has sought discovery from the Plaintiff's book entry
accounting to establish the true nature of Plaintiff's actual equitable risk to
recover the money loaned in this transaction that will show breach of contract
by misrepresentation, withholding of material fact and fraudulent conversion of
the borrower's asset to fund the loan by the Plaintiff, he has alleged, but
Defendant's assertion in his Request For Admissions is that the book entry
accounting and other documentary evidence requested that will clearly shows if
this is true has not been provided.
34.
At this stage of this case discovery and what has been or will be
produced to be evidence in this case is in dispute and unresolved, and the
Honorable Court has had no opportunity to hear evidence by documentary
presentation or testimony of witnesses in support of allegations or defenses of
either side to discern what are the facts established and proven by evidence
before it by which it will determine the merits of either argument.
There have been no hearings and no arguments heard by the court on any
facts or evidence purporting to support them, and no examination of discovery
and report of findings by competent parties as it is in dispute.
As a matter of law, all the court knows and can see presently is that
material facts are in dispute and therefore, at this present time, the filing of
summary judgment is premature.
35.
And therefore, again, at this present time, the Court can make no final
determinations of what is fact proven in evidence before it for its
deliberations and can presently make no determinations to accept or reject
anything purporting to be “facts” proven in any legal sense carrying with
them the strength and force of law for application to this case on summary
judgment and the motion cannot be granted.
36. As a standard of review
for summary judgment Plaintiff states, "A determination of whether to grant
or deny a motion for summary judgment is based upon a review of all the
evidentiary matters before the court - admissions in pleadings, answers to
discovery, depositions, affidavits and other competent evidence."
But as we have stated, it is clear in this case, at this time, the court
cannot do this without the issues of evidence before it from discovery being
resolved and completed, so all may know what Defendant’s evidence is.
37.
Maine Rules of Civil Procedure, Rule 56 states in order to avoid entry of
an adverse judgment the party opposing the motion must bring forth evidence
which is legally sufficient to make apparent the existence of triable fact
issues." Defendant has largely
done this by unrebutted affidavit and factual documentation from authoritative
sources, but it is not possible for the Defendant to do this fully without the
issues of evidence before the court from discovery being resolved and completed,
so she may know and the court may know what other evidence she has that will
show the existence of triable fact issues, and such a motion for summary
judgment is not proper to attempt to be heard and should be denied is premature.
38. Plaintiff states,
"Plaintiff is entitled to summary judgment on its complaint pursuant to
Rule 56 of the Maine Rules of Civil Procedure because of the indisputable facts
set forth in the affidavit of Shelly Lang." Defendant has established
evidence for all elements to this case, but still, such a provision in case law
is inapplicable here as it is not possible for the Defendant to do this fully
without the issues of evidence before the court from discovery being resolved
and completed and summary judgment cannot now be considered.
39.
Movement for summary judgment must show absence of any genuine issue of
material fact or, in alternative, that there is no evidence to support nonmoving
party's case; once proper showing is made, burden shifts to adverse party to
prove by sufficient evidence that genuine issue of material fact is present for
trial. Atlas Enterprises Limited Partnership v. United States 32 Fed. Cl. 704
(1995).
40.
Yet without the issues of evidence before the court from discovery being
resolved and completed so all may know what Defendant’s evidence is, the
Plaintiff cannot yet show the "absence of any genuine issue of material
fact, and that there is no evidence to support nonmoving party's case",
because the court cannot know what evidence remains to be produced.
And
the Defendant may not have what he will have " to prove by sufficient
evidence that genuine issue of material fact is present for trial, " and
for obvious reasons Summary Judgment cannot be considered
V
41.
Defendants complaint and defenses are based on the highly technical yet
provable allegations of fact that Plaintiff does not have the risk for recovery
of the money loaned purported as a basis for the terms and obligations of the
agreement on the Defendant, and if such risk represented and allowed to be
understood by its language and terms does not exist, Plaintiff has breached the
contract from the beginning enforcing it
against the Defendant.
42.
In this present case, if allowed to continue, and if the bank's witnesses
are compelled to appear and if the book entry accounting of this loan
transaction is ordered to be produced, all of which Defendant has a right to to
make his case, Defendant will proceed to prove in open court in the confronting
of the agents of his adversary who has made the allegations of complaint against
him, out of their own mouths, the facts:
1) that Plaintiff as a banking institution is bound by law to abide by and conform to standard Generally Accepted Accounting Principles in the making of its loans and other transactions,
2) that according to such principles, the book entry accounting of a loan transaction takes precedent over other legal forms of the agreement as showing the actual economic substance of it as to who in equity provided what and received what as a risk and or a benefit in the carrying out of the written agreement; and
3)
that such book entry accounting of this transaction is available and recoverable
to be produced as evidence in this case and, once produced for their
examination, the testimony of these authoritative witnesses on it will show,
4)
the economic substance of this transaction between Plaintiff and Defendant as
they themselves are qualified to determine it, and will demonstrate and prove
with absolute certainty the nature of the performance by the Plaintiff and the
inherent risks to itself, or the lack thereof, in breach of its contract
in making the loan transaction.
VI.
FAIR DEBT COLLECTIONS PRACTICES ACT
43. Plaintiff
has ignored completely the article of Defendant's complaint and defenses that
Defendant was estopped from its action by provisions of the Fair Debt
Collection Practices Act (FDCPA) and has damaged the Defendant in violation
of the law in carrying out its suit without having first validated the debt as
required under the law.
44. The facts
are, as established by documentary evidence, of record here and already before
the court, Defendant had sought verification of the debt from JOE BLOW & JOE
BLOE, ATTORNEYS AT LAW, debt collector for BANK OF AMERICA, N.A., on January,
21, 2003, (see exhibit A), via U.S. Certified Mail, Receipt number 7005 0328
1003 6035 3365, as the Collector had not provided the verification required by
definition and statute under the FDCPA as requested. Collector has still not
provided adequate verification of said debt, even as a summons for suit was
issued on September 17, 2003 ultimately served on the Defendant on September 24,
2003.
45.
Defendant has sought and requested the Plaintiff or its agents to
validate the legal form and terms of the agreement of how the parties were
equitably supposed to have performed, by producing for examination the bank’s
journal bookkeeping entry ledger records of the transaction showing the factual
economic substance of the transaction under GAAP of what actually did
happen and how the parties actually did perform. (see REQUEST FOR
PRODUCTION OF DOCUMENTS).
46.
Defendant would show unto the Court, to this date Plaintiff has yet to
provide any of the appropriate documentation necessary to validate this debt
accordingly despite his direct request for them do so, and which request is his
right to receive from the Plaintiff.
47. Plaintiff
had noted in its letter of March 12, 2003, (see exhibit, ”D”, attached).the
requirements to which it is bound under The Fair Debt Collection Practices Act
by stating, "...If you notify this office in writing within the thirty day
period that the debt, or any portion thereof is disputed, this office will
obtain verification of the debt...".
48. Fair Debt
Collections Practices Act:
§
809. Validation of debts
[15 USC 1692g]
5(b)
If the consumer notifies the debt collector in writing within the thirty-day
period described in subsection (a) that the debt, or any portion thereof, is
disputed, or that the consumer requests the name and address of the original
creditor, the debt collector shall cease collection of the debt, or any disputed
portion thereof, until the debt collector obtains verification of the debt or
any copy of a judgment, or the name and address of the original creditor, and a
copy of such verification or judgment, or name and address of the original
creditor, is mailed to the consumer by the debt collector.
49.
Defendant would show unto the Court, It is fundamental for Plaintiff’s
debt collector in validating that a debt exists, to establish that their client
had loaned its own substance as valuable consideration that did already exist
before the transaction that would allow creditor or collector in equity to
demand payment. This is what Defendant had requested and what the law requires
must be produced before collection efforts could rightly continue.
50. Yet it is clear
Plaintiff's attorney had once again initiated collection of the alleged debt by
beginning its legal action before Defendant would have had opportunity to be
notified of Plaintiff’s position in any dispute over the debt. And therefore began its legal action in violation of their
own acknowledged requirements of temporary forbearance of such action under The
Fair Debt Collection Practices Act until the requirements of the law had been
met. But Plaintiff has in fact, not
verified or validated the debt before having begun its legal action even if its
response had been received prior to its legal action beginning.
1) Validation of the debt,
by notarized affidavit from an officer of your client qualified to make a
statement affirming the fact that your client is still presently the legal
holder in due course of this debt and that I currently have the obligation to
pay them for it or in or in any way which may be considered legal verification
of the debt enforceable in law proving they or you are the actual holder of the
debt in question; and
2)
a full validation of the debt as allegedly made by the original alleged lender
seeking to establish fact by the bank’s journal bookkeeping entry records of
the accounting of this loan transaction under standard GAAP showing that the
bank has performed as agreed as
stated and implied in its loan agreement and did, in fact, lend
money already in existence from assets, deposits or accounts belonging to
the bank, its depositor’s, or other banks, that existed prior to the
transaction and origination from the credit agreement/note, and was in fact,
lending money it had advertised and represented to the buyers as already being
in its possession and/or control to lend in the origination of the loan and to
which assets, deposits or accounts the bank
would be seen by its accounting to have had risk of liability to make good the
funds buyers received from the bank if not repaid,( which is the risk of
liability to the bank stated and/or
implied in the agreement as
justification and basis for the terms of the bank’s note buyers were induced
to sign.) And which specific performance, as indicated above, stated and implied
in the note and the bank’s past advertising, was the sole legal basis for the
bank to have obtained the buyers’ promise and obligation to perform under the
note as he agreed,
52. But as stated no such verification has yet been provided by
Plaintiff’s debt collector.
53.
This was not a refusal to pay, but a notice that this account was
disputed until this dispute was resolved by their validation and verification of
the debt and until the requirements of the FDCPA have been met, the Collector
had no jurisdiction to continue any collection activities.
Defendant
would show unto the Court with regard to legal validation and verification of a
debt:
There
is no statutory definition of verification under the FDCPA therefore the
ordinary meaning of the word; particularly in law defines the word.
"In the absence of a statutory definition, courts give terms their
ordinary meeting. "Bass, Terri L. v. Stolper, Koritzinsky, 111 F.3d
1325,7thCir. Apps. (1996).
54. As
the U.S. Supreme Court noted, "We have stated time and again that courts
must presume that a legislature says in a statute what it means and means in a
statute what it says there. See, e.g., United States v. Ron Pair Enterprises,
Inc., 489 U.S. 235, 241 -242 (1989); United States v. Goldenberg,168 U.S.
95, 102 -103 (1897); Oneale v.
Thornton, 6 Cranch 53, 68. When the words of a statute are unambiguous, then
this first canon is also the last:" judicial inquiry is complete." Rubin
v. United States, 449 U.S. 424, 430(1981)
"The legislative purpose is expressed
by the ordinary meaning of the words used. “Richards v. United States, 369
U.S.1 (1962).
Verification, n.
1. A formal declaration made in the presence of an authorized officer, such as a
notary public, by which one swears to the truth of the statements in the
document. ...” Black’s Law Dictionary, 7th Edition (1999).
Verification
requires "Confirmation of correctness, truth, or authenticity, by
affidavit, oath or deposition.... In accounting, the process of substantiating
entries in books of account." (Black's Law Dictionary, Sixth Edition).
This refers to verifying all of the bookkeeping journal entries
associated with a loan transaction being verified.
55.
Attorneys who regularly engage in activities of debt collections fall
within the definition of a debt collector under FDCPA. Heintz v. Jenkins, 514
U.S. 291, 115 S. Ct. 1489, 131 L. Ed.2d 395 (1995)
56.
A debt collector must provide verification
before an attorney can collect in court. see
S.D. Florida. Pablo Martinez, debtor, Plaintiff, v. Law Offices of David
J. Stern .A., Defendant Bankruptcy No. 99-42274-BKCRAM. May 30, 2001.
57.
As the Court can see from the evidence here presented, requests for such
verification had already been made of the Plaintiff, had been ignored, and were
being made of Plaintiff's attorney pursuant to resolution of the debt after it
had been verified and validated and he had received no response to any requests
for validation of any type, that satisfy definition of law, before the legal
action was begun. By full of documentation noted herein in our affirmative
defense on this issue, Plaintiff is estopped from its action against Defendant
by its own admission as to the requirements to which it is bound to validate the
debt by definition of law under The Fair Debt Collection Practices Act.
58. Defendant is thereby being damaged by the time, and hardship
involved in enduring Plaintiff's legal action, which should be estopped, and by
Plaintiff's refusal to obey the law, Defendant is further damaged by denial of
the very evidence by which he might prove and defend his case.
VII
59. Certainly, causes for action wanting relief that preclude
dismissal of Defendant's complaint under Rule 12 b(6) for failure to state a
cause for action on which relief can be granted, and material factual
allegations that would estoppe the Plaintiff from even bringing this action that
is supported by evidence and is in dispute and therefore precludes summary
judgment in this case, as the Maine Rules of Civil Procedure provided that
summary judgment may be granted only when there are no genuine issues of material fact in dispute supported by
evidence requiring trial.
60. Plaintiff has not rebutted these facts and has done little
more than deny this allegation of Defendant's counter complaint without factual
foundation submitted to support it and does not even address it in this Motion
for Summary Judgment.
61. Further, by
such material issues of federal law in dispute, Plaintiff’s case against the
Defendant is possibly removed from the jurisdiction of the state court for the
present until these material issues of federal law are resolved, and its
pleadings are therefore insufficient to establish subject matter jurisdiction
for the court to hear its claims against the Defendant in this case, and such
claims should be dismissed for the present.
VII.
PLAINTIFF'S STATEMENT OF FACTS
64. Plaintiff's
Statement of Material Facts merely recites the historical facts of the contract
between the parties, and or other filings by the plaintiff, and the submission
of the legal forms of the agreement between plaintiff and defendant as exhibits.
But these facts prove or refute nothing with regard to the dispute raised
in Defendant’s complaint and defenses.
Movement for summary judgment must show absence of any
genuine issue of material fact or, in alternative, that there is no evidence to
support nonmoving party's case; Atlas Enterprises Limited Partnership v.
United States 32 Fed. Cl. 704 (1995).
In its recitation of historical facts in this case Plaintiff
fails to do this.
CONCLUSION
The Defendant
would respectfully reminds the Court, according to case law here cited.
In Anderson
v. liberty Lobby, Inc. 477 U.S. 242 (1986); and City Mgm’t Corp. v. U,S.
Chemical Co., Inc., 43 .3d 244 (6th Cir. 1994), it was determined
the role of a judge at summary judgment stage is not to weigh evidence but to determine whether there
is genuine issue of material fact requiring trial that would make summary
judgment improper.
The Court must carefully review all evidentiary matters before
it; admissions in pleadings, answers to interrogatories, depositions,
affidavits, etc. in the light most favorable to the party against whom the
motion for summary judgment is made. Essentially considered to mean, “When
considering a motion for summary judgment, a Court must review the evidence in
the light most favorable to the non moving party and give the non moving party
the benefit of every doubt.”
Movement
for summary judgment must show absence of any genuine issue of material fact or,
in alternative, the there is no evidence to support nonmoving party's case; Atlas
Enterprises Limited Partnership v. United States 32 Fed. Cl. 704 (1995).
Further,
According to Ryland
v. Shapiro, 708 F.2d. 987 (5th Cir.1983),( and Morris v. National
Cash Register Co. , 44 S.W. 2d 433), Defendant’s factual allegations in the complaint must be
accepted as true, if not rebutted along with any reasonable inferences that may
be drawn there from. Which, as I
have shown, is the case here.
“Where
doubt exists as to whether there is a genuine issue of material fact, the trial
judge should err on the side of denying the motion and permitting a full trial
on the merits.” Ellis v. Pows, 645 So. 2d. 947, 950 also Brown v. Credit
Ctr. Inc. 444 So. 2d, 358, 362 (Miss 1983).
If
any triable of issues of fact exist, the lower Court’s decision to grant
summary judgment will be reversed, Free
v. Bland, 369 US 668
Premises
considered, Plaintiff has failed to establish any basis in fact or in law to
support summary judgment, summary judgment cannot be heard as there is no
resolution or completion on the issue of evidence from discovery and what facts
may finally be proven there from, and his motion should be denied and Defendant
prays the court that it be so ordered.
RESPECTFULLY
SUBMITTED,
FOR:
JOHN DOE
BY:____________________________
John H. Doe
In Propria Persona
c/o P.O. Box 9999
Any town, Any State, 999999
CERTIFICATE OF SERVICE
I hereby certify that I have mailed a copy of the foregoing Additional Response to Plaintiff's Motion for Summary Judgment, this __________ day of __________, 2004, by, to JOE BLOW AND JOE BLOW, ATTORNEYS AT LAW, 99 Any Street, Any Town, Any State 99999; and to Clerk of District Court, P.O. Box 999, Any Town, Any State 99999 by U.S. Certified Mail Return Receipt Requested, Receipt no.______________________________________
____________________________________
Jack Doe