Attorney No.

91017 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS FIRST MUNICIPAL DISTRICT DEBT BUYER PARTNERS Plaintiff. v. JOHN DOE Defendant ) ) MOTION TO DISMISS Now comes defendant, John Doe, through his attorneys, Michelle A. Weinberg and the Legal Assistance Foundation, and hereby moves this Honorable Court pursuant to Illinois Code of Civil Procedure Rule 2-615 to strike the affidavit and dismiss the complaint filed by plaintiff in the above captioned cause. A copy of the Complaint is attached hereto. In support of this motion, defendant states as follows: 1. Plaintiff filed this action claiming that $11,604.66 is due from defendant on a purported charge account, originally held with U.S. Bank. 2. The complaint does not set forth a cause of action for either an account stated or a breach of contract, as demonstrated below. The Complaint Fails To Establish The Existence Of A Contract 3. If this is a complaint for breach of contract, it should be dismissed for the following reasons: 4. In violation of Section 2-606 of the Illinois Code of Civil Procedure, no contract is attached to the complaint, nor does the complaint state that no contract is available and explain its absence. 5. The complaint alleges that plaintiff “purchased” the “account,” but no assignment is attached, nor is there any explanation for its absence. ) ) ) ) ) No. Amt. Claimed: $11,604.66 plus costs. )

. Instead of account agreements and assignments.” 7.6. under federal law. § 1642. 341 N. .” 15 U. §§ 1643(b). plaintiff attaches a meaningless affidavit purporting to state that the defendant owes a sum of money. 34 Ill. as set forth in subsection (a) of this section. “[i]n any action by a card issuer to enforce liability for the use of a credit card. 15 U. plaintiff alleges no facts supporting a claim for breach of contract. then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card.C. there must be a record detailing the date and circumstances of the request or application for credit. In order to comply with The Truth in Lending Act (TILA). the burden of proof is upon the card issuer to show that the use was authorized or. the original lender must have a signed request or application. if the use was unauthorized. 15 U. plaintiff’s complaint is devoid of anything manifesting the defendant’s actual agreement to any terms or amount due related to this alleged account. have been met. [if applicable: The purported contract attached to the complaint is generic boilerplate with no apparent connection to the defendant or the plaintiff.2d 101 (5th Dist. 9. In fact. and therefore.C. The affiant is identified under the title “Media Supervisor. or transactional documents bearing the defendant’s signature. The unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action. App.S.3d 861.] 8. or in absence of such writing.S. Further. § 1642. and alleges no facts in support of the alleged agreement.C. Pollack v. the complaint should be dismissed. 10. Here. agreement. Plaintiff has no application. The plaintiff’s complaint includes none of these requirements.E. 1976). Marathon Oil Co.S.

and see Allied Wire Products. 268.P. “In an action for an account stated the complaint should allege all the material facts on which the liability of the defendant depends.3d 260. See W.2d 513.The Complaint Does Not Allege The Elements of Account Stated 11. v. 132 Ill. 1296 (1st Dist. Account Stated § 6 (1988). 40. O’Neill v.2d 749 (2nd Dist. Plaintiff has failed to plead: (a) that there was any agreement between the parties regarding accounts representing previous transactions. 99 Ill. (b) that there was an agreement that the items in an account were true.E.3d 29. Reamon. (c) that there was an agreement that the balance struck was correct.2d 447 (1st Dist. 149 N. Co.2d 1288. App. 1985). Congress-Kenilworth Corp. and (d) a promise to pay such balance. 327. and (d) that there was a promise to pay such balance. plaintiff merely makes the conclusory allegation that the defendant is “in default” and an amount is allegedly due. 424 N. Swiftsure Beer Serv.E. 13. . (b) the existence of accounts embodying such monetary transaction. 477 N. Plaintiff does not allege that it contacted the defendant at any time in regards to this purported debt.2d 54. it should be dismissed for the following reasons: 12.App. A cause of action for an “account stated” must allege four elements: (a) transactions of a monetary character involving the parties to the action.E. 1981).L.. 14. Marketing Techniques. If this is complaint for the account stated. v. Instead. Canadian Ace Brewing Co. 81 N. 17 Ill. or that any agreement was reached as to the balance allegedly due. 335 Ill.. (c) an agreement by the parties to such transactions that all items of such accounts are true and that the balance is correct. 1958).” 1 I. v.E. Inc..E. Inc. App. Erickson Construction Inc.App. 519 (1st Dist. 1948).

436 N. the affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons. referred to as a “Media Supervisor” of Debt BuyerPartners. the bare allegation that an account is in default with a balance due does not adequately plead an account stated claim. there have been no previous transactions between plaintiff and defendant. The complaint is therefore deficient at law and should be dismissed.. 1983) (“The meeting of the parties’ minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto. 106 Ill.” Plaintiff Exhibit 1. 1053. “she is authorized to make statements and representations herein. April 14. Just as the unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action. the complaint fails to state a cause of action for account stated.2d 645. App. The affidavit claims that as such. the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due.”). Plaintiff’s Affidavit Is Incompetent 17. express or implied. 2006). Here.15. NYS (Queens County Civil Court. “An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the accounts representing such transactions are true and that the balance struck is correct. 18. together with a promise.E. Haque. 651 (1st Dist. and no subsequent agreement as to the correctness of the account. for payment of such balance. nor does it establish her knowledge regarding the manner or methods of the . However.” LaGrange Metal Products v. Plaintiff’s complaint relies exclusively on an affidavit executed by employee KK. ¶ 1. 16. Pettibone Mulliken Corp. See Palisades Collection LLC v. Finally.3d 1046. For the foregoing reasons.

2d 490 (1st Dist. shall set forth with particularity the facts upon which the claim.3d 292. Babcock. ledgers and records. 374 Ill.E. the entire account history. 652 N.. cannot authenticate any documents upon which the conclusory statements are based. Corrigan. nor could plaintiff’s employee competently testify as to the authenticity. Apa.. Champaign Nat’l Bank v.2d 848 (4th Dist. including any alleged amount due from the defendant.. and affidavit itemized payments made. 1995) (affidavit allowed where affiant was personally familiar with band’s loan files. 872 N. and how the claimed balance was calculated as to principal and interest. 1223 (1992).2d 90. 154 Ill. .E. v.3d 1082. Apa v. Liberty Mutual Ins.3d 122. National Bank of Commerce. i. Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal knowledge of the affiant. 132. 21. accuracy or completeness of such business records of plaintiff’s assignor. supra. App. 298. can testify competently thereto. App. The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit. 595 N. Co.2d 1204.E.plaintiff’s business dealings. counterclaim. supra.App. how the original creditor’s business records were created and maintained. It does not attempt to.” Outboard Marine Corp.2d 177. 1992).e. 2007). if sworn as a witness.E. Liberty Mutual Ins. 607 N. and shall affirmatively show that the affiant. and as demonstrated below. 230 Ill. 19. Co. Outboard Marine Corp. if they did in fact exist. Cole Taylor Bank v. 273 Ill. The affiant must have personal knowledge of the facts supporting the amount of the claim. interest charges. 20. 181 (2nd Dist. or defense is based. Plaintiff’s affidavit does not attach or suggest that plaintiff possess the business records of its assignor. v. shall have attached thereto sworn or certified copies of all papers upon which the affiant relies.

3d 875. Apa.S. and is thereby inadmissible as a business record of corporation B. including familiarity with the way records are maintained. See also. whether live or in the form of an affidavit. In re Vee Vinhnee. It is the business records that constitute the . even if the defendant defaults. 807 N.2d 858. 2984) (letter from corporation A to corporation B is hearsay. Chicago Transit Authority.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable.E. supra. 9 Ill. Martin. Instead the actual records must be introduced after a proper foundation is provided. 139 (So. App.Palisades Collection. 877-878 (1st Dist. C & W Asset Acquisition. App.Y. 1973). 2004) (records submitted by assignee of credit card company were inadmissible as business records because custodian of assignee served only as conduit in the flow of records. Dist. Testimony. LLC v. Pell v. Champaign Nat’l Bank v. and was unable to attest to the identity and mode of preparation of records originally created by credit card company). 123 Ill. supra.W. C & W Asset Acquisition.3d 423. Babcock. surpa. to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent.3d 134. Andrew High School. 22. LLC v. Cole Taylor Bank v. LLC v. Benford v. 136 S. 866 (1st Dist. stating that “just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business”). 462 N. Victor J.and principal balances from the date of inception). recognizing that computer records are not necessarily or automatically accurate). Somogyi. 2005) (normal evidentiary foundation must be established for admission of business computer records. 2005 WL 3609376 (BAP 9th Cir. Citibank v. supra. Gonzalez.” and must show principal balances and additional charges from the date of inception). supra. Corrigan. supra. Somogyl.

App. 1999). 91017 . 105.E.B.App. Weinberg Michelle A. Therefore. including the balance allegedly due and the interest rate accruing. Illinois 60604 312-347-8363 Attorney No. 159 Ill. not the testimony of the witness referring to them. and the complaint should thereby be dismissed with prejudice. conclusory statements in an affidavit. Because the sole basis of plaintiff’s claim. 267 Ill. 640 N. appeal denied. 25. 719.. and dismiss Plaintiff’s complaint with prejudice.E. The court must disregard unsupported. ____________________ Michelle A.evidence.2d 961.3d 100.. Federal Kemper Life Assurance Co. is an inadmissible affidavit. 965 (2nd Dist.3d 227. 23.E. Defendant prays that this Honorable Court strike plaintiff’s affidavit in its entirety.2d 348 (2nd Dist. See In re A. Suite 300 Chicago. Weinberg Legal Assistance Foundation of Metropolitan Chicago 111 West Jackson Boulevard.2d 566. 24. 1994). plaintiff has not established a claim for either breach of contract or for an account stated. 719 N. Respectfully submitted. 308 Ill. Estate of Blakely v.2d 1008 (1995) (a court will disregard all conclusions in an affidavit). WHEREFORE. the affidavit should be stricken in its entirety. 647 N.

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