Attorney No.

91017
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
FIRST MUNICIPAL DISTRICT

DEBT BUYER PARTNERS )

)
Plaintiff. ) No.
v. ) Amt. Claimed: $11,604.66 plus costs.
)
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.

6. Instead of account agreements and assignments, plaintiff attaches a meaningless affidavit

purporting to state that the defendant owes a sum of money. The affiant is identified

under the title “Media Supervisor.”

7. Plaintiff has no application, agreement, or transactional documents bearing the

defendant’s signature, and alleges no facts in support of the alleged agreement. In fact,

plaintiff’s complaint is devoid of anything manifesting the defendant’s actual agreement

to any terms or amount due related to this alleged account. [if applicable: The purported

contract attached to the complaint is generic boilerplate with no apparent connection to

the defendant or the plaintiff.]

8. In order to comply with The Truth in Lending Act (TILA), 15 U.S.C. § 1642, the

original lender must have a signed request or application, or in absence of such writing,

there must be a record detailing the date and circumstances of the request or application

for credit. 15 U.S.C. § 1642. The plaintiff’s complaint includes none of these

requirements.

9. Further, under federal law, “[i]n any action by a card issuer to enforce liability for the

use of a credit card, the burden of proof is upon the card issuer to show that the use was

authorized or, if the use was unauthorized, 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, as

set forth in subsection (a) of this section, have been met.” 15 U.S.C. §§ 1643(b).

10. The unsupported statement that “a contract existed between plaintiff

and defendant” fails to properly allege a contract cause of action.

Pollack v. Marathon Oil Co., 34 Ill. App.3d 861, 341 N.E.2d 101 (5th

Dist. 1976). Here, plaintiff alleges no facts supporting a claim for breach of contract,

and therefore, the complaint should be dismissed.

 The Complaint Does Not Allege The Elements of Account Stated

11. If this is complaint for the account stated, it should be dismissed for the following

reasons:

12. A cause of action for an “account stated” must allege four elements: (a) transactions of a

monetary character involving the parties to the action; (b) the existence of accounts

embodying such monetary transaction; (c) an agreement by the parties to such

transactions that all items of such accounts are true and that the balance is correct; and

(d) a promise to pay such balance. Canadian Ace Brewing Co. v. Swiftsure Beer Serv.

Co., 17 Ill.App.2d 54, 149 N.E.2d 447 (1st Dist. 1958); O’Neill v. Reamon, 335 Ill.App.

327, 81 N.E.2d 749 (2nd Dist. 1948).

13. Plaintiff does not allege that it contacted the defendant at any time in regards to this

purported debt, or that any agreement was reached as to the balance allegedly due.

Instead, plaintiff merely makes the conclusory allegation that the defendant is “in

default” and an amount is allegedly due.

14. Plaintiff has failed to plead: (a) that there was any agreement between the parties

regarding accounts representing previous transactions; (b) that there was an agreement

that the items in an account were true; (c) that there was an agreement that the balance

struck was correct; and (d) that there was a promise to pay such balance. “In an action

for an account stated the complaint should allege all the material facts on which the

liability of the defendant depends.” 1 I.L.P. Account Stated § 6 (1988). See W.E.

Erickson Construction Inc. v. Congress-Kenilworth Corp., 132 Ill. App.3d 260, 268, 477

N.E.2d 513, 519 (1st Dist. 1985); and see Allied Wire Products, Inc. v. Marketing

Techniques, Inc., 99 Ill. App.3d 29, 40, 424 N.E.2d 1288, 1296 (1st Dist. 1981).
15. Just as the unsupported statement that “a contract existed between plaintiff and

defendant” fails to properly allege a contract cause of action, the bare allegation that an

account is in default with a balance due does not adequately plead an account stated

claim. “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, together with a promise,

express or implied, for payment of such balance.” LaGrange Metal Products v.

Pettibone Mulliken Corp., 106 Ill. App.3d 1046, 1053, 436 N.E.2d 645, 651 (1st Dist.

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.”); See Palisades Collection LLC v. Haque, NYS (Queens County Civil Court,

April 14, 2006). Here, there have been no previous transactions between plaintiff and

defendant, and no subsequent agreement as to the correctness of the account.

16. For the foregoing reasons, the complaint fails to state a cause of action for account stated.

The complaint is therefore deficient at law and should be dismissed.

Plaintiff’s Affidavit Is Incompetent

17. Finally, the affidavit upon which the complaint relies is utterly incompetent and legally

insufficient and should be stricken and disregarded for the following reasons.

18. Plaintiff’s complaint relies exclusively on an affidavit executed by employee KK,

referred to as a “Media Supervisor” of Debt BuyerPartners. The affidavit claims that as

such, “she is authorized to make statements and representations herein.” Plaintiff Exhibit

1, ¶ 1. However, 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, nor does it establish her knowledge regarding the manner or methods of the
 plaintiff’s business dealings. It does not attempt to, and as demonstrated below, cannot

authenticate any documents upon which the conclusory statements are based. The affiant

is therefore entirely incompetent to testify as to the information contained in the

affidavit, including any alleged amount due from the defendant. Outboard Marine Corp.

v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

19. Illinois Supreme Court Rule 191 requires that affidavits shall be “made from personal

knowledge of the affiant; shall set forth with particularity the facts upon which the claim,

counterclaim, or defense is based; shall have attached thereto sworn or certified copies of

all papers upon which the affiant relies; and shall affirmatively show that the affiant, if

sworn as a witness, can testify competently thereto.” Outboard Marine Corp. v. Liberty

Mutual Ins. Co., supra.

20. The affiant must have personal knowledge of the facts supporting the amount of the

claim, i.e., how the original creditor’s business records were created and maintained, the

entire account history, and how the claimed balance was calculated as to principal and

interest. Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st

Dist. 2007).

21. Plaintiff’s affidavit does not attach or suggest that plaintiff possess the business records

of its assignor, nor could plaintiff’s employee competently testify as to the authenticity,

accuracy or completeness of such business records of plaintiff’s assignor, if they did in

fact exist. Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa,

supra; Cole Taylor Bank v. Corrigan, 230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd

Dist. 1992); Champaign Nat’l Bank v. Babcock, 273 Ill. App.3d 292, 298, 652 N.E.2d

848 (4th Dist. 1995) (affidavit allowed where affiant was personally familiar with band’s

loan files, ledgers and records, and affidavit itemized payments made, interest charges,
 and principal balances from the date of inception); See also, In re Vee Vinhnee, 2005 WL

3609376 (BAP 9th Cir. 2005) (normal evidentiary foundation must be established for

admission of business computer records, including familiarity with the way records are

maintained, recognizing that computer records are not necessarily or automatically

accurate); C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 139 (So. Dist.

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, and was unable to attest to the identity and mode of preparation of records

originally created by credit card company); Citibank v. Martin, 807 N.Y.S.2d 284

(2005) (“affidavit must demonstrate personal knowledge of essential facts or the

judgment will be assailable, even if the defendant defaults,” and must show principal

balances and additional charges from the date of inception).Palisades Collection, LLC v.

Gonzalez, surpa.

22. Testimony, whether live or in the form of an affidavit, 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. Instead the actual records must be introduced after a proper foundation

is provided. Apa, supra; Pell v. Victor J. Andrew High School, 123 Ill. App.3d 423,

462 N.E.2d 858, 866 (1st Dist. 2984) (letter from corporation A to corporation B is

hearsay, and is thereby inadmissible as a business record of corporation B, 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”); Benford v. Chicago

Transit Authority, 9 Ill. App.3d 875, 877-878 (1st Dist. 1973); Cole Taylor

Bank v. Corrigan, supra; Champaign Nat’l Bank v. Babcock, supra; C & W Asset

Acquisition, supra; LLC v. Somogyl, supra. It is the business records that constitute the
 evidence, not the testimony of the witness referring to them. See In re A.B., 308

Ill.App.3d 227, 719, 719 N.E.2d 348 (2nd Dist. 1999).

23. The court must disregard unsupported, conclusory statements in an affidavit. Estate of

Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d

961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a

court will disregard all conclusions in an affidavit).

24. Because the sole basis of plaintiff’s claim, including the balance

allegedly due and the interest rate accruing, is an inadmissible

affidavit, the affidavit should be stricken in its entirety.

25. Therefore, plaintiff has not established a claim for either breach of contract or for an

account stated, and the complaint should thereby be dismissed with prejudice.

WHEREFORE, Defendant prays that this Honorable Court strike plaintiff’s

affidavit in its entirety, and dismiss Plaintiff’s complaint with prejudice.

Respectfully submitted,

____________________
Michelle A. Weinberg
Michelle A. Weinberg
Legal Assistance Foundation of Metropolitan Chicago
111 West Jackson Boulevard, Suite 300
Chicago, Illinois 60604
312-347-8363
Attorney No. 91017