PLAINTIFF'S REVISED APPENDIX - Philip D. · PDF file- 5/18/12 Order Denying Reconsideration with Tentative Decision Annexed 5. Plaintiff's Motion seeking Reconsideration with Brief

PLAINTIFF'S REVISED APPENDIX

1. Summons and Complaint

2. Answer a) as served; b) as filed and retrieved from JEFIS.

3. Substitution of Counsel from Defendant, Pro-se, to Philip D. Stern & Associates

4. Notice of Appeal

- 4/4/12 Order of Disposition - "Dismissed With Prejudice"

- 5/18/12 Order Denying Reconsideration with Tentative Decision Annexed

5. Plaintiff's Motion seeking Reconsideration with Brief (*) Element Redacted

6. Plaintiff's Exhibit P-1

7. Unpublished Opinion - Wildy v. M&R Auto Sales, Inc., 2010 N.J. Super. Unpub. LEXIS 1340, 5-6 (App. Div. June 18, 2010)

8. Unpublished oplnlon - Newtown & Assoc., L.L.C. v. Innovative Solutions Systems, 2008 N.J. Super. Unpublished LEXIS 2723, p. 6,7 (Nov. 13, 2008)

9. Transcript Delivery Notification

10. Defendant's Opposition to Plaintiff's Motion for Reconsideration

11. Defendant's/Respondent's Case Information Statement

26

PA-1a

PA-3a PA-5a

PA-7a

PA-10a

PA-20a

PA-21a

PA-27a

PA-36a

PA-50a

PA-54a

PA-S8a

PA-59a

PA-93a

Acct # 140275 Ref # 113749533

SUMMONS AND RETURN OF SERVICE P&P FILE # S263754 Pressler and Pressler, Counselors at Law

LLP Demand Amount

7 Entin Rd. Parsippany, NJ 07054-5020 (973)753-5100

Plaintiff MIDLAND FUNDING LLC

Filing Fee Service Fee Atty's Fee

TOTAL

5,137.57 $50.00

$7.00 $117.75

$5,312.32

SUPERIOR COURT OF NEW JERSEY LAW DIVISION, SPECIAL CIVIL PART SOMERSET COUNTY

------------Vs------- CIVIL DIVISION OFFICE COURTHOUSE 3RD FLR., PO BOX 3000

SOMERVILLE NJ 08876-1262 908-231-7015

Defendant(s) OLGA SHAPOSHNIKOVA

Defendant(s) Information: Name, Address & Phone OLGA SHAPOSHNIKOVA 740 HAWTHORNE AVE BOUND BROOK, NJ 088051539 732-356-2099

DOCKET NO. CIVIL ACTION

SUMMONS CONTRACT

Date served: ************-*~*~*~*~*~*~*-*-*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~***************************************

RETURN OF SERVICE IF SERVED BY A COURT OFFICER (Official Use Only) Docket No. Date Time WM ----~W=F~----------- BM BF ----------~O=T=H=E~R HEIGHT WEIGHT AGE HAIR MUSTAC~H=E------- BEARD -------------- GLA~S~S=E~S--------- ----------NAME RELATIONSHIP DESC~R=IP~T=IO~N~O~F~P~R~E~M~I~S~E~S~-_-_-_~-_-_-_-_-_~~ ____________________ ~~~~~~~~~~~~~~~~~~~~~~~--

I hereby certify the above return to be true and accurate.

Court Officer ******************************************************************************

RETURN OF SERVICE IF SERVED BY MAIL (Official Use Only) I, , hereby certify that on

[date], I mailed a copy of the within -s-umm---o-n-s--a-n-d~c-o-m-p~l-a~i-n~t~b-y--r-e-g--u~l-a-r--and certified mail-return receipt requested.

Employee Signature

PEessler and Pressler, LLP 7 Entin Rd. Parsippany, NJ 07054-5020 (973)753-5100 Attorney for Plaintiff File # S263754 MIDLAND FUNDING LLC

Plaintiff

vs.

OLGA SHAPOSHNIKOVA

SUPERIOR COURT OF NEW JERSEY Law Division

SOMERSET Special Civil Part Docket #

Defendant(s) civil Action COMPLAINT

(Contract) Plaintiff having a principal place of business at: 8875 AERO DRIVE SUITE 200 SAN DIEGO, CA 92123 says:

1. It is now the owner of the defendant(s) CHASE BANK USA, N.A. account number 42668~1180574707 which is now in default. There is uue the-plaintiff from the defendant(s) OLGA SHAPOSHNIKOVA the sum of $5,022.68 plus interest from 11/30/2009 to 11/21/2011 in the amount of $114.89 for a total of $5,137.57.

WHEREFORE, plaintiff demands judgment for the sum of $5,137.57 plus accruing interest to the date of judgment plus costs.

I certify that the matter in controversy is not the subject of any other court action or arbitration proceeding, now pending or contemplated, and that no other parties should be joined in this action.

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b).

PRESSLER and PRESSLER, LLP Attorneys for Plaintiff(s) By: ______________________ _

Ralph Gulko

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Plaintiffs Name

J t=ntn l<POJ.

Telephone Nwnber

Telephone Nwnber

Superior Court Of New Jersey Law Division, S~eciaJ Civil Part

Sam£.( J.e+ County

DocketNo. Dc -00'1 601 - J \

CIVIL ACTION

Answer

Check the appropriate statement or statements below which set forth why you claim you do not owe money to the plaintiff.

(1) The good or services were not received. (2) The goods or services received were defective. (3) The bill has been paid. (4) I1We did not order the goods or services. (S) The dollar amount claimed by the plaintiffts) is incorrect. (6) Other - Set forth any other reasons why you believe money is not owed to the pJaintift{s). (You may

attach more sheets if you nr,ed to.)

\ \Qc..K·, ~{Otm t· on or

Trial by jury requested; an extra SSO check or money order is enclosed.

At the trial Defendant requests: An interpreter: An accommodation for a disability:

Yes X No Yes --,c No

Indicate Language: Requested accommodation:

I certify the matter in controversy is not the subject of any other court action or arbitration proceedi~g now pending or contemplated, and that no other parties sh ould be joined in this action.

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and wi)) be redacted from all documents submitted in the future in accordance with Rule I :38-7(b).

I further certify that this answer was served on all other parties within 35 days of the date the summons and complaint were mailed to me as indicated on page 2 of the summons.

Dated: 11\ Z 2 \ 11 Defendant"s Signature

0\ a ShG\ Defe danCs Name - pe or Printed

Revised 091112009, eN 10542-English (How to Answer a Complaint in the Speda' Civil Part) Page 9 of 9

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CIVIL ACTIO~N!-____ --~ --I BATCS- ~(}~ Answel"To# ~r d"1 _

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PAYMEN~ CA/~MO CHECK /MOl: 6'1 Dt,_

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Check the appropriate statement or statements below which set forth why you claim yaudo not owe money to the plaintiff.

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Trial by jury requested; an extra SSO check or money order is enclosed.

At the Irial Defendant requcsts: An interpretcr: __ Yes X No An accommodation for a disability: __ Yes X No

Indicate LanguBge: Requested accommodalic,":

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I certify t~~ ~&ner i~~ontrovc:rsy is not the subject of any other court action or arbitration proceeding now pc ing . or contemplated. and that no other parties should be joined in this action. ~

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I certify that confidential personal identifiers have been redacted from documents now submitted to the c l!ttta~ d ~ will be redacted from all documents submitted in the future in accordance with Rule 1 :38-7(b). /~'&' ~

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- - CONTINUED--

Olga Shaposhnikova . Ref: Docket# DC007607-11

I do not have any knowledge of any prior communications with the Plaintiff,' or Plaintiffs attorney regarding alleged debt. There has been no prior comunication until this complaint was filed.

I received a notification from the superior court on November 23, 2011 where I was being suit by Midland Funding LLC for the alleged debt. After that I received a letter on Dec. 9, 2011 dated Dec 7, 2011 where it is telling me that ,the account for the debt has been taken over by MIDLAND FUNDING LLC. So they proceeded to sued first and notify me later that they were taking over the alleged account. .

I do not practice taking phone calls in regard my business matters. I handle all of my business transaction via mail, by requesting statements and written request for everything at al1 times. Therefore, the p]ainti~ f~lled to provide defendant with any kind of documented to proof for th~ ~~~ At this time I am requesting supporting documents for this alleged debt. o.s.

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PHILIP D. STERN & ASSOCIATES, LLC ATTORNEYS AT LAW

697 VALLEY STREET. SUITE 20, MAPLEWOOD, NJ 07040-2642 (973) 379-7500

January 26, 2012

ELECTRONIC FILING TRANSMITTAL SHEET for Judiciary Electronic Filing System (JEFIS)

Re: Midland Funding, LLC v. Olga Shaposhnikova Docket No. SOM-DC-007607 -11

Filer: Inna Ryu, Esq. Document Type: Sub-Atty [Substitute Attorney)

Dear Madam/Sir:

I enclose for filing Defendant's Subtitution of Attorney.

Very truly yours, s/lnna Ryu

cc: Olga Shaposhnikova Steven A. Lang, Esq., Pressler and Pressler, LLP

PAGE 1

t'm:PftlJlp D. Stem & Associates. LLC To:Of93 Shaposhnfkova (17328493206) 18:44 01120112GMT.(l6 Pg 01-G1

PHJUP D. STmN & AssoCIATES, u.c AlTORNEYS AT LAW

691 Valley Street, Suite 2d Maplewood, NJ 07040 (973) 379-7500 Attorneys for J;)efendant, Olg21 Sha hnikova

MIDLAND FUNDING LLC, Plaintiff,

vs.

OLGA SHAPOSHNIKOVA, Defendant

SUPERIOR COURT OF NEW JERSEY LAW DMSION - SOMERSET COUNTY

SPECIAL CML PART

Civil Action Docket No. SOM-DC-007607 -11

SUBSrlTUTION OF A1TORNEY

The undersigned consent to the substitution of the Substituting Attorney for the

Withdrawing Attorney on behalf of Defendant, Olga Shaposlmikova.

Dated: January). 5 I 2012

SUBS1TI1JTING ATIORNBY: Philip D. Stem & Associates, U.c Attorneys for Defendant, Olga

~ WlTHDi{i; AlTORNEY:

Olga aposbnikova

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• I F'L ED·>. P&P#S263754 APPELLATE Dt"VJSq

New Jersey Judiciary Superior Court - Appellate Divisi<!~

JUN 0 4 2012l

~ NOTICE OF APPEAL ~ :~ :A \.

Type or clearly print aJI lnfonnation. Attach additional sheets if necessary ATJ'bRNEY I LA W FIRM I PRO SE LITIGANT

TITLE IN FULL (AS CAPI'IONED BELOW): NAME Midland Funding LLC Lawrence J. McDennott, Jr., Pressler and Pressler, LLP

STREET ADDRESS

7 Entin Road v. CITY I grA~ I ZIP I TELEPHONE NO.

Olga Shaposhnlkova Parsippany 07054 (973) 753-5100

EMAIL ADDRESS [email protected]

ON APPEAL FROM

TRIAL COURT JUDGE TRIAL COURT OR STATE AGENCY TRIAL COURT OR AGENCY NO.

Hon. Fred H. Kumpf, J.S.C. Somerset Special Civil Part OC..o07607 .. 11

Notice is hereby given that Midland Funding LLC appeals to the Appellate Division

from a D Judgment or IX) Order entered on April 4, 2012 and May 18. 2012 in the lXJ Civil 0 Criminal or

o Family Part. of the Superior Court or from a 0 State Agency decision entered on

If not appealing the entire judgment, order or agency decision, specify what parts or paragraphs are being appealed:

Have all issues, as to all parties in this action, before the trial court or agency been disposed of? (In consolidated actions, all

issues as to all parties in all actions must have been disposed of.) ~Yes ONo

It not, has the order been properly certified as final pursuant to R. 4:42-2? DYes ONo

For criminal, quasi-criminal and juvenile actions only: N/A

Give a concise statement of the offense and of the judgment including date entered and any sentence or disposition imposed:

4

This appeal is from a o conviction o post-judgment motion o postrconviction relief.

If post-eonviction relief, is it the o 1st o 2nd '0 other

Is defendant incarcerated?

Was bail granted or the sentence or disposition stayed?

If in custody, give the place of confinement:

Defendant was represented below by:

o Public Defender 0 self 0 private counsel

6030 - Notice of Appeal to Appellate Division R.2:6-1 (01. Appendix IV Rev. 7/1 VOS Effective 911/08 P8111

(Attach additional sheets if necessary)

PI;JMRIIiy

HOI docs·

DYes ONo

DYes DNo

qecifu

(Over)

Printed by ALL-STATE LEGAL-A Division of ALL-STATE IntemationaJ, Inc. www.aslegal.com 800.222.0510 Page 1

,: "I

· I

Notice of Appeal and attached Case Infonnation Statement have been served where applicable on the following:

NAME DATE OF SERVJCE

Trial Court Judge Hon. Fred H. Kum~fl J.S.C. c;,L///~ Trial Court Division Manager

Tax Court Administrator

State Agency Somerset Special Civil Part C,II ~.:l.. i I

Attorney General or Attorney for other Governmental body pursuant to J!. 2:6-1(a), (e) or (h)

Other parties in this action:

NAME AND DESIGNATION ATTORNEY NAME, ADDRESS AND TELEPHONE NO. DATE OF SERVICE

Phlll~ D. Stem, Esg. 697 Vallel Sl, Suite 2·0, Ma~lewood. NJ 07040 ~/, U:;L

Attached Transcript Request fonn has been served where applicable on the following:

NAME DATE OF SERVICE AMOUNJ' OF DEPOSIT

Trial Court. Transcript Office Somerset County O~eratlons Div. ei71- 2-Ir2- 350.00

Court Reporter (if applicable)

Supervisor of Court Reporters Patricia Brill ~5t2e.Z-t., ~ Clerk of the Tax Cowt

State Agency

Exempt from submitting the transcript request fonn due to the following:

o No verbatim record.

o Transcript in possession of attorney or pro se litigant (four copies of the transcript must be submitted along with an electronic copy). List the date(s) of the trial or hearing.

o Motion for abbreviation of transcript filed with the court ~r agency below. Attach copy.

o Motion for free transcript filed with the court below. Attach copy.

I certify that the foregoing statements are true to the best of my Imowledge, infonnation and belief. I also certify that, unless exempt, the filing fee required by N.J.SA

Dated: May 22, 2012 . . ~ .. :

6030 - NoUce ot Appeal to Appellate Division &2:6-1(0 I. Appendix IV . Rev. 'l/lV08 Effective 911/08 P8Il]

Signature of Attnmey qr Pro Se Litigant

Printed by ALL-STATE LEGAL-A Division of ALL-STATE International, Inc. www.aslegaJ.com 800.222.0510 Page 2

, . FILED····~ . .

P&P#S263754 APPElLATf: Di-vl!ICI, ~ New Jersey Judiciary

~M~ Superior Court - Appellate Division JUN 0 4 20121 :I DOD i .. Dec

~~~~ CIVIL CASE INFORMATION STATEMENT 1~ "'O;QIXP""

Please type or clearly print all infonnation ~

TITLE IN FULL: TRIAL COURT OR AGENCY DOCKET NUMBER: Midland Funding LLC Somerset Special Civil Part, DC'()07607 ·11

Plaintiff v. Olga Shaposhnikova

Defendant

Attach additional sheets as necessary for any information beJow.

APPELLANT'S ATI'ORNEY: EmaiJ Address: [email protected]

IX! Plaintiff o Defendant o Other (Specify)

NAME CLIENT Lawrence J. McDermott, Jr., Pressler and Pressler. LLP Midland Funding LLC STREET ADDRESS , CITY , STATE 'ZIP· I TELEPHONE NO. 7 Entfn Road Parsippany NJ 07054 (973) 753-5100

RESPONDENT'S A1TORNEY*: EmaiJ Address: NAME CLIENT

Philip D. Stern. Esq., Philip D. Stem and Associates Olga Shaposhnlkova STREET ADDRESS I CITY I STATE I ZIP I TELEPHONE NO.

697 Valley St, Suite 2·0 Maplewood NJ 07040 (973) 379·7500 • lndfcate wbleh parties.1C any, did not. participate below or Wen! no longer parties to the aetJon at. the time of entry oC the judgment. or decls!on being appealed.

GIVE DATE AND SUMMARY OF JUDGMENT, ORDER OR DECISION BEING APPEALED AND ATTACH A COPY: April 4, 2012 and May 18, 2012 On April 4, 2012. the Hon. Fred H. Kumpf, J.S.C. dl~mlssed ·Plalntiffs Complaint with prejudice at trial. On May 18, 2012, Judge Kumpf denied Plaintiffs Motion for Reconsideration and attached His Honor's Statement of Reasons.

Are there any claims against any party below. either in this or a consolidated actio~ which have not been disposed Yes 0 No~ of. including counterclaims, cross-claims, third-party claims and applications for attorney's fees?

If so, has the order been properly certified as rmal pursuant to J!. 4:42-2! (If not.. leave to appeal must be sought. Yes 0 NoD B. 2:2-4. 2:5-6)

(If the order has been certified, attach together with a copy of the order, a copy of the complaint or any other relevant pleadings and a brief explanation as to why the order qualified for certification pursuant to R. 4:42-2.)

Were any claims dismissed without prejudice? Yes 0 NolXJ

If 60, explain and indicate any agreement between the parties concerning future disposition of those claims.

Is the validity of a statute, regulation, executive order, franchise or constitutional provision of this State being Yes 0 No~ questioned! (R. 2:6-1(h»

GIVE A BRIEF STATEMENT OF THE FACTS AND PROCEDURAL HISTORY:

See attached Rider.

t'Owefed by 816 - Civil Case Information Statement Appellate Division - Appendix VII (Rule 2:5-1(0) Rev. l?1l0 Effective lJ3Ill PIMO

HOTdocs Printed by ALL-STATE LEGAL-A Division of ALL-STATE International, Ine.. www.aslegal.com 800.222.0510 Page 1

TO THE EXTENT POSSIBLE, LIST THE PROPOSED ISSUES TO BE RAISED ON THE APPEAL AS THEY WILL BE DESCRIBED IN APPROPRIATE POINT HEADINGS PURSUANT TO R. 2:6-2(a)(5). (Appellant. or cross-appellant. oruy)

See attached Rider.

IF YOU ARE APPEALING FROM A JUDGMENT ENTERED BY A TRIAL JUDGE SITI'ING WITHOUT A JURY OR FROM AN ORDER OF THE TRIAL COURT, COMPLETE THE FOLLOWING:

1. Did the trial judge issue oral findings or an opinion? H so, on what date? _M_a..:,y_1_8...;.,_2_0_1_2 _____ _ Yes~ NoD

2. Did the trial judge issue written rmdings or an opinion? If so, on what. date? May 18, 2012 Yes~ NoD

3. Will the trial judge be filing a statement or an opinion pursuant to Jl. 2:5-1 (b) YesD NolX)

Caution: Before you indicate that there was neither fmdings nor an opinion, you should inquire of the trial judge to determine whether fmdings or an opinion was placed on the record out of attorney's presence or w~etber the. judge will be filing a statement or opinion pursuant to.R. 2:6-1 (b).

DATE OFYOURINQUIRY: __________ _

1. IS THERE ANY APPEAL NOW PENDING OR ABOUT TO BE BROUGHT BEFORE THIS COURT WHICH:

(A) Arises from substantially the same case or controversy as this appeal?

(B) Involves an issue that is substant.iaJly the same, sbnilar or related to an issue in this appeal?

Yes 0

Yes 0 Yes 0

NolXJ

NolXJ

No 00 2. WAS THERE ANY PRIOR APPEAL INVOLVING THIS CASE OR CONTROVERSY?

IF THE ANSWER TO EITHER 1 OR 2 ABOVE IS YES, STATE: Case Name: Appellate Division Docket Number:

CivD appeals are screened for submission to the Civil Appeals Settlement Program (CASP) to determine their potential for settlement or, in the alternative, a simplification of the issues and any other matters that may aid in the disposition or handling of the appeal. Please consider these when responding to the following question. A negative response will Dot necessarily rule out the scheduling of a preargument conference.

State whether you think this case may benefit. from a CASP conference.

Explain-your answer:

Yes~ NoO

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b).

Midland Funding LLC N arne of AppeUant or Respondent

May 22, 2012 Date

816 - Civil Case Information Statement Appellate Division - Appendix VII (Rule 2:6-1(0) Rev.lW10 Effective 113111 PlttIO

. Lawrence J. McDermott, Jr.

Printed by ALL-STATE LEGAL-A Division of ALL-STATE International. Inc. www.aslegal.com 800.222.0510 Page2 .

~dland v. Shaposhnikova Somerset DC-007607-11 Civil Case Information Statement P&P File Number S263754

RIDER

Statement of Facts

Midland Funding LLC ("Midland") is the owner of a defaulted

Chase Bank USA, N. A. credit card account in the name of Olga

Shaposhnikova.

Procedural History

On or about November 21, 2011 Midland filed suit against

Ms. Shaposhnikova in the Special Civil Part of the Law Division

of the Superior Court of New Jersey which was assi9ned docket

number DC-7607-11. Said complaint detailed Midland's ownership

of the said defaulted account which it described by complete

(16-digit) account number, 4266 8411 8057 4707 ("4707"), and the

demand amount, $5,022.68, and additional interest from November

30, 2009 claimed.

The Clerk of said court served Midland's Summons and

Complaint upon her on- November 28, 2011. Defendant filed her

pro se Answer thereto on December 27, 2011 stating simply "I

lack information or belief sufficient enough for me to admit or

deny the allegations set forth therein." Defendant neither

addresses the said account, nor the balance claimed as due. The

Answer as filed contained a writing attached in the form of an

open letter in essence stating that she was not consulted prior

to Midland's acquisition of the subject account. The same

consti tutes her taci t admission that the defaul ted account was

hers.

Plaintiff initiated discovery on December 29, 2011 in the

form of Interrogatories and Request for Admissions. A short

calendared trial date of February 9, 2012 was adjourned at

Plaintiff's request by reason of said discovery and re-assigned

to April 4, 2012. By letter dated January 26, 2012, Defendant,

now represented by counsel, Philip D. Stern" & Associates, LLC,

served her initial discovery demands on Plaintiff in the form of

Interrogatories and Request for Admissions.

Supplemental Interrogatories and Supplemental Request for

Admissions were sent to Defendant's counsel on or about February

7, 2012 via facsimile and regular mail. Said Interrogatories

and Request for Admissions were again sent to Defendant's

counsel on or about March 23, 2012 via facsimile and regular

mail. Despite same, Defendant neither responded nor objected to

Plaintiff's Request for Admissions.

The matter was called to trial on April 4, 2012 before the

Hon. Fred Kumpf, J. S. c. At trial Plaintiff announced that it

would be relying on the said Request for Admissions to establish

the factual elements comprising its prima facie case-in-chief.

Defendant objected through counsel who, while acknowledging

2

receiving the fax copies, claimed that the service by facsimile

was not proper. Defendant's counsel claimed to be unable to

confirm receipt by mail. Plaintiff's counsel claimed that the

service was also by mail and that the courtesy copy via

facsimile, though not proper, nonetheless confirmed Defendant's

timely receipt of the requests.

Despite counsel's representation, Judge Kumpf ruled that

service by facsimile was improper; absent a filed proof of

service via regular mail His Honor would not allow same in

evidence. Judge Kumpf also ruled that the Request for

Admissions were otherwise improper as a matter of form because

they dealt with the "ultimate issue" of the case.

thereupon dismissed with prejudice.

The case was

A reconsideration motion was filed thereafter, opposed, and

argued on May 18, 2012. Judge Kumpf denied Plaintiff's motion.

It is to be noted that Plaintiff's counsel was not allowed by

the Court to offer rebuttal argument.

The instant appeal follows.

3

~dland v. Shaposhnikova Somerset DC-007607-11 Civil Case Information statement P&P File Number S263754

RIDER

Proposed Issues on Appeal

I. The trial court erred by:

a) its ruling that the Plaintiff's Request for Admissions were not properly served by regular mail despite Defendant's counsel's concession that same had been timely received by him via facsimile;

b) its ruling that the said requests were improper as a matter of form in that they dealt with the ultimate issue or were otherwise improper to prove Plaintiff's entire case at trial;

c) its reliance on Hungerford v. Greate Bay Casino Corp., 213 N.J. Super. 398 (App. Div. 1986) to the effect that Plaintiff's requests were improper as having been contrary to Defendant's clear position on the requested issues earlier in the pleadings. It is to be noted that Defendant's prior discovery responses were not made available to the trial court or otherwise a part of the record below;

d) dismissing Plaintiff's complaint with prejudice;

e) dismissing Plaintiff's complaint with prejudice instead of adjourning the trial date to allow Defendant additional time to respond to the said requests;

f) its ruling that requests for admissions could not be used to establish a party's case;

g} its finding that Defendant's counsel's representation that he could not locate a copy of the Request for Admissions that had been allegedly mailed to him trumped Plaintiff's counsel's representation that same had in fact been mailed;

h) its ruling that absent a filed proof of service

4

by Plaintiff as to the said Request for Admissions, it would not accept counsel's representation of mailing.

5

'.: Ma y. 21. 20' 2 9: 59AM I .. ,.

SC OPE-RATIONS DIV.

':- . , . •

.' 1·

~

COURT TRANSCRIPT REQUESJ State of New Jerse

INSTRUCTIONS: 1. Comp'8[e sO lnfollnal/on. Irx:Dmpre.eAncotrecl ordsl"G wfn be ro(umed.

2. File 8 separa18 requeat for oach court IBportsr or cotrt derk whD rocorded a portlah Olb ptoc;eedlng .

3. Attach !he AppanaCa or Supromo COlJr1 Clerk's copy 10 1M Nollca or Appalll (Ii 2:~1(t)

4. Anach 1(BI}&crfpl fee. dgn !he form and nota (he chac:k number 3I1d amounl.

5. tf}fOtl need asGI::Ia'1CB wilh the case lnIorrnat!on or hearfn dales raasa contact the dMslon

SEND FORM along with (2) copJos to:

AUn: Transcr1pt Coordinator Somers~f County Courfho~se Oparatlona DIvision 20 North Bridge Streat 2n

'4 Floor Somerville.. NJ 06878

Phonal (908) 203-6149 Fax: (908) 253-8580

that h8t\dled 'Ioor mailer aM !hem aubmll your cr40r to Iho Some/'3ot County Tnm~crfpl Unit.

(Check one box and indicate number of copies, ff any) It Is hereby requested that you prepare for use on:

00. Appeal'" (AAotfrJ/lJsI and B mInImum tJ! 2 CtJpl8S SIS IDqIJ/lSdj

o Non .. appeal

an origInal and ~ coplea of the followJng:

TYPE OF PROCEEDING (e.g., lrIal. eenlenclng. moUoo, elo.)

No. 1~ IH r.

Appeliale OMsron

CASE INFORMA rlON ftJllsch CSS9 cs Uon H Bvsllsbie

PLAINTIFF(S) V. DEFENDANT(S)

Midland Funding LLC -vs · Olga Shaposhnikova TRIAL COURT DOCKET NUMBER

DC-007607-11 . COUNTY/COURT somerw ifI special Cj yj 1 Part REQUES fI G PARTY INFORMATION (Name/Address)

Lawrence J. McDermott,Jr. Pressler and Pressler,LLP 7 Entin Road Parsippany, NJ 07054

Phone Number 973 - 7 5 3 - 5 1 00 ,r you YlQfjt a tD~y Via el1laJl. JndLJde your email aoore" here. (eddlllonaJ copy lS'e WOUld applY to 111/6):

Delivery/Preparation Tim e-£beck one.

o Standa ref (30 dayn)

[Xl Expfldited a·10 dawl

n Dally fl .. 2dny."

script(s) for the above date(s) pursuant to B:. 2;~3(d).

Deposit A ttacbed S 3 5 0 • 00

CC; C·appeals only)

May 2/ 2012 DATE . or rolmb IDeat may be n=qllJrcd priorto or at 1bo c:omplcdcrs of tb~ hnac:ript «doT. ICYOIl

um DCtwo addhlonrd c.opfes ottha "",crip'lrotcqllbcd &prDCCUin~

cbeclc.Dwnber: 78/3& Payableto= Robert Grossman

OFFICE USE ONLY Date ReCQIVad:. __ _

1. . ClERK, Appellafe OMsfon, or ClERK. Suprema CotJrt (eee INSTRUCTIONS above) 2. P8trtda Br1l~ SlJpeNbor of Coun RepOl1ef1 __ •

Dale sent (0 TransClloer:, __ _

3. Ofher atlomeys/fm §A part!Cls __ Number of tapes/Cds: ___ _

Re\l.6t10 Transmittal attached :

PLAINTIFF

v.

IOlga Shaposhnikova . _.. . ... __ .- ._- - -- ._._ .. _ ......

DEFENDANT

Superior Court of New Jersey Law Division - Special Civil Part Somerset County Civil Divison P.O. Box 3000, Somerville, NJ 08876 (908) 23] -7014; TDD (908) 253-8406

SPECIAL CIVIL PART ACTION ORDER OF DISPOSITION

DOCKET NO. D(-7607·11

4th day of __ A_pn_t_2_01_2 __ , ORDERED that this matter is hereby dismissed/disposed It is on this ----due to the following:

r· 01 Settled before Trial

r 04 Partially Tried

r' OS Tried to Completion wI Jury

r 07 Tried to Completion w/out Jury

r 08 DefaultlDefaull Judgment

r 09 Summary Judgment

Ig 10 Dismissed with Prejudice

r. 1 J Dismissed Ru1e 1: J 3

1:: J 2 Dismissed without Prejudice

Lr 14 Transfer to Another County

r; J S Transfer to Another Court

l.i rj r: r. r. r r· r; ~J

29 Senled by Conference with Judge

35 Senled on Trial Date· Mediation

36 Settled on Trial Date - Other

53 Settled Prior to Mediation

45 Inactived

Plaintiff Atty. failed to Appear; Dismissed by Court

PlaintiflFailed to Appear; Dismissed by Court Plaintjff and Defendant Failed to Appear; Dismissed by Court Other (see comments)

It is further ORDERED that the plaintiff/defendant shall serve a copy of the ORDER on the plaintiff/defendant

within ten (10) days from the above date.

COMMENTS: Complaint dismissed with prejudice as plaintiJTwas unprepared for trial.

.. - _ ..... - --_ .. -- -'

o lL

APR - 4 2012 Fred H. Kumpf, J.S.c.

FRED H. KUMPF, J.S.C. CHAMBERS

~ C. Ii

~

COpy SENT

PRESSLER AND PRESSLER, LLP COUNSElLORS AT LAW

P&P File Nwnber 8263754

'F I LED

781dnRd. hrslJ'Pll1Y. NJ 07054-5020

(973) 753-5100

Attorney lor Plaintiff

May 18, 2012

Superior Court, NJ Special Civil Part

MIDLAND FUNDING LtC

Plaintiff vs.

SUPERIOR COURT OF NEW JERSEY LA W DIVISION: SOMERSET COUNTY SPECIAL CIVIL PART DOCKET NO.: DC'()()7607· J )

OLGASHAPOSHNIKOVA

Defendant

CivUAcdoD ORDER

This matter having come before the Court upon the application of plaintiff Midland FWlding, LLC, by and through its counsel Pressler and Pressler, LLP (Steven A. Lang, Esq. appearing) for an Order:'(a) reconsidering and vacating the April 4, 2012 ruling that the February 7,2012 service ofPJaintj1J's Supplemental Requests for Admissions was defective, (b) vacating the April 4, 2012 dismissal of'the complaint, and (e) reinstating the case to the trial calendar; and notice having been given to defendant Olga Shaposlmikova, by and through her counsel Philip D. S~ & Associates, LLC ( . Phillip Stem • Esq. appearing); and the Court having considered the submissions of the parties; and for good cause shown; it is on this -ilLdayof May ,2012 ORDERED as follows:

J. The April 4, 2012 ruling that the February 7, 2012 service of PJaintiJrs Supplemental ~ for ~icft. las d1ectivman ~ hereby is vacated and of no further force or efbfl I:: I " I:: U

2. ~ri1 ~~2 0ticr fismifing tpmp~shall be, and hereby is vacated and of no furthi.:T or r l'.j I I:: U

3. The matter shall be, and hereby is, restored to the trial calendar.

4. Counsel for pJajntifJ shall serve 8 copy of the within Order on counsel for defendant within...1Q. days receipt hereof.

x- Opposed :d~.~ &(§

FRED H. KiJPF, J.S:

See attached Statement of Reasons dated May 18, 2012

HAV-17-2012 11:30 From: 10:973 7S3 53S3

TO:

SUPERIOR COURT OF NEW JERSEY Somerville, New Jersey

CHAMBERS OF THE HONORABLE FRED B. KUMPF, J.S.C.

Steven Lang, Esq. Philip Stern, Esq.

Fax No.: 973-753-5353 Pax No.: 973-532-0866

DATE: May 17, 2012

This fax messag~ contains 5 pages including this page.

U I lI;1,dl4Jlcf .P'W2dt.Dv, LLC v. olga BluIpo.mukova

Docket NO.1 SOH-DC-?607-11 Motion for Reconsideration Kotio~ x-eturna))le I Kay 18, 2012

Please coatact yYur adversary before contacting the Court.

P.1J'S

Today we are faxing oopies of the tentative decision rega~din9 tbe above-captioned motion. As you know, the attached merely reflects a tentative decision that Judge Kumpf has rendered based on the papers_sub~tted by both parties.

Af~er parties road the 4eols1an. they mu.t agmmu~1cat. wi~h 6ach other FloX' to contacting the couet regarding pZ"oceedbg wi~h oral upument.

Xf both parties decide to accept th1e tentative decision as it stand$ today. the court will enter the order and the decision will stand as it ~pears today.

If eicher party does not WAnt to accept. the tentative delcision and would like to proceed with oral 8X'gUD1ent, that party MOST CONTACT T.HE ADVERSARY, prior to contacting the Court, advising of same. The Judge will hear oral argument and the Judge will consider argument of couneel at that time. After argument is heard, the Judge will then enter An order which reflects hie decision based on the papers submitted and argument of counsel.

Please call JUQge Kumpf's law clerk. ~garita Romanova, at 908-203-6161 BErOBE 8,30 A.M. r.RZDAY advising whether the parties will appear for oral argument.

Please cODtao~ your adverpary before contacting the Court

MAY-17-2012 11:30 From:

STATEMENr OF REASONS

SUPERIOR COURT OF NEW JERSEY SOMERSET COUNTY LAW DIVISION HONORABLE FRED H. KUMPF. J.S.C. RBTURNDATB:MAY 18,2012 DOCKET NO.: SOM-DC-7607-11

Mid/and Funding. LLC y. Olgll§hapDslllllkov(I

PLAlNTIFF'S MOTION FOR RECONSIDERATION

PLA.1NTIFF: AITORNBY:

DEFENDANT: A110RNBY:

MIDLAND FUNDlNG LLC STEVEN A. LANG, ESQ

OLGA SHAPOSHNIKOVA PHILD? D. STERN, ESQ.

ORAL ARGUMENT: YES

COURT'S OPINION

To: 973 753 53S3

This case involves an attempt to collect on a credit card debL Plaintiff Midland Funding, LLC (pJaiotift) .filed a complaint against defendant Olga Shaposhnikova (defendant) on November 22. 2011 allegfng that defendant was indebted on a credit card issued by Cbase Bank USA in the amount 01 S5,137.57. Defendant filed an 'answer on Decembcr27, 2011.

This matter was scheduled for trial on April 4, 2012. This court dismissed plaintiff's complaint with prejudice on the record on Aprl14, 2012 when plaintiff was unprepared to proceed for trial. On ApriJ 16, 2012, plaintiff filed the instant motion for reconsideration. On April2S, 2012. defendant filed opposition. Plaintiff tlled a reply on April 30,2012.

PLAINTJPF'S CONTENTIONS Plaintiff contends that. when this case was called on April 4, 2012, plaintiffs

attomey stated on tho record that defendant bas failed to timely respond to plaintilrs requcst for admissions. PlaintitY conlends tbat,-by-¥lr-tuc·-of-failing 10 respond;-dofendant admitted each of the matters set forth In the request fot admissions. PlaJntifi' contends that its counsel was ready to prove its case by relying upon those admissions and that those requests were marked for identification. Plaintiff' contends that defendant's counsel objected when plaintiffs counsel attempted to move tho tequesta into evldonce. Plaintiff' contends that defendant's counsel objected on the grounds of Ineffective servico or the requests arguing that his office retains a11 mail It receives and that he could not find a hard copy of the letter to his office that enclosed the requests for admissions.

P1a1ntllfcontcnds that it has represented to this. court on February 7, 2012 that Ihe lotter requesting tho admissions was mailed to dcfcndantls attomey. Plaintiff contends that defendant's counsel admitted on tho record that he had received tho requests on tho

1

P.2/5

NRY-17-2012 11:30 From: To:973 753 53S3

day they were sent. Phdntlff contends that this court. then found that plaintiff did not file proof of service and therefore the service of the requests for admission was Ineffective. Plainti ff contends that this court ruled that absence of a proof of mailing creates a presumption that service was not made as ·per & 1 :s~ 1. Plainti ff contends that the court made this dctcnnlnatiOD despite dcfendant·s attorney admitting on the record tbat he received the request for admissions on the day they were senl. Plaintiff contends that the purpose of effective service is to provide notice to the party. Plaintiff requests that this court vacate its April 4, 2012 disposition order and restore this matter to the trial calendar.

DEFENDANT·S oPPOSmON Defendant contends that plaintiff attempted to rely solely on the supplemental

adm.l.ssion requests to prove its case. Defendant contends thot this court sustained defendant's objection to tho offer of the requests for admission at trial because plaintiff could not produce proofofscrvicc of the requests for admissIon.

Defendant explains that, although counsel admitted to receivins the request for admissions via fax, he did not admit to receiving the request in the mail which is necessary in order to effectuate proper scrvioe. Defendant explains that ho does not believe that he received the hard copy of the request in the mail. Defendant then exp1a1ns the way his office handles the hard copies of documents they receive in the malt Defendant contends thnt his review of the office files did. not reveal out$tanding supplemental discovery requests as that is Ihe reason counsel certified that Done were outstanding when he prepared the motion to dismiss filed earlier In this matter. Defendant continues to contend that his office Dever received the supplemental requost for admissions in the mail. Defendant also notes that plaintiff's counsel's correspondence with defendant's counsel Indicates that service via e-mail. although universally practiced. i9 not effective service pursuant to the Court Rules. Defendant contends that plaintiff's counsel admined to this in his e-mail to defendant·s counsel.

Defendant contends that in her pro so answer defendant .requested that plaintiff provide proof of defendant's alleged indebtedness and proof that plaintiff is. the legal owner of the alleged debt. Defendant contends thaI, while she provided plnintift with answers to initial interrogatories, plaintiff nCV'er provided defendant with the requested proofs.

Defendant contends chat this court's decision to dismiss plafntifrs complaint with prejudice was correct because plaintiff attempted to improperly usc supplemental request .cor...admissionumdbccausO-plainti1f failed to provido proof of service that the requests were served in a manner required by the Court Rules.

PLAINTIFF'S REPLY Plainti££eontcnds that defendant's COWlscl did not serve plaintiftwlth tho April 4,

2012 order as required by & l:S .. J(a). Plaintiff contends. that the order does not contain any facts and simpJy states that plaintiff was not prepared for tria1. Plaintiff contends that he was prepared to proceed at trial and had pJanned to rely on defendant's counsel's representation that he had received the supplemental request for admission via fax. Plaintiff contends that, because defendant's counsel admits to having received the

2

P.3"5

o

MAY-17-2e12 11:31 From: To: 973 7S3 5353

request. bis reasons as to wby he docs not believe that he received 8 hard copy in the mail is irrclevant in light oCms failure to respond.

Plaintiff contends that the court elevated fonn over substance to an extent that constitutes a miscarriage of justice. Plaintiff a1so contends that defendant's counsel does not deny that he received the requests. failed to respond to them and did not seek leave 10 respond out of time. PJaJntlftcontends that the April 4, 2012 order should be vacated and the "matter should be restored to tho trial calendar.

STANDARD OF REVIEW Rule 6:6-] provides that JL 4:49 applies to the Special CivfJ Part. & 4:49--2

pertains to Motions to Alter or Amend a Judgment or Order and provides B8 follows: .

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after servIce of the judgment or order upon all parties .py the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions wIlich COW1sel believes the court has overlooked or os to which it has crred.

Motions for reconsideration are appUcablc only when the court·s reasoning is bosed on plainly incorrect reasoning. Of when the court failed to consider Evidence, or there is good reason for it to consider dew information on an issue decided. gynmlngs v. Bahr. 29$ N.J. Super. 374, 384-SS(App. Dlv. 1996) ~ in RIcci v, Corporate B;mrcss 9.f tbe East. Inc .. 344 N.J. Supor. 39, 47 (API'. Div.· 2001). corti! denied 171& 42 (2001); Sec also Fusco. §!!I!£!, 349 :t:Ll. Sgper. at 462.

The movant for the motion for reconsideration has the burden of demonstrating. that the court either (1) expressed its decision based. upon a palpably inconect or ilTatlonal basis or (2) failed to appreciate the significanco or probative, competent Evidence. Michel v. Michel, 210 N.J. Super. 218.224.25 (Ch. Div. 1985). A motion for reconsideration is Mnot intended to become a vehicle fOT new affirmative defenses." Lahue"v. Pio Costa. 263 N.1uSuger 575,598 (App. Div. 1983). If tho court does consider new information and defenses, It should only do so for now information that the litigant "could not have provided on the liDt applica~on.·· D'atrla v, D'abia, 242 H,J, Super. 392.401 (CIt. Div. 1990). . " i

DISCUSSION PJaintitr s motion for reconsideration Is denied with prejudice. On the day of

trial, plaintifrs case rested on tho Wlanswercd supplemental request for admissions which plaintifl' argued must be deemed admitted as a teSult of failure to respond thereto. Plaintiff also attempted to rely on defense counsel's representation that he bas received the requests vja fax to establish that proper service of the requests was effectuated pursuant to B:. 1 :5·2 and R. 1 :S-3. Neither sending the requests via fax nor defense counsers representation that he bas received the requests via fax constitute proper service under to L 1 :5-2 and Rr. J :5-3. In addition, plalntifl'bas failed to producc proof of proper service of the requests upon the defendant to date.

3

.. ' "o'!'

e

MAY-17-2012 11:31 From: To: 973 753 53S3 t ••

Furthermore. even if the court assumes arguendo thut service was volld, plaintiff's oucmpt lO use the request for admissions to prove the entire case ot trial was Improper. In Hungerford v. Greatc Bax Cnsino Com .. 213 N.J. Super. 398, 403-404 (App. Div. 1986). the Ap~lJate Division analyzed the effects of 8 litigant's failure to timely respond to requests for admissions under R." 4:22 .. 1 when that Jitigant bad made clear his position on tbe requested issues earlier in the pleadings and held dlat

It ••• the only possible purpose of requesting an admission by [the litigant) contrary to his previously stated opinion was the hope that he would Dot answer and that his failure to answer could be used 10 seek judgment against him. This Is a patently improper usc of a request for Ddmissions. The purposo of requests for admissions is to streamline IIdgation by weeding out items of fact and proof over which there Is no dispute, but which arc often difficult and expensive to estabJish by competent evidence. and thereby expedite the trial, diminish its cost, and focus the attention otthc parties upon the matters in genuine controversy."

On a motion tor reconsideration, the moving party', burden is to demonstrate that the court either (1) expressed its decision based upon a palpably incorrect or irrational basis or (2) failed to appreciate the significance of probative, competent evfdmec. Michel. 210 N.J. Super. at 224-25. I find that the moyfng party in this case failed to sustain that burden. It would have constituted a miscarriage ot JustIce if this court were to allow the plwntiffto improperly employ a discovery device to prove its cas.c without having BUy other affinnative evidence partlcularl)'·when plmntiffwas unable to prove that it bad properly SCNcd this discovery request upon the party against whom it wished to use it.

Finally, the court entered a disposition order on Apri14, 2012 which Is Intended to indicate how a case was disposed on the record and which is generally not supplied to the p~es bot only maintained In the filc. The dispositional order prep~d by the court in this case was not provided to tbe pOtdes. Defendant never hod the obligation to scrve a copy of the disposition ordor on the plaintiff as required by E: 1:5-1(8) as this disposition order was never sent to defendant This order was avaUable to the parties upon review of the filo in JBFJS tht Judicial Electronic Filing and Infonnation SystcIn to which plaIntiff as a frequent filer has access.

CONCLUSION Plaintifi's motion for reconsideration is DENIED with prejudice.

4

P.5"5

PRESSLER AND PRESSLER, LLP COUNSELLORS AT LAW

7 Entin Rd. Parsippany, NJ 07054-5020

(973) 753-5100

Attorney for Plaintiff

MIDLAND FUNDING LLC

Plaintiff VS.

OLGA SHAPOSHNIKOV A

Defendant

TO: Philip D. Stern, Esq. Philip D. Stern & Associates, LLC 697 Valley Street, Suite 2-D Maplewood, NJ 07040

P&P File Number S263754

SUPERIOR COURT OF NEW JERSEY LAW DIVISION: SOMERSET COUNTY SPECIAL CIVIL PART DOCKET NO.: DC-007607-11

Civil Action NOTICE OF MOTION

PLEASE TAKE NOTICE that Plaintiff Midland Funding, LLC will move pursuant to R.R. 4:49-1, 4:49-2 and R. 6:3-1(8) for an Order reconsidering and vacating the April 4, 2012 dismissal of the complaint with prejudice.

In support of the motion, Plaintiff shall rely upon the brief of counsel annexed hereto.

PLEASE TAKE FURTHER NOTICE that a proposed form of Order is submitted herewith.

Statement Under R. 6:3-3(c)(2): The Order sought will be entered in the discretion of the Court unless you notify the Clerk of the Court and the attorney for Plaintiff, Midland Funding, LLC in writing within ten (10) days after service of this Motion that you object to the entry of the Order. The address of the Court is:

Superior Court of New Jersey Special Civil Part - Somerset County 20 N. Bridge Street Somerville, NJ 08876-1262

Notice Under R. 6:3-3(e)(3): NOTICE. IF YOU WANT TO RESPOND TO TInS MOTION, YOU MUST DO SO IN WRITING. Your written response must be in the fonn ofa certification or affidavit. That means that the person signing it swears to the truth of the statements in the certification or affidavit and is aware that the Court can punish him or her if the

statements are knowingly false. You may ask for oral argument, which means you can ask to appear before the Court to explain your position. If the Court grants oral argument, you will be notified of the time, date and place. Your response, if any, must be in writing even if you request oral argument. Any papers you send to the Court must also be sent to the opposing party's attorney, or the opposing party jf they are not represented by an attorney.

ORAL ARGUMENT: Oral argument is REQUESTED.

PRESSLER AND PRESSLER, LLP Attorneys for Plaintiff Midland Funding, LLC

BY: __ ~ ___ -I--________ _

Dated: April 16, 2012

2

UAURa K. PRESSlER (1830-2002)

SHELDON H. PRESSLER

GERARD J. FelT ~P.McCAIIE

LAWRENCE ~ tkOERMan. JR.

MlTCHB.L L WlI.UAMSON (NJ & NY)

FRNiOS X GRIMES (NJ & PA)

DARREN H. TANAKA (NJ & NY)

JONOlf L D'AlJUZIO (DC 11.. NJ & NY) t.IITCHEU. E. ZIPXIH CNJ & NY) CRAIG S. S11U..ER (NY ONlY) RALPH CMKO (NJ.NY I PAl

April 16, 2012

PRESSLER AND PRESSLER, LLP COUNSelLORS AT LAW

7 EntlnRd. Parsippany, NJ 07054·5020

Off: (973) 753-5100 Fax: (973) 753-5353

NY Office: PA OtrlC8 305 Broadway. 9th Floor 804 West Avenue New York. NY 10007 Jenkintown, PA 19046 Office: (516)222-7929 Office (215)576-1900 Fax: (973)753-5353 Fax: (215) 576-7299

E-MAIL: [email protected] Please Reply To:

(X) New Jersey Office [ ) New Yol1c OffICe I I Pennsylvania OffICe

DANIa B. SULLIVAN

DALE L. GaBER GINA M. LO SUE (NJ & NY)

EDWARD STOCK (PA ON\. Y)

NICHOLAS J. MADONlA CHRISTOPHER P. ODOGBIU

OFACE tOJRS:

DARYL J.1t1PNlS

GlEN H. OiUlSKY MICHAEL J. PETERS

RITAEAY0U8

lHOUAS ~ BROGAN STEVEN A.I.ANG

Mondar-Thlndq. a.n-epm Friday: e.n-7~

SZRar. 8;m-2pm

FILE VIA JEFIS Honorable Fred H. Kumpf, J.S.C. Somerset County Courthouse 20 N. Bridge Street P.O. Box 3000 Somerville, NJ 08876-1262

Re: Midland Funding, LLC v. Olga Sbaposhnikova Docket No.: SOM-DC-007607-11; P&P File Number S263754

Dear Judge Kumpf:

This firm represents Plaintiff Midland Funding, LLC ("Midland") in the above-referenced matter.

Counsel for each party appeared for trial on April 2, 2012, at which time Your Honor dism~ssed the case,

with prejudice, without allowing Midland to present its proofs. l Please acc~pt this brief in support of

Midland's motion for an Order reconsidering and vacating the dismissal. The motion is made pursuant to

R. 4:49-1, which Rule is made applicable to Special Civil Part proceedings by R. 6:3-1(a). Alternatively,

the motion is made pursuant to R. 4:49-2, which Rule is also made applicable to Special Civil Part

Proceedings as per R. 6:3-1(a).

When the case was called, I stated on the record that Defendant had failed to timely respond to

Plaintiff's Supplemental Requests for Admissions (the "Requests") that I served on opposing counsel,

Philip D. Stem, via letter dated February 7, 2012. I further stated that by virtue of that failure, Defendant

I There is no order of dismissal on JEFIS; nor bas this finn been served with any such order. The "case disposition" on the ACMS file, however, states that the matter was disposed of on April 4, 2012.

Honorable Fred H. Kumpf, lS.C. April 16,2012 Page 2

is deemed to have admitted each of the matters set forth in the Requests as per R.R. 4:22-1 and 4:22-2,

which Rules are made applicable to Special Civil Part proceedings per R. 6:4-3(d). I was, therefore,

prepared to prove Midland's case by relying on the foregoing Rules and so informed the Court. To that

end, the Requests were marked as Plaintiff s Exhibit I for identification.

Mr. Stem objected. when I moved the Requests into evidence. Mr. Stem contended that service of

the Requests was ineffective despite his having admitted on the record that he had received them via fax

on the day they were sent. According to Mr. Stem, he had searched his office that morning and could not

find the hard copy of the letter. According to Mr. Stem, his office retains all mail it receives. Based upon

the alleged inability to find the hard copy, Mr. Stem contended that th~ letter had not been received. Mr.

Stem then bootstrapped that dubious position into an argwnent that I had not met my burden of proving

that service had been made by mail or some other means pennitted by R. 1 :5-1.

As Your Honor may recall, my February 7, 2012 letter bears the legend "VIA FACSIMILE 973-

532-0866 AND REGULAR MAIL". I, therefore, represented as an officer of the Court that the letter had

been mailed. Despite that representation and Mr. Stern's admission that he had received the Requests the

day they were sent and the fact that Defendant never moved for an Order pennitting her to respond to the

Requests out-of-time, Your Honor ruled that service was ineffective. You then sustained Mr. Stem's

objection.2 The basis for that ruling was that I had not filed a Proof of Service. Your Honor stated that the

absence of a Proof of Mailing creates a presumption that service was not made as per R. ] :5-1. Midland

respectfully submits that the decision is palpably. incorrect. It so elevates fonn over substance that can

only encourage gamesmanship in litigation. Worse yet, the decision does violence to the long established

case law holding that the purpose of the "service" rules is to ensure that notice is received rather than to

2 Mr. Stem also contended that the Requests ''went to the ultimate issue". Despite Mr. Stem's admission that he had received the Requests, Your Honor ruled that service was ineffective and sustained Mr. Stem's objection ~n that ground. Thus, although

Honorable Fred H. Kwnpf, lS.C. April 16, 2012 Page 3

ensure slavish compliance with the Rules. Midland, therefore, respectfully asks the Court lo vacate the

decision, vacate the dismissal of the case and restore the matter to the trial calendar.

REDACTED

THIS PORTION OF PLAINTIFF'S MOTION

FOR RECONSIDERATION IS REDACTED AS

SAME IS PURELY BRIEFING.

Your Honor briefly looked at the Requests, same were not admitted into evidence. As such, the substance of the RequestS could not have been a basis for the dismissal.

Honorable Fred H. Kwnpf, J.S.C. April 16, 2012 Page 4

\ .. , .........

REDACTED



SAME IS PURELY BRIEFING . . :.

-' Honorable Fred H. Kumpf, J.S.C. April 16,2012 Page 5

..... -.....

REDACTED


FOR RECONSIDERATION IS REDA~ED AS


Honorable Fred H. Kumpf, J.S.C. April 16, 2012 Pa~e6

REDACTED




For the foregoing reasons, Midland respectfully asks the Court to: (a) vacate its ruling Utat service ,.

of the Requests was deficient, (b) vacate the order dismissing the complaint, and ( c) restore the matter to

the trial calendar.

Respectfully submitted,

SAL:abm Enclosures

cc: Philip D. Stem, Esq. (via hand delivery w/cncs.)

PRESSLER ANDPRESSLER, LLP COUNSELLORS AT LAW

7 Entin Rd. Parsippany. NJ 07054·5020

(973) 753-5100

Attorney for Plaintiff

MIDLAND FUNDING LLC

Plaintiff vs.

OLGA SHAPOSHNlKOV A

Defendant


SUPERIOR COURT OF NEW JERSEY LA W DIVISION: SOMERSET COUNTY SPECIAL CIVIL PART DOCKET NO.: DC-007607-11

Civil Action PROOF OF SERVICE

On April 16, 2012, I, the undersigned, a secretary employed by Pressler and Pressler,

LLP, Attorneys for the Plaintiff in the above-entitled action, filed via JEFIS the Notice of

Motion, Brief of Counsel and proposed form of Order reconsidering and vacating the April 4,

2012 dismissal of the complaint with prejUdice to Honorable Fred H. Kumpf, J.S.C. and did

serve the above on the Defendant's attorney,

Philip D. Stem, Esq. Philip D. Stem & Associates, LLC 697 Valley Street, Suite 2D Maplewood, NJ 07040-2642

being the last known address, via hand delivery.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully faIse, I am subject to punishment.

2~11,~ Patricia Montana

Dated: April 16, 2012

", ... iJRICE H. PJ\ESSlER li93()'700])

M1fLOUNH ":'~SSlER

GERARD J FEll

r.TEVEN P. McCABE

lJ;WRE NCE .1. IAcDERMon, JI\.

M!YCHElL l. WIlliAMSON INJ 6 NY)

fRANCIS X: GRIMES INJ & PAl OARRENH 1ANAKA (NH NY)

.I0ANNE l. O'AUP.IZIO (OC .ft, NJ 6 NYI

MnCHELL E, ZIPKIN INJ & NYI

CRAIG S, STILLER INY 0Nt YI

RAlPH GULKO (NJ ,NY & PAl

February 7, 2012

PRESSLER AND PRESSLER LLP COUNSELLORS Jl.l L!\W

7 Entin Rd. Parsippany. NJ 07054·5020

Off: (973) 753·5100 Fax: (973) 753·:-;35J

NY Office: PA Office 305 Broadway, 9111 Flom 804 West Avenue

New York. NY 10007 Jenkintown. PA 19046 Office: (516)222.7929 Office (215)576·1900 Fax: (973)753-5353 Fax: (215) 576,7299

E-MAIL: Pressler@Pressler·Pressler.com 'Please Reply To:

[X) New Jersey Office; ) New York Office I ) Pennsylvania Office

VIA FACSIMILE 973-532-0866 AND REGULAR l\1AIL

Philip D. Stem, Esq. 697 Valley Street, Suite 2-D Maplev,'oou, NJ 07040

[;;.I~IEI E. SUllIVJ,N

D~H l GEIBEl<

GII~J, M lO BUE INJ6 NY)

EDWJ,I1D SiOCK IPf, ONl YI

NICHOlJ,S J. MADONIA

CHhiS10PHER F. OOOGBllI

OfFICE HOURS:

DARYL J. KIPNIS

GLEN H. CHUlSKY

MICHAel J. PfTERS

RIll. E. AYOUB

THOMJ,S M. BROGAN

STEVEN A LANG

Mondar,ThUt5d2}': 8am.9pm

r ridar 8am,1pm

Saturday: 9am-2pm

,l{e: 1\1idland Funding, LLC v. 8haposhniko,'a, .Docket tl/O.: SONI-Dt.:-007607-11 P&P File Number 8263754

Dear Mr. Stem:

1 '¥rite: (a) in response to your former associate Inna Ryu's F'ebruary ], 2012 letter to the undersigned; (b) to detennine the extent, if any, of your involvement in the matter prior to filing the substitution of attorney; (c) to make a good faith effort to resolve a discovery dispute before filing a motion; and (d) to serve supplemental requests for admissions and supplemental interrogatories.

(a) The position taken in Ms. Ryu:s February 1, 2012 letter is rejected. As you know~ you actuaJIy filed the substitution of attorney with the Court Clerk's office 'on January 26, 2012. As you also know, given that you chose to mail us a copy of same on January 26, 2012, 'we did not receive the, actual notice of your appearance unti] January 30, 2012. It is my position that anything you do in a case prior to our receiving notice of your participation is ineffective. My position is based in no small part on t.he fact that under your interpretation of the Court Rules, this finn would be deenled to have constructive knowledge of your representation of 1vls. Shaposhnikova the moment you dropped the substitution of attorney in the mail. Ifwe""eretohavecommunicatedwith1\'1s. Shaposmlikova prior to actual receipt of the substitution of attorney, I can readily imagine you making a claim that this finn violated ] 5 u.s. C .. § 1692c(a)(2).

(b) Please advise as to whether you prepared, assisted In the preparation of or gave Ms. Shaposhnikova advice relating to her answer to the complaint.

(c) By letter dated January 30, 2012, 1\,1s, Ryu sen'ed "Defe.ndanfs Responses to Plaintiff's First Set of Admissions Requests'~ and "Defendant's Responses to Plaintift"':s First Set ofInteITogatories~'. The responses to the foI1ov.,ring interrogatories are improper andlor are non-responsive.

..; :i ~ ~ ! D

PLAINTIFF'S EXHllilT :r:n

f\ Jot In"tl J;:t, .1 .NO.

~ Philip D. Stem: Esq. February 7, 20] 2 Page 2

Interrogatory number requires your client to set forth each and every defense she has to the complaint. The response states:

"Objection. On advice of counsel see Defendant's ans",7er as to defenses." Defendant's ans~/er states in its entirety: HI lack information or belief sufficient enough for me to admit or deny the al1egations set forth therein".

As you are undoubtedly aware: your client is required to make a good faith effort to obtain the infonnation to which she has access. She .either did or did not comply \villi that obligation. If she did, the response to the interrogatory must set forth \"'ith specificity the steps taken 10 obtain that infonnation. If your client did not make that effort, she has ] 0 days from the date of this letter \\/ithin which to do so and furnish an amended answer to interrogatory nunlber I. .

In her response to interrogatory number 2: your client certifies under penalty of punislunent that she "has no knowledge of the alleged account". That certified statement is at odds with the certified responses to interrogatory number 3 wherein your c1ient ceI1ifies under penalty of punishment that you ~dvised her to state that she does "not recalJ specific details about this aUeged account", The respon~e. continues with an attempt to reserve the right to amend the response based upon infonnation plaintiff provides. Your cIienC s obligation to provide truthful, responsive, non-evasive answers to interrogatories, however, is not dependent upon her receiving infonnation from plaintiff. The rules require your c1ient to

. make a good faith effort to obtain to which she has access. Again, she either did or did not comply wjth that obligation. ]f she did, the response to the interrogatory must set forth with specificity the steps taken to obtain that infonnation. If your client did not make that effort, she has 10 days from the date of this letter within which to do so and furnish an amended answer to interrogatory numbers 2 and 3.

Similarly, in her response to inte1Togatory number 4, your client certifies under penalty of perjury that she recalls having received more than one statement from Chase. What efforts has your client made to Iqcate such statements or evidence thereof? \Vbat efforts has your client made to detennine whether any such statement related to the subject account? Please provide your client's response within 10 days of the date hereof. Please also provide amended responses to interrogatory"numbers-3-and-4 within-ten-days of the date hereof.

In her response to interrogatory number 5, your client certifies under penalty of perjury that she does not recall specific details of the alleged account. What efforts has your client made to locate such infonnation that she has access to that ,vi)) enable her to recall specific details of the account or that may contain specific details about the account? Please provide your client's response within 10 days of the date hereof. Please also provide an amended response to interrogatory number 5 within ten days of the date hereof.

In her response to interrogatory number 7: your c1ient c1aims that the request for checking account infonnation "is beyond the scope of discovery as they have no tendency to prove or disprove any element of Plaintiffs cause of action." The response a]so alleges that "the request improperly seeks to abuse and harass Defendant." As an aside, I note that I am unable to imagine circumstances ~'here it ",Iould be proper for one party to abuse or harass another party. :r,,10re to the point, the records are under any

.~ Philip D. Stem, Esq. February 7, 2012 Page 3

circumstances probative. They either \~'i1J or wi11 not sho\\i activity relating to the account. The foregoing objections are, therefore, frivolous and evidence an intent to thwart the discovery process.

PJease note that jf the foregoing deficiencies in your client's ansV\7ers to interrogatories are not corrected within 10 days of the date hereof, 1 will apply for and move for an Order striking your client's answer to the complaint, without prejudice.

I now tum to your client's responses to the requests for admissions. The response to request number 2 incJudes defendant's admission that "she is responsible for paying for any purchases she made or authorized by her on any credit card account." The request, however, is nol addressed to "any credit card account". It is addressed to Chase Bank USA, N.A. account number 426684118057407.

The response to request for admissions number 3 incJudes your client's admission that she did have at least one account with Chase Banle The request, ho"vever, does not ask your client to admit or deny that she had at least one account with Chase Bank. Rather, the request is addressed to Chase Bank USA, N.A. account number 426684118057407 .

. The response to request. for admissions number 4 includes your clienCs admission that she made at . least one purchase or cash advance for an account with a Chase related entity. The request, however, is not addressed fo an account ,vith any Chase-related entity. Rather, the request is addressed to Chase Bank USA, N.A. account number 426684118057407 .

. The response to request for admissions number 5 includes your cIient's admission that she recal1s receiving statements in connection with accounts she had with Chase-related entities. The request, however, is not addressed to an account with any Chase-related entity. Rather, the request is addressed to Chase Bank USA, N.A. account number 426684118057407.

Based upon the foregoing, your client's responses to request numbers 2-5 and 7 are clearly evasive. In addition, your client's responses to request numbers 4, 5 and 7 allege a lack of recollection. R. 4:22 provides that your client "may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable-inquiry-was made-·and that· the information known or readily obtainable is insufficient to enable an admission or denial.". That statement is conspicuously absent in your client's response to request numbers 4, 5 and 7. I will, therefore, take the position that your client is deemed to have admitted the matters set forth in requests 2-5 and 7 and/or move for an Order so holding. In the event I move for such an Order, I wil1 apply to the Court for sanctions and counsel fees in the event your client is deemed to have admitted any of the matters set forth in request numbers 2-5 and 7. A1tematively, I wil1 make the same application if I am compelled to prove at trial any matter set forth in request numbers 2-5 and 7. In that regard, I direct your attention to Dewalt v. Dow Chemical Co., 237 N.J. Super. 54, 61 (App. Div. 1989).

Your client's response to request number 11 a])eges that she is unable to admit or deny that Midland Funding, LLC is the owner of Chase Bank USA, N.A. account number 426684118057407. I wi)) proceed accordingly and, in that regard, direct your attention to R. 4:22-3.

Philip D. Stem, Esq. February 7 ~ 2012 Page 4

] am anaching a copy of the Request for Admissions and a copy of Ms. Ryu~s response thereto. As always: 1 appreciate the fact that Ms. Ryu took the time to type each Request for Admission in her response. 1 do, however; note that the amount set forth in Request for Admission no. 10 is $5;022.68 while the amount in Ms. Ryu's response is $5,] 37.57. I will, therefore; take the position that your client is deemed to have admitted the matters set forth in Request for Admission no. ] 0 as propounded in Plaintiffs Request for Admission no. 10.

Attached hereto for service please find Plaintiffs Supplemental Interrogatories propounded on Defendant Olga Shaposhnikova and Plaintiffs Supplemental Requests for Admissions propounded on Defendant Olga Shaposhnikova: each of which is to be answered \:vithin the time and in the manner specified in the Rules of Court.

Very truly ),ours,

PRESSlER and PRESSLER. LLP !l .

;;1' t : !

Steven A. Lang

SAL:abm Enclosures

This communication is from a debt collector

PRESSLER AND PRESSLER, LLP COUNSELLORS AT LA W

7 Entin Rd. Parsippany, NJ 07054·5020

(973) 753·5100

Altorney for Plaintiff

MJDLAND FUNDING LLC

Plaintiff vs. OLGA SHAPOSHNIKOV A .

Defendant

TO: Philip D. Stern, Esq.

SIR:

697 VaHey Street, Suite 2-D Maplen'ood, NJ 07040


SUPERJOR COURT OF NEW JERSEY LA W DIVIS]ON: SOMERSET COUNTY SPECIAL CIVIL PART DOCKET NO.: DC-007607- J J

Civil Action PLAINTIFF MIDLAND FUNDING, LLC'S SUPPLE?\1ENT AL REQUESTS FOR ADM} SS10NS PROPOUNDED ON DEFENDANT OLGA SHAPOSHNIKOV A

Pursuant to R. 4:22-] and/or R. 6:4-3(d), Plaiptiff Midla~d Funding, LLC requests that Defendant Olga Shaposhnikova respond to each of the Supplemental Requests For Admissions propounded herein (the "Supplemental Requests").

PLEASE TAKE NOTICE that each mat1er set forth in a Supplemental Request is admitted unless the p~y to v..'hom these Supplemental Requests are directed serves a written answer and/or files and serves an objection addressed to propounder of these Supplemental Requests, signed by the party or by the party's counsel within 30 days after receipt or otherwise per court order.

PLEASE TAKE FURTHER NOTICE that per R. 4:23-3 if a party fails to admit the genuineness of any documents or the truth of any matter as requested under R. 4 :22, and the party requesting the admission thereafter proves the genuineness of the document or the truth of the matter, that party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof including attorney fees.

Pressler and Pressler, LLP

t.t--,

By: :'-- [' Steven A. Lang: Esq.

Dated: February 6: 20] 2

I: "INSTRUCTIONS

J. If an objection is made to any Supplemental Request: the reason(s)~ therefore; shal1 be

stated.

2. If not admitted, your response to a Supplemental Request shaH specifically deny .the

matter or set forth in detail the reason(s) why you cannot truthfully admit or deny the matter.

3. A denial shal1 fairly meet the substance of the Supplementa] Request, and ~'hen good

faith requires that you qualify the answer or deny only a part of the matter of which an admission

is requested: you shall specify so much of the Supplemental Request as is true and qualify or

deny the remainder.

4. Definitions applicable to these Supplemental Requests are set forth in Section 11 hereof.

5. Unless otherwise stated in a specific Supplemental Request: each Supplemental Request

relates to the Account (the tenn "Account" is defined in Section II below).

II: DEFINITIONS

"Account':' when capitalized, means Chase Bank USA: N.A. account number

4266841180574707.

"Chase" means Chase Bank, USA, N .A.

"Defendant'\ "Your" or "You" means Olga Shaposhnikova.

"Periodic Statements" refers to the Account bil1ing statements issued by Chase.

"Plaintiff' means Midland Funding, LLC.

III: SPECIFIC REQUESTS

I. You appJied for the Account.

2. The Account was issued to you.

3. You have no proof that the Account was not issued to you.

4. Plaintiff is now the owner of the Account.

5. You have no proof that Plaintiff is not now the ovvner of the Account.

6. You have records that reference the Account.

7. You can obtain records that reference the Account.

8. The Account was opened in June 2008.

2

9. You received a credit card for the Account in Jun"e 2008.

] O. You received a credit card for the Account in July 2008.

] 1. You have records that will show that you charged purchases to the Account.

12. You can obtain records that will show that you authorized another person or persons to

charge purchases to the Account.

13. You have records that will show that you charged cash ad\/ances to the Account.

14. You can obtain records that will shoVJ that you authorized another person or persons to

charge cash advances to the Account.

15. You can obtain bank records that ''''ill sho\v that you made paYDlents to Chase for charges

to the Account.

16. You can obtain bank records that \"'ill show that payments "\'Vere made to Chase for

charges to the Account.

] 7. You have records that will reflect that a paym~nt on the Account was made in March

2009.

] 8. You can obtain records that wil1 reflect that a payment on "the Account was made in

March 2009.

19. The last payment on the Account was m~de in March 2009.

20. The last payment on the Account was in the amount of$109.00.

21. You have records that will reflect that in March 2009 a payment \vas made on the

Account in the amount of$109.00.

22. You can obtain records that ,vil1 reflect that in March 2009 a payment was made on the

Account in the amount. of $] 09.00.

23. The Account was charged off in November 2009.

24. Charges were made to the Account for purchases you made in December 2008.

25. Charges were made to the Account for purchases you authorized another person to make

in December 2008.

26. Charges were made to the Account for purchast:s you made in January 2009.


in January 2009.

28. Charges 'were made to the Account for purchases you made in February 2009 .

.,

.)

29. Charges were made to the Account for purchases you authorized 'another person to make

in February 2009.

30. Charges were made to the Account for purchases you made in l\t1arch 2009.

3]. Charges were made to the Account for purchases you authorized another person to make

in J\1arch 2009.

32. Charges were made to the Account for purchases you made in April 2009.


in ApriJ 2009.

34. The receipts given by merchants for purchases you charged to the Account Vlere received

by you.

35. The receipts given by merchants for purchases you authorized another person to charge to

the Account were received by the person who made the purchase.

36. You did not infonn Chase in writing that you disputed a charge on a Periodic Statement.

37. You 'did not cause anyone to infonn Chase, in wri1ing, that you disputed a charge on a

Periodic Statement.

38. You have no proof that Chase was ever infonned, in writing~ that you disputed a charge

on a Periodic Statement.

·39. The copy of the Periodic Statement with "Statement Date" 10/08/09-] 1/08/09 is a true

copy of the 'Original thereof.

40. You received the Periodic Statement with "Statement Date' 10/08/09-] 1/08/09.

4] . You did not make a payment on the Account between November 6, 2009 and December

3,2009.

42. You did not cause anyone to make a payment on the Account bern1eenNovember 6,2009

and December 3, 2009.

43. You have no kno\""ledge of a payment on the Account having been made between

November·6, 2009 and December 3, 2009.

44. You did not inform Chase, in writing, that you disputed any charge sho\~'D on the

Periodic Statement ,~'ith "Statement Date" ] 0/08/09-] ] /08/09.

45. You did not inform Chase: in writing, that you disputed the accuracy of any infonnation

set forth on the Periodic Statement with "Statement Date' 10/08/09-] ]/08/09.

4

46. You did not cause anyone to infonn Chase, in writing: that you disputed any' charge

shown on the Periodic Statement with "Statement Date" ] 0/08/09-11 /08/09.

47. You did not cause anyone to inform Chase, in writing: that you disputed the accuracy of

any information set forth on the Periodic Statement with "Statement Da1e" I 0/08/09-1 ) /08/09.

48. On June 30, 2011, Chase assigned the Account to Plaintiff.

49. You have no proof that Chase did not assign the Account to Plaintiff on June 20) ) .

50. The copy of the June 30, 20 II Bill of Sale attached hereto is a true copy of the original

thereof.

5] . You have no proof that the copy of the June 30, 2011 Bi1J of Sale attached hereto is not a

true copy of the original thereof.

Signed by-(Check one) __ Defendant Defendant: s Counsel

Print Name

Dated:

5

X

Payment Due Date New Balance Past Due Amount Minimum Payment

12103/09 II $5.022.68 I I $1.160.00 I I $1,367.00

Account number: 4266 841180574707

$IL...--__ ---' M4ke your check pllyable to: Chllse Cllrd Services. Plea,. wrile amount enc:losed. Nfl'" .ddtVSS or o-rnaU7 Prinl on back.

42668411805747070013670000502268000000000000000

00$49 BEX Z 312m 0 OlGA G SHAPOSHNIKOVA 17 E FRANKUN ST APT 2 BOUND BROOK NJ 08805-1937

1 ••• 111.1 .. 1111.1 •• 1 •• 11 ... 1.1 .... 11.1.1 ... 11 •• 1.1 ... 11 •• 11 .. 1 CARDMEMBER SERVICE PO BOX 15153 WILMINGTON DE 19886-5153

111 ... 1 •• 1.1 .. 1.11 .... 1.1. 11.111.1 .. 1111.1 ••• 1 ... 111".1,"111

slate" Irom CHASEO

1 ACCOUNT SUMMARY Previous Balance Purchases, Cash, Debils Finance Charges

New Balance

$4,865.88 +539.00

+5117.80

55.022.68

Statement Date: 10108109 - 11106109

Minimum Payment: Payment Due Date:

$1,367.00 12103109

Account Number. 42668411 805747071

Tolal Credit LIne $4,000 Available Credit SO Cash Access Line 5800 AvaBable for Cash SO

Q Mllnage your account online:

..,..,.., chase '9!!1Imditg!rds

AddlUonal contactlnformatton convQl1tondy Iocstud on rOIHlr50 side

The outstanding balance on yow aedil card account is scheduled to be written off 8S a bad debt shortly. As a result, your aedit luesu wiD be updated with a negative rating that could last for up to seven years. We can still help, but you need to call us now at 1-888-792-7547 (CXlDed 1-302-594-8200).

Your accounlls dosed. Please continue to make monthly payments by Ihe due date untiJ your balaooe Is paid In fuD.

IACCOUNT ACTMTY Date of

Transadion

11101

Merchant Name or Tlansadlon Description

LATE FEE

I FINANCE CHARGES

Dally Periodic Rate Corresp. Average Dally Category 32 days In cycle APR Balance Purchases V.07463% 27.24% 51.255.65 Cash edvances V.07463% 27.24% $0.00 Bafance transfer V.07463% 27.24% 53.676.70

Total tinanc:e charges

Effecllve Annual Percentage Rate (APR,: 27.24%

Finance OUlIgc Transaction CUeTo Feel Accumulated

Perlodlc: Rate Service Charge Rn Ctlsrge $29,99 SO.OO $0.00 $0.00 $0.00 $0.00

$87.81 $0.00 $0.00

SAmoWIt

39.00

FINANCE CHARGES

$29.99 $0.00

$87.81

$117.80

Please see Informaflen AboUt Your Account section for balance computation melhod. gaoe period. and other Impartan1 Information.

The ColJesponding APR is the rule of intc:resl you pay when you carry a balance en arty IrDnsaction cstcgDf)'. The Elfec:live APR represents )'CUr tolallinance charges -including transacUon fees such as cash advance and balance tnsnsfer fees • expressed as B pen:entage.

This Statement is a Facsimile - Not an original 0000001 FIS33138 07 000 N Z os 0Gi'11108 PGgo 1 01 1 06!iG1 MAMA 00549 3121000007ClOO(J(J$t901

Address Change Request

Please provide inf~!ion below only n the address information on front is incorrect.

Street Address:

City:

State:

Zip:

Home Phone:

Wor1< Phone:

E-mail Address:

L To contact us regarding your account:

? By Telephone: In U.S. '·800-945-2000 Espallot 1·88~6-3308 TOO '·800-955-8060 Send Inquiries to: M411 Payments to: Vish OUr Website:

Pay by phono1-800-436.7958 Outsicfe U.S. cal coiled

P.O. Box 15298 P.O. BOil 15153 WNW dl/l'" cpmlmditgrrd:! Wilmingtan, DE 19850-5298 Wilmington. DE 1988~153

1-302-594-8200

Informatiln About Your Accoullr . CredlUng of hyman!s: For payments by regular U.S. mail. send at teast your minimum payment due to our Payments address shown on this statement. Your payments by mall must comply with tne Instructions on this statement, and must be made by check or money order, payable in U.S. Dollars. and drawn on or payable through 8 U.S. financial institution 01 the U.S. branch of a foreign financial institution. 00 nOI send cash. Wrile your account numbel on your check or money order. Payments must be accompanied by the payment coupon in the envelope provided with our address visible through the envetope \"Iindow; the envelope cannot contain more than one payment or coupon; and there can be no staples. paper dips. tape or conespondence InClUded with your payment " your payment is In accordance with our j)8)'lIlent Instructions and is made available to us on any day except December 25 by 1:00 p.m. local time at our Payments ilddress on this stalement. we win credit the payment to your account as of that day. If your payment is in accordance with our payment Instructions. but Is made available to us aller 1:00 p.m. focal Umc at our Payments address on thiS statement. we wiD credit It to your acccunt as of the next day. II you do not follow cur payment instructions or If your paymeat fs not sent by regular U.S. malt to our Payments address, crediting of your payment may be delayed for up to 5 days. Payments made electronically tlvuugh our automated telephone service, Customer Servico advisors. or our web site Will be subject to any processing times dlsctosed tor those payments. keeanl hdcmnation Reported 10 Credit Bureaus: We may report Information about your account to credit bureaus. Late payments. missed payments or other defaults on your account may be reflected in your Ct8dlt report II you thillle we have reported Inaccurale information to a credit bureau, you may write to us at the Inquiries address shown on this slatement Notice AIIo", Electronic Cbeclt Conversion: When you pay by check. you authOrize us eUher to use Information from YOUf check to make a one·time electronic fund lransfer from your account or to process tl\! payment as a cheet transadlon. When vIC use Information itom your check to make an electronic fund transfel. funds may be Y/ithdrawn from your accounl as soon as the same day we recelw your payment, and you will not recelve your check bade from your financial Institution. Caa the CUstomer Service number on this statement II you have questions abou1 electronic chedt collection Or do not wanl your ~nIs coReeted electronically. Condlll.nli hynIents: Any payment check or other fOfm of payment that you send us for less than the full balance due that Is marbld "paid In full- or con12Jns a similar notation. or lhat you otrlerwise tender In full satisfactlOtl of a disputed amount, must be sent to Card SetIIices, P.O. Box 15049, Wilmington. DE 19850-5049. We reserve all our rights regaldlng these payments (e.g .. H It Is determined there is no valid disDute or if any such checlc IS received at any other address. we may accept lhe check and you will stiD owe any remaining balance). We may refuse to accept any such payment by returning it to you. 1I0t cashing it or ~estr~ing it. All other payments that you make should be sent to the regular mems address shown on Ihls s1atement. knuat Renewal Not c:c: If your account lias an annual fee. II Will be billed each year or in monlllly installments. whether or not you USi} your account, and you agree to pay it ",hen billed. The annual lee is non' refundable unless you notify US thai you wish 10 close your account wilhin 30 days of Ihe dale we mail your slitement on which lIle annual lee Is charged and at the same time. you pay your outstanding balance In ruD. Your payment of Ihe annual fee does not alfeet our rights to dose your account and to ~mil your righl to make transactions on your account. I' your account Is closed by you or us, we will continue to charge the annual fee urttil you pay your outstanding balance in full and terminate your accounl relationshlil. EJplaaalllln of Flaaace Cb2lgss: We calculate periodic finance charges. using the appticable periodic rates shown on this statement, separately lor each feature ~.g •• balance transler/convenience checks and cash advance checks ( check transactlon-). purchases. balance transfers. cash advances. promotional balances or overdrafl advances). These calculations may combine c!ilferent categories with the same daily periodic rates. If there Is a "V" neld to a periodic rate on this S1atement. thaI me may "ary. and the Index and margin used to !klemline lIlal fale and Its corresponding APR are described In your Cardmember Agreement, as amended. Ihere is a minimum finance charge In any billing cycle in which Vou owe any periodic finance charges. and a trilnsacllon linance charge lor each balance transler. cash advance. or check transaction. in the amounts slated in yOUI Card member Agreement as amended.

To get the daily balance for each day 01 the current billing cycle. we lake the beginning balance lor each feature, IiSd any new transactions or other debits (Including lees. unpaid finance charges and other charges). subtrad !1rI payments or Cledirs. and make olher Jdjustments. Transactions an: added as of Ihe transaction date, the beginning 01 the bining cycle in which they are posted to your account, or a laler dale of our choice (except that check transactions are added as of the date deposHed by the payee 01 a later date 01 our choice). Fees are edded either on the dale of a related transaction. the date they are posted to your account. or the last day of the billing cycle. This gives us that day'S dally balance. A credH balance Is treated as a balance 01 zero. It a daily periodic rate applies to any feature. we multiply the daily balance by the dally periodic rate to get your periOdic finance charges tor that day. We then add these periOdiC finance charGes to your daily balance 10 get the begillning balance ror the next day. (II more than one daily periodic rale could apply based on the average dally balance. we win ust Ute dally periodic me that applies for tile average daily balance amount at the end of the bllUng cycle to calculate the daily periodic finance charge each day.~ To gel your total periodIC finance charge lor a billing cycle when a dally periodic ratees) applies, we add all of the dally periodic finance charges for aU features. To detennine an averago daily balance. we add your daily balances and divide by ilia number or the days in the applicable billing cyde(s). If you mUltIply Ule average dally batance for each fcatllre by tile applicable dally periodic rate, and then multiply each of these results by the number of days in the apprable billing cycle{s). and lhm add all 01 the resUlls logether. the to1al wiD also equal the periodic finance charges for the billing cycle. except for minor variations due to rounding. To get YOW' total periodic finance charge lor a billing cyde when a monthly periodic rate(s) applies. multiply the average daily balance for each feature by Ihe ilpplicable monthly periodic tale and add the results together. The total wBI equal tile periodic f1nanco charges for the bllUng cycle. except for mfnor variations due to rounding. Grace Period (at least 20 daY'): We accrue periodiC finance charges on a lransadion. fee, or finance charge from lhe date it is added tD your daily balance unta payment in full is received on your account. However. we do nol charge perioie finance charges on new purchases billed during a bUllng cycfe If we receive both payment 01 your New Balance on your current statement by the date and lime your payment is due and also pavrnent of your New Balance on your previous statement by the dato and time your payment was due. There Is no grace pBliOd lor balance transfers. c:ash advances. check transaClions. or overdrah advances. BillING RIGHTS SUMMARY III Case of EOUB or QuesUons About Your Bill: [I you think your biD Is wrong. or if you need more Infofmation about a transaction on your b11~ write Customer Service on a separate sheet at P.O. Box 15299 Wilmington. DE 19850·5299 as soon as possiblB. We must hear from you no later Ihan 60 days aUer we sent you the first bin on which the error or problem appeared. Vou can telephone us. but doing $0 wilt not preserve your rights. In your lener. give US tfJe 10Dowing information. • Your name and account number • The dollar amount of the suspected error • Describe the error and explaIn. if you can. why you believe there is

an error. It you need more information, describe the item you are unsure about.

You do not have to pay any amount In question whUe we are Investigating. but you are still obtigated to pay Itle parts of your bill thaI are nat in QUestion. While we investigate your Question, \'Ve cannol report you as delinquent Of take actfon to collect the amount you queslion. If you have authorlZBd us 10 pay your credil card bill automatically Irom your savings Of checking account, you can stop the payment on any amount you think is wrong. To stop lIle payment your leHer or call (using the Inquiries address or Customer Service telephone number shown on Ihis slatement) must reach us at leaSllhree business (lays belore the automatic payment is scheduled to occur. Sp~lal Rule lor Credit tard PUrchUIIS: " you have a pro Diem WIth tile quality ot goods or services thai you purthas~ with a credit card (excluding purchases made \'Vith a check). and you have tried in good faith to correclthe problem with the merchanl. you may not have 10 pay the remaining amount ~ue on the goods or services. Vou have this ptOlactlon only when the purchase plice was more Ihan 550 and the purchase was made in your horne state or wilhin 100 miles of your mailing address. These limitations do 1'101 apply if we own or operale the merchant. 01 if we mailed you the advertisement for the property or services.

CHASEU

BJLL OF SALE

Closing Date: 06/30120 I J

Chase Bank USA. N.A. ("Seller"). for value received and pursuanl to rhe terms and conditions of Credit Card Account Purchase Agreement dated J 1I30nOJO between Chase Bank USA. N.A. and Midland Funding. LLC ("Purchaser"), ils successors and assigns C'Credit Card Account Purchase Agreement"). hereby assigns effecrive as of the File Creation Date of 06(2412011 all rights, ritle and interest of SeJler in and 10 those certain receivables, judgments or eVidences of debt described in Ihe Final Data File, entitled (Account's Primary File Name) anached hereto and made pari hereof for all purposes.

Amounts due to SeHer by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on (the "Closing D~te") 06130/201 J by 2:00 p.m. Scller'!\ time, as follows:

Rodsded

This Bill of Sale is executed without recourse except as Slated in the Credit Card Accounr Purchase Agreement to which this is an Exhibit. No other representation of or warranty of lille or enforceability is expressed or implied.

With resp~cl to account information for the Accoun.ts listed in the Final Data File, Seller represents and warranlS to Purchaser that (j) the Account informalion is complete and accurate; (ii) the Account information constitutes Seller's own business records and accurately reflects in al1 material respects the information in Seller's database; (iii) the Account information was kept in the regular course of business; (iv) the Account information was made at or near the time by. or from information transmitted by, a person with knowledge of the data entered into and maintained in the, Sener's database; and (v) it is the regular practice of SeHer's business to mainlai'n and compiJe such data.

-----Date: 08/04120 I J

Title: Team Leader

Approved by Lega~

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MIDLAND FUNDING, LLe v. OLGA SHAPOSHNIKOVA; DOCKET NO. SOM-DC-007607-11

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LexisNexis® 2 of2 DOCUMENTS

HARRY WILDY, Plaintiff-Respondent, v. M&R AUTO SALES, INC., Def endan t-A pp ellan t.

DOCKET NO. A-602B-OBT1

SUPERIOR COURT OF NEW JERSEY, APPELLATE DTVISJON

2010 N.J. SlIper. Ullpllb. LEXIS 1340

April 12, 2010, Argued June IB, 2010, Decided

NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

SUBSEQUENT HISTORY: Certification denied by Wildy v. M&R Aula Sales, 2010 N.J. LEXIS 1017 (N.J.,

OCI.5,20l0)

PRIOR HISTORY: [*1) On appeal fTom the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-705-0B.

COUNSEL: Douglas K. Wolfson argued the cause for appellant (Greenbaum, Rowe, Smith & Davis, attorneys; Mr. Wolfson, of counsel and on' the brief; Luke J. Kealy and Robert J. Flanagan III, on the brief).

Robert C. Hess argued the cause for respondent.

JUDGES: Before Judges Baxter and Alvarez.

OPINION

PERCURJAM

Defendant M&R Auto Sales, Inc. (M&R) appeals from a judgment issued after a bench trial awarding plaintiff Harry Wildy damages of $ 21,265.50 plus

attorney's fees. For the reasons that follow, we reverse and remand only as to the calculation of damages.

The following facts were developed during the trial on plaintiffs complaint alleging violatioos of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 10 -184. On August 15, 2007, plaintiff took possession of a 1997 silver, four-door Cadillac he purchased for $ 6500 from M&R, a used car dealership. Prior to delivery, the vehicle had been serviced as per the parties' agreement. As plaintiff drove home, the oil light came on and the car began to overheat. Since the Cadillac was under warranty, M&R instructed plaintiff to return the car. It was towed to the dealers lup, [·2) and two days later M&R reported to plaintiff that he could retrieve the vehicle as it was repaired. On the way home, the oil light came on again and plaintiff returned the Cadillac to the dealership. This timc, Anthony Masi, Jr., one of M&R's owners, personally told plaintiff to leave the car at M&R a second time so it could be repaired.

Masi took the car first to Roth Brotbers Auto Repair where the problem could no t be corrected and then to

Automotive Degree. While Masi was testifying, the judge ruled sua sponte that Masi could not describe the specific repairs made by Automotive Degree or the paid receipt for the work on the grounds that the testimony was inadmissible hearsay. Masi was on ly permitted to testify that Automotive Degree was unable to fix the problem. In any event, the Cad illac was sent to a third repair shop,

Page 2 2010 N.J. Super. Unpub. LEXIS 1340, *2

Crown Cadillac. Crown Cadillac was able to correct the oil light problem, however, the trial judge prohibited Masi from testifying further as to those repairs or the cost based on her previously expressed concern that such statements were hearsay.

The Cadillac was returned to plaintiff approximately six weeks later on September 28, 2007, but the car continued to [*3] have problems. The engine overheated if plaintiff drove it more than twenty-five to thirty miles at a time. The car lost a significant amount of anti-freeze, even though there did not appear to be a leak in the cooling system. When plaintiff notified M&R ihis time, Masi told him that there was nothing wrong with the vehicle. As a result, plaintiff decided "there wasn't any sense in going back again. n

In Dece~ber 2007, plaintiff hired Robert Maggio, a retired automotive technician who acts as a consultant for car dealerships. His inspection revealed the Cadillac's head gaskets were leaking. He instructed plaintiff .to only drive the car locally for short periods of time. Plaintiff then contacted M&R in the hopes of returning the vehicle, but because the warranty had expired, his request was refused. At trial, Maggio was qualified as plaintiffs expert n[i]n the field of automotive repair, specifically [] CadilJacs .... II

In April 2008, the Cadillac stopped running completely. Prior to this point, plaintiff had driven approximately 5420 miles, using the Cadillac only for short trips at slow speeds as Maggio had advised. He rented a car whenever he needed to make longer trips.

On April [*4] 24, 2008, Maggio inspected the Cadillac in order to prepare a report for litigation. The Cadillac was towed to Clainnont Auto Group (Clairmont) for the necessary testing and Maggio's diagnosis of a blown head gasket was confmned. The court allowed Maggio to testify regarding the results of the testing done by Clairmont because "experts like" Maggio rely on such documents when IIreaching an opinion" and rendering a report.

Nonetheless, the trial judge barred M&R's expert, Teny Shaw, from testifying about previous work done on the vehicle even though she allowed Maggio to testify about Clairmont's diagnosis. Shaw did state that in his opinion the car could not have passed New Jersey emissions inspections and been driven for over 5000 miles, "with discemable leaking head gaskets or

combustion chamber leaks. " He theorized that the Cadillac exhibjted symptoms of a combustion chamber leak in the cooling system, indicating other mechanical problems.

The judge concluded that "[t]here were material misrepresentations" made to plaintiff and consequently determined that M&R violated the CF A, "after being given an opportunity to correct the defects, and provide [Wildy] with what he had paid for, [*5] ... a motor vehicle which was road worth[y] and operable, without defects." The trial judge awarded plaintiff $ 242.15 for work performed by Clairmont, $ 30 for towing on July 15, 2007, $ 315.35 for the cost of rental vehicles, and the $ 6500 purchase .price of the Cadillac. She then trebled the $ 7088.50 total and awarded plaintiff damages of $

21,265.50 "plus reasonable attorney's fees."

We are bound by the trial judge's fmdings of fact "when supported by adequate, substantial and credible evidence." Rova Fanns Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974) (citation omitted). See also Metuchen Say. Bank V. Pierini, 377 N.J. Super. 154, 161,871 A.2d 759 (App. Div. 2005). The court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. V. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) (citations omitted). Thus, "our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476, 892 A.2d 711 (App. Div. 2006).

Defendant's contentions of error pertain to the trial judge's evidentiary rulings and her calculation of damages. [·6] The applicable standard when we review the trial court's evidentiary rulings is that of abuse of discretion. See State V. Kemp, 195 N.J. 136, 149, 948 A.2d 636 (2008). See also Hisenaj v. Kuehner, 194 N.J. 6, 12, 942 A.2d 769 (2008) (citation omitted); Brenman v. Demello, 191 N.J. 18, 31, 921 A.2d 1110 (2007) (citation omitted). We only correct those errors "'of such a nature as to have been clearly capable of producing an unjust result.'" Kemp, supra, 195 N.J. at 150 (quoting State v. Castagna, 187 N.J. 293, 312, 901 A.2d 363 (2006) (citations omitted».

Defendant asserts that the trial judge erred in ruling that Masi's statements regarding repairs made to the Cadillac by Automotive Degree and Crown Cadillac were inadmissible hearsay. Masi was pennitted to testify,

Page 3 2010 N.J. Super. Unpub. LEXIS 1340, *6

however, as to his knowledge that Automotive Degree did not successfully repair the Cadillac, but that as far as he knew, Crown Cadillac fixed the problem.

We further note that when plaintiff objected to the proposed testimony at trial, M&R did not argue, as it does on appeal, that the statements were not being offered for the truth of the matter asserted. In fact, once the court ruled, counsel moved on to the next series of questions and did not say anything further about the [*7] ruling.

Generally, we decline to consider arguments not previously raised, unless they IIIgo to the jurisdiction of the trial court or concern matters of great public interest. III Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973) (citation omitted). See also State v. Churchdale Leasing Inc., 115 N.J. 83, 100-01, 557 A.2d 277 (1989). Hearsay is an out-of-court statement being made lI'to prove the truth of the matter asserted'" therein. State v. Long, 173 N.J. 138, 152, 801 A.2d 221 (2002) (quoting N.J.R.E. 801). Counsel did not dispute the court's ruling that the excluded material was hearsay. Certainly, if the argument had been made that the testimony was not being introduced for the truth of the matter asserted therein, as is being claimed on appeal, the trial judge may well have reached a different conclusion. See Carmona v. Resorts lnt'l HOlel, Inc., 189 N.J. 354. 376, 915 A.2d 518 (2007) (quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445. 456-57. 655 A.2d 948 (App. Div.), certif. denied, 142 N.J. 452, 663 A.2d 1359 (/995)). But that position was not advanced at trial.

In any event, plaintiff must prove that Masi or M&R Sales knew, or should have known, of the significant problems with the Cadillac-at-the-nme-of-sale, not afterwards. [*8] See N.J.S.A. 56:8-68. The CFA provides that when an automobile is sold, it is unlawful for a used car dealer to: (1) make material misrepresentations as to "the mechanical condition of a used car"; (2) "fail to disclose, prior to sale, any material defect"; or (3) "represent that a used ... vehicle ... is free from material defects in mechanical condition at the time of sale, unless the dealer has a reasonable basis for this representation at the time it is made. II

The evidentiary ruling, even if error, did not produce an unjust result because of the time frame delineated in the statute. See R. 2:10-2. The line of questioning about the repairs and cost of repairs made by Automotive Degree and Crown Cadillac pertained to work performed

after plaintiff's purchase of the vehicle. It would not have established M&R's knowledge of the Cadillac's condition at the time of sale. That is the pivotal question. And on that score, it is clear the car suffered from serious mechanical problems from the moment it was driven off the lot. Accordingly, we do not consider this evidentiary ruling to have been "clearly capable of producing an unjust result." See Boland v. Dolan, 140 N.J. 174, 189, 657 A.2d 1/89 (1995).

Similarly, [*9] M&R contends that Shaw was "denied ... the opportunity to explain the basis [for] his expert opinion. . . ." When plaintitrs objection was sustained, Shaw had testified that "when you take a vehicle into a dealership, ... they look at the whole car, if they see anything wrong with it." The court ruled that the witness could not "testify about what dealers would do" in the absence of personal knowledge. M&R urges that this testimony should have been allowed because the expert was merely describing the information upon which he relied in reaching his expert opinion. Generally, although expert opinions do not provide an independent basis for "the admission of otherwise inadmissible hearsay," hearsay is admissible where necessary to inform the court of the basis for the opinion. State v. Torres, 183 N.J. 554, 575-76, 874 A.2d 1084 (2005) (citations omitted).

In our view, Shaw's proposed statement was based on his experience having worked at one dealership, an insufficient basis for his conclusion as to the steps Crown Cadillac would have taken upon receiving a vehicle for repair. Shaw's bare conclusion was in effect a net opinion, inadmissible for this reason. See Taylor v. DeLosso, 319 N.J. Super. 174,179-81, 725 A.2d 51 (App. Div.1999).

Shaw [* J 0] did extensively testify as to his opinion regarding the Cadillac's mechanical problems and the likely sources of the problems. By doing so, he supported M&R's position that at the time of sale, the Cadillac did not have a mechanical defect that brought the transaction within the rubric of the CFA. The evidentiary ruling therefore could not have affected the outcome at aU, as the expert did extensively testify about the key issues in the case.

Lastly, M&R contends the court erred in its determination of plaintiffs "ascertainable loss." See N.J.S.A. 56:8-19. The term has been defmed as the loss that "occurs when a consumer receives less than what

Page 4 2010 N.J. Super. Unpub. LEXIS 1340, * 10

was promised." Romano v. Galaxy Toyota, 399 N.J. Super. 470, 479. 945 A.2d 49 (App. Div.), certiJ. denied, 196 N.J. 344. 953 A.2d 763 (2008) (citing to Union Ink Co. v. AT&T Corp., 352 N.J. Super. 617, 646. 801 A.2d 361 (App. Div. 2002)). A plaintiff must, however, objectively prove that loss. Ibid. (citing Thiedemann v. Mercedes-Benz USA. UC, 183 N.J. 234. 251. 872 A.2d 783 (2005)). It can include, depending on the nature of the item in question, replacement value, replacement and repair costs, and similar expenses. Id. at 480. The purpose of the calculation is to make the plaintiff whole. Id at 483. [*) I] Such a calculation can be completed using either the "benefit of the bargain" rule, which "aJlows recovery for the difference between the price paid and the value of the property," or the "out of pocket" analysis, "which provides recovery for the difference between the price paid and the actual value of the property acquired. II Ibid.

The judge's award to plaintiff of the entire purchase price went beyond making plaintiff whole, as in addition he had limited use of the car and retained the vehicle. See ibid. Accordingly, we remand the matter for additional proceedings to recalculate damages.

Plaintiff must establish the difference between the

purchase price and the value of the car, as this calculation would make him whole. No findings were made by the court as to the vehicle's diminished value because of the head gasket .problem at the time of sale, yet the vehicle must have had some value as plaintiff was able to drive it, albeit within a limited range, 5420 miles. We hasten to add that the final calculation as to damages should be trebled, as no challenge is made to the judge's determination that the CF A was violated; in other words, that there were material misrepresentations made at [*12] the time of the sale.

Accordingly, we affirm the judge's award of $ 242.15 for plaintiffs payment of costs to Clairmont, a $ 30 towing fee, $ 315.35 for a rental vehicle, and reasonable attorney's fees and costs. I In summary, the treble damage award will consist of plaintiffs expenses, plus the difference between the purchase price and the actual value of the vehicle.

$ 11,000 in attorney's fees and $ 1698.20 in costs was also awarded to plaintiff by the trial court; no appeal is taken from the award.

Affirmed on liability, but reversed and remanded as to the assessment of damages.

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NEWTON & ASSOCIATES, LLC, Plaintiff-Respondent, v. INNOVATIVE SOLUTIONS SYSTEMS, Defendant-Appellant.

DOCKET NO. A-2672-07Tl

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

2008 N.J. Super. Unpub. LEXIS 2723

October 22, 2008, Submitted November 13, 2008, Decided

NOTICE: NOT FOR PUBliCATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

PRIOR HISTORY: [* 1] On appeal from Superior Court of New Jersey, Law Division-Special Civil Part, Middlesex County, Docket No. DC-11405-07.

CORE TERMS: summary judgment, collection, owed, invoice, mailed, defense counsel's, vacate, fax, failed to pay, contingent fee, hourly rate, collecting, demanded

COUNSEL: Law Offices of Susheela Verma, attorney for appellant (David A. Curcio, on the brief).

Marshall & Quentzel, LLC, attorneys for respondent (Brian R. Quentzel, on the brief).

JUDGES: Before Judges Fisher ... and Baxter.

OPINION

PER CURIAM

Defendant Innovative Solutions Systems appeals from a December 21, 2007 order that denied its motion, filed pursuant to Rule 4: 50-1, to vacate a judgment entered in favor of plaintiff Newton & Associates, LLC on September 27, 2007. We reverse.

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1.

Plaintiff is a collection agency hired by defendant to collect a debt owed to defendant by a third party, Syncro. When defendant failed to pay the fifteen percent fee, which plaintiff claimed it was owed as a result of collecting the underlying debt in full, plaintiff instituted suit to recover the "contingent/contractual fees ll that defendant owed for plaintiff's collection services.

As we understand the record, there was never a contract signed by plaintiff and defendant setting forth the parties' respective understandings of the fee to be paid plaintiff for the collection work it performed. Instead, on September 13, [* 2] 2006, plaintiff sent defendant a letter by fax that provi~ed, in relevant part, as follows:

To: David Parks

RE: OUTSTANDING AMOUNT FROM SYNCRO TEC[H]NOLOGIES, INC.

TOTAL OUTSTANDING $ 24,696.00

SENDING HEREWITH THE INVOICES FOR COLLECTION.

THE PERSON RESPONSIBLE: SONNY MUJUMDAR [PHONE NUMBER]. FACT[S] OF THE CASE:

SYNCRO BOOKED OUR CONSULTANT ... FOR A PROJECT. AS PER AGREEMENT, THEY WILL PAY US @ $ 63.00 PER HOUR OF HIS WORK. HE HAS COMPLETED THE JOB. WE HAVE SUBMITTED THE INVOICE BUT TILL (SIC) DATE THREE INVOICES ARE PENDING FROM JUNE 2006 (ENCLOSED). IF YOU NEED MORE INFORMATION, [email protected]

THANKS

SID GUHA INNOVATION SOLUTION SYSTEMS, INC., ONE WOODBRIDGE CENTER, SUITE 435 WOODBRIDGE, NEW JERSEY 07095.

SEND YOUR OFFICIAL ADDRESS AND RESULTS OF YOUR FINDINGS AND THE TIME REQUIRED AS WE GO BY TIME. OUR FAX NUMBER IS 732 596 1115.

[(emphasis added).]

Plaintiff succeeded in collecting the entire $ 24,696 debt that Syncro owed to defendant, and sent defendant an invoice in the amount of $ 3,704.

The complaint that plaintiff filed on June 11, 2007, alleged that defendant owed the sum of $ 3,704, but failed to specify how it arrived at that sum. On or about August 6, 2007, plaintiff [*3] propounded requestsfor admissions on defendant. Among other things, plaintiff

requested that defendant admit that "defendant failed to pay the plaintiff its 15% fee."

In a September 17, 2007 letter to plaintiff's counsel, defendant's counsel wrote, "[i]n response to your admission number 4[,] the defendant at this point denies any 15% fee is due and owing to the plaintiff .... " Defense counsel also stated that he had no copy of a contract to collect a debt between plaintiff and defendant wherein his client had agreed to pay a 15% collection fee. He demanded that plaintiff provide a copy of the contract in question.

However, on September 14, 2007, before receiving the September 17, 2007 letter from defendant's counsel, plaintiff filed its motion for summary judgment. In that motion, plaintiff asserted that because defendant failed to deny the request for admission within thirty days of service, the allegation was deemed admitted in accordance with the provisions of Rule 4:22-1.

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[*4] Plaintiff never advised the court of the contents of defendant's September 17, 2007 letter. When defendant filed no opposition to plaintiffs summary judgment motion, the court granted it on September 27, 2007.

The next day, plaintiff sent a letter to defendant advising that the court had granted plaintiffs motion for summary judgment and demanding full satisfaction of the judgment within ten days.

On November 21, 2007, defendant filed its motion for relief from judgment. In support of that motion, defendant argued: 1) the summary judgment motion was never served upon its counsel; 2) the requests for admissions were denied by way of defense counsel's letter to plaintiff's counsel on September 17, 2007; and 3) there was no contract under which defendant had ever agreed to compensate plaintiff fifteen percent of the funds plaintiff collected on defendant's behalf.

Plaintiff opposed the motion, contending that it had indeed mailed the motion for summary judgment to defendant. Plaintiff also maintained that the September 17, 2007 letter, in which defendant denied the admission in question, was "suspiciously" mailed to plaintiff a few days after the motion for summary judgment was filed. [*5] Plaintiff also argued that the proofs offered in support of the motion to vacate judgment were inadequate.

The judge denied the motion to vacate, holding in a brief oral decision that he was tlskeptical tl

of defendant's claim that it never received the motion for summary judgment. The judge did not, however, rule on that particular point, since he went on to ultimately hold that defendant never disputed the facts upon which the summary judgment was based.

II.

A judge is obliged to grant relief from judgment if the moving party demonstrates "mistake, inadvertence ... excusable neglect ... misrepresentation, or other misconduct of an adverse party ... or any other reason justifying relief from the operation of the judgment or order." R. 4:50-1. In this case, we are satisfied that there was a factual dispute between the two parties as to whether the motion for summary judgment was ever served on defense counsel. Plaintiffs counsel contends he mailed it; defense counsel says he never received it. There is no receipt or other documentation to support either claim. Under those circumstances, defendant should have been afforded the opportunity to respond to the summary judgment motion on [*6] its merits. At the very least, the judge should have conducted an evidentiary hearing to resolve the issue of service of the summary judgment motion.

Moreover, there appears to be a genuine dispute about the nature of the agreement between the parties, i.e. whether defendant-shouJ-d-have been-charged a contingent fee of fifteen percent as plaintiff maintains, or, as defendant maintains, an hourly rate. Indeed, the September 13, 2006 letter of engagement, which defendant faxed to plaintiff when defendant forwarded the collection account in question, demanded that plaintiff forward a record of the time expended "as we [defendant] go by time." Thus, the September 13, 2006 fax expressed defendant's understanding that plaintiff would be paid on an hourly rate, rather than on the contingent fee basis that plaintiff described in its summary judgment motion.

We do not deem the fifteen percent allegation in plaintiffs request for admissions to have been admitted in light of the uncertainty about the precise date on which defendant received the request for admissions. Although plaintiff asserts in its brief that the request for admissions was mailed to defendant "on or about August 6, 2007," no [*7] cover letter or proof of service is included in plaintiff's appendix. Consequently, we cannot be certain that defendant's September 17, 2007 letter denying the allegation was actually out of time.

In light of both the uncertainty about whether defendant was ever served with the underlying summary judgment motion and the real controversy that existed concerning how plaintiff was to be paid for the collection services it rendered on defendant's behalf, we conclude that the

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judge erred when he denied defendant's motion for relief from judgment. We are satisfied that defendant presented ample reasons entitling it to relief from the earlier judgment in plaintiffs favor. We therefore reverse the denial of defendant's motion for relief from judgment and remand the matter to the Special Civil Part for trial.

Reversed and remanded.

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ADMINlST1t4TWlr OFFICE OF THE COURTS State of New Jersey

CERTIFICATION OF TRANSCRIPT COMPLETION AND DELIVERY

INSTRUCTIONS:

1. OItgtnal to Uta Cferk(AppaIIate 'HvisJon or SUj)Nme Court) With 011 transctiJll c:apl~ DQrtarnfng tD thba caaa 2. One (1) CUpy tD Deputy Clerk, Appenat. DlvllkJh

3. Roquastfng Party :LA'A'RENCE kCDeRMOTT

MIDLAND FUNDINB va OLeA SHlU'POSHNIKOVA APPELLATE COIJ~T DOCKET NUMBER: A -G04aoa ...... "

LOWER COURT DOoKEr NI,IJ,$ER: DC.oo7807-1t

COUNTY: SOMERSET

PRQOeeD1Ho DA'rE

0SI181J012

LOWER COURT: CML

TRANSCRIPT INFORMATION

PROCEB~lNG C:OURT REPORTER I TRAN$MITTED TYPe TRANSCRIBER PAC1!8

llUAL

KOBE1{I'QROSSMAN 14

n~-· ;.) ~ ~8~ on 06I191201~

PMrida 8ItiI

1RANSMrmD OATES

0SJ28l2012

OS/2812012

REJECTION R.EABON

Pane 1 23a

RECEIVED WEDNESDAY 4/251201212:25:16 PM 9127972

PHILIP D. STERN & ASSOCIATES, LLC ATTORNEYS AT LAW

697 VALLEY STREET, SUITE 2D, MAPLEWOOD, NJ 07040-2642

April 25, 2012 PHONE (973) 379-7500

FAX (973) 532-0866

ELECTRONIC FILING TRANSMITTAL SHEET for Judiciary Electronic Filing System (JEFIS)

. Re: Midland Funding, LLC v. Olga Shaposhnikova Docket No. SOM-DC-007607 .. 11

Filer: Philip D. Stem, Esq. Document Type: OBJ .. Motion

Please file:

1. Opposition Certification of Philip D. Stem. Esq.; 2. Brief In Opposition to Motion; and 3. Proof of Service.

For this Motion. ORAL ARGUMENT is REQUESTED.

PAGE 1 46a

..

PHUJP D. STERN 8cAssoCIATES, LLC A11'ORNEYS AT LAW

6W Valley Street, Suite 2d Maplewood, NJ 07040 (973) 379-7500 Attome s for Defendant, 01 a Sha oshnikova

MIDLAND FUNDING LLC, Plaintiff,


SPECIAL CIVIL PART

Civil Action VB.

OLGA SHAPOSHNIKOVA, Defendant.

Docket No. SOM-DC-007607-11

OPPosmON CERTIFICATION OF PHILIP D. STERN, ESQ.

I, Philip D. Stern, certify as follows:

1. I am an attorney at law of the State of New Jersey and represent Defendant, Olga Shaposhnikova. I make this Certification based on my personal knowledge and in opposition to Plaintiffs Motion to Reconsider Dismissal.

Introdut;tion

2. This action was called for trial on April 4, 2012. Plaintiff attempted to rely solely on supplemental admlss~on requests to prove its entire case. I objected. After entertaining argument on the objection, the Court sustained it. Proffering no other evidence to prove its claims, the case was dismissed. Plaintiff's Motion re-argues the objection.

3. Neither at trial nor on this Motion does Plaintiff offer proof of service as to the supplemental admission requests. Plaintiff argues that the Court should nevertheless bend the Rules.

4. Plaintiff's baseless arguments are explored in the accompanying Brief. Here, I set forth the factual foundation for those arguments. I address two topics:

• My ongoing relationship with Plaintiffs counsel and his expressed insistence that service of discovery be only in accordance with the Court Rules;

• The background leading to my conclusion that Plaintiffs supplemental requests for admission were never sel'Ved.

Page 1 of5 47a

..

Counsels' Course of Dealing

5. For several years, my practice has been limited to defending consumer collection cases and bringing claims against debt collectors who violate the Fair Debt Collection Practices Act

6. In the spring of 2011, Steven A. Lang, Esq. of Pressler and Pressler, LLP informed me that he would be specially assigned to all cases In which I appear as defense counsel. As a result, he and I have been adversaries in about twenty cases over

. the past year.

7. On January 9, 2012, I copied Mr. Lang on a motion's reply papers in another case. I attach, as Exhibit A, a copy of the covering transmitta11etter which indicated:

cc: Steven A. Lang, Bsq. via regular mail (courtesy copy via email [email protected])

8. Mr. Lang emailed me back, "Mr. Stem - 1 do not accept service of motion papers by e-mail. please be guided accordingly. II I responded, "good to know, dtanlcs."

9. Mr. Lang's reply email acknowledged that fax and email are impermissible modes of service. Specifically, he wrote:

I used to selVe you via e-mail and/or fax. You may, however" recall that you routinely took the posi tiOD that those modes of service are not permitted by the Court Rules. You are correct.

10. I responded and explained why I did not accept service by email or fax:

I have taken the brunt from your firm in the past when lawyers refuse to accept service by email or fax. I distinctly recall such an occurrence with Dale [Gelber, Esq.].

11. I then proposed some guidelines for agreeing to service by email.

12. Mr. Lan& in rejecting my proposal, opened his email with "Philip - I think we have to stidc: with the COlUt Rules. t,

13. The foregoing email dialog is contained in the attached Exhibit B which contains the emails between me and Mr. Lang on January 9 and 10, 2012.

Plaintl.ff's Supplemental Requests Jor Admission Were Not Served

14. Defendanrts answer was filed on December 27, 2011. My reading of R. 6:4-3(a) and R.4:17-2 is that Defendant's initial interrogatories needed to be served by

Page 2 of5 48a

...

January 26, 2012. Under R. 1:5-4(b) service is complete on mailing. According to my former associate's proof of service set forth in the Interrogatories served on Plaintiff, they were mailed on January 26, 2012. A copy of the first two pages of the Interrogatories, which includes the Proof of Service, is attached as Exhibit C.

15. By letter dated January 31, 2012, Mr. Lang wrote that the Interrogatories were served out of time and, therefore, would not be answered. A copy of his letter, without the enclosures, is attached as Exhibit D.

16. By letter dated February'l, 2012, my former associate wrote to Mr. Lang explaining that the Interrogatories were, indeed, timely served. A copy of that letter is attached as Exhibit B.

17. This exchange further evidences Mr. Lang's insistence on strict adherence to the Rules.

lB. My associate, Ms. Ryu, left in early February.

19. Having not received responses to Interrogatories, I moved for dismissal on March 19, 2012. In preparing that Motion, I reviewed my file before certifying that Defendant had no outstanding discovery obligations.

20. Mr. Lang wrote to me on March 23, 2012 attaching a copy of his lengthy February 7, 2012 letter which, among other things, included supplemental interrogatories and supplemental requests for admission. He pointed out that Defendant could not proceed with the dismissal motion in light of the outstanding discovery. Trusting him on his word, I withdrew the motion.

21. On March 23, 2012, Mr. Lang also wrote to me about the supplemental requests for admission. He indicated that he intended to rely on them as being admitted for purposes of a summary judgment motion. A copy of his letter without the enclosures is attached as Exhibit F.

22. I attach my responding letter as Exhibit G, which explains that the requests were improper and that Plaintiff could not rely on them to support a summary judgment motion or at trial. That letter negates Plaintiff's purported surprise and suggesting that Defendant waited to "spring the issue on the day of trial. n See, Plaintiffs Motion Brief, at p. 5. ,

23. That letter noted that Defendant's previously served responses to Plaintiffs initial requests for admission and interrogatories demonstrated contested issues. A copy of those requests with Defendant's responses are attached as Bxhibit H.

24. I continued to be troubled, however, as to why those supplemental discovery requests were not in my files. I did confirm that I had received them by fax on February 7, 2012. I have a service for faxes in which they are delivered to m~ by the

Page 3 of5 49a

.,

service provider as an Adobe Acrobat (pdf) attachment to an email from the provider. But I rarely file those faxes when they are to be followed by the original letter coming by mail because I scan all mail and the scanned copy will be of far better quality than

. the fax.

25. Moreover, based on the email exchange I had with Mr. Lang where we were unable to agree on using email or fax as an alternate mode of service, I came to

. expect that Mr. ~g would either mail or hand deliver all discovery and motions. Consequently, after viewing the fax, I concluded that it was something we would deal with when it came in the mail.

26. So, prior to trial I conducted a search to ascertain whether the supplemental interrogatories and requests for admission were ever received I concluded that they were not received.

27. My conclusion is based on my office practices.

28. To begin with we have a very small office. It is two adjacent rooms which, together, form a rectangle which is roughly 24' x 9'. There are two desks and a small conference table" a bookcase, two metal cabinets and a small refrigerator. So, it is very difficult to lose something.

29. We do not maintain physical matter files; everything we create is stored electronically and everything we receive in paper form is scanned and stored in electronic folders. Once scanned, it goes into a box for shredding. The only exceptions exist to conserve paper, thus: (A) adversary's motion papers which we might need to take to Court for oral argument, and (B) our adversary's discovery responses with original signatures which we may need for trial. Once the motion is decided or the case is resolved, those documents go into the shredding box. We do not throw documents in the trash.

30. The structure of my electronic foldeIS is standardized. Thus, I have a template folder structure used when we open a new debt collection defense file. The highest level folder is given the matter name. Below that are several folders, one of which Is called "Discovery." Under the Discovery folder are two folders: "Requests by Plaintiff" and "Requests by Defendant". Within those folders we put the requests and there is a sub-folder in each - in the Requests by Plaintiff folder is a "Defendant Responses" folder; similarly, in the Requests by Defendant folder there is a "Plaintiff Responses" folder.

31. When I prepared the March 19, 2012 motion to dismiss the complaint based on Plaintiffs failure to answer interrogatories" I checked the matter folder and the only things in "Plaintiffs Requests" were a December 29, 2011 Request for Admissions and a December 29, 2011 Interrogatories. There was also a February 1,

Page 4 of5 50a

2012 letter from Gina Lo Bue, Esq. at Pressler and Pressler asserting that answers to interrogatories were past due.

32. 1 then checked the "Defendant's Responses'" folder and I saw iny former associate's January 30, 2012 letter serving responses to Plaintiffs interrogatories and admission requests. I opened it and confirmed that the responses were sent.

33. Thus, I completed, filed and served the motion to dismiss for failure to answer interrogatories on March 19, 2012.

34. Most importantly, there was nothing in my file reflecting any supplemental discovery requests. I would not have certified that Defendant had no outstanding discovery obligations unless I truly believed that to be the case - especially when my adversary could easily disprove the fact

35. I realized that there were only three possible explanations. One was that the requests were received and never scanned - which meant they were on one of the desks or on the conference table. Another was that the requests were put into the box for shredding either without being scanned or being scanned but misfiled. The Jast was that the requests were never received by mail. So, all I needed to do was check the desks, conference table and scanned box to determine if it was received.

36. The morning before trial, I checked the desks and conference table. I also checked the current box for shredding which contained papers back to 2011 - which was prior to February 7, 2012. The supplemental discovery requests were not found. Thus, the only conclusion I could reach was that they were not received.

37. As a subsequent check, I ran a search on my computer. When naming electronic files, my office uses the convention of putting the date tirst Prior to this year, the format was YYYY.MM.DD. Beginning this year, we omit the periods. This method means that files in folders are listed chronologically. Letters are dated as of the letter's date - not the day we receive it. As a check for the unlikely possibility that the supplemental requests were scanned but were thrown away, I ran a search on my computer for all files whose name included "20120207". None of the returned files were the supplemental requests. I also ran a search for "2012.02.07" in case the newer format had not been used but no files were found.

3B. Based on all of this, I can say with complete confidence that my office never received the supplemental requests by mail.

1 certify that the foregoing stammen" made by me are tlUe. 1 am aware that if any of the foregoing statements made by me are wilfuUy frm~ 1 am subject to pWlis1unent

s/Philip D. Stern Dated: April 25, 2012 Philip D. Stern

PageS of5

51a

•

Midland. Funding, LLC v. Olga Shaposhnikova, Docket No. SOM -DC-007607 -11 Certification in Opposition to Reconsideration Motion, April 25, 2012

Exhibit A

52a

4-

PHllJP D. STERN & AsSOCIATES, LLC

PHnJp D. STERN NJ aDC &zr$

[email protected]

INNA Rvo NJ Bar fJyu@phfHpstmLcom

ATTORNEYS AT LAW

JEPIS FILING COVER. SHEET Special Civil Part - Sussex County Superior Court of New Jersey 43-47 High Street Newton, NJ 07860

Re: Elizabeth Meloskie VS. New Century Financial Services, Jnc. Docket No. DC'()0669S.10

I enclose for filing:

1. Defendant's Reply Memorandum; 2. Reply Certification of Philip D. Stem; and 3. Proof of Service.

697 V AlJE{ S'rREBT, Surm 2D ~~OOD,NJ010~2642

(973) 379-7500 www.phiIipstem.com

January 9, 2012

These papers are in reply with respect to Docket Document No. 010.

Very truly yoms, s/Philip D. Stem Philip D. Stem enclosure(s) viaJBPIS

cc: Steven A. Lang, Esq. via regular mail (courtesy copy via email slang@presslerpressler.com)

Pagel 53a

"

Midland Fwtdi.ng, LLe v. Olga Shaposhnikova, Docket No. SOM-DC-007607 -11 Certification in Opposition to Reconsideration Motion" April 25" 2012

ExhibitB

54a

•.

stern, Phil ip D. <pstern@philipste rn ,com>

Midland Funding, LLC vs. Paris Paraskeva 7 messages

Philip D. starn <[email protected]> "To: [email protected],com

Motion· Reply attached

Philip D. Stern PHILIP D . STI!RN & i\.c;,cnOA rl!S. ,,(,C

697 Valley Street, Sule 2d Mlp~wood, NJ 070411 "',e" (973) 379·7500 "AX (973) 532·0866 pstern@philipstern .com VI ""''n. Ph IIIp Ste rn. com

Man, Jan 9, 2012 at 4:21 PM

NOTICE: This email is intended ONLY for the personal and confidential usc of the individual to ",hom rt is addressed. It may contain privileged or confidentia l information and may be an Attorney-Client communication Wlich, under laYv, must not be disclosed. If you are not the individual to y.,hom this email is add ressed, your revie..,.., dissemination, distribution or copying of this message is strictly prohibited. 00 NOT PRINT, COPY OR DISTRIBlJTE this email. If you do, you may be sued. Instead, please click "reply" and advise us that you received th e email in error or carl us, and then delete BOTH the original and reply emails, and remove them from your Delete folder.

~ 20120109.ROply.pdf 109K

steven A. Lang <slang@pressler·pressler.com> To: "Philip O. stern" <[email protected]>

Man, Jan 9, 2012 at 4:22 PM

Mr. Stem - J do not accept selVlce of motion papers by e·mall . please be gUided accordingly.

Sw- a..fang, f.611.

7 Entin Road

Parsippany, NJ 07054

Olfice 973·753·5137

Facsimile 973-753-5341

55a

From: Phmp D. Stem [ma!Jto:[email protected]] Sent; Monday, January 09, 20124:21 PM To: Steven A. Lang Subject: MId~nd Funding, LLC vs. Paris Paraskeva

(Quoted text hidden)

DscWmer-16:22:50 Man 09 Jan 2012

Thil c·mllllll1d any dncwncnt, accompanying Ihi" e:-muil C(lntlin informlltion "hich ill cnnfid:ntil1l antt'or ICRGII)' pri"ifcl:C(l Thi' cmlli! and lUI)' flies trunsmhtc:d \\lth It an: c:onfidenti.1 und inlcndc:d for plou:m@';fIhilip!oatcm.c:om. If ynu are not the in1c:nrb1 n:cipicnt. you a.rc

hcrd:y notificdthut Bl'Jy disclolitlrCo copyinll. di!;triblltloD. orthe tuking of uny IIctioD In reliance on the cODtents ofthlli c-mllU Informlltion. S !itridly prohi1:itcd and than the mcwnc:nullhould be returned to Stcven A. Lan!!, l!5q. immcdilltely. In this rcgurd, if you havc received tbls c-ma.il iu error. plCWiC Dot if)' \IS I:y rctum c-maif or tclephone: (973-753-5340), immecfll11cly delete the e-muifand 011 uttllChmcnts lind

cb1roy 1111 hard c:opic. of mmc.

Philip D. stern <[email protected]> To: "Steven A Lang·' <[email protected]>

good to knOy,. thanks

Phi1lP D. Stern PHILlPD. STURN AASmCIATl!S. LLC 697 VaJley Street. Suite 2d Maplewood, NJ 07040 VOIC!! (973) 379-7500 IIAX (973) 532·0866 [email protected] YtWit.Ph ilipStern.com

Mon. Jan 9. 2012 at 4:26 PM

NOTICE; This email is fntended ONl.. V fer the personal and confidential use of the IndIVIdual to Ythom It is addressed. It may contain priviJeged or confidential informatlon and may be an Attorney-Client communication Ychich. under lav., must net be disclosed. If you are not the individual to ",hom this email is addressed. your reviay" dissemination, distribution or copying of this message is strictly prohibited. 00 NOT PRINT. COpy OR DISTRIBUTE this email. If you de, you may be sued. Instead, please click I·reply" and advise us that you received the email in error or can us, and then delete BOTH the original and reply emails. and remove them from your Delete folder.

[Quoted ted ItIdden)

Steven A Lang <[email protected]> To: "Phlllp D. Stern" <[email protected]>

Mon. Jan 9, 2012 at 5:37 PM

Thank you. Just for the record, I am not being obstreperous. I used to serve you via e-maff aOO/or fax. You may, hOY/ever, recall that you routinely took the position that those modes of service are not permitted by the Court Rules_ You are correct_ We should either both follow them or both adhere

56a

to the almost universally accepted practice of accepting and serving via e-mail. Your choice. Meanwhile, the fact remains that your reply papers In this case have not been properly served.

7 Entin Road


Office 973-753-5137


e-mail [email protected]=eSsler ~

From: PhIUp D. Stem (malfto:[email protected]] Sent: Monday, January 09,2012 4:26 PM To: steven A. Lang Subject: Re: Mklland funding, LLC VS. Paris Paraskeva

[Quoted text hidden)

DsclillmDr -17:37:59 Man 09 Jan 2012

Th~ c.mwlund IIDY dlcumcau accompanying thlli c-mt1J1 eonluiD InfonnlStioD "hich lo; c:unfd:nt hd an&'or lepU)' privil~ Thill c:mllil

lind any fllCii tl'llDwlncd \\ith it un: contidcDtial and intended tor [email protected]. If you urc not the intcotbi rcciricot. you Ilrc

hc:rd:y notified that uny disclosure. copylnj!. dlslrlbutlon. or the tuklnH of un)' action in rclil1na: on the contents of thi. .. e-ml1i1 intormutilln.

k IotrEt Iy prohibited und thllt .he dlcumcnUi should be returned to ~tCYcn A. Lane. U!.q. Immcdlutely. In the. rcsurd, if you hl1ye n:cc:ivcd this

e.mail ia error, please notify lISt:)' retum c-mAll or telephone ('J73-7S3-"340).lmllu:diutely cklctc: tbe c-mailllnd n1lllttw:hmcnb lind

cbtroy aU bud eopicli of IiDmCo

Philip D. Stern <[email protected]> To: "steven A. Lang" <[email protected]> Cc: "Inna Ryu, Esq.'. <[email protected]>

Steven.

Tue, Jan 10, 2012 at 3:54 PM

I took the position regarding email Vthen, \\ithout asking me first if I v.ould accept service by email. you attempted to serve a motion at the eleventh hour by email I normally \\Culd have accepted it by that mode ifYte had a pre-existing understanding or you called and asked -- neither circumstance existed. Furthermore, I have taken the brunt from your firm in the past Ythen IaVvyers refuse to accept service by email or fax. I distinctly recall such an occurrence vdth Dale.

Every laYtyer Vvith Ythom my office exchanges materials by email have come to an expressed agreement

57a

Vtlth me about serving documents by email (for example, I have had a discussion Vwith Mr. Williamson of your office about emailing papers). I can also tell you that I have met responses for other lav.yers that their firms, as a policy. do not accept email service v.hUe other lav.yers do accept email service. My experience is that there is no universal practice. In the particular case you referred to, you took the liberty of emailing "",ithout ever discussing it wth me. The combination of your not having asked and mf experience wth other laYfyers In your firm refusing more convenient methods of service, caused me to indicate that service by email could not be presumed.

All that said. for the future. I am wiling to accept service by email of motions and discovery in ongoing open cases provided: (1) motions and discovery responses are in PDF format; (2) discovery requests are in PDF and Word format (so that v.e can readily prepare the response); (3) motions are emailed no later than 5PM on the date of service; (4) aU ''v.et-ink'' originals are maintained by you or, jf not maintained. you represent that Mat is emailed is an exact copy of the '\wt ink" original; (5) Vte YtlD not accept service of process via email; (6) \\B ¥till not accept service of post-judgment motions or notices of appeal by email (unless Yte specHically agree each time): and (6) you agree to accept service by email from my office under the same conditions.

PhilJp D. Stern PHILIP D. STURN & J\S!l)O AT us, LLC'

697 Valley Street, Suite 2d Maplewood. N1 07040 VOICU (973) 379-7500 (lAX (973) 532-0866 [email protected] \\WIt.PhllIpStern.com NOTICE: This email is Intended ONLY for the personal and confidential use of the individual to vdlom it Is addressed. It may contain privileged or confidential information and may be an AttorneY-Client communication Wlich. under 1aYf, must not be disclosed. If you are not the individual to "hom this email is addressed. your revie", dissemination. distribution or copying of this message Is strictly prohibited. DO NOT PRlNT. COPY OR DISTRIBUTE this email. If you do, you rmy be sued. Instead, please click "reply" and advise us that you received the email in error or call us, and then delete BOTH the original and reply emails. and remove them from your Delete folder.

[QUoted text hidden]

Steven A. Lang <[email protected]> To: "Philip D. stern" <[email protected]>

Tue, Jan 10, 2012 at 3:59 PM

Philip -I think we have to stick with the Court Rules. leaving asrde for the moment the fact that your proposal is a one way street, I am concerned that I may rnadvertendy fail to comply wIth one of your conditions. At least we tried.

58a

:1 J

~i

j

7 Entin Road


Office 973-753-5137


e-ma il slaog@presslercprsssier com

From: Phiip D. Stern [maito:pstern@ph; pstern.com] Sent: Tuesday, January 10, 20123:54 PM To: Steven A. lang Cc: rnna Ryu, Esq.

[Quoted text hidden!

[Quoted text hidden)

Dsctairrer • 15:59;46 Tue 10 Jan 2012

Thl~ r::·m.uJ undllo), mcrurncnhi uceoml'lsn)'/nu Ihj~c·rnllil cuMllin infonnut ia n "hick iii cllnfmliul unll'ur krllll)' p ri ... l1 c1ocd. Thiscrn.iI

lind l\!l)' filolTMliInitt l;ll .... ith it IIrc confident/III lind int ended lor f1~ltm(u.if!hilip!>tcm . com. If ynu nrc II Ol lhe inlcnl.i:d rcdr/cnt, you IIrc

hcrd:y notified that an, disclo!iUll:, copyin!!. db.1ribution. or the tukinll of un)' Ict ion in rcliunct on the cnnl tnl~ of this Cornui! Inforrnution. is ~ rjctty prohi tiu:d WId Ihlt the documents should be return ed tu 5:11:\'CO A. Luo!!. L!.~q. imlntd8Ic!)!. In thb n,:g.urcl. if )'011 hU\1c f(:cci~'cd Ihi~

('-!nail in error, pita$' not ify Ult tr return e·mail Dr telephone (1)7J · 7.n-S34{J), itnmediulely delete th~ e·rnall wnd Il ll lttlllChment~ untl

tlo:.::!.l.roy all hud C$pit~ of )I.Ilmc.

Philip D. Stern <pstern@philipstern,com> To: "Steven A. Lang" <slang@pressler· pressler.com>

I don't see hov. it's one 'MY. but ok.

Philip D. Stern

[Quoted text hldd(!nj

Tue, Jan 10, 2012 at 4:40 PM

59a

Mzdland Funding, LLC v. OlgaShaposhnikova, Docket No. SOM-DC-007607-11 Certification in Opposition to Reconsideration Motion~ April 25, 2012

Exhibit c

60a

PHILIP D. STERN & AssOCIATES, LLC ATI'OlU'mYS AT LAW

697 Valley Street, Suite 2d Maplewood, NJ 01040 (973) 379·7500 Attorneys for Defendant, Olga 8ha hnikova

l\m)LAND FUNDING u.c, Plaintiff,

vs.

OLGA SHAPOSHNIKOV A, Defendant.

TO: Steven ~ Lang, Esq. Pressler and Pressler, LLP 7 Entin Road Parsippany, NJ 07054-5020 Attorneys for Plaintiff


SPECIAL CIVIL PART

Civil Action Docket No. SOM-DC-007607-11

INTBRROGATORIES WITII PROOF OF SERVICE

PROPOUNDING PARlY: Defendant" Olga Shaposhnikova

RESPONDING PARTY: Plaintiff, Midland Funding, LtC

SBTNO .. ! ONE

The Propounding Party requests that the Responding Party respond to the following discovery requests in accordance with the Rules Governing the Courts of the State of New Jersey. The Propounding Party has used certain words with defined meanings as set forth in the Definitions section, below. When responding to tbese interrogatories, please note: (a) You are required to furnish all infonnation available to you, your agents" employees

and attomeys. See, R. 4:17-4(a). (b) It is pennissible for interTogatories to include a request for a copy of a document.

See, R. 4:17 .. 1(a). (c) In response to any interrogatory, you are permitted to provide copies of business

records when the answer may be derived from those records so long as the burden of deriving the answer is substantially the same for the Propounding Party and the Responding party. See R. 4:17-4(dJ.

(d) As stated inR. 4:17-1(b)(3), you are not permitted to assert that any requested information is privileged wrless you comply with R. 4:10-2(e) which requires,

Page 1 of8

61a

-----------------------------_._. __ ._._--'

among other things, that you expressly assert the privllege and describe ~e nature of the documents communications, or ·things not produced or disclosed m a manner that, without rev~a1ing the privileged information, will enable the Propounding Party to assess whether the asserted privilege applies.

Philip D. Stern & Associates, LLC

Dated: January 26, 2012 By: ~

PROOF OF SERVICE

In accordance with R. 1:5 .. 3, I certify that the within discovery requests were served in accordance with R. 1:5-2, by ordinary mall, postage prepaid, mailed on the date set forth below on:

Steven A. Lang, Esq. Pressler and Pressler, LLP 7 Entin Road Parsippany, NJ 07054-5020

Dated: January 26, 2012

DEFlNmONS

The following words, when used with the initial letter capitalized, has the designated meaning: CA) "Account" means the alleged indebtedness which forms the basis for your claim. (8) "Declamnt" means a Person who made a Sworn Statement. (C) "Natural Person" means a human being. (D) "Original Creditor» is the Person with whom the Account was originally created

for Defendant. (E) "Person" means any entity and includes, without limitation, a Natural Person, sole

proprietorship, limited liability company, government or governmental subdivision, and any type of partnership, corporation, association, organization, . institution, or finn.

(F) "Sworn Statement" means a written statement relating to, concerning or regarding any fact involved in this lawsuit which was made Wlder oath or permitted by court rule or statute to have the same effect as a statement made under oath including, without limitation, an affidavit, declaration made pursuant to 28 U.S.C. § 1746, and a certification made pursuant to R. 1:44(b).

(G) "Record" includes all recorded information including "documents" as used in R. 4:18-1(a) and "writing" as used in Evid.R. 8Ol(e).

Page 2 of8

62a

Midland Funding, LLC v. Olga Shaposhnikova, Docket No. SOM-DC-007607 -11 Certification in Opposition to Reconsideration Motion, April2S, 2012

ExhibitD

63a

Jan.31. 2012 2:20PM

PRESSLERANDPRESSLER,LLP COUNSaLORSATlAW

7 EnUn Rd. PIli3fppany, NJ 07054-6020

Off: (973) 753-5100 Fox: (973) 763-6353

NY~ PAOIlim NIrCIellI, ~1NJ'ml flWDSr. fJAJoQOU'~ DlMENrt TNWAPIUNQ JlWG(ELIrI.lJDO 0lC.R.",,,1CY) W(:HElL £ m1NCNJ lin) awss. srust9(tONlv) RlUHGlUO ",,I« OPAl

305 badtwy,9" Fbor 804 WeslAverwe NGWY~ t« 10001 . Jenl1nIqM1. PA 1&046 ora: (518)222.7929 Ofrte (215)576-1900 Fax: (973)~ Fax: (213) m.7299

E~p~£RlSSlqrmn Please Rej1ly Tit.

IXJ NOW Jetsey Olitv ( 1 Naw York Ofb l ) PeIIns)'IItanIa 0!'IJc;Q

January 31.2012

VIA FACSIMILE 973 .. 532 .. 0866 AND REGULAR MAlL

Philip D. Stem~ Esq. Philip O. Stem & Associates 697 Valley Street, Suite 2 ... D Maplewood, NJ 07040

Re: MIDLAND ~ING, LLC V. OLGA SHAPOSBNIKOVA Docket No. SOM-DC-007607-11 P&P File Number 8263754

ne,r Mr. Stem:

No. 7355 P. 2

IWIElt SWNAH DW!LIE8Bl GtlAIUOBUE(NJ&H't) mWMDaTOCC(pA~Y)

~J.flAI)()fM

~P.COOC1B1I

1Wl'lt .l1lPKl! GlHH.OWK'f

J.llQIAB. ... PE11RS RtrAE.AYOIJI

'DIOI4'8 t.l.1R0GHI STW9f A I.ANCI

Reference is made to your January 26, 2011 letter. The time for your cHent to have served interrogatorIes expired. Thus. unless you. obtain an Order permitting you to serve interrogatories out of time. we will not be responding to them.

In addition, enclosed please find Plaintiff Midland Funding, LLC·s fully responsive answers to Defendant's Initial Request for Admissions.

Please be guided accordingly.

Very trnly yours,

~~TI1RESS~ L~

SteV'en A Lang

64a

Midland Funding, LLC v. Olga Shaposhnikova, Docket No. SOM-DC-007607 -11 Certification in Opposition to Reconsideration Motion" April 25" 2012

ExhibitE

65a

PHIlJP D. STERN & AsSOCIATES, LLC

FHlUP D. STERN NJ . DC Ba"

pstem@philips!eT7Lcom

fNNA R YU NJ Har

[email protected]

Steven A. Lang, Esq. Pressler and Pressler, LLP 7 Entin Road Parsippany, NJ 07054-5020

AT TORNE Y S A T L A W

Re: Midland Funding, UC v. Olga Shaposhnikova

697 VAllEY STllEET, SUITE 2D

MApLEWOOD, NJ 07040-2642 (973) 379-7500

www.philipsterrL com

February 1, 2012

Docket No. S()M-DC-007607-11 _ _ .. ___ __ . __ .. ___ _____ _ _

Dear Mr. Lang,

My office is in receipt of your letter dated January 30, 2012, addressed to Philip Stern. Thank -you for enclosing Plaintiffs Responses to Defendant's Initial Request for Admissions.

Your letter, however, said my client served her Interrogatories out of time. This is not true. Defendant's Answer was filed and SOlVed on December 27, 2011. Thereafter, Defendant served interrogatories on January 26, 2012. R. 4:17-2 governs the time to serve Interrogatories and it states in relevant part, "Initial interrogatories shall be SOlVed by each plaintiff as to each defendant wIthin 40 days after service' of that defendant's answer and each defendant shall sOlVe initial interrogatories within said 40'day period." R. 6:4-3 reduces the time for Special Civil cases to 30 days.

Defendant here served her Interrogatories within 30 days from service of her Answer. Service. of interrogatories is complete upon mailing. R. 1:5-4. Please respond to the Interrogatories within the time prescribed by the Court Rules.

Very truly yours,

em-/~-, Iona Ryu enc!osure(s) via regular mail and email

cc: Olga Shaposhnikova

Page 1 66a

Midland Funding, LLC v. Olga Shaposhnik.ova, Docket No. SOM-DC-007607 -11 Certification in Opposition to Reconsideration Motion, April 25, 2012

ExhibitF

67a

i .j

~

•.

IdITCKa.l L WIllIAUSON PlllH't) . FIWlClSX.GRD.IES~&PA)

DARRENH. TNWCA(HJ' NY) .IOo\NHE l. O'AlAUZIO (DC.R. NJ & NY) t.UrCHEll &ZlPICIH lNJ & tI1) QWaB. Slllt!RrrrONl.~ RAlPHCCUO tNJ.N'f &Po\)

March 23,2012

PRESSLER AND PRESSLER, LLP COUNSEllORS AT LAW

7E1tUnRd. Parsippany, NJ 01054-5020

Off; (913) 153-6100 Fax: (913) 753-6353

NY Ok PA Oltte 305 BroacMay. S" floor 804 West Avenue

NawYolk. NY 10007 Jenldntown. PA 19048 ·Ortice: (516}222·7929 omee (215)578-1000

Fax: (973)763-6353 Fax: (215) 516·7299 E-MAIL: Pmss!et@PrassJar·Press!eLCOJn

Please Reply To: lX)NffNJerseyOffice ( JNewYomOftico ( IP8lInsyfvanla0llJce

VIA E-MAIL AND REGULAR MAIL

Philip D. Stem, Esq. 697 Valley Street, Suite 2·D Maplewood, NJ 07040

Re: Midland Funding, LLC v. Shaposhnikova Doeket No.: SOM-DC .. 007607-11; P&P File Number 8263754

Dear Mr. Stem:

DmEU. SULlIVAN OAlEL Gaeat GIHM.tlO BUE (HJ I NY) EOWARD S1'OCIC(pAOHl't) HICHOWJ.f.CADOfM CHRISTOPHER P. CXI()G8IU

DARn4.lUI'las GLEffH.CtMSKY ~tPmR$

RlrAE.AY0U8 11iQIIASu. BaOCWl

6TEVEHA.~

OFFICEIiOURS: lbIcJ.,.lIIIncfft: 8n9Jn\ r-.a.n.7~ ~~

By letter dated February 7, 2012, I served supplemental requests fur admissions and supplemental interrogatories. I have provided a copy of the letter and a copy of the supplemental interrogatories under cover of a letter of even date. That letter addresses a frivolous motion you filed seeking an order dismissing the complaint, Your client likewise failed to respond to the supplemental requests for admissions, a copy of which is attaohed, While that failure is not relevant to your motion, it is relevant to & 4:22-2. In light of your client being deemed to have admitted the subject matter ofeaoh request for admission, I will be filing an application for summary judgment. Before doing so, I write to inquire as to whether your client wishes to make a settlement offe.'.

Please be guided accordingly.

Very tmly yours,

68a

Midland Funding, LLC v. Olga Shaposhnikova, Docket No. SOM-DC-007607 -11 Certification in Opposition to Reconsideration Motion, April 25" 2012

ExhibitG

69a

PHWP D. STERN & AsSOCIATES, LLC

PHILIP D. STBRN NJ. DC Ben [email protected]

Steven A. Lang, Esq. Pressler and Pressler, LLP 1 BntinRoad Parsippany, NJ 07054-5020

ATTORNEYS AT LAW

Ie: Midland Punding, LLC v. Olga Shaposhnikova Docket No. SOM-])C.()07607·11

Dear Mr. Lang,

691 VALLEY STREET, SUl'I'E 2D MAPLEWOOD~ NJ 07040-2642

(973) 379-7500 www.philqJstentcom

March 30, 2012

This letter responds to your letter suggesting that you can rely on PJaintifl's Supplemental Request for Admissions to support a summary judgment motion. You cannot - nor ean you rely on them at trial.

Requests for Admission cannot be used as a trap to reUeve a party of proving its case especlally when that party has already disputed the facts or relate to facts which are patendy impossible (or that party to admit or deny. Moreover, Requests must be limited to specific underlying facts and not ultimate Cacts.

Requests 48, 49~ 50 and 51 related to an alleged transaction between Plaintiff and a third party - Information that is patently beyond Defendant's knowledge and beyond any knowledge Defendant could obtain. Thus, they must be deemed denied

The subject matter of Requests 1 through 41 are already dealt with in Defendant's responses to Plaintiffs initial Requests for Admission and interrogatories - some of which were admitted and some of which are obviously in dispute.

In Ught of the foregoing, if you would like to seek an adjournment of the tria1 coupled with a consent order that Plalndff will answer interrogatories and Defendant will respond to the supplemental interrogatories and admission requests by an qreeab1e date, I would consent.

<7lMay~rrOA_ :; ~ via regular man and email

Pagel 70a

Midland Funding, LLC v. Olga Shaposhnikova, Docket No. SOM-DCM 007607 ·11 Certification in Opposition to Reconsideration Motion, Apri125, 2012

ExhibitH

71a

..

PHILIP D. STERN & AsSOCIATES, LLC ATTORNEYS AT LAW

PHILIP D. STERN HJ a DC Ball 697 V AW..Y STREEl', SUITE 20 [email protected] MAPLEWOOD, NJ 07040-2642

(973) 379-7500 lNNA RYU HI Btzr www.phUipstem.com

[email protected]

Steven A Lang, Esq. Pressler and Pressler. LLP 7 Entin Road Parsippany, NJ 01054-5020

Re: Midland Punding, LLC v. Olga Sbaposbnfkova Docket No. SOM .. DC-007601·11

Dear Mr. Lang,

January 30, 2012

I enclose and serve Defendant's responses to Plaintiffs requests for admissions and interrogatories.

Very truly yOUl'S,

~ lJUlaRyu enclosure(s) via regular man

cc: Olga Shaposhnikova

Pagel

72a

PHILIP D. STER~ & ASSOCIATES, LLC ATrOl\NBYS AT LAW

697 Valley Street, Suite 2d Maplewoods NJ 07040 (973) 379-7500 Attorneys for Defendant, Olga Shaposhnikova

MIDLAND FUNDING LLC, Plaindff.

VS.

OLGA SHAPOSHNIKOVA, Defendant.

SUPERIOR COURT OF NEW JERSEy LAW DMSION - SPECIAL CIVIL PART

SOMERSET COUNTY

Civil Action Docl<et No. SOM-DC-007607 ·11

DEPENDANT'S RESPONSES TO PI.AINTIFFS PIRST SET OF ADMISSIONS REQUESTS

Defendant, OLGA SHAPOSHNIKOVA, by way of response to Plaintiff's Requests for Admissions" says:

1 .. You applied for credit privileges with CHASE BANK USA, N.A.?

ANS. Admitted.

2. You promised to pay for the purchases made on CHASE BANK USA, N.A. Account Number 4266841180574707?

ANS. Defendant denies the statement as written but admits that she is responsible for paying for any purchases she m.ade or authorized by bel" on any credit card aeOOWlL .

3. You were extended credit privileges under CHASH BANK USA, N.A. under account number 4266841180574707?

ANS. On advice of counsel, denied. As written, the request cannot be understood. Defendant admits, however, that she did have at least one account with Chase Bank.

4. You or persons authorized by you made purchases and/or re~eived cash advances udUzing CHASE BANK USA1 N.A. AccOWlt Number 4266841180574701?

Page 1 of3

73a

L

ANS. Denied 'as Defendant can neither admit nor deny. Defendant recalls making at least one purchase or cash advance for an account with a Chase-related entity but bas no recollection as to the account number. Subject to receipt and review of the billing statements which are Dot in her possession, she may modify this respo~se.

5. You received monthly statements concerning CHASE BANK USA, N.A. Account Number 4266841180574707, specifying previous balance, new ptirchases, payments, finance charges, minimum payments and new balance?

ANS. Denied. ~end8nt recalls receiving statements In connection with aceounts she had with Chase-related entities but has no recollection of any specific statements associated with a particular account nwnber. Subject to receipt and review of the blUing statements which are Dot In her possession, she may modify this response. Without admitting the periodic cycle, Defendant does recall receiving mor~ than one written request for payment from Chase BaDk.

6. You did not contest the amounts reflected on the monthly statements within the 60 days provided by the Pair Credit Billing Act (15 U.S.C. § 1666)1

ANS. Objection and, on advice of counsel, denied. As Defendant has not asserted a defense under 15 U.S.C. § 1666(e), the request is beyond the scope of discovery as 15 U.S.c. § 1666 merely imposes obligations on a creditor Who receives a biUing error nodce and allows for defenses when those obligations are not satisfied. '

7. CHASE BANK USA, N.A. Account Number 4266841180574707 which is the subject matter of this suit went into default for non-payment?

ANS. Denied as Defendant can neither admit nor deny. Defendant does not recaD receiving any written notification from Chase Bank USA declaring any account to be in default for any reason.

8. The sum of $5,137.57 due and owing on CHASE BANK USA, N.A. Account Number 4266841180574707 in this complaint is accurate?

ANS. Denied as Defendant can neither admit nor deny. Without knowing all of the debits and credits on the designated account, Defendant Js unable to respond.

9. You agreed to pay attorney's fees in the event the account which is the subject matter of thIs suit was referred to an attorney for collection?

ANS. On advice of counsel, denied.

Page 2 of3

1

1

.-1

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10. The balance due as set fonh in the last,monthly statement sent on CHASE BANK USA" N.A. 'Acco\Ul~ Number 4266841180574707 before referral to collection in the' amount of 5,137.57 is, in fact, due and owing?

ANS. Denied. See response to #8.

11.00 you admit that MIDlAND FUNDING LLC is the owner of CHASE BANK USA, N.A. Account Number 4266841180574707?

ANS. Denied as Defendant can neither admit nor deny. '

Philip D. Stern Be Associates, LLC Attorneys for Defendant, Olga ShapomnU(ova

Dated: ,b ~O C d10 \'~

Page 3 of3

7Sa

i

P1mJP D. STERN Be AssOCIATES, LtC ATrORtfflYS At LAW 697 Valley Street, Suite 2d Maplewood, NJ 07040 (913) 379 .. 1500 . AttomeyS for Defendant, Olga

.§haposhnlkova SVPERlOR COURT OF NEW JERSEy

LAW DMSION - SPECIAL CIVIL PART SOMERSET COUNTY MIDLAND FUNDING lLC,

Plaintiff,

Civil Action . \"5. Docket No. SOM .. DC-001607-11

OLGA SHAPOSHNIKOVA, Defendant

DEPENDANT'S RESPONSES TO PLAINTIFF'S FIRST SET OF

INTERROGATORJES

Defendant, OLGA SHAPOSHNIKOVA, by way of response to Plaintiff's Interrogatories, says:

1. Set forth in detail each defense which the defendant has to the above-entitled cause of action, and in detail, give the factual basis for each, setting forth dates, places, names and addresses of persons present, or involved in the convemations.

Attach hereto copies of all writings.

ANS. ObJecdon. On advice of counsel, see Defendant's Answer 8S to defenses.

2. Do you admit that you owe the plaintiff the amount of $5,137.57 on account number 4266841180574707 as set forth in the plaintiffs complaint?

a) If you state that you do not owe the amount set forth in the plaintiff's

complaint, set forth the total amount that the defendant admits owing on CHASE BANK, USA, N.A. on account number 4266841180574707.

ANS. I do not know how much lowe on the alleged account, if anything as I have no knowledge of the alleged account. Subject to receipt and review of the bUling statements which are not in my possession, I may amend response.

b) If your answer to this question is in the negative, state fully and in detan your reasons therefore.

Page 1 of4

76a

..

ANS •. See response to #2(a).

3. What, if· any, credits, allowances or deductions do you claim to be eo.titled to which have not been given by the plaintiff with regard to the account which is the subject matter of plaintiff's complaint? In answering this interrogatory t specify the amount of each credit, or state in detail on what you base the claim for each stich credit, and attach copies of canceled checks and/or receipts showing proof of payment.

ANS. On advice of counsel, as I do not recall specific details about this alleged account, I may amend this response to assert such credits, allowances or deductions after a tun statement of the account's debits and credits have been provided by Plaintiff.

4. Did you receive monthly, periodical statements from ~HASE BANK, USA, N.A. on account number 4266841180574707 which set forth the total balance due and owing? Please attach any and all statements that you have in your possession pertaining to said account.

ANS. I recall having received more than one statement from Chase Bank, however I do not have a specific recollection as to any particular statement and whether any of those statements involved the designated account. I do not have any statements in my possession pertaining to the designated account.

5. If the defendant claims any error or inaccuracy in the dollar amount claimed to be due and owing in plaintiffs complaint which is not elicited by the foregoing interrogatories, identify and describe same.

ANS. On advice of counsel, as I do Dot recall specific details about this alleged account, I may amend this response to aSsert such credits, allowances or deductions after a full statement of the account's debits and credits have been provided by Plaintiff.

6. Please list aU addresses at which you resided between the dates of 06/19/08 to

11/30/09. Attach any and all documentation provJng your place of residence such as copies of any electric bills, telephone bins, lease and/or mortgage agreements and a New Jersey Driver's license.

ANS. Objection. On advice of counsel, the request for documentation is . improper. However, at all times relevant, I have resided at 11 East Franklin Street, Bound Brook, New Jersey.

Page2of4

77a

7. Did defendant utilize a checking account in 20091 If yes, please provide:

a) The name of the bank b) The account number c) Any bank statements currently in possession of defendant pertaining to

same.

ANS. Objection. The request is improper as It is beyond the scope of discovery as they have no tendency to prove or disprove any element of Plaintiff's cause of action. Moreover, such records are confidential, State v. McAllister, 184 N.J. 17 (2005), and the request improperly seeks to abuse and harass Defendant. Subject to objection, if Plaintiff can proffer how the requested Jnformation is relevant, it is subject to an appropriate protective order.

8. Identify all persons whom you expect to call as fact witnesses and expert witnesses at trial' As to each, state the subject matter for which they are expected to testify. As to the experts, state the substance of the findings and opinions to which the experts are expected to testify, and a summary of the grounds for each opinion.

ANSI Objection. WIth respect to expert witneaeB, there are none at this time and, with respect to lact witnesses, the question is improper as it invades the attorney work .. product privilege. Subject to objection, Defendant may call any and an individuals as fact witnesses who are identified by name or description in tbe pleadings, discovery requests or discovery responses including, without limitation, those persODS identified in produced documents.

Page 3 of4

78a

ee-26-2012 10:02A DE ;AIT MRIETA INSTlTUT 732CT161 A: 97353208S6

CERTlPICATlON

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are Willfully. falset I am subject to punishment.

P.l

I certify that the copIes of the reports annexed hereto rendered by pro~ed expert witnesses are exact copIes of the entire report and/or opinion rendered by tbemj that the existence of other reports or opinions of each of said experts, either written or oral, are unlmoWD to me; and If such become later Imown or available, I sball serve . them promptly upon the propounding party.

Dated: 01, 2.~.2.0'2.

CERTD1CATION AS TO FACSIMILB SIGNATURE

I hereby certlJy that I am the attorney offering the foregoing document, that the affiant acknowledged the genuineness of the slgDature and that the document or a copy with an Original signature aft1xecl will be flied if requested by the court or a party •

. lima Ryu

Page4of4

79a

·, • ,.. type CIt deIrtI prtnId fnfanna8cA.

New Jersey JudicIary Superior Court - Appellate Division

CML CASE INFORMATION STATEMENT ·JUN 20 2012 ~.

---------------------------------1111.E lH FULL TRIAL cou't~AQeNCY

Vi. . M"zdlandPunding,ILC .. Plamti1J I SOM-DC-7607 .. U

OJpShaposbDikova. Dera2dan1 __________ A~j --...4_8 0 0 ._1_1_----1

=-P.McDormott,Jr~EIq. I ~FIIndl .... u.c == _____ -_-__ -_-__ ......... ~~IL-~crrv-arsa......:·p.-~--y--....II ... ::-J_:re...6I_:_0_S4---,1 __ (_9_73_)_15_3-0_~_lOO __ _ REIPONDENNAtTORNEY· !MAl1.ADOR&SS: Phili Stem.COID

NAMe Philip P. Ster,l, Esq. "'sn&T~~AD~DReSS~-";"'- - ..

697 Valley Street. Suite 2d CI1'Y

Maplewood

.............. -_.-... _----------------------------GNE DATEAND SlSMMARVOF JUDGMENT. ORDER. OR oeC1S1OH BEING APPEALED AND A1TACH A COPY:

Judament entered April 4,2012. Ordtt dcnymg PIailUift's recoufderadon motion filed May 18,2012. COPlBS AU A1TACHBD TO PLAJNTIFP-APPELLA.'IrS CIVIL CASB ~PORMAnON STATEMI!NT

Oves.NO

Iso, au tho Older bMn prapetIy CIBItlftecIal Ina! pursuant co B. 4:42-27 (If not.leawe to appeal must be SOught. B. J:2.4.2:5-6) 0 Y!8 [] NO

(lfCha 0Rfet haa bean ceIIffied. 8UaCfI. CDgd1er wlth a copy aftltD order, a copy of die c:omp!afnl or any other raIoWlt ~gs and a brief explanation 88 to why the order qualHl8d for c:eItfftcadon pwsuant to B. 4:42-2.)

MAt lIlY crarms d1smfssed without prejudice?

"so, _en and IndIcata any agnrernctnt betwaen the pattfes conceming future dlsposltion of It\osa dafm8.

[J VES • NO

OF FAC16AND PROCEoURAL HISTORY:

P1aimi&'faJ1ed to servo npptenaatal nquosts Cor admission in a numnet petmlttccl ullder the Court Rules. Aft.or Plaintiff gave aoticc to Dal"endal\t oC Plaintifl's CODCI\JSioD that the requests were deemed adndUed and Its intent to use the requests at trial, Defendant infollllod PJalAd1ftbat several maLtets V. the ICqU=S were dready deDJed. or imptopcr. At trial, IJalntiff'marIccd the supplemental requests for idaiJficatioft and thOl1 o1fered them lato ovldeueo. Defeadanc objected. to IheIr admllaioD bccauac (1) they were not properly served, (2) they scusht to prove the ultimate eanclwdon ~ tho case. W (3) Ibey soupt to deem admiued facts whlcb PlaintifFknew were in disputG. The trial court &UStaiDed the objecdoa. Plaiad1f oftCrecI no om_ proofS:meI tho c:4SO was dismissed. Plaiutiffmoved for reconaidctadOD. PlahUlft'argueci that faxed requests should be deemed good servfco IlOtwithsumdiq that PJaimift's counsel had pmiously insisted that counsel strictly adhctc to 1he service rules.

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. .-~ ? TO THE exTENT POSSIBLE. USTTH& PROPOSED ISSU1!S TO BE RAISED ON THEAPPEALAS THEVWlLL BE DESCRIBED IN

APPROPRIATE POINT HeADINGS PURSUANT TO B. 2:8-2(a)(S). (Appellant Dr cross-appel1ant only.,: (I) Whether the trial judge acted properly within the scope ofhls dlsctetlOD ill not admittiDginto evidence undenied admissloll ~ucst8 where the requesrs were not set'Ved iDa manner permitted under tho Court Rules, and the ~ lSOugbt CO admit the ultimate facts as well as 6cIs disputed in previous clisc:overy responses. (2) Whether the time to respond to requests for admission begios to run where defense counsel pIOVides a detailed tq)onadon supporting position thaS ctiacoVCly requesrs Wete DOt received by mail and pJaintitrs counsel fails to ptOVide any proof of scmce. (3) Whether PlaintifFs dlscovCl)' request was aD Improper use ofrcquests for admissioD by attempting to pmve the u1tUnate facts. to stipulate to fads aln:lldy iu dispute, and to relievo PlaiDdtT or its plOOfburck:l as to facts unkDowabl0 to Defcmdant. ---------_ .... ~---------------IF YOUAREAPPEAUNG FROM A JUDCMeNT eNTERED BVA TRIAL JUDGE Sl"mNG WITHOUT AJUttY OR FROM AN ORDeR OF'nie

1'RIAt. COURT. COMPLE1E THE FOl.l.ONING:

1. Did the tdaJ Judge lasue cnI ftndlngs ar an opfnlon? If 10. en what date? 414n.Ol2, 511812012

2. DldIUt tIfaIJudge fasua WJ'Ileft tlndtnga or an oplnfon? If 10, on what date? ~51:.=.18l2O=-wl.::;.2 __ _

3. Win the trial judge ~ tmng a atatemant ot 8ft opinion pursuant to B- 2:fr1(b)?

cauuon: Befn you Indfcate ttla1 tbDnI was n.llhor ftndlngs nor an aplnlon. you ahaufd !nquire cfthalrlaljudga tD det8rmfn& wMtherfindinga or an opfnfCn was placed on Ihe record out of CGunseI"s JWSeftCe or whether the judge WUI bu tmng a statement or optnlDn pureU8rd to lL~1{b'.

DATE OF YOUR INQUIRY: ____ --

1. ISTHEREANYAPPEALNOWPENDtNGORABOUTTOBEBROUGHTssFORE1HiSCOURTwHlCH:

fA) Arises flam aubstantlaJlylhB aame cue at c:cntrovarsy as thl8 appeal?

(8) InvoWeG an Issue tMt Is substantlall, the aame, srmtar or related to en fsaue In this appeal?

2. WAS llEREANY PRIORAPPEAL lNVOLVING THIS CASE OR CONTROVERSY?

IFlHEANSWER TO EITHER 1 OR 2ABOVE IS YES. STATE:

DYES .NO

OVES .NO

OYES .NO ClseName: Appellate DlvIIIoft Dockat Number:

elva appeala 818 aaeened for sutMrliUlOn to U\Q CivfI Appeuta SaUfament Program (CA8P) to detennb1e thoft pa1eAti8J for ~Gt. In tfIo a!tenu1lNe. a Ifmpllftcatlon of the Iawes 8ftd1i\J other maIt8ra 1hat may aid In Iho cll8poIition or handllnI dIM appeal Pfuse oonaIdetaa.e wb8d ..apondintJ to etta fc!GwraTg questfGft. A nagatlwt respanse wDl not neceuafUy nd& out the schsdUUng of a pteargumunt c:onfeIenc:lD.

StaIe\\fleCheryou thfnk thIS cue may benaftt tram B CASP confIrunt:a. 0 YES • NO explain your 8ft$WGr;

fa the complaint. PlaiDtiffaIJegeA to be the assignee of a craftt card aCCOWlt. Plaintitrld.ased to 8DSWer mumopaies and attempted to prove its entire c:ase through supplemental mquosts· for aclmjestOIl. PlaintUfhas )let 10 show any pmofdJat it bas ItBDdina or that theIe Is Jiabnity on me account. Under these cftc:umsIancos. DefeDdmlt is unwilUD8 to pay anything.

1--------• cedIty thai contIfentIal ~nalldentlfter$llave been redacted ftom documoma now .. Jbmftted to the court. and wm be redaded tram 811 dacumenIs SUbmitted In the future fn aCcordance with Ru!e 1:38-1(1».

~t. Olga SbaposImikova ----- PhiJip'D. S~_Esq __ . ______ _

Nama of Appellant or Relpendent /?rrr;=orc.u-or-,~ntrl~~ June 18. 2012 ------... -------

Date Slgnatunt of Counsel of R8card (or your 81gn1dme If not t8JnS8n1ec1 by COUR881)

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Documents

PLAINTIFF'S REVISED APPENDIX - Philip D. · PDF file- 5/18/12 Order Denying Reconsideration with Tentative Decision Annexed 5. Plaintiff's Motion seeking Reconsideration with Brief