it please the court the funding is here today to ask this courts to reverse the decisions of the underlying court the nine the motion to compel arbitration and striking he did it midland  provided in support of that motion to compel arbitration the poem unary issue for this court is what standard of review applies pursuing to cases such as hollingshead and hubert vs dow the  review in this instance where you are determining a motion to compel arbitration as well vs dell provides that motions to strike exhibits are also subject and it's subject to a do no go state of review because no evidentiary hearing was held in this case there was no light witnesses there was no credibility determinations of lot of live witnesses instead this court has the same information that the underlying court has you have the declaration of michael berger you have his deposition you have the exhibits attached to mr berger's declaration to make your determinations so this court can apply to novo standard the first issue after the standard of review is whether the court in appropriately struck the exhibits that we provided in support of our motion to compel arbitration and the court there found that it was not appropriate that the exhibits were not admissible because they were not supported by sufficient foundation and they were improper hearsay because mr berger declarant did not work for citibank where these documents from most of these documents are derived from and he was not he didn't he did not have sufficient personal knowledge this was there this was error because rule two thirty six expressly provide that when there is a lack of personal knowledge it goes to the weight of the business record and not the admissibility of it so the court erred erred by striking the exhibit entirely they do not need to for business records as a score is well where you need to be the author or involved in the creation of the documents which is the implication of the circuit court was relying on here because mr berger didn't have sufficient personal knowledge but you need to satisfy the business records exception of the hearsay rule is the person that declared needs to know the business and the mode of operations here mr berger provided that information has he knew of how the documents i received from a company like citibank the original creditor and then processed by me at the end into its database in order to serve the account service the account and then it is required parties are still admissible when a company like midland incorporates and relies upon those documents in its ongoing business and that's exactly what mr berger testified to is what i just explained hundred they upload the documents from cit bank and use those documents in its regular course of business and allowing the third party records to come in under the hearsay rule is not inconsistent with the business records exception in business record and that accuracy exists because without that accuracy a business would not be successful it needs its business records to be success in order to be successful and therefore types of documents not just the bill of sale and the affidavit of sale that we received but also the account statements and the other account information that we see that receives an x l file that could be deemed computer records right so all of those records that we receive from the business are also trustworthy and that we're going to get every cases of psych news horrors you know situation right exactly and you had east east west logistics i'm sorry if i don't have the full name off the top of my head it was logistics bank of america versus land from this district as well where it's in the financing sector where you're dealing with loan agreements or mortgage servicing agreements and the parties and the finance there were not necessarily part of the original transaction where a lo a mortgage was given however over the course of time as it happens in business it was sold to a different entity and they needed to rely on those records from the original creditor just like here we relied on citibank to  be able to continue to service and work that loan or mortgage and finally there was one further in the show trust you trustworthiness that citibank provided here in its bill of sale it represented and warranted that the documents were accurately put into its database not of stock that information with regard to the count word act really put into its database it was made of the regular course of business it was made at or near the time that the events occurred and it was kept in the regular courses so the parties for saw the there is not necessarily the credit card agreement contacts to have a signed document credit cards agreements are unique in that sense and one of the things that this court must need to decide is let me take a step in determining whether a credit card agreement exists it depends on whether that credit card was used not necessarily whether there was a signature or anything to that extent rather it depends on whether that card was used and that's cases like garber and portfolio or folio that set forth that a credit card agreement doesn't exist within the confines of one document and the original creditor such as citibank extends credit pursuant to certain terms and conditions and that agreement is not accepted until there is usage beefeater in this case both ms rainey him is done now you accepted the terms and conditions of the card agreement by using the cards after they were notified of the of the card that's another way that the circuit court erred in finding that there was no one forcible agreement but before that in addition to the evidence your issues that i was discussing the circuit court also  agreement here issues of enforceability were to be determined by the arbitrator typically issues of proof or stability are left for the courts but the parties can agree to allow those types of big weight issues to be decided by the arbitrator if it is clear and unmistakable in their agreement and here the card agreement is a clear and unmistakable it provides that claims regarding the or stability of the card agreement are subject to arbitration and pursuant to a delegation wise that means that the court should have didn't need to address the enforceability issue and could have and should have compelled it to arbitration and this initially the existence of an agreement which is the evidence here issues i first discussed it only needs to decide the delegation issue to determine whether this case should go to the arbitrator or not and that presumption in favor of arbitration is well established in both u s supreme court case law as well as illinois  the first being is what the hilliker court recognizes basically the rule of waiver and the rule of waiver in the arbitration context is if you act inconsistently with that right to arbitration then you will deem to wait and that right to arbitra is the arbitration clause in your dream and if you act inconsistently with that agreement and here in the didn't act and consistently with its agreement it didn't act it consistently because there is a provision in its agreement that says and it debt collection action shall be filed first in state court unless the parties raise unless the fund it raises additional claims and then at that point millen would have the option to determine whether to initiate arbitration or compel arbitration so millen didn't act inconsistently with its right to arbitrate by finding the debt collection action state court was expressly allowed to do so under the terms  arbitration and does not rise to the level of substantial participation in the litigation mithun filed its motion to compel arbitration as its first responsive pleading to the original counterclaim of mr now and ms rainey it did so five months thereafter four to five months thereafter and in that time period the only activities that middl were finally in a motion for exemption of time to answer and also a motion to strike a motion to strike a judge had made would not engage in those activities we would have lost the right to do so so we were not taking advantage of any particular issues of the court or submitting our battle arbuckle issues to the court during that discovery and a motion for protective order was to protect our rights because defendants determined that they needed discovery in order to respond to our motion to dismiss which the court allowed despite our so therefore our activities before the motion to compel arbitration is what this court should look at and in that sense the only thing that we did was file a debt collection action that is not contrary to the arbitration agreement in this case the activities after the motion to compel arbitration should not be counted against midland either as a waiver of arbitration because we were merely responding and when you see cases like kohler vs hacker group the court so when the circuit court relied on those activities that did not occur during the also would require this court to reverse its decision and finally even if this court finds that there is a waiver of arbitration milind to rock revive that right to arbitration when mr nolan is really filed there counter claims they're countered claims energy use new issues to the case and introduce a class y or a statewide in a nationwide class because there was a similarity between the original counter claim and then the third amended counterclaim missing can argue that it wasn't aware that these new issues could arise because the issues in the original rainin were going to state with regard to our debt collection practices we had no idea they were going to accuse us of after the c p a violations or illinois collection agency act violations or it was my consumer product that's far that afternoon debt collection cases across the country they have filed tens of thousands the question is in illinois against illinois citizens they have a department dedicated to dealing with counter claims with regard to consumer protection they moved to quash that because they didn't want us to ask mr berger any questions about the things he said in his affidavit and if you read the record in our brief you'll see exactly why they wouldn't want to ask him any questions about the things he said under oath and they've they didn't satisfy the hearsay they didn't lay the proper foundation with fireman's to satisfy the business records exception to the hearsay rule beyond all and even if it did come in as a business  irrelevant and the reason your honour's that it's irrelevant is because it doesn't have my client's names on it doesn't have a signature on it doesn't have mccown there's nothing in that document that indicates that it is a contract that no idea who created it and i'll get more into that later but that was the judge's other evidence for a ruling this is just an unsigned contract that no one is actually saying of wise to their credit card and by the way this contract the form that it is dated two thousand and with the sound discretion of a circuit or that's all that happened here there was a document there's no foundation for the testimony proffered to provide foundation fail to do so and get a coke or said i will not admit that as evidence because you haven't la foundation for it it's hearsay you haven't proved it's a business record overcome the hearsay rule and i find it to be irrelevant regardless i would submit that not only did he not abused his discretion in refusing to admit that document it would have been use of discretion had he had it and we'd be here switched around so that the deposition testimony of mr berger was shocking in how much it was inconsistent with his affidavit mr berger works for a company called been credit management the point of years midwood funded he says that records exception of hearsay will you have to say i know that this document was made in the regular course of business i know who made it i know why they married and i know that it was made at or about the crime of the things that happened that it documents he doesn't know when i know about documents in this business i'm the custodian of record for this business and i know why it was created when it was raided and it documents business things that happened at that time only someone from citibank could possibly do that and then you would need a chain of records from citibank to and there's also the only rules of evidence eight of three six and seven explicitly state what the requirements are for the business records exception of hearsay rule there is no incorporated business record that's not a thing she cites a few cases like bank of america versus land where the court did say look a third party who requires a business records from another business an operator there was able to testify and meet those  meanings here i'm sure it is possible for someone to know the things you need to know to lay a proper foundation for a document that was once created by someone else and is now in your possession on that didn't happen here though them in my file cabinet in my business and i put it in file for mr now and then mr berger would pick that out and say this is the contract that applies to that and i'm saying that under oath as as the keeper of these records where  with regard to any change in rules of evidence and establishment of foundation and i strongly urge the court not to do that and understand that your corporate exactly what he's supposed to do you consider credibility issues he read the testimony again the contract itself assuming it would have came in as a business record which it should not the contract itself is completely irrelevant to these proceedings it it has nothing to do with the clients and nobody has said that it does document actually applies to their accounts and there really is no dispute about that on and also point out with regard to burdens you know when the documents hearsay and they're trying to invoke an exception that is their burden to prove it i think they want the court to think that the business records exception is a presumption that because you're a business you have a record in your hand there's a presumption that it comes into evidence and that is not the case it is presumptively hearsay and there is an exception it is prove the elements and as i stepped forth i think i'm probably beating a dead horse they have not done so so after the full hearing the court decided her first testimony was not credible with regard to those three documents because it simply isn't doesn't know what they are  they don't have anything to do with teresa reigning in the star now i would ask the court to look at their in our brief but i just these two particular cases are really strong they're almost exactly on point asset acceptance versus as they do depend of thousands of them in when we want to file a counterclaim with regard to consumer protection statutes they wanted to say we don't want peace here anymore we did want to be here when we wanted to get a judgment against you and use it to collect money from as we do to many people but if you want to enforce your rights that the only legislator put in place to protect you from people like us that's exactly what they want to collection agency and is designed to do protect the or just a regular can when it's not as if our counterpoint fundamentally changed the nature of the litigation we didn't come in and find like a like a like an auto wreck case and say well someone used to work or living on a car accident the only case berger but what it comes down to here is that mr berger just like any custodian of records of the director of operations at midland familiar with the process of receiving documents from third parties such as citibank and and the like to establish that any bill of sale and after they were to sell account statements we provided those documents or he was provided those documents from citibank in a form of an x l spreadsheet that is associated with the bill of sale that excel spreadsheet was attached used for supplemental declaration in this case in this part of the record it did not drop out of thin air citibank substantiated that we purchased that account and they own account and it's subject to the account statements and card member agreements that are associated with that account citibank and midland all have to monitor what agreements apply to rely and we've heard nothing from plaintiffs that they didn't have a card agreement in fact she said she had occurred and they've had a card agreement for years before the two thousand and ten modification and this agreement didn't drop out of and her how do we know it didn't drop out of thin air is because we produce an account statement that's also attached to mr berger supplemental declaration that says we are changing the terms and conditions of your  enclosed in here it's there's a notice there's a notice of deicing you of these changes including the arbitration clause it is enclosed here and that matches the card membered remit that we were provided because after deposition they both said they both realized that they couldn't recall because sometimes the spouses would get the mail or sometimes they wouldn't see everything because their spouse it there was no assurance that they truly had never seen account statements to his raney in the supplemental declaration says that we are changing the arbitration agreement and it is enclosed the notice to opt out of these changes and therefore and that matches with the card member agreement that we were know there's not that i don't i wouldn't i would raise the fact that that's not the standard in illinois standard illinois is that they've used the card member they've used the card after they received the modified terms and conditions now whether they remember seen it or not i don't know but i don't have direct evidence that they  t right we have the account statement that's in attached to mr berger supplemental before the terms and conditions took effect so before the terms and conditions took a fact there was an account statement sent to her with the change oh yes that's part of the