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Showing content with the highest reputation on 11/04/2013 in all areas

  1. 2 points
    @dlee5853 So far, none of their documentation (bill of sale, credit card statements, cardmember agreement) has been authenticated. The records are hearsay, but hearsay can be admissible under certain circumstances. Read the business record exception (Oklahoma Rule of Evidence 2803(6)). It's an exception to the hearsay rule which allows business records to be admissible if the proper foundation is laid. In order to lay that foundation, the rule shows what must be testified to either by affidavit or live witness. (Records were made in the regular course of business, etc.) If they have no witness, there's nothing that references the language in that rule. Therefore, the proper foundation has not been laid for the admission of those records, so they should be inadmissible hearsay. However, if they do have a witness, take a look at this copy of the following deposition. A NJ defense attorney questioned a JDB witness who was testifying for a JDB. His questions were designed to show that the witness had absolutely no knowledge of the original creditor's methods of record creation and maintenance and no way of being able to assure that the records provided were accurate. http://www.philipstern.com/files/2011.01.13.Galic_Deposition_Transcript.REDACTED.pdf
  2. 1 point
    Some of Litow and Pech's clients have included: Asset Acceptance, Capital One Bank, NCO Portfolio Management Inc., Citibank South Dakota NA, Cavalry Portfolio Services LLC, LVNV Funding LLC, Convergence Receivables LC, HSBC Bank Nevada NA, North Star Acquisition, LLC, Liberty Credit Services, Inc. and Discover Bank. Attorneys for Litow and Pech: Charles Litow, Piper Lori hughes, Christoper Pech, James Mcdonald, and John N. Elvert. CHARLES L. LITOW is the Incorporator/Organizer of CONVERGENCE RECEIVABLES L.C., registered in Arkansas. Read more: http://businessprofiles.com/details/convergence-receivables-l-c/US-AR-811008834/charles-l-litow#ixzz2jiqQYvNJ No Payment Letter, Notice to Cure, Lawsuit Letter and Response to Verification Request. http://johnsonlawfirmia.com/litow_law_office.html one of the good guys
  3. 1 point
    The advantage of the rules in Mass is you can spring all your defenses on them and they will not have any time to prepare for what you may challenge. It keeps an atty on their feet. My state is very different, but I have a house on the Cape in Popponesset that I use about five months of the year so I know Mass laws too. Make them show proof they own the debt first, if they can't prove the own the debt they have no standing and have failed to state a claim for which relief can be granted. If they do prove they own the debt you then challenge the amount, they can't prove the amount then they have still failed to state a claim. More case law to help you Herman v. Fine, 314 Mass. 67, 68, 49 N.E.2d 597, 598 (1943), citing Ayers v. Ratshesky, 213 Mass. 589, 593, 594, 101 N.E. 78. See also 65 C.J.S. Names § 31. In Massachusetts, "bald identity of name without confirmatory facts or circumstances is not sufficient to prove identity of person." In Herman, the plaintiff brought an action on a judgment he alleged he had recovered against the defendant. The judgment was made against a "Jacob Fine" and the defendant's name was Jacob Fine. The defendant made a general denial. The court found that the "defendant's general denial made it incumbent upon the plaintiff to prove every element of his case, including the fact that the defendant was the person against whom he had a judgment." Herman, 314 Mass. at 69. Additionally, "[a]lthough very slight evidence might have been enough, at least something more than identity of names was necessary." Id. In Hinds v. Bowen, a car-accident tort suit in which the identity of the defendant was disputed, the court found that the "similarity of [the defendant's] name is not sufficient evidence to warrant a finding of identity; although taken with other evidence of likeness it may suffice to take the issue of identity to a jury." 268 Mass. 55, 58 (1929). The court dismissed the action, explaining that the plaintiff failed to meet her "burden of proving the identity of the defendant with the driver of the car..." and that the "defendant was under no obligation to be present in court or to introduce evidence until the plaintiff had show enough to require it." Id. at 59 The case law indicates that, in Massachusetts debt collection cases where the defendant denies that he is the alleged debtor, the plaintiff (1) has the burden to show that the defendant is, in fact, the debtor and (2) that the plaintiff must provide more evidence in addition to the identity of names to do so. These rules are very helpful to defendants. Since many debt collectors will not have additional information beyond the debtor's name, the debt collector may not be able to show that defendant is the debtor. If a debt buyer sued without any reasonable investigation of the facts, (due diligence)and there is no evidence to show that the defendant is liable, you can make a Rule 11 demand in your answer that plaintiff withdraw its unfounded and unsubstantiated complaint within a specified number of days. Where an attorney has failed to show a subjective good faith belief that the pleading was supported in both fact and law, the judge is authorized to grant attorneys fees and costs to the moving party. Vittands v. Sudduth, 49 Mass.App.Ct. 401 (2000). Rule 17 (a) of the Massachusetts Rules of Civil Procedure requires that every action be prosecuted in the name of the real party in interest. MASS. R. CIV. P. 17(a). If the debtor has no property that is not exempted from execution under Massachusetts or federal law and is unable to pay the judgment, the court must dismiss the case under MASS. GEN. LAWS Ch. 224, § 16.
  4. 1 point
    I may sound repetitive, so please bear with me, if I do. This is what you need to bring to the police station: FTC Identity Theft Affidavit. This document is generated when you file a complaint on the FTC website. In your FTC complaint, make sure you mention both Bank of America and the junk debt buyer (JDB) on the question which accounts you are disputing. Report the JDB even if the JDB already deleted the items on your credit report. Make sure you save the PDF file of the FTC Affidavit and print out two copies, one for yourself, and the other for the police. Bring two copies to the police station. Do not sign the document until you do so in front of the police officer, so he or she can witness your signature, when you sign on the relevant page. Next to your signature and date, write also the current time. Note the name of the police officer and badge number. If available, request a "business card", preferably with his or her name on it. If the name is absent, request the police officer to write the name on the business card (or you can write it yourself). Be sure you keep the signed copy of the FTC Affidavit, when you leave. This signed copy is what you will submit to the CRA later on. Relevant page of the Credit Report. Make a copy of the relevant pages from the respective CRA's. Circle or highlight the delinquent account in dispute. If requested, provide this copy to the police officer. Government issued ID. For example, this can be a state driver's license. In your initial conversation with the police officer, tell him or her "I am a victim of identity theft, and I would like to file a police report." Tell him or her that someone opened a credit card account (?) without your authorization, knowledge, or consent. Tell the police officer that your personal information was stolen, and you do not know who did this. Most likely, the police officer will ask you your basic information, like your name, address, phone number, etc. Then he or she will ask when you became aware of the identity theft. Tell the police officer you became aware on the date you downloaded the credit report. If the police officer asks why you delayed filing a police report, tell him or her you were not aware you were supposed to file a police report until later on. To Answer Your Question Here is the answer to your question. If the police officer asks, tell him or her you already disputed this with CRA, but the CRA still needs a police report. Do not mention that the CRA or Bank of America had already "verified" the delinquent account, or your phone arguments or complaints with the CRA's or Bank of America. These are irrelevant to the police report. The police officer only cares about the facts of the identity theft, and that is all. Very Important Make sure you request a copy of the police report from the police officer. If the police officer asks why, tell him or her you will need to submit a copy of the police report to the CRA. Make sure you also request the police report number. If this number is not available, at the time, then ask the police officer how you can obtain this number. This police report number is important, because the CRA may need it to verify if the report is indeed authentic. Word of Caution Here is a word of caution. There is a small chance the police officer may not be trained to handle an identity theft complaint. If this is the case, then politely say, "Is it possible I can speak to a supervisor?" But whatever you say, do not argue with the police officer. Be polite and civil with the police at all times. If identity theft is not a normal category on the police report, then perhaps you ask if this can be categorized under "Miscellaneous" or some other category. Finally Before you submit these documents to the CRA's or Bank of America, please update us first, so we can discuss the next step.
  5. 1 point
    Don't let these clowns scare you. I think your doing a great job and I believe the attorney from Iowa could be there most likely to help the other Attorney who seems to be struggling to help finish the case in their favor.(If he shows at all) Your job to see that they don't. The junkdebtattorney will tell you that there is no way you can win because they have what they need. Never sign anything they hand you it could be a stipulated or consent judgment. Its best not to talk with the other side but the Judge may have you both go in the hallway or a conference room and try to work out a settlement. If he says anything to you just tell him your ready for trial. THIS IS GREAT TO READ SEVERAL TIMES How to Answer Distressing Questions Truthfully, but in Your Favor Judge: Is this your debt? You: Your Honor, the Plaintiff has provided no proof of this debt. To the best of my knowledge and evidence provided, this is not my debt. Judge: Did you ever have a card with Bank A? You: Yes, I did Your Honor, but to the best of my recollection, this card was paid off. In addition, the Plaintiff has provided no proof the debt is unpaid or even that this PARTICULAR debt is mine. Plaintiff's Attorney - Introduction of EvidenceSpoken Statements: if the Plaintiff is a collection agency or junk debt buyer, object to anything the attorney says as hearsay. The attorney and the plainiff do not have intimate knowledge of the creation of the debt. Written Evidence: If the Plaintiff's attorney shows anything wasn't included in the original summons/complaint package, or wasn't provided in discovery, object on the basis that it wasn't included in discovery and cannot now be submitted. You can also object if the evidence is not authenticated, meaning that the evidence cannot absolutely be substantiated as a true copy of an original document. If any evidence isn't authenticated, object to it as hearsay. "Authenticated" means there is a letter from the issuing company stating that these are true copies of the original.
  6. 1 point
    It's too late to file a BOP or a motion for more definitive statement as you've already filed an answer. By the way for future reference, you should not file an answer for small claims court in Illinois. Just an appearance form as that serves as a general denial. There is no cause of action in the complaint. Not to mention they failed to provide the appropriate evidence to be able to claim either breech of contract or account stated. If it was my case, I'd handle things from here as follows. Get leave of the court to file a combine 2-615/2-619 motion to dismiss based on their complaint and "evidence" which does not meet the standards of either a breech of contract or account stated claim. I can PM you a sample motion that would be a good place to start. By the way, you can file a 2-619 motion to dismiss without leave of the court due to their lack of a cause of action in the complaint. I suggest reading through this article to get a better understanding of what I'm talking about: http://www.illinoislegaladvocate.org/index.cfm?fuseaction=home.dsp_content&contentID=277
  7. 1 point
    Charles Litow is a junkdebtbuyer attorney in Iowa who specializes in carpet-bombing lawsuits. Charlie Litow to testify to the creation, use, accounting, default, sale or assignment, if any, and remaining balance of the account in question. Would he show up as a witness I don't think so, he would be of no value. http://www.nationallist.com/?id=201
  8. 1 point
    "I don’t feel very sorry for them. My parents taught me if you can’t afford something, don’t buy it." Right away we can see this is a very narrow minded and ignorant person. What would junk debt buyers (be able to) do, if the law changed in a way that were restricted to using, in their lawsuit, only the evidence they provided up front to the debtor 91 days prior to filing the lawsuit (with proof of providing it in the complaint filing)?
  9. 1 point
    They already filed for summary judgement once. I don't think they would try it again. We are scheduled for pre-trial in less than 2 weeks.
  10. 1 point
    I already did all that and the judge continued! As you can see above, calawyer and there's we're surprised it wasn't dismissed. After reading it several times, I think it's just more of their scare tactics, hoping I will settle or not show up. I'm standing by my right to call witness and cross examine. I pray the "long in the tooth" judge will see that and dismiss.
  11. 1 point
    A BOP is good in Calli, NY, Delaware, Virginia, Georgia, and ILLINOISE (compiled statutes 735 ILCS 5 Code of Civil Procedure. Section 2-607) I would double check just to make sure everything is still current however.
  12. 1 point
    @debtzapper - It'd be great if I could use the info, but unfortunately the CC agreement was not attached to the summons, so I have no way of knowing what it says. I didn't open the account either so ... I forgot that it doesn't have anything to do with Midland per se, so thanks for reminding me. Lol been a very long week here. @BV80 - I don't know what it is based on because nothing is said about the contract itself in the summons. I would have to assume that it is. Thank you for the resources - I'll definitely read them! @Debtinate - Good luck with your case too! And yes, I know the people here are very helpful. This is why I came back here the second time round. I read someplace that the MDS was a step before responding to the summons but eventually, I will have to supply my answers when/if the case continues. I took the MDS as a clarification step more so than anything. And sure, I'm open to any and all suggestions. Great tip for building strategies - Thanks! @Spikey - Thanks for backing that up. it's good to have people backing that up who are more knowledgeable about the subject then me.
  13. 1 point
    Let's say you are served with a credit card suit and there is nothing attached to the complaint or they claim you breached the terms and conditions of the account, but the Plaintiff did not attach the terms to the complaint or explain why. You can do one of three things: 1) Challenge Subject Matter Jurisdiction - Which needs to be raised with the first responsive pleading or motion 2) File a Motion for a More Definitive Statement - MCR 2.115(A) asking the court to have the Plaintiff amend their complaint to cllarify their causes of action and to attach documents they claim are in possession of. 3) File a Motion for Summary Judgment - MCR 2.118©(8) - Plaintiff failed to state a claim where relief can be granted. The court will only look at the Plaintiff's complaint. If you challenge jurisdiction, you can raise three primary points: 1) Even though the court may have personal jursidiction over me, the court cannot conclude with out the agreement/contract that they have subject matter jurisdiction. 2) Without the agreement, the court cannot determine what state the agreement was signed in. 3) Without the agreement, the court cannot determine what state laws govern the contact and if there is an alternative dispute resolution method stipulated in the contract. If you file a motion for a more definitive statement and the Plaintiff does not amend their complaint within 14 days, the court must dimiss the case. If the Plaintiff does amend their complaint and does not correct their mistakes, it makes your MSJ much more stronger. If you file a MSJ up front, the court will most likely dismiss w/o prejudice and the Plaintiff can refile correcting their mistakes. To get it dismissed on a contract claim alone, you can use MCR 2.113(F)(1)( to your advantage.