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Showing content with the highest reputation on 03/10/2015 in all areas

  1. 2 points
    Bring a copy of anything you have saying it was supposed to be dismissed with you tomorrow. Good luck.
  2. 2 points
    I got a consumer attorney since while the lawsuit was filed prior to SOL, I wasn't served until nearly 2 months afterwards and it was via sewer service (they left it on my sister's doorstep in another county. My wife & I had lived there for about 9 months but had moved out 3 months before the lawsuit) and the only date on the summons was post-SOL so I thought I'd been sued on a time-barred debt. My attorney got the case dismissed, counter-sued for a couple of FDCPA violations, they paid me $1k, him his attorney fees, ate the debt & removed their tradeline.
  3. 2 points
    Here is the "miracle" -- quite-quite educating: JDB’S ATTORNEY: My (inaudible)… Ummm… so I guess I don’t have to get to the issue about whether or not the account belonged to the appellant because she stated on the record that she is not disputing that she had the account, well, let’s just skip through to the admissibility portion of the argument… And the admissibility of evidence is reviewed on an abuse of discretion standard. And the trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds… and here the trial court admitted the evidence as submitted by the plaintiff in the lower court which was an affidavit of debt showing a sum certain is due and owing, that an account had been purchased from an original creditor FIA Card Services, also known as Bank of America, that account was, this specific account, Ms.XXXXXX’s account was sold to Cavalry SPV I who sued for the debt and they… JUDGE: What evidence (inaudible) what evidence is it that the account was sold? JDB’S ATTORNEY: The bill of sale that was provided in the summary judgment motion, Your Honor, which was titled… uhm… titled as a … Bill of Sale and Assignment of the Loans stating that… JUDGE: I see that, but how did you get that? How is that admissible? JDB’S ATTORNEY: That’s admissible because it’s… uhmmm… well, it’s… I guess… it’s a business record of the plaintiff, Your Honor, and... JUDGE: Who… who is establishing it is a business record? JDB’S ATTORNEY: Well, it’s a b-business record… it’s…uhmm… it’s referenced, well… the sale of the account is referenced in the affidavit… JUDGE: But the document is not referenced. JDB’S ATTORNEY: the specific document, Your Honor, is not referenced. JUDGE: So… it’s… JDB’S ATTORNEY: But the affidavit is sworn under penalty of perjury and states… JUDGE: But the affidavit does need to be made under… with personal knowledge JDB’S ATTORNEY: That’s correct, Your Honor JUDGE: Ok JDB’S ATTORNEY: It was… It does state that they have reviewed the books and records. JUDGE: They need to attach the books and records and reference the books and records that they are talking about then. JDB’S ATTORNEY: So they, I mean, they do state in the affidavit that the account was purchased and… JUDGE: it’s not something (inaudible) the affiant doesn’t know that, right? Except for looking in the books and records JDB’S ATTORNEY: Correct, You Honor, and (inaudible) stated the books and records show that the account was purchased from FI.. JUDGE: And they have to reference the document that establishes that JDB’S ATTORNEY: I… I mean… I don’t know that they… specifically have to reference… JUDGE: Yes, they do JDB’S ATTORNEY: (long pause): So, Your Honor (pause) the affidavit states that they purchased the account from FIA Card Services (pause) and that the books and records include the electronic business records that are the billing statements, and… uhm… the billing statements shows that there are purchases and payments on the account. And the standard for admissibility of evidence is an abuse of discretion…so I don’t believe that (inaudible) the appellant has shown that the trial court abused its discretion in admitting the evidence… JUDGE: The evidence must be admissible, right? Under some rule, some evidence rule, so…the documents need to be authenticated. You can’t just attach a bunch of billings if there is no one to say these are accurate. JDB’S ATTORNEY: Well, if Your Honor was going to say that the Bill of Sale is not authenticated and it shouldn’t be attached, I believe there is still enough evidence to show that the account was purchased from FIA Card Services in the affidavit JUDGE: She doesn’t have personal knowledge of that except for looking at the affidavit… JDB’S ATTORNEY: No… JUDGE (correcting herself): Ugh, the bill of sale JDB’S ATTORNEY: She’s… She’s looked at the electronic business records, the bill of sale included JUDGE: Then she needs to attach them JDB’S ATTORNEY: It is included in her review of the file though. I don’t believe that you have to attach the bill of sale JUDGE: She needs to reference it JDB’S ATTORNEY: I understand you are saying that she needs to reference it, Your Honor, but I don’t believe it is required that she… JUDGE: It is required JDB’S ATTORNEY: that she has to attach it to her affidavit JUDGE (in a condescending tone): supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify. So, for example, if-if we had a trial and this woman came in, she couldn’t just get up here and say that the account was sold JDB’S ATTORNEY: She could on personal… JUDGE: She would need… JDB’S ATTORNEY: She could say “I have reviewed the books and records…” JUDGE: She would need… JDB’S ATTORNEY: (inaudible) JUDGE: She would need to show what she looked at JDB’S ATTORNEY: I disagree, Your Honor, that it has to be attached to the motion. She has stated in the affidavit form that is sworn under penalty of perjury that “I have reviewed these records” JUDGE: What… What records? JDB’S ATTORNEY: the electronic records JUDGE: She needs to produce them JDB’S ATTORNEY: the electronic business records JUDGE: She needs to produce them just as she would if you were at trial. You could not… JDB’S ATTORNEY: (inaudible) JUDGE: You could not. You could not call a witness to trial and have her just get up on the stand and say “I reviewed some records and… uhm some electronic records and..uhm… this is what I’ve found” JDB’S ATTORNEY: I think that’s done all the time, Your Honor, people say they’ve reviewed the books and records and they don’t actually provide them as an exhibit. So, I mean, the affidavit itself says that the account was purchased from FIA Card Services, Alaska Airlines Bank of America credit card account. It says all of the information, it says when it was open it says… JUDGE: She says the principle balance due and owing is $XXXX. How does she know that? JDB’S ATTORNEY: Because she reviewed the electronic business records (inaudible) Bill of Sale, I mean, is just an exhibit for Your Honor… JUDGE: where is the electronic billing record that shows that the balance of $XXXXX? Where is this? JDB’S ATTORNEY: That would be included as a separate attachment of the billing statements JUDGE: Then how are those… How did you get those admitted? She doesn’t reference them JDB’S ATTORNEY: She references reviewing the electronic business records. We’ve attached them for Your Honor to review, if you wanna exclude them, I believe that all the information she had set forth in the affidavit still enough to get summary judgment when the appellant admits owning and having the account and hasn’t put forth anything showing that someone else owns the account. There is no fact and evidence to contradict the fact that Cavalry SPV I is the owner of the account. JUDGE: Her only issue on the appeal is whether or not the document shouldn’t be (inaudible) considered by the court and admitted. And the answer is to that question is: no, they should not have JDB’S ATTORNEY: So, and I, I guess (short nervous laughter) I disagree with that well and the trial court and the appellate court has even agr…disagreed with that. The court of Appeals, Division I and Division II, have upheld affidavits, uhm, such as this. So I didn’t cite to the court of Appeals because I didn’t (pause) know it was (pause) the appropriate thingY (haha, did she really said that?) but I would be more than happy to provide (inaudible) an additional brief, Your Honor (pause) the purpose of summary judgment is … JUDGE: So if you thought this was sufficient, then why did you attach anything to her affidavit? JDB’S ATTORNEY: (inaudible) it is just what we always do, so the court can see… JUDGE: the question is why you didn’t have an affidavit that referenced the documents that you want the court to consider? An affidavit that said “attached are all the billing records. Here’s the true and accurate copies of the billing records that we keep on file”. Why did you not have an affidavit that said that? JDB’S ATTORNEY: ‘cause the affidavit said they reviewed the electronic business records and those were incorporated as electronic business records … when they purchased the account… So I mean it says, #7, Your Honor, “…in connection with the purchase of the account, FIA Card Services Alaska Airlines transferred copies of its electronic business records to Cavalry SPV I, which records were loaded into the computer system and which are maintained in an electronic format” JUDGE: then attached is a print-out of the electronic records? JDB’S ATTORNEY: Yeah, I mean, lots of courts across the state are not requiring… JUDGE: I’m granting the motion to dismiss JDB’S ATTORNEY: (inaudible) it’s not a motion to dismiss, it’s, Your Honor, it’s… it would be remanded to uhm JUDGE: I’m dismissing the order of summary judgment… JDB’S ATTORNEY: Ok JUDGE: …so you can start over again down back in district court (long pause) JDB’S ATTORNEY: thank you, Your Honor BAILIFF: All rise! JUDGE: Somebody needs to fill out the order. Hmm, usually it is the prevailing party... (after looking at me, sighed and departed to her quarters to fill out the order)
  4. 2 points
    @sasha0378 I LOVE IT! AND YOU DID IT ON APPEAL, WHICH TAKES TIME, EFFORT AND KNOWLEDGE. Please pay it forward and drop around this board now and then to help other WA residents.
  5. 1 point
    When you consider the power they have over your financial life, shouldn’t it feel like the credit bureaus are more for you than against you? New York Attorney General Eric Schneiderman certainly thinks so, as evidenced by the settlement agreement he announced with Experian, TransUnion, and Equifax. The post Good News for Consumers: Credit Bureaus Launch National Consumer Assistance Plan appeared first on Creditinfocenter Blog. View the full article
  6. 1 point
    Normally yes, the JDB does send a CCP 98. They have to serve it (place it in the mail) at least 30 days before the trial date and they often wait until the last day or two to send it out. From there it could take a few days to reach you in the mail. Sometimes the JDB screws up and doesn't send it, but that is somewhat rare.
  7. 1 point
    Lack of standing is obvious, But it will not change the fact that your court allows JDB's and OC to move forward with little to no evidence, So why fight that battle ? SOL is a great way to escape judgment. But unless I missed it how do you know SOL is a defense, Are you hoping it so, Did you verify your states Reg's and confirm that your payment's meet the time line. By eliminating Arb. as 1 of your options. You have basically benched your healthy all pro starting QB. in favor of a walk on 3rd. back up slash punter the day of the super bowl. Can the punter win the game for you sure anything is possible, But would you bet on that team ??? I wish you all the luck and having a positive attitude is great, But for your own sake don't leave your best player on the bench.
  8. 1 point
    My point was that they lose more cases that actually go to trial then they win. No need for a meet and confer letter. There's probably time to demand a BOP, but when is the trial date?
  9. 1 point
    Good luck Prayers are with you on this.
  10. 1 point
    I would want to see the #'s backing their claim of a substantial win rate. Maybe a meet and confer letter is on order.
  11. 1 point
    I got too- I am not falling for it --will go to trial .No proof of service for me as well. Looks like they are seeing how stupid we are and scared to go to trial. Last ditch effort. Every ones case is different though.
  12. 1 point
    @barbaraj0301 I'd include anything to which I could truthfully attest under oath. If you didn't open the account, then deny opening it. If you can deny ever receiving credit card statements from BofA, do it. Those denials would challenge the validity of the credit card statements. In regard to the incorporation of the records, I can't locate the case law. Focus on their failure to prove their standing to sue you due to the fact that they've failed to prove that BofA sold any accounts at all to them. Remember that in her affidavit, the affiant said that AA's business records show that AA purchased the account from BofA or its successor, but no such records have been provided. All you have is an unsupported allegation (allege their ownership) in the complaint and an unsupported statement in the affidavit. Be sure to deny that you had an account with BofA and point out the lack of transaction information on the credit card statements. Also, point out the failure of the statements in the affidavit to authenticate the credit card statements. Look up the business records hearsay exception. The affidavit has to comply with that rule. I think it's G.L Chapter 23, Section 78, but I'm not positive. No statement in the affidavit claims that the records were made in the regular course of business, etc. In any case, absent a bill of sale and proof of ownership of the account, there's no way AA can authenticate the credit card statements when it cannot prove the circumstances under which it obtained those documents. The plaintiff can't authenticate documents that it hasn't proven belong to the plaintiff. When you get a chance, I'd also file a complaint with the Consumer Finance Protection Bureau. Include a copy of everything sent to you by AA. That company was fined by the FTC back in 2012 for its collection tactics. The CFPB needs to know that AA (now owned by Midland) is filing lawsuits without proof of its claims.
  13. 1 point
    You can offer, if they take it is the question. Santander is a Spain(?) based bank, deals primarily with auto loans so I doubt they'll ever be involved.
  14. 1 point
  15. 1 point
    Excellent win for you along with all future defendants in your state. This judge has obviously dealt with idiot JDB attorneys before and knew exactly what they were going to bring forth. This is a classic example of why as a pro se you need to spend a lot of time to familiarize yourself with your state's rules of civil procedure. The very foundation of their MSJ, the robo-signed affidavit, will be rendered null and void if you know to object on the grounds that they did not attach the the OC's business records that they swear they have observed. This is epic. Even with the defendant admitting to having the account with the OC the JDB still could not win!
  16. 1 point
    Hey Everybody - I won my case too!! I couldn't have done it without the members of this community. Thank you all!! Here's a link to my thread: http://www.creditinfocenter.com/community/topic/325370-36-days-to-trial-in-cali-continuance-please-help/?p=1314938 My situation was a bit different, as I didn't discover this community until about a month before trial, so I didn't do some of the things that others have done. But, I will post up links to my documents in hopes that it will help others going through the same thing. It can be done! Don't give up!!
  17. 1 point
    Hey Everybody - I don't think anyone has checked this thread for a while, but I thought I'd let you all know that I won my case My Trial was scheduled for Friday, March 6, 2015, but we never went to trial. I checked in, and Plaintiffs attorney asked if I was willing to discuss the case. We went outside, and he asked what type of settlement I'd be interested in. I explained that I was willing to waive all costs, if they were willing to dismiss with prejudice. He checked with his higher ups, and they gave him the thumbs up. So, plaintiff agreed to a dismissal with prejudice if I agreed to drop any and all counter claims, and each party would bear its own costs. We went on the record before the Judge, and that was it. I'm free and clear! I want to thank everyone who took the time to offer help in my thread, especially Sadinca and Anon Amos, and everyone who took the time to communicate with me through private messages - RyanEX and Humgbird. I couldn't have done it without any of your help!! And, I especially want to thank Calawyer, who's generosity and help really made the difference. Thank you all so very much!!! We're all so fortunate to have this forum as a resource. So remember, it can be done!! Don't give up!!!
  18. 1 point
  19. 1 point
    Update: Interrogatories, Request for Admissions and Request for Production sent by Cach -Answered by Defendant BOP meet and confer demand letter sent twice Court ordered Case Management Conference Case management statement filed by Defendant timely (Cach never filed) Cach filed motion for dismissal w/out prejudice Case dismissed w/out prejudice
  20. 1 point
    1. Service of the complaint and summons, if served in person - you have 21 days to respond, if served by mail - you have 28 days to respond. 2. you have to respond to each numbered allegation in the complaint in one of the following three ways: MCR 2.111©(1)(2)(3). A. The Defendant denies this allegation in its entirety B. The Defendant admits this allegation in its entirety C. The Defendant lacks knowledge of information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial. MCR 2.111(D) - Form of denials, Each denial must state the substance of the matters upon which the pleader will rely upon to support the denial. 3. You cannot object to an allegation or just simply deny the allegations. You need to support the denial with a defense to the allegation or some other issue that exists. I see too many posters objecting to allegations, which is an easy path to a judgment.
  21. 1 point
    whatever you see online updated or not- print it for your records.
  22. 1 point
    Pretty amazing. Can't even figure out how to complete a form. The "entire action" box is typically used when there is a complaint and cross-complaint in the same case. In such a case, item number 3, "Consent to dismissal" should be signed by the other party. The clerk probably could have entered the dismissal anyway since there is no cross-complaint in your case (true?), but it sounds like they returned it for refiling. It is a good thing that the Court took the trial off calendar. But if a new dismissal is not filed on Monday, you might want to show up in Court just to make sure.
  23. 1 point
    For the first time in a credit card case, a district court in TX (the Fifth Circuit) has adopted the more stringent debt validation requirement set out in Haddad v. Alexander (6th Circuit), a case involving condo fee payments. In Mack v. Progressive Financial Services. the court said: More recently, the Sixth Circuit addressed the question of what verification means for purposes of section 1692g( , and stated the following: Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014). The Sixth Circuit determined the following:These cases suggest that the "baseline" for verification is to enable the consumer to "sufficiently dispute the payment obligation." Although the answer to that question depends on the facts of a particular situation, the cases reflect that an itemized accounting detailing the transactions in an account that have led to the debt is often the best means of accomplishing that objective. Intuitively, such a practice makes good sense. In fact, it would likely lead to faster resolutions of disputes with those consumers who act in good faith, because it will either show a valid debt that a consumer acting in good faith will actually pay, uncover an error in the record of the debt leading to the cancellation of the debt, or reveal the underlying dispute between the parties that can then be resolved. Finally, such an approach is consonant with the congressional purpose of the verification provision. The verification provision must be interpreted to provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the consumer could sufficiently dispute the payment obligation. This information does not have to be extensive. It should provide the date and nature of the transaction that led to the debt, such as a purchase on a particular date, a missed rental payment for a specific month, a fee for a particular service provided at a specified time, or a fine for a particular offense assessed on a certain date. More courts may adopt Haddad, making debt validation tougher for debt collectors
  24. 1 point
  25. 1 point
    Congratulations! Definitely write out everything and pay it forward for others in the future!
  26. 1 point
    Got a dismissal from Portfolio today, my second win. Now one more to go!
  27. 1 point
  28. 1 point
    JUDGE: The evidence must be admissible, right? Under some rule, some evidence rule, so…the documents need to be authenticated. You can’t just attach a bunch of billings if there is no one to say these are accurate. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- JDB’S ATTORNEY: Yeah, I mean, lots of courts across the state are not requiring… Out of everything the attorney said this is what pushed the judge to the edge. Its kind of like telling your parents that everyone else's parents let them do something. JUDGE: I’m granting the motion to dismiss Congratulations on getting this far! It doesn't always work out this way, but you proved what can happen when you don't give up. You had two things going for you. One was a fair judge that followed the rules of the law, and the other was an attorney that was in way over his/her head. You can tell the attorney was used to everyone rubber stamping everything. An experienced and competent attorney would have dropped this before getting so embarrassed. You did a great job by staying on the topic that needed to be addressed instead getting into other areas that were not relevant. Congratulations!!!!!!
  29. 1 point
    @debtzapper, sure thing. Thanks for your support. But wait for the oral argument by the plaintiff's attorney, that is when the "miracle on ice" happened.
  30. 1 point
    My opening statement was: I appeal to this court from a District Court’s summary judgment in favor of Cavalry, Plaintiff/Respondent in a credit card collection matter. To save everyone’s time here, I will NOT dispute that I had AN account with Bank of America, from which the plaintiff allegedly purchased the credit card account. However, this is not the point of this appeal. The issues on the appeal are that the trial court erred in determination that the Plaintiff submitted proper and sufficient evidence that the Plaintiff had a valid assignment of the credit card debt in order to establish its standing to bring the collection lawsuit. First of all, when submitting affidavits, the plaintiff failed to comply with Court Rule 56 that requires that such an affidavit be made on personal knowledge, to which I objected in my opposition to plaintiff’s motion for summary judgment and over which I extensively argued in my appeal’s brief. Second, the trial court erred in admitting third party's business records that were not authenticated by the third party, which allegedly produced those records during its regular course of business and allegedly sold to the plaintiff. I objected to the admission of such third party’s business records in my opposition on the ground of hearsay and stipulated that those records do not qualify for the exception from hearsay rule of evidence ER803. As a consequence, the trial court erred in finding that the plaintiff had the standing to sue and therefore the summary judgment was inappropriate. The summary judgment should be reversed. Nothing further. Thank you.
  31. 1 point
    hard to believe, folks, but summary judgment in plaintiff's favor was reversed and dismissed today on this appeal in a Superior court. I will start producing more details within a few days. Too tired now.
  32. 1 point
    What about that talk on-site earlier tonight of SOL starting 30 days after last PURCHASE, (not payment)? I have a request in for the citation on that one. Will update here where the citation is forthcoming. Warmly,
  33. 1 point
    Welcome. An OSC is short for an "Order to Show Cause" (why someone should not be held in contempt). Sounds horrible, but in these cases it is merely a way for the court to get someone's attention. Lucky for you it is plaintiff's attention they were thinking might be necessary. In these types of cases, sometimes plaintiffs file the lawsuit and then figure they will serve the defendant when they get around to it. The problem used to be so bad that cases would hang around for years before the defendant was served. So the Court instituted some programs designed to speed things up. One is a tickler for 3 months or so after the complaint has been filed to consider sending Plaintiff an OSC if service has not been accomplished and the proof filed with the Court. In some Courts, they actually calendar an OSC hearing on the date that the complaint is filed just in case it is necessary. Can't really tell without looking at the docket, but it sounds like in your case, when you answered, that no longer was necessary and the date was vacated.
  34. 1 point
    @DJP1986 You handled your case well. Again, congrats.