JoshS

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About JoshS

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  • Birthday 07/08/1978

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    Arkansas

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  1. @BV80 @Trapezius @JimmyE The moment I had been waiting for came this morning...and they asked for a continuance and apparently received it - this all came from the clerk when I was checking in. However, when I got home, there was a Motion for Voluntary Dismissal in my mailbox. I count this as a win - and I never even saw the inside of a courtroom, or spoke to a judge. I have some questions, though, They are asking for a dismissal without prejudice, which as I understand it means they reserve the right to jack me around again at their leisure. How likely are they to do so, and is there any way I can ask for a dismissal with prejudice? I don't want this popping up in the future, and besides, I'm sure this is on my credit report, right? They should remove it if they're not going to pursue this. No matter what happens though, you guys are awesome, this forum is great. It's a wonderful service you're providing here.
  2. Great replies guys, thanks. @BV80 , @Trapezius @Credithis @JimmyE At the time I filed my MTC, I had received no response at all to my discovery, and it had been two months since I submitted them. I still contend that the 'Bill of Sale' provided is incomplete, as it references other documents which were not included that should contain the terms and warranties of the sale. Should I push for those? The 'Forward Flow Receivables Purchase Agreement' and the 'Notification Files' specifically. There is also the fact that NOTHING references the 'Schedule A of the Sale File' whatsoever. Am I going in the right direction here or not? If they cannot prove they own the account the suit is moot, correct? I am also planning on filing a sworn denial, depending upon how the MTD, MTS and MTC hearing goes tomorrow. Thanks again everyone.
  3. @Jimmy E I could not find them with the search either, however if you leave the fields blank and press search, it will dump the entire list. They are on the list several times, a seperate entry for several different locations. I do not know when they registered, however. @BV80 , @Trapezius , and really anyone: Let me be sure I have my facts straight here. After reviewing Plaintiff's responses to my RFP, they have failed to provide complete answers to any of them, and per ARCP 37 (a)(3), 'Evasive or Incomplete Answer or Response. For purposes of this subdivision, an evasive or incomplete answer or response is to be treated as a failure to answer or respond.', they have not answered any of them, so I should be granted an order to compel at the hearing, correct? I have no experience with court other than traffic violations. What can I expect as far as questioning, etc? Next Tuesday is supposed to be just a hearing, however I expect Plaintiff may try and push for trial, or possibly the judge may just ask if all parties are ready for trial now. How likely is this? Of course my answer would be no at this time. Also, Trapezius stated: What would more damaging discovery entail? I'm going to argue at the hearing that the Bill of Sale is not a complete document, specifically lacking the "Agreement". and the "Notification Files". Without these referenced documents this Bill of Sale could refer to virtually anything that is a Receivable, and certainly cannot be construed to be specific at all. Not to mention it has no mention at all of a "Sales File". Also, in which document would I find the clause which refers to the warranty regarding the accuracy of the accounts transferred? From what I understand this should be contained in the "Forward Flow Agreement", correct? Do I just file my Affidavit of Denial with the court? What would be the format for such a document? Thanks again for all your help. You guys rock. Edit: Also, they remain in noncompliance with ARCP 10(d) not having amended their complaint to include the document on which the complaint is based. If this was fatal I would assume they would have done it by now, right?
  4. I have zero experience with oral arguments in a legal setting. However they filed the affidavit in question with the court with the original complaint, so they have asked the court to do something based on this affidavit. What they probably expected was a default judgement, but they still asked for something based on this, and ONLY this in the original complaint. Sigh. It works the way it works, I guess it doesn't have to make sense all the time. My expectation is that they will do this, but wait until the last possible moment to so do. Not yet. How would I 'enter an affidavit' of such? Simply write one and file it with the court? Forgive me, but I've never prepared for a hearing before. What I have done thus far is print all of my referenced opinions and highlighted the relevant points, same for ARCP. Is there something more I should do? Obviously I'm not a trained legal expert, but what can I do to 'even the playing field', so to speak? @BV80 @Trapezius , Thank you for your help, it is much appreciated.
  5. @BV80 A proper chain of title has yet to be provided, and they have also failed to meet the hearsay exception for business records, I think. You can't just take unauthenticated records from one entity and place it into the files of another and meet the business records exception, or have I gotten this all wrong? If I'm right, then the statements, etc are all hearsay and therefore any testimony/affidavit based upon them also becomes hearsay, right? Yes, basically cited Gemini Capital Group, LLC v. Kenneth Dean McFarland, 2014 Ark. App. 83 (2014), what they're saying is that they are allowed to wait and file an amended complaint and attach the contract, which they have not yet done, therefore they remain in violation of ARCP 10(d) until such time as they file an amended complaint, as far as I can tell. My attempt was to show that the affiant, and therefore plaintiff have no personal knowledge of the debt, making the 'records' they possess hearsay. From what I understand, the agreements to purchase these bulk accounts specifically state that no warranty is provided as to the accuracy of the accounts sold. If this is true, then even the OC is not authenticating what they provide, so how can the JDB? Of course, I could be way off, but this all makes sense to me. Help?
  6. @BV80 The admissions were as I expected as well, but if they're not admitting it here, how do I convince the judge of it at trial? As for the Bill of Sale, apparently the page which looks like a database row printed out does contain the name, alleged account number that matches the statements, etc, and is referred to by plaintiff as 'Schedule A of the Sale File' in their response. This 'Scherdule A' is not referenced in any of the other documents provided, including the Bill of Sale. The charge-off statement looked odd to me as well, and I don't remember making that payment. So at this point should I amend my MTC to be specific about what they did not provide, and why it is relevant? For example they balked at providing the affiant's information, employment history, etc. - should I press for this, or lean more towards the unauthenticated documents, or wait to object to them as hearsay at trial, or...? I've read a lot on the forum here, but I'm still not an attorney, guidance seems needed here. Thanks.
  7. Hey guys, thanks for all the great information available here. I am at the end(?) of discovery, they have responded to my Rogs, RFA and RFP, however I believe the responses to be incomplete, and/or flat out lies, and I need to know precisely how to respond.I had hopes that I might be able to finish the case out without having to take up too much of your time, but I am kind of at a loss what to do at this point. Quick timeline, my first RFP was filed/mailed July 14th, my RFA was filed/mailed September 4th. I sent a meet and confer on September 9th in regard to the RFP filed in July, and then filed a MTC on September 26th. They responded to my RFA on October 9th and my RFP on October 10th without any intervention from the court. This is apparently going to trial, so I also need some advice in that arena as well. All of these are attached. If you need further information don't hesitate to ask. According to the clerk I have a hearing October 28th on my MTD and MTS, I have also attached these and Plaintiff's responses and my further responses. Defendant's Rogs & RFP.pdf Plaintiff's Response to Defendant's RFA.pdf Plaintiff's Responser to Rogs & RFP.pdf MTD, MTS and responses.pdf
  8. @BV80 thanks, I have already seen and used that in my response to plaintiffs response to my motion to strike. Another question, how do I cite case law in person to the judge?
  9. Ok I have a hearing on my MTS next week...what can I expect, what do I need to prepare, bring with me, etc.? my experience with courtrooms consists wholly of traffic violations. I did file the suggested response above, so I already have all the cited opinions printed. in short, I am kind of nervous. Any and all assistance is most welcome.
  10. ....this from earlier in the thread...I notice that in their reply to you they object to providing the original signed charge slips as 'unduly burdensome...not reasonably calculated to lead to the discovery of admissable evidence." Now, the poster here does not cite case law, and my admittedly amateurish search of Scholar doesn't turn up anything, but could PRA's reluctance to produce the actual signed charge slips mean they have nothing to base the 5 year SOL on? If they cannot prove you used the card, and continued your written contract by actually signing the slips...then...? Obviously this would not be used in the situation you're currently in, as they still haven't proven they own anything except an affiant and a bill of sale to...something yet, but I just noticed it and found it interesting.
  11. Thanks, that's quite elegant. I read all the cases cited, actually my first visit to Google Scholar....I had been using the interface the Arkansas court system provides to look up case law - it was quite tedious. Google Scholar is like the wikipedia of case law, I spent way longer than I should have following links to citations...I find I'm beginning to like reading case law and all the other legalese involved in this business. Perhaps I should have been an attorney. Now that I've extricated myself from Scholar, I don't know what to title my response. Plaintiff's argument I'm answering here is entitled 'Response to Defendant's Motion to Strike Plaintiff's Affidavit'...so would my response be 'Response to Response..." or "Defendant's Answer to..." or "Defendant's Opposition to..."? I realize it probably doesn't matter, but I prefer to be precise. thanks... josh
  12. In response to my Motion to Strike Plaintiff's Affidavit(which is the standard PRA affidavit), PRA is claiming the affidavit is admissible as evidence under AR rule of evidence 803(6) or (7). "Plaintiff has properly incorporated its predecessor in interest business records into its own business records. There is no prohibition against this practice. See Marshall Trucking Co. v. State, 23 Ark. App. 110 (1988)". Do I need to file a response to this, and if so, what argument do I use? I know this is not correct, and that you can't just use someone else's business records as your own, but I don't know how to present this. Cates v. State, 589 SW 2d 598 - Ark: Court of Appeals 1979 may also be of interest - it provides criteria for admission of business records. -josh Body of my Motion to Strike follows: 1. Plaintiff has submitted into evidence an affidavit claiming that the affiant has personal knowledge of business records related to the aforementioned alleged debt referred to herein as PLAINTIFF’S AFFIDAVIT. 2. The affiant writing the PLAINTIFF’S AFFIDAVIT does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, creditor name. 3. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of how business records were kept at the original creditor. 4. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of the sale or assignment of the alleged debt from the original creditor to PORTFOLIO RECOVERY ASSOCIATES, LLC. WHEREFORE, the Defendant prays the Court that Plaintiff's Affidavit be stricken from the Complaint filed herein, in which it is incorporated by reference. Respectfully submitted,
  13. Thanks for the responses guys, very helpful. I've tried to use search as much as possible, but sometimes you just need clarification. Thanks again
  14. I am being sued by Portfolio Recovery Associates, LLC in Arkansas. The complaint was the standard "you owe us money" JDB stuff, and the only supporting evidence provided was an affidavit. I plan to file my answer along with a MTD pursuant to Rule 10(d) tomorrow, but am also looking at filing a Stay until the Supreme Court here rules in Simpson, something similar to this case's MTS, https://contexte.aoc.arkansas.gov/imaging/IMAGES/DMS/CK_Image.Present2?DMS_ID=OV4X0JA8IJLWBU2F1GIB939NIN25MT Am I required to file a counterclaim to get this question before the court to even support a MTS or what? PRA does not appear to be licensed by the state.