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PeteyHall

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  1. I guess, if it ever gets that far, that I would be concerned that the judgment would outlive the BK and that they could hold the judgment over my head even after the BK was discharged.
  2. So looking way down the road, but if you get a judgment against you but you appeal the judgment, but then decide to file BK while the appeal is in process, does the judgment get on your record or is it wiped off your record since you were in the middle of an appeal when you filed BK?
  3. Nascar, it's not a matter of impeaching the individual, it's more about me proving a point, through this example (and a number of others), that the OC, who supposedly filled out the Admissions, is not representing the facts correctly and is trying to be deceptive to the court. So it's more about using this piece of evidence as another 'see judge, and here's another case where they were trying to be deceptive' since I'm going after them for a number of consumer violations (which in my state I can).
  4. So living in MA, I have a court case coming up this week but have a question. If an attorney/OC, when responding to my request for Admissions, DENIES something that they affirm in multiple other documents (and is clearly obvious, like saying does the sun rise in the east and they admit 'no'), can it be admitted to show they're trying to be deceptive and/or 'not representing the facts correctly'? I know in some states that you can't admit that (which boggles my mind) but does anyone know if I can use it against them in MA? I tried to look it up in Google Scholar as well as the Massachusetts Rules of Civil Procedure but couldn't find anything about it not being able to be called out but I wanted to double check here. Thanks!
  5. Here's the scenario: I had a JDB contact me with an initial letter over an old 'debt about 6 months ago'. I immediately fired off a C&D as well as a debt val letter to them - never received anything from them or ever heard back from them. Now fast forward 6 months later and I get a letter from CACH saying that they've taken ownership of the debt (I confirmed this through my CR) and are looking for money. The question I have is that if I requested validation and issues a C&D on the same debt from a previous JDB, is CACH violating FDCPA now or do I have to start it all over with them? Thanks
  6. I just had my MSJ (as defendant) denied using grounds for lack of standing. Even though the plaintiff had no signed contract, no signed affidavit, statements with the wrong name/addresss on them, the judge threw out my MSJ on the grounds that he would let the Plaintiff get more time, even though Discovery was over, to provide 'more substantial evidence'.... So even though you may have great points for proving lack of standing, don't think the judge will just side with you on them...
  7. So it's been a while and I wanted to provide an update: To summarize where we last left off, I had filed a MSJ against OC for lack of standing (they basically sent me a bunch of statements, some with my name and the wrong address on them but no affidavits). In response, the plaintiff submitted an opposition to my MSJ and requested an MSJ against me. As part of their MSJ request, they put in an affidavit not signed by anyone and not even with anyone's name on it which was a worthless piece of paper to substantiate their claim. I filed my opposition to their msj and requested their affidavit get stricken, as well as included my affidavit in opisition (which included pointing out how the plaintiff's attorney's have provided false statement and I even included in their own documentation where they lied). So I heard on Friday that my MSJ was denied and that the Plaintiff's MSJ was denied as well. From the info I received back from the court, it sounds like the court is giving the plaintiff whatever time they need to get the right affidavits (signed this time) and whatever other documentation they want to use against me. The only good thing that the court affirmed is that the period for Discovery is over, which will make it interesting to cross-examine the affidavits if I ever get them. Based on this, I think I'm going to go the arbitration/negotiation tact. I feel that the court is going to keep giving the plaintiff as much time as they need to collect whatever data they want, even if I put in a motion to preclude evidence. Based on everything I provided in my MSJ as well as in my opposition, I believe I proved lack of standing, but the court feels that the Plaintiff should have more time in which to prove it. So part of me is happy that I was able to beat their MSJ, but as the Clerk told me on Friday, the Plaintiff can always refile the MSJ request at anytime. So I figure pulling the arbitration card now, and stressing how long and expensive of a process it's going to be, is my best choice. Thoughts?
  8. Nope, they have none of that language in there (AMEX). There's no definition of time or of event in which my right for arbitration is waived.
  9. From the entire Arbitration agreement, here are the most pertinent (I believe) sections related to the election of arbitration. Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to thisArbitration provision and the code of procedures of the arbitration organization to which the claim is referred in effect at the time the claim is filed (code), except to the extent the code conflicts with this Agreement. Claims shall be referred to either JAMS or the American Arbitration This Arbitration provision is made pursuant to transactions involving interstate commerce and shall be governed by the FAA IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM. This Arbitration provision shall survive termination of your Account; voluntary payment of the Account balance in full by you; any legal proceeding by you or us to collect a debt owed by the other That's really it. I keep focusing on the 'survive' clause as my option to elect arbitration almost at any time up to a judgment - am I wrong on that assumption? Thanks
  10. I've looked everywhere I can think of, but in Massachusetts, is there a definitive date/event in which a Defendant (assuming a Complaint has already been lodged against them in court) can no longer elect arbitration? I've seen a bunch of case law that says it's up to the judge to determine 'when', but is there anything concrete? Thanks
  11. So I filed my MSJ the other day and gave the Plaintiff's attorney the minimum amount of time to get prepared for the case. Can't wait to see their faces in court when I start hammering all of their hearsay evidence. And if they ask for a Continuance, I'll object on the grounds that they've had over a year to collect it and what's another 10-30 days going to do??? Wish me luck
  12. OK, thanks for the advice. I'll let everyone know how it works out.
  13. I've been working on the MSJ for a while and here's what I've come up with. Any feedback/comments/suggestions would be greatly welcomed. Comes now the Defendant xxx, Pro Se, for the legal basis of Defendant’s Motion for Summary Judgment, states that Plaintiff, after an adequate period of Discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that Defendant is indebted to the Plaintiff. 1. Defendant received the Plaintiff's Complaint on or about xxx. Defendant answered the complaint on or about xxx. 2. Defendant sent Request for Discovery via certified mail with return receipt to Plaintiff’s council on xxxxxxx xx, xxx (attached as Exhibit A). Defendant received Plaintiffs answers on xxxxxxx xx, xxx (attached as Exhibit . 3. Defendant sent an ‘Insufficient Response to Discovery’ letter via certified mail with return receipt to Plaintiff’s council on xxxx (attached as Exhibit C). 4. Defendant and a representative from the Plaintiff’s office held a Meet and Confer conference on xxx in which the Defendant reviewed the list of items the Plaintiff’s attorney failed to submit to the Defendant during the Plaintiff’s initial response to the Defendant’s Request for Discovery. 5. Defendant received Plaintiff’s Second Response to Discovery Requests on or about xxxxx. 6. The Discovery period was ordered by the Court to be completed by October 31, 2011. 7. In accordance with Norfolk Financial Corp. v. MacDonald, 2003 Mass. App. Div. 153, 154., Irwin v. Ware, 392 Mass. 745, 749 (1984); and Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982), there is no genuine issue of material fact. Plaintiff has not been able to tie the Defendant in this case to this debt. For the above reasons, Defendant respectfully requests that the court grant their Motion for Summary Judgment in its entirety and enter judgment in favor of Defendant in respect to Plaintiff’s claims. MATERIAL ISSUES OF FACT I. Plaintiff Does Not Establish It’s Standing In This Matter. a.The standing doctrine of modern jurisprudence embraces several judicially self-imposed limits on the exercise of jurisdiction, such as the general prohibition on a litigants raising of another persons legal rights. A lack of standing renders the litigation a nullity, subject to dismissal. An assignee has the burden to prove the assignment; an assignee must tender proof of assignment of a particular account or, if there was an oral assignment, evidence of consideration paid and delivery of the assignment. Plaintiff’s pleadings do not meet any of these admonitions. b. As part of the Discovery process, the Plaintiff failed to provide any contract or agreement bearing the signature of the Defendant. As documented in 17 MASS. PRAC., Prima Facie Case § 2.2.”The customary way of proving an agreement with the defendant is by introducing into evidence a written agreement which is signed by the defendant.” c. As part of the Discovery process, the Plaintiff failed to provide a complete itemized statement of the alleged debt. The only documents the Plaintiff provided in regards to the accounting of this alleged debt is basic screen shots from Plaintiffs computer, “Plaintiffs Exhibit A” (attached) dated from xxx through xxx, none of which provide any details, and what little amounts are listed are conflicting. These amounts are conflicting and suspicious because the dollar amount the Plaintiff has alleged the Defendant owes does not correlate with the documents the Plaintiff has provided. The Defendant, accordingly, objects to this evidence as inadmissible hearsay that does not comply with the Massachusetts Business Records Act (MASS. GEN. LAWS ch. 233, § 78). d. Defendant further states that Plaintiff’s documents contained in the Complaint marked “Exhibit A”, identified as “Terms and Conditions” of the alleged agreement, and the “Billing Statement” contained in Exhibit x, allegedly issued by American Express Centurion Bank are not admissible as the alleged purchasing Plaintiff's business records, as the Plaintiff does not authenticate said documents and has no personal knowledge of how those records were created or maintained. e. The Plaintiff has failed to provide a certified affidavit from a person with direct knowledge of the account and record keeping from American Express Centurion Bank establishing three facts on which to ground Plaintiff’s claims: that Defendant opened an account with American Express Centurion Bank, that Defendant failed and refused to make payments on the alleged account, and that the Plaintiff is entitled to sue Defendant as their assignee. Without this certified affidavit, Defendant objects to all statements, billing statements and customer agreements supplied by the Plaintiff in the original Complaint as well as all subsequent documents produced by the Plaintiff through the Discovery Period as inadmissible hearsay as documented in Norfolk Financial Corp. v. MacDonald, 2003 Mass. App. Div. 153, 154., Irwin v. Ware, 392 Mass. 745, 749 (1984); and Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982). For the above reasons, Defendant respectfully requests that the court grant their Motion for Summary Judgment in its entirety and enter judgment in favor of Defendant in respect to Plaintiff’s claims. What do you think? Thanks!
  14. Thanks everyone! Well based on the court info that Patz provided, if I do 'lose' this case, it looks like I have a great shot in the appeal I'll work on writing up the MSJ over the next couple of days for people to review and hopefully be able to use as a model for themselves in the future.
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