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  1. In contract law, the parties are both held to the terms of the contract. That's why we're in court, right? Filing an answer to dispute the claim filed does not inviolate contract law. I would file an answer and then look at the cardmember agreement for the terms regarding arbitration. Include a copy, with highlighted sections with your motion to compel contractual arbitration. Then, after the court has granted to motion to compel. fill out the JAMS form and send it to the attorney and the plaintiff along with a letter offering to give up your right to arbitration in exchange for dismissal with prejudice, elimination of negative reporting, cancellation of the debt as disputed (no 1099) and agreement to never transfer the account. If they don't respond within the time specified by the court to file, go ahead and file with JAMS, mail the certified copy to the court and attorney and keep moving forward.
  2. I went up against these guys in Colorado and they never produced a statement. Without a statement, there's no claim under account stated. Use the great links here to oppose the MSJ and make sure that you point out that user the rule of law for account stated, that without evidence of the existence of the account that there can be no relief under account stated. I'm sure there is WA case law to support both elements required for account stated and rulings to support your opposition.
  3. Another very good strategy to impeach the affidavit and the affiant is to research the rules of evidence in your state regarding "writings used to refresh memory". Since JDBs usually don't include much documentation - how interest was calculated, the exhibit showing your name and account number in the bill of sale, etc., the information in the affidavit is usually derived from records not in evidence. They will testify that the amount is right, that the account was acquired and the balance was blah, blah, blah. A series of cross examination questions asking where they verified the information will draw them to testify that they reviewed computer records. Most states, when writings are used to refresh memory for testimony, whether before or during testimony, the defense is entitled to review and contest the records. They won't have them. Then hit them with a motion to strike the witnesses' testimony AND the affidavit based upon rules of evidence regarding writings used to refresh memory. Slam. Dunk. No affidavit, no testimony, no standing.
  4. Linda7 -- I'm interested in the arbitration tactic. I checked the attached cardmember agreement and it is a $50 fee to initiate and JAMS is listed. The amount in the suit is about $1200. If I go through JAMS, doesn't the collection stay open on our credit report even if they choose not to pursue JAMS? In trial, if dismissed w/prejudice I can get it closed and removed. I looked up JAMS fees and it looks like they are on the hook for $2,000 in filing fees ($1,000 per party), plus additional fees once it gets rolling. Once we file the MTC with the court and mail a copy to the plaintiff, do I need to immediately file with JAMS and send them the $50 fee and copy to the attorney? Or do I wait to see the ruling on the MTC?
  5. Where you went wrong was that you and your wife should have declared chapter 7 together, re-affirmed the house and discharged everything else. Since she was not included in the BK7, the account wasn't completely discharged. They just went after the second signature. She's on the hook for the whole thing, but it was a joint debt, so it will come back to you and I believe she could go back to the family court and force you to pay.
  6. Call the court and check the status of the suit. In my case, the JDB scumbag attorney faxed over a motion to dismiss after they received my brief and motions in limine the night before the court date. Is it required that they file a brief with the court?
  7. I've won one of these last year in Colorado and the other side quit when they saw my Motion in Limine tthree days before the trial. They can't introduce any additional documents at trial due to Colorado's discovery rules, so I prefer to see what they have (usually not much), and then drop a nuclear bomb on them days before the trial. I'm fighting another one and we'll see what happens, but I have no desire to let them know that I know what they will need to prove their case. 99% of the time they walk into court expecting a rube with no ammo. Then just days before trial and weeks after discovery is closed, let them know I'm loaded for bear.
  8. The affidavit isn't hearsay if the affiant is a witness and can testify to the statements made in the affidavit. However, the affidavit states that the account was acquired from the OC. The BOS never individually lists the actual account name, account number and amount and on cross, all that needs to be done is to question the affiant about the statement that the account was included and ask how they can verify that the account was one of the ones purchased by the plaintiff. When they state it is listed in a list of accounts with names, addresses, account numbers and amounts, then you've got them boxed in. Where IS this document? According to rules of evidence, plaintiff must produce this document. They won't have it available, so make a motion to strike the testimony AND the affidavit. Without the testimony the affidavit is hearsay. Without the document that supports the statement in the affidavit, it is inadmissable under "writings used to refresh memory". Chain of possession broken = no standing.
  9. In Colorado, Discovery is required "as if requested". They'll give you everything they will bring to court. I'm wondering why you want them to go look for things that help them prove their case? If they don't have the things you are requesting they won't disclose them in discovery. Personally, I'd rather play it quiet and just attack them unmercifully at trial. They'll walk in expecting you to lay down and instead you defeat the BOS, the affidavit, the witness, etc.
  10. We'll provide the affidavit as evidence and introduce it at trial if necessary. Thanks. We denied the claim in the answer and the trial is set for the first week in April.
  11. Your credit report is your business record. Exempt from exclusion under hearsay rules. You generated the record and can attest to it's authenticity.. It's yours.
  12. Wifey was sued by Cavalry for an HSBC CC debt. Amount is just over $1,000. We were properly served and we files an answer denying the debt. The attorney is in Denver and we are in a rural area 2 hours from Denver. We went to pre-trial conference and stated the account had been paid to the OC in full (true), but due to last summer's wildfire, our records are ash. We're going to have to beat them on the law. Trial is in April The complaint had no documents attached - just the claim. At Pre-trial, we were given copies of: 1. Alleged final statement 2. Alleged Cardmember Agreement 3. Generic Bill of sale - no names, no account numbers and also no mention of the number of accounts being purchased other than that they are in attached exhibits (which of course are not attached). In Colorado, Discovery rules state that evidence must be produced "as if it were requested", meaning I don't have to ask for anything and neither do they - they just notify me within 30 days of trial with copies of documents and list of witnesses. I plan on submitting the original DV letter and their insufficient response as my evidence if I need it. I also will file our own personal afidavit that the bill was paid to OC. I'm assuming that an affidavit and affiant on the witness list being added to what already has been given to us. There is an interesting discrepency between the final statement and the bill of sale. The HSBC statement is dated 3/11/11 and the bill of sale is states they "entered into a a purchase and sale agreement" to purchase the portfolio on 2/14/11. The bill of sale was signed and delivered on 4/18/11 by a person who no longer works for HSBC. My strategy is: 1. Object to the statement being entered on hearsay. They will state exclusion under business records and I will argue third parrty records are not their records - they did not produce the documents and cannot attest to the accuracy or the business records practices of the OC. If they make a case for assumption of accuracy based upon longstanding business relationship, I plan to offer two rebuttal pieces of evidence. The recent 2012 settlement for improper billing practices by HSBC (Esminbger v HSBC) and the recent (2013) $1.9 Billion settlement from HSBC to the Justice Department for money laundering and the CEO's statement that HSBC had "crushed their reputation" in the banking industry as rebuttal evidence. Since this evidence is introduced to rebut their introduced evidence, does it need to be declared in Discovery? 2. Obejct to bill of sale as irrelevant and hearsay. Nothing contained in the document establishes a chain of posession of the alleged account. Since they are compelled to present all discovery, their failure to provide documentation linking the alleged account and the bill of sale breaks the chain. It IS business record of the plaintiff, so the heasay argument may not fly, but without exhibits showing names and accounts it is still irrelevant. 3. Object to Cardmember agreement as irrelevant and hearsay using same argument as above. 4. Impeach the Witness. Establish the scope of their job responsibilities, how many accounts SPV currently holds, their personal knowledge of HSBC business practices and processes, process of creating the affidavit. How many affidavits does he sign and who provides the affidavit to him. How does he know that this account was included in this alleged bill of sale? Question of the overlapping dates. Get him to state they write thousands of affidavits every month, that have tens of thousands of accounts from dozens of sellers and cannot possibly have personal knowledge of their business practices. Establish no personal knowledge. 5. Other key strategy: Colorado rules of evidence require that if a witness uses a writing (record) to refresh memory, either before or during testimony, that record must be provided for the defendant to review, inspect and cross-examine. Since I anticipate the witness will testify that the account was included in the bill of sale, I will ask where he verified that information. He'll say in the computer record, etc. I'll then cite the evidence rule and ask for the plaintiff to produce the records. They won't have them. Under the rules of evidence the entire testimony must be struck if they do not produce. Thoughts?
  13. This is legal opinion, published in the Journal of Business and Technology Law in 2011, Robo-signing And the Lack of Proof in Debt Buyer Cases Excellent citations and case law and conclusions for third-party business records, bills of sale, chain of possession, affidavits of keepers of records and robo-signing. I would quote here, but there is simply too much good stuff in here. This needs to be pinned! From the University of Maryland School of Law by Peter Horton: http://www.civiljusticenetwork.org/LinkClick.aspx?fileticket=97md-8krQFQ%3D&tabid=68
  14. In researching this, I need to file for a motion to set aside based upon excusable neglect. Stupidity - not reading the time correctly, is not going to fly. Any suggestions?
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