debtzapper

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debtzapper last won the day on October 26 2018

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  1. Congrats to the OP for his persistence and hard work and to the MEMBERS who continue to give generously of their time and expertise to this board.
  2. To learn more about Arbitration, read this from @fisthardcheese *Learn About The Arbitration Strategy**
  3. If you live in Western or Central OH, Greg Reichenbach is a very fine consumer lawyer. I know him from a TCPA listserv. Or go to www.consumeradvocates.org A consultation is free. http://www.reichenbachlaw.com
  4. This is a published January 2017 decision from the Idaho Supreme Court. The court held Portfolio Recovery Assoc, did not prove its case because an affidavit lacked adequate foundation. It is interesting what the court says about electronic documents. s://scholar.google.com/scholar_case?case=5217588372009441389&q=credit+card+debt&hl=en&scisbd=2&as_sdt=ffffffffffffe04 MacDonald argued that the statements contained in the Robertson Affidavit are likely based on information contained on a computer screen. We agree. The fact that Robertson's statements are based on electronic information, however, still implicates Rule 803(6). The Rule makes it clear that a business record can be in any format. In other words, a paper printout is not required to fall under the Rule. Having said that, however, we recognize that electronic information raises heightened concerns about accuracy and authenticity. This is where the foundation for Robertson's statements falls apart. Robertson stated in his affidavit that Citibank records showed that the account linked to MacDonald was sold to PRA. He did not identify the records he examined and did not explain when or how the information was entered into the Citibank records. Robertson also stated that Citibank prepared and delivered a spreadsheet to PRA reflecting account information as of the sale date. Robertson does not explain, however, how that spreadsheet was made or the procedural safeguards that were used to make sure that the information taken from Citibank records and put on the spreadsheet was accurate. His affidavit also does not contain any statement verifying that the information on the spreadsheet was still accurate at the time of his affidavit. The reality is that consumers do not always know or understand when accounts are sold and may make payments to their credit card company that are not reflected on a spreadsheet created at the time of the sale of the debt. For these reasons we find that the foundation for the statements contained in the Robertson Affidavit was not adequate under Rule 803(6).
  5. This case, similar to the "Bassett" case out of MI that I cited earlier, was decided by the TN Court of Appeals about two weeks ago in a published opinion. The JDB could not prove an unbroken chain of ownership and lost. https://scholar.google.com/scholar_case?case=12203742873897682673&q=credit+card+debt&hl=en&scisbd=2&as_sdt=ffffffffffffe04 Emphasis in original.) In this case, because Converging Capital is not the original owner, it must likewise prove "every link in the chain" between it and Matthews. Matthews argues that a link is missing, pointing out in his brief that "Ms. Baker never testified that Matthews's Citibank account was included in the respective exhibits that listed the accounts being purchased pursuant to the Bill of Sale between Citibank and Pilot nor pursuant to the Assignment of Bill of Sale between Pilot and Converging Capital." We agree. Converging Capital did not meet its burden of proof to establish it is the owner of the debt. See Mastow, 2012 WL 1534785, at *8 n.12 (similarly observing that "[t]he assignment agreements in Exhibits 2 and 3 show the trail of assignment of debts to LVNV, but do not sufficiently identify Mastaw's debt as among those assigned."). Converging Capital's complaint is hereby dismissed with prejudice.
  6. "Based on the foregoing, we conclude that plaintiff failed to affirmatively establish a continuous chain of title to defendant's debt between FIA Card Services, N.A. and Midland Funding." You are correct. It was not about authentication. But the court was demanding more proof from Midland that it owned the defendant's particular debt. Other courts might have not have been so strict in insisting on a continuous chain of title.
  7. Goody, you are indeed correct about R. 902 and many courts have cited it over the years, but in this 2018 case involving Midland and a pro se defendant, the court wanted more proof that Midland could authenticate the particular documents that pertained to the defendant. https://scholar.google.com/scholar_case?case=3316089820981380489&q=credit+card+debt&hl=en&scisbd=2&as_sdt=4,23 Rather, our issue with the chain of title documents is that they do not prove by a preponderance of the evidence that plaintiff owns defendant's debt. Although the chain of title documents admitted affirmatively show Midland Financial purchased a debt pool from Asset Acceptance, LLC, which was originally owned by FIA Card Services, N.A., the trial court's finding that defendant's individual debt was included in that debt pool is clearly erroneous. Walker testified that none of the chain of title documents contains any information specifically identifying defendant's account as an account included in the debt pool purchased by Midland Funding. To be clear, Walker testified that the bill of sale conveying the debt pool to Midland Funding from Asset Acceptance, LLC, does not specifically convey defendant's account. Rather, it conveys an unidentified pool of charged off accounts and a link to a secure server containing all of the individual account information in that pool. Walker was able to provide a field data report containing defendant's information prepared by Midland Funding after its purchase of the debt pool using the information obtained from the secure server. The field data report is "a redacted version of the electronic sale file that only shows the account information for that particular consumer without risking the privacy of other consumers' information." However, there was no information identifying any individual debtors in any of the chain of sale documents with respect to the sale between FIA Card Services, N.A. and Asset Acceptance, LLC, and likewise, no field data report, or similar document, was produced with respect to that sale. Therefore, there is a break in the chain of title as it relates to the inclusion of defendant's debt in the charged off debt pool. Based on the foregoing, we conclude that plaintiff failed to affirmatively establish a continuous chain of title to defendant's debt between FIA Card Services, N.A. and Midland Funding. Instead, plaintiff only established a continuous chain of title to a generic debt pool. The trial court's finding to the contrary was clearly erroneous, leaves this Court with a "definite and firm conviction that a mistake has been made." Jackson-Rabon, 266 Mich App at 119-120. Because Midland Funding failed to prove by a preponderance of the evidence that it owned defendant's debt, defendant was entitled to judgment in his favor.
  8. You need to change your mindset. I know that can be extremely difficult. But you have to do it.
  9. You the MAN, fist! Thank you for ALL you do here.
  10. To quote from the Frank Sinatra/Elvis Presley song, " I (You) Did It My Way." Congrats. And thanks to all the members on this board who helped with their time, effort and expertise. And a special thank you to you, @Brotherskeeper
  11. Wisconsin courts look favorably on arbitration agreements. https://scholar.google.com/scholar_case?case=15493243470236499939&q=motion+to+compel+arbitration&hl=en&as_sdt=4,50 14 There is a strong presumption of arbitrability where the contract in question contains an arbitration clause. See Kimberly, 222 Wis.2d at 39, 586 N.W.2d 41(citing AT & T Tech., 475 U.S. at 650, 106 S.Ct. 1415). Therefore, "[a]n 278*278 order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT & T Tech., 475 U.S. at 650, 106 S.Ct. 1415 (citation omitted). Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Id. Thus, when a court is called upon to ascertain the arbitrability of a dispute, the court's function is limited to a determination of whether: (1) there is a construction of the arbitration clause that would cover the grievance on its face and (2) whether any other provision of the contract specifically excludes it. See Joint School Dist. No. 10, 78 Wis.2d at 111, 253 N.W.2d 536; see also Kimberly, 222 Wis.2d at 38, 586 N.W.2d 41.