Crystal

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About Crystal

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  1. I ended up just calling Suttell & Hammer and worked out a monthly payment arrangement to Midland. They were surprisingly decent and willing to do the monthly payment arrangement considering they do have a judgment against me. They assured me that as long as I stayed current on the payments that there would be no wage garnishment. Sigh...
  2. I spoke with a lawyer yesterday and I would have to go through the appeal process. He said even if I could, which I can't in district court, a motion to reconsider was a bad idea. He had experience with this and said the judges don't look too nicely on those. The bad news is since my case was filed in District court I would have to file an appeal AND put up a bond in twice the amount of the judgment which would be close to 10K for me, with 10% down. He said it was very risky because if I lost I would owe all that money. He said the judges in the District Courts here are terrible and it really just depends on what side of the bed they woke up on as to whether or not they decide to rule in your favor. He said Wa tends to be a very creditor friendly state. So I'm really stressed about this. Though I'm not working my husband is and since Washington is a community property state I think they can garnish his wages or even go after our bank account. It looks like my options are either trying to negotiate a payment arrangement with Midland hoping they won't take the garnishment route or just filing for Ch. 7 bankruptcy. But since our overall debt is less than 10k it seems like a pretty drastic solution. Any suggestions at this point? I'm so disillusioned with this whole process
  3. I called the court and they said I couldn't file a motion to reconsider for a case filed in District court. They said I'd have to go through the appeal process. Bummer....
  4. Thanks so much for all the info debtzapper. It really helps! I can see have some work to do quickly.
  5. I believe the hearing is electronically recorded and I can order a transcript but I need to verify this.
  6. That's a great point skippy. I didn't even know such a thing existed. I will look into it. Thanks so much for the info!
  7. And by the way I did cite the Bridges case even verbally at the hearing and the judge just basically rolled his eyes. It was brutal.
  8. I did cite the following Wa case law. It says that the assignment is presumed valid unless objection is made thereto by the debtor. I assumed that by filing an affidavit of a sworn denial of debt that would qualify as an objection and they would then have the burden to prove their assignment. Under Washington law, RCW 19.16.270 provides that "the assignment of the claim to licensee by his or its customer shall be conclusively presumed valid, if the assignment is filed in court with the complaint, unless objection is made thereto by the debtor in a written answer or in writing five days or more prior to trial." Where "the fact of assignment is put in issue ... proof of the assignment is essential to a recovery by the assignee" and "[t]he burden of proof of the assignment is on the one claiming to be the assignee." Smith v. Rowe, 3 Wash.2d 320, 323, 100 P.2d 401 (1940). Proof of assignment is a question of fact and we will not disturb the trial court's finding unless it is against preponderance of evidence. Isings v. Cugini, 178 Wash. 698, 34 P.2d 359 (1934); see also Rowe, 3 Wash.2d at 322, 100 P.2d 401 (citing 6 C.J.S., Assignments, § 139). I also cited the following Wa case law regarding the bill of sale because the document was generic and didn't reference my name or account number. A bill of sale with no name, account number, or any other information identifying Sunde's debt as having been sold or assigned to Unifund is insufficient to establish that U.S. Bank assigned the rights and obligations on Sunde's contract to Unifund. See, 921*921 e.g., Zion, 152 Wash.App. at 630-31, 218 P.3d 621 (where debt collector provides no direct or even indirect proof of any written assignment by the original debt holder, reversal of summary judgment is appropriate). I even cited the following case law regarding the credit card statements they provided: Credit card statements as proof of use of a credit card requires detailed, itemized documentation of the alleged cardholder’s actual use, from zero to alleged balance. Discover Bank vs. Bridges, 154 Wn. App. At 727-28. I don't get it. I would have thought any one of these things would have resulted in a denial since there was a clear material issue of fact. What did I miss or do wrong? Is it worth an appeal.
  9. Here is what I had written in my Opposition: 1. Exhibit A: Affidavit of Balance as provided by Plaintiff Plaintiff has submitted an Affidavit of Balance to the Court, alleging certain facts. However, said affidavit fails to meet even the basic mandates for admissibility as evidence. Rule 56 of the Washington Rules of Civil Procedure mandates in part: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Plaintiff relies exclusively on an affidavit executed by Lily Haas, who identifies herself as a “Legal Specialist,” without specifically identifying her employer, but only identifying for whom she is testifying. Lily Haas claims familiarity with the recordkeeping practices of Midland Credit Management, and has “reviewed the records pertaining to the account” that are allegedly kept in the regular course of MCM’s business. She then annexes information and discusses or references other documents. However, Lily Haas does not advance any documents admissible as evidence. Moreover, Lily Haas discusses records generated by the Plaintiff, but does not advance any such documents. The only documents included in Plaintiff’s request for summary judgment, which Lily Haas references and annexes, are apparently originated by the alleged assignor, Chase Bank, USA, N.A. although none are authenticated by the original creditor. Courts have frequently held that an employee of the assignee of a debt does not have the personal knowledge necessary to testify about events or documents pertaining to the original creditor. See: Martinez v Midland Credit Management, 250 SW2d 481 (Tex Ct of Ap. 2008), Ex 2; Asset Acceptance v Lodge, 325 SW3d 525, (MO App 2010), Ex 3; CACH v Askew, 2011 Mo App LEXIS 429 (Mo App 2011) Ex. 4. Lily Haas’s affidavit, as a Midland Credit Management employee, is not adequate to establish any facts related to annexed documents. Defendant states that the Plaintiff’s affidavit pertains to acts and events that allegedly occurred between the Defendant and a third party, Chase Bank, USA, N.A.. At no time was the affiant nor any of the Plaintiff’s employees present to witness any purported acts or creation of the records of transactions and communications occurring between the Defendant and Midland Funding LLC; as such, the affidavit of Lily Haas falls under the hearsay Rule ER 802 and is inadmissible as evidence. Defendant further states that the affidavit is not subject to the hearsay business records exemption Rule ER 803(6) because it was not made at or near the time of the purported acts or events, and; the information contained in the document is merely an accumulation of hearsay. Defendant further claims that the underlying documents for the alleged account, annexed in Plaintiff’s Motion for Summary Judgment, were not records kept in the course of regular business by Midland Funding LLC, but were records kept by Chase Bank, USA, N.A. who is not a party to this suit. Wilson v. Jenga Corp., 490 N.E. 2d 375, 377 (Ind. Ct. App. 1986) (a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge to ensure reliability). There is no record of who compiled the underlying data specifically, and therefore no way to challenge and cross-examine the accuracy of this data in the course of a trial. While Lily Haas may very well be Midland Credit Management’s Legal Specialist, the mere acceptance or incorporation of electronically transferred data from Chase Bank, USA, N.A., into Midland Credit Management’s business records is not enough to satisfy the trustworthiness requirements of Rule ER 803(6). The source of information or the method or circumstances of preparation indicate a lack of trustworthiness and reliability.
  10. I had my MSJ hearing on Thursday and lost. After hundreds of hours of research and preparation the judge still granted plaintiff's motion for summary judgment. I had filed an Opposition to Plaintiff's Motion for Summary Judgment, citing all kinds of Wa case law to back up my arguments. I objected to all their generic evidence and I also filed an affidavit of sworn denial of debt as well. It was a rather horrible and humiliating experience. I'm sharing this not to freak anyone out, but if you live in Washington state I'm hoping my experience will help you have a better outcome than I did. The problem was the judge's mind seemed already made up even before the hearing started. The worst part was the judge had not even read my Opposition and didn't even realize I had filed one until I pointed it out to him. he said he must have "overlooked" it in the file. He then took about 2 or 3 minutes to skim over my opposition and still seemed unmoved in his decision. In my opposition I said the material issue of fact remaining was that the plaintiff had not proven they had standing to sue. I cited case law from the Wa court of appeals which set a precedent clearly stating why the OC's credit card statements should not be admitted. It was unbelievable. What it all boiled down to for the judge was that nowhere in any of my documents did I deny owing the original creditor. In my affidavit I denied that I owed the debt. I denied that I owed the Plaintiff. But that didn't matter. The judge heard nothing that I presented and said he was going to allow their generic affidavit from Midlands legal specialist in as evidence and that it met the business records exemption (all of which I objected to in my Opposition). When I tried to speak up again he shut me down and said "I don't want to argue about this" and just so you know I was not being argumentative at all before this. Just clearly trying to state my case when it was my turn to talk. So My question after all this is should I appeal? I'm feeling really deflated and a little dumbfounded that I lost. I thought I did everything right. I really feel like I should appeal and that the judge did not give fair consideration to my opposing arguments. In fact he said, right before he gave his ruling, "well I see here that these statements were sent to your current address and that at some point the balance changed" and in his mind that was good enough to confirm that I owed the debt. Any thoughts on whether or not I should appeal would be greatly appreciated. I just don't want to throw more time and money out the window.
  11. Well sasha0378 sounds like we had the same judge. I had my msj hearing this morning in Thurston County Superior Court and it was awful. I felt 110% prepared. I had filed everything including an affidavit of sworn denial of debt. However when I got up there it seemed as if the judge had already made his decision and what it boiled down to was like you my affidavit did not deny the fact of having an account with the original creditor (wtf?) I had only denied owing the debt and owing the debt to the plaintiff but not to the original creditor. He didn't even consider my issue of fact of the plaintiff not proving they had standing to sue. I did quote plenty of case law in my opposition to their MSJ. Should I try and appeal this?
  12. Thanks so much again for everyone's input. Do I need to file copies of all three docs with the court or just the Request for Admissions?
  13. Thanks for the input Spikey. I noticed I actually misworded #5 a little. It should read: REQUEST FOR ADMISSIONS #5: Admit defendant defaulted under the terms of the credit account. Not sure if this changes the advice you gave me above for #5. Also, it would seem to me that all the Plaintiff has to do to prove many of these admissions that I denied, is show the judge copies of the credit card statements they sent me that have my name, account number, amount owed, payments etc. on them. What am I missing? And how do I handle this in court if the judge points to the statement and asks me if it's my account? Thanks!
  14. Here are my responses to their Request for Admissions. Not sure if I'm being too general. Thanks in advance for any feedback. REQUEST FOR ADMISSIONS #1: Admit defendant requested that the original creditor, Chase Bank opened a credit card on defendant's behalf. RESPONSE TO #1: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. REQUEST FOR ADMISSIONS #2: Admit that the original creditor, Chase Bank, issued defendant a credit card bearing account number XXXXXXXXXX1234. RESPONSE TO #2: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. REQUEST FOR ADMISSIONS #3: Admit defendant received mail at the adress of 12345 St., XXXXX, XX in the years of 2010 and 2011. RESPONSE TO #3: Deny. Defendant was not living at the stated address in 2011 and therefore could not receive mail there. REQUEST FOR ADMISSIONS #4: Admit the original creditor, Chase Bank issued monthly statements reflecting the defendant's use of said credit card. RESPONSE TO #4: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. REQUEST FOR ADMISSIONS #5: Admit defendant defaulted under the terms of the credit card agreement. RESPONSE TO #5: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. REQUEST FOR ADMISSIONS #6: Admit defendant incurred a debt through the use of the subject account ending in 1234. RESPONSE TO #6: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. REQUEST FOR ADMISSIONS #7: Admit defendant made payments on the subject account ending in 1234. RESPONSE TO #7: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. REQUEST FOR ADMISSIONS #8: Admit Defendant failed to repay all charges made on the subject account ending in 1234. RESPONSE TO #8: After a diligent search and a reasonable inquiry was made in an effort to comply with this request, the information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. Thanks for the help!
  15. Here are my responses to their Request for Production of Documents. Again any feedback is greatly appreciated: GENERAL OBJECTIONS Defendant objects generally to all of Plaintiff’s Requests for Production of Documents on each of the following grounds: Defendant reserves the right to supplement or amend these responses and objections as additional information becomes available to Defendant. REQUEST FOR PRODUCTION NO. 1: Produce the original contract or terms and conditions on the account number XXXXXXXXXXXX1234. RESPONSE TO REQUEST FOR PRODUCTION NO. 1: Defendant is not in the possession, custody or control of any documents responsive to this request. REQUEST FOR PRODUCTION NO. 2: Produce all subsequent terms and conditions Defendant received on account number XXXXXXXXXXXX1234. RESPONSE TO REQUEST FOR PRODUCTION NO. 2: Defendant is not in the possession, custody or control of any documents responsive to this request. REQUEST FOR PRODUCTION NO. 3: Produce all billing statements Defendant received from the original creditor on the account number XXXXXXXXXXXX1234. RESPONSE TO REQUEST FOR PRODUCTION NO. 3: Defendant is not in the possession, custody or control of any documents responsive to this request. REQUEST FOR PRODUCTION NO. 4: Produce all documents that support Defendant's denials of the allegations in the Complaint, as stated in Defendant's Answer. RESPONSE TO REQUEST FOR PRODUCTION NO. 4: Defendant is not in the possession, custody or control of any documents responsive to this request. Defendant further states no documents responsive to this request exist. REQUEST FOR PRODUCTION NO. 5: Produce all documents that support any affirmative defense Defendant asserts in the answer. RESPONSE TO REQUEST FOR PRODUCTION NO. 5: Defendant is not in the possession, custody or control of any documents responsive to this request. Defendant further states no documents responsive to this request exist. REQUEST FOR PRODUCTION NO. 6: Produce all correspondence Defendant sent to Plaintiff on the subject account. RESPONSE TO REQUEST FOR PRODUCTION NO. 6: Defendant is not in the possession, custody or control of any documents responsive to this request. REQUEST FOR PRODUCTION NO. 7: Produce all correspondence sent to any third party on the subject account. RESPONSE TO REQUEST FOR PRODUCTION NO. 7: Defendant is not in the possession, custody or control of any documents responsive to this request. Defendant further states No documents responsive to this request exist. REQUEST FOR PRODUCTION NO. 8: Produce all correspondence received by Defendant from Plaintiff on the subject account. RESPONSE TO REQUEST FOR PRODUCTION NO. 8: Defendant is not in the possession, custody or control of any documents responsive to this request. REQUEST FOR PRODUCTION NO. 9: Produce all correspondence received by Defendant from any third party on the subject account. RESPONSE TO REQUEST FOR PRODUCTION NO. 9: Defendant is not in the possession, custody or control of any documents responsive to this request. REQUEST FOR PRODUCTION NO. 10: Produce copies of front and back of all canceled checks and money orders sent to the original creditor, Chase Bank in the last six years on the subject account ending in 1234. RESPONSE TO REQUEST FOR PRODUCTION NO. 10: Defendant objects to the Plaintiff’s request as the existence and validity of the alleged account has not yet been proven. It is burdensome to the extent it seeks documents or records that are not within the current knowledge, possession, custody or control of the Defendant, more readily or accessible to Plaintiff from Plaintiff’s own files, from documents or information already in Plaintiff’s possession. Without waiving objection, Defendant has no documents to provide this request. REQUEST FOR PRODUCTION NO. 11: Produce all of Defendant's bank records for the last six years. RESPONSE TO REQUEST FOR PRODUCTION NO. 11: Defendant objects to the Plaintiff’s request as the existence and validity of the alleged account has not yet been proven. It is burdensome to the extent it seeks documents or records that are not within the current knowledge, possession, custody or control of the Defendant, more readily or accessible to Plaintiff from Plaintiff’s own files, from documents or information already in Plaintiff’s possession. Without waiving objection, Defendant has no documents to provide this request.