tiredofthebs

Capital One is gone crazy

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Capital One has filed a suit against me. During the discovery phase they sent me a document from their law department that indicates my account was charged off on 1/2002. I issued that to the court as evidence so the judge would not render their msj against me. Capital one comes back and writes that the document I submitted from them is not authenticated. Are you kidding me. They also submitted to the judge billing statements which I can tell has been altered to show that I made a payment in 2003. That is so not true. I would like to respond back to there msj can anyone guide me in the right direction in this.

This document came from them and just because it was their mistake how can I authenticate a document from them or even prove that this is the real document. They have the capacity to change the documents not me. They also filed an affidavit stating that I made a payment in 2003. I would like to show the court this person is lying.

Any suggestions

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A credit report may come in handy

EQ shows -

charge off amount

date of first delinquency

date reported

date of last payment

amount of last payment

date of last activity

This might give you a place to begin why the affidavit they submitted should not be used

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In some states, like Texas, the production of a document by a party automatically authenticates it for use by the other party. So, the defendant in a lawsuit by Cap One would not have to authenticate documents produced by Cap One in order to use them against Cap One.

You need to check the law in your state to see if production by a party constitutes authentication.

Tell the judge they can't have it both ways. They can't use their own documents against you when it suits them, but then complain that the same documents are not authenticated when they don't like you using the documents. That argument would work in Texas. I don't know if it would work in Georgia.

If the statements are altered, you need to testify to that and try to prove it. Do you have copies of your statements? Probably not. Do you have bank records? If you did not make a payment when they claim you did, your bank statements could be used to show that there is no payment that matches the payment they claim you made.

If you think the person who gave the affidavit is lying, notice their deposition.

There is a lot you can do to defend these cases, but it is a challenge to tell a non-lawyer what to do or how to do it. Do-it-yourself legal defense is a risky business.

I assume you can't afford to hire a lawyer to represent you. But you might at least see if you can find a local lawyer to spend a few hours with you to coach you and help you with your filings. You have a lot of questions that really need to be addressed to a good local attorney.

www.creditdefenselaw.com

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Just bear in mind, a credit report is hearsay. If the credit card company objects to your use of your credit report as hearsay, the objection will probably be sustained, and then you better have some other evidence to support your case.

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This should help:

Beware of “facsimile” records, which are computer-generated, non-image

documents. If the records are generated by computer, a person familiar with the computer system who

can testify that the output is an accurate reflection of the input must lay a foundation. In re Vinhnee,

2005 Bankr. LEXIS 2602, 2005 WL 3609376 (9th Cir. BAP, Dec. 16, 2005). Among pertinent subjects

of inquirty are “system control procedures, including control of access to the pertinent databases,

controll of access to the pertinent programs, recording and logging of changes to the data, backup

practices, and audit procedures utilized to assure the continuing integrity of the records.” (Id., *25-26)

In that case, “The trial court concluded that the declaration in the post-trial submission was doubly

defective. First, the declaration did not establish that the declarant was ‘qualified’ to provide the

requisite testimony. Second, the declaration did not contain information sufficient to warrant a

conclusion that the ‘American Express computers are sufficiently accurate in the retention and retrieval

of the information contained in the documents.’" (*22-23)

In other words, all the documents they have produced which are "reprints" are defective and inadmissable unless they bring in a witness to lay a foundation for the integrity of the records. A witness you can cross examine.

Hope that helps.

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