Cavalry Atty files 'Redacted Schedule of Accounts'

[mlsmket7]

I am well-embroiled in this case. Cavalry bought an old debt and had hearing. Judge asked Cavalry's counsel to provide a schedule of accounts linking them to me.

They filed what was essentially a spreadsheet that has various accounts blacked out and mine listed. Nowhere does it show purchase or assignment of debt.

I'm not sure how to handle this in court? Can I ask that it be stricken?

[LUEser]

I'd be willing to bet it's not authenticated, so yeah, why not motion to strike it as hearsay?

Did they even produce a bill of sale or the sale contract from the OC?

[debtorshusband]

What LUEser said.

Bills of Sale usually refer to an attached list of accounts. Without that attachment, it's worthless.

Likewise, the attachment by itself is worthless.

They need both, and they need to be better than something you or I could run off with an Excel spreadsheet.

Regards,

DH

[Massive]

Agreed total inadmissible evidence. You might even allude to it as being manufactured, because it sure isn't authentication from the original creditor.

[mlsmket7]

In the SECOND amended complaint (the first one they attached the wrong creditor...)they had attached is a "Bill of Sale and Assignment of Accounts", which is a photocopied fax from May, 2008. That looks legitimate.

Also attached was an "Assignment", which is a letter that says Cavalry SPV I LLC ("Assignor"), transferring and assigning to Cavalry Portfolio Services rights to pursue, etc. This looks generic and not executed. (Is that the right word?)

I complained in my motion to dismiss (in lieu of an answer, which is legal in IN) that there was no listing of my account in the purported bill of sale. On the hearing date, the atty showed up with yet a THIRD amended complaint, which caught me somewhat off guard. In this iteration of the amended complaint, there was also a set of photocopied statements and one that looks like it was typed up in notepad. Also, there was a spreadsheet with the list of accounts apparently blacked out but this one looked COMPLETELY AND UTTERLY MANUFACTURED. I could have typed it up myself.

The judge asked the atty "I assume you bought these?" and gave him 30 days to produce a redacted schedule of accounts. On Day 22, in the mail comes the 'Redacted Schedule of Accounts' which is, IDENTICAL to the spreadsheet listed in the complaint he showed up with in court.

HOW do I prove that this schedule of accounts is bogus?

[mlsmket7]

Per IN Trial Rules...Rule 9.2. Pleading and proof of written instruments

(A) When instrument or copy must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.

( Proof of execution of instruments filed with pleadings. When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith. A denial asserting that another person who is not a party did execute the instrument, indorsement, or assignment may be made without such oath or affidavit only if the pleader alleges under oath or in an accompanying affidavit that after the exercise of reasonable diligence he was unable to make such person or his representative (subdivision (H)) a party, the reason therefor, and that he is without information as to such execution.

© Oath or affidavit of denial of execution must be made upon personal knowledge. An oath or affidavit denying execution as required and made under subdivision ( of this rule shall be made upon the personal knowledge of the person making it, and, if general in form (Rule 11(), shall be deemed to be made upon such personal knowledge.

(D) Burden of proving execution. The ultimate burden of proving the execution of a written instrument is upon the party claiming its validity, but execution is presumed. “Presumed” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

(E) Inspection of the original instrument. When a copy of a written instrument is filed with or copied in the pleadings under the provisions of this rule, the pleader shall permit inspection of the original unless it is alleged that the original is lost, whether by destruction, theft or otherwise, or unless it is alleged or established that the instrument is in the possession of another person and out of the control of the pleader or that the duty to allow inspection is otherwise excused. The pleader shall allow inspection promptly upon request of a party, and inspection may be ordered by the court upon motion without a hearing at any time. A party failing to comply with such request or such order shall be subject to the provisions of Rule 37(. This provision shall not diminish a party's rights under Rules 26 through 38.

Execution...

(H) “Execution” of a written instrument. “Execution” of a written instrument includes the following requirements:

(1) That a signature was made with express, implied or apparent authority and was not forged;

(2) That the instrument was properly delivered, including any requisite intent that it be effective;

(3) That the written terms of the instrument have not been materially altered without the express, implied or apparent authority of the person bound thereon;

(4) That the person seeking its enforcement is in possession of the instrument when required; and

(5) That the names or identity of the persons named in the instrument are correct.

[mlsmket7]

Can anyone offer ideas? Can I file a motion to strike using the fact that the schedule of accounts is not authenticated as a basis?

[Linda7]

Has Cavalry shown a chain of custody all the way back to the original creditor - not just their previous Cavalry SPV I LLC?

Cavalry has a history of incorrectly identifying consumers amounts and were even fined in their state of Arizona. Check here - http://www.azdfi.gov/Final/Forms/Cavalry_Portfolio_Services_LLC_Consent.pdf

BTW, I'd print that out and have it with me to show in court! Also, I think it is kinda funny that they have already started off by identifying the "wrong" creditor in your situation! Use that for sure and have the documents showing the wrong creditor and where they had to make an amendment to correct that.

I don't know your court's rules - but, if you can file a motion to strike anything and everything, I would! Do you know if you can pretty much file a generic motion to strike or do you need to cite case law to back it up?

[mlsmket7]

Filed a motion to strike based on:

1.'Plaintiff failing to properly authenticate the Redacted Schedule of Accounts'

2.'Filed 'Redacted Schedule of Accounts' is a replication and recitation of the previously included filing in the Plaintiff's amended complaint.

3. The document is without an affidavit of authentication, and is therefore lacking in trustworthiness and is unconnected to the original creditor. As such, the 'Redacted Schedule of Accounts' is subject to Evidence Rule 902(9) and must be excluded.

[mlsmket7]

Cavalry filed motion denying, claiming I need to go through discovery in order to authenticate the document.

Strange, no judge has been assigned as the case was moved to a different county. They are persistent.