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Has anyone actually won against an OC at trial?

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I really appreciate all the information everyone shares here, and I'm not trying to be smart. After weeks of prep, I'm going to trial tomorrow. Maybe it's nerves, but suddenly it seems I've got a 1% chance of winning (that's only if the opposing lawyer doesn't show up).

I know some of you have had trial victories, but from what I can tell they've all been with JDBs. Has anyone here actually beat the original creditor at trial? There are a number of defenses available in a JDB case, but very few with the OC.

My basic strategy is to try to keep them from admitting evidence, but that seems unlikely to succeed because of the business exemption to the hearsay rule. In NJ the affiant does not have to be present at trial when their testimony is regarding records kept in the course of regular business. All they would have to do is present some cc statements sent to my house and an affidavit from the OC and they've proved enough to prevail.

If I'm missing something here, let me know.

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and the case was dismissed for lack of prosecution. We answered and asked for a Bill of Particulars and showed up to all the hearings. Since they litigate thousands of cases a week, they count on defaults so they don't show up to all the hearings and settlement conferences. This is how we won in a sense; they didn't show up to a settlement conference and that was mandatory in our county; they violated a local rule of court.

Somehow a few months later our supposed account landed with another law firm sending us threatening notes saying they took over the case; but the case was dismissed already! Called the clerk, they did not refile. Called the new attorneys and told them the case was dismissed. Haven't heard anything back yet and its been well over a year now knock on wood...Keep your head up. Others have won even at trial against OC's. Usually because a key witness like a custodian of records does not show up so they are obligated to dismiss the case. Keep your fingers crossed, your mind sharp and your head up:) We wish you the best!

Regarding your case, did you conduct discovery? Anything not presented in discovery is barred from admission at trial. Business exemption to hearsay rule usually can work for OC custodian of records but they have to be the custodian AND the account has to be itemized from zero balance. They MUST prove their damages otherwise how can the court be sure that you legitimately owe them a darned thing? What have you done up to this point?

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Thanks for that rikkivs! It's good to hear there is a possibility of success!

I also re-read the winning stories of mustang girl and singledadjames for inspiration - even though they were JDB cases.

A little over a month ago I sent the Plaintiff's attorney discovery. Interrogs, admissions and document request. They have not responded. Tried to get an adjournment with the court in order to complete discovery but was denied. Not enough time now to compel.

The only documents I've seen were included in Plaintiff's MSJ: a portion of an original card application showing my signature and address (without any terms), and parts of a credit report from about the time of alleged application. I don't think I'll have any trouble getting these thrown out. There is no mention of the plaintiff (or any other creditor for that matter) on any of these documents. I was successful getting their MSJ denied, but believe they'll have more documents tomorrow.

There have been many posts saying that plaintiff cannot introduce documents that were withheld during discovery, but I can't find any state rule that confirms that. I'll certainly try and see what happens.

I've also heard about the securitization defense in several places, but has it been successfully argued in court.? Seems like a complicated case to make. But I'll be trying it anyway! Likely will put that one last on the list.... sort of a Hail Mary attempt when all else has failed.

Greatly appreciate your points about the custodian of records in regards to business exemption, and calculating from zero balance! I'll be using those as well.

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Not only do you need to understand the issues surrounding securitization but you will need to be able to bring everyone else along as well. It is at this stage best described as a rabbit hole, I don't disagree with the description.

Even in securitization someone has been assigned the rights to collect as it goes back and forth between OC, holding companies, trusts, pooling agreements and investors. I think they take a lot of shortcuts, and make claims that maybe are not supported by the rights they are holding at the time they make the claims. The only way you can be sure is to look at the chain of sales and assignments and who holds what rights at what time. Then you have to ask if there has been any kind of payout from insurance on defaulted debt which is another can of worms. Its not something that you can take on a casual stroll, Its a defense that I have come to believe that you need to be comitted on and maybe committed for even going down the path.

If you can't explain it and can't get your head wrapped around the whole thing I would be concerned that you'd lose too much credibility in the eyes of the court and that might hurt you. I'm not saying don't go down the road, just saying that if you do be prepared.

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If it were me I would stay away from securitization at trial, unless you are Neil Garfield. You need to concentrate on only a couple of things-

They have to have a witness to authenticate any evidence they put forth as proof of the debt, the card with your signature, any statements, cardmember agreement.

You should already have an affidavit from this person from SJ hearing. You want to poke holes in this testimony. Many times they will say statments were sent, they can't say whether you recieved them. Also make sure to question payments made on the account. Many times we pay electronically so no way to show who made the payment, unless they have a canceled check with your signature.

If you have the name of the affiant, do a google search and facebook see how they refer to themselves. I had an affiant sign affidavit with one title and searched and found they refered to themselves as something else in their Linkd profile. Went and got job despcrition from Bank, job description didn't include custodian of records.

Finally, remember it preponderance of evidence, threshold is low, so object to as much as you can the more that isn't allowed in the better.

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Just returned from court.... We did it!! Beat an original creditor!

It's a little complicated, and technically a settlement. Briefly, I agreed to pay $1000 for a dismissal with prejudice on their $7500 claim. A dismissal w/ out prejudice for $0 was there for the taking, but we opted to take this route for the peace of mind knowing that it was completely over, never coming back and off of our credit reports.

If anyone wants the details / long version, let me know and I'll lay it out.

Will soon post some interesting and possibly helpful bits of insider information I picked up from their lawyer on the way out of court.

To everyone on these boards "THANK YOU!"

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On my cross-complaint which was dismissed with prejudice last year I took home $4,800. Their complaint against me was for $20K or $24,891 or something just below the unlimited jurisdiction designation.

I don't think my case was so rock solid big bad bank of america was afraid of losing I just think my strategy worked. I cranked up their legal fees such that it was really clear their legal fees were going to exceed the amount of their judgment and while I have assets I made it clear there was no way in heck they would ever see a dime if they did win.

That's why it's so critical to look at the facts of your particular circumstance, the relevant law and find the basis for a cross-complaint. Without a strong cross-complaint in California you really have no basis for earning the respect that is required to win. In my case the trial judge sent the case to mediation before a commissioner. That move along costs BofA about $2700. Crank their legals and win a check plus dismissal with prejudice. xdancex

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Congratulation, every victory is about what works for your family. Settlement at 13% is pretty darn strong, don't know many around here that wouldn't take that % and walk.

Would love to hear as much detail as you have, really helps for others facing the court proceedings and negociation that really happens most of the time.

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13&1/3% settlement plus dismissal with prejudice is great news! I told you that you could prevail against a supposed OC! Settlement conferences are really the way to go because as another poster pointed out, the legal fees the OC's incur are astronomical compared to the amount they're suing for at some point it isn't worth their while to pursue litigation so that works for your favor in pursuing settlement.

Once again congrats!

BTW please lay out the long version; did you use the securitization defense at all?

Edited by rikkivs
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  • 3 weeks later...

Congratulations Late2theparty!

I have been sued yet again by an OC, (case was dismissed over a year ago) and this time is no less nerve wracking!

I told the lawyer ( the law firm seems to always send a different person to try and intimidate me ) that in the very unlikely event they should win if the case goes to trial that I would go bankrupt. Which is the truth, and maybe I should reiterate because no one seems to get what a waste of time this is for everyone.

Anyway, hope you don't mind, I have pm'd you.

Edited by endofmyrope
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Just wanted to add a few details to my earlier post regarding success in court...

On the day of trial in NJ (special civil part and small claims) the court requires the parties to meet and attempt to settle before seeing the judge. I hoped to use the mediation as an opportunity to see what kind of evidence they were going to present. Plaintiff had not responded to my demands for discovery so I had no idea what kind of documentation they'd bring. The only things they'd shown previously were a signature portion of credit card application (without any bank name or terms) and portions of an old credit report. In my motion to oppose their MSJ, I trashed that evidence and expected they'd come up with something better.

Incredibly, that was all the attorney brought. I told him I didn't think he had a case. The lawyer got all nasty and insulting asking where exactly I got my law degree. The mediator broke it up and put us into different rooms and met with us separately. After a few minutes, he came in and said the plaintiff was willing to take $6200 as settlement.

My wife and I were still incredulous at the lack of evidence. We knew we could walk into the courtroom and have the case dismissed. It would be dismissed without prejudice though, and we didn't want to have to go through this process all over again, or have it hanging on our credit reports for years. I figured that if I offered something ridiculously low, like $100, the lawyer would just take his chances in court or voluntarily motion to dismiss, then refile. So I offered $1000 as full settlement / dismiss with prejudice. Seemed much lower than what they'd accept, but still something. The attorney countered with 5500. I said no way and the mediation was over.

After the meeting, as we made our way back into the courtroom, plaintiff's lawyer jumps on the phone and walks quickly away. I could overhear him talking to his superiors back in the office that things were not going well. He was asking for instructions on how to proceed. My wife and I were in the courtroom waiting for the judge to call our case when the mediator asked me to step outside. He wanted to know if our $1000 offer was still available! Plaintiff accepted the offer as full settlement.

Walking out, I struck up a conversation with the plaintiff's attorney and he turned out to be surprisingly open. Very young and probably just out of law school. He said he was a "hired hand" for the law firm. Meaning he didn't actually work for them, but was called to appear in court on a freelance / day basis. Said that this was very common practice. He gets a set fee to appear, but if he had to litigate before the judge his fee would have been more (double, I believe he said). The evidence he brought was emailed to him the night before and he wasn't really told anything about the details of the case.

At one point in the mediation he'd said that he was going to get a witness from the OC down to the court to testify. I found this extremely unlikely. Turns out he was, indeed, bluffing. Told me that there are witnesses that get called in on short notice to vouch for their evidence, but they probably would not have shown up for such a small amount ($7500). He said that his tactic in court would have been to ask for a reschedule. I didn't think he'd get it, and he agreed it was very unlikely the judge would have agreed.

He was usually given the same slim evidence for most of his cases, but did mention Discover and Chevrolet usually have better than average evidence.

In retrospect, I think I could have gotten the same result for less $. But I'm grateful it's over. It's been slow but I've addressed nearly all of my financial disasters. Just one more case left to tackle now... Feels great! Many thanks to everyone! Your help has been invaluable!!!

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Guest usctrojanalum
and while I have assets I made it clear there was no way in heck they would ever see a dime if they did win.

What? Why? Why would you refuse to pay your just debts if you had assets and a judge decided against you on the merits of your case?

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