Jump to content

Can on OC with no witness?


Recommended Posts

so I got a trial date set for July, I beat the MSJ, a few months back. I talked to the Attorney he said I would be the only witness he would be calling.

Do I have to tesityf? and How am I to defend my myself If I can not cross examine there wintness or confront my excuser?

Link to comment
Share on other sites

Guest usctrojanalum

Well confronting your accuser is a constitutional right one has when they are being charged with a crime. I don't think that is the term you are looking for here. If they do not bring a witness to testify, this really should be a slam dunk for you.

Link to comment
Share on other sites

Guest usctrojanalum

Well, yeah maybe to liability. But there are many other aspects of the case such as damages and how they were calculated. Fees, interest, etc.

Link to comment
Share on other sites

This is something I've always wondered. Can you plead the 5th amendment in cases like this? Essentially every time they ask you a question related to the debt plead the 5th?

Here is what I found on it, but I don't know if it's applicable to a debt hearing. Is there any way to link a debt hearing to criminal charges in order to be able to invoke a persons right to plead the 5th? Does it even have to be linked?

"The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it."

See McCarthy v. Arndstein 266 U.S. 34, *40, 45 S.Ct. 16, 17 (U.S. 1924).

Read more: http://wiki.answers.com/Q/Can_you_plead_5th_amendment_in_civil_law_suit_deposition#ixzz1IJ25iJK2

At the very least just answer everything with not to my recollection or I have no recollection yada yada yada?

Edited by Hal Jordan
Link to comment
Share on other sites

I didn't know if it had to be criminal or not to plead the 5th amendment.. I found this on a law exam posted to the net.. in a case where an accused may have to pay his neighbor for damages (This does not qualify for pleading the Fifth because it is a civil case not meant to punish or deter illegal activity.) Should have googled first and asked second. Sorry for wasting your time man. Thank you for answering though.

Edited by Hal Jordan
Link to comment
Share on other sites

I would work to get the affidavits tossed as hearsay. If they have given to you, research the affiant. Also, look for federal cases where Midland has been cited for using false affidavits (in fact, bring up the recent case filed by the MN Attorney General).

If you get the affidavits tossed and they have no other documentation (and you should know what they are presenting if you did discovery properly), then if they do put you on the stand, just testify that you have no recollection of the debt. If becomes their word vs yours and they are the ones that have to prove their case first. Just make sure to know what documentation they have before entering the courtroom.

Link to comment
Share on other sites

In fact, see if you cannot possibly try to get a continuance on this case until the AGs case is done. Since the plaintiff is trying to present evidence that has been brought into question by the AG case, that case should be resolved before yours can be resolved. Remember that they cannot do anything until they have won in court. I would bet that if you get that kind of continuance, they take their ball and leave the court because then, all is stuck until that case is done.

I would contact the AG too at the point and bring the affidavit to their attention and see what they say.

Click on this link for more details: http://www.creditinfocenter.com/forums/showthread.php?t=307109

Link to comment
Share on other sites

You can't plead the 5th.

If they call you and you get amnesia, the judge ( this won't be a jury trial I presume) will likely find you incredible.

Hopefully, you have a thoughtful answer and your motion papers articulated one or more decent defenses. Off the top of my head, if you were called, you might admit to having a card with teh issuer, but deny the paperwork is true., i.e. don't tlet them authenticate the paperwork through you when it is their burden to bring someone

Link to comment
Share on other sites

my defense is securitization of the account, and that the plaintiff was not the issuer of the account. American Express Company and American Express Centurion Bank. are two different enities

the balance is not correct, the interest rate there charging has yet been proven and are a few of the points i will argue.

Link to comment
Share on other sites

  • 1 month later...

Even if you admit you "applied or opened" a credit acct* w/whomever...follow that statement up with that the plaintiff has not proven that this is a valid debt nor that this particular debt is mine.

*You don't want to appear as a liar to the judge, esp. if acct stmts, cxld cks...admissible or not as evidence, is presented.

---

Disclaimer: I am not a lawyer. This post does not constitute legal advice & is for informational purposes only. xangelx

Link to comment
Share on other sites

600.2154 Witness; obligation to answer through revealing civil liability; self-incrimination.

This is what Michigan says on the subject

Sec. 2154.

Any competent witness in a cause shall not be excused from answering a question relevant to the matter in issue, on the ground merely that the answer to such question may establish, or tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit; but this provision shall not be construed to require a witness to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other rule respecting the examination of witnesses.

Link to comment
Share on other sites

Now, if I get called as a witness, and admit to having a credit card with the plaintiff, am I doomed?

I don't think so. You can always say, "yes, I did have a card with the Plaintiff, but to the best of my recollection, the debt was paid. I see no proof of an outstanding balance."

Link to comment
Share on other sites

my defense is securitization of the account, and that the plaintiff was not the issuer of the account. American Express Company and American Express Centurion Bank. are two different enities

the balance is not correct, the interest rate there charging has yet been proven and are a few of the points i will argue.

SO the plaintiff did not issue the account? or they don't have standing to initiate and sustain the suit?

There is going to be a party of interest somewhere, so what are you alleging in your securitization defense?

The OC sells the receivables in securitization with all rights and risks,the account is labeled internally within the banks system that it is a securitized account, the SEC does not have information on individual accounts that are included in the trust.

So you have to rely on the Bank to provide information as to whether or not the account is securitized. They will fight that in discovery which means that you would need a subpoena to get the information and include a Bank employee, records keeper of some type on your witness list that you can submit interrogatories to (that they will also fight)

Some of the information you need can be found or alluded to in the prospectus of the trust which gives you the language you need to formulate questions and discovery, the amount of credit card receivables is indicated and you can probably find the number of total credit cards that are current so you can at least be able to say as example that according to the prospectus 85% of the receivables that Bangster Crooks have are securitized so a preponderance of the evidence that you do have access to supports securitization.

To me the issue is that they sold their rights lock stock and barrel and can only have standing to pursue a lawsuit if those rights are clearly spelled out in the Master Trust and Pooling Agreements that assign the debt's rights back to the Original Creditor to service, Rights that cannot be assumed without undue prejudice to the defendant.

They don't seem to want those agreements floating around out there, my guess is they will aver that they have the right to service the account and collect on it and may even provide an affidavit of stating they have the right.

Your best hope is that the attorneys don't understand the issue and make a mistake that you can capitalize on.

So I look at the Securitization of the account as the first issue, do they have standing? and push for proof in the form of Master and Pooling Agreements, Interrogatories to employees of the bank, the bank's trust, and the LLC that sells the securities, and list them as witnesses as well as the affiant's and the notaries.

That is just the first line of the defense though. When they don't provide proof I'd motion to dismiss based on the single issue of standing, that they can't on one hand deny discovery and on the other rely on us to accept their bald statement that they have standing. Securitization can be boiled down to the simple issue of standing to initiate and sustain the lawsuit.

It's a fine point of the law but who has the rights, when they are sold, what is done by which corporation and under what authority are issues of material fact imho. So are issues of whether they collected defaulted debt insurance, how many times the debt was sold on the books, or written off as a loss, and if the investors have no rights of redress in the event of non performance of the trust who in fact is the injured party?

IF the OC was paid in full when the receivables were sold, If the LLC that securitized the debts was paid in full when it sold to investors, If the investors have no redress for non performance and the LLC collects defaulted debt insurance when they replace the defaulted debt in a swap WHO is the injured party?

Securitization may work as a defense only because no one wants to answer those questions.

Edited by antiquedave
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.