mel-o

Assignment/Bill of Sale -

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I received another summons. Attached is a Bill of Sale from OC to MidLand funding. Number of accounts, total balance, premium, due seller and other information is blacked out. It doesn't reference the alleged account that I'm being sued for at all. Attached to it is a print out that just has an acct#, my name, ss#, and some other misc info but there's no signature on that page. It could have been printed separately from the Bill of Sale.

Then I have an Assignment & Bill of Sale between Midland to Cach (the Plaintiff). Again, on this there is no specific mention of the alleged account only a second page attached with the same info in the first Bill of Sale.

Then there's an Affidavit attached also from an employee of Midland stating they have examined the records and they reflect X amount, and is due and payable by Obligor for Account #.... It states the account was sold by Midland to Cach with power and authority to do and perform all acts necessary for the collection of the account. Then it's signed and notarized. After that there's an affidavit from Cach stating pretty much the same thing.

I feel like they just attached everything they could to overwhelm me and it might be working. If the original BOS doesn't have any identify information, are any of the following assignments/affidavits even valid?

Thanks for any help on this!

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I tried looking up your previous posts to see what the details of your case were and another user by the name of "melo" is coming up, posts dated for '09.

Can you link to your case details? Can't provide much help without reviewing them

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This is a new summons. I haven't posted about it before.

1. Who is suing you? Cach

2. For how much? $7K

3. Who is the original creditor? WAMU then Chase

4. How do you know you are being sued? sheriff delivered

5. What was your correspondence (if any) with the people suing you before you think you were being sued? none

7. Where do you live? NC

8. When is the last time you paid on this account? don't know

9. What is the status of your case? serve a copy of my written answer to summons within 30 days

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

11. Did you request debt validation before the suit was filed? no

12. Does your summons require a response in writing? yes

13. Did you receive an interrogatory (questionnaire) regarding the lawsuit? no

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

Exhibit A - copies of statements from WAMU and Chase

Exhibit B - Bill of Sale from Chase to Midland. Assignment from Midland to Cach. Affidavit from Midland with account details.

Exhibit C - Affidavit from Cach with account details

There are 14 complaints listed.

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If there is no bill of sale from Chase to Midland, the chain of ownership is incomplete. There's nothing showing Chase ever sold anything to Midland.

The fact that the bill of sale they did produce doesn't show your name or account number doesn't prove Midland sold your account to Chase. In other words, there's no proof Midland bought or sold your account.

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The OP does state there is a BOS from Chase to Midland. Without identifying the OP's account that is a big plus in the OP's favor.

Respond to the complaint. Maybe others can pipe in, but I think Chase bought WAMU. That may be another assingment that is an issue.

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The OP does state there is a BOS from Chase to Midland. Without identifying the OP's account that is a big plus in the OP's favor.

Respond to the complaint. Maybe others can pipe in, but I think Chase bought WAMU. That may be another assingment that is an issue.

Well crud. That's what I get for reading too fast. But still, as you stated, the bills of sale don't reference the OP's name or account number. It's a typical JDB lawsuit.

I'm not sure if there's an issue with Chase buying WAMU in regard to another assignment. It's public record that Chase bought the company so all of the accounts became the property of Chase.

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Mel,

You will need to attack Cach's evidence. If the affidavit doesn't state that the records are true and correct copies (something to that effect), then the statements are hearsay. Read your Rules of Evidence regarding hearsay, business records, and authentication.

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Well crud. That's what I get for reading too fast. But still, as you stated, the bills of sale don't reference the OP's name or account number. It's a typical JDB lawsuit.

I'm not sure if there's an issue with Chase buying WAMU in regard to another assignment. It's public record that Chase bought the company so all of the accounts became the property of Chase.

BV80 you are one of the sharpest on here, if you read to fast someone will catch it, maybe me. LOL.

If Chase bought WAMU wouldn't the Plaintiff have to show they bought the OP's account in that purchase?

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BV80 you are one of the sharpest on here, if you read to fast someone will catch it, maybe me. LOL.

If Chase bought WAMU wouldn't the Plaintiff have to show they bought the OP's account in that purchase?

If I'm one of the sharpest on here, we're in trouble. LOL. But thank you, anyway. :)

Regarding your question, are you asking if Cach would have to show that Chase bought the OP's WAMU account? Or am I missing something again?

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If Chase bought WAMU wouldn't the Plaintiff have to show they bought the OP's account in that purchase?

I don't believe so. They didn't buy WaMu like they bought all the goods in the store; they ACQUIRED WAMU - WaMu became a part of Chase, and every WaMu account became a Chase account.

This is different from when one party buys an account from another. In this case, the two entities just merged, and WaMu became Chase. Different situation altogether.

Edited by nrgins

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I received another summons. Attached is a Bill of Sale from OC to MidLand funding. Number of accounts, total balance, premium, due seller and other information is blacked out. It doesn't reference the alleged account that I'm being sued for at all. Attached to it is a print out that just has an acct#, my name, ss#, and some other misc info but there's no signature on that page. It could have been printed separately from the Bill of Sale.

Then I have an Assignment & Bill of Sale between Midland to Cach (the Plaintiff). Again, on this there is no specific mention of the alleged account only a second page attached with the same info in the first Bill of Sale.

Then there's an Affidavit attached also from an employee of Midland stating they have examined the records and they reflect X amount, and is due and payable by Obligor for Account #.... It states the account was sold by Midland to Cach with power and authority to do and perform all acts necessary for the collection of the account. Then it's signed and notarized. After that there's an affidavit from Cach stating pretty much the same thing.

I feel like they just attached everything they could to overwhelm me and it might be working. If the original BOS doesn't have any identify information, are any of the following assignments/affidavits even valid?

Thanks for any help on this!

I don't know what the rules are in NC, but in TX the law states that the affidavit has to be from someone with direct knowledge about what they are signing the affidavit about. Someone at Cach could not, by definition, have direct knowledge about your debt, because your debt wasn't made with them. They just acquired the debt, and their knowledge is, by definition, second-hand.

So you have a strong case of getting the affidavit striken, if they have no affidavit from the OC.

That's usually one of the weakest areas in their cases, not having an affidavit from the OC, and they usually try to pass their own affidavits as good enough, hoping the defendant doesn't object; or, if he does, that the judge allows it anyway. But you have a strong case to object to this affidavit, since it doesn't contain first-hand knowledge.

Second, if the bill of sale doesn't mention you or your account number specifically, then you may have a good case to get that stricken, as well. (And, really, getting either one of those stricken would all but assure you the win.)

In my case, the JDB submitted a bill of sale which said from so and so to so and so, and then submitted a listing of accounts that were sold (with all accounts blacked out except for mine). But there was nothing in the bill of sale that either reference me, my account number, or the document they were claiming was attached to the bill of sale.

So I objected, saying that the bill of sale was a generic document, and could apply to any defendant, that it lacked specificity and didn't reference me, my account number, or any other document mentioning me or my account number. The judge sustained my objection and threw out the bill of sale.

I was fortunate to have a judge that was reasonable. Not all judges would have done that, as they have just assumed the attachments belonged to the bill of sale. So it might not work all the time. But it's definitely worth trying.

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The Chase BOS doesn't reference me, but it does state "of debt described in Exhibit 1 attached" but there is no Exhibit 1, there's just a generic print out of my information.

Midland's Assignment/BOS does the same thing - "to the accounts identified in the Account Schedule) but the item attached is the exact same item (generic print out of my info) that is attached to Chase's BOS.

Midland's Affidavit makes no reference to "true and correct copies", only "Examination of the records, maintained in the ordinary course of business by Assignor (as delivered by OC) reflect amount $XXXX and account # XXXXX, Obligor (my name) and the following account information is true and correct: This account was sold on XXXX by Midland to Cach with full power and authority to do and perform all acts necessary for the collection, settlement, adjustment, compromise or satisfaction of the account. Then they go on to say they acknowledge Cach as the new owner with full authority.

Cach's affidavit states that if any exhibits have been attached, they are true and accurate copies which were kept in the ordinary course of business and reflect Defendant's obligation to pay.

------

So some questions:

If I were to "attack" any Affidavit, do I do that now with my affirmative defenses?

Can Cach know that these are "true and original copies" if the affidavit from Midland didn't say that?

If the BOS from Chase doesn't specifically reference this account, and the attached is just a generic printout (not references as Exhibit 1), do I make mention of that now?

Thanks for all your help! You guys rock :)

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This is a new summons. I haven't posted about it before.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

Question:

Why do they ask #10 (have you disputed with the credit bureaus) and what specifically are they looking for/hope to find out?

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Question:

Why do they ask #10 (have you disputed with the credit bureaus) and what specifically are they looking for/hope to find out?

In that post, the OP wasn't posting allegations or interrogatories from the Plaintiff. He was answering questions from this link on the boards in order to provide the members some information about the case:

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

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The Chase BOS doesn't reference me, but it does state "of debt described in Exhibit 1 attached" but there is no Exhibit 1, there's just a generic print out of my information.

Midland's Assignment/BOS does the same thing - "to the accounts identified in the Account Schedule) but the item attached is the exact same item (generic print out of my info) that is attached to Chase's BOS.

Midland's Affidavit makes no reference to "true and correct copies", only "Examination of the records, maintained in the ordinary course of business by Assignor (as delivered by OC) reflect amount $XXXX and account # XXXXX, Obligor (my name) and the following account information is true and correct: This account was sold on XXXX by Midland to Cach with full power and authority to do and perform all acts necessary for the collection, settlement, adjustment, compromise or satisfaction of the account. Then they go on to say they acknowledge Cach as the new owner with full authority.

Cach's affidavit states that if any exhibits have been attached, they are true and accurate copies which were kept in the ordinary course of business and reflect Defendant's obligation to pay.

------

So some questions:

If I were to "attack" any Affidavit, do I do that now with my affirmative defenses?

Can Cach know that these are "true and original copies" if the affidavit from Midland didn't say that?

If the BOS from Chase doesn't specifically reference this account, and the attached is just a generic printout (not references as Exhibit 1), do I make mention of that now?

Thanks for all your help! You guys rock :)

You don't attack the affidavit in your defenses. If your court rules allow these discovery requests, you can send requests for Interrogatories, Admissions, and Production of Documents. After they answer those requests and can't provide any more evidence, you could possibly file motions to strike the affidavit, bills of sale, and cc statements.

Considering the evidence they have provided, some requests for admissions might come in handy here. For instance "Admit that Plaintiff's bill of sale from Midland Funding does not reference the Defendant's name or the account number of the alleged debt which is the subject of Plaintiff's Complaint."

You will point out their lack of standing to sue in your defenses.

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but it must be important for a reason. In the PODs I received they asked me for all documents regarding false or factually incorrect claims or statements made to the credit reporting agencies.

Where are they going with this?

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but it must be important for a reason. In the PODs I received they asked me for all documents regarding false or factually incorrect claims or statements made to the credit reporting agencies.

Where are they going with this?

It could be they're trying to prove you never disputed any of the charges or the balance. That enables them to claim there were no incorrect charges or fees and no identity theft, so the balance must be correct.

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but it becomes irrelevant if they can't prove they own the debt, etc. right?

True. Also, if you denied the debt or claimed you had no knowledge of the debt, how do you know whether or not you disputed a debt you don't recognize? If they haven't provided any cc statements, how could you dispute a debt they haven't proven ever existed in the first place?

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It could be they're trying to prove you never disputed any of the charges or the balance. That enables them to claim there were no incorrect charges or fees and no identity theft, so the balance must be correct.

Could also be their way of trying to prove an account stated as there were no disputes.

However, one could argue that you hadn't been looking at your credit report to know the entries were there until it was too late.

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Mel-O, it looks like you've got your thinking straight on what to look for. I'd call your clerk of the court and ask is there a deadline for filing motions to strike. I would wait and file them as late as possible and give them to the plaintiff's attorney as late as possible. That often lulls them into a sense that their evidence is standing firm!

If you have to mail, though - don't miss the deadline!! But, if you can file as late as the day of court (and in some courts you can), I'd file then and wait until the last possible moment to "hand deliver" the motions to the attorney before you go into the courtroom.

I'm sure they will want to talk before court and try to strike a deal - when you show them you have filed motions to strike their evidence "that very day", then you will have an advantage of either going into the courtroom with the plaintiff's attorney's evidence blown apart or if you want to settle - this tactic of waiting to the last moment can give you a better settlement offer.

They are trying to get as much money from you as they can, but if they see their evidence is gone, their offers get better and you can then be in the driver's seat to negotiate (if you want to) or tell them no, that you'd rather go see the judge. Often at the last moment when faced with this, they will suddenly want to dismiss "without" prejudice just to keep from going into the courtroom. This at least leaves them an option to file again later, but if they didn't have the right evidence the first time, they probably won't have it later. The best they can do is probably sell you on down the road to the next JDB which they just inherit the same problems with trying to prove the debt.

After finding out your timeline and waiting for the last opportunity to file the motions to strike, I would definitely file motions to strike every piece of evidence they have shown. The affidavit, you know to go at hearsay, no personal knowledge, etc. Even "if" they produced the affiant as a witness - look here - http://creditfactors.com/pro/course/images/8-11-09-opinion-midland-false-affidavit-pub.pdf This is an exactly case to see what questions to ask an affiant of an affidavit! Be sure and read the questions and see how the affiant's personal knowledge was quickly dissolved!

Attack the fact that anything submitted has not been authenticated. Look for case law to back it up or use your rules of evidence.

I believe Rule 1002 - Requirement of original might come in handy too.

And of course, the bill of sale from the OC to Midland is generic - no account number nor your name. The same with the bill of sale from Midland to Cach. These only show accounts were sold and bought, but nothing is there to reference your name or the alleged account number. They could be referencing anyone's account. Or with things blacked out - there could actually be no ones account even there!

Some of the evidence referred to other documents that have not been submitted. That is important! Things being blacked out or evidence missing, leaves what they submitted totally lacking and no proper foundation has been laid.

Look at all account numbers and dates - do they all match?

Be sure to compare all the evidence they supplied to your credit report too and see if you can pick up any discrepancies. :)++

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Mel-O, it looks like you've got your thinking straight on what to look for. I'd call your clerk of the court and ask is there a deadline for filing motions to strike. I would wait and file them as late as possible and give them to the plaintiff's attorney as late as possible. That often lulls them into a sense that their evidence is standing firm!

If you have to mail, though - don't miss the deadline!! But, if you can file as late as the day of court (and in some courts you can), I'd file then and wait until the last possible moment to "hand deliver" the motions to the attorney before you go into the courtroom.

I agree with Linda. I filed my response to their first motion for summary judgment a few weeks before the hearing. That gave them time to file a response to my response, and provide more evidence from them. And, of course, THEY filed it at the last minute, not giving me a chance to respond to it (the hearing was by submission, not in person, so the judge was going to rule only on what was submitted).

Perhaps because they filed new evidence at the last minute, the judge canceled the hearing, and so it worked out. But you definitely don't want to give them a chance to review your objections and file new evidence. You want to file your motions as late as possible.

In my case, though, I filed my motions to strike in response to their motion for summary judgment, not as part of a final trial. I believe that was the right thing to do, as I needed to prevent them from getting a summary judgment. So, in my opinion, I wouldn't wait until trial if they file a MSJ. I would ask for it then, in response to their MSJ.

Also, your court may allow electronic submission, which is great. You just upload a PDF or a Word doc, and it gets to the court instantly. It's a good idea to then follow up with a call to the court clerk, and ask them to get it into the docket ASAP, if the hearing is the next day or something.

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