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How to proceed- JDB Has signed credit app and bill of sale


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I have a hearing coming up very soon and I am looking for advice on how to proceed. Quick summary:

After summons I filed a general denial and sent BOP. Initially JDB sent 2 bill of sales one from Original Creditor to another JDB (XY). Then bill of sale from XY to currently JDB (Midland). They also included what seems to be the last statement from original account.

After that I send insufficient BOP response letter and received back my initial signed application for the credit card.

Also, I received a notice that JDB had requested Summary Judgment at the hearing.

Getting the signed application kind of freaked me out and I am thinking about settling, especially since I only have a short period before the initial hearing.

I do have several questions though...

Is it legal for one JDB to sell to another?

Is the signed application for credit the same as a signed contract?

Even with the signed app and bill of sales should I still demand to see a full listing of charges for the history of the account?

I am really just looking wondering if anyone has some advice on action I can take in a few days that might help me, or defenses I can use at the hearing? Or if I should consider settling, due to the paperwork they have?

Thanks so much!:)++

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You need to do two things very fast...

1. File a Motion in Opposition to Summary Judgment - cite the fact that you have not completed discovery yet...the plaintiff has failed to adequately answer the BOP. As such, summary judgment is premature.

2. File a motion to preclude - per CCP 454, if the plaintiff does not produce an accounting, then anything they offer can be precluded as evidence.

As far as the questions...

Yes, a JDB can sell to another JDB.

Yes

Yes- that is what a bill of particulars calls for.

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1st Step- Thank you I will get on filing both the Motion to Preclude and the Motion in Opposition to summary judgement.

Kent- My account is not specifically referenced on either of the bill of sales, it basically says that a "pool of accounts" were bought/sold on xx date.

As far as properly documented, I'm not sure, as I am not familiar w/ how the sale of account should look. Both bill of sales do include a signed statement of someone "familiar" with the account stating that to the best of their knowledge the info in the bill of sales is true and w/out error.

Thanks for the quick responses!

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1st Step- Thank you I will get on filing both the Motion to Preclude and the Motion in Opposition to summary judgement.

Kent- My account is not specifically referenced on either of the bill of sales, it basically says that a "pool of accounts" were bought/sold on xx date.

As far as properly documented, I'm not sure, as I am not familiar w/ how the sale of account should look. Both bill of sales do include a signed statement of someone "familiar" with the account stating that to the best of their knowledge the info in the bill of sales is true and w/out error.

Thanks for the quick responses!

You need to attack chain of ownership to have the standing to seek relief. DO NOT ask for documents that will help them prove their case. Don't ask for proper proof of assignment. That's their job to prove. You have two layers of transfers with no authenticated proof that your account was assigned. The newest JDB would need to present a witness or an affidavit from (a) the original creditor that your account was transferred in the sale, detailing the name, account number and amount owed, and then (B) the same thing from JDB #1. However, BOTH, of these would still be hearsay. Go look at Coltfans' writing on this board about standing and hearsay.

http://www.creditinfocenter.com/forums/there-lawyer-house/311242-lack-standing.html

All the affidavit's say can prove is that a sale took place. It doesn't prove your account was part of that sale. Thus, it's also irrelevant. Study your state's rules of evidence. Read up on Personal Knowledge, Hearsay, Hearsay within Hearsay (because there are two JDB + OC) , Lack of Foundation, and Authentication.

How large is the alleged debt? A smaller debt (less than $5k) makes them less likely to go all the way through a trial because they don't stand to make that much and they risk a lot of attorney time.

Edited by First Timer
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First Timer- Thank you for the info and for the links, I will get to reading (and reading and reading). Everything you say makes sense and I wondered myself about the relevancy of the bill of sales since they are so broad.

The debt itself is right around 7k. Right now they have offered to settle w/me for around 70% of that amount and I was ready to lie down and do it...

After revisiting this board though I am getting a second wind to try and fight it...

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You give 5000 to a JDB, and Coltfan and myself will travel to California and slap some sense into you! (just kidding) These people rarely have the paperwork to win, keep pursuing them. Here's how you do it:

Sure, I applied for credit with Big Bank. You claim now to own the account. Prove it. End of story. You do that, and provide a complete history of the account as required in the BOP, and we'll talk. Do it not, and we'll be discussing a counterclaim.

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There is an affidavit of sale from OC to the first JDB, basically gives the date that a "pool of charged off Accts" was sold. Also states that electronic records and other records were transferred on individual accts to the debt buyer.

There is a 2nd affidavit of sale from the 1st JDB to the current JDB and it basically says the same thing as the other affidavit, only w/ different dates.

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You give 5000 to a JDB, and Coltfan and myself will travel to California and slap some sense into you! (just kidding) These people rarely have the paperwork to win, keep pursuing them. Here's how you do it:

Sure, I applied for credit with Big Bank. You claim now to own the account. Prove it. End of story. You do that, and provide a complete history of the account as required in the BOP, and we'll talk. Do it not, and we'll be discussing a counterclaim.

I would mention outside in the hallway" Have you been contacted by the CFPB yet?"

Then totally oppose their MSJ if it is denied tell them on the way out that that is a violation. If they say litigation priviledge say statutory penalties are excluded.

Go get em.

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If you are in California state court, read CCP 437c and the time limits for making and responding to a motion for summary judgment. Did Midland give sufficient notice? Will your opposition brief be timely?

Thank you for this info, i believe midland did not give sufficient notice. I will read further. Thanks again!

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So the Motion for Summary Judgement was withdrawn, a lawyer for JDB also contacted me to apologize for the error in filing, but that they will be looking to re-file MSJ within 60 days. (maybe a minion got stacks of paperwork mixed up?) I also received a case management statement in the mail, however it was received fewer than 15 days before the CMC is scheduled- dont know if that matters.

Anyhow, the lawyer proceeded to ask if I would like to settle to avoid further litigation.

I thanked them for the offer, but declined.

I had already filed motion in opposition of MSJ and Motion to Preclude. At my CMC should I address that discovery is not complete because JDB has failed to provide documents I am entitled to per CCP 454, therefore a motion to preclude has been filed?

Also, after all my reading I am wondering if I skipped The Motion to Compel step? should that have come before filing a Motion to Preclude?

I did request for Meet and Confer due to insufficient BOP request awhile back.. Sorry, after reading so much of this it's starting to get jumbled in my brain.

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So the Motion for Summary Judgement was withdrawn, a lawyer for JDB also contacted me to apologize for the error in filing, but that they will be looking to re-file MSJ within 60 days. (maybe a minion got stacks of paperwork mixed up?) I also received a case management statement in the mail, however it was received fewer than 15 days before the CMC is scheduled- dont know if that matters.

Anyhow, the lawyer proceeded to ask if I would like to settle to avoid further litigation.

I thanked them for the offer, but declined.

I had already filed motion in opposition of MSJ and Motion to Preclude. At my CMC should I address that discovery is not complete because JDB has failed to provide documents I am entitled to per CCP 454, therefore a motion to preclude has been filed?

Also, after all my reading I am wondering if I skipped The Motion to Compel step? should that have come before filing a Motion to Preclude?

I did request for Meet and Confer due to insufficient BOP request awhile back.. Sorry, after reading so much of this it's starting to get jumbled in my brain.

If you haven't filed you own CMC statement, you should. At the CMC (or in the statement), you should tell the Judge that Plaintiff has filed this case and even filed a defective Summary Judgment motion but refuses to give you the most basic documents such as the very account that is sued upon here. Subsections (h) and (i) of the CCP section I gave you says that a motion for summary judgment can be continued if you need discovery and don't have it. Tell the COurt you would prefer not to get another Summary Judgment motion only to have to seek a continuance because the plaintiff hasn't given you the discovery you are entittled to. Ask the Judge to order the plaintiff not to file any more motions until it has responded.

The judge may not do that for you. She may tell you that you will have to file a motion to compel. But she will be angry at the plaintiff and that won't hurt you one bit.

You can file a motion to compel a BOP any time.

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If you haven't filed you own CMC statement, you should. At the CMC (or in the statement), you should tell the Judge that Plaintiff has filed this case and even filed a defective Summary Judgment motion but refuses to give you the most basic documents such as the very account that is sued upon here. Subsections (h) and (i) of the CCP section I gave you says that a motion for summary judgment can be continued if you need discovery and don't have it. Tell the COurt you would prefer not to get another Summary Judgment motion only to have to seek a continuance because the plaintiff hasn't given you the discovery you are entittled to. Ask the Judge to order the plaintiff not to file any more motions until it has responded.

I filed a CMC statement, but it was very basic because I waited until the last minute to do it... I mentioned that I have submitted a Motion to Preclude, due to insufficient BOP responses. Also stated that I may file Motion to Compel in the future.

I have noted your points above and will bring them up at the conference (which is early next week).

So glad to have visited this site, reading thru the wealth of info this forum provides and building a list of talking points for the conference have given me the confidence to fight, which I was lacking when I started this thread.

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