SweetPolly

Cross Examining the Custodian of Records

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Citibank is flying in a Custodian of Records to testify in my case.

I wondered if there are additional/different questions one would ask a custodian than was mentioned in the thread "cross examine the affiant, What questions would you ask?" from 1-25-11.

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The following link is a transcript from a case in which an attorney who represented the debtor/defendant questioned the JDB's representative. It's a New Jersey case, but it might help.

http://www.philipstern.com/files/2011.01.13.Galic_Deposition_Transcript.REDACTED.pdf

These kinds of links are very good. Learn the rules, see how case law applies, read the rules again...start reading depositions...etc... You know hearsay. You know exceptions to the hearsay rule. Now you're seeing an idiot being deposed by an attorney who understand hearsay and the hearsay exceptions.

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The only problem here is that this is the OC flying in their own employee, not a third party JDB. Does anybody have any testimony involving an OC? In the case of Citibank, since this is a custodian of records, I assume that means ALL records, including the ones they don't have, dumped from their computers, lost, never had in the first place, may have altered, may have been altered by hackers or disgruntled employees, or just plain cannot produce. "Take our word for it" is where they are going with this. "We don't have the evidence, but we're XXXX Bank and we'd never lie." Sure. And I'm Teddy Roosevelt.

All this stuff is stored electronically and posted by data entry people, I assume. It may even be entered by other computers, which really raises a red flag. Billing statements are printed from the electronic information. That means somebody has to sit there and enter all this information before a statement can be produced. The information can be deleted, changed, or falsified in any number of ways.

22 Good Ones for Citibank or any OC Custodian of Records

1. Is it possible for mistakes to be made when data is entered? Like maybe adding an extra zero here and there?

2. In the event of a mistake, is it possible for the person making the entry to go back and correct it by altering the entry made?

3. Is it possible for a data entry person to make a mistake and not see that they have done so?

4. In that event, would not the mistake simply become part of the supposedly indisputable record?

5. Given that data entry employees can alter entries, could not an employee, if so instructed, deliberately falsify a beginning balance on a statement and thereafter delete from the computer all previous billing statements?

6. Given the fact that Citibank can almost never produce a record of the account from day one, why should any consumer accept an unsupported balance as fact, given the history of data breaches and other mistakes routinely admitted to by creditors, Citibank included?

7. Given those breaches, is it possible for a computer hacker to gain entry to Citibank's databases? Has this ever happened? Has Citibank ever been hacked?

8. If so, could not a hacker perform the scenario previously mentioned, that being changing a balance and deleting previous statements?

9. Could a disgruntled employee who wanted to cause trouble for the creditor conceivably do this as well without detection?

10. What checks and balances does the creditor maintain to assure that this does not happen? Please don't fall back on the "consumer must dispute" argument, that does not apply here. Often the consumer never sees the balance on the amount sought until suit is filed.

11. Is it possible for Citibank to, if they so desired, deliberately produce statements with false balances, then delete all previous statements, and bring suit on account stated, or sell these "defaulted" accounts to junk debt buyers?

12. Absent any proof supporting their position, why should the consumer, or this court, accept Citibank's word as gospel?

13. Has Citibank ever sent unsolicited credit cards to consumers?

14. Why is it that Citibank can rarely produce applications?

15. In the course of keeping records pursuant to South Dakota law, why is it that Citibank cannot produce "written agreements" between themselves and the consumer, in which the consumer agreed to an interest rate higher than that allowed by South Dakota law?

16. What documents are contained in Citibank records which define and explain to the consumer the SD statutes which apply under the choice of law provision?

17. Has any Citibank custodian of records ever refused to sign an affidavit or testify when requested to do so because the records are incomplete?

18. If so, do they still work for Citibank?

19. How is it that you, the custodian of records, are willing to swear under oath that the balance sought in this case is correct when Citibank cannot produce a complete record of the account?

20. Given the fact that the record is incomplete, and that the required written agreement cannot be produced, is it possible that the beginning balance for this case is not accurate or consists entirely of illegal compounded interest?

21. What records do you have custody of that state that if the consumer uses the credit card he accepts the terms of that credit card?

22. Would it be possible for Citibank to create accounts out of thin air for any individual in the country, print out a bunch of fictitious statements establishing a huge balance, refuse to produce any documents bearing the signature of the individual, and then bring suit under account stated?

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I would pound them on this, what you are going for is the possibility of mistake or outright fraud. I wouldn't waste my time asking the custodian if they had any personal knowledge of this type of thing or if they ever participated in it, they'd just deny it anyway and you have no way to prove otherwise. What you want to make them admit is that it is possible for any of these scenarios to take place. That casts some serious doubt on the way they sue people. The fact that somebody strolls into court claiming to have personal knowledge of records doesn't mean a thing if you can raise reasonable doubt that those records are any good in the first place.

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5. Given that data entry employees can alter entries, could not an employee, if so instructed, deliberately falsify a beginning balance on a statement and thereafter delete from the computer all previous billing statements?

Considering the above question is accusing Citi of an illegal practice, Citi's attorney would jump all over it. The representative would also deny such a question. Unless the OP had proof of such a practice by Citi, the question wouldn't get too far.

6. Given the fact that Citibank can almost never produce a record of the account from day one, why should any consumer accept an unsupported balance as fact, given the history of data breaches and other mistakes routinely admitted to by creditors, Citibank included?

The attorney would then ask the OP if he/she ever disputed any details on any of the statements. History of data breaches and other mistakes routinely admitted? Where's the proof? Again, the attorney would be all over it.

11. Is it possible for Citibank to, if they so desired, deliberately produce statements with false balances, then delete all previous statements, and bring suit on account stated, or sell these "defaulted" accounts to junk debt buyers?

Any rep would deny this. Again, it's an accusation of an illegal practice.

14. Why is it that Citibank can rarely produce applications?

Because applications are not required.

15. In the course of keeping records pursuant to South Dakota law, why is it that Citibank cannot produce "written agreements" between themselves and the consumer, in which the consumer agreed to an interest rate higher than that allowed by South Dakota law?

Because SD law states that use of the card creates a contract.

54-11-9. Creation of contract between card holder and issuer. The use of an accepted credit card or the issuance of a credit card agreement and the expiration of thirty days from the date of issuance without written notice from a card holder to cancel the account creates a binding contract between the card holder and the card issuer with reference to any accepted credit card, and any charges made with the authorization of the primary card holder.

In addition, SD law does not have a limit on credit cards.

54-3-1.1. Rate of interest set by written agreement--No maximum or usury restriction. Unless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usury rate restriction between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities if they establish the interest rate or charge by written agreement. A written agreement includes the contract created by § 54-11-9.

22. Would it be possible for Citibank to create accounts out of thin air for any individual in the country, print out a bunch of fictitious statements establishing a huge balance, refuse to produce any documents bearing the signature of the individual, and then bring suit under account stated?

Of course it would be possible. Anything is possible. The attorney could turn around and ask the OP "Is it possible you used the credit card, but didn't make the required payments?"

I've heard attorneys state that you should never ask a question to which you don't already know the answer. If you don't already know the answer, or at least all of the possible answers, you can't be prepared with a comeback.

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I worded these so as to avoid accusing them of an illegal activity. I merely posed the question, is it possible? Which it certainly is. I wouldn't trust these people as far as I could throw them. Let their lawyer object, at least you got the questions in front of a jury, which is the objective. Evidence of data breaches is all over the place, easy to find.

Citi's statute creating a contract is not exportable. Even the OCC wrote a decision on this. It is contract law and has nothing to do with interest. Only the home state interest rate can be exported. As for that interest law, without the written agreement, they are restricted to schedule F interest, which is 15%. The SD Supreme Court even noted this in one of their decisions. They can't start linking one law to another. If that was permissible, eventually they could write a statute making default on a credit card a felony and demand prison time.

54-3-5. Interest on moneys after they become due--Exception for express contracts or interest rate on bill, statement, or invoice--Limitation on interest rate. Unless there is an express contract in writing fixing a different rate or the interest rate clearly appears on the bill, statement, or invoice, interest is payable on all moneys at the Category F rate of interest as established in § 54-3-16 after they become due on any instrument of writing, and on moneys lent, or due on any settlement of accounts, from the day on which the balance is ascertained, and on moneys received to the use of another and detained from that other. (Category F is 15, used to be even lower)

Applications are required, under Regulation Z section 226.12 and South Dakota law, which has a mirror statute.

54-11-4. Unsolicited issuance of credit card prohibited--No liability for misuse by others. No credit card shall be issued unless its issuance was requested nor shall any person who has not so solicited or has not accepted or utilized an unsolicited credit card be liable to the person who issued it or honored it for its misuse by others.

You have to ask them something; absent casting some doubt on these statements and their interest rates, what are you going to do? They will just sit there and swear that all the paperwork is perfect and the amount is correct. Talk about an unbiased witness! If I had to pick one I don't think they can weasel out of or object to, I'd take 19.

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LegalEagle,

I absolutely agree that anything is possible. I also agree with casting doubt. BUT, we have to remember that civil court is based on the preponderance of the evidence. Sure Citi could have made a mistake, but did they? If the possibilities of a mistake, hacking, or a disgruntled employee were all that is needed to render a decision in favor of the debtor, everyone would be claiming they don't owe the cc company because of those possibilities.

I should have asked the OP about the rep that's appearing to testify. Is the rep the person who signed the affidavit?

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The following link is a transcript from a case in which an attorney who represented the debtor/defendant questioned the JDB's representative. It's a New Jersey case, but it might help.

http://www.philipstern.com/files/2011.01.13.Galic_Deposition_Transcript.REDACTED.pdf

Absolutely agree w/usagi555 that BV80's link provides is great!

I hope you'll heed the advice usagi555 and BV80 offer. Good stuff!

In addition, note calawyer's advice on how to evaluate conflicting advice offered on this forum:

http://www.creditinfocenter.com/forums/there-lawyer-house/312200-cross-examining-custodian-records.html

(see post #24)

Wishing you all the Best SweetPolly--you are courageous and hardworking doing your research to prepare for court to go up against the OC....I'm holding good thoughts for you...! Keep us posted, please.

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Probably Ramona Aragon who used to be Ramona Chavez. I thought of some more questions. I would ask the affiant how long they worked for Citibank. If it is let's say 5 years and the account goes back 8, how can the affiant testify to the accuracy of records that were prepared years before she worked there? Also, did she personally make all these entries? If not, how does she know they were made correctly? How long does Citi usually keep records? If they routinely dump records, other than the first oldest statement they keep, how can they reasonably prove the beginning balance on that one statement is correct? Again, take our word for it. Okay, I paid in full. Take MY word for it. Got that cancelled check? Oops, tossed it, just like you tossed all my billing statements.

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...for more responses for Sweetpolly.

Anyone in CA gone up against an OC?

Anyone in CA w/knowledge regarding cross-examining custodian of records, please weigh in for this member.

Thanks!

:bump:

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Actually, in this case, legaleagle has some good cross examination points if you even get to cross their testimony.

It seems odd that Citi would spend the money to fly in a records person to testify. There would have to be a large sum of money at stake for them to do this.

But the 22 questions posed are valid questions which would lead toward discrediting the evidence if you can get any sort of admittance that the printed documents submitted to court could be altered. I've used similar questions to discredit printed billing statements where I showed the copy submitted to the court had different addresses from originals of the same time frame.

Having managed a bank law department myself I can tell you CSRs change stuff all the time and banks get busted for bad documentation all the time. Most of the time they settle under confidentiality agreements so it never sees the light of day again.

In this case, and given the current state of affairs with banks, I am thinking they probably do have their ducks in a row or else they would not go through the expense of sending in a records manager to testify.

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I've heard attorneys state that you should never ask a question to which you don't already know the answer.

Mostly true. Sometimes you ask questions to set up the respondent for the next answer you are looking for. (build a foundation)

A good question for this custodian is how long they have worked for Citi. Which leads to if they actually were there when the records were created and/or maintained.

Edited by Methuss

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Actually, in this case, legaleagle has some good cross examination points if you even get to cross their testimony.

It seems odd that Citi would spend the money to fly in a records person to testify. There would have to be a large sum of money at stake for them to do this.

But the 22 questions posed are valid questions which would lead toward discrediting the evidence if you can get any sort of admittance that the printed documents submitted to court could be altered. I've used similar questions to discredit printed billing statements where I showed the copy submitted to the court had different addresses from originals of the same time frame.

Having managed a bank law department myself I can tell you CSRs change stuff all the time and banks get busted for bad documentation all the time. Most of the time they settle under confidentiality agreements so it never sees the light of day again.

In this case, and given the current state of affairs with banks, I am thinking they probably do have their ducks in a row or else they would not go through the expense of sending in a records manager to testify.

I agree that they're valid questions. I just had some concerns about the ones I posted simply because if the attorney objected or the judge questioned whether or not I had any evidence of any wrongdoing, I'm not sure I'd know how to respond. I just don't like seeing us Pro Ses getting smacked down in court.

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Mostly true. Sometimes you ask questions to set up the respondent for the next answer you are looking for. (build a foundation)

A good question for this custodian is how long they have worked for Citi. Which leads to if they actually were there when the records were created and/or maintained.

Thanks so much, Methuss--appreciate the input. Like BV80, I sincerely don't want to see a pro-se misled (or smacked down in court).:( But it is doubtful Citi would spare the expense to fly in a witness, if their ducks weren't in a row. :oops: I hope the questions are helpful, and op is prepared for whatever the results are.

Edited by tigger

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Most of these witnesses are “Professional testifiers”. So BV80’s advice about not asking a question when you don’t know how the witness will answer is sound. In cross examination, you do not want to ask open-ended questions. For the most part, you want to ask “leading” questions that can only be answered “yes” or “no”.

For example, question No. 10 is absolute death in my opinion. If you asked a professional witness this question, she would hit it out of the park. You would get a 10 minute speech on the 37 things that are done each day and double-checked by a superior to ensure that a rogue employee cannot alter records. Then your face flushes and you say “thank you”. Ouch.

You want to have a “mission” when cross examining a witness. One example would be if the witness says she is a “litigation spe******t” while being examined by her attorney. Listen carefully to the direct exam. Does the really perform any job duties relating to data or does she just fly around testifying at trial. If the latter, you want to show that this is not a custodian of records but instead it is a professional witness:

So, it is your job to testify at trials, correct?

And you help the lawyers prosecuting cases on CB’s behalf, true?

Do you work in the Legal Department?

How long have you held this position?

It is not your job to enter data, correct?

It is not your job to audit the accuracy of the information in CB’s data files, correct?

It is not your job to supervise the entry of data, correct?

It is not your job to supervise any audits of the accuracy of the information in CB’s data files, correct?

It is your job to review an alleged debtor’s file and testify at trial, true?

Your Honor, the witness is not a custodian of records of CB. The documents the witness has attempted to introduce are hearsay and the business records exception does not apply because the witness is not a custodian.

Good luck.

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Thanks Calawyer, I threw a bunch of stuff up there hoping some of it would stick. I knew that there would be obvious objections, but my mission was to cast some overall doubt on the way the creditor maintains records and who does what. My main contention remains this; the creditor claims the records are true and accurate. They send a spe******t to say the same thing. This is not a disinterested witness. This is a bought and paid for employee whose job is to do exactly what you said, to swear that her / his boss is pure as the driven snow because she says so. They CANNOT produce the statements preceding the magic statement that says you owe 10-20-30 whatever. You, the court, and any juror is supposed to just sit there and take their word for it. But if you tried the same thing, as I suggested, saying that you paid in full, they would demand proof. Why are they not held to the same standard? This goes beyond questions you would ask some hack they fly around the country to stick up for the creditor. Obviously if she refused to do so, she'd be looking for a new job. Maybe we should invoke outside examination, like Price Waterhouse or some independent examiner who has no axe to grind. You owe me. Why? Because I say so. Sure. Grossly unfair.

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They CANNOT produce the statements preceding the magic statement that says you owe 10-20-30 whatever.

If that is true, it would be another excellent point to make during cross. In fact, I'd ask the same question about 10 times. You don't have the previous statements, do you? You looked and couldn't find them (any answer can't hurt you)? You don't know whther they have been lost....destroyed....etc.

But this is an OC. Usually they do have every statement. And no issues about assignment. So you have to go to plan C.

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I would pound them on this, what you are going for is the possibility of mistake or outright fraud. I wouldn't waste my time asking the custodian if they had any personal knowledge of this type of thing or if they ever participated in it, they'd just deny it anyway and you have no way to prove otherwise. What you want to make them admit is that it is possible for any of these scenarios to take place. That casts some serious doubt on the way they sue people. The fact that somebody strolls into court claiming to have personal knowledge of records doesn't mean a thing if you can raise reasonable doubt that those records are any good in the first place.

I've been reading some cases where this ruling is the offset:

preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.

Pretty Scary if it gets based on this rule,

HP

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If that is true, it would be another excellent point to make during cross. In fact, I'd ask the same question about 10 times. You don't have the previous statements, do you? You looked and couldn't find them (any answer can't hurt you)? You don't know whther they have been lost....destroyed....etc.

But this is an OC. Usually they do have every statement. And no issues about assignment. So you have to go to plan C.

Calawyer-

Wow this thread was is great!

But what is plan C?

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But what is plan C?

Attack the messenger (witness is not a custodian). Plus any other case-specific issues (not all statements produced, no contract produced, etc).

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If that is true, it would be another excellent point to make during cross. In fact, I'd ask the same question about 10 times. You don't have the previous statements, do you? You looked and couldn't find them (any answer can't hurt you)? You don't know whether they have been lost....destroyed....etc.

But this is an OC. Usually they do have every statement. And no issues about assignment. So you have to go to plan C.

Not in my case, and this is an OC. I asked for the equivalent of the CA BOP and they objected on every ground(s) imaginable. Like those ()? Anyway, they CANNOT or will not provide anything previous to the first statement sent with discovery, which misses by a mere 30 years. They may try later, but I do not see these idiots driving a truck up to the court house with all the statements. They simply don't have them. Back to some of my questions which I added to, how often do you delete records? What is the oldest statement you have in your database for the subject account? Who created this statement? How can you swear to the accuracy of the amount sought if you do not have access to the previous statement? Were you working for creditor XXXX in 1984? (pick your date) Where is the person who actually created the alleged previous statements that we are supposed to take your word for?

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Not in my case, and this is an OC. I asked for the equivalent of the CA BOP and they objected on every ground(s) imaginable. Like those ()? Anyway, they CANNOT or will not provide anything previous to the first statement sent with discovery, which misses by a mere 30 years. They may try later, but I do not see these idiots driving a truck up to the court house with all the statements. They simply don't have them. Back to some of my questions which I added to, how often do you delete records? What is the oldest statement you have in your database for the subject account? Who created this statement? How can you swear to the accuracy of the amount sought if you do not have access to the previous statement? Were you working for creditor XXXX in 1984? (pick your date) Where is the person who actually created the alleged previous statements that we are supposed to take your word for?

LOL, they simply didn't respond to my doc requests, and I too asked for the equivalent of what is required by CCP454, and then some. Yet sometimes Citi does bring the goods. I think that it may depend on which database the records started in and when the account was opened. There have been so many mergers and acquisitions in the banking industry that poorly merged databases is a major issue. Just ask Chase about that.

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Right, it seems that the newer cases I've seen with all creditors have better paperwork. If the account is maybe 5-6 years old, there seems to be a trend toward better documentation, including applications, etc. Older ones? Forget about it. I'd love to have a credit card employee come on board here and tell us what really goes on. My guess is they don't keep anything older than 10 years.

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