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Why would you do that? The Plaintiff knows that the person who signed the affidavit should be in court just in case the affidavit is challenged.

The Plaintiff is relying on you not knowing the rules of trial procedure and what hearsay evidence is. Wait till the day of court and if the person who signed the affidavit is not there you ask for the affidavit to be deemed inadmissible. You can not cross examine a piece of paper.

Once the affidavit is deemed inadmissible you have taken away their standing to sue.

Edited by BTO429
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Why would you do that?

Because cross examining a Crap1 affiant would be quality entertainment? I know that had my case gone to trial, I would have wanted my affiant there, but then again, I have a pretty good idea of what her job duties are, and they don't include being a custodian of records.

But in general, yeah, in most instances, testimony at trial must be given orally and without knowledge about how the affidavits are produced, it's best to just get the thing chucked out.

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Sending a summons (subpoena) to the person that signed the affidavit requiring them to be in court, would be like subpoenaing the officer that wrote you a traffic ticket for speeding, because you're challenging the accuracy of the radar gun.

Everything I know about the major CC issuers leads me to believe that it'd be more like they said the affiant is the cop, when it really is the police service aid who merely showed up and parked behind you with his lights flashing to prevent an accident.

But, you had better know some very specific facts regarding their litigation practices before you call their bluff. Otherwise, you'll be screwed in the event that they aren't bluffing. But that gets back to why "just going in and telling your side of the story" does not mean that you'll be fine.

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I agree about calling a bluff. However, in this case the OP would not really be calling a bluff. He is most likely 100% screwed if Cap One brings in the person that signed the affidavit. So why guarantee defeat by making the person show up.

By the OP doing nothing and not subpoenaing that person, it's just basically rolling the dice that person won't show up.

It's not like the OP will call Cap One and say I'm not going to subpoena this person to trial. The lack of inaction, in this case, would not be seen as calling a bluff, in my opinion. It would just be playing the poor hand you've been dealt the very best way possible. Anybody that plays or watches poker knows the best hand does not always win the pot.

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I agree about calling a bluff. However, in this case the OP would not really be calling a bluff. He is most likely 100% screwed if Cap One brings in the person that signed the affidavit. So why guarantee defeat by making the person show up.

By the OP doing nothing and not subpoenaing that person, it's just basically rolling the dice that person won't show up.

It's not like the OP will call Cap One and say I'm not going to subpoena this person to trial. The lack of inaction, in this case, would not be seen as calling a bluff, in my opinion. It would just be playing the poor hand you've been dealt the very best way possible. Anybody that plays or watches poker knows the best hand does not always win the pot.

A local person being sued by Crap1 hired an attorney, and that attorney started asking questions about the Crap1 affiant in discovery. The end result was a dismissal with prejudice, and according to this person, the dismissal had very little to do with the validity of the debt. Sometimes the OC's have impeccable records and other times they might as well be a JDB. When talking megabanks, they almost always hire or contract robosigners for the affidavits regardless.

Remember, I never made the last payment Citi claimed that I made. Not even close. I can show docs from Citi showing that I had a Mastercard and I can show docs from Citi explicitly stating that I had an American Express. All show the exact same account number. There are some errors on the account statement that they filed with the complaint that could have been prevented with six very simple lines of code. They do not test their software properly.

Then you can google Linda Almonte if you want to see how Chase does business. Or you can look up that Florida couple where BofA foreclosed on their home even though they paid for it outright and had no mortgage.

When talking CCs, it's all about a 16 digit number, a dollar value and how cheaply they can collect that dollar value. The banks have learned their lesson well from the JDBs, some banks being more diligent than others.

Then I found my affiant's blog. To make matters worse, they fundamentally admitted her job was to sign hearsay affidavits during discovery. It's one of the few discovery requests that they answered, and they were evasive in that request.

I would have welcomed the affiant in my case into the courtroom. OPs do bluff, and they are very, very good at it. It's a lot easier to bluff when it is actually possible that you may have the goods. Nobody can actually state with authority what the probability is that they kept good records on your case.

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Exactly !!

In my opinion, it's trial strategy and gut feeling.

Right, but if they can bring what they need to win even if you fight tooth and nail, it's not going to be with the affiant. At least with Crap1, Citi and Chase, the affiants have just about as much knowledge about your account and the bank's record keeping practices as a JDB's. Chase isn't even suing people over CC debt in many states, and it is because of this in part. If they are going to provide a live witness, it's not going to be the person who signed the affidavit. It'll probably be a professional witness.

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The Plaintiff is banking on two facts, either you wont show up, or if you do show up you are not educated enough about the law to know how to challenge the affidavit of any of their other evidence.

They know they have two chances on the affidavit. Either you will not challenge it at all, or you will not know how to challenge it properly. They know in order for the affidavit to stand up they need to be ready with the witness who signed it, but they are hoping you do not know this.

So you wait till the court date, And when it is your turn to speak you ask the Plaintiff if the person who signed the affidavit is in court today, when they say no you say, your Honor I would motion the court to strike the affidavit from evidence due to the hearsay rule. Have the hearsay rule of your court memorized on write it down and state that rule to the court.

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The Plaintiff is banking on two facts, either you wont show up, or if you do show up you are not educated enough about the law to know how to challenge the affidavit of any of their other evidence.

They know they have two chances on the affidavit. Either you will not challenge it at all, or you will not know how to challenge it properly. They know in order for the affidavit to stand up they need to be ready with the witness who signed it, but they are hoping you do not know this.

So you wait till the court date, And when it is your turn to speak you ask the Plaintiff if the person who signed the affidavit is in court today, when they say no you say, your Honor I would motion the court to strike the affidavit from evidence due to the hearsay rule. Have the hearsay rule of your court memorized on write it down and state that rule to the court.

People reading this thread should understand that I'm bitter over how they do things. What BTO posted there is the proper way for winning in most cases. Just keep in mind that Citi will fly in a professional witness who is different from the affiant if the amount is high enough.

At least with the three that I mentioned, having the actual person who signed your affidavit on the stand is a recepie for future causes of action under many state consumer protection laws. Directly from my affiant's blog:

Cause I'm honestly at a loss. I've worked freaking hard all of September, including times when everyone else was talking I just sat there ignoring the visitor and working my little butt off, verifying as many affidavits as I possibly could... and today I went to my boss and asked if I'd done enough to make goal as I didn't make goal for August and thus for the latter part of September I was put on overtime freeze. Well... turns out I did not make goal for September and thus will not be able to work overtime for October either.
Speaking of at work, I'm seriously wondering how ANYONE gets anyhting done! so there's this woman there, D. and D works EXTREMELY hard. like seriosuly goes through a ton of accounts a day and all. me, her, c, and another woman probably all work the hardest of everyone. Well we were noterizing and talking and I found out that NONE of us can work overime due to scorecards. And I knew that I had been on a 3 month freeze, but I thought for sure these ladies were making goal... so I'm kinda feeling a bit defeated over it all... I mean... if these women, some who have been working for the company since Ive been born, can't meet the goal....
o not much happened today. I got my October scorecard at work. Which means my manager is on top of things this month. I'm oddly at peace now though. That's not good... I didn't make goal again this month (goal was 37 and I did 30 per hour- which is 80% of goal and thus "inconsistant) and apparently I'm still talking too much... that's depressing... but the fact of the matter is that as I did not make goal in October, I can't work overtime or hit incentive for November.... and November is the last month before my wedding. As paychecks pay for the previous 2-weeks of work, this means that I have no chance of making extra money before the wedding. This fact, while it brings along the stress of "WHAT AM I GOING TO DO?!?!" is also rather calming because, hey, if I make goal this month, I can eventually make money and use it to live on... but as for as the wedding goes, I'm out of luck. No stress (on if I make goal or not).

The OTHER bad part about not making goal is that it means I get no raise next year. which sucks. majorly. But there's also nothing I can do about that... maybe might be able to get a job elsewhere.... but at least I'm not stressing over that now.

They sue first and check records later.

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I've been on the witness stand many times as the "keeper of the records." So I do know the questions and the defenses that are used. If you just have a professional witness show up, and that witness is challenged properly, you have about as good of shot at winning as a criminal defendant does when the defense calls their "expert" that has testified in 200 cases and in all 200 cases the "expert doctor" determines the defendant suffers from a mental disease making them not responsible for the crime.

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Actually, I think we could use more info about this particular case. What kind of evidence didi they produce, etc. We're guessing. If we have the name of the affiant, maybe we can arrange a nice surprise for her if she shows in court. We need to know when the account originated. Maybe she didn't even work there at the time. These are interested witnesses who never testify against their company. That would be the first question I would ask any affiant....how many of these have you done, and how many went in the consumer's favor?

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I've been on the witness stand many times as the "keeper of the records." So I do know the questions and the defenses that are used. If you just have a professional witness show up, and that witness is challenged properly, you have about as good of shot at winning as a criminal defendant does when the defense calls their "expert" that has testified in 200 cases and in all 200 cases the "expert doctor" determines the defendant suffers from a mental disease making them not responsible for the crime.

Of course. The kicker is that most people being sued for CC debt cannot afford an attorney to properly challange a professional witness. They have to figure out how to do it themselves, and if they aren't informed, which most people aren't, they will fail.

Even when a CC company has what it needs to beat somebody who does mount a proper defense, they typically don't bring it to court because it is not cost effective. They win 95% of the time simply by filing, and their infrastructure for dealing with litigation shows as much. There simply aren't enough employees who are truly familiar with the record keeping practices to provide witnesses for all of the cases they file.

Take Crap1 for example. If they file lawsuits at the same rate per capita throughout the country as they do in my state, they would have filed about 700,000 cases in the US last year. (I know, that's big "if," but needless to say, it is a safe bet that they do file into the hundereds of thousands per year.) That means that there is an affidavit for every single one of those cases, and more affidavits that were signed but not used because the lawyers were able to scare the person into paying without actually filing a suit.

If they needed a witness for just 1% of 700,000 cases, they'd have people testifying on average of about 20 cases per day. If you restrict that to days that the courts are actually open, that would be more like 30 per day. I bet that'd easilly cost $10 million per year or more just in travel costs, hotels, etc... Maybe even double or triple that. Start throwing in other costs associated with litigation that they might not recover, and it becomes obvious why they do things the way they do. In the meantime, if Crap1 was actually trying to prove its cases, the actual records custodians who could truthfully answer the necessary questions about the record keeping practices and systems wouldn't be keeping any records because they'd be constantly in courts around the country testifying.

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At least with the three that I mentioned, having the actual person who signed your affidavit on the stand is a recepie for future causes of action under many state consumer protection laws. Directly from my affiant's blog:

Was this Ramona?

It was Shayna.

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Actually, I think we could use more info about this particular case. What kind of evidence didi they produce, etc. We're guessing. If we have the name of the affiant, maybe we can arrange a nice surprise for her if she shows in court. We need to know when the account originated. Maybe she didn't even work there at the time. These are interested witnesses who never testify against their company. That would be the first question I would ask any affiant....how many of these have you done, and how many went in the consumer's favor?

The only thing they have is the Affidavit of debt signed by Lara Letellier (not notarized)...Account opened on 6-17-03 last payment 6-4-07 and a generic customer agreement.

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It does say "I declare under the penalty of perjury that the foregoing is true and correct and if called as a witness I would competently testify under oath thereto"

Also...

I am authorized by cap1 to testify to the matters set forth. as a result of the scope of my job responsibilities, I have personal knowledge of the manner and method by which c1 creates and maintains certain business books and records, including computer records of defaulted accounts.

The c1 books and records are made in the course of c1 regularly conducted business activity and it is a regular practice of c1 to make these books and records. Each of c1 books and records reviewed are made: 1 at or near the events they purport to describe occurred, by a person with knowledge of the acts and events or, 2 by a computer or other similar digital means, which contemporaneously records an event as it occurs.

then it goes into payments and default dates...

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