Coltfan1972

Standing when dealing with JDB

144 posts in this topic

Don't get me wrong- I'm not trying to be argumentative or critical.

I took nothing wrong or argumentative. You just asked a common question based on a common experience. I took it just as you said, you are just trying to learn as much about this as you can, and are using your case as an example.

After learning about these cases what concerns me is that since the opposing attorney referred to them in his response then he will probably use them in an attempt to convince the judge to overrule any of my objections to his hearsay evidence.

Probably, but don't over think it. Hearsay laws and exceptions are pretty clear cut.

I had this happen to me. The JDB tried to introduce the OC records. I objected and the JDB attorney said "business records exception you Honor."

The judge looked shocked and disgusted at the same time. He actually gave the attorney for the JDB a did you really just say what I thought you said look. He had that "really" look on his face. He then went on a rant and went into detail explaining what a business records exception really is. His speech is in this thread.

You say, "They are hitting you hard with fancy sounding case law and jargon, and their arguments are right." Well, they are also hitting the judge hard with the same B.S. then and if the judge reviews the appeal he could just as easily decide that exactly what I am objecting to was ruled admissible in a recent Appeals Court case

This is when it will be your job to point out how the case they are citing is not relevant to your case, and why.

The judge in my case had a lap top on the bench. There were many times when I or the other side was arguing he would put his hand up to stop the argument, and then go to the computer. He was sitting there looking up case law that myself and the other side were citing.

The good thing is that my first impression of the judge was that I felt he was subtly helping me along.

It's just human nature to root for an underdog. I got that same feeling in my case. Just don't rely on that feeling, but by all means embrace it and use it to your advantage. I had a friend that went to court with me, tell me that it was completely obvious I was "running with it," in reference to the judge cutting me some slack.

Best way to keep the judge on your side? Prepare, prepare, prepare. Know the rules, follow the rules, keep it relevant, and show respect. I've never had that respect only be a one way street. In fact, not even close to it.

Share this post


Link to post
Share on other sites

Oddly enough, about half the credit card cases I've read on line are from appeals courts. The majoity of the appellants lose, too. They raise some of the craziest arguments you'll ever hear. Of the ones that do prevail, it usually comes down to judicial error. Some of these judges just don't know that much about credit card laws. I bet some of us here know more than they do. Also, they are usually involved with pro ses or incompetent lawyers from the collections industry. These people don't know the law either, and don't have a strategy. One lawyer I watched in court argued that the OC violated state banking regulations. The judge nodded as if to agree. Now, why is that worth mentioning? This would be a perfect case for an appeal, but neither the judge or the lawyer or the clients knew it. Let's throw it out here and see who gets the right answer!

Share this post


Link to post
Share on other sites
One lawyer I watched in court argued that the OC violated state banking regulations. The judge nodded as if to agree. Now, why is that worth mentioning? This would be a perfect case for an appeal, but neither the judge or the lawyer or the clients knew it. Let's throw it out here and see who gets the right answer!

Because you don't break state banking laws, banking laws are federal laws.

Share this post


Link to post
Share on other sites

So if I stringently object to every last bit of the Plaintiff's "evidence" (the defective bill of sale, laughable affidavit from their employee, generic credit card agreement and one statement showing only an amount with no account activity) and still lose I have indisputable grounds for appeal?

Share this post


Link to post
Share on other sites
So if I stringently object to every last bit of the Plaintiff's "evidence" (the defective bill of sale, laughable affidavit from their employee, generic credit card agreement and one statement showing only an amount with no account activity) and still lose I have indisputable grounds for appeal?

You can just object, and will preserve your appeal rights. You're not required to go Demi Moore on them and "stringently object." :)

Share this post


Link to post
Share on other sites
Not saying there does not need to be other laws that apply to the OC and collections, but they don't do the exact same thing.

Generally speaking, by the time the debt has made it to real "collection agency" the original creditor has pretty much thrown their hands up and said, "just get us our money."

If you are a week late on your credit card bill, let's say to Citibank, the collection call will go (again generally speaking) a lot different than if you are four months late. No way (generally speaking) is Citibank, after a week late, going to demand a post dated check, tell you that you will be facing a lawsuit, or start reporting on your credit (they do that after 30 days).

In the case of a junk debt buyer, which does fall under the FDCPA, pretty much all hope is lost. The JDB just wants something and could care less about customer service or "retaining the customer."

So I can see your point, but they don't do the exact same thing. Original creditors so what I would term "soft" collections, as the debt and the relationship with the customer can still be saved.

A collection agency or junk debt buyer does "hard" collections. The nice guy approach has not worked, so it's time to pick up the pace and aggressiveness.

Obviously there is a ton more room for abuse with hard collections as opposed to soft collections.

Therefore, the reason the FDCPA does not apply to original creditors. Can you imagine the overshadowing nightmare an original creditor would have if they were forced to give the consumer 30 days to dispute and then not overshadow that dispute period.

The original creditor would not be able to send a billing statement with past due, please pay the past due now, if they were inside the validation period. Pay now would overshadow the 30 day validation period.

They would be in court every day (not that I would mind that) just for overshadowing lawsuits.

And as it has been said before, there is no generally speaking in law. The main reason I am for FDCPA type regulations on OCs is because some are as bad or worse than CAs.

I mean, I have never heard of a CA filing suit and "serving" you at an address you told them you were leaving in writing and by mail BEFORE the account was ever late. (Yes that is correct, the account was current in good standing never a single late payment and they filed 15 days after the payment was made, another 15 before it was late).

Then there are the OCs that when you ask for things that are required by the FDCPA they just laugh and say that doesn't apply to us. Pay us or we'll garnish, sue, take your house, put you in jail, you're a thief, crook, etc etc etc.

They call non-stop from blocked/unknown numbers, fake numbers etc.

So yeah, while most OCs don't do these things, but some do.

Share this post


Link to post
Share on other sites
So yeah, while most OCs don't do these things, but some do.

Right, I agree. Just not enough to congress to slap them with a tons of restrictions for their collections.

And yes, generally speaking works with the law all the time. It's the reason the FDCPA does not apply to OC because generally speaking, their collection attempts are not much of a problem.

The law actually works a ton more generally speaking that using cut and dry black and white assumptions.

It's the reason I will say generally speaking lack of standing is not an affirmative defense. The reason is just about all courts don't consider it an issue that must be raised before you can attack standing.

Generally speaking, you don't get a ticket for going 5 MPH over the limit, but it can happen.

I'm saying generally speaking and you're saying, most of the time, or not all of the time. We're saying the same thing.

On a side note, you can usually nail an OC a lot more with other laws that don't restrict your statutory damages to 1K per action. It reality, it's not all that bad OC don't have to comply with the FDCPA.

I've read between the lines a ton of times on the creditor boards where they will basically say, "Who cares, the most you will have to pay is 1K in statutory damages."

I do admit it would be nice to have the least sophisicated consumer standard along with strict liability when dealing with OC. It's just not going to happen anytime soon.

Share this post


Link to post
Share on other sites

I've been wondering something. JDBs claim to be assignees of an OC. We know that JDB bills of sale never reference an individual's name or account number.

Cardmember agreements usually state that the OC can sell or assign the account and that the assignee will have the rights of the creditor. We also know that many times, a JDB cannot provide the applicable cardmember agreement...the agreement that was in effect when the account went into default.

If a JDB cannot provide a copy of that agreement, they have provided no proof that the agreement allows for the account to be sold, or that the rights of the OC are transferred to the assignee.

Along with the fact that they can't prove they own the account, would it be added ammunition to show that they can't prove the account was even allowed to be sold or that they would have the same rights as the OC?

Share this post


Link to post
Share on other sites

Can't hurt for sure, but you can google just about any card member agreement and just print one out. It's not like a junk debt buyer is going to admit they did not get it from the OC.

Share this post


Link to post
Share on other sites

Oh, very true. They can do that. But some of them never present one even though their Complaint references "the agreement". Even if they do present one, if it's unauthenticated hearsay and inadmissible, there's goes the evidence that the account could be sold and that they'd have the rights of the creditor.

I'm just bringing this up as a way to fluster the JDB even more. Perhaps the more ammunition a defendant has against them, the more discombobulated the JDB attorney will become.

  • Like 1

Share this post


Link to post
Share on other sites
Oh, very true. They can do that. But some of them never present one even though their Complaint references "the agreement". Even if they do present one, if it's unauthenticated hearsay and inadmissible, there's goes the evidence that the account could be sold and that they'd have the rights of the creditor.

I'm just bringing this up as a way to fluster the JDB even more. Perhaps the more ammunition a defendant has against them, the more discombobulated the JDB attorney will become.

You've got a good point. It can't hurt. Argument one is no valid contract has been proven so it's moot if they have ownership.

We must first establish what is in the unilaterally written alleged contract of adhesion, as far as the right to assign.

If you can prove the right is even available, then we can get to kicking your a$$ on the issue of standing.

I like it, just putting off the inevitable thrashing, but I'm all for discombobulating (nice choice of words :twisted:) a JDB attorney.

It would be nonsensical, preposterous, monstrous, quixotic, and acting with great impetuous, to first not establish the existence of a legally binding contractual agreement between the parties.

Share this post


Link to post
Share on other sites

Because you don't break state banking laws, banking laws are federal laws

Close, but no cigar. Any other takers? There are both state and federal banking laws, but that is not the answer. I feel like Alex Trebek over here.

You can just object, and will preserve your appeal rights. You're not required to go Demi Moore on them and "stringently object."

It was "strenuously object." Lieutenant Weinberg tore her a new one. Must be why she's in rehab these days.

Share this post


Link to post
Share on other sites
They can call you as a witness because you can cross examine yourself. I've been there done that. You just ask yourself questions or if the judge allows go into a narrative. You can also object from the witness stand. The only time they can't force you to the stand is in a criminal case where you can plead the 5th. This is civil. Well it's comical, but it's still technically civil.

However, it will do no good.

Midland- Do you owe XXXX on XXXX card?

You- Hell yes I do, you better believe I owe every damn dime.

Midland- Do you have a reason you have not paid?

You- Nope, I spent all my money on crack and booze, I don't have any money left to pay it.

Midland- So you fully admit you owe XXX on XXXX card ?

You- Not just yes, but hell yes !!

Midland- And you fully admit you have no legal defense to not paying, only you have no money?

You- Unless blowing all my money on drugs and booze is a defense, I have no defense for not paying XXXX back, the ones that I opened the account with. xFlowersx

Midland- Your ID was not stolen and you opened the account

You- I don't know, I've never really checked into it. I don't really care either way, but yeah, I opened the account.

Midland- So what is your defense to this suit, why do you feel the judge should rule you don't us the money you just admitted you did not pay back.

You- I don't owe you the money, I owe somebody that can prove legal ownership of the account with admissible evidence. You guys told me it was Infeasible to prove you owned the debt. :IThankYou:

Midland- :oops:

You- Can I go home now your Honor, I'm tired, hungry, and need a drink.

OMG, too Funny!:ROFLMAO2:

Share this post


Link to post
Share on other sites

I'm so glad I came back to this thread. It makes so much more sence now that I am finally getting an underastanding of the legal system.

Edited by skotm

Share this post


Link to post
Share on other sites

Thanks for all the great info in this thread.

One thing I still dont understand us why a JDB wouldn't be able to produce evidence of my specific account being one of the thousands of accounts they bought from the OC. Obviously they got my information somehow because the account number, amount, and my name and address are on the dunning letter.

Why wouldn't they just print out the spreadsheet or whatever source of my info was attached to the bill of sale?

Share this post


Link to post
Share on other sites

Why wouldn't they just print out the spreadsheet or whatever source of my info was attached to the bill of sale?

They could if they wanted to, but they would be coming dangerously close to being a legit business then (by actually trying to provide proof), and they seem to really enjoy being the scum of the financial industry.

I think they get a kick out of scamming the court system.

Share this post


Link to post
Share on other sites
Why wouldn't they just print out the spreadsheet or whatever source of my info was attached to the bill of sale?

You're missing most of the point. While many times they won't even do what you just asked about, provide info about your account.

However, the main thing is that ANYBODY can make a spreadsheet or document, especially after it's learned you're fighting back, that says you now owe them.

Another thing. These accounts are bought and sold more than a $3.00 crack whore trying to pay back her pissed off pimp. So they provide you proof they own the account today. It's not uncommon that next week it's bundled and sold again.

The only way you can establish ownership (well if one fights back) is with live witness testimony. Even an original creditor can't just send in a document that proves ownership. Even they have to have somebody that can testify to the business records. It's a million times easier for them to do that and why rarely an original creditor is going to losing on standing.

If four people, including the original creditor, have allegedly owned that account at anytime, you must have them all there to establish an "unbroken chain of custody" Each alleged owner has to provide records and testify to when they bought the account, from whom, how they maintained those records of the account (the business records) and if they sold the account to who.

Then that person has to rinse and repeat until you have the last owner, the Plaintiff, that can show the account is now their account and the records are all there and have not been tampered with (that is proven by the prior testimony).

All three prior owners (in my above example) have now provided a clear chain of custody to the current owner, the one suing you, and it is now proven they own the account, the records are all there, and that person now with the records can testify that you do in fact now owe them.

In other words an absolute nightmare and about as impossible to pull off as there is. Keep in mind, I've seen some of the sale agreements from the original creditor to the junk debt buyers (and it's been posted here before) and the original creditor many times sells the accounts as is and they won't agree to assist the buyer at all. If that happens it's a 100% guarantee they can't prove standing (again, if challenged properly), the original creditor has just washed their hands clean of it. In other words declared it junk and sold it for two cents on the dollar.

As with anything in life, you get what you pay for. The original creditors are basically saying good luck and you better get defaults or run into moron consumers that won't fight back because we are not assisting. Or if we assist it's just going to be an affidavit and if you want us in court to testify, be prepared to pay 20.00 a page for the documents (all 812 of them) and about 2,000 in our expenses to fly to court and testify for the day.

Another way to explain it is overkill and a complete circus, but it's like the O.J. trial. There is not a person with an IQ over 12 that does not know O.J. did it. So what did the defense do? They attacked the evidence AND the way it was obtained, keep, and the chain of custody. Every time somebody else touched the evidence or had any part in controlling that evidence O.J.'s lawyers just attacked everything but the actual evidence. It was all about did it get contaminated, was O.J. set up and somebody add to or take away from the evidence.

So if I produce a document that says you owe me, you've never heard of me and I buy thousands of accounts at a time, is there a chance I'm lying and/or an error with the records? Of course. And you see me post it all the time in a form of attempted humor, but it's true. If you dispute what that written record is they provide, how can you cross examine that document or record. You can't put it in the witness chair, have it raise its right hand and then explain itself. You have to have a live person use that record as an outline and to refresh their memory and then fully explain that record or document.

You can't cross examine something that can't talk back to you. I've done it. The other side busted out an affidavit. After the judge looked it over for 10 seconds or so he looked at me and I said, "I'd like to cross examine that affidavit Your Honor" Judge cracked the very smallest of grins like, I was hoping you would say something like that, while the other sides head about took off to Mars they were so ticked.

A document simply can't talk back to you.

With all of that said, the most important thing to remember is that there are plenty of ways that document can be admitted into evidence. You have to attack, attack, attack and can't just wait (well usually you can't wait) to the last minute and say you challenge. Sometimes you can but the rules of evidence usually require a timely challenge or a counter argument or you waive the right to challenge that evidence.

That is where you see a lot of the problems where people say this is not true, the judge admitted all their hearsay evidence. So when in doubt, raise hell about everything, object to everything, and never waive your rights.

And you might have read some posts about this, but I did this and it worked because it is a perfect example and I did it totally in the right context at the right time and after I laid the foundation for a hearsay argument.

After the other side produced a document from somebody not in court that I owed a certain amount, I got out a piece of paper and wrote Judge Smith owes Coltfan one million dollars, held it up and asked the judge if he owed me one million dollars because I say you do and I have this document that says you do. Hit the circus music because it's over. "Now I'm Done"

:trainwreck:

  • Like 2

Share this post


Link to post
Share on other sites
One reason they won't provide the spreadsheet is privacy concerns. It may be a 200 page document listing 40,000 accounts. There is no way they are going to make a copy of that document public. Imagine what would happen to them if they revealed the names, addresses, etc. of 40,000 people who defaulted on their credit card debts? A class action suit, most likely.

True, and my response is that they made reference to the document(s) proving their case. Therefore, I'm entitled to that document, in full.

Part of my strategy (well not really, but what I'd argue) is raise the defense that just by sheer volume alone there is a likely chance there could be errors. I need the whole document so I can put into context that argument. I want to see the layout, number of accounts and all the information or lack of information that is on that document(s).

It's part of my defense to challenge the accuracy and if there are 40,000 accounts entered and persued in the same manner as mind, I have a right to see that so I can use the likely hood of inevitable error when dealing with 40,000 accounts.

If I only get one sheet it might only have 50 accounts and my argument won't be near as convincing if I argue inevitable error if there are 50 accounts as opposed to 40,000 accounts. I'm looking for a pattern and I can't do that without the whole document, not just bits and pieces.

I want to see if any obvious errors, such as the same account listed twice, numbers transposed, wrong state listed for an address that would mean the account was required to be serviced under a different set of laws and could attack the credibility of the document.

In other words B.S. I can come up with a reason I need everything they don't want to or can't provide.

Share this post


Link to post
Share on other sites

Question:

What if the JDB provides an affidavit from the OC stating that the account was sold to the JDB?

I know affidavits can't "testify". However, courts take them seriously. You can subpeona the affiant, but an affiant for an OC can testify as to what's in the OC's records.

How would one refute such an affidavit/testimony?

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now