Coltfan1972

Standing when dealing with JDB

144 posts in this topic

It is the only state that doesn't but there is a ray of light in the Fair Debt Buying Practices Act.

Arizona also has no such a law. Shocking, I know.

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Arizona also has no such a law. Shocking, I know.

 

One thing to keep in mind when playing in "small claims" type courts is that the law may not matter. When you are going pro se anything can happen depending on what the judge wants to do. Different strategies will or will not work depending on where you are. This is not just state specific or county specific, but it really depends on exactly where your trial takes place. 

 

I have been successful mainly because the other side knows I will be a pain until the end. They may not be afraid of me, but they do realize I will waste their precious time when they could be going after easier prey. Once again this depends on where you are playing and also the arrangement that the attorneys have with the JDBs. 

 

One thing I have observed over the last few years is that most that can afford an attorney rarely ever have to go beyond the initial hearing. Once again this also comes down to taking up too much of the other sides time. They understand if they have to deal with another attorney that it may take away from their easy money.

 

If you can't afford an attorney then you need to see if you can find any FDCPA violations involving your case. This may be changing but about every case I have reviewed has at least one clear FDCPA violation, if not more. Then you "hire" (give the attorney most of the money that can be obtained) an attorney to sue the other side in Federal Court. This is probably the most effective way assuming the other side has committed the violations, and you can find an experienced attorney. 

 

Nothing is a 100% guarantee. Just realize if you do nothing that you are gong to lose. You might still lose if you fight, but it is usually worth trying if you are willing to put in the time. 

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@ArtVandelay

One thing to keep in mind when playing in "small claims" type courts is that the law may not matter. When you are going pro se anything can happen depending on what the judge wants to do. Different strategies will or will not work depending on where you are. This is not just state specific or county specific, but it really depends on exactly where your trial takes place. 

 

I have been successful mainly because the other side knows I will be a pain until the end. They may not be afraid of me, but they do realize I will waste their precious time when they could be going after easier prey. Once again this depends on where you are playing and also the arrangement that the attorneys have with the JDBs. 

 

One thing I have observed over the last few years is that most that can afford an attorney rarely ever have to go beyond the initial hearing. Once again this also comes down to taking up too much of the other sides time. They understand if they have to deal with another attorney that it may take away from their easy money.

 

If you can't afford an attorney then you need to see if you can find any FDCPA violations involving your case. This may be changing but about every case I have reviewed has at least one clear FDCPA violation, if not more. Then you "hire" (give the attorney most of the money that can be obtained) an attorney to sue the other side in Federal Court. This is probably the most effective way assuming the other side has committed the violations, and you can find an experienced attorney. 

 

Nothing is a 100% guarantee. Just realize if you do nothing that you are gong to lose. You might still lose if you fight, but it is usually worth trying if you are willing to put in the time. 

Great advice!

Another thing to keep in mind when considering "small claims" or Justice Courts (esp. Arizona) is that JDBs are hiring lawyers that agree to capped legal fees.  In other words, the JDBs attorney cannot bill more than X-amount (usually $1000-$1500) to represent the JDB on contested debt collection cases.  This capped fee arrangement apparently also applies to counterclaims in the lower courts (I say this because it did in my case).  If your strategy is to "make it cost them", you have to get the JDB (and possibly their FDCPA-violating) lawyers) into Federal court to face the music on their FDCPA violations.

 

IMO, anyone in small claims or Justice Court trying to apply leverage against a JDB with a capped fee agreement is wasting their time.  Worse, if your claims are dismissed by the lower courts, you cannot then refile in Federal (res judicata).

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Yes, showing JDB that they only waste their time is probably the best strategy, given how much WA judges love JDBs. I haven't been successful so far. I should have dragged them into hearings and bury them with various RFAs. I should have blocked their MSJ with discovery requests, because whatever they send in response look all the same across many cases. All of that is just to disrupt their established workflow. Hell, even their appeal response briefs -- a redacted copy of which I am going to publish here shortly -- look exactly all the same for the three different cases I am monitoring (including mine). One of the three appeals against Cavalry in my county is from a lawyer, who acts pro se, by the way.

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This is very informative information on standing, but what if:

 

Original creditor sales to bank #1,

bank #1 sales to bank #2,

bank #2 sales to bank #3,

bank #3 sales to bank #4,

bank #4 sales to JDB.

 

JDB files lawsuite and states that bank #2 is the original creditor and that was who the JDB purchased the debt from, but the assignment and bill of sale and affidavid of sale of accounts by debt seller are all in the name of bank #4.

how would you challange standing, that they filed a lawsuite and named the wrong original creditor (bank #2 not the origianl-original creditor) and that bank #4 was the last assignee before allegedly selling it to the JDB?

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You would object, and point out the chain is broken.  They need assignments from bank 1 to 2, 2 to 3, 3-4, and 4 to JDB.  They also need someone from each place to lay foundation for the previous. A pretty impossible task, unless you are in Arizona. ;)

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You would object, and point out the chain is broken.  They need assignments from bank 1 to 2, 2 to 3, 3-4, and 4 to JDB.  They also need someone from each place to lay foundation for the previous. A pretty impossible task, unless you are in Arizona. ;-)

It's not just Arizona.  Many states are cozying up to the "adoptive business records" doctrine.  I predict by the end of the decade all but the least sophisticated of states will have either legislation in place or binding caselaw acknowledging this doctrine as an acceptable method of allowing evidence to be admitted.  It's just how business has to be done in a world where many important records exist only in an electronic format and change hands many times.

 

(Edit: I originally said "century" and meant "decade".)

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What are some of the many cozying states so far this century?  Are there many states with significant splits among their districts?
 
The only state that I've turned up in my research that has much split is Ohio, in its 2nd and 6th districts; "Ohio Receivables LLC vs. Williams" and "Wright-Patt Credit Union vs. Byington".  These cases have already been discussed numerous times on the forum here.  Are there any other major ones?
 
I was surprised, given the split, that the Ohio Supreme Court passed on Ohio Receivables.  The Jurisdictional Memoranda by both parties was quite well done.

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Well I can tell you in Oregon they don't bat an eye about the standing and them not having any documentation of chain of ownership and many other errors. Unfortunately I spent quite a lot trying to fight two different JDBs and neither arbitrator would give any care or thought to it. Ended up having to do a BK:-(

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The problem is that it's still very, very difficult to prevail with "bad facts" - especially when the burden of proof is "preponderance of evidence." I see relatively few people on forums such as this taking a minute to think: "What if the account is mine, the amount is accurate, the account was legally sold by the original creditor and the legal owner of that debt is now suing to collect?" These are the facts in an overwhelming majority of cases. I'm guessing that many people still try to defend these cases from a position of ignorance - willful, or otherwise.

 

Combine that reality with a sober assessment of how your particular court rules on these matters and then decide how much return on investment will come from going through bills-of-sale with a fine-toothed comb.

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On 5/8/2015 at 3:01 AM, Robespierre said:

What are some of the many cozying states so far this century?

 

I'll answer your question, but let me ask this.  What state other than 1/2 of Ohio has rejected the doctrine?

 

Here are 'some' that I turned up in a few minutes of searching.  This is only a list of caselaw.  There are some states, like New Jersey, that have passed legislation for dealing with the question that are not a part of this list.

Arizona (State v. Parker, 296 P.3d 54, 231 Ariz. 391 (2013))

Colorado (Teac Corp. of America v. Bauer, 678 P.2d 3 (Colo. App. 1984))

Connecticut (Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468 - Conn: Appellate Court 1987)

Hawaii (State v. Fitzwater, Haw: Supreme Court 2010)

Indiana (Cox v. CA HOLDING INC., Dist. Court, SD Indiana 2015)

Maryland (Kimber v. Federal Financial Corp., 668 F. Supp. 1480 (M.D. Ala. 1987))

Mississippi (Jones v. Hatchett, 504 So.2d 198, 201 (Miss. 1987))

Ohio (Great Seneca Financial v. Felty, 170 Ohio App. 3d 737, 2006 Ohio 6618, 869 N.E.2d 30 (Ct. App. 2006))

Texas (Bell v. State, 176 SW 3d 90 - Tex: Court of Appeals, 1st Dist. 2004)

 

Federal 1st Circuit (United States v. Doe, 960 F.2d 221, 223 (1st Cir.1992))

Federal 2nd Circuit (United States v. Williams, 205 F.3d 23, 34 (2d Cir.2000))

Federal 3rd Circuit (United States v. Sokolow, 91 F.3d 396, 403 (3d Cir.1996))

Federal 5th Circuit (United States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir.1978))

Federal 7th Circuit (Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th Cir. 2003).)

Federal 8th Circuit (Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir.1994))

Federal 9th Circuit (United States v. Childs, 5 F.3d 1328, 1333 (9th Cir.1993))

Federal 10th Circuit (United States v. Carranco, 551 F.2d 1197, 1200 (10th Cir.1977))

Federal 11th Circuit (United States v. Parker, 749 F.2d 628, 633 (11th Cir. 1984))

 

But these are the most compelling (and most cited) cases for any court in the land (other than SCOTUS) faced with the "adoptive business records" question:

Air Land Forwarders, Inc. v. US, 172 F.3d 1338 (Fed. Cir. 1999).

US v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007)

 

 

 

Edit: I hadn't thought if this before, but instead of individual states adopting this doctrine one at a time by the end of the decade, I now believe it will be a question posed to SCOTUS that will settle the question for everyone.

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I'll answer your question,

Thank you for your answer. It is a good answer. I hope that it was obvious that I asked the question in the spirit of genuinely wanting to understand how dominant ABR doctrine is at present, and what pushback there is, at present. I had turned up some of the information in your answer, but not all or most.

 

but let me ask this.  What state other than 1/2 of Ohio has rejected the doctrine?

That was a question that I had also asked (and tried to answer; "The only state that I've turned up in my research that has much split is Ohio") in my last post. I suppose that Ohio is the extent of any pushback towards ABR doctrine.

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The problem is that it's still very, very difficult to prevail with "bad facts" - especially when the burden of proof is "preponderance of evidence." I see relatively few people on forums such as this taking a minute to think: "What if the account is mine, the amount is accurate, the account was legally sold by the original creditor and the legal owner of that debt is now suing to collect?" These are the facts in an overwhelming majority of cases. I'm guessing that many people still try to defend these cases from a position of ignorance - willful, or otherwise.

 

Combine that reality with a sober assessment of how your particular court rules on these matters and then decide how much return on investment will come from going through bills-of-sale with a fine-toothed comb.

 

Goody, are you angling for a job with a debt buyer?  I don't necessarily disagree with anything you've stated above, but in an adversarial legal system, pushback is what keeps the system fair - not only for the overwhelming majority, but also for the minority or odd individual.  But it can't just be the minority or odd individual that does the pushback, or it won't work (in keeping the system fair).

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@Robespierre

 

I think Goody is just stating facts that those defendants who don't have a defense of identity theft, the SOL, etc. need to consider especially if wages can be garnished.

 

Yes, pushback keeps the system fair, but only if the pushback raises issues that a court consider to be valid.   We have to remember that what we consider to be a valid issue may not be considered to be so by a court.   That's the importance of reading court rulings.  We learn how certain courts handle certain issues and what mistakes, if any, were made by a defendant.

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Thank you for your answer. It is a good answer. I hope that it was obvious that I asked the question in the spirit of genuinely wanting to understand how dominant ABR doctrine is at present, and what pushback there is, at present. I had turned up some of the information in your answer, but not all or most.

I got it.  I wasn't being flip in my response.  I would have liked to turn up a 'Adoptive Business Records Doctrine; state-by-state' website on my first search but I knew that wasn't likely.  I'm certain more states than I listed follow the doctrine but, unless I go to the ASU law library or the one at the Superior Court downtown, my legal research is limited to Google Scholar and whatever time I have between my 3-year old dumping out the trash for the dogs to eat and painting his room with toothpaste, and working 50 hours a week.

 

That was a question that I had also asked (and tried to answer; "The only state that I've turned up in my research that has much split is Ohio") in my last post. I suppose that Ohio is the extent of any pushback towards ABR doctrine.

It could be.  I found only one other case where the court didn't adopt the doctrine but it was because the witness didn't testify to the necessary elements.  My research was admittedly biased because I wasn't looking for non-adopting cases.  Again, I'm sure they exists, but I predict in a much (much?) smaller ratio to the states that have adopted, and that prediction is based on the fact that I wasn't sifting through piles of adopters to find the non-adopters.

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Goody, are you angling for a job with a debt buyer?  I don't necessarily disagree with anything you've stated above, but in an adversarial legal system, pushback is what keeps the system fair - not only for the overwhelming majority, but also for the minority or odd individual.  But it can't just be the minority or odd individual that does the pushback, or it won't work (in keeping the system fair).

What's unfair about adoptive business records? (Other than the fact that it works against you in this one particular circumstance?)

 

Adoptive business records isn't applicable to only the debt buying industry.  Most of the cases I came across that were applying the doctrine were criminal in nature and it was being applied to the State's and Defendant's cases alike.  If you were convicted of a crime you didn't commit and you had credit card transactions (or some other electronic record of data compiled from various sources) that could prove you were innocent, would you not want that evidence admissible?  And on the other side, if someone robbed your house and the State had evidence that the accused purchased with a credit card the lock picking device used to break into your home, you'd want the state to be able to introduce that evidence as well, wouldn't you?

 

And if you owned a business and the entirety of your business was relying on the accuracy of information provided to you by another business, you would absolutely be 100% in favor of adoptive business records in that case.

 

 

Back when our legal system was born (via the constitution), a 'large' town was 5,000 people. Because the industrial revolution had not taken place, a business owner made his own merchandise and, in conducting his business, he rarely relied on information from another business.  Now nearly every business in existence relies on information from other businesses. As our technology and access to conducting business to every corner of the planet advances, so must our legal system.

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I'll answer your question, but let me ask this.  What state other than 1/2 of Ohio has rejected the doctrine?

 

Here are 'some' that I turned up in a few minutes of searching.  This is only a list of caselaw.  There are some states, like New Jersey, that have passed legislation for dealing with the question that are not a part of this list.

Arizona (State v. Parker, 296 P.3d 54, 231 Ariz. 391 (2013))

Colorado (Teac Corp. of America v. Bauer, 678 P.2d 3 (Colo. App. 1984))

Hawaii (State v. Fitzwater, Haw: Supreme Court 2010)

Indiana (Cox v. CA HOLDING INC., Dist. Court, SD Indiana 2015)

Maryland (Kimber v. Federal Financial Corp., 668 F. Supp. 1480 (M.D. Ala. 1987))

Mississippi (Jones v. Hatchett, 504 So.2d 198, 201 (Miss. 1987))

Ohio (Great Seneca Financial v. Felty, 170 Ohio App. 3d 737, 2006 Ohio 6618, 869 N.E.2d 30 (Ct. App. 2006))

Texas (Bell v. State, 176 SW 3d 90 - Tex: Court of Appeals, 1st Dist. 2004)

 

Federal 1st Circuit (United States v. Doe, 960 F.2d 221, 223 (1st Cir.1992))

Federal 2nd Circuit (United States v. Williams, 205 F.3d 23, 34 (2d Cir.2000))

Federal 3rd Circuit (United States v. Sokolow, 91 F.3d 396, 403 (3d Cir.1996))

Federal 5th Circuit (United States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir.1978))

Federal 7th Circuit (Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th Cir. 2003).)

Federal 8th Circuit (Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir.1994))

Federal 9th Circuit (United States v. Childs, 5 F.3d 1328, 1333 (9th Cir.1993))

Federal 10th Circuit (United States v. Carranco, 551 F.2d 1197, 1200 (10th Cir.1977))

Federal 11th Circuit (United States v. Parker, 749 F.2d 628, 633 (11th Cir. 1984))

 

But these are the most compelling (and most cited) cases for any court in the land (other than SCOTUS) faced with the "adoptive business records" question:

Air Land Forwarders, Inc. v. US, 172 F.3d 1338 (Fed. Cir. 1999).

US v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007)

 

 

 

Edit: I hadn't thought if this before, but instead of individual states adopting this doctrine one at a time by the end of the decade, I now believe it will be a question posed to SCOTUS that will settle the question for everyone.

 

 

Here's a few more:

 

Georgia (Boyd v. Calvary Portfolio Services, Inc., GA Court of Appeals  2007)

Louisiana (Bishop v. Shaw, (La.App.2d Cir.3/12/08))

Massachusetts -  (Beal Bank, SSB v. Eurich, MA Supreme Judicial Court 2005)

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What's unfair about adoptive business records? (Other than the fact that it works against you in this one particular circumstance?)

My reply to Goody had nothing at all really to do with adoptive business records doctrine.

But it is true that so far I'm not a huge fan of adoptive business records doctrine. I do agree that it will eventually become universal, both for the sake of efficiency and because the corporate powers that influence government will insist upon it. Hopefully some safeguards can be added as the law evolves.

One problem I have with ABR doctrine, at least in the case of debts, is that no consideration whatsoever is given to the legitimacy and reliability of the record keeping practices of all prior owners of the debt. The mere process of adoption by a new owner is what makes the records good enough for evidence, not the records themselves, or anything at all about the former parties that held the debt. Another problem is that it increases the chances of a debtor having more than one entity trying to collect against him or her on the same debt.

If it is because technology (and whatever else) has increased and improved so much that we absolutely must give up the hearsay rule and embrace adoptive business records doctrine, then technology should be able to provide for some sort of title mechanism (for not too must cost) that demonstrates for sure "who has it now" and "who has had it". Some person(s) from the prior holder of the instrument should sign off about the quality of the records at the time of transfer. Instead of what happens now, an attached disclaimer that they may not be any good for any particular purpose at all.

Adoptive business records should be subservient to direct evidence if it is available, or should have been available because it was produced within some reasonable time of recent history. I've recently watched a bunch of seminars, webinars, and powerpoint demonstrations produced by (or for) those in the debt buying industry. The better authenticated records are available, but they cost more and the debt buyers don't want to pay for them. What they do now is buy the better records later if they need them for trial or settlement, or they try to change the laws so they only need to produce the weaker records that cost less. If we have to give up the hearsay rule, shouldn't the evidence be required to be as good as it can be, rather than just as cheap as it can be?

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Adoptive Business Records Doctrine doesn't do away with hearsay rules.  There still has to be someone to introduce and explain what the records are and where they came from.

 

The reliability of the records "stems from" the fact that they were incorporated and relied upon.  In other words, it begins there but the incorporation and reliance isn't the end.  If you have some fact that brings the reliability into question, well then now we have ourselves a trial.  But if you never offer any facts (paid the account off, never opened/used the account, etc) or evidence (bank records showing payment in full) to dispute the plaintiff's records, a reasonable person cannot expect the court to simply ignore the records because the plaintiff cannot prove a computer didn't go rogue on a personal vendetta against you.

 

Finally, the evidence should be as good as need be to get past whatever rules/precedent a party needs to satisfy.  Again, if you were introducing your bank statements as evidence that you paid the account in full, you'd want those records to be accepted by the court without having to have someone from the bank and each merchant to come verify each entry on the statement, right?  Enter Adoptive Business Records Doctrine.

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