Standing when dealing with JDB

[Coltfan1972]

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

Well I'll assume by your question you are talking about a state that might take them more serious. If that is the case then yes I would look to raise more issues with the affidavit other than it's hearsay have it raise its right hand and take the stand.

You know all the usual arguments and attacks along with the defects, if any, you can point out. The bottom line is if you attack, attack, attack I've never seen where an OC affidavit passes for admissible evidence.

Plus sold the account leaves the door wide open. Sold what with the account and sold what with the account that was accurate.

I've seen some of the cases you've posted so know where you're going with this. In all those cases the Defendant made the wrong arguments. I remember one where they attacked the affidavit but did not attack the records could be wrong, or something like that.

Or they argue the lack of privity thinking they are arguing standing and let the affidavit sneak in. I'll admit that if you have "good hearsay" if there is such a thing, you might have to actually do a little more attacking, but it's not that hard to cancel out the affidavit. You only have to get the affidavit where it's not admissible, not proven wrong.

That is a huge difference that I see people not understanding all the time. They make arguments that don't fully hit on the exact issue they need to attack and focus too much on winning their case in every pleading they file.

Now I'll answer your question for me personally and what I might do or argue.

It's not going to do you any good to attack the affiant as an idiot and not qualified to make the affidavit, with only conclusions, and then stay silent on if the records are accurate or not.

However, how is that affidavit going to be able to prove the junk debt buyer has keep the records in the exact same condition and accuracy (here is where you know the JDB probably won't have a witness) as they were when sold to the junk debt buyer. The affidavit is not going to go into great detail and just say something like the records were transferred.

How were they transferred. Who specifically transferred the records. Has that person that transferred the records ever made errors in the transferring of the records. What specific documents were transferred with my account. Who maintained my specific records which were transferred. How were they maintained. Are they a full accounting and all my records or just an ending balance or a summary of the account. How many records were transferred with my account. What were the dates.

Do you have the notes from my account. If so, what do they say and who maintained those notes. If they were electronic notes how many people had access to get into my account and notes. Do you have a record of my contact with the original creditor. If so, who keep those records, what did they say.

In other words I can go on and on and each question, argument making the affidavit that much more useless, until finally I can say it's obvious there were a ton of people authorized on my account and that affidavit is just prima facie evidence.

Granted they probably will have some of my records, but you know they won't have everything I just asked about, but more importantly that affidavit can't answer the questions. Those records might not even exisit but that affidavit won't be able to tell us. Most likely they are going to have some statements and a summary of the account.

Fair enough, but where are the records which that summary of my account was based. Where is the foundation? Does a foundation even exist? You know the affidavit won't know.

My questions are legit questions. There were 20,000 accounts transferred (made up of course) and you can't tell me there are not some mistakes that could have taken place which that affidavit can be of no use in determining.

During the transfer were other records on unrelated accounts transferred, if so, how and by whom. Where my records bundled with others and if so how do you know. The affidavit can only state what happened on a specific date. The affidavit can't "continue" to authenticate the records after the date of the sale.

The affidavit can't specifically lay out all the details and can only hit the high points, therefore if I want to get highly technical and ask legit "follow-up questions" it's impossible for the affidavit to continue to be of the same probative value as when it was first introduced.

A witness would be needed to "refresh their memory using the account notes" (all legal and fine I concede) and answer my follow up questions. An affidavit can't do that.

In other words I would find something the affidavit did not address fully and run with it. Make them very easy questions to answer if a live person was there. In fact the easier the better. In other words, look how easy this could be resolved if we did not have to rely on hearsay documents that can't elobrate.

You could make that affidavit 300 pages long and I'd still find some detail that was not addressed that would leave the junk debt buyer with no other answer than "I don't know" Well if you don't know and it's not addressed in the affidavit, then how does the affidavit have any probative value?

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?

You would have a very hard time if the OC witness actually shows up and that witness is actually a legit witness. You of course would try to discredit them and show they are really no more than just picking up a file and reading it for the first time. It would be a tough argument if the witness is properly prepped.

I've testified many times as the keeper of the business records. It takes the atty a few background questions and then you pretty much are declared the keeper of the records (almost like an expert witness is qualified as an expert). Plus I already know or have been told what to say to make sure I'm considered qualified. Then it's pretty scary the free run the court gives you as the "keeper of the records"

Honestly, really only got a few token arguments attacking me on cross. While I did not lie, it's not like the other sides attorney was going to know if I had taken all those insurance classes and my job really qualified me as a record keeper.

It's the reason we post all the time that "You're facing an O.C., that is a whole different ballgame" when somebody starts asking how to attack the records.

You're pretty much screwed if the O.C. witness shows. It's like the police officer showing up for your speeding ticket trial. An affidavit only is like the officer showing up to trial without any records or knowledge of the ticket and just sits there on the stand saying he was speeding to every questions.

BV80,

I can't find one, but is there a case in any state and/or court that you have seen where a junk debt buyer actually got a witness from the O.C. to court and authenticated the records? Not said they would or even issued a subpoena, but testified on the record. I've never even heard rumors of cases out there where this happened.

Edited August 12, 2012 by Coltfan1972

[genericname]

coltfan, you are a rock star.

[Coltfan1972]

coltfan, you are a rock star.

[BrunoTheJDBkiller]

I can't find one, but is there a case in any state and/or court that you have seen where a junk debt buyer actually got a witness from the O.C. to court and authenticated the records?

Here's one, the JDB won the appeal, too. Some of these witnesses were just the JDB witnesses and they won.

Tommy L. EAVES, Appellant,

v.

UNIFUND CCR PARTNERS, Appellee.

No. 08-07-00284-CV.

Court of Appeals of Texas, El Paso

Another one, this time it was attorney's fees. JDB won this one too.

Michelle D. SIMIEN, Appellant,

v.

UNIFUND CCR PARTNERS, Appellee.

Here's one where the JDB produced a witness and lost:

SOUTH SHORE ADJUSTMENT CO., AS SUCCESSOR ASSIGNEE IN INTEREST TO CHASE BANK, Plaintiff,

v.

EDWIN PIERRE, Defendant.

Jdb produces witness and wins:

L&J ASSETS, LLC, Plaintiff and Respondent,

v.

JOSE N. VASQUEZ, Defendant and Appellant.

No. B217142.

Court of Appeals of California, Second District, Division Four.

Also:

Unifund CCR Partners[1]

v.

Bruce H. Mendel[2]

Massachusetts Appellate Division, Western District.

April 10, 2007.

2012 NY Slip Op 50974(U)

LVNV FUNDING LLC, Plaintiff,

v.

ANNETTA GUEST, Defendant.

2091-10.

City Court of Mount Vernon.

CACH, LLC, Respondent,

v.

JON J. ASKEW, Appellant.

No. ED 94814.

Court of Appeals of Missouri, Eastern District, Division One

2012 Ohio 2202

CAVALRY SPV I, LLC, PLAINTIFF-APPELLEE,

v.

MARC K. KRANTZ, DEFENDANT-APPELLANT.

No. 97422.

Court of Appeals of Ohio, Eighth District, Cuyahoga County

Probably lots more, use Google Scholar, all courts, credit card assignee, testimony.

[Coltfan1972]

Bruno,

Read my post again. I'm not talking about when the Defendant screws up and argues the wrong thing or does not argue it all. I'm not going to look at any case past the first one, because you obviously did not deep dive into the cases to see if they were even relevant to the discussion at hand. And all the witnesses were JDB witnesses, not some of them.

However, here is what the court said about the first case you cited (also note I'm talking about a live witness from the original creditor showing up live in court, which did not even happen in this case, it was all affidavits not attacked properly. Again, I'm talking the O.C. flying in a witness for trial. Read your cases before you cite them. Most won't deep dive into them, but I will. It does a disservice to those that are not as comfortable combing through case law opinions).

Eaves, however, never raised a parol-evidence objection to any of Lutz's testimony. Ins. Co. of N. Am. v. Morris, 928 S.W.2d 133, 156 (Tex. App.-Houston [14th Dist.] 1996), aff'd in part & rev

Eaves, contending that Unifund Partners lacked standing, first challenges the trial court's subject-matter jurisdiction over the suit. According to Eaves, there was no evidence that Unifund Partners owned the debt since Joseph Lutz's testimony was incompetent and therefore, no evidence, and neither the bill of sale from Citibank to Unifund Portfolio, nor the subsequent assignment from Unifund Portfolio to Unifund Partners, referenced his credit-card account.

This was not even a original creditor witness like I was referring. Also, the Defendant attacked the testimony of the junk debt buyer witness as incompetent and then wanted the court to rule since it was incompetent it made all the evidence inadmissible.

Again, a screwed up argument. You don't let a junk debt buyer witness on the stand explain the affidavits. The testimony is not incompetent and it is made in good faith (we can only assume). The testimony lacks foundation and is hearsay no matter if the evidence is competent or not.

In other words the Defendant should have pointed out that the testimony while in good faith relying on the records and the affidavits is still inadmissible hearsay even if the witness is 100% accurate in their belief.

You don't call the witness incompetent (which they probably are) if they have records there and are testifying with records refreshing their memory or the records are the JDB business records (not to be confused with admissible business records). That does make the witness incompetent, just irrelevant.

I'm sure if I went through the others I'd find similar. This case is trying to compare apples to oranges.

[BV80]

Bruno, reread Coltfan's question and the context in which it was asked. He asked if "a junk debt buyer actually got a witness from the O.C. to court". In other words, a live witness from the OC's company...not just an affidavit.

I haven't checked the other cases, but in Cach v. Askew, not only was there was no live witness from the original creditor, there was no affidavit from the original creditor. The affidavit was from a JDB.

[bravoflaca2000]

1

Edited October 5, 2012 by bravoflaca2000

[Coltfan1972]

What is your specific question after reading this thread and the others I posted for you. Myself and others can beat Midland with one hand tied behind our back, but we refuse to be your attorney. You have to help yourself. What are your specific questions?

[Countrygirl8]

Re: legaleagle:

I'm new here and this thread is a bit older but in case you look back I wanted to say thanks for a little comic relief while proving a very valid point! If you saw the clerk magistrate that hears the cases here in my county, it would be very interesting to see someone be brave enough to present your argument. He's a pretty big, intimidating guy but I'd still love to see his reaction. Anyway, I know you were just displaying some comic relief and sometimes when dealing with such a stressful subject it is much needed...for that I thank you. Personally, I needed the break, Thanks.

To all that have contributed so far...I want to thank as well. Along with many others, I also got a lot of vital information from this thread. You all don't know how much you help complete strangers and how much we truly appreciate it!

Sorry ):

Referencing legaleagle from page 1 :

"Midland buys in bulk, listing separate accounts on the bill of sale is "infeasible" funny huh?"

"My argument would go like this: (photoshop some crap and bring it with you)"

"Your honor, the plaintiff has admitted in their argument that they have no admissible evidence establishing ownership of this account because it is "infeasible" to produce said admissible evidence. I could, and do now, produce a similar "bill of sale" for demonstration purposes only. This bill of sale shows that the professional wrestler "The Undertaker" bought 15,000 accounts from Midland. Unfortunately, your honor, one of them is claimed by the Undertaker to be yours. He has retained counsel; McMahon, McMahon, and The Heartbreak Kid Shawn Michaels, to represent him. He claims that you owe one million dollars to him. He wants his money, and if you fail to pay, you will have to particiapte in a "coffin match" with him at the next WWE pay per view per the terms of the agreement which he cannot feasibly produce. All this, your honor, is designed to somewhat comically demonstrate the complete lack of any legal foundation in the plaintiff's case. The attorney for the plaintiff has come to court, but forgot to bring her case with her. Then again, she has no case."

Edited October 8, 2012 by Countrygirl8

[BTO429]

Re: legaleagle:

I'm new here and this thread is a bit older but in case you look back I wanted to say thanks for a little comic relief while proving a very valid point! If you saw the clerk magistrate that hears the cases here in my county, it would be very interesting to see someone be brave enough to present your argument. He's a pretty big, intimidating guy but I'd still love to see his reaction. Anyway, I know you were just displaying some comic relief and sometimes when dealing with such a stressful subject it is much needed...for that I thank you. Personally, I needed the break, Thanks.

To all that have contributed so far...I want to thank as well. Along with many others, I also got a lot of vital information from this thread. You all don't know how much you help complete strangers and how much we truly appreciate it!

It has been my experience that the bigger they are the harder they fall, and the longer it takes them to get back up, so you can kick them a few more times while they are down.......I am 6ft 4in 240 lbs, and around 8 percent body fat,,,,so I do NOT get intimidated....but any how if you need more help, never hesitate to ask....I went to law school because i hate the collection industry so much I want to actually help people,,,,especially those soldiers that have been sued while they were or are active duty.

[georgejonesfan]

It has been my experience that the bigger they are the harder they fall, and the longer it takes them to get back up, so you can kick them a few more times while they are down.......I am 6ft 4in 240 lbs, and around 8 percent body fat,,,,so I do NOT get intimidated....but any how if you need more help, never hesitate to ask....I went to law school because i hate the collection industry so much I want to actually help people,,,,especially those soldiers that have been sued while they were or are active duty.

Thank you for serving!

[Countrygirl8]

Yes, thank you for serving and thank you for your offer to help (:

My question was actually answered earlier in the thread and I didn't want to repeat it so I deleted it. Thanks!

Edited October 11, 2012 by Countrygirl8

[beingsuedbites]

I'm a virgin to this type of situation, cant afford any legal help....I've read a lot of the posts here and I'm confident that I understand the "Standing". The only thing i'm left wondering is...after I received the summons saying i'm being sued, do i do nothing until I show up for court or do I write midland asking them about discovery? I hope this makes sense and someone in here can help me...thanks!

[Coltfan1972]

Oh don't do nothing !!!!! You have to answer the lawsuit. And you don't write Midland. You have to formally demand discovery per the rules of procedure.

[beingsuedbites]

so I DONT write Midland...I have to answer to the lawsuit and formally demand discovery...how do I do this? by showing up to court? I DO plan on going. My court date is 11-05-12. Also, thank you for replying

[Coltfan1972]

You've got to read your rules and no you don't just write Midland. In a way you do, but not in the definition of "writing" you're using. You do it as a formal demand for discovery, but you have to use discovery.

Discovery= writing Midland. And no it's not something you even show up for court on, it's done between the parties. You might want to start a new thread on the main board, you will probably get more answers and I know a few posters from your state are on the board. The main thing though is answer the lawsuit.

[Ruffian]

Awesome You Coltfan 1972.

Knowledge is Power

Thank you for taking the time to share and help those of us in need.

[Coltfan1972]

No problem, glad it helped you or hope it helps you.

[BrunoTheJDBkiller]

And Coltfan did this in court, too bad the mike was on, he still won tho

Oh, and he took out another Midland attorney who tried to take a witness hostage, all in a day's work. End of story.

Edited October 19, 2012 by BrunoTheJDBkiller

[FL Bailey]

Thank You all for your posts. It's uplifting to my spirit.

[kilroy14]

Well, thank you for all the amazing posts and information on this site. Just got hit with Midland's suit yesterday (well, my significant other and "DOES 1 through 10" to be named later?)... this has been a ton of help. Getting all my responses and ducks in a row to respond to the complaint. Have a lawyer to clean up any errors in my response and hopefully with all the great input and help, we'll battle to the win! 

 

Can't say thanks enough, I know how much time it takes to provide this level of information to help people. 

 

[Coltfan1972]

Well, thank you for all the amazing posts and information on this site. Just got hit with Midland's suit yesterday (well, my significant other and "DOES 1 through 10" to be named later?)... this has been a ton of help. Getting all my responses and ducks in a row to respond to the complaint. Have a lawyer to clean up any errors in my response and hopefully with all the great input and help, we'll battle to the win! 

 

Can't say thanks enough, I know how much time it takes to provide this level of information to help people. 

 

[calawyer]

Well, thank you for all the amazing posts and information on this site. Just got hit with Midland's suit yesterday (well, my significant other and "DOES 1 through 10" to be named later?)... this has been a ton of help. Getting all my responses and ducks in a row to respond to the complaint. Have a lawyer to clean up any errors in my response and hopefully with all the great input and help, we'll battle to the win! 

 

Can't say thanks enough, I know how much time it takes to provide this level of information to help people. 

 

 

 

Good.  Midland is not a difficult adversary.  Send a Bill of Particulars and follow it up a month or so later with a limited number of Requests for Production (Contract, assignment agreement, all statements).  Meet and confer and file motions if Midland does not respond.

[FailedBiz]

@Coltfan  - Thanks for posting this thread.  I was so wrapped up in my SOL defense on a $37k JDB suit against me.  This thread and others really helped me win.  I appreciate you spending the time you took to write it.

[mikeinariz]

All, I have voraciosly read the above and can't thank everyone contributing enough for the guidance you provide! My question is when it comes to discovery. I am being sued by Cavalry SPV I, LLC in Arizona. OC is B of A (FIA Card Services). I don't see where they have offered into discovery the original credit card application, or the language therein of the option to assign the debt. Not that I am going to bring this into discovery, but is this where I object for lack of standing in a trial? The debt has been through numberous hands at this point, and I thought they had given up when Cavalry reared their A$$ ugly face. I have to submit MY discover this week and aside from entering what they did, and myself, not sure what else there is for me to "discover".

 

Their discovery includes a generic "Bill of Sale and Assignment of Loans", which there is no link to the debt in question, and on a second sheet, generic details of the account, identifying acct #, my name, amounts, OC, dates, etc.

 

Last, my assumption as this is credit card debt, with a LPD of more than 4 years ago, the SOL applies due to the new AZ HB 2412 which add credit cards to the type of debt with a 6 year SOL. Regarding this, should I use the three year SOL as the law infers that before 4/11/2011 (as the language specifically states HB 2412 "ADDS" credit cards to this type of debt). This is a fairly recent clarification, and I am hard pressed to find any judgement that excludes grandfathered credit card debts. Is there any way to argue the change of law should not affect this debt as the said debt was originated and incurred priod to the change in law?

 

Thanks in advance!!