Coltfan1972

Standing when dealing with JDB

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. 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!!

That's an ex post facto argument and on the criminal side you have the U.S. Consitution on your side and you win that argument hands down.  However, on the civil side that argument won't work. 

 

Also, this thread is more informational and most of the regulars don't follow it as they have pretty much added everything they care to add on the subject, so you will be better off and will get a ton more responses if you start a totally new thread in the Is Thre A Lawyer in the House forum.  

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I have been lurking on CreditInfoCenter for months and I want to thank all of you for the great advice.  I have had Midland Funding drop 1st case against me and now I am fighting them on 2nd case.  

 

Background:

Current case in Maricopa County, AZ (Phoenix).  They are suing as assignee of Chase even though Chase was not the OC on any of the accounts. 

 

This one is a WAMU Account sold to Chase sold to Hilco Receivables sold to Midland Funding.

 

The one I fought them and they dismissed was the same as this one.

 

I originally had 4 credit card accounts we are dealing with the 2 above and 2 more that went

Providian sold to WAMU, sold to Chase, Not sure of trail here, now at Midland Funding.

 

I am arguing hearsay and standing on all of them.

 

From research I have found that when WAMU was bought via FDIC by Chase, there pretty much were no lists of accounts so no true bill of sale per accounts ( at least not for mortgages, so I can not imagine if they did not list $200,000 home loans I am pretty sure they did not list $3000 unsecured credit accounts).

 

I moved to Pennsylvania recently.  I made court and Jerold Kaplan law firm aware we were moving months ago and have filed proper docs with court (They actually filed against me after I informed them I was moving).  Round Trip Airfare and car rental to Phoenix is going to cost me around $350 to $500 depending on deals.  Kaplan of course has threatened everything under the sun and moon and tells me they will require me to show. ( I know they can not and judge already told me I could appear telephonically at pre-trial) and in same brethe they might have Midland drop case and refile in PA.

 

I want to show and I want to pummel them, but they filed to dismiss case at last minute last time ( I would have shown, but it was interfering with our moving dates and that allowed me to get cross country trip started earlier).  If I buy tickets and rent car before hand they will dismiss and I will end up spending all that for nothing.  If I object and show up can I get the judge to rule in my favor with prjudice to keep them from refiling in PA again (still inside SOL).  Can I make them pay my travel costs?  

 

Question 2:

My ruined credit report. For these 4 accounts:    I currently have 4 negative line items for Chase, 5 account lines for Midland (one is listed twice with slightly different numbers), 2 line items for Hilco and 4 collection listings for Midland.  All total these 4 accounts are showing as 15 negative items on credit report.  I am in process of disputes now getting more and more threatening as we go.  

 

Can I sue them to remove the lines using the same hearsay and standing arguments in court?  There is no way they have any docs to support these accounts as Providian is now gone like 7 years and WAMU really had no sale docs to Chase, let alone all the steps in between. I have disputed, followed up and I am now demanding proof or removal from credit bureau or lawsuit.  Can I sue them for the $1000 per incident viloation amounts listed in FCRA Sect 602 through 616.

 

I think that the threat of this will get everything removed, however, if they choose to fight, winning is nice, but getting paid for the myriad of time allotted would also be nice.  

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Outstanding thread!  Thank you to all the posters - very helpful!

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 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.

Not in court but Oregon Court Mandated Arbitration-the JDB attorney sprung a local OC employee on me.

I don't think it even mattered at that point because the arbitrator started off with something like "those hearsay laws/rules don't apply here, they are are more like guide lines" and proceeded to enter the docs into the record at the very beginning. From there I was kind of at a loss as to whether he was going to get upset with me for continuing to object and most of my case was hearsay, lack of foundation and standing. 

Is there a reason they would have to fly an OC witness in? Why don't they just get a local one - none of them probably have true personal knowledge either way right?

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What an incredible thread; informative and entertaining too.  I am beginning to believe a terrific sense of humor is a prerequisite to being any good at all this JDB stuff.  I was laughing so hard in a couple of spots well, enough to say, a couple of you guys are way ahead of the game on that count!!

 

The meat of my story began when I had a summary judgment ruled against me because I did not get proper notice of the hearing.  I went through some pretty extensive hoops to successfully get that judgment set aside and a new trial ordered.  Now I have being hit with the summary judgment again of course.  That is why I am here; picking up some pointers.  My entire case rests upon "standing".  The debt buyer has all the statements and the contracts to boot (however none of them are authenticated by the original creditor of course).  

 

Coltfan hit the nail on the head when describing the affidavit scenario and the chain of title.  My situation is a business records affidavit and one added feature not mentioned so far is--the affiant in my case claims to be the manager of the finance company that also claims to own my debt but he is actually one of the attorney partners in the legal company suing me.  Oh boy!  Never the less, I am pretty sure (don't want to get overly cocky here) I can prove a no "standing" situation.  My confusion comes in when creating my "to do" list.  I am in Texas.

 

Here is how I see my priority list rolling out and I am really open to any suggestions anyone else may have:

  1. Submit a motion to strike: the only problem is the summary judgment hearing will probably take place before the motion to strike will be heard,
  2. Request a court reporter of the summary judgment hearing.
  3. Respond to the summary judgment.  While standing based on the affidavits are my primary issue, there are a couple of other defenses I can throw in for good measure.  I only have to get the court to agree that I have at least one factor in contention,
  4. Request a jury trial.  Almost never happens and JDBs hate this which makes me like it.
  5. Subpoena the affiant and his background records--the affiant is in Dallas and the court is in Houston--a 150 mile rule does exist unfortunately.  
  6. Fill out indigent forms and submit them to the court.  Without going into too much detail, I am basically judgment proof.  I want the JDB to know that even if they were to get a judgment, they would probably not get anything even in the long run.  You may ask why am I even bothering to defend myself.  I hope you will understand when I say, it is the principle of the thing.  This whole Junk Debt industry is a horrible blight on the judicial landscape, unfairly ruining good people's lives.  I wish more folks would just stand up and fight them instead of being scared into submission. 
  7. Here is an unusual one/slant: a debt collector in Texas needs to have a surety bond to LEGALLY collect debt in Texas.  The Secretary of State says this collection company does not have the required surety bond and this collection company has side-stepped the issue several times when I asked about this in Discovery.  
    • If this JDB cannot legally collect debt in Texas, standing may also become an issue using this concept.
    •  Also a counter suit begins to weigh heavy using TDCA which has resulted in some pretty sizable settlements.
    • Heck I may even be able to hire a consumer debt attorney on a contingency basis if I cross my fingers long enough!!  TDCA allows attorneys fee to be collected on top of any damages.

Mostly I just wanted to say thanks for this thoughtful jump into this issue of "standing".  I will write again to inform of my outcomes.

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I'm a newbie here from Wa. state. I'm taking on Midland-probably using the "standing" and OC paper trail burden of proof. Was served yesterday. Basic ? is what is my first move? Filing for a "summary judgement" or "discovery" maybe?? Aware of any site out there that spells this out for Wa. state?

 

I will read more posts, but want to get the ball rolling.

 

Also, if you are retired and have nothing they can "attach," what recourse does Midland have? Too, the summons got my marital status wrong, so can I use this to my advantage? All the legal mumbo-jumbo in the summons is something else!

 

Thanks for your time and knowledge.

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You will have a much better chance of getting the ball rolling if you start your own thread. This one is ancient, and not regularly checked.

 

This thread is an excellent one to research. As @Wins the Battle said above you need to start your own thread and answer "the questions" to get the best responses. 

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Thanks for this post...I was hours away from putting the nail in the coffin of a case with a jdb, but they finally served me court ordered papers in the 11th hour...so I was feeling bummed....this thread lifted my spirits!

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that's so nice to read thanks.

if some of you guys can help us we will really appreciate any advise.

"standing"

well after exchanging forms we got back from MFLLC a heavy envelope with statements a notary letter saying that they bought many accounts and so and also included a copy with my info and bill of sale.. in any meaning do that proof their "standing" that hey really owned the account.?

 

thanks

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that's so nice to read thanks.

if some of you guys can help us we will really appreciate any advise.

"standing"

well after exchanging forms we got back from MFLLC a heavy envelope with statements a notary letter saying that they bought many accounts and so and also included a copy with my info and bill of sale.. in any meaning do that proof their "standing" that hey really owned the account.?

 

thanks

Nope. Sounds like the standard discovery packet they send everybody. Was your name on an actual sales document from the original creditor? Probably not. More like: "here is a document referencing a bulk sale, and we swear oreobloop was in the pile of accounts. We swear!" < not good enough. Even if your name was on the sales document, without authentication it doesn't prove their claim. It's all a loose collection of unauthenticated documents, and what they are asking is that you connect the dots for them - that's not proof, that's hoping you don't know enough to see thru it.

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Many times the JDB will provide nothing or object to your requests. These are insane objections, but happen all the time. You will have to determine how you will handle this if the JDB objects. There are two schools of thought, do nothing because the JDB just failed to prove their case, so see you in court, or file a motion to compel. I do nothing and tell them I will see you in court. However, that is something each consumer should research.

In the highly unlikely event the case goes to trial, and proper discovery and challenges to the evidence was done, the JDB stands about a 99.99% chance of losing.

I was a party to one of those rare cases that went to court. So you might ask, what happens when the JDB thinks the rules of evidence don't apply to them and moves forward with the trial. You point out the rules of evidence to apply to them and object to their hearsay for the reasons stated above.

Here is a personal experience and how this specific judge ruled in my specific case. While I think this would be the common ruling in most courts, this is how a judge ruled in my case and does not mean a judge will rule the same in your case. They should and if not, in my opinion, you would have an excellent slam dunk appeal if they did not.

The JDB tried to admit their evidence of standing by affidavit and a bill of sale., They also had disclosed no witnesses from the original creditor that would testify. In other words I had won before the judge took the bench.

I objected of course. The other side argued to the judge that the records should be admitted under the business records to hearsay exception.

This was the ruling and almost a word for word quote from the judge.

"You can't take somebody else business records, drop those business records in your file (as the judge picks up a piece of paper and drops it in a file he had on the bench), put that file in your file cabinet, shut the file cabinet, and then claim those records are now your own business records and are admissible under the business records exception to hearsay." Objection sustained.

Of course that meant case over as the JDB had now failed to meet the element of standing.

If I owed the debt and all the other elements the JDB would have to prove were now irrelevant. They just lost their standing so they just lost their whole case.

The issue of owing the debt never even made it to argument. In fact, I conceded the element of owing the debt (not saying you should be any means). I knew they could not prove standing so to speed things up I just stipulated to owing the debt (again not saying you should).

The main thing to remember is the party suing you has the burden of proving their case and all the elements of their case. You need to make sure you follow the rules of the court and the rules of procedure for the state you find yourself in. Not following the rules can turn a slam dunk winning argument into a loser and an overall loss for the case.

Finally, don't be intimidated. Send discovery, dispute their evidence, make them prove their case and when they fail to do this or don't comply with the rules of evidence, attack.

When you fight back, you have just done what 98% don't do, fight back. Think that number is too high. Go to your local state court and pull the cases from the JDB that files the most cases. See if you can find even one that went to a full blown trial that was for less than 15K allegedly owed. What you will find is tons of defaults, settlements and granted motions for summary judgement.

And of course if sued, if you have even a remotely legit violation on the other side, file a counterclaim. JDB don't like people who fight back and they really don't like people that not only fight back but who turn the tables on them and sue them.

Awsome info! This will help me out a lot, I do have question tho, if my JDB sents me two diffrent afidavits of sale from OC to Absolute Resolutons JDB and another from Absoulte to GCFS INC and in both they have sated my name and account number and is signed an notriezed dose that mean i cant question them?

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Many times the JDB will provide nothing or object to your requests. These are insane objections, but happen all the time. You will have to determine how you will handle this if the JDB objects. There are two schools of thought, do nothing because the JDB just failed to prove their case, so see you in court, or file a motion to compel. I do nothing and tell them I will see you in court. However, that is something each consumer should research.

In the highly unlikely event the case goes to trial, and proper discovery and challenges to the evidence was done, the JDB stands about a 99.99% chance of losing.

I was a party to one of those rare cases that went to court. So you might ask, what happens when the JDB thinks the rules of evidence don't apply to them and moves forward with the trial. You point out the rules of evidence to apply to them and object to their hearsay for the reasons stated above.

Here is a personal experience and how this specific judge ruled in my specific case. While I think this would be the common ruling in most courts, this is how a judge ruled in my case and does not mean a judge will rule the same in your case. They should and if not, in my opinion, you would have an excellent slam dunk appeal if they did not.

The JDB tried to admit their evidence of standing by affidavit and a bill of sale., They also had disclosed no witnesses from the original creditor that would testify. In other words I had won before the judge took the bench.

I objected of course. The other side argued to the judge that the records should be admitted under the business records to hearsay exception.

This was the ruling and almost a word for word quote from the judge.

"You can't take somebody else business records, drop those business records in your file (as the judge picks up a piece of paper and drops it in a file he had on the bench), put that file in your file cabinet, shut the file cabinet, and then claim those records are now your own business records and are admissible under the business records exception to hearsay." Objection sustained.

Of course that meant case over as the JDB had now failed to meet the element of standing.

If I owed the debt and all the other elements the JDB would have to prove were now irrelevant. They just lost their standing so they just lost their whole case.

The issue of owing the debt never even made it to argument. In fact, I conceded the element of owing the debt (not saying you should be any means). I knew they could not prove standing so to speed things up I just stipulated to owing the debt (again not saying you should).

The main thing to remember is the party suing you has the burden of proving their case and all the elements of their case. You need to make sure you follow the rules of the court and the rules of procedure for the state you find yourself in. Not following the rules can turn a slam dunk winning argument into a loser and an overall loss for the case.

Finally, don't be intimidated. Send discovery, dispute their evidence, make them prove their case and when they fail to do this or don't comply with the rules of evidence, attack.

When you fight back, you have just done what 98% don't do, fight back. Think that number is too high. Go to your local state court and pull the cases from the JDB that files the most cases. See if you can find even one that went to a full blown trial that was for less than 15K allegedly owed. What you will find is tons of defaults, settlements and granted motions for summary judgement.

And of course if sued, if you have even a remotely legit violation on the other side, file a counterclaim. JDB don't like people who fight back and they really don't like people that not only fight back but who turn the tables on them and sue them.

Awsome info! This will help me out a lot, I do have question tho, if my JDB sents me two diffrent afidavits of sale from OC to Absolute Resolutons JDB and another from Absoulte to GCFS INC and in both they have sated my name and account number and is signed an notriezed dose that mean i cant question them?

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So thankful for you guys.....I was SCARED TO DEATH when I got my summons from CACH.  I have pretended it didn't exist until the last minute but it's ready to go and I'm studying like mad for the next steps. 

The above posts on the responses to the judge (coltfan1972 and legaleagle) actually made me laugh out loud, and I really needed that tonight. 

Thanks for being here, thanks for sharing.

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Right after I got sued by a JDB I came to this board and read through this topic and was like "ok, slam dunk.  No way can they win with the crap they have."  Was I ever in for a surprise....

 

Having read through this topic again, I feel compelled to comment on the "they have to produce this" and "they cannot introduce that" type of statements here.  This is just not the case.  What they have to produce and can introduce in trial court is entirely up to the trial court judge.  If the judge doesn't require the JDB to produce what you believe they should have to produce, and if he/she allows them to introduce things you believe they shouldn't be allowed to, you will lose in trial court and then you HAVE to appeal your case to get the trial court's decision reversed.  It's that simple.

 

@Credator told me something early on and at first I didn't get it.  He said to make a very solid record for appeal.  I thought "why do I need a record for appeal when it's clear to anyone looking at this case that the JDB doesn't have what they need to prove the elements?"  Then I started seeing a lack of response from the judge on my motions and when he did rule on my or Cavalry's motions, a bias favoring Cavalry.  The lightbulb went on and I then realized why I needed to make a solid record for appeal.  I don't know yet if I was successful, but I started making very sure I did the best I could at clearly making my objections and making them often.  In spite of my objections, the judge accepted Cavalry's evidence and granted their MSJ.  I have appealed and my appeal is pending.

 

So may I pass on some sagely adivce.  Plan to lose in trial court to the extent that you cross all of your 't's and dot all of your 'i's over and over again so there will be every opportunity for the appellate court to know your objections and arguments and it will be easy for them to reverse the trial court's lousy ruling.  If you aren't in the mindset of appealing, then may I suggest you get comfortable with the idea that you very well could be living with a judgment against you and everything else that goes along with that.

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Hello, I am getting sued by a JDB (this bill was paid it full 3 yrs ago, thru freedom financial solutions to Brachfeld law group - I was told they did not cash one of the last checks that was sent to them- funny but they cashed the larger check that was sent after that- the one check that they didn't cash was only for 130.00- and I have the records from freedom financial solutions where I paid them) it has been sold since then to serval different JDBs, I just got a 30 day notice from Hunt & Henriques, I am now wondering what steps I should take? should I hire a attorney (which I can't really afford) or? 

the Total Settlement Amount was: $1,309.00 of which I paid all but ,the 130.00 check that they didn't cash. now they want just over 2,000!

Thank you for your help

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Hello, I am getting sued by a JDB (this bill was paid it full 3 yrs ago, thru freedom financial solutions to Brachfeld law group - I was told they did not cash one of the last checks that was sent to them- funny but they cashed the larger check that was sent after that- the one check that they didn't cash was only for 130.00- and I have the records from freedom financial solutions where I paid them) it has been sold since then to serval different JDBs, I just got a 30 day notice from Hunt & Henriques, I am now wondering what steps I should take? should I hire a attorney (which I can't really afford) or? 

the Total Settlement Amount was: $1,309.00 of which I paid all but ,the 130.00 check that they didn't cash. now they want just over 2,000!

Thank you for your help

You should answer the complaint and assert affirmative defenses as you will have some. You would either owe nothing or just a small amount. You may not even owe the small amount, as you did pay them; you don't have any legal or civil obligation to make sure they cash the check. In any event you should start your own thread so you can get help (as most people here will probably miss this one). Start a new thread and include the 20 questions that are pinned here for the best results.

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Right after I got sued by a JDB I came to this board and read through this topic and was like "ok, slam dunk.  No way can they win with the crap they have."  Was I ever in for a surprise....

 

Having read through this topic again, I feel compelled to comment on the "they have to produce this" and "they cannot introduce that" type of statements here.  This is just not the case.  What they have to produce and can introduce in trial court is entirely up to the trial court judge.  If the judge doesn't require the JDB to produce what you believe they should have to produce, and if he/she allows them to introduce things you believe they shouldn't be allowed to, you will lose in trial court and then you HAVE to appeal your case to get the trial court's decision reversed.  It's that simple.

 

yup, this is the harsh reality every pro se inspired by this topic should be aware of.

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

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