Discovery Of Priveileged matter denied again..

[yellowdog]

I have trial against CACH, LLC FL. The debt is $2800 and I have been trying to validate debt since day one. All they send me back after I request original signed credit agreement between me and OC Cap One is that request is denied because (Attorney-Client Privelage) or their latest in my Notice For Production Request was that the information that I requested is Privileged matter. How can this be privileged or attorney-client when the requested form is a document,agreement or contract signed by me ?

They have also broke several FCRA & FDCPA rules. They have not reported to bureaus that account is being disputed, and they also are reporting negatively on my account. Also, they are supposed to stop all collection activity until debt is validated.

This is what i am hanging my hat on at trial because it is what I have been hammering them on since day one. If anyone has some guidance it would be really appreciated before I do battle. thanks:)++

[1stStep]

You'll want to send a meet and confer letter to counsel...

"In response to your assertion that the credit agreement is bound by attorney client privlege, I ask one more time for a copy of the credit agreement. If I do not receive it in (5, 10) days, I will file a motion to compel with the court."

[yellowdog]

I have trial next week, so i am running out of time, can i bring a motion to compel with me to trial ? I doubt that will fall under proper procedure, but then again, this is my first trial.

I just can not wrap my head around the fact that a contract agreement that I signed is not privy to me. If they will not validate the debt with original credit agreement, I guess all i have is the FCRA violations. My Experian report is clear that CACH, LLC has continued to report deragatory to my credit during a disputed debt.. Is that enough to dismiss case ?

thanks...

[1stStep]

You waited too long...in that case, any document they introduce needs to be objected to.

[yellowdog]

I assume I would have to Object on grounds that the Plaintiff failed to validate the debt which has blocked my constitutional right to a fair trial by not giving me Documentary Evidence, or something like that...

thank you for your feedback, I guess these vultures are going to feast on me next week, but at least I followed court procedure and dragged this out for almost 2 yrs.

thanks and cheers mate...

[1stStep]

No - you object because it was not produced during discovery.

[yellowdog]

that would pertain to all docs they try to intoduce even the stupid exhibits they have sent me a dozen times ? thanks

[BV80]

I would object to any documents they submit as unauthenticated hearsay. When documents are presented, they have to be authenticated...shown to be true copies of what the party claims them to be. They can authenticate a document either with a live witness or an affidavit stating the document is a true copy.

Rule 90.803 in the FL Rules of Evidence is about hearsay exceptions. Hearsay is allowed if it meets certain conditions.

Rule 90.803(6) is the exception for business records. It states that business records are admissible if they are made in the regular course of business and someone can testify to that fact. They either have to have a live witness or present an affidavit in accordance with Rule 90.902(11).

Rule 90.902(11) states that an affidavit has to be from someone with knowledge stating that the business records were made in the regular course of business, etc.

Most JDBs will offer an affidavit from one of their own employees stating that the document was made in the regular course of business and that it was normal for that business to make that document. That's bogus. The JDB didn't create the cc statements or the cardmember agreement. The OC created those documents.

A JDB employee doesn't work for the OC. That employee can't honestly testify as to what another entity (company) does when that JDB employee doesn't work for that company.

Did the JDB provide an affidavit that mentions the cc statements?

[yellowdog]

CACH LLC, has listed someone from CACH to testify at trial and myself in the Trial Memorandum. They have an Affidavit Of Claim from a CACH worker that mention CC statements. Also, an Affidavit of assignment with a stack of crap they have sent me a dozen times, but they will not touch my request for original credit agreement with OC.

How would you word the objection in this regard because you nailed exactly what these crumbs are doing to me ?

Also, how much weight should i put into FCRA violations ? Some say they can stop Judgements, others say the lawyers can dance around it. I have proof positive of them adding deragatory remarks to my credit during this two year dispute...

Thanks a bunch, this confusing maze of procedures is giving me a headache.

[1stStep]

It will probably be too late to introduce counterclaims...if you beleive there was an FCRA violation, sue separately in federal court.

[BV80]

Since they claim they're going to present a witness, you will question that witness. You want to show that the witness cannot testify to the authenticity of the documents offered by Cach. Hearsay is admissible if a witness can lay the foundation for the admissibility of the documents. In other words, the witness has to be able to testify that the documents are what Cach claims them to be.

If the witness can't do that, the no foundation has been laid for the admissibility. Therefore, the documents don't meet the exception requirement of 90.803(6). They're inadmissible hearsay.

Here's my suggestions for some questions you might ask:

1. Have you ever worked for _______(OC)?

2. Were you present when these documents were prepared?

3. How were these documents created?

If the JDB attorney objects to #3, you might state:

Your Honor,

Section 90.803(6), Florida Statutes (1987), authorizes admission of certain written material made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness.

In Forester v. Norman Roger Jewell & Brooks Intern., Inc., the District Court of Appeal of Florida, First District quoted Dr. Charles W. Ehrhardt, author of Florida Evidence.

According to Dr. Ehrhardt:

"In order to lay a foundation for the admission of a business record, it is necessary to call a witness who can show that each of the foundational requirements set out in the statute is present."

He also stated:

"The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. If the offering party does not lay the necessary foundation, the evidence is not admissible under section 90.803(6)."

The court further stated:

"If the offering party does not lay the necessary foundation, the evidence is not admissible under section 90.803(6)."

Your Honor, according to Dr. Ehrhardt and the Florida Court of Appeals, First District, a witness must be able to testify how the record was made.

I read that one witness was asked how documents were created, and the witness answered, "In the regular course of business." Needless to say, that's not an answer. I can state that about any company's records. That doesn't mean I know how they were prepared. It would be funny if the witness gave such a stupid answer.

If the witness can't answer the question, then he/she hasn't laid the proper foundation for the admission of the records. Therefore, they're inadmissible hearsay.

NOW...if their witness doesn't appear, then you use the self-authenticating rule 90.902(11) which shows what must be stated in an affidavit. But it goes right back to Dr. Ehrhardt and the case. The person who signed the affidavit has to have knowledge of how the records were prepared. A JDB employee cannot have knowledge of how another entity prepares their documents. Therefore, the records don't comply with 90.803(6) and are inadmissible hearsay.

I'm sure others will have suggestions for questions about the bill of sale, etc.

[Seadragon]

undisclosed documents?

You should prep a trial brief to guide you through trial. Check to see if one was allowed and what time limit.

look at this case Cach LLC. v. Askew and see how the attack should go.

and when they question you about documents "I don't recall " is always nice.

since they didn't want to produce the elements necessary to prove their case then use the motion in limine to exclude them.

also prepare an affidavit for your testimony. I don't believe the court will allow you to cross examine your self. so preparing some questions for the judge to ask you in your behalf will be helpful.

Such as:

1. Did you recieve any of the documents plaintiff has entered into evidence prior to litigation in this matter.

2. Have you recieved any billing statements prior to the litigation in this matter.

3. Have you researched the plaintiff's witnesses qualifications in respect to their previous employment.

4. Did plaintiff comply with Federal statutes in the attempt to collect the alleged debt? Did they give required notice? Did they Validate the alleged debt?

5. What actions of plaintiff do you believe violated the doctorine of Unclean Hands.

6. Have you tried to discover from plaintiff information of the alleged debts particulars? What was the plaintiff's response?

that kinda stuff. For your own cross examination to expound on the questions they will ask you.

for the witness prepare questions for them, you want to go after the standing issue aftert you question them on work history, training, procedures, and a whole lot more. intersperse the questions with ones that catch them off guard for the issues in your case that are related.

There is a trial questions post here:

http://www.creditinfocenter.com/forums/there-lawyer-house/305925-cross-examine-affiant-what-questions-would-you-ask.html

and the more you keep your cool and dial back rhetoric and snottiness the better it will go. If you want to act like Perry Mason, I think you will see the war faced judge. just make your points clear and concise and un emotional.

and If you can go observe the judge this week and see what pisses him off and what his demeanor is like. Make it the day you file the motion in limine and your trial brief, Judges like to read cases over the weekend for trials the next week.

These ideas should help.

[yellowdog]

thanks seadragon !

My buddy is a lawyer in NJ and told me it might be a good idea not to take the stand if possible and explain to the judge that until the Plaintiff validates the debt, you will not take stand. He doesn't work in Small Claims credit issues however.

I have seen my judge in action and he doesn't let people go on and on, so I need to strike with a few good opening statement arguments.

Excuse the ignorance, but i am totally overwhelmed. Does a Trial brief have to be sent to Plaintiff as with other motions ? Can i present it at trial ?

How could I use the Motion in Limine ? they have objected to every attempt of mine for production of original signed contract with OC..

Thanks a ton ! maybe i have a chance...

[yellowdog]

Thanks BV80 !

You are dead on, the witness list consists of a woman who is the keeper of records at CACH, LLC and not the OC.

I will stick to your outline..

Also, my BOS is a total mess ! It is not legible and it doesn't include my name, account, or balance. It also has several blacked out areas.

How would you attack the assignment ? can i send you attachment of BOS & Assignment ? they are not allowed to be posted here.

You people are great and very helpful, otherwise i would be sorely misrepresented.

thanks

[yellowdog]

This Just In:

CACH, LLC just sent an Affidavit of Claim from an authorized agent E. Cruz from Denver, Colorado. That is home office of CACH. The judge denied the attempt by Plaintiff to appear on phone, so they did this. I am sure you very informative folks know exactly what it says. Basically, I owe the claim and the books and records are all correct.

Also, and i do not get this at all. They sent a Parties' Joint Stipulation To Settle Defendants Attorney's Fees and Costs. It states that CACH has to pay the Attorney fees to a guy (Defendant) who is not ME ? It involves CACH LLC, lawyer Harold Scherr & another firm in another county with a different case NO...

What does this mean ?

Edited March 21, 2012 by yellowdog