Rec'd Reply from JDB re: DV. Now What Do I do?

[sourdoughnative]

So I replied to jdb with a DV letter regarding their wanting to collect on an HSBC account. They replied and sent back a copy of an actual statement from HSBC, and an affidavit of sale. Neither document in my opinion constitutes the jdb's right of ownership. The copy of the statement is obviously a photo copy of one I pry have in my own records and the Affidavit of sale is basically heresay. They did not provide the Bill of sale showing my name, account number and the amount that was assigned to them.

My question is how should I now respond to them to let them know that I require certain specific items of proof so that they will just not ride this pony any longer? Meaning, it's just gonna be a dead horse.

Original Creditor: METRIS (I have no idea who this is, I did have a Direct Merchants Card

Original Creditor Acct No. XXXXXXXXXXXX

Creditor: CACH, Inc. --again ????

Creditor Acct #:12000585XXX

Sent to me from Rogers Law Office, LLC out of Omaha, NE. I live in Iowa.

[Coltfan1972]

My question is how should I now respond to them to let them know that I require certain specific items of proof.

You send them a letter telling them what you require.

Keep in mind though, your requirements are completely irrelevant, carry zero weight in a court of law, and have absolutely nothing in the FDCPA backing up what you require.

What they have done is more than legally validate the debt. They did this per U.S. Federal Court of Appeals case law and precedent. So I would not throw around any threats or tell them you will sue them if they don't provide you what you require. It will just make you look foolish and might actually accelerate a lawsuit against you, as they will take you for somebody that has no clue about the law.

However, if you really want to settle the debt and they really want to settle, then they would be smart to provide you with more information.

[sourdoughnative]

Okay, while this JDB attorney did send a copy of my HSBC CC statement. It showed no activity and only late fees and the total owed.

Also, the Affidavit was issued by an employee of HSBC, supposedly, it is notarized, but it also states the actual bill of sale and its assigns were recorded.

Obviously, they have validated. Now the question is how do I arm my self for their upcoming summons. I am sure it will be forthcoming.

I acted as pro se in a Midland suit. In my state, Iowa, it is in SC court with a Magistrate, no discovery is allowed and the plaintiff does not need to be present.

So I need to arm myself to plead this case correctly. With Midland I utilized the Hearsay defense on their Affidavit since it was executed by their own employee, and they did not present me with a Valid Assignment.

Would I go into this case , with CACH and Rogers Law, stating that while I was provided a statement from the OC it in no way constitutes a relationship with CACH or in fact that the amount reflected on the statement is the amount owed to CACH. Also, While the Affidavit of Assignment was executed by a supposed employee of HSBC, the actual Bill of sale or Assignment was never provided to show proof of the assignment and the actual amount CACH paid for this account. In effect no proof is provided that they are entitled to collect this amount from me. The have not established that they in fact have a credit relationship with me.

Oh god, just please help me.....

[Coltfan1972]

You beat them just like you beat Midland. Only it's better this time as I'm assuming you will be able to do discovery?

Hearsay, chain of custody, and business records are universal law (basically) across the board. If you won in small claims, you should win in humiliating fashion in a higher court with more structured rules.

[sourdoughnative]

You beat them just like you beat Midland. Only it's better this time as I'm assuming you will be able to do discovery?

Hearsay, chain of custody, and business records are universal law (basically) across the board. If you won in small claims, you should win in humiliating fashion in a higher court with more structured rules.

Thank you Coltfan, but in my rural area all of these matters are held in Small Claims Court with a Magistrate. There is no Discovery allowed.

So I will have to go with what they have given me, or will provide when I am summoned and just wing it , I guess. I am going to have to go for Lack of Standing due to Hearsay, and no actual proof????

(By the way, just in the short time I have been on these boards, I am a FAN of you, Coltfan)

[Guest usctrojanalum]

nothing you do as of now. debt is validated, just send them a cease and desist if they have been harassing you with phone calls.

[sourdoughnative]

nothing you do as of now. debt is validated, just send them a cease and desist if they have been harassing you with phone calls.

Thank you Trojan, luckily with cell phones and no land lines their only way of contacting me has been via snail mail. Got a cure for nail-biting?

[debtorshusband]

Got a cure for nail-biting?

I think you're supposed to paint iodine on your fingernails, and the bad taste makes you stop biting.

Regards,

DH

[kittymamma]

If you beat Midland you can beat these buzzards the same way, use the lack of standing, I think that is the best defense in my opinion...best of luck, keep fighting the good fight!!!

[usagi555]

I wonder if these wankers like small claims for the lack of discovery?

Anyhow, from what little I've read, appeals from small claims in Iowa are not a trial de novo. This is bad, IMO. I'd be looking to two different things: If there is a way to get the case removed to District Court and checking to see if you can and how to request full blown discovery from the small claims court. Just because discovery requests aren't something that you can send without leave of the court doesn't mean that you can't get leave of the court. It may be different for Iowa, but while you can't just send discovery requests at any time in small claims here, you can ask the judge to allow them. Assuming it is proper to do so, if you ask for discovery and are denied, you arguably have grounds for appeal.

[debtorshusband]

A few comments about Discovery:

Discovery is the exchange between parties, before trial, of what evidence each side is going to present. It is the hope of the court that one side or the other will give up once they see what the other side has, and the parties will negotiate a settlement (or a dismissal). It is the goal of the court to never have to actually evaluate the evidence and make a ruling.

Small claims court is supposed to be informal and speedy. Parties do not engage in Discovery; they are supposed to bring their evidence to the Small Claims trial, the judge hears both sides, and makes a ruling.

I don't think there's any advantage in getting preoccupied with conducting Discovery. You just have deal with seeing their evidence at the Small Claims trial and challenging it on the spot.

Regarding Small Claims court:

Things are different state-by-state, so what I say below may not apply. Here in California you can't use Small Claims court for credit card debts. But when you do go to Small Claims court, the defendant can appeal if the case is decided against him, but the plaintiff cannot appeal if he loses; the plaintiff commits to being bound by the Small Claims court decision when he files in Small Claims.

Regards,

DH

[RockDaddy]

A few comments about Discovery:

Discovery is the exchange between parties, before trial, of what evidence each side is going to present. It is the hope of the court that one side or the other will give up once they see what the other side has, and the parties will negotiate a settlement (or a dismissal). It is the goal of the court to never have to actually evaluate the evidence and make a ruling.

Small claims court is supposed to be informal and speedy. Parties do not engage in Discovery; they are supposed to bring their evidence to the Small Claims trial, the judge hears both sides, and makes a ruling.

I don't think there's any advantage in getting preoccupied with conducting Discovery. You just have deal with seeing their evidence at the Small Claims trial and challenging it on the spot.

Regarding Small Claims court:

Things are different state-by-state, so what I say below may not apply. Here in California you can't use Small Claims court for credit card debts. But when you do go to Small Claims court, the defendant can appeal if the case is decided against him, but the plaintiff cannot appeal if he loses; the plaintiff commits to being bound by the Small Claims court decision when he files in Small Claims.

Regards,

DH

This is good advice. No need to worry about being in small claims court. Just know what to study up or anticipate that the other side is going to throw at you and be ready to defend it. Then have your own arguments and state statutes to be ready to pound home the standing point.

I reference Sun Tzu often, or the Asian way of guerilla military tactics, in using your opposition against itself. As said by Gene Hackman best in the film Enemy of the State, when the opposition is big, you're mobile. You're fast and light when they are clumsy. (paraphrasing here, no disrespect to Mr. Hackman)

Maybe you should find out the docket for your small claims court and go and listen to how these things tend to go with respect to the local judge / magistrate, etc... Might help you be 'fast and light' when the opposition is slow and clumsy.

Would be a real boon if you could stuff the JDB up good in your home local small claims court. We'd throw you a party!

Plus, you've already beat Midland right?

Edited March 23, 2012 by RockDaddy

[usagi555]

Discovery does serve a purpose and it does have some distinct advantages:

Rule 34B

Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.

The party upon whom the request is served shall serve a written response within thirty (30) days after the service of the request, except that a defendant may serve a response within forty-five (45) days after service of the summons and complaint upon that defendant.

Rule 37D

D. Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director or managing agent of a party or a person designated under Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a party fails:

(1) to appear before the officer who is to take the deposition, after being served with a proper notice;

(2) to serve answers or objections to interrogatories submitted under Rule 1-033 NMRA, after proper service of the interrogatories; or

(3) to serve a written response to a request for inspection submitted under Rule 1-034 NMRA, after proper service of the request,

the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under Subparagraphs (a), ( and © of Subparagraph (2) of Paragraph B of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The failure to act described in this paragraph may not be excused on the grounds that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 1-026 NMRA.

Subparagraphs (a), ( and © of Subparagraph (2) of Paragraph B of rule 37:

(2) If a party or an officer, director or managing agent of a party or a person designated under Rule 1-030 NMRA or Rule 1-031 NMRA to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Paragraph A of this rule or Rule 1-035 NMRA, or if a party fails to obey an order under Rule 1-026 NMRA, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(a) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

( an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

© an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

[legaleagle]

Youtube is a pretty good source for stuff like this, it seems that most of the courts have uploaded video. You can also watch lawyers argue cases.

[sourdoughnative]

Thank you, to all of you!

I really appreciate your insight, anecdotes and verbatim legalese. Being new to this round table, I am of course, indebted and in awe of your accomplishments and knowledge.

I was really apprehensive when I went to court, in fact, come to find out there was only one other person there besides me and the magistrate. And, believe it or not, the magistrate is a dear family friend. The first person called, caved and set up a payment plan.

When he called me, he asked if this was my account, I said Not to my knowledge your honor, the affidavit they sent with their complaint is hearsay and there is no Bill of Sale proving that I have a credit relationship with them.

He looked everything over and said "Dismissed". I said thank you your honor, got up and left.

I have a feeling their all going to go down that same path. Small claims, with a magistrate, Plaintiff not required to be present.

The only issue I have with this most recent one, the validation they sent is a photocopy of a statement from a HSBC card, showing no charges just late fees being assessed with an exorbitant balance. The other document is an Affidavit from an Employee of HSBC, stating that she viewed the documents that showed my husband, his account number and a balance being sold or assigned to CACH. Since she is supposedly an employee of HSBC, this affidavit is dated 10/11/11 and the sale took place 5/24/11 and it is notarized with a valid date.

How do I interpret these for the Magistrate?

Again, thank you everyone.

[legaleagle]

Same way, unless they produce the affiant at trial. Pieces of paper cannot testify. Don't tip them off about this, just go to court. When the jdb lawyer presents his affidavit, that's when you ask where the affiant is, you have a few questions for her.

[sourdoughnative]

Same way, unless they produce the affiant at trial. Pieces of paper cannot testify. Don't tip them off about this, just go to court. When the jdb lawyer presents his affidavit, that's when you ask where the affiant is, you have a few questions for her.

Thanks LE, I wouldn't be surprised if the JDB doesn't even show. He's out of Omaha and that's 6 hours away.

In the unfortunate event he does show, and I make that argument, what do you think the Magistrate will do?

What pertinent questions should I have prepared to ask the Affiant?

Sorry to seem so pitifully ill prepared, just want to cross my t's and dot the i's.

[BV80]

Here's a couple of interesting Iowa statutes:

537.5110 Cure of default.

Iowa Legislature - Advanced Search

537.5111 Notice of right to cure.

Iowa Legislature - Advanced Search

They're in regard to a "right to cure". They state that you must be given the opportunity to cure a default. In addition, the entity requesting payment has to follow the proper procedures.

A collection letter could be considered a notice to cure. However, it could also depend upon what's in the letter.

Iowa Code § 537.5111(1)

A notice of right to cure a default must contain "a statement of the total payment, including an itemization of any delinquency or deferral charges, or other performance necessary to cure the alleged default.

If the JDB is attempting to collect delinquency or late fees, those fees must be itemized in a proper notice to cure.

Here's an excerpt from GEMINI CAPITAL GROUP, LLC v. Foley, Iowa: Court of Appeals 2011:

"Because no itemization was included in the purported notice of cure, Gemini did not comply with the requirements of the Iowa Code, and the obligation of the consumer is therefore not enforceable. See Iowa Code § 537.5110(1)."

GEMINI CAPITAL GROUP, LLC v. Foley, Iowa: Court of Appeals 2011 - Google Scholar

If Cach decides to sue, they must have first provided a proper notice to cure.

[legaleagle]

Don't worry about questioning the affiant, he / she won't be there. If they are, it'll be a first. There are lots of cross examination questions posted here.

[sourdoughnative]

Here's a couple of interesting Iowa statutes:

If Cach decides to sue, they must have first provided a proper notice to cure.

Thank you BV, all proves very interesting reading. I appreciate your insight and tracking this down.

[sourdoughnative]

Don't worry about questioning the affiant, he / she won't be there. If they are, it'll be a first. There are lots of cross examination questions posted here.

Thank you LE!!

[sourdoughnative]

Got served last night. Being sued by Litow and Pesch for HSBC. On their paperwork there is no Notice To Cure and they don't even reference an account number, just my name an amount and an interest rate of 29.99%!!! with interest fees.

I am going to Answer using the courts basic form, not even showing myself as Pro Se like I did with Midland. Just keeping myself on the low, low.

So once again the ball is rolling. Small claims court, Magistrate and me.

Edited March 29, 2012 by sourdoughnative