Equable Ascent Financial case scheduled for 04-03-12

[mrc50912]

1. Who is the named plaintiff in the suit? Equable Ascent Financial LLC as assignee of GE capital Financial

2. What is the name of the law firm handling the suit? Ingram law offices LLC Birmingham Al.

3. How much are you being sued for? $2,400

4. Who is the original creditor? GE Capital Financial

5. How do you know you are being sued? (You were served, right?) served summons by process server on 11-17-11

6. How were you served? (Mail, In person, Notice on door) in person

7. Was the service legal as required by your state? yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Autauga County ALABAMA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)07-2009

11. What is the SOL on the debt? 3 yrs

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). scheduled for court on 04-03-12 first appearance

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I responded in the required 30 days and served my answers and affirmative defenses by certified mail.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? nothing they just put on account on count 1 and open account as count 2 .

I heard nothing from the lawyer until 02-17-12 and it was a letter from the court stating the case was scheduled for trial on 03-06-12. I was able to get a continuance due to a class for school that had me out of town. I also served a request for discovery on the attorney that they signed for on 03-05-12. The court scheduled the case for trial again on 04-03-12 which is 29 days into the 30 required by the state rules of civil procedure.

II was trying to "lurk" my way through my case but several questions have come up in my research and am looking for some help.

1. Is the business records exception kind of concerns me as I figure they will try to use this if I try to object to any of the "evidence" they may provide.

2. I am concerned as to why there was nothing attached to the complaint to establish the basis for the case.

Any help with this and future questions would help a bunch.

Edited April 3, 2012 by mrc50912
update to case

[First Timer]

1. Is the business records exception kind of concerns me as I figure they will try to use this if I try to object to any of the "evidence" they may provide.

2. I am concerned as to why there was nothing attached to the complaint to establish the basis for the case.

1. The records that they will be using are likely not their records. They are GE capital's records. You will need to bone up on hearsay rules in your state. In order to exempt from hearsay, they have to have personal knowledge that the documents being submitted are accurate and true. You will have to challenge them on that.

Here is the argument that I used against Equable:

II. Plaintiff lacks standing to proceed in this matter

1. The defendant requests the court find that Plaintiffs have failed to prove standing.

(a.) Without an authenticated Bill of Sale and supporting evidence to prove the existence of (1) an account, (2) an amount owed, (3) proper assignment, and (4) chain of ownership, Plaintiff lacks standing to seek relief.

(b.) No documentation of the existence of an account for the alleged original creditor with the Defendants name, alleged account number or alleged amount owed has been produced by the Plaintiff. Without authenticated, verifiable proof of a debt owed, the Plaintiff has no standing to seek relief.

III.Defendants in Limine matters and evidence exclusion

a. Plaintiffs Witness (or Representative of Equable Ascent Financial, LLC)

1. Plaintiffs have submitted Jeff Hasenmiller, or an associate for Equable Ascent Financial LLC to testify as to the authenticity and validity of the records as business records of the plaintiff. The witness has no Personal Knowledge of the authenticity or validity of the documents presented, as Plaintiff was not the originator of the documents. Any statements are based on hearsay(Rule 802), lack of Foundation (personal knowledge (Rule 602),Improper Authentication(Rule 901), and lack Self-Authentification (Rule 902). Defendant objects to the witness on these grounds. Defendant requests the court that the witness' testimony be excluded and stricken from the record.

2. The Documents marked as Plaintiffs (EXHIBIT 1 and 2) show marks of the type usually added by image processing software on the front and the back. The marks are consistent with marks that delineate the selection boundaries for elements of an image that will be changed. This leads defendant to believe that the alleged Cardmember Agreement and alleged Bill of Sale are computer stored images.

3. The United States Bankruptcy Panel 9th circuit weighs in on computer records evidentiary foundation standards in it's decision in In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) The court found the complexity of “ever-developing computer technology” requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005). Other legal scholars have written about this need for the 11 step process cited by the court. In Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A StricterStandard for the Future? He stated “The Vinhnee court’s emphasis on reliability, accuracy, and system knowledge is consistent with urgings by the Manual and some scholars. Though it employs an eleven-step foundation process that has not previously been cited by courts, the key inquiries are into accuracy and reliability. These issues are not new and are the crux of traditional authentication inquiries in all areas of evidence.

Imwinkelried’s foundation process has been in circulation since 1980 and his Evidentiary Foundations book is a widely employed trial tool.”

[mrc50912]

Thank you for the response. I have been studying your other post and trying to get a better feel for my case.

While looking I was wondering if it would be a valid attempt to question the collection agencies ability to collect in my county as according to state law they have to pay a fee "per county" to collect. Statute 40-12-80 code of Alabama. Or would I be better off going on standing since they have not provided any documentation with the summons.

I have been trying to prepare many angles to defend anything they try to throw at me. I think this upcoming date is going to just be the beginning of many dates I need to show up.

[mrc50912]

First of all thank you FIRST TIMER for the reply your post gave me the confidence to continue to fight this case.

There are many others on this forum that did not respond but the great information they post will make anyone want to fight these cases.

So today is court day, I show up on time and wait for the docket to be called. As the judge calls the docket I soon realize my name is not on there but now I am interested to see what happens and I want proof I was not called. I sit through many cases about rental property and even have to listen to LVNV win 2 cases where the defendant did not show and the "attorney" had to fumble through files trying to figure out how much to ask for on summary judgement, made me sick to my stomach. Finally my time comes the judge ask if anyone in the court is here on a case that was not called. I raise my hand as high as I can, like a 3rd grader who knows all the answers, and she tells me to approach. As I approach I pull out my subpoena and hand it to the clerk and smile. The clerk then turn her copy of the docket to me and says "Sir THE PLAINTIFF HAS FILED A MOTION TO DISMISS YOUR CASE. I was so happy I said thank you to almost everyone in the court and walked out.

I can not believe they dismissed now I have to wait and see what type of dismissal they filed.

THANKS GUYS THIS FORUM IS AWESOME. I CANNOT THANK EVERYONE ENOUGH.

[RockDaddy]

First of all thank you FIRST TIMER for the reply your post gave me the confidence to continue to fight this case.

There are many others on this forum that did not respond but the great information they post will make anyone want to fight these cases.

So today is court day, I show up on time and wait for the docket to be called. As the judge calls the docket I soon realize my name is not on there but now I am interested to see what happens and I want proof I was not called. I sit through many cases about rental property and even have to listen to LVNV win 2 cases where the defendant did not show and the "attorney" had to fumble through files trying to figure out how much to ask for on summary judgement, made me sick to my stomach. Finally my time comes the judge ask if anyone in the court is here on a case that was not called. I raise my hand as high as I can, like a 3rd grader who knows all the answers, and she tells me to approach. As I approach I pull out my subpoena and hand it to the clerk and smile. The clerk then turn her copy of the docket to me and says "Sir THE PLAINTIFF HAS FILED A MOTION TO DISMISS YOUR CASE. I was so happy I said thank you to almost everyone in the court and walked out.

I can not believe they dismissed now I have to wait and see what type of dismissal they filed.

THANKS GUYS THIS FORUM IS AWESOME. I CANNOT THANK EVERYONE ENOUGH.

Good for you.

Not to put too fine a point on it, but was it Dismissed "With Prejudice"??

I ask this because if it hasn't been, they can sell it off and it could start all over again for you. Not trying to be a Debbie-Downer, just want you to be aware of it.

Am dealing with Equable Ascent up here in MA as well, under similar circumstances, if a bit more money, in the $4k range.

I wonder what their 'cut-off' amount is? Where they will decided not to pursue somebody if the amount falls below a specific amount....

[yellowdog]

probably "Without Prejudice" is what you will get.. that is what they sent to me last week after a court day dismissal. The plaintiff wanted to make sure I showed in court, which i did, with a large sharp sword thanks to this forum, then the crumbs dismissed.

they did however make me sweat it out for a few hrs..

Happy Dance Time Mate, lets see some Polka or something... :D:D

[mrc50912]

The clerk did not know if it was with prejudice. All she had was a hand written note that said MOTION TO DISMISS. LOL. I will receive something in the mail she said. I was kind of hopeful this would happen since the attorney they hire was more than 2 hours away. Also the S.O.L. runs out in july so hope it takes them a while to refile or sell.

[RockDaddy]

The clerk did not know if it was with prejudice. All she had was a hand written note that said MOTION TO DISMISS. LOL. I will receive something in the mail she said. I was kind of hopeful this would happen since the attorney they hire was more than 2 hours away. Also the S.O.L. runs out in july so hope it takes them a while to refile or sell.

You mean the Alabama SOL runs out in July?

That'd give another JDB about 3 months to sue you. If you have boned up on things here, don't give it another worry, you should be all set.

[First Timer]

Good for you.

Not to put too fine a point on it, but was it Dismissed "With Prejudice"??

I ask this because if it hasn't been, they can sell it off and it could start all over again for you. Not trying to be a Debbie-Downer, just want you to be aware of it.

Am dealing with Equable Ascent up here in MA as well, under similar circumstances, if a bit more money, in the $4k range.

I wonder what their 'cut-off' amount is? Where they will decided not to pursue somebody if the amount falls below a specific amount....

They dismissed with prejudice in my case -- so you never know until you know -- just contact the clerks office and ask them. No need to wait.

Edited April 3, 2012 by First Timer

[mrc50912]

I tried calling the clerks office today but "due to state budget cuts they don't take phone calls after 3 p.m." I will call first thing in the morning and see what they did.

[Coltfan1972]

I can not believe they dismissed now I have to wait and see what type of dismissal they filed.

Screw that !! Choke the life out of them right now with your own motion to dismiss WITH prejudice. Argue abuse of process and wasting your time and courts valuable time on a case they knew was a loser. In other words using the courts as an extension of their collection agency and not they way they were intended to be used.

They did not even have the common courtsey to notify you, and you will accept dismissal on their terms? Nope, would not happen with me. I might not win the dismissal with prejudice, but they are going to spend about 1K and a day in court fighting it out. They waste my time, I'm wasting their time only triple it. They want to play games, let the games begin, or suck it up loser and agree to dismiss with prejudice and $200.00 bucks for me taking off work.

These junk debt buyers tucking tail and running (Yes Midland reps that monitor this board, in case there is any confusion who I am talking about, it's you, MIDLAND FUNDING, now come after me and sue me for something, I dare you, but you're cowards of those that fight) is nothing new. They do it all the time. It's time to start making them pay for the yellow streak down their backs.

You want to dismiss and go sulk in the corner because you have to actually prove a case? fine, cowards, but it better be with predudice if you're going to wast everybody's time and insult my intelligence by making me sit though an afternoon of b.s. where your industry can't even figure out how much to ask for on a default.

OP,

File a motion for sanctions for abuse of process, shoot, I could think of an FDCPA violation or two that would lose, but would not get you hit with atty fees. Teach these jerks a lesson. Show them that sometimes the school yard bully gets their lights knocked out.

[mrc50912]

Coltfan I love your post. If I had your experience I would go after them hard. I would love to recover the cost of the day off I had to take. I thank you for the encouragement and if they do motion without prejudice can I appeal it if I decide to?

[Coltfan1972]

No you can't appeal. Unfortuantely, they have a right to dismiss the case. You would have to raise oppostion to why it should not be dismissed. An appeal is just to right a legal wrong made by the court.

The judge would be doing nothing wrong if they grant the dismissal, if you don't put up any rebuttal.

[mrc50912]

I will post as soon as I find out in the morning what type of dismissal they filed for. Unfortunately the court here allows attorneys to file everything online and the defendant has to wait to get anything by snail mail. I really hope they dismissed with prejudice so it will be over.

[Coltfan1972]

You can't view anything online form the courts?

[mrc50912]

I called this morning and after 20 tries finally got someone to answer the phone. She read the order off and all it says is Dismiss not if it was with or without prejudice. The attorneys here use an efile program through the state and I have not received a copy of any of the motions they made in my case. I am starting to believe they use that system to try to get over on pro se defendants.

[BV80]

Any dismissal is a win for you! Congratulations!

[Imadashell]

I called this morning and after 20 tries finally got someone to answer the phone. She read the order off and all it says is Dismiss not if it was with or without prejudice. The attorneys here use an efile program through the state and I have not received a copy of any of the motions they made in my case. I am starting to believe they use that system to try to get over on pro se defendants.

aren't they suppose to forward copies about everything to you?

how then do you know what's going on?

[gwheelock915]

EAF will pass the account off to someone else in short order. It's OK, because in the mean time the SOL will keep running, and you should have all the pleadings saved on your computer, though I doubt anyone will sue on it again. Fortunately for us, they passed it off on an unlicensed collection agency. And the case was dismissed with prejudice.

So yes we got a lawyer, and yes Imma get a check. Hopefully Jeffy Hasenmiller signs it. Besides, their office isn't but 45 minutes from me. I may even pick it up from their office, though I may need to wear a hazmat suit to protect me from their scum.

[Dstone1]

I'm in a similar situation, being sued by Equable. I received the SAME documents mentioned by First Timer, from the same Jeff Hasenmiller requested lieu of personal testimony at trail. I'm in California and the trial is set for May 24th, 2012. Exhibit A is the same cut n dry photocopy blanket card holder's form mentioned in his post. Exhibit B is the bill of sale for over 29,000 accounts and exhibit C is 1 statement from Chase dated 10/15/10.

1.Who is the named plaintiff in the suit? Equable Ascent Financial LLC (Chase account)

2. What is the name of the law firm handling the suit? CIR law in San Diego

3. How much are you being sued for? $6,752.90

4. Who is the original creditor? Chase Bank

5. How do you know you are being sued? (You were served, right?) Served summons in July 2012

6. How were you served? (Mail, In person, Notice on door) in person

7. Was the service legal as required by your state? yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Los Angeles, CA

10. When is the last time you paid on this account? In April 2010

11. What is the SOL on the debt? 4 yrs

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

04/11/2012 NOTICE OF TRIAL FILED.

01/20/2012 NON-JURY TRIAL SET FOR 05/24/12, 0830 AM, DEPT 77

01/20/2012 CASE MANAGEMENT REVIEW/CONFERENCE MINUTE ORDER ENTERED

12/02/2011 CASE MANAGEMENT STATEMENT FILED

08/30/2011 OSC VACATED - RESPONSIVE PLEADING FILED; CASE SET FOR CMR

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I responded in the required 30 days and served my answers and affirmative defenses by certified mail.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? Nothing they just put on account on count 1 and open account as count 2 .

[gwheelock915]

Dstone,

I would copy and paste your post into a new post. EAF is very beatable. Beat them myself.

On a side note, Jeffyboy signs tens of thousands of affidavits of indebtedness a year. His affidavit is not admissable since he did not observe the transactions as alleged, and he did not properly lay foundation to establish that his statements are admissable.

[Dstone1]

Dstone,

I would copy and paste your post into a new post. EAF is very beatable. Beat them myself.

On a side note, Jeffyboy signs tens of thousands of affidavits of indebtedness a year. His affidavit is not admissable since he did not observe the transactions as alleged, and he did not properly lay foundation to establish that his statements are admissable.

Yes, it was Jeff, one of his 29k accounts, lol. I posted a new thread, thanks. Just need to know the next step now, as the trial is a little over a month away, I want to make sure I file things in a timely manner, to avoid deadlines etc. Never experienced this before.