Bogus Bill Of Sale, How To Attack It

[yellowdog]

HI,

Thanks for the great feedback from my other threads !

I have a Cap One Bill Of Sale for the ages and wish I could post it. The entire BOS isn't legible at all. In fact, it is so bad, I haven't been able to proclaim its text to this day. (2 yrs after case started)

The BOS doesn't have my name - account number - balance

The BOS isn't notarized

The BOS has three large blocks of blacked out area in document

what is the best approach, MTS ? If anyone has time to help with a proper outline for MTS.

thanks

[debtorshusband]

I am a little confused, as you have posted in the Debt Validation forum.

In what context did you receive this Bill of Sale? In response to Debt Validation letter, or as a Discovery response in a lawsuit?

If in response to a DV letter, your move is to basically say to them, "Sorry, you haven't provided me with the information I require to work towards a resolution, therefore I'm closing my files. Go away. I consider this matter closed."

If in response to Discovery request in a lawsuit, you just plan your arguments for attacking it in front of the judge. Many posters seem to be in a rush to file a Motion to Strike in situations like this, but I don't think that's the right tactic.

Regards,

DH

[yellowdog]

The BOS is a part of their evidence exhibits. This document is begging to be thrown out of evidence on several fronts, but as you eluded to, is it wise to try and strike it before Trial next week, or try and move judge to strike it from record at trial ? I believe this doc is my strongest part of the case, and if the BOS is thrown out, doesn't all the evidence go as well because everything is predicated off the BOS from original credit & scumtoad CACH, LLC ?

They claim my request for original credit agreement (validation the debt belongs to me) between myself and original creditor is a "privelaged matter" even though it is a contract i signed...the stones on these toads

[Coltfan1972]

Ownership of the account is the root of their claim. You get ownership tossed or they fail to prove, their case goes down the toilet. Somewhat like fruit of the poisionious tree in criminal law. In this case the fruit being the amount of the debt, the contract, delinquent payments, default, ect.....

[yellowdog]

thanks Coltsfan,

Can you view this POS BOS and tell me what you think. How would you blow it up...

docs.google.com/document/d/1fygqDte7G9W0PD0cHxBNM1LXT3hKXDOsHOoJts-74aA/edit

Edited March 23, 2012 by yellowdog

[BV80]

That bill of sale is typical. It only shows that Cap1 allegedly sold some accounts to Cach. That's it.

I don't know if you would use this now, but evidence must be authenticated. I believe I included that information in your other thread. If they were to file for summary judgment, but don't authenticate that BOS with an affidavit or testimony according to the rules of evidence 90.803(6), here's your case law:

"The record contains a copy of an assignment of the note from Novastar to Mellon, but the document was never offered into "evidence," by being attached to an affidavit for purposes of authentification. As such, it is not competent evidence of the assignment and cannot be considered in ruling on Mellon's motion." See, e.g., Morrison v. U.S. Bank, N.A., 66 So. 3d 387, 387 (Fla. 5th DCA 2011).

It's a mortgage case, but it's also case law supporting the necessity to authenticate a document.

Edited March 23, 2012 by BV80

[yellowdog]

thanks for your reply BV80 !

The Affidavit Of Assignment was produced about 10 months after the BOS, would that be considered authentication ? Other than that, the BOS was lumped into a pig pile of questionable docs from plaintiff without a direct affidavit to BOS and no testimony.

I will check that case law...thanks

[BV80]

It doesn't matter that the affidavit was produced 10 months after the BOS was made. What matters iw whether the affiant is competent or qualified to testify to the authenticity of the BOS.

I think I included this case law in your other thread:

"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)." Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369 - Fla: Dist. Court of Appeals, 1st Dist. 1992

"If the offering party does not lay the necessary foundation, the evidence is not admissible under section 90.803 (6)." Lowe's of Tallahassee v. Giaimo, 552 So. 2d 304 - Fla: Dist. Court of Appeals, 1st Dist. 1989

[Coltfan1972]

I did not look at it, because I already know what it says. They are all the same. It's a junk debt buyer, all their crap is the same. BV80 is right. My response is, see you in court, and your "witness" a$$ better be sitting in that witness chair. I don't mess around with JDB'S too much pre-trial, as far as motions to strike or getting evidence excluded. I hammer them into the next century with discovery and then ask what date works best for court. All but one has tucked tail and beat it. They promptly got murdered at trial.

Honestly, I've never filed a motion to strike in my life. You want to bring a load of garbage to court, more power to you, in fact, I'll send a limo to the airport to pick you and your garbage up.

In Arkansas we can just file a counter rebuttal so to speak, and dueling affidavits mean no summary judgement and a full blown trial baby !!!!!!!

[Coltfan1972]

"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)." Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369 - Fla: Dist. Court of Appeals, 1st Dist. 1992

When I say, see you in court and the witness better be there, this is what I mean. I don't care what witness a junk debt buyer gets to court. It's impossible for them to testify to the business records procedures of another party. In other words they can't lay the foundation.

[yellowdog]

Thank you for clarifying that for me.. would you MTS that document prior to trial or lay it on them during trial ? I have read both sides of this argument and I am still confused. CACH LLC has objected to every bit of information request from me on grounds that never apply to what I requested. All this is one big riddle, until you find your footing i guess...

thanks a bunch..

[yellowdog]

Man, I am sure many of us newbies were able to hire you litagation athletes for a day.. All this was chinese to me a week or so ago, but thanks to some quality guidance and case law, I may be able to drop one of those atomic shiek elbows from the top ropes...

I would love nothing more than sending these pukes home in tears, they totally abused me when they began their attacks, but at the time I did not record any of the threats..

Wish me luck next week and I will let you know how it goes down.

many thanks

[Coltfan1972]

would you MTS that document prior to trial or lay it on them during trial ?

I'm not striking their garbage, but nothing wrong with that strategy. You call their bluff, and they won't announce ready for trial. However, so what if they do? That witness can't lay jack crap for foundation. They know it, the judge knows it, they know the judge knows it and they just hope you won't know it.

[yellowdog]

The clerk of the court tried to dismiss case for lack of prosecution because they didn't move the case. They claimed administrative oversight and subsequently hit me with affidavit of cause and tons of unauthenticated documents. The judge heard my MTD and their motion for summary judgement and ordered the trial. For that reason I doubt judge is going to give them any more time, that is why I may file the MTS..

[kittymamma]

To strike or not to strike, that is the question.....sorry fellas, I couldnt help myself....carry on

[yellowdog]

Yes Kittymama, that is the question for me anyway.. If I had a bit more experience I would certainly side with giving them nothing up front, then unleash hell on them in court as Coltsfan has eluded to.

I am starting to think the piles of bogus alleged evidence they send is simply meant to intimidate and question the ability for folks like us to compete. They bank on the sheep to capitulate, and even if the cards do not fall my way, they will have ended up spending way more then the $2800 they say i owe I presume..

[Coltfan1972]

I am starting to think the piles of bogus alleged evidence they send is simply meant to intimidate and question the ability for folks like us to compete.

[kittymamma]

Well I dont have much experience either, I have basically kind of just bungled my way thru it......I got a bunch of 'stuff' in the mail from my jdb attoney, I too thought "Oh crap, there is no way I can beat this " but I was going to by gosh try.......found this board.....which was the best thing I could have done.....

So far my case is as such...I received a summons, I answered it (very half assed but nonetheless I answered.).....we did discovery, I found out here that everything they sent me was crap cause the bos did not have my name on it, and even if it had they still needed to have it authenticated, the att said in discovery she planned on calling an as of yet unknown employee from Midland to court to testify....haha on them, they need someone from the OC8-)

Had pre trial by phone......the judge asked them what their next course of action would be, he said file for summary judgment.....HA......I decided to get real cheeky and beat them to the punch.....they opposed, I replied, and replied very very well I believe cause I had some help from our resident experts here....so now I wait, does it end here or do they want to fight some more....time will tell......but I intend to win, thats all there is to it:lol:

[yellowdog]

I like your spunk kitty, I was scuffling as well until I found my web to this forum, and although I always new I was getting scammed by CACH LLC, I didn't know exactly how to confidently fight back. A few kind folks here have repeatedly beat me over the head with the relative evidence (rules, common sense,case law) to win, and I am now finally starting to 'GET IT' as Coltsfan illustrated... GL with your case and try not to trip over their carcases when your through beating them silly !

If i had a choice to pick an animal I would like to be next week, I choose battering RAM...

I will update after trial next week...

[yellowdog]

Hey, check out the big brains on Brad...

I was thinking that maybe I should file a Motion of Summary Judgement against CACH, LLC that indicates since the BOS is inadmissible, they have no docs to put into evidence, and not a live person from OC to say I had an account with them, they cannot prove a case.

Is that a valid motion at this point a week before trial ?

thanks in advance

[Flyingifr]

They claim my request for original credit agreement (validation the debt belongs to me) between myself and original creditor is a "privelaged matter" even though it is a contract i signed...the stones on these toads

The contract between you and the OC is Privileged and they are not Privilege to it, while at the same time claiming to be a successor-in-interest? Are they serious? Did they purchase the debt or not?

It sounds to me that they just don't have it and are trying to get the Court to simply accept their unsupported statement that (a)a debt exists, although they cannot prove it does, ( that it is your debt or ( they own the debt. Their ship seems to be sinking faster than the Lusitania.

Edited March 24, 2012 by Flyingifr

[Coltfan1972]

Don't forget they need a live person from the OC but you need to have asked them for a witness list. So in the highly unlikely event they can even secure a witness, the odds are better you hitting the lottery than the person they list being in court.

Actually I've never seen them give any witness other than somebody from the JDB. In other words, never forget to use all your a$$ kicking on them.

The reason I could be so cocky at trial was, they had not even listed a single witness from anybody other than the junk debt buyer. I post all the time that I had beat them before I ever walked in the courtroom and had beat them using discovery. That is part of what I mean.

I asked them six different ways for witnesses but never a one that was relevant they gave. In other words I had the ultimate safety net, because I had specifically asked the following interrogatory.

"Will you consider these interrogatories ongoing, per the "ARCP", and immediatley supplement your witness list, per the "ARCP", so Defendant can schedule depositions for any witness not presently disclosed to the Defendant, per the ARCP."

What are they going to answer, NO ? or object as irrelevant? Of course they have to answer yes. They actually answered they will comply with the Arkansas Rules of Civil Procedure. Of course that should be assumed, but nothing better than nailing it down.

Paint these clowns into a corner there is simply no way they can get out of. Then sit back and watch the..........

[yellowdog]

Yes Flyingifr, I have tried every motion that i knew of to try and pry the original signed agreement between me and OC from their slimy country wreckings hands. I couldn't even subpoena them for it because they objected to my Notice of Production motion. They do not say its lost or stolen, they claim it is strictly not for me to see...You are correct, they simply do not have it otherwise they would have gave it to me. I am not sure if that is enough to get a dismissal or not, but the BOS seems to be a slam dunk thanks to some wise folks here guiding me in right direction.

Coltfan,

they have JDB and myself on witness list, I wish I would have asked for some witnesses to pummel into submission.. darn it, I am just grateful I found this forum before trial..

I been in this battle for almost 2 yrs and do you want to know what drives me most ? It is the way these scumturds treat people. What i witnessed at my pre hearing conference was downright depressing, especially how they prance around the court with their "Fear Wand" to scare everyone.

When i told the mediator that I deny this debt in its entirety, he and the CACH LLC rep gasped with surprise. Almost like they never hear such a thing from the masses and I guess they probably don't....

[BV80]

Philip Stern is an attorney in NJ who defends debtors. On his website, he has posted some of his case files including a transcript of a court proceeding in which he questioned an affiant of a JDB.

Just in case Cach's witness shows up, you might want to take a look at the transcript. I don't think you'd use all of his questions, but you might find some useful ones.

http://www.philipstern.com/files/2011.01.13.Galic_Deposition_Transcript.REDACTED.pdf

[Flyingifr]

Yes Flyingifr, I have tried every motion that i knew of to try and pry the original signed agreement between me and OC from their slimy country wreckings hands. I couldn't even subpoena them for it because they objected to my Notice of Production motion. They do not say its lost or stolen, they claim it is strictly not for me to see...You are correct, they simply do not have it otherwise they would have gave it to me. I am not sure if that is enough to get a dismissal or not, but the BOS seems to be a slam dunk thanks to some wise folks here guiding me in right direction.

Coltfan,

they have JDB and myself on witness list, I wish I would have asked for some witnesses to pummel into submission.. darn it, I am just grateful I found this forum before trial..

I been in this battle for almost 2 yrs and do you want to know what drives me most ? It is the way these scumturds treat people. What i witnessed at my pre hearing conference was downright depressing, especially how they prance around the court with their "Fear Wand" to scare everyone.

When i told the mediator that I deny this debt in its entirety, he and the CACH LLC rep gasped with surprise. Almost like they never hear such a thing from the masses and I guess they probably don't....

Anything they refuse to produce in Discovery for whatever reason you ask the Judge to order them to produce. It's called an Order to Comply. If they still refuse you follow it with a Motion and Order to Preclude, which prevents them from producing it at trial as evidence. What makes it even more amazing is that this document is an integral part of their Burden of Proof - showing your legal obligation to pay. They can prove you owe a billion dollars and still lose if they can't prove you owe it to them.

Edited March 24, 2012 by Flyingifr