Can I use Linda Almonte v. Chase Bankcard Services in my case?

[texasrocker]

After reviewing the plaintiff's response to my Motion For Summary Judgment I am 99% certain that the attorney in the case against me is going to use this excerpt out of

Simien v. Unifund CCR Partners to claim that records obtained from Chase Bank are trustworthy because of the careful record keeping requirements of Chase Bank.

"...The final factor of Bell is that the circumstances indicate the trustworthiness of the third-party document. Bell, 176 S.W.3d at 92. In Harris v. State, cited with approval by Bell, the third-party document was a manufacturer's certificate of origin created by General Motors and received by a local automobile dealership. Harris v. State, 846 S.W.3d 960, 963 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). This Court held the certificate possessed a high-degree of trustworthiness because “[a]utomobile manufacturers have a great interest in assuring that the [vehicle identification numbers] on their products correspond with the appropriate invoices, for without careful, reliable identification procedures their business would greatly suffer or even fail․” Id. (quoting U.S. v. Hines, 564 F.2d 925, 928 (10th Cir.1977), aff'd, 434 U.S. 1022, 98 S.Ct. 748 (1978)). In Air Land Forwarders, Inc., the court found the third-party documents had “clear indicia of trustworthiness” because the service members were subject to criminal prosecution for submitting a false document. 172 F.3d 1338 at 1343-44.

Here, like General Motors, Citibank must keep careful records of its customer's credit card debt, otherwise its “business would greatly suffer or even fail.” See Harris, 846 S.W.3d at 963. Also, failure to keep accurate records could result in criminal or civil penalties. See Tex. Fin.Code Ann. § 392.304(a)(8) (Vernon 2006) (prohibiting misrepresentation of amount of consumer debt); Tex. Fin.Code Ann. § 392.402 (Vernon 2006) (providing criminal penalties for violation of Chapter 392 of Texas Finance Code); see also Fair Debt Collection Practices Act, 15 U.S.C.S § 1692e(2)(a) (LexisNexis 2005) (prohibiting misrepresentation of amount of debt); 15 U.S.C.S § 1692l (LexisNexis 2005) (providing for administrative enforcement of Fair Debt Collection Practices Act). These circumstances provide an indication of trustworthiness of the Citibank documents. See Harris, 846 S.W.3d at 963; see also Air Land Forwarders, Inc., 172 F.3d 1338 at 1343-44."

I am trying to figure out if there would would be any possibility to have anything admitted from Linda Almonte v. Chase Bankcard Services to demonstrate to the court that Chase Bank's record keeping was anything but "careful."

Any ideas?

[1stStep]

You could use it if they submit an affidavit with their MSJ.

[BV80]

You could use the Altamont case, I suppose. In Simien v. Unifund, the defendant appeared to concentrate on the admission of certain rather than on Unifund's ownership of the debt and standing to sue.

As Coltfan has stated before, just because you owe an OC doesn't mean the JDB has proven you owe them.

Here's a quote from calawyer:

"I think a better strategy is to say that liability for the debt is completely irrelevant if plaintiff can’t prove that it owns the debt and therefore has the legal ability to collect."

calawyer - March 12, 2012

Even if the JDB's evidence is allowed to stand, they still have to prove ownership of the account. They have to show a valid assignment proving standing to sue.

Read the following case:

Shipley v. UNIFUND CCR PARTNERS, 331 SW 3d 27 - Tex: Court of Appeals, 10th Dist. 2010 - Google Scholar

[texasrocker]

You could use it if they submit an affidavit with their MSJ.

I don't quite understand what you are saying here; please elaborate. It's my MSJ hearing, not theirs. I did submit an affidavit but did not mention the Almonte case. I was not familiar with the Simien case until the plaintiff's attorney referred to it in his response and mentioned the "careful record keeping" part.

Do you mean that if I had included reference to Almonte in my affidavit I could have then slipped it in? I don't have much time- the hearing is on Monday. I'm fairly certain that if I just wait until he brings up Chase Bank's "careful record keeping" and then say that I have something to disprove that theory then it will be stricken. If my motion is denied then possibly I can use it in a future motion by mentioning it in the affidavit?

The court already denied his MSJ so he is surely going to be fighting for dear life. I have painstakingly picked apart and analyzed every single thing in his response and find it so ironic that he has not lived up to anything in the case law that he has cited.

Read the following case:

Shipley v. UNIFUND CCR PARTNERS

Thanks. I have read that one. It seemed to me that the strict wording in the plaintiff's bill of sale in that case had a lot to do with the decision. It was very restrictive about what rights had been assigned.

[1stStep]

I thought this was their MSJ...

If they bring up record keeping, then by all means introduce it to refute counsel's claim of careful record keeping.

[legaleagle]

The case you cited is a bit vague, but based on what is here, I would argue that Chase is not GM or Citibank. How GM and Citi keep records is not relevant to an action involving Chase. If they raise this, find a case where Chase lost due to sloppy records. Watch them squeal when you do.

business records "chase bank" - Google Scholar

[texasrocker]

I thought this was their MSJ...

f they bring up record keeping, then by all means introduce it to refute counsel's claim of careful record keeping.

If it gets stricken now and my MSJ turns out to be denied would I be able to enter later? In other words, if something is stricken in a MSJ hearing is it therefore completely prohibited for the duration of the case or would there be a way to introduce it in a trial? After all, it is a document on public record from a Texas court case.

[1stStep]

You might be able to - that depends on the rules... for example, if they move for SJ, then you introduce the case in your reply and use it to impeach their accounting.

[Seadragon]

That wonderful case of in re. vinhee would help alot. And if I remember correctly wasn't citibank before congress saying they have no records of a bunch of stuff.

If this case is for accounts chase gobbled up from the meltdown then they run the risks associated with the evidentiary hurdles that the judge in that case outlined.

and research any other business records as hearsay cases.

[drummer55]

If it gets stricken now and my MSJ turns out to be denied would I be able to enter later? In other words, if something is stricken in a MSJ hearing is it therefore completely prohibited for the duration of the case or would there be a way to introduce it in a trial? After all, it is a document on public record from a Texas court case.

Did you end up using the Almonte information and if so how did it work out?

[drummer55]

The case you cited is a bit vague, but based on what is here, I would argue that Chase is not GM or Citibank. How GM and Citi keep records is not relevant to an action involving Chase. If they raise this, find a case where Chase lost due to sloppy records. Watch them squeal when you do.

business records "chase bank" - Google Scholar

so far I havent found any yet where chase has lost due to sloppy records.

[1stStep]

And you won't - a few months back, Chase quietly began to dismiss their open court cases throughout the country...my guess is that it was due to the publicity that Almonte brought to their practices.

[legaleagle]

so far I havent found any yet where chase has lost due to sloppy records.

The only thing that comes to mind is the bunch they lost in FLA after suing after the SOL had expired. Try a diifferent tactic, search for any consumer complaint against them, and any illegal activity. Lots of money laundering going on these days with big banks and drug cartels. Breaches of security, hacking, anything that can cast doubt on the trustworthiness of their overall business model. Don't forget, they are now J P Morgan Chase. Look at the 2 billion they just lost. Good records? Yeah, sure.

https://www.startpage.com/do/search

[texasrocker]

Did you end up using the Almonte information and if so how did it work out?

No. I hired an attorney soon after that and on the very same day he faxed the JDB a discovery they dismissed the case. Knowing what I know now I would recommend bringing it up in one's response to a JDB's MSJ if the OC is Chase Bank and they mention Simien.

I had spent two months staying up until after midnight nearly every night researching for my MSJ and achieving success in defeating theirs. I had just landed two jobs and between not having the time, being too tired to stay up late and now being able to afford an attorney it was the best thing for me. I learned a hell of a lot from the attorney. He showed me that, as many others have also said here, attacking the JDB's inability to prove that they own the debt should always be paramount. (One of few exceptions to this would be if you could prove a defense of statute of limitations.) However, there is nothing wrong with bombarding them with a bunch of other stuff that will cost them time and money to deal with.

The bottom line is as long as JDB's stick to the status quo of the way they do business they will never be able to prove they own the debt therefore they have no standing to sue.

Edited May 18, 2012 by texasrocker

[usagi555]

And you won't - a few months back, Chase quietly began to dismiss their open court cases throughout the country...my guess is that it was due to the publicity that Almonte brought to their practices.

This. Chase used to roll out the CC cases against consumers like a machine. Then all of a sudden, nothing. Last I checked, it had been over a year since Chase had filed a suit against a consumer over CC debt in my state. I don't think they've started back up yet, but I haven't checked.

It's about more than just keeping their bad record keeping practices out of the state. I think you're talking about some guaranteed counterclaims against them that would seriously hurt. As it stands, not suing like mad is reducing their income by something like $1.2 Billion per year.

[1stStep]

And when you combine it with the "official" $2B trading losses (although the real toll I'm hearing is $4B), Chase is hurting...

[usagi555]

From the Simian Case where the court was flat out wrong:

Here, like General Motors, Citibank must keep careful records of its customer's credit card debt, otherwise its "business would greatly suffer or even fail."

It is wrong, wrong, wrong! I know this for a fact because their records sucked hard when they came after me.

[lalmonte]

Why not keep it easy and just send me a subpeona? Just google my name and my attorney Bruse Loyd in Houston send it to him and he will get it to me.

[shorebird]

[ I am trying to figure out if there would would be any possibility to have anything admitted from Linda Almonte v. Chase Bankcard Services to demonstrate to the court that Chase Bank's record keeping was anything but "careful."

I feel ya on this. I want this one, too!

[BTO429]

Glarum v. LaSalle Bank National Association, data from a computer system is inadmissible hearsay.

Copies of business records are admissible in evidence as the original (whether the original exists or not) provided that such copy is satisfactorily identified and authenticated as a true copy by a custodian of such record or by the person to whom said custodian reports

Solomon v. Shuell, 457 N.W.2d 669, 679 (1990). Even under the Model Act, however, "a showing of unreliability may be so complete as to overcome the presumption of verity, and in such a case the trial judge should exclude the record."

United States v. Moran,,is a routine

record made for the bank's business as such and with no motivation to prepare for litigation."

I have seen in my law books from school that a federal court said, you cannot take another company's records, put them in one of your company's folders and call them YOUR records, but I am at a loss for what case it was.

[Coltfan1972]

He did not say which case he was citing, if any, but that is exactly almost word for word what the judge told the other side in one of my cases.

Instead of "folders" he said "file cabinet"

[lalmonte]

I am not an attorney but I have logged A LOT of hours. Cases are public go to pacer.gov a couple cents a page.

Google Linda Almonte Follow @LindaAlmonte or contact

[BTO429]

I have seen you post about your case Coltfan, but I have seen the case in my text books and online but I can't remember which one it was.

[KentWA]

One such ruling was People v Cratsley 653 N.E.2d 1162 New York Court of Appeals. But there was an exception in the case since the presenter of the records regularly worked with the third party company.

Because the report was prepared for ARC, in conformity with its procedures, the fact that Rohrs was not himself an ARC employee does not, under these facts, defeat admission. It is true that as a rule, "the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records" (Standard Textile Co. v National Equip. Rental, 80 AD2d 911; see also, Yachnin, The Business Record Rule — CPLR 4518 (a) — Worth Learning and Never Forgetting, NYLJ, May 30, 1995, at 12, col 5 [objection for lack of foundation warranted when "the writing is a business record but received from another business entity"]). The reason for this rule is that "uch papers simply are not made in the regular course of business of the recipient, who is in no position to provide the necessary foundation testimony as to the regularity and timeliness of their preparation or the source of information contained in the records" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 4518:1, at 105). Nor, generally, would the recipient be aware whether the information was imparted by one under a "business duty" to report to the entrant (see, Johnson v Lutz, 253 N.Y. 124).

[lalmonte]

Depends on the case and I may be able to assist in cases more than just Chase, WaMu and Providian only about 20% is public add BOA, AMEX, Citi, NCO, Midland, Square Two and the list goes on and on.  Most no gag orders or protective orders on any evidence or testimony.  My last deposition the poor court reporter the transcript was 159 pages long doubt that collections attorney will want to depose me again and can back up every word.  Just contact me through my website www.lindaalmonte.com if I can't I know former bankers from everywhere who are testifying and helping.