Lost My Trial to Cap 1 - Opinions for Appeal?

[HelpInTexas]

Hey Everyone,

Well, that didn't go so well. With pretty much every avenue closed to me with an OC case, my only chance was to attack the affidavit. I only received the Discovery packet from Plaintiff on August 20th for a trial date of August 30. Not much time to prepare, but I took a shot anyway. My head is reeling right now. I can post more details later, but I wanted to post a few links to the paperwork I submitted to the court.

I wrote the motion as a verbal defense from 4 to 8 am this morning after compiling my research on Monday thru Wednesday. When I realized that I might have to file something with the court, I converted it to a motion to dismiss. In retrospect, I probably should have filed a motion to strike affidavit, but given the judge's affinity for 2 years of statements in front of him, I don't think that would have mattered much. The judge made some very bizarre statements during the hearing which kind of tipped me off that he wasn't understanding the motion, my explanation OR the fact that the faulty affidavit SHOULD have made the alleged evidence invisible to the Court. He claimed that the affiant worked for Crap 1 when it clearly does NOT state that anywhere on the affidavit. He also verbalized the payment address of Crap 1 as my old address in Illinois. Very strange, to say the least. It was my first time ever at trial, so I wasn't really sure what to do or say. I tried reciting my position and he stopped me because it was "all in the motion" which I don't believe he bothered to read and fully understand. Ugh...

I was attempting to have all evidence struck from the case based on a faulty affidavit, and was actually commended by the judge on my motion (both he and Plaintiff's counsel asked if I was a lawyer) but allowed the evidence, nonetheless even though he agreed in principle on what I had submitted. I was shocked when he found for the Plaintiff given all of the legal room he needed to dismiss the case that I had allowed him in my motion.

Below are links to both the Plaintiff's affidavit, and the motion I filed with case law and Texas Rules of Procedure to back up my claims of faulty affidavit.

I plan to appeal on a "pauper's affidavit" basis since I can't really float the $13k necessary for a surety bond in Texas (twice the total of the initial judgment). Any input would be greatly appreciated. I think I'm pretty close. Yeah, the motion could have been a lot better, but it was a last minute thing. My appeal will be more solid but again, I would be grateful for any input from the community.

Thanks!

Capital One Bogus Affidavit

Motion to Dismiss Filed in Case

Edited August 31, 2012 by HelpInTexas

[rte]

I'm sorry to hear this. The C1 affidavit was not that great. Appellate courts have struck down papers like this. I think your motion had more basis in case law. However, I'm not a lawyer and can't think what made the judge act the way he did. I do know there are judges in cahoots with debt collectors, by the way they handle trials.

That's why we have appellate courts. Just hang in there. The more knowledgeable posters will be around with suggestions.

[usagi555]

You also have a TX appellate level ruling that CC statements are admissible simply because they come from a bank.

[antiquedave]

I think the only reason I was able to leverage my position is that I buried them in paper and responded to everything, my file was 5 inches thick at least. Then of course there were the complaints to the AG in Virginia and Michigan, the Virginia Secretary of State on the robo notaries, the comptroller, SEC, and Craigslist wanted ads in a number of select counties asking for disgruntled robo signers to contact me......................

The affidavit I received in response to a validation request was titled in the left top the same as yours, PLAINTIFF V DEFENDANT

I did not feel that was a proper validation as to me it mimicked a court document and was misleading and deceptive, it was 3 months before I was served, 6 months before the affidavit which was untimely was submitted as evidence.

I made some mistakes in here, at the time I did this it was 60 to 90 days past the day I was served the summons, so I was a newbie still trying to figure out the difference between a cross and counter.

I included information on testimony from the mortgage robo signing scandals, and other public information on robo signing and false affidavits as supporting evidence.

Jamie Williams was the notary on my affidavit too, and looks identical to yours which also referenced the agreement but did not provide it at the time they sent me the affidavit.

ARGUMENT

FALSE AFFIDAVIT & ROBO SIGNING:

The (FALSE) affidavit (Exhibit A) is submitted to the Court for use as evidentiary support in collection of a debt. Its meaning is far less stated than assumed. It is a document designed to be false and misleading and designed to create the belief that the affiant completed certain steps to verify and validate the accuracy of the information that is being attested to and as such is in violation of the spirit and the law of the FDCPA.

Due to the nature of the current debt collection industry and the lack of oversight, standards, the high volumes of lawsuits filed, and automation of the process of running a litigation mill that is dependent of the failure of defendant consumers to respond thus securing default judgments in up to 94% of the cases filed. The defendants are unable to meet the requirements of the rules of evidence of providing proof of the records of the debt without misleading the state courts and consumer debtors in violation of federal and State Consumer Protection Laws.

Instead of providing actual admissible evidence of the proof required in a

breach of contract lawsuit, creditors such as Capital One Bank USA and Capital One Funding LLC (with the knowledge of SHYSTER attorney defendants) designate “Robo-signers”. The source of their employment is not disclosed, they may or may not be an employee of the original creditor or may be an employee of any number of other entities where they may or may not have access to original or electronic records.

The Robo-signers claim to be authorized agents of Capital One and sign several hundred affidavits a day swearing under oath that they are a Litigation Support Spe******t rather than a business records custodian with personal knowledge of the facts, the affidavit relies on artful language to deceive and confuse the consumer, the court and all others who view the document. Questions such as who employs an “authorized agent, the source of their authorization (and many others) are not answered but are left to be assumed at great prejudice against the consumer/debtor.

The affiant claims in the affidavit to have personal knowledge of the processes by which Capital One maintains their books but not of the alleged debt; further no mention is made of any sale or assignment(s) of the debt, the claims to the amount of the debt, the interest rate, the default of the debt, the alleged credit card terms and conditions, and the record keeping procedures of the debt are not attested to have been verified or validated; only that the affiant is familiar with the manner and method of record keeping procedures. The reader is left to assume that some effort at reviewing the records had taken place.

The Court is lead to believe through such artful language that the affiant has authenticated verified, validated and established the reliability of the records but the affiant does not even know what records will be later attached to the affidavit and in signing hundreds of affidavits daily the affiant has no time to verify or validate any of the information they are attesting to.

The affiant literally only has seconds to sign each affidavit. This is further complicated by the lack of following any procedure as to the notarization of the affidavits and casts great doubt upon whether or not the rules regulating notaries are followed as well. This is true for both employees of Original creditors and Assignees of debt.

The process of creating verifying, and validating the information are suspect and the affidavit represents an unfair deceptive means to collect a debt and is a misrepresentation if not an outright fraud to the consumer-debtors and the state courts.

There are two issues of deception, the first being the title of the affidavit which presents the affidavit of a document already in process and submitted to the court in a lawsuit and second, The Plaintiff questions the statements made on the affidavit and asserts that taken as a whole that the affidavit is materially false, deceptive and misleading in spite of the possibility that some information on the affidavit may be correct.

The standard operating procedure in the creation of these affidavits of debt operates as follows: Each affidavit is generated by computer software which merges the data

into an electronic form affidavit which is then printed. The affidavit is printed on a printer at the desk of a randomly selected employee, at an undisclosed unknown location. The person selected to sign the affidavit is based upon when the affidavit comes off the

[antiquedave]

printer and which printer rather than any personal knowledge of the affiant of the account being collected. The affiants are referred to as Litigation Support Spe******ts but their actual job responsibilities, experience, and actual employer are unknown.

Each affiant (Litigation Support Spe******t ) signs between One Hundred (100) to Four Hundred (400) affidavits a day. Each (Litigation Support Spe******t ) signs each affidavit without personal knowledge of the facts and statements contained in the affidavits.

Which affiant (Litigation Support Spe******t ) signs which particular affidavit is randomly determined based on when the affidavits are printed rather than any knowledge of the account that is being verified.

The SHYSTER Defendants base their fee on a percentage of the amount collected contingency basis and thus have a vested interest in adding to the value of individual accounts and securing judgments as a whole.

The debt collector Defendant, through their own acts, by and through their agents and employees, and their policies and procedures, have violated the FDCPA which has caused damage to the Plaintiff. The affidavit does not constitute a valid response to validation and as such SHYSTER by serving the defendant on January XX 201X has continued an attempt to collect on a debt without validation of said debt.

The affidavit as presented is a false and deceptive document designed to employ the use of artful language and is an unconciousable means by which to attempt to collect a debt

The Defendant falsely represented the legal status of the alleged debt, violating 15 USC § 1692e, 15 USC § 1692e(2)(A) and other provisions of the FDCPA.

The debt collector Defendants made misleading and deceptive statements in the collection of a debt in violation of 15 USC § 1692e.

The Defendants served on debtors and filed Affidavits containing false

and misleading statements as proof of the existence, amount and status of

alleged debts in violation of 15 USC § 1692e; 15 USC § 1692f.

Defendants used the unfair, deceptive and misleading affidavits as a

response to a written dispute from a debtor and/or a request for

verification/validation.

Defendant violated FDCPA 15 USC 807. False or misleading representations (13) The false representation or implication that documents are legal process.

The unfair, deceptive and misleading affidavit is not proper validation.

Defendant attempted to collect debts after having answered a dispute

and/or verification/validation request with the false, unfair, deceptive and

misleading affidavit in violation of 15USC 1692g.

The Defendants used unfair or unconscionable means to collect or

attempt to collect a debt in violation of 15 USC § 1692f including but not

limited to 15 USC § 1692f(1).

The violations have harmed the plaintiff and unless enjoined will continue to harm

the public interest by causing Plaintiffs to pay collection charges that are

unfair deceptive, unlawful, and an unfair method of competition.

Furthermore Plaintiff asserts SHYSTER violated the following Michigan Occupational Code M.C.L. 339.915. Prohibited acts

(a) Communicating with a debtor in a misleading or deceptive manner,

( Using forms or instruments which simulate the appearance of judicial process.

(d) Using forms that may otherwise induce the belief that they have judicial or official sanction.

(f) Misrepresenting in a communication with a debtor any of the following:

(i) The legal status of a legal action being taken or threatened.

(p) Using a method contrary to a postal law or regulation to collect an account

DEMAND

Congress enacted the FDCPA in order 'to eliminate abusive debt

collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

Plaintiff has been thus been injured and the injury in fact is one that is specific, traceable to the subject matter of the suit, and capable of being redressed by this court, as such Plaintiff prays that the Court will grant relief for himself and all others similarly situated.

Statutory individual damages for the named plaintiffs pursuant to the

FDCPA, 15 U.S.C. § 1692k(a)(2);

Statutory class damages for the named Plaintiffs and putative class

members pursuant to the FDCPA 15 U.S.C. § 1692k(a)(2)(;

If Incurred: Costs and reasonable attorney's fees pursuant to the FDCPA, 15 U.S.C.

§1692k(a)(3);

If Incurred: Costs and reasonable attorney's fees pursuant to M.C.L. 339.901 et seq.

The Plaintiff’s rights as identified in the Michigan’s M.C.L. 339.901 et seq. were violated by SHYSTER ATTORNEY plaintiff prays for relief and statutory damages of 3 times the actual damages per violation as defendant asserts the violations were willful.

Declaratory Judgment that Defendants' practices violate the Fair Debt Collection Practices Act and/or the Michigan Consumer Protection Act; and/or the Michigan Collection Agency Act;

Disgorgement of all interest, service charges, attorneys’ fees, collection costs, delinquency charge or any other fees or charges otherwise legally chargeable to the debtor on such claim, collected by SHYSTER ATTORNEY which relied on the use of a false affidavit in securing a judgment or agreement to pay from affected debtor/consumers.

Injunctive relief;

For such other and further relief as may be just and proper by this Honorable Court.

[antiquedave]

That being said you might find some satisfaction if you can go back through all of your letters and calls to see if there are any FDCPA or State consumer protection laws that were violated that you can focus on.

[Seadragon]

I am worried that you didn't make a prima facie showing that this is not your account.

you may not have grounds for an appeal. Having said that look into what the courts ruling is request a stement of decision to see if any thing is amiss. and also check for post trial motions like motion for new trial or JNOV.

you may try to delay but appeal doesn't stop the judgment. If can find reasons to sue them and offset the costs.

also appeal has strict time requirements and the record on appeal is expensive to get together(clerk's transcript, and reporters transcript). If you are trying to delay the appeals court will dismiss as soon as they file a motion if the grounds arent there.

appeal can be done but you have to have objected like crazy at trial.

[BV80]

Considering how hard you were willing to fight, you probably should have subpoenaed the affiant. I agree that being a "representative" of Cap1 doesn't specifically mean the affiant is an employee of the company.

However, most courts have precedent that states you can't avoid a summary judgment or ruling against you simply based on your allegations. You would have had to provide proof or case law to support your allegation that the affidavit was insufficient.

Absent questioning the affiant, if you had proof that the affiant wasn't employed by the OC or case law that supports that a "representative" doesn't necessarily mean "employee", you would have, at least, had an argument.

We've said it many times on this forum that, absent a valid argument, OCs are more difficult to defeat.

[byegone]

Wow - sorry to hear this Helpintexas... keep plugging along hopefully you'll find a way to appeal it.

Mine is coming up in two days.

[Linda7]

Most definitely an OC is hard to beat.

That's why if you have an arbitration provision in your agreement (especially with JAMS as an option), you'd be surprised what electing arbitration against an OC will do versus staying in court and trying to fight.