Jump to content

Newbs, understand something about the docs they sent you.


Recommended Posts

I had a tough time understanding this concept and I wanted to make an attempt to clear it up for the people that come after me since I see it a lot. Once it clicked for me it really changed how I need to fight my case:

I know how it may seem. You send off a doc request and they send back paperwork and then your heart sinks thinking "oh god, they have all this evidence??!!!!" These cases from the JDB, and even some OC, are not made JUST on the docs they have. It's made or broken on the fact that they HAVE to get a witness to court to testify about the proffered docs. They could have every bit of evidence you could think of but those docs don't mean squat without a witness. They attempt to do this the cheap way by having an affidavit entered into evidence to attest to the validity of the paper docs they proffered. These docs have to prove that they now own the debt (chain of custody) and the amount claimed in the suit is able to be backed up with statements (not a partial record). The only way they can be entered into evidence is if someone can testify about them.

This is from my brief and cites Cali codes, look into your states codes:

Evidence Code § 1270-1272 states the business records exception to the hearsay rule.

Evidence Code § 1271 states as follows:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or even if:

a) The writing was made in the regular course of a business;

b)The writing was made at or near the time of the act, condition, or event;

c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

To qualify under the § 1271's "business records" exception to the hearsay rule, subsection © requires the offering party present a qualified witness who can testify from first-hand knowledge regarding the origin or mode of preparation of the document offered. Although Plaintiff attempts to offer the Affidavit of Ashley Lashinski as a custodian of records, this employee of Midland Credit Management is not qualified to attest to the origin or mode of creation of documents from Plaintiff’s purported assignor, CHASE.

You HAVE to challenge this affidavit by subpoenaing the affiant. Either they don't show and then the affidavit is hearsay or they show and you can then question them to prove they don't have FIRST HAND KNOWLEDGE of the documents. This is what breaks 90% of the JDB cases. Some cave sooner due to getting it through their thick skulls that this is going to cost them more than it's worth. This is also why some have been successful in winning with an OC. They just flat don't want to spend the money to win the case.

Now even if the witness shows up that witness has to be able to testify with FIRST HAND KNOWLEDGE to the docs they are trying to use to prove they own the case (this applies to the bill of sale and EVERYTHING ELSE). So if the JDB is using docs from the OC they need a witness from the OC too to testify about the OC docs they're using.

This has California case law but the same concept applies to all the other states.

A custodian of records of one entity cannot attest with personal knowledge to the facts and practices of an entirely different entity. California courts agree and have generally held that an entity cannot be a "custodian or other qualified witness" and provide an affidavit concerning matters of another entity. For example, in Cooley v. The Superior Court of Los Angeles County, et al., (140 Cal. App. 4th 1039 (Cal. App. 2d Dist. 2006)) the court considered whether a district attorney’s ("DA") section 1561 affidavit accompanying documents responsive to a subpoena duces tecum met the requirements of section 1561 when the documents were generated by entities other than the DA. The Court held that the DA was not the custodian of the business records because the DA could not execute the affidavit required by Evidence Code § 1561, as the DA did "not prepare or generate any of the documents contested," could not attest that the records were prepared in the ordinary course of business at or near the time of the event, and could not attest to the various attributes of the records relevant to their authenticity and trustworthiness." (Id. at 1044-45) Here, the only custodian of records offered by Plaintiff is an employee of a company who is the servicer of Plaintiff. Because the witness offered by Plaintiff lacks personal knowledge or a business duty, the witness is not qualified to testify regarding business records originating from CHASE. As such, the documents purportedly from CHASE are inadmissible.

This has reference to a case that is used a lot:

"a document that is prepared by one business cannot qualify for the business records exception merely based on another business’s [sic] records custodian testifying that it appears in the files of the business that did not create the record." (CACH, LLC v. Askew, 358 S. W.3d 58, 63 (Mo. 2012) (en banc)) "In CACH, LLC v. Askew, the plaintiff attempted to offer ”several exhibits purported to be documents regarding the credit card account”( Id. at 2), as Plaintiff has done here. CACH, LLC sought to admit these documents into evidence as business records, as Plaintiff attempts to do here. However, the only custodian of records offered by CACH, LLC was an employee of Square Two Financial, which owns CACH, LLC. When asked if this custodian had any personal knowledge about the business practices of the original creditor, the custodian responded that she only had general knowledge about “most of the major banks." The court, in deciding whether the custodian of records offered by CACH, LLC was a “qualified witness" to lay the foundation for the original creditor's purported documents, held that the witness was not qualified and the records did not meet the hearsay exception, thus the third-party business records were deemed inadmissible.

I hope this helps clear the muddy waters.

May 2013 Edit:

So I see this a lot and I though like this when I was new.

"Should I point out poor service of the summons at trial?" or some other small detail.

Really in the big picture most judges won't hammer a plaintiff over something so simple. Once you are to the point of standing there in front of the judge you better focus on something more substantial.

"Phone calls and foot lockers? Please tell me that you have something more, Lieutenant. These two Marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill." Col. Jessep - A Few Good Men

Don't try and pin your case on something so simple when there are MUCH larger holes to be knocked in their evidence.

Your case isn't won because of how many times you can pick at them. It's won when you rip a huge hole in their case. Focus on things like accounting history for the account, poor chain of custody proof, and the CCP 98 witness.

In the food chain of your case it goes like this:

The CCP 98 witness not being avaiable for service or not showing at trial.

Their crappy bill of sale and other docs that they dont have to prove they really bought your acct.

Full accounting history for the acct from zero balance to closing balance.

You need to hit those as hard as you can in that order. If you destroy the first the two below that are DOA. If they get the judge to allow the CCP 98 then focus on the BOS. You kill the BOS then the account history means little if they can't prove they bought your specific account.

Now this isn't to say if something small and procedural rears its head you don't capitalize on it (just ask Rivertime about blind siding a plaintiff).

Just so I'm crystal clear, have each of those things ready to go. Case law ready and everything for all those points of attack.

The problem is once in a while people think "Oh I got this won since the CCP 98 witness wasn't avaiable" and then they don't have the other two ready in case a judge pulls some crap and let's the CCP 98 affidavit through even though they shouldn't. Then they stand there frozen cus they had all their eggs in that basket and now they're screwed. Don't makes this mistake!!!!

A rule I work and live by is this:

"Two is one, one is none!"

  • Like 5
Link to comment
Share on other sites

Sometimes one need not even subpoena the witness. In my case with an OC's Motion for Summary Judgment, challenging the affiant was enough.

The only documents they included were copies of 12 monthly billing statements. These were my points on the Opposition Motion:

--Plaintiff's motion of judgment fails to establish a contractual relationship between plaintiff and defendant. Plaintiff has not supplied the credit card agreement with the supporting papers for this motion.

--Plaintiff's affidavit in support is insufficient on its face. The affiant does not explain how she is affiliated with Capital One.

--A triable issue of fact exists because I dispute the amount of the debt.

And this was the judge's decision:

Upon the foregoing cited papers, the Decision/Order on the motion is denied for the following reasons:

Plaintiff has failed to demonstrate its prima facie entitlement to summary judgment. In support of its motion plaintiff attempts to offer as evidence the books and records of plaintiff by submitting the affidavit of _________, who is identified only as "an authorized agent of plaintiff..." This affidavit is insufficient in that it does not provide the affiant's: 1)title, 2)role or responsibilities, 3)employer, 4)employer's relationship with plaintiff, 5)length of time affiant has served in this role or how long affiant has been responsible for reviewing plaintiff's records, and 6)it does not provide specificity as to affiant's personal knowledge as to the manner and method by which affiant is familiar with how plaintiff maintains its normal business books and records. Lacking such specifics the Court is unable to credit affiant's assertion that affiant has knowledge of plaintiff's books and records.

Motion DENIED

  • Like 3
Link to comment
Share on other sites

Sometimes one need not even subpoena the witness. In my case with an OC's Motion for Summary Judgment, challenging the affiant was enough.

The question is would that hold up at trial though? With a MSJ you only need convince the court that "there are material factual issues remaining to be tried". At that trial you would need to prove that fact. I would rather have it locked up rather than leaving it up to a judge who could hose you.

Edited by ASTMedic
Link to comment
Share on other sites

This is state specific, we have 50 different evidence codes to deal with. If that isn't bad enough, now you get judge specific.....some posters here can attest to the fact that judges will totally ignore the rules of evidence and rule against you. Documents that will be admitted in one state won't be admitted in another. Too bad there isn't one standard.

  • Like 2
Link to comment
Share on other sites

The question is would that hold up at trial though? With a MSJ you only need convince the court that "there are material factual issues remaining to be tried". At that trial you would need to prove that fact. I would rather have it locked up rather than leaving it up to a judge who could hose you.

Only????? :shock:

:lol:

rt

Link to comment
Share on other sites

This is state specific, we have 50 different evidence codes to deal with. If that isn't bad enough, now you get judge specific.....some posters here can attest to the fact that judges will totally ignore the rules of evidence and rule against you. Documents that will be admitted in one state won't be admitted in another. Too bad there isn't one standard.

The thread helps people to understand how to look at their situation and gives them an idea of how to proceed to assemble what they need to move forward.

true some Judges don't care, and won't listen, true state laws are different and what works in one jurisdiction won't work in another.

I remember starting out and trying to wrap my head around the whole thing and it took time and I'm still learning every single day.

They sent me 100 statements in discovery and I just went right back at them, when they send you a ton of docs its an attempt to shock and awe you, just because they have copies doesn't mean they can get them admitted. If you lose, you lose but you don't just whimper and crawl in a hole, you just keep playing your hand all the way to the end.

Thanks for the thread

  • Like 2
Link to comment
Share on other sites

This is state specific, we have 50 different evidence codes to deal with. If that isn't bad enough, now you get judge specific.....some posters here can attest to the fact that judges will totally ignore the rules of evidence and rule against you. Documents that will be admitted in one state won't be admitted in another. Too bad there isn't one standard.

True buuuuuuuuut:

The business records exception to the U.S. hearsay rule is based on Rule 803(6) of the Federal Rules of Evidence (FRE). It is sometimes referred to as the business entry rule.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(
B)
the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

© making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Example from Missouri

MO Rev. Stat. §490.80 A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

To my limited knowledge most states parrot this in some way. You just have to find the law in your state. It was just faster for me to copy my brief in my first post.

Edited by ASTMedic
Link to comment
Share on other sites

The question is would that hold up at trial though? With a MSJ you only need convince the court that "there are material factual issues remaining to be tried". At that trial you would need to prove that fact. I would rather have it locked up rather than leaving it up to a judge who could hose you.

See, this is what I'm having a hard time understanding: if a MSJ is denied because 'the Court is unable to credit affiant's assertion that affiant has knowledge of plaintiff's books and records', then wouldn't that same affidavit signed by that same affiant be considered inadmissable at trial?

Link to comment
Share on other sites

See, this is what I'm having a hard time understanding: if a MSJ is denied because 'the Court is unable to credit affiant's assertion that affiant has knowledge of plaintiff's books and records', then wouldn't that same affidavit signed by that same affiant be considered inadmissable at trial?

I don't have first hand knowledge on MSJ but the little I've looked at seems to me that if you can sell the fact that the evidence isn't cut and dry then it's denied. Sure some judges will hamstring a defendant and grant it even though it seems clear that there is a issue for trial. But then again there are people on here that get hamstringed at trial too buy judges in cases that seem cut and dry to us. As a poster once said there would be no need for the applet courts if judges always ruled correctly. I would not bank on that affidavit being tossed just on arguing it is hearsay. If you felt it was such junk then you should challenge it more. Always go for the jugular!!!!!! Just my 2 cents and not gospel.

Edited by ASTMedic
Link to comment
Share on other sites

But specific to this case, why would a judge toss it at the MSJ hearing and then not toss it at the subsequent trial? That makes no sense to me.

Not saying that they wouldn't, but who's to say they will. I'm just the kind of person to beef up my case to the best of my ability. I don't leave things to chance.

Not trying to freak you out. It's just the mind set I've aquired over the years for work and life. Two is one, one is none.

Oh and judges don't ALWAYS make sense.

Edited by ASTMedic
Link to comment
Share on other sites

But specific to this case, why would a judge toss it at the MSJ hearing and then not toss it at the subsequent trial?

By you winning on MSJ all that means is it can continue to trial where the Plaintiff might produce a live witness. You need to depose that witness and ask zillions of questions that can usually discredit the testimony. But it is far more work to prepare for trial and trial discovery if they continue after losing a MSJ.

You have the advantage in a MSJ since only have to prove their are facts in dispute - and therefore a trial is needed. On the other hand if you lose at MSJ your sunk other than an Appeal.

Link to comment
Share on other sites

I can only speak to MSJ’s in California but I can’t imagine they are too much different in other states. MSJ's are an animal unto themselves. Affidavits are admissible at an MSJ hearing where they are not at a trial if objected to as hearsay. This can be a huge problem for the defendant. If objected to at trial, plaintiff must bring in the affiant as a witness to testify otherwise it is tossed, again, you must object, hence the whole CCP 96 and CCP 98 thing. Simply objecting to the affidavit as hearsay while involved with an MSJ is not good enough; you must find technical deficiencies in the affidavit to get it excluded. Because of this exception that allows affidavits in an MSJ hearing, the affidavit submitted must adhere to some pretty specific requirements. Defendant must know those requirements and point them out in opposition papers. Its all spelled out in CCP 437c, the statute that allows for an MSJ.

I completely disagree that preparing for trial is more difficult than preparing for an MSJ. I just went through this and after preparing for the MSJ, I am much better prepared to ready for trial. The MSJ was very involved and I had super great help.

MSJ’s require VERY specific responses and if you are off at all, the Judge does not have to consider your opposition. Calawyer pointed me to a book that could be found in the law library that had an entire chapter (over 150 pages) that dealt specifically with MSJ’s. Correct way to file, correct way to respond, timing for filings, specific way to show objections, etc. So the detail and specificity of your response is very, very important.

The tricky part of an MSJ is that once the Plaintiff files it, the burden of proof now shifts to the Defendant to prove that at least one of the “Undisputed Material Fact” listed by Plaintiff is in dispute. A simple denial by Defendant is NOT good enough to defeat an MSJ, you must provide proof. Herein lies the challenge for us Defendants, this is not that easy to do.

I hope this explanation helps,

rt

Link to comment
Share on other sites

By you winning on MSJ all that means is it can continue to trial where the Plaintiff might produce a live witness. You need to depose that witness and ask zillions of questions that can usually discredit the testimony. But it is far more work to prepare for trial and trial discovery if they continue after losing a MSJ.

You have the advantage in a MSJ since only have to prove their are facts in dispute - and therefore a trial is needed. On the other hand if you lose at MSJ your sunk other than an Appeal.

ASTMedic, I was responding to the above. Your advice regarding taking trial prep seriously should be taken by everyone. This is serious business especially since we playing in their (JDB attorney) sandbox.

Thanks, :)

rt

Link to comment
Share on other sites

I understand it costs around $600 to file the MSJ.

Correct, more or less. The plaintiff in my case paid $500.00 to file the MSJ and had to pay for a rent-a-lawyer to go to court and argue the motion. I have absolutely no idea what they pay a rant-a-lawyer. In my case the rent-a-lawyer usually handles about 3 to 6 cases for various JDBs.

I'd be interested in finding out what they pay them. It would be kind of nice to know how much we're increasing their (JDB's) cost every time we need to appear in court. :twisted:

rt

Link to comment
Share on other sites

If they send a rent-a-lawyer to handle MSJ hearings, wouldn't this guy have to study the case first, and charge even more for his time?

But then, so many defendants don't show up so all the rent-a-lawyer has to do is get a judgment. Maybe that's what they're banking on. When you show up prepared, that changes the equation.

Link to comment
Share on other sites

If they send a rent-a-lawyer to handle MSJ hearings, wouldn't this guy have to study the case first, and charge even more for his time?

Nope. I've seen these rent a lawyers and even non rent a lawyer collections attorneys sitting there reading notes, and you can tell they never saw the case before that morning. They have hundreds of these to pursue and not one person at any of these firms knows anything about any of them. They cram at the last minute and think they can just run you over. Sometimes they get a big surprise named Bruno or Coltfan. (Vinny is optional, he needs more training, and of course we all know and fear 1stStep and our other serial litigators)

More money? For what? They're lucky to have a job. Look at these people when you go to court. They fit two categories; pathetic old lawyers who never managed to make it in their field, and recent graduates from law school (usually the bottom of their class) who take this garbage work as an entry level position because nobody else wants them.

Rent a lawyers probably work for a flat fee or a percentage or a reciprocity agreement with other debt firms. If they have to spend more time reading the case, that's on them. Tell you this though, if you are being sued for a significant amount of money by an OC, you'll soon see some changes made when they realize they sued the legal version of the Antichrist. Think about it.....would you want to tangle with KentWA in his home state? I wouldn't!

You'll see upgrades from Dummy LLC to Maybe We Have a Brain LLC to finally a rather impressive litigation firm who will give you to a junior associate. All the same thing, they really don't know any more than you do if you've studied like our board members have. Even an experienced litigator isn't a match for somebody who spent five or six years studying collections and credit card cases.

When you are upgraded, take it as a compliment. This means they are taking you seriously. Change your tactics accordingly. Get on their level and let them know right off what they are dealing with, and that it is not going to be easy, pleasant, or worth all the time you're going to make them spend fighting tooth and nail every step of the way. This is why a lot of creditors fold, they figure it just isn't worth what it's going to cost them. Sometimes they'll do it anyway to avoid a really nasty precedent. But in the end, they have to recognize that they are dealing with someone who has a superior motive and a superior intellect. For us, it isn't just another job, it's a calling. We don't give up, ever. People like that are not viable targets for judgments.

That's Bruno's rant, now Bruno will engage in a heated battle against a bottle of Chianti as he waits for Sandy to wipe out the east coast and the interior states.

Link to comment
Share on other sites

I'm making other points in my upcoming MSJ and I also filed a sworn denial and am working on another affidavit attacking the credibility of the JDB as they are in many lawsuits regarding their false affidavits, bu my main sticking point is going to be this:

The affidavit from the OC references a "bill of sale" to the JDB. The "bill of sale" is attached but nowhere on it does it specify the alleged account number. If this is the document that she reviewed then her affidavit is conclusory and has not layed a proper foundation for her statements. Also she nowhere claims to have personal knowledge of the event nor does she claim to have personal knowledge of the manners and methods of records which she attests are accurate.

I'm hoping this complied with my counter-affidavits will be sufficient. The affidavits are the only "evidence" I can imagine you can submit to prove something doesn't exist or didn't happen.

It's like trying to prove there is no God.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.