FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

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To add on what sea dragon said in the experience I had yesterday the attorney was pushing me hard asking me to settle because and stating I was going end up paying a lot more if I didn't settle. He had all these documents proving I owned this debt.

I didn't even have to say more then one word and the judge sided with me. In my experience they kind of shoot themselves in the foot, so let them :) Just stay calm, confident and respectful.

Edited by alexander323bc

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With mine they did send me proof that my OC sold to them (although it seems a little sketchy with some weird form # at the bottom which makes me think it's a generic form that CACH uses. I would think it should be from BOA not CACH) along with a couple of statements.

It's only 'proof' when the court says it's proof. If it seems sketchy, it probably is. Is your name, account number, etc. on there? If not, then how can you be sure they own your account? All that piece of paper shows is that BOA sold Cach some accounts.

I am not sure of the amount as I haven't been provided a complete charge/payment history as this card goes back to 2002. I also did not open a card with BOA. I opened it with a different card company so I'm not sure what happened but it's very confusing so I honestly can say I can't confirm or deny therefor I deny when I get to pretrial.

Since it was opened with a different company, then Cach also needs another document showing the assignment from the initial company to BOA.

Should I do anything else at pretrial though?

Other than looking confused as to why you're there? Usually, you just answer whether or not you recognize the account. I can't stress enough that if you are able, go to the courthouse and listen to a couple of these cases. At my pre-trial, the bailiff told us there were 50 cases on the docket, but they usually finish in about an hour. Sad, huh? Most people don't show up and those that do are so intimidated by being there they just admit everything to keep from having to go back.

Should I use any of my defenses then or do I wait until it goes to actual trial?

If you are going to say that you don't recognize the account, then you would not use any defenses at that time. Remember this is all done orally, so unless you know for sure the account is outside SOL, then keep it as simple as possible.

If I were to mention any of the defenses at pretrial, maybe it would make them just turn tail and run.

Not likely, but sometimes just showing up and letting them know they aren't going to receive a default judgment may be enough for them to voluntarily dismiss. Did you have a notice of telephonic appearance attached to your summons? For small claims, they usually allow it for pre-trial.

Especially with the most recent letter I got with a totally different amount. I'm pretty sure that is NOT allowed.

Probably not, but you can't blame them for trying! They've probably had luck with that 'settlement' method before with other defendants.

Not to mention, they have my address wrong. I'm lucky I even got that letter because it was forwarded from my old address! I'm interested in how they found me. I might be able to use that as well if they contacted a third party to find me. I'd like to make sure they did it correctly.

You said it yourself - it was forwarded. You must have filed a change of address card with the post office asking them to forward your mail. If someone is trying to find you, all they have to do is request the forwarding address from the post office and they know where you are to serve you.

With some of the violations I think I have them for, I can just use those by themselves as a defense can I not?

Study the rules of procedure for small claims, and then study some more. Go to the courthouse and pull some cases that were in small claims with the same attorney. It will give you a good idea of the way they operate. Or you can just go online and pull the clerk of court's website for your county and look up Cach on the official records to see how many of these suits they dismiss voluntarily. Then, you look at the court info section to view the docket, and you should be able to see what others have done to beat them. Unfortunately, in my county, most of the dismissals are because of bankruptcy or settlement so they didn't help much.

I don't have to go through arbitration do I?

Not unless you request private contractual arbitration. Sometimes the judge will order mediation to resolve differences, but that's usually at the civil level. Small claims is more informal and if there is an attorney present, he/she may ask you to go into the hallway to discuss settlement.

If I go through arbitration I'm basically admitting to this alleged debt and I don't want to do that.

Only if you request the private contractual arbitration that's in the credit card agreement. Again, each court is different and the procedure can change slightly depending on your county. You also need to understand that small claims court does not have a court reporter present, so if you do wind up going to trial, you'll have to hire one to preserve things on the record for appeal.

If you want to know the exact procedure used in your county, you'll have to go and observe. Everything that I'm telling you is what is done here in my particular county. Also, some judges are less friendly to pro se defendants than they are here. Like I said before, my particular experience may not be the same for you. The other thing that really helped me is that my pre-trial was re-scheduled several times, which gave me more time to study and decide what I wanted to do for my defensive strategy.

You have to decide what is best for you and what you feel most comfortable doing. Several people have gotten good results using arbitration and others prefer going to court. Either way, you are going to have to commit yourself to work at it - there is no magic bullet or easy way to make them go away. Their goal is to make as much money as possible and your goal is to make it harder than they want it to be, which may make them move on to easier prey.

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I've been doing research non stop and it seems the more I read the more confused I get. I still don't know what route to take! I think I need to just stop researching and go to pretrial and deny and see where it goes from there because the more I research the more contradicting the information gets!

Here is what I DO have so far. Let me know if you guys think I have a shot at beating this:

I am going to argue that I never opened a card with Bank of America. I opened a card with ****Visa and some 4 years later, Bank of America aquired/bought/took over (I have no clue what happened or if there is a difference) my original creditor. BOA never offered me a replacement credit card (which they did for some people) and I never made any purchases as far as I know under the Bank of America account. I believe people who were either already behind on payments or had bad credit were not offered a new credit card with Bank of America. We were just sent statements to pay down our balance. I have an OLD bill from my original creditor from 06 before BOA took them over. Would it be wise to admit I have this and use it as proof that I did NOT open an account with BOA?

Also, I am going to assume CACH won't be able to provide a complete chain of custody as they will/should be lacking the transfer from my OC to BOA therefore I do not owe CACH OR BOA because proof they purchased the debt from my OC is not available correct?

They did provide me some statements and payment history from when I went on a payment plan with BOA to try and get the balance down in 2009-2010. Can they use this at all against me? If so how can I defend against it? Or does it not matter because I can argue that the chain of custody has not been provided?

Lastly, as far as CACH and their attorney are concered, I did not receive a statment that they purchased my debt therefore could not request DV. I have also been sent two, contradicting amounts. The suit filed stated I owe $4,*** and a recent letter offering a "settlement" from CACH's attorney states I owe $6,*** which is MUCH more than the original amount and attorney fees, interest, court costs etc have NOT been added in yet which would be a violation according to the FDCPA on multiple fronts. The attorney is obviously reporting I owe a wrong amount but is also probably trying to scare me into settlement by saying I owe more than I do, making settlement that much more appealing.

What do you guys think?

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It doesn't matter if you opened an account with BofA. What matters is if Cach can prove they purchased your account from BofA. If BofA acquired a separate bank that issued your account, they owned it. You could pursue that angle but it is very difficult to do and requires extensive knowledge. The two vastly different amounts may be worth pursuing. The least sophistacted consumer could interpret this as misrepresenting the amount of the debt, which violates the FDCPA.

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It doesn't matter if you opened an account with BofA. What matters is if Cach can prove they purchased your account from BofA. If BofA acquired a separate bank that issued your account, they owned it. You could pursue that angle but it is very difficult to do and requires extensive knowledge. The two vastly different amounts may be worth pursuing. The least sophistacted consumer could interpret this as misrepresenting the amount of the debt, which violates the FDCPA.

One of the only consistent things I've read says that for CACH to persue my debt, they have to prove they own it. If three different people have owned my debt, the transfer from my OC to BOA and then the transfer from BOA to CACH would have to be documented and the chain of custody MUST NOT be broken. They would also need to have present in the court room, the people who signed off on the affidavits/proof of sales to make those documents admisable and not hearsay (I think xheadscratchx). I'd post links to websites and case law regarding this but I don't have enough posts yet :(

Since I work in insurance and deal with something similar to this all the time, the way I understand Chain of Custody is like this: Person #1 sells a car to person #2. Person #2 has no proof of sale from person #1 or does but loses it and never registers car in their name, still leaving that car to be assumed owned by person #1. Person #2 goes and sells that car to person #3 after never rightfully owning that car as far as the tag office is concerned because they never registered it and never provided proof they bought it. If person #3 wants to register that car, they are going to need proof from person #1 AND #2 to get that vehicle registered in their name.

I would think that just because CACH has proof that they bought my debt from BOA does not mean that BOA was rightfully allowed to sell my debt to CACH as there has been no proof that my OC sold to BOA which would then make CACH unable to collect on a debt that they do not rightfully own. If this is NOT the case, is there any case law out there or other information I could read over that says it doesn't matter? Because everything I've read suggests otherwise.

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There may be case law, but this is not typically an argument that ever makes it to trial. It is resolved by motions and discovery. Mergers and acquisitions are not the same as assignment. You should tell us who the OC was. BofA hasn't absorbed that many banks, the one that comes to mind is MBNA which became FIA Card Services when BofA bought it. This is their credit card division. Going after the original account records from the OC and proving them up is a method you could try through discovery. You would have to raise some issue of trustworthiness in the manner of the acquisition.....did BofA verify all the account balances were accurate? How did they do it? You are attempting to impose the JDB standard here, and it may not work. It's worth a try though, there had to be some auditing done before they bought your OC. Or was there? If so, where is the portion that references your account? Maybe the amount doesn't sound quite right to you, who knows what they pulled. Hey, they bought Countrywide, how smart are they?

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There may be case law, but this is not typically an argument that ever makes it to trial. It is resolved by motions and discovery. Mergers and acquisitions are not the same as assignment. You should tell us who the OC was. BofA hasn't absorbed that many banks, the one that comes to mind is MBNA which became FIA Card Services when BofA bought it. This is their credit card division. Going after the original account records from the OC and proving them up is a method you could try through discovery. You would have to raise some issue of trustworthiness in the manner of the acquisition.....did BofA verify all the account balances were accurate? How did they do it? You are attempting to impose the JDB standard here, and it may not work. It's worth a try though, there had to be some auditing done before they bought your OC. Or was there? If so, where is the portion that references your account? Maybe the amount doesn't sound quite right to you, who knows what they pulled. Hey, they bought Countrywide, how smart are they?

My original creditor was Clout Visa. I couldn't find much information out there regarding them and what exactly happened :/

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My original creditor was Clout Visa. I couldn't find much information out there regarding them and what exactly happened :/

I fought CACH for a year and finally got them to dismiss with prejudice. The documents they come up with are usually recreated and hearsay, you must object to them. They depend on you accepting them for what they say they are. Learn about the rules of evidence in your state, especially the business records exemption to the hearsay rule. Also, it may be that if you object that a lawyer may not be able to appear at the trial (if it goes that far). Make sure that they also have someone from CACH as well as the bank at trial (they will probably drop the case because they don't want to do that). I was not in small claims court but I don't believe the debt collectors or lawyers are supposed to be in that court.

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Who issued the credit card? Had to be a major bank or someone who was partnered up with Visa. The Clout Visa credit card was a popular credit card for high school graduates, college students and college graduates with little or no credit history. The card is no longer offered, but alternative credit cards for students are available from other card issuers.

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Who issued the credit card? Had to be a major bank or someone who was partnered up with Visa. The Clout Visa credit card was a popular credit card for high school graduates, college students and college graduates with little or no credit history. The card is no longer offered, but alternative credit cards for students are available from other card issuers.

My statement says Clout Visa. My Credit card said Clout Visa. I figured Clout was my original creditor. I read the back of my statement and the only other name I see referenced at all is M and I Marketing and M and I affiliates. It says something about "M and I affiliates may share amoung themselves information that is in Holder's credit reports and credit applications and other information unrelated to transactions yada yada yada"... Would it be M and I??

I read the same thing you did regarding the high school grads etc. It didn't really help much or give any other info :/

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I googled M and I and found that M and I Bank (Marshall and Ilsley) are the ones that issued the Clout Visa Credit Card. M and I Bank sold their credit card accounts to BOA and later became known as and is currently known as BMO Harris Bank I believe. Given this info, I would have to assume that there needs to be a affidavit of sale for this transaction and someone from M and I Bank will need to be present to speak on behalf of the affidavit of sale, which they won't have I'm sure, which we all know is NEVER going to happen 8-)

So with that said, where do I go from here with my defense? I have prerail on Monday! How do I attack this affidavit of sale that CACH DID provide that DID have my name on it and my account number on it which is notorized (with the above info in mind regarding M and I bank)? Do I need to do anything at Pretrial except show up and deny? I don't want to do something wrong and mess up my chances of using the lack of standing/Chain of custody defense by not doing something I should have at pretrial. I read in a couple other threads that sometimes you have to object to the affidavit so it can't be admisable and used against me. I just don't know at which point I need to do this. At pretrial? At trial? Kind of looking for a step by step of what I should do at pretrial so I don't dig myself a hole and end up not being able to fight this because I did something stupid. My pregnancy brain (those of you who have been prego know EXACTLY what I am talking about!) is just not letting me absorb this into a step by step process of do this, then that, then this and I feel like I'm losing my mind! XhairXxheadscratchx:cry:

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Just read a thread that says I should probably LET the affidavit get to trial and just attack the witness who will need to be there to speak on behalf of the affidavit. Now i'm really confused and don't know what I should do. :?

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Sounds a bit like my argument, but I always say argue against the affidavit at trial because there is a 99% chance that there won't BE any witness there. They don't even expect YOU to be there. I would pursue the angle you mentioned, this puts BofA in the same position as a junk debt buyer. How did they verify all these accounts? They didn't. They just assumed that Whossis bank was honest. Where's the paperwork from the original bank?

Look at your rules of evidence. This will be in the state general statutes, not the court rules. Some states are very lenient as to what constitutes admissible evidence. You have to study this to determine how to argue your point. Have a copy of the statute with you when you go to court, ready to hand to the judge. Highlight the parts they violated. Have a copy for the poor bozo from BofA who shows up for this massacre. You are on the right track. Sounds like it's a railroad track, and BofA's attorney is strapped to the ties and HERE COMES DA TRAIN.

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Sounds a bit like my argument, but I always say argue against the affidavit at trial because there is a 99% chance that there won't BE any witness there. They don't even expect YOU to be there. I would pursue the angle you mentioned, this puts BofA in the same position as a junk debt buyer. How did they verify all these accounts? They didn't. They just assumed that Whossis bank was honest. Where's the paperwork from the original bank?

Look at your rules of evidence. This will be in the state general statutes, not the court rules. Some states are very lenient as to what constitutes admissible evidence. You have to study this to determine how to argue your point. Have a copy of the statute with you when you go to court, ready to hand to the judge. Highlight the parts they violated. Have a copy for the poor bozo from BofA who shows up for this massacre. You are on the right track. Sounds like it's a railroad track, and BofA's attorney is strapped to the ties and HERE COMES DA TRAIN.

Woo hoo i'm on the right track! Wait...which track? I've had so many! I think my arguement regarding the broken chain of custody should be a slam dunk no? How could that get messed up? They either have it or they don't and if they don't, no case right?

BOA won't even be there i'm sure! CACH bought my debt from BOA and BOA bought my account from my original creditor. The only person I expect to show up is CACH's Attorney IF THAT!

Is this what I should be studying for the rules of evidence??

USLEGAL.com then I searched for "evidence florida" and it pulls up Florida Discovery Law. (Can't post links yet >.<)

If not could you point me in the right direction?

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To really tweak their beard so to speak, tell the judge you thought that in small claims court attorneys were not allowed. I say this because Cach is a Limited Liability Company and in small claims the parties are not allowed legal representation. A company is not a corporation.

can you explain more of your reason.

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Discovery is under court rules. Here's what you want to read:

The 2010 Florida Statutes provides a full disclosure in Title VII, Chapters 90 and 92. Chapter 90 is "Evidence Code" and Chapter 92 is "Witnesses, Records and Documents."

Read more: Florida Rules of Evidence | eHow.com Florida Rules of Evidence | eHow.com

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Discovery is under court rules. Here's what you want to read:

The 2010 Florida Statutes provides a full disclosure in Title VII, Chapters 90 and 92. Chapter 90 is "Evidence Code" and Chapter 92 is "Witnesses, Records and Documents."

Thank you!!! I was reading through it and had a couple questions:

It mentions that the court determines who the witnessess will be and what questions I get to ask the witness. So when they call the BOA rep which they will have to do to make the affidavit admisable, will I have to prepare a set of questions, preapproved by the court to ask? Which means they are going to be ready for them and have answers prepared I assume. Am I understanding that correctly? That doesn't seem fair. Anyone can answer a question with time to prepare one in the best light possible to benefit them the most.

Regarding evidence: This section is a little confusing for me. It seems like you can add evidence whenever you want and it will be approved or denied on a case by case basis. "Objections to evidence or offers of proof of evidence may be made during trial..." To me this sounds like you can add, object, or do anything regarding evidence at any time during trial. Am I understanding this correctly?

Are there any threads on sample questions I should ask the BOA witness? Also, I assume I need to bring up the lack of standing/chain of custody at pretrial along with any other defenses I have along with my proof of why I am claiming each like my old statement from my original creditor correct? Or do I just bring all my defenses up verbally and let them squirm? I don't know if/when I should bring up the fact I have that old statement that proves BOA was not my original creditor.

If I don't show proof of the statement at pretrial am I not allowed to enter it into evidence at trial? Or am I just getting WAY ahead of myself and just need to show up Monday to my pretrial conference and deny everything? I might just say yes I DID open a credit card with XXX account number but I can't confirm or deny the amount being claimed due to lack of information and false (My OC was NOT BOA) information provided by the plaintiff. That I most definetly did NOT open it with BOA and certainly do NOT owe it to CACH until they can complete the chain of custody and I can question all witnesses to the accuracy of my account records and the amount being claimed that I owe. Or is that too risky?

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My guess is that this is preliminary pre-trial procedure. At trial, both sides submit a witness list and you can ask the witness anything you want. This is 14th Amendment stuff, due process. The other side can object to your questions in open court, of course. That's why you should study some cross examination videos on Youtube. That will show you how to question a witness.

For a trial, both sides submit theri exhibits to the court that they intend to use as evidence. Objections can be made. Most of his sounds like pre trial stuff, so that when you finally get to trial it goes smoothly.

Pre trial usually takes five minutes, all they want to know is if you can settle. Forget the BofA angle for now, this is not the time for that. Don't let them know what you're planning. Just tell the judge that there are evidentiary issues that are unresolved which require a trial.

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Is there any info/threads out there on what information is required to be on an affidavit? "Account Stated" seems to be what they are "charging" me with so I was wondering what needs to be on the affidavit to support their claim. I read a thread regarding affidavits and in one case, the threw the affidavit out as evidence because it didn't state a couple different things. One of them was the affiant didn't mention how the records were verified. Just wondering if there was a particular set of requirements out there that I could review to try and break this affidavit down once I need to.

Also, not sure if this will help at all but I just noticed on the papers served and on the letter that the attorney sent me (with the completely different/wrong amount claimed), both are supposedly signed by the same attorney but the signatures are DEFINETLY not the same. Any idea how I/If I can use that as a defense against anything? Someone obviosly filed or sent out one of those documents that wasn't the attorney.

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Can't believe I'm just now noticing what they are claiming which is "Account Stated" and it's got me a little freaked.

If they are claiming account stated, basically, it sounds like all they have to do is show a couple statements that show the amount of the debt and the fact that I made payments on it, basically agreeing to the debt making it an "account stated." Since they did show me about a years worth of payments/statements am I SOL? Or do I keep with the fact that I never opening an account and CACH has a broken chain of custody?

Also, as far as I can tell, here in Florida: "Account Stated" is:

"Mere failure to object to an account sent by mail to one who has had no dealings with sender does not give rise to presumption of acquiescence of debt.”

C. & H. Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. App. 2 Dist. 1965)

Since I never had any dealings with CACH, LLC directly, assuming they ever even sent me the original letter advising they bought my debt from BOA (never got), they can't assume I agree to the debt on failure to repsond to their letter.

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

I never had an agreement with CACH, LLC. I allegedly had it with BOA. When BOA sold my debt to CACH, LLC did that allow CACH to claim account stated? Any case law about people successfully defending against "Account Stated" where a third party (JDB) is claiming "Account Stated" on an account that they bought and never had any direct dealings with the debtor?

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998)

As stated above, I never had any direct dealings with CACH, LLC. Does the sale of my debt allow they to claim "Account Stated?"

"Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”

Nants v. F.D.I.C., 864 F.Supp. 1211 (S.D.Fla. 1994)

Same argument as above

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

“Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

Basically, my main arguement is I never had a contract or dealings with CACH LLC so how can they claim "Account Stated?" If they are going to try to claim they have "stepped into the shoes of my orignal creditor" then they would have to be in the business of offering credit no? Be a creditor themselves? They aren't so I don't see how they can claim this.

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Account stated is easy for them to prove...

Your counter to that is to attack their standing to sue.

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Account stated is easy for them to prove...

Your counter to that is to attack their standing to sue.

To attack their standing to sue I use the fact that they don't have a complete chain of custody (they think my OC is BOA when it is not. My OC was bought by BOA) correct? Also, I can attack the affidavit. I do this in court if/once it gets to court by questioning the witness about the affidavit. If they don't bring a witness, they have no standing because their affidavit would be thrown out because it just becomes hearsay correct? If I can't get the affidavit thrown out in court for whatever reason (assuming the witness does show) I could then turn to the chain of custody being broken. One of those two things should win the case for me I would think.

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