FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

Recommended Posts

Account stated is easy for them to prove...

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

Do you guys having any good threads/links you could recommend on how to attack their standing?

Share this post


Link to post
Share on other sites

Had pre-trial today. I was asked several times if I had a card with FIA card services/Bank of America/MBNA Bank etc which I denied because I did not. Had to move into a mediation room where the attorney and I (was a sub attorney for the one that actually filed surprise surprise) went back and forth. I was asked if I would be willing to make a payment. I said obviosuly not as I have not been given enough info to confirm if this debt is even mine. There is no contract there or transactions showing where this debt came from or who I owe it to. The attorney was like did you ask for them? I said no. Isn't that something done in discovery? We aren't in discovery yet are we? The attorney wasn't very pleased with me I don't think lol

I also brought up the letter the attorney sent me with the wrong amount and said that I was very confused by it and how, to me, it would seem that they are technically in violation of the FDCPA because the amount is incorrect. She tried to claim that that amount must include the interest and court costs. I advised the letter itself says it was NOT included because it goes on to state that those still would be added in not to mention they have not been granted that yet as we haven't been to trial. She tried to play it off like that's no big deal. Just a mistake. I was like no big deal?! They are trying to get me to settle by claiming I owe the wrong amount! She was like well I didn't send it, I don't know. Pretty big mistake if you ask me. Obviosuly no settlement was reached so back into the court room we go to speak to the judge.

I was asked again if I had a card with these people. I denied. The judge asked the attorney where the statements were that showed transactions that she had requested. The attorney said your honor there are statements there showing payments that were made. The judge was like no, not payments...transactions...charges, so we can see where the balance came from and confirm this is the defendants card. The attorney said she would look into getting that information. The judge said good luck with that. 8-) By what I understand, they are going to need that to be in court in the first place (to prove standing). At which point does that come up? If they can't get that, does the Judge just dismiss the whole thing because they didn't provide what she asked them to? Does that happen before or right at trial?

Trial is set for February. I imagine Discovery and all that will take place from here. Wondering if you guys can give me a step by step of what goes on and what I should expect. I'm hoping and praying that I get something in the mail that says the case was voluntarily dismissed because I don't think (and the judge seems to agree because she mentioned if they had them (the statements with the charges), they would have sent them) they will be able to get the statements showing transactions because as far as I know, I never had an actual card with them and never made any purchases. All purchases would have been made with the other company (my OC).

I asked the judge if since she asked the attorney to get the statements showing transactions, if I still had to request that as well (since we were on the topic of discovery. I knew the answer but pretended like I didn't hehe) and she was like "no, they are going to need that to even get to trial in my opinion." Basically hinting to their lack of standing I think.

They also were saying something about filing paperwork so the attorney or whoever could appear telephonically. What are the rules with that as far as any witnesses? They would HAVE to have the witness for the Affidavit appear so they can be cross examined. Can a witness appear telephonically? I would think not otherwise how can it be confirmed that the witness even is who they say they are?

I'm going to have sooo many questions going forward I'm sure so please bear with me!! I appreciate all the help you guys have given me so far. I'd be lost without you!

Edited by FSUgirl07

Share this post


Link to post
Share on other sites

Oh...I was also wondering if there was anything I should be proactive about. Should I file anything with the court or do I just wait until they send me stuff and respond?

Share this post


Link to post
Share on other sites

She tried to claim that that amount must include the interest and court costs.

This violates the FDCPA as I understand it. Court costs etc have to be awarded by the court. They cannot just add them into the balance. However, OCs are creditors, not third party debt collectors, and are not subject to the FDCPA. BUT the collection law firm they hired is, if the majority of their practice is debt collection.

I'm hoping and praying that I get something in the mail that says the case was voluntarily dismissed

Possible but not likely.

Basically hinting to their lack of standing I think

OCs do not have to prove standing the way a JDB does.

I would think not otherwise how can it be confirmed that the witness even is who they say they are?

Right. Object to this, you may win, you may not. Tell them you'll agree to an internet type of appearance where you can see the person. For all you know, F. Lee Bailey could be on the phone.

Start discovery now. Send them these:

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

Share this post


Link to post
Share on other sites

Another thing I thought was funny was the sub attorney kept asking me for information. I was like, um don't you have that?! Or, shouldn't you have that?! She had to go request the file from the Judge. It was as if she never even looked at my file a day in her life. lol She was totally not prepared and was getting mad that I wouldn't just give her the info. I am not just going to give you something all willy nilly. Especially if it's something you should already have or have knowledge of!

Share this post


Link to post
Share on other sites
She tried to claim that that amount must include the interest and court costs.

This violates the FDCPA as I understand it. Court costs etc have to be awarded by the court. They cannot just add them into the balance. However, OCs are creditors, not third party debt collectors, and are not subject to the FDCPA. BUT the collection law firm they hired is, if the majority of their practice is debt collection.

I'm hoping and praying that I get something in the mail that says the case was voluntarily dismissed

Possible but not likely.

Basically hinting to their lack of standing I think

OCs do not have to prove standing the way a JDB does.

I would think not otherwise how can it be confirmed that the witness even is who they say they are?

Right. Object to this, you may win, you may not. Tell them you'll agree to an internet type of appearance where you can see the person. For all you know, F. Lee Bailey could be on the phone.

Start discovery now. Send them these:

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

When I request discovery, do I need to do it in a special, court format or just via a regular letter via certified mail and give a copy to the court?

Share this post


Link to post
Share on other sites

Also, at what point do I address all of the claims for "account stated" that they originally sent? I didn't need to before pretrial (right?) but now that there is a trial scheduled I'm wondering when I should file my "answers" and at what point I address all of my affirmative defenses.

Share this post


Link to post
Share on other sites

Another question that came up at pretrial today was the payments that were posted. I said I wasn't aware of any payments made to bank of ameirca. Honestly I've had so many credit cards, bills etc I couldn't possibly remember making payments on a particular account! I said that I do know that I would not normally call my payments in over the phone which is how the statements say i allegedly paid. I always go online to make payments. There is also no account number to reference what kind of payment was made or what account the payment came out of (credit card, checking account etc). My question is, can the attorney ask for my bank statements to prove I did or did not make payments? I don't keep track/copies of that stuff so wouldn't have it in my own records. Would it then be up to them to subpoena my bank records from my bank directly and if so can they do that?

Share this post


Link to post
Share on other sites
When I request discovery, do I need to do it in a special, court format or just via a regular letter via certified mail and give a copy to the court?

Yes. Use the same court format header you did on your answer... Plaintiff v. defendant with case number.

There are some good templates on here when you're ready to fire off some discovery.

Share this post


Link to post
Share on other sites
Yes. Use the same court format header you did on your answer... Plaintiff v. defendant with case number.

There are some good templates on here when you're ready to fire off some discovery.

I never did an answer. Didn't need to for small claims here in Florida as far as I knew. Judge/attorney didn't say anything so I assume that it was correct and was ok not to file anything. The purpose of the pre-trial conference I thought was to give my "answers". Wondering if I should do formal answers now that it's going to trial??

Share this post


Link to post
Share on other sites
I never did an answer. Didn't need to for small claims here in Florida as far as I knew. Judge/attorney didn't say anything so I assume that it was correct and was ok not to file anything. The purpose of the pre-trial conference I thought was to give my "answers". Wondering if I should do formal answers now that it's going to trial??

Sorry, not familiar with Florida law. There should have been a header in the complaint:

Plaintiff

v

Defendant

Case #

That is the heading you use for discovery. It should also state which court at the top. Again, match the complaint.

Share this post


Link to post
Share on other sites
Sorry, not familiar with Florida law. There should have been a header in the complaint:

Plaintiff

v

Defendant

Case #

That is the heading you use for discovery. It should also state which court at the top. Again, match the complaint.

Thanks for the info. I think I'll be heading down to the court house to see if they can help me just so i'm sure about the procedure and see if they have any sample forms I should be using.

Should I/can I send an answer and a request for Discovery all at the same time? Or is an answer not really needed at this point since I've already gone to pretrial? I'm sure the Plaintiff will be sending me something to "asnwer" any day now anyway. Once/if I get any documents back from them responding to my discovery request do I then file my affirmative defenses and possibly a motion to dismiss depending on what they send? Trying to get a step by step of what comes next and what to file when.

Share this post


Link to post
Share on other sites
She tried to claim that that amount must include the interest and court costs.

This violates the FDCPA as I understand it. Court costs etc have to be awarded by the court. They cannot just add them into the balance. However, OCs are creditors, not third party debt collectors, and are not subject to the FDCPA. BUT the collection law firm they hired is, if the majority of their practice is debt collection.

I'm hoping and praying that I get something in the mail that says the case was voluntarily dismissed

Possible but not likely.

Basically hinting to their lack of standing I think

OCs do not have to prove standing the way a JDB does.

I would think not otherwise how can it be confirmed that the witness even is who they say they are?

Right. Object to this, you may win, you may not. Tell them you'll agree to an internet type of appearance where you can see the person. For all you know, F. Lee Bailey could be on the phone.

Start discovery now. Send them these:

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

Just a reminder, I am not being sued by the OC. I'm being sued by the JDB. Also, some interesting info I found out while reading throught the small claims procedures here in FL; they WILL allow a witness to appear telephonically :evil: This can't be fair. :cry: What am I allowed to ask for to verify that the person on the phone really is who they say they are if the judge ends up allowing them to appear telephonically?

Share this post


Link to post
Share on other sites

Sorry, I forgot, this is Cach. Okay, add these two to your requests for documents.

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

You can definitely attack them on standing. Also, make sure small claims allows discovery in your state, I haven't looked in a while. In most states the rules for small claims are very informal and do not always provide for discovery, motions, etc. As for the witness appearing by telephone, you may be stuck with it, although I would still argue it. If you push this they may tell you "okay, you pay to bring the witness here and put them up in a hotel." I think all states "allow" a witness to appear by telephone, they also "allow" you to object. Just get it on the record at the hearing. You may have to appeal this to Superior Court if FLA allows you to. This is a 14th Amendment issue, I doubt any small claims court will entertain this, although I'd mention it. Due process allows you to face your accuser and any witnesses against you. Like you said, how do you know who is on the other end of the line?

Share this post


Link to post
Share on other sites
Sorry, I forgot, this is Cach. Okay, add these two to your requests for documents.

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

You can definitely attack them on standing. Also, make sure small claims allows discovery in your state, I haven't looked in a while. In most states the rules for small claims are very informal and do not always provide for discovery, motions, etc. As for the witness appearing by telephone, you may be stuck with it, although I would still argue it. If you push this they may tell you "okay, you pay to bring the witness here and put them up in a hotel." I think all states "allow" a witness to appear by telephone, they also "allow" you to object. Just get it on the record at the hearing. You may have to appeal this to Superior Court if FLA allows you to. This is a 14th Amendment issue, I doubt any small claims court will entertain this, although I'd mention it. Due process allows you to face your accuser and any witnesses against you. Like you said, how do you know who is on the other end of the line?

What exactly is the "Forward Flow Document governing this transaction?"

Share this post


Link to post
Share on other sites

I have found a couple copies of affidavits of sale for the same card company selling to CACH with the same affiant and same notory while searching online. Something else I found was a case between FIA Card services and a defendant with a different affiant from FIA and the NOTORY for that affiant was the SAME AFFIANT on MY affidavit. So this same person has been both Affiant for FIA AND Notory for an FIA affiant while also being an employee of FIA. Is there some kind of conflict of interest there that I could use as a defense as to the questionable practices by this affiant and FIA Card services in general? Seems like they just go signing off on and/or swearing to a bunch of stuff, whether they have specific knowledge or not.

Also, how exactly do these "affidavits" prove anything? This affidavit was signed in 2012 regarding a sale that happened in 2010! Where is the actual proof of the sale? Aren't there documents from the actual sale, when it actually took place (not two years later) that I should be entitled to see? Also, how can this person have any specific knowledge of my file when it was sold nearly two years ago?!

Share this post


Link to post
Share on other sites

Also, how exactly do these "affidavits" prove anything? This affidavit was signed in 2012 regarding a sale that happened in 2010! Where is the actual proof of the sale? Aren't there documents from the actual sale, when it actually took place (not two years later) that I should be entitled to see? Also, how can this person have any specific knowledge of my file when it was sold nearly two years ago?!

Affidavits are testimony the court can expect to hear at trial. A statement made in an affidavit absolutely has to be backed up with documentary evidence. Otherwise it is conclusory and hearsay. You can object to any affidavit that does not have documentary evidence attached in any pre-trial motions. At trial, the only way the testimony of the affidavit can be admitted is if the affiant is able to testify at trial.

Share this post


Link to post
Share on other sites
Affidavits are testimony the court can expect to hear at trial. A statement made in an affidavit absolutely has to be backed up with documentary evidence. Otherwise it is conclusory and hearsay. You can object to any affidavit that does not have documentary evidence attached in any pre-trial motions. At trial, the only way the testimony of the affidavit can be admitted is if the affiant is able to testify at trial.

The only thing attached were some old statements that showed a couple payments applied. The judge had requested from the Plaintiff statements that showed some kind of charges to prove I used the card and where it was used. I assume if they can't get those the case will go nowhere...whether they get the affiant to testify or not. At least that is what I'm hoping. I am hoping that the Plaintiff will realize this before wasting any more of their, my or the judges time and just voluntarily dismiss the case. Keeping my fingers crossed.

Share this post


Link to post
Share on other sites
The only thing attached were some old statements that showed a couple payments applied. The judge had requested from the Plaintiff statements that showed some kind of charges to prove I used the card and where it was used. I assume if they can't get those the case will go nowhere...whether they get the affiant to testify or not. At least that is what I'm hoping. I am hoping that the Plaintiff will realize this before wasting any more of their, my or the judges time and just voluntarily dismiss the case. Keeping my fingers crossed.

Were the statements authenticated by someone from the OC via affidavit where they specifically reference them?

How long did the judge give them to produce those documents?

If they do produce them, the plaintiff cannot authenticate them. That must come from the OC as they originated them.

Share this post


Link to post
Share on other sites
Were the statements authenticated by someone from the OC via affidavit where they specifically reference them?

How long did the judge give them to produce those documents?

If they do produce them, the plaintiff cannot authenticate them. That must come from the OC as they originated them.

No, the affidavit is just your typical I, Melinda K Stephenson, bank officer, have personal knowledge of the manner and method yada yada. no reference that she is swearing on the validity/accuracy of the statements themselves. It goes on to give amounts, dates, account numbers etc.

Share this post


Link to post
Share on other sites
Were the statements authenticated by someone from the OC via affidavit where they specifically reference them?

How long did the judge give them to produce those documents?

If they do produce them, the plaintiff cannot authenticate them. That must come from the OC as they originated them.

Oh and I don't remember the judge giving any kind of time frame. Just that they needed to get them and give me copies as soon as they have them.

Share this post


Link to post
Share on other sites
No, the affidavit is just your typical I, Melinda K Stephenson, bank officer, have personal knowledge of the manner and method yada yada. no reference that she is swearing on the validity/accuracy of the statements themselves. It goes on to give amounts, dates, account numbers etc.

Is Melinda K Stephenson from the OC or from the JDB? The JDB cannot authenticate records from the OC. Very important. Tons of case law to back that up.

Share this post


Link to post
Share on other sites
Oh and I don't remember the judge giving any kind of time frame. Just that they needed to get them and give me copies as soon as they have them.

When is the next court date?

Share this post


Link to post
Share on other sites

The forward flow document is similar to the bill of sale. Sometimes the bill of sale is the same document, it's just terminology. It usually has language that hurts their case.......the original creditor refuses to give any kind of guarantees, and will not guarantee the accuracy of account balances, etc. So how then can Cach claim the balance is accurate when the OC won't even do it? I have three samples of these things, and they are on line.

Seems like they just go signing off on and/or swearing to a bunch of stuff, whether they have specific knowledge or not.

Bingo. You just graduated from CIC 101. These are paid hacks who sign whatever their boss tells them to. They process 2-300 of these per day, and have absolutely NO knowledge of your account. You can kill them on the witness stand with this technique. I've never heard of any affiant who refused to sign off on these things. They are a paid interested witness. Why don't they use independent outside auditors, like Price Waterhouse? They'd be afraid to, because of what they'd find.

These are the kinds of arguments judges will listen to. They do NOT want to sit there while some defendant stares at the floor and robotically says "I don't remember" over and over. They want something interesting that makes some sense. Our arguments go from a legla standpoint......they challenge the garbage these JDBs use from a strictly statutorial and procedural viewpoint.

I don't think the fact that the notary is an affiant and works for FIA is an issue. She cannot notarize her own work of course, and you should check the secretary of state's website to see if she is licensed.

Share this post


Link to post
Share on other sites
When is the next court date?

Feb 5th

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.