FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

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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.

She's from the OC

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Originally Posted by BrunoTheJDBkiller 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.

Assuming I will never see this document because they would never want me to have it, even if they had it to provide to me, could I question the affiant on this? Could I ask her, isn't it true, that the bill of sale you are so knowledgeable about and swearing by, specifically states that your employer will not gaurantee the accuracy etc? Where can I find one of these documents?

Originally Posted by BrunoTheJDBkiller 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.

Do you have a set of questions that would work well to nail these guys? I'd love to see what kind of questions you'd ask someone like this!

Edited by FSUgirl07

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See about getting a subpoena out for her to appear...

I don't think I would have to be the one to subpoena her. The JDB has to if they want to even enter their affidavit in as evidence. If they can't get her to appear, their affidavit is useless.

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I don't think I would have to be the one to subpoena her. The JDB has to if they want to even enter their affidavit in as evidence. If they can't get her to appear, their affidavit is useless.

What rule says the JDB has to get her to appear?

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What rule says the JDB has to get her to appear?

Isn't it your right at trial to cross-examine a witness? If the witness is not there to cross-examine, how can there testimony be admitted?

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I've graduated but I don't know what from! lol What is CIC?? :oops:

Haha. The forum that you are on. Credit Infocenter. Haha

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What rule says the JDB has to get her to appear?

As far as I knew, if they didn't get her to appear, the affidavit would just become hearsay and I would object to it and get it thrown out. Is that not correct?

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Isn't it your right at trial to cross-examine a witness? If the witness is not there to cross-examine, how can there testimony be admitted?

What he said lol

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Hearsay depends on the rules of evidence for your state. This is different from the court rules, this is in the general statutes. If the person is attempting to authenticate records over which they have no control and did not create or maintain, the thing is worthless.

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Hearsay depends on the rules of evidence for your state. This is different from the court rules, this is in the general statutes. If the person is attempting to authenticate records over which they have no control and did not create or maintain, the thing is worthless.

This is what I think you had me look at before regarding evidence in Florida:

90.104 Rulings On Evidence

If the court feels that allowing certain evidence violates the rights of one of the parties, it has the right to predicate error, reverse or set aside a judgment, or set a new trial. This is also true if the court feels evidence is insufficient. Objections to evidence or offers of proof of evidence may be made during trial and will be put on the record. However, if the court has approved or disapproved evidence before the trial commences, the parties need not renew their objections or proffer proof of evidence to be able to claim an appeal. This means that court proceedings move smoothly, with everyone aware of what evidence will be included and what evidence will be dismissed from the final ruling.

Not sure how that has anything to do with hearsay rules. I guess I need to look that up separately. I think I remember the judge mentioning something about hearsay in court and how if you had an affidavit you'd need to have a witness for that affidavit so I'm not too worried.

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Yes you need to subpoena her if you want her to appear. The whole point of the affidavit is to keep you from questioning it.

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Yes you need to subpoena her if you want her to appear. The whole point of the affidavit is to keep you from questioning it.

It's not my affidavit though. It's the original creditors affidavit and the JDB is using it to prove they own my alleged debt. Why would I need to pay to have some one there?! If the JDB wants THEIR evidence to stand in court, THEY need to take the proper steps to make sure it can be admitted as evidence which would be by having a witness to support that affidavit. Otherwise I object on the grounds it's hearsay and it gets thrown out. Whether a witness is their or not wouldn't matter to me because if she's there, I cross- examine her and hopefully get it thrown out based on the fact she does hundreds a day and couldn't possibly know anything about my file and the amount they claim I owe with any specificity. If she's not there, the affidavit is useless. Right? Or do I have this all wrong?? This is my understanding from reading through a ton of threads and the rules of evidence and hearsay.

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The OC affidavits can be argued, but you have to have the person in front of you to do it. That is your option, not their requirement. An affidavit is a form of sworn testimony designed to prevent excessive clogging up of the court system. If you want to argue it, you have several options. You can move the court to strike it as legally insufficient if it does not conform to the rules of evidence, you can subpoena the affiant to court, you can depose the affiant, (super expensive) or this: (this can get expensive as well)

RULE 1.320. DEPOSITIONS UPON WRITTEN QUESTIONS

(a) Serving Questions; Notice. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in rule 1.410. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them with a notice stating (1) the name and address of the person who is to answer them, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which that person belongs, and (2) the name or descriptive title and address of the officer be-fore whom the deposition is to be taken. A deposition upon written questions may be taken of a public or pri-vate corporation, a partnership or association, or a governmental agency in accordance with rule 1.310(B)(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all oth-er parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

(B) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the depositions to the officer designated in the notice, who shall proceed promptly to take the testimony of the witness in the manner provided by rules 1.310©, (e), and (f) in response to the questions and to prepare the deposition, attaching the copy of the notice and the questions received by the officer. The questions shall not be filed separately from the deposition unless a party seeks to have the court consider the questions before the questions are submitted to the witness.

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It's not my affidavit though. It's the original creditors affidavit and the JDB is using it to prove they own my alleged debt. Why would I need to pay to have some one there?! If the JDB wants THEIR evidence to stand in court, THEY need to take the proper steps to make sure it can be admitted as evidence which would be by having a witness to support that affidavit. Otherwise I object on the grounds it's hearsay and it gets thrown out. Whether a witness is their or not wouldn't matter to me because if she's there, I cross- examine her and hopefully get it thrown out based on the fact she does hundreds a day and couldn't possibly know anything about my file and the amount they claim I owe with any specificity. If she's not there, the affidavit is useless. Right? Or do I have this all wrong?? This is my understanding from reading through a ton of threads and the rules of evidence and hearsay.

Just because you object to the affidavit doesn't mean it gets thrown out. If an objection was all that was necessary, no affidavit would ever be sufficient in court because opposing parties would always object.

If you provided an affidavit from another person, you would not be required to bring that person to court. If the opposing party wants to question the witness, that opposing party is the one that must request the person's presence in court.

An affidavit is made under oath and is made to support certain claims. Unless your rules state otherwise, the plaintiff doesn't have to bring the affiant to court. The judge simply takes the affidavit at face value because it's made under oath.

You can object to the sufficiency of the affidavit to support whatever it is the plaintiff is using the affidavit for, but you have to support your objection. That means either by questioning the affiant OR by providing case law that supports your objection.

Edited by BV80

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BV80 is correct, it is your burden to get the affiant in front of a jury. What you have to find out is what method works best. A subpoena requires them to appear. I am not sure if there are any costs that can be taxed to you like there would be for a deposition. In some states, the affiant must live within a certain distance of the court and must be made available. Depositions are awfully expensive, especially if you conduct them where the affiant lives. Most states require a lawyer to conduct them. That means hiring not only a court reporter, but an attorney to conduct the deposition, and he will want to get paid to review your case so he can adequately represent you. Usually they want no part of a piecemeal case. You also get into procedure for depositions, letters rogatory, back and forth with the clerks of the courts involved, forget this tactic. Somebody from FLA will know this stuff.

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BV is absolutely correct - it is your burden to get the affidavit thrown out.

Sending a subpoena is a good way to get this done - this allows you to impeach their statements made in the affidavit. When I went through my case, I sent a subpoena for the affiant to appear for questioning - all of this sudden, she became "unavailable" to testify - even though that was in her affidavit. After some more investigating, I found her home address and served the subpoena there. 48 hours later, the case was dismissed.

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It's not my affidavit though. It's the original creditors affidavit and the JDB is using it to prove they own my alleged debt. Why would I need to pay to have some one there?! If the JDB wants THEIR evidence to stand in court, THEY need to take the proper steps to make sure it can be admitted as evidence which would be by having a witness to support that affidavit. Otherwise I object on the grounds it's hearsay and it gets thrown out. Whether a witness is their or not wouldn't matter to me because if she's there, I cross- examine her and hopefully get it thrown out based on the fact she does hundreds a day and couldn't possibly know anything about my file and the amount they claim I owe with any specificity. If she's not there, the affidavit is useless. Right? Or do I have this all wrong?? This is my understanding from reading through a ton of threads and the rules of evidence and hearsay.
You are exactly right, they need the witness, keep objecting to everything they do. I had a corrupt judge who told me I would have to be the one to subpoena - not so- CACH dropped their case because I made sure they were going to have to produce witnesses-from cach, & BofA. Check your evidence rules. Make sure the lawyer is not there by himself, he can not testify-he needs someone from cach, otherwise there is no damaged party-the court doses not have jurisdiction unless you allow it. cach will dismiss before they fly witnesses to court- no need to settle. If you find the civil jury instruction or jury charge for account stated it will tell you all the elements they will need to prove and case law for points and authorities, if you can't find it online it will be worth a trip to the local law library.

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The OC affidavits can be argued, but you have to have the person in front of you to do it. That is your option, not their requirement. An affidavit is a form of sworn testimony designed to prevent excessive clogging up of the court system. If you want to argue it, you have several options. You can move the court to strike it as legally insufficient if it does not conform to the rules of evidence, you can subpoena the affiant to court, you can depose the affiant, (super expensive) or this: (this can get expensive as well)

RULE 1.320. DEPOSITIONS UPON WRITTEN QUESTIONS

(a) Serving Questions; Notice. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in rule 1.410. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them with a notice stating (1) the name and address of the person who is to answer them, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which that person belongs, and (2) the name or descriptive title and address of the officer be-fore whom the deposition is to be taken. A deposition upon written questions may be taken of a public or pri-vate corporation, a partnership or association, or a governmental agency in accordance with rule 1.310(B)(6). Within 30 days after the notice and written questions are served, a party may serve cross questions upon all oth-er parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

(B) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the depositions to the officer designated in the notice, who shall proceed promptly to take the testimony of the witness in the manner provided by rules 1.310©, (e), and (f) in response to the questions and to prepare the deposition, attaching the copy of the notice and the questions received by the officer. The questions shall not be filed separately from the deposition unless a party seeks to have the court consider the questions before the questions are submitted to the witness.

I was having the same problem with my case, but I told them the rule says " by deposition", and they are supposed to give you opportunity to attend the deposition so you would have a chance to cross examine without being in court. An affidavit is not a deposition. I objected to the same circumstance and CACH dropped the case, even after they had put a lot of effort into it,

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You are exactly right, they need the witness, keep objecting to everything they do. I had a corrupt judge who told me I would have to be the one to subpoena - not so- CACH dropped their case because I made sure they were going to have to produce witnesses-from cach, & BofA. Check your evidence rules. Make sure the lawyer is not there by himself, he can not testify-he needs someone from cach, otherwise there is no damaged party-the court doses not have jurisdiction unless you allow it. cach will dismiss before they fly witnesses to court- no need to settle. If you find the civil jury instruction or jury charge for account stated it will tell you all the elements they will need to prove and case law for points and authorities, if you can't find it online it will be worth a trip to the local law library.

You're from CA. FSUgirl is from Florida. The rules of civil procedure may differ.

The court doesn't have jurisdiction unless you allow it? The court decides who has jurisdiction. We don't get to decide that fact. Jurisdiction means that the claim is one that can be heard by that court. If a court can hear debt collection claims, then the court has jurisdiction.

Also, the attorney does not have to have someone from the JDB in the court unless the attorney wants to present that person as a witness. If the attorney doesn't intend to present him/her as a witness, then the other party has to issue a subpoena.

It would be interesting to see the CA law that requires the attorney to have someone from the JDB present even if the attorney doesn't intend to question that person or that person has not been subpoenaed by the other party.

Again, CA may have that law, but that doesn't mean all courts across the country require it.

BTW, Bruno was not implying that an affidavit and a deposition are the same. His reason for including the rule regarding depositions was to inform FSUgirl as to one way she could question the affiant in order to discredit the affiant and the affidavit. And if you'll notice, the rule included "The attendance of witnesses may be compelled by the use of subpoena as provided in rule 1.410."

Edited by BV80

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If the person is attempting to authenticate records over which they have no control and did not create or maintain, the thing is worthless.

This statement here is what I understand the most. It's not the JDB's affidavit so how can they use it? Its useless right? The affidavit and past statements were all they sent and those are all from the OC. The affidavit was just a sworn statement about the sale to CACH two years ago. Nothing else. It wasn't being used to authenticate anything in particular I don't think. So if the lawyer/CACH is trying to authenticate the sale using the affidavit(instead of the actual bill of sale), to show they are allowed to collect on the debt, going by what you said above, since its not theirs, I shouldn't have to do anything but object to it and state that to the judge correct?

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Please post this affidavit... I bet its a bill of sale.

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