FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

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

It's not. It's an "affidavit of sale and certification of debt." That's what it says at the top. It was also done in May of this year when the sale actually took place two years ago!

I'd post it but I don't have a scanner here. I'll have to do it at work on Monday.

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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."

Jurisdiction means the claim can be heard by the court. Yes. The court can hear the claim. All it needs is two parties to the case, sworn in. In this case there would be no damaged party, only the affidavit and a lawyer. The lawyer is not a party to the case, he can only represent his client, he can not be sworn in and testify against you. Unless of course you allow it by not objecting to the affidavit and insisting the other party to the case be in the court, which would be allowing the court jurisdiction.

If the lawyer does not want to call the jdb as a witness he doesn't have to. However he does need a client in the room if he is going to have someone to represent, but if someone wants to cover their cost for them and subpoena the other party to the case I'm sure the lawyer would not object.

Also. I don't want it to appear that I'm trying to bag on Bruno (or anyone else for that matter) that is not my intention. I had the same argument with CACH and the judges, and CACH kept lowering their settlement by thousands of dollars and ultimately dropped the case because they did not want to fly someone from CACH or BofA to CA. I don't believe they want to fly to Florida or any other state for that matter, and they offered me the same opportunity to subpoena as well.

Edited by Anon Amos

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However he does need a client in the room if he is going to have someone to represent

That may be the case in CA, but it's not the case everywhere. Most of the time, JDB attorneys have no one in court with them, and that's legal. You have to remember that individual state laws and court rules can differ. Many rules are the same, but there may be a few differences.

Could you post the CA rule or law that says the client must be in the courtroom with the attorney? If that's truly the case, it would help other CA members of this forum.

I had the same argument with CACH and the judges, and CACH kept lowering their settlement by thousands of dollars and ultimately dropped the case because they did not want to fly someone from CACH or BofA to CA. I don't believe they want to fly to Florida or any other state for that matter, and they offered me the same opportunity to subpoena as well.

You were arguing that you wanted a witness. You are correct when you say they didn't want to fly a witness in to testify, but that still doesn't mean that the judges were wrong, and that Cach had to have a witness in court if you did not issue a subpoena. It could very well be that Cach knew you could subpoena, if you chose to do so, and they just didn't feel like the fight was worth it.

Again, if there is a CA law or rule that states an attorney must have the client in court or bring a witness without a subpoena, please post it in order to help other CA members.

Edited by BV80

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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?

Maybe I can clarify a little (or confuse you more :)). More than one affidavit can be presented. There can be an affidavit to show that a sale was made. Another affidavit can be provided to authenticate business records. A third affidavit can be used to support summary judgment. Most JDBs attempt to authenticate records and support summary judgment in the same affidavit.

The affidavit from the OC may not be an attempt to authenticate the business records. It may merely be the JDBs attempt to prove the sale of the account from the OC to the JDB.

Did the affiant in the OC's affidavit mention your name and account number? If you could write out the affidavit, it would help us to offer suggestions.

They could offer another affidavit to attempt to authenticate the business records and support summary judgment.

The wording in an affidavit (what is and is not said) can make all the difference.

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It's not. It's an "affidavit of sale and certification of debt." That's what it says at the top. It was also done in May of this year when the sale actually took place two years ago!

I'd post it but I don't have a scanner here. I'll have to do it at work on Monday.

CACH gave me the same thing, with a bad date as well. I used my states rules of evidence to file a motion to exclude evidence under the grounds 1) the writing was not made at or near the time of the act, condition, or event. 2) the source of information and method and time of preparation were not such as to indicate its trustworthiness, 3) the writing was not made in the regular course of a business 4) the custodian or other qualified witness testifies to its identity and the mode of its preparation. My argument for # 4 was that the affiant has not laid a foundation establishing her as custodian of records, has not shown how she has personal knowledge,the regular course of business is not validating affidavits, and that I would be denied due process by not having opportunity to cross examine her. I had a few others as well but they would not apply to your case.

check your states business records exemption to the hearsay rule, learn the rules of evidence and the rules of court.

CACH is one of the very worst to fight, they are ruthless. They can be beat by constant objection and forcing them to spend time on the case and making them appear if it goes to trial. Find out if the lawyer is even allowed in small claims court. If you keep thinking the you are you will beat them.

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That may be the case in CA, but it's not the case everywhere. Most of the time, JDB attorneys have no one in court with them, and that's legal. You have to remember that individual state laws and court rules can differ. Many rules are the same, but there may be a few differences.

Could you post the CA rule or law that says the client must be in the courtroom with the attorney? If that's truly the case, it would help other CA members of this forum.

You were arguing that you wanted a witness. You are correct when you say they didn't want to fly a witness in to testify, but that still doesn't mean that the judges were wrong, and that Cach had to have a witness in court if you did not issue a subpoena. It could very well be that Cach knew you could subpoena, if you chose to do so, and they just didn't feel like the fight was worth it.

Again, if there is a CA law or rule that states an attorney must have the client in court or bring a witness without a subpoena, please post it in order to help other CA members.

when i get more time i will see what i can find that may be of help. the rules are all different but they are often close and in any state constant objection works. I will look into it, but my argument is that you need two parties to a case. When the judge swears you in he won't have another party to swear in if your accuser is not there. Attorney's can't testify against you, and they would have to be sworn in if they could. Every Time the attorney spoke you could object on the grounds that it is hearsay, and he has no personal or firsthand knowledge of anything thing he is speaking about or trying to admit as evidence.

If you are in court and sworn in you are there to defend against the damaged party (plaintiff) who needs to be there and sworn in. The lawyer is not the one suing you, and is not a party to the case, will not be sworn in and cannot testify against you, and even if he could you would destroy him because his testimony would not be admissible as he has no firsthand knowledge of anything. If it was only the lawyer than he would be the witness, put him on the stand and question him, he will not be effective because he would not know a thing about what he would testify to. Its not so much that you want a witness there but that you need a plaintiff to defend against.

I agree, 9 out of 10 cases it is just the lawyer and no jdb and it may even be legal because the defendant did not object and invoke their rights.

its not so much as a California law but a constitutional right that can be invoked by citizens of all states, paid for by the blood of our soldiers.

you have a right to due process

you have a right to face your accusers

Like I said I will look into it, but I was thinking that others might look into it for themselves and use this as a possible direction.

the right to face your accuser may be more of a criminal rule more than civil but the right to due process will cover you.

Edited by Anon Amos

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Its not so much that you want a witness there but that you need a plaintiff to defend against.

I agree, 9 out of 10 cases it is just the lawyer and no jdb and it may even be legal because the defendant did not object and invoke their rights.

This is where I believe our opinions differ. If you want the plaintiff or witness there, it may not be a matter of simply objecting that he's not there. Unless your state laws or court rules state that the plaintiff or a witness has to be there period, you have to follow proper procedure to get him to the court. If proper procedure requires a subpoena from you, that's what you have to do. A mere objection won't cut it.

The judge will simply ask you why you didn't follow court procedure to get the plaintiff or witness to appear.

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Florida Rules of Evidence

90.801 Hearsay; definitions; exceptions.--

(1) The following definitions apply under this chapter:

(a) A "statement" is:

1. An oral or written assertion; or

2. Nonverbal conduct of a person if it is intended by the person as an assertion.

(B) A "declarant" is a person who makes a statement.

© "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

(a) Inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or

© One of identification of a person made after perceiving the person.

History.--s. 1, ch. 76-237; s. 1, ch. 77-77; ss. 19, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 2, ch. 81-93; s. 497, ch. 95-147.

This rule here is why I think it would be in CACH's best interest to have a witness there to testify for the affidavit otherwise it's hearsay and inadmisable. This is why I see myself objecting to the affidavit on the grounds that it is hearsay and unless CACH has someone there to testify to make the affidavit NOT hearsay the judge would have no choice but to throw it out according to this rule. I don't see how I have this confused. Seems pretty straight forward to me according to this rule.

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This is called strategy-it is already hearsay, but you have to do a little bit of work to get it precluded...

Remember - The whole purpose of the affidavit is to keep the affiant OFF the witness stand!!!!!

It doesn't what what you think is in their best interest - their best interest is NOT having the affiant there to testify - cause it won't take long for you to prove that they are full of s**t.

You are overthinking this and about to LOSE. If you don't send a subpoena, the Plaintiff WILL NOT HAVE THEM THERE TO TESTIFY!!

Edited by 1stStep

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This is called strategy-it is already hearsay, but you have to do a little bit of work to get it precluded...

Remember - The whole purpose of the affidavit is to keep the affiant OFF the witness stand!!!!!

It doesn't what what you think is in their best interest - their best interest is NOT having the affiant there to testify - cause it won't take long for you to prove that they are full of s**t.

You are overthinking this and about to LOSE. If you don't send a subpoena, the Plaintiff WILL NOT HAVE THEM THERE TO TESTIFY!!

I guess the part I'm confuse about is why I can't just object to the affidavit on the grounds that it is hearsay? Why do I want the affiant there just to attack them when all I really have to do is attack the affidavit itself for being hearsay?

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Look up the term "impeachment of witness." That is your answer...

You can object to it being heresay, the other side will claim it is a business record exception. Then what do you do?

If you subpoena the affiant to appear - it is a court ordered appearance - if the affiant does not appear, the other side can be held in contempt for non-appearance and provides a more powerful way to get the affidavit tossed - since they violated the court ordered appearance.

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OK...Here is the affidavit word for word:

State of North Carolina )

City of Greensboro )

)

FIA Card Services, NA

Account Holder: Me Account No(s): bla, bla, bla

The undersigned, Melinda K. Stephenson, being duly sworn, states and deposes as follows:

1. The affiant is employed by FIA Card Services, NA in the position of Bank Officer, has personal knowledge of the manner and method by which FIA Card Services, NA maintains its normal business book and records, and is duly authorized to make this affidavit.

2. That the contents of this affidavit are believed to be true and correct based on the computerized and hard copy books and records of FIA Card Services, NA, maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded.

3. That FIA Card Services, NA is a wholly owned subsidiary of Bank of America Corporation and is successor in interest to MBNA America Bank, NA, Fleet Bank (RI), and Bank of America, National Association (USA).

4. That the account records FIA Card Services, NA show that:

a. Account number bla, formerly account number bla, originally known as bla, was opened on 8/21/02 by Me.

b. Pursuant to the terms of the card member agreement with FIA Card Services, NA, there was due and payable $xxxx.xx as of the charge off date of 9/30/2010

c. Said agreement and account was on 10/13/2010 sold, transferred and set over unto CACH LLC with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim, and as of that date, there was due and payable on this account the sum of $xxxx.xx with all just and lawful offsets, payments, and credits having been allowed.

d. There were no uncredited payment, just counterclaims or offsets against said debt when sold.

5. That as a result of the sale of said account, CACH LLC and/or it's authorized agent, has complete authority to settle, adjust, compromise and satisfy same, and that FIA Card Services NA has no futher interest in the account for any purpose.

6. That the original contract in this matter may not be available, or no longer accessible to affiant.

Dated 5/16/2012

Melinda Stephenson

Notorized by Joy E. Jefferson of Guilford County NC

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Look up the term "impeachment of witness." That is your answer...

You can object to it being heresay, the other side will claim it is a business record exception. Then what do you do?

If you subpoena the affiant to appear - it is a court ordered appearance - if the affiant does not appear, the other side can be held in contempt for non-appearance and provides a more powerful way to get the affidavit tossed - since they violated the court ordered appearance.

I'd argue that for them to claim the business record exemption, the affidavit would first have to be THEIR business record. Would it not?

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This is where I believe our opinions differ. If you want the plaintiff or witness there, it may not be a matter of simply objecting that he's not there. Unless your state laws or court rules state that the plaintiff or a witness has to be there period, you have to follow proper procedure to get him to the court. If proper procedure requires a subpoena from you, that's what you have to do. A mere objection won't cut it.

The judge will simply ask you why you didn't follow court procedure to get the plaintiff or witness to appear.

Our opinions differ but they are close. If you think about it, no matter what state, there absolutely has to be two parties are else you cannot have a trial, unless you waive your rights and allow it to be just you and the lawyer. If a defendant did not show up for court the plaintiff would win. Whats the difference? The difference is the plaintiff has the burden of proof, I think people fail to realize the importance of that. I watched 8 cases in a row where the defendant lost to a lawyer and an affidavit and it did not have to happen, it most certainly did not happen to me. In each case the judge asked if they received the affidavit and if they wanted to testify, no one knew what he was talking about and they all lost. Object to the affidavit, file a motion to strike it, and demand that there be two parties to the case. It works. I think people may be comparing the affidavit to a deposition. It makes more sense to subpoena the declarant if you want to cross examine at trial because with a deposition you would of had an opportunity to be there and cross examine, with an affidavit you would not.

1. 2 parties for a case.a plaintiff and a defendant.

2. without two parties the judge can't conduct a trial.

3 you are a party to the case (defendant) show up

4. you do not have to bring the other party (plaintiff) with you or subpoena them. If they want to sue you they have to show up like you did.

5. the lawyer is not a party to the case- he is not the plaintiff

when the judge simply ask why you did not follow procedure to get a witness/plaintiff there? You did. You objected by motion, its on the record, and the plaintiff did not show up. sometimes you have to remind the judge the plaintiff has the burden of proof. You followed procedure, you showed up to defend yourself against the plaintiff. if there is no plaintiff there the judge can't conduct a trial, the plaintiff has the burden of proof and they are not there, he will have to dismiss the case. One of the best ways to learn is to go watch debt cases, sit in on someone else's problems, and see it happen, although it may be hard to find a case that goes to trial as most settled or get dismissed (plaintiff did not show, defendant objected). Most people must be considering the lawyer is the plaintiff.

If you waive jurisdiction and allow a trial to be conducted with only a defendant and no damaged party (plaintiff) you will lose.

sorry for such a long post

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Look up the term "impeachment of witness." That is your answer...

You can object to it being heresay, the other side will claim it is a business record exception. Then what do you do?

If you subpoena the affiant to appear - it is a court ordered appearance - if the affiant does not appear, the other side can be held in contempt for non-appearance and provides a more powerful way to get the affidavit tossed - since they violated the court ordered appearance.

She can attack it as the business records exemption end, I believe the dates were wrong so it was not made during at or near the time of the event, the affiant has not shown first hand knowledge, the document was created for the sake of litigation since the date was not near the time of the event. If she checks the business records exemption to the hearsay rule she can beat it, myself and others have.

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I guess the part I'm confuse about is why I can't just object to the affidavit on the grounds that it is hearsay? Why do I want the affiant there just to attack them when all I really have to do is attack the affidavit itself for being hearsay?
You don't want the affiant there, nor due you have the burden of proof. If you are attacking the affidavit then they will have to prove up the allegations, you don't have to help them, the burden of proof is theirs. You are thinking right and you can win. Everyone told me the same thing as well, I did not listen, and CACH dropped the case. The same thing can happen for you, you do not need to subpoena them, and if you did you would have to pay them for air fair, hotel, food and wages, the same stuff they would have to pay if they wanted to pursue this in trial, that is why they will drop it.

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Our opinions differ but they are close. If you think about it, no matter what state, there absolutely has to be two parties are else you cannot have a trial, unless you waive your rights and allow it to be just you and the lawyer.

I know there has to be 2 parties. But where is the rule that says the Plaintiff must be in court?

If a defendant did not show up for court the plaintiff would win. Whats the difference?

If a defendant is appearing Pro Se, and does not show up, there would be no one to represent him. That's why.

The difference is the plaintiff has the burden of proof, I think people fail to realize the importance of that.

We most certainly recognize that fact. We say it all the time.

4. you do not have to bring the other party (plaintiff) with you or subpoena them. If they want to sue you they have to show up like you did.

If the other party is represented by counsel, where is the rule that says they have to show up???

5. the lawyer is not a party to the case- he is not the plaintiff

We know this. We have never told anyone to question the attorney.

when the judge simply ask why you did not follow procedure to get a witness/plaintiff there? You did. You objected by motion, its on the record, and the plaintiff did not show up.

What motion?

sometimes you have to remind the judge the plaintiff has the burden of proof. You followed procedure, you showed up to defend yourself against the plaintiff. if there is no plaintiff there the judge can't conduct a trial, the plaintiff has the burden of proof and they are not there, he will have to dismiss the case.

I think the judge knows the plaintiff has the burden of proof. I'll ask again. Where is the rule that states a judge cannot conduct a trial if the plaintiff who is represented by counsel isn't there? You keep saying it, but you don't provide the rule. If it applies in CA, fine. But it doesn't apply everywhere.

Edited by BV80

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She can attack it as the business records exemption end, I believe the dates were wrong so it was not made during at or near the time of the event, the affiant has not shown first hand knowledge, the document was created for the sake of litigation since the date was not near the time of the event. If she checks the business records exemption to the hearsay rule she can beat it, myself and others have.

This is completely incorrect. An affidavit is not a business record. It's a sworn statement that can be used to authenticate business records.

Also, it doesn't have to be made near the time of the event. You're confusing that with the business records exception. The business records exception states that the affidavit must show that the records were made at or near the event. For instance, cc statements would have to be made at or near the time of purchases and payments (the events). The affidavit itself does not have to be made at the time of the event.

In addition, many courts have ruled that an affiant does not have to have first hand knowledge of business records. An affiant must have personal knowledge of facts in an affidavit for summary judgment, but not always for an affidavit to authenticate business records.

Section 90.803(6), Florida Statutes (2010), allows the admission of records of a regularly kept business activity when the business record was made at or near the time of the matters reported and when the business record is made by a person having personal knowledge of the matters reported or when the information supplied in the record is supplied by a person with knowledge. Further, it must be shown that the business record was kept in the ordinary course of a regularly conducted business activity and that it is the regular practice of the business keeping the record to make such a business record. Yisrael v. State, 993 So.2d 952 (Fla.2008).

The above states that the business record had to have been made by a person with knowledge. It doesn't say that an affiant has to be the person who made the record.

A document authored or created by a third party may be admissible as business records of a different business if: (1) the document is incorporated and kept in the course of the testifying witness's business; (2) that business typically relies upon the accuracy of the contents of the document; and (3) the circumstances otherwise indicate the trustworthiness of the document. Simien, 321 S.W.3d at 240-41

The above TX case says nothing about personal knowledge being required to authenticate a document from another entity.

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1) Lawyer can always represent the JDB - no one other than the lawyer has to show up at trial etc.

2) Robo-signing has been shown as common in the credit card industry - Chase whistleblower and now others. In many states it is easy to challenge a affidavit arguing that the business records are untrustworthy and have to have live testimony at trial by someone with personal knowledge of the business record trying to get into evidence. Can ask details about security procedures, how the records kept, how many times transferred etc.

If you can win on a MSJ on non trustworthiness of business records case will usually be dropped since they don't want to pay for a live witness to attend and be challenged.

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BV80 brought up a good point about the affidavit.......Did the affiant in the OC's affidavit mention your name and account number?

Vinny's OC's affidavit didn't. Vinny motioned for objection and filed an affidavit in opposition to plaintiffs affidavit in support of their MSJ. Not (ONLY) objecting to the pre litigation strategy using a no name/no account number defendant.....,but as well Vinny denied any outstanding balance or agreement to thereof.Affiant provided that someone gave her, her first hand knowledge. She didn't name that someone either. The only names were the affiants and the notary. At the end of Vinny's objection he invited council (not the Plaintiff) to bring their plaintiffs witness/affiant in support of the alleged statements made in the affidavit if they so wished to refute defendant's affidavit in trial.

BV80...

An affidavit is not a business record. It's a sworn statement that can be used to authenticate business records.

Also, it doesn't have to be made near the time of the event. You're confusing that with the business records exception. The business records exception states that the affidavit must show that the records were made at or near the event. For instance, cc statements would have to be made at or near the time of purchases and payments (the events). The affidavit itself does not have to be made at the time of the event.

In addition, many courts have ruled that an affiant does not have to have first hand knowledge of business records. An affiant must have personal knowledge of facts in an affidavit for summary judgment, but not always for an affidavit to authenticate business records.

ThanK YoU !! That was a really good clarification for Vinny ! .....the affidavit must show that the records were made at or near the event....

...Vinny pleaded that in his objection !They still have not proved the account is a valid account.So they have only premise in using their alleged affiant. As well...affidavit was void of any supporting documents attesting to their credibility nor the affiants assumed responsibilities of their job title in order to testify

Edited by My~Cuz~n~Vinny~

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Hi FSUgirl... I think you were reading the thread between myself and Davephx... My husband received a summons which we answered in a timely manner, and he also entered into an agreement for payment with CACH, and that answer to the summons, along with the drawn up stipulation agreement by CACH was sent in to the court as answer to summons. The judge signed off on it, and the case is now STAYED until the final date of the agreement. Now here comes a NEW letter from CACH stating that they want the money BEFORE the stated final agreed upon date...that the judge signed. So now we are looking for answers as how to make them adhere to the stipulation as agreed, especially since it was them who drew up the agreement. Davephx has been helping...anyone else have anything we could use. I wish we would have fought this from the very get go! I am so angry now... we have done everything in good faith, and CACH is underhanded!

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Oh yeah... they want more money than agreed upon.... from 3000.00 to now 7627.96 which they say that if not paid by now DEC. 28th, instead of the FEB.28th original stipulation agreement says... will include interest, and attorney fees! First of all the agreement was 3000.00 for FULL PAYMENT, and states that they will forego the interest, and attorney fees if paid by FEB. 28th, not the new DEC. 28th date.... they now want.

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Great CACH case answers some prior questions.

From fast read of Supreme Court of Missouri reversing Appeals Court - Ruled against CACHE and argument would be similar for all states on business records. It is a full "en banc" decision (Full court) issued 1/17/2012

Partial payments are not admittance of acceptance of debt even if made to a JDB not OC.

It is a bit confusing since there were multiple JDB but on page 9 Eakins who clamed to be records custodian could not lay a foundation to be admitted since was not with the original creditor (Washington Mutual from Providian) nor first JDB Worldwide. Eakins only worked for the owner of CACH (Square Two Financial) so could not testify as to the trustworthiness of the OC or first JDB.

Case is Cach, LLC vs Jon Askey No SC91780

http://www.courts.mo.gov/file.jsp?id=51954

There is also a great BRIEF AMICI CURIAE OF NATIONAL CONSUMER LAW CENTER IN SUPPORT OF APPELLANT

which outlines why credit card records are untrustworthy at

http://www.courts.mo.gov/SUP/index.nsf/fe8feff4659e0b7b8625699f0079eddf/05b1ab4a57ec67848625792f00750254/$FILE/SC91780_Nat%27l_Consumer_Law_Center_amicus_brief.pdf

While a Mo case, the arguments apply since the business records exemption is the same following the Federal Rules of Evidence in most states.

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If someone could take a look at the affidavit I posted yesterday and let me know what they think and how I should attack it that would be greatly appreciated.

Also, to bring up something I haven't talked about in a while, the "OC" that CACH is claiming they bought my debt from is NOT my OC. My OC was someone else who was bought out by Bank of America/FIA Card Services. I did not mention anything about this at pretrial because I was afraid that it would validate the debt and prove that yes this debt IS mine but it's technically not because they are claiming I owe THEM (CACH). I don't owe CACH since there is no bill of sale from my real OC to Bank of America and therefore there is a broken chain of custody. All the info you guys are giving regarding the affidavit is great. Keep the info coming because I'm still confused (getting conflicting info from different posters) but I'd also like to concentrate on this aspect as well, the broken chain of custody and how/if/when I should bring in this "smoking gun" as I do have an old credit card statement from my old, original creditor.

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If someone could take a look at the affidavit I posted yesterday and let me know what they think and how I should attack it that would be greatly appreciated.

Also, to bring up something I haven't talked about in a while, the "OC" that CACH is claiming they bought my debt from is NOT my OC. My OC was someone else who was bought out by Bank of America/FIA Card Services. I did not mention anything about this at pretrial because I was afraid that it would validate the debt and prove that yes this debt IS mine but it's technically not because they are claiming I owe THEM (CACH). I don't owe CACH since there is no bill of sale from my real OC to Bank of America and therefore there is a broken chain of custody. All the info you guys are giving regarding the affidavit is great. Keep the info coming because I'm still confused (getting conflicting info from different posters) but I'd also like to concentrate on this aspect as well, the broken chain of custody and how/if/when I should bring in this "smoking gun" as I do have an old credit card statement from my old, original creditor.

To be honest, the OC affidavit is pretty compelling.

In reference to the OC before Bank of America, did Cach provide cc statements from BofA? If so, do those statements show any charges and/or payments made by you?

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