FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

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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?

Regarding the affidavit, does that mean I won't be able to fight it?

Yes regarding the statements. Payments only though. They were statements from Bank of america, not my OC. The judge told the attorney that she wanted to see statements with charges on them so we could show how the total amount came to be. I know for a fact they aren't going to be able to get any statements from bank or America with charges though because I never had a card with them and never charged anything with them because before Bank of America obtained my account from my real OC, I was already behind and hadn't made payments for months. When BOA got accounts like mine, they didnt offer credit or a card. They just sent bills to make payments on the debt of what I've read about my OC and the sale to BOA. There isn't much into out there though about my OC which was clout visa through M and I Bank.

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Regarding the affidavit, does that mean I won't be able to fight it?

Yes regarding the statements. Payments only though. They were statements from Bank of america, not my OC. The judge told the attorney that she wanted to see statements with charges on them so we could show how the total amount came to be. I know for a fact they aren't going to be able to get any statements from bank or America with charges though because I never had a card with them and never charged anything with them because before Bank of America obtained my account from my real OC, I was already behind and hadn't made payments for months. When BOA got accounts like mine, they didnt offer credit or a card. They just sent bills to make payments on the debt of what I've read about my OC and the sale to BOA. There isn't much into out there though about my OC which was clout visa through M and I Bank.

In my opinion, you'll either need some good case law to attack the affidavit, or you'll need to question the witness and have some good questions that would either cast doubt on her knowledge or show that she didn't actually review anything (robo-signed).

However, the affidavit doesn't state which records she reviewed. Did she review the cc statements that Cach provided? We don't know. In my opinion, that affidavit cannot serve to authenticate those credit card statements because she didn't mention billing statements. She only only referred to unspecified records. I think they'd have to have another affidavit to try to authenticate the cc statements. If it's from a Cach employee, you can definitely attack that.

The fact that they have statements that show payments could be evidence that BofA got your account from the company with whom the account was originally opened. BUT, in your favor, the judge wants more than that. That's good! If they can't come up with what the judge wants, your case gets much easier.

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In my opinion, you'll either need some good case law to attack the affidavit, or you'll need to question the witness and have some good questions that would either cast doubt on her knowledge or show that she didn't actually review anything (robo-signed).

However, the affidavit doesn't state which records she reviewed. Did she review the cc statements that Cach provided? We don't know. In my opinion, that affidavit cannot serve to authenticate those credit card statements because she didn't mention billing statements. She only only referred to unspecified records. I think they'd have to have another affidavit to try to authenticate the cc statements. If it's from a Cach employee, you can definitely attack that.

The fact that they have statements that show payments could be evidence that BofA got your account from the company with whom the account was originally opened. BUT, in your favor, the judge wants more than that. That's good! If they can't come up with what the judge wants, your case gets much easier.

I know bank of ameirca got my account from my OC. Can't I use the fact that they don't have another bill of sale or affidavit of sale from my OC to bank of ameirca? Or should I wait and see what they come up with since the judge told them she wanted to see statements with charges not payments?

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I know bank of ameirca got my account from my OC. Can't I use the fact that they don't have another bill of sale or affidavit of sale from my OC to bank of ameirca? Or should I wait and see what they come up with since the judge told them she wanted to see statements with charges not payments?

There may not be a bill of sale like the JDB has. Banks acquire other banks all the time. There's always records of mergers and acquisitions. For instance, I believe the FDIC has articles about Chase acquiring Washington Mutual.

Did you deny the account? You can honestly say that you never opened an account with BofA. If you never used the account after BofA acquired it, you can truthfully say that you "never opened an account with BofA and never used a BofA credit card".

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There may not be a bill of sale like the JDB has. Banks acquire other banks all the time. There's always records of mergers and acquisitions. For instance, I believe the FDIC has articles about Chase acquiring Washington Mutual.

Did you deny the account? You can honestly say that you never opened an account with BofA. If you never used the account after BofA acquired it, you can truthfully say that you "never opened an account with BofA and never used a BofA credit card".

Yes, that is exactly what I said the whole time in pretrial. I never "requested/opened" an account with BOA like they claim I did. I never had a card with BOA. I never purchased anything through Bank of America. The only thing me and bank of ameirca ever did together were arrange a couple payments apparently ( I don't remember. There was a time I was trying to pay off all my debt. I had several cards. Could have been around then).

So if the banks merged, can I not use the chain of custody defense? Does it not apply? M and I Bank didn't merge with BOA as far as I know. They just sold their credit card accounts to BOA. They continued to stay in business for other things and then eventually got renamed to BMO Harris Bank.

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Yes, that is exactly what I said the whole time in pretrial. I never "requested/opened" an account with BOA like they claim I did. I never had a card with BOA. I never purchased anything through Bank of America. The only thing me and bank of ameirca ever did together were arrange a couple payments apparently ( I don't remember. There was a time I was trying to pay off all my debt. I had several cards. Could have been around then).

So if the banks merged, can I not use the chain of custody defense? Does it not apply? M and I Bank didn't merge with BOA as far as I know. They just sold their credit card accounts to BOA. They continued to stay in business for other things and then eventually got renamed to BMO Harris Bank.

You could use chain of custody as an argument, but like I tell everyone, you have to support your claim that there's no evidence BofA got your account. The fact that BofA statements have been provided that show you made payments is evidence that you paid BofA.

BUT...here's another angle on the BofA affidavit. The affiant claims to have reviewed records that show you owe a certain amount. She even states the date you opened the account. But again, as I stated before, she's not specific about the records she allegedly viewed.

It would seem to me if BofA has records for the affiant to view, those records should have been provided to Cach. Or Cach should be able to get them.

Now, if Cach can't come up with billing statements from the true OC, that would further cast doubt on the affidavit. Did BofA have cc statements from the previous owner or not? Or were the records reviewed by the affiant merely a computer printout and there's really no other evidence?

But again, if you make statements or conclusions, you have to support them.

But this could all be unnecessary if Cach can't come up with more statements as the judge requested.

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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.

(regarding the affidavit) See if you can file a motion to strike as hearsay. The reason I included the business records exemption to the hearsay rule earlier was because CACH tried to get it admitted as a business record. If the judge does not throw it out then go to trial and make them prove the allegations. They will drop the case before they do that. Contrary to popular opinion, at TRIAL there will have to be someone there from CACH(plaintiff) and the lawyer would need a witness to prove his case, it won't be worth it for them.

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You could try to get the affidavit precluded, but it will be an uphill fight - as it is not precludable through hearsday -since it came from someone who presumably worked for the OC.

Your best bet is to attack it from 2 different ways - that it is not a business record and sending a subpoena for the affiant to appear for cross examination - after all, you cannot cross-examine a piece of paper - and that is what the Plaintiff is hoping for.

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You could try to get the affidavit precluded, but it will be an uphill fight - as it is not precludable through hearsday -since it came from someone who presumably worked for the OC.

Your best bet is to attack it from 2 different ways - that it is not a business record and sending a subpoena for the affiant to appear for cross examination - after all, you cannot cross-examine a piece of paper - and that is what the Plaintiff is hoping for.

I still don't get why it needs to be ME to get the affiant in court. :confused: It's not my affidavit. It's not my evidence. By my understanding of the affidavit, me getting the affiant there makes the affidavit NOT hearsay and why would I want to do that?! Plus, I'll need to pay to get them here which I am not going to do. Can someone try to help me understand why I need to get the affiant there?

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See - you are overanalyzing it - paralysis of analysis.

If you want it precluded, it is YOUR RESPONSIBILITY TO GET THE AFFIANT TO APPEAR. If you do not, more likely than not, the judge will allow it into the record and you will LOSE.

Since the affidavit came from the OC, you cannot get it excluded on the grounds of hearsay. Your only hope is to impeach the witness.

Remember what I told you about strategy - the Plaintiff does not want you to cross examine the witness. The Plaintiff does not want you to subpoena the affiant to appear. To be perfectly honest, they want you to do absolutely nothing, to which the affidavit will be allowed into evidence and you lose.

When I took on CACH, I subpoenaed the affiant. Guess what - she never showed. I moved her affidavit be stricken, because I could not cross examine her, or even ascertain her existence as a living human being. The judge tossed the affidavit. They had no leg to stand on beyond that point and dismissed.

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See - you are overanalyzing it - paralysis of analysis.

If you want it precluded, it is YOUR RESPONSIBILITY TO GET THE AFFIANT TO APPEAR. If you do not, more likely than not, the judge will allow it into the record and you will LOSE.

Since the affidavit came from the OC, you cannot get it excluded on the grounds of hearsay. Your only hope is to impeach the witness.

Remember what I told you about strategy - the Plaintiff does not want you to cross examine the witness. The Plaintiff does not want you to subpoena the affiant to appear. To be perfectly honest, they want you to do absolutely nothing, to which the affidavit will be allowed into evidence and you lose.

When I took on CACH, I subpoenaed the affiant. Guess what - she never showed. I moved her affidavit be stricken, because I could not cross examine her, or even ascertain her existence as a living human being. The judge tossed the affidavit. They had no leg to stand on beyond that point and dismissed.

Why would the affidavit not be hearsay if its the OC's? Maybe if I understood that part it'd be more clear to me. To me, the affidavit is hearsay specifically because its the OC's and not from CACH because CACH is using something that THEY did not produce. It's not THEIR statement. It's someone else's. Isn't that the very definition of hearsay?

© "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.

In my situation, CACH is taking the affidavit and using it as proof they own my debt. It's not their statement. It's the OC's. Doesn't that make it hearsay? If not then THAT is why I'm so confused! lol

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You've got everything backwards.Because the affidavit is from the original creditor - it is not hearsay. If the affidavit was done by someone from CACH - who is looking at someone else's records to swear that it is true...then it becomes hearsay.

This is hearsay:

You, as an employee witness a shooting at my Waffle House. You tell me what happened and I fire you for witnessing the shooting and hire my cousin Coltfan. I tell Coltfan what you witnessed. Coltfan talks to the police 4 or 5 years later and tells them everything you saw that night based on what you told me about what happened. Based on Coltfan's description of events to the police, they arrest someone. Coltfan writes out an affidavit and it's submitted to the court, where the defense attorney does not object. The suspect goes to the chair.

* That is normally what happens with JDBs - the JDB looks at someone else's old records and writes an affidavit stating that their review of the account is factually true, even though they were not present at the time the account was created, or even worked for the original creditor.

Edited by 1stStep

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Not hearsay:

Same shooting at Waffle House. You tell the police everything you saw. They arrest someone. You write an affidavit. The guy goes to the chair.

See the difference?

It's about having knowledge of the events at or near the time they happened.

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Now think about this:

If I am the shooter's defense attorney, I subpoena Coltfan to appear. Coltfan tells me he never witnessed the shooting. Coltfan says he was told what happened by someone else who talked to you the night of the shooting. I file a motion to preclude Coltfan's affidavit and testimony based on hearsay.

Why? Because Coltfan is not the original witness to the shooting. His testimony is not reliable because he is relaying facts third hand about what happened.

This is a textbook example of hearsay (albeit, in a criminal law context). But it's essentially the same thing. Second or third hand information used as evidence to build a case.

Edited by 1stStep

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The rule is a a jurisdiction rule that says every case needs two parties, the plaintiff is the damaged party, if the lawyer is not a party and can't testify how will they conduct the trial? Who will the judge swear in?

Let's just agree to disagree and leave it at that.

I don't know about CA civil courts, but in my state, you're only sworn if you testify. If the plaintiff is not testifying and only his attorney is speaking, even if the plaintiff were there, he would not be sworn in.

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I don't know about CA civil courts, but in my state, you're only sworn if you testify. If the plaintiff is not testifying and only his attorney is speaking, even if the plaintiff were there, he would not be sworn in.

Same in AZ.

Lawyer can argue the case based on the pleadings and whatever documentation has been submitted. But in AZ many cases where if use business record exemption have to have live testimony of someone with personal knowledge. The affidavit can usually be challenged

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I never heard of anything like this. Certainly CAlawyer would have brought this up if it were true, and he never has. Corporations are represented by counsel in court. If you want to question specific employees, you have to subpoena them. Otherwise, name them in the suit personally and call them as a witness.

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The fact that they have statements that show payments could be evidence that BofA got your account from the company with whom the account was originally opened. BUT, in your favor, the judge wants more than that. That's good! If they can't come up with what the judge wants, your case gets much easier.

I would think they would need another bill of sale/affidavit of sale to prove the assignment from my OC to BOA to complete the chain of custody. Just some credit card statements with payments applied with no proof of where those payments came from (no cleared checks, no accounts referenced from where the payments came from. Plus, I have read online through complaint websites that BOA/FIA Card Services are notorious for applying payments without authorization.) Here is some case law regarding the chain of custody requirement that I found that someone else posted previously:

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

In cases that involve a party attempting to recover on an account owed to some other party, "proof of an assignment of the account is essential to a recovery." Walker, 208 S.W.3d at 298. The party must show clearly through a valid assignment it is the rightful owner of the account at issue. C.W. Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 140 (Mo. App. 2004). In cases that involve multiple assignments, there must be proof of the validity of assignment every time the rights to collect the debt are transferred. See Mitchell v. St. Louis Argus Pub. Co., 459 S.W.2d 1, 5-6 (Mo. App. 1970). In other words, every link in the chain between the party to which the debt was originally owed and the party trying to collect the debt must be proven by competent evidence in order to demonstrate standing. Walker, 208 S.W.3d at 298.

If I have no hope of arguing the affidavit then maybe I should just concentrate on the chain of custody issue? That seems a little safer no? Then again, like you said, the judge requested more statements. Maybe I should just wait and see what happens with that. When is it too late to bring up that old statement I have to prove the chain of custody is broken? Can I do it AT trial and totally blind side them?

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They don't need a bill of sale - they have the affidavit from the original creditor - it's covered!

Re-read what I posted about hearsay.

The affidavit from the original creditor is NOT HEARSAY. The sooner you understand this, the more likely you are to beat them.

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They don't need a bill of sale - they have the affidavit from the original creditor - it's covered!

Re-read what I posted about hearsay.

The affidavit from the original creditor is NOT HEARSAY. The sooner you understand this, the more likely you are to beat them.

The affidavit ISN'T from my OC!! They (CACH) is calling my OC Bank of America. My OC is NOT BANK OF AMERICA! My REAL OC is Clout Visa through M and I Bank! CACH Has no idea about this because Bank of America shows my account was opened in 2002 which it was, but it wasn't opened with Bank of America! It was opened with Clout Visa.

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I will bet that M&I sold their credit card portfolio to BofA - check and see.

What you will need to do is get a hold of any records to see if and when the sale took place.

Edited by 1stStep

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They don't need a bill of sale - they have the affidavit from the original creditor - it's covered!

Re-read what I posted about hearsay.

The affidavit from the original creditor is NOT HEARSAY. The sooner you understand this, the more likely you are to beat them.

An affidavit from the OC still must have documentary evidence to back up statements though, right? They can't just say something without a foundation stating where they obtained the information.

Saying "the account was sold" is not sufficient. That statement is conclusory without showing what document they inspected and verified to make that claim.

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I will bet that M&I sold their credit card portfolio to BofA - check and see.

They did. That is why I have been questioning the chain of custody and calling the affidavit hearsay this whole time! Bank of America is just like CACH. They bought my debt from someone else. THEY need their OWN affidavit/bill of sale. Them commenting on information about my account from 2002 is hearsay because THEY did not open my account. M and I Bank did.

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I will bet that M&I sold their credit card portfolio to BofA - check and see.

What you will need to do is get a hold of any records to see if and when the sale took place.

I have an old statement from my original creditor from 2006. That alone shows I did not "open" my account with BOA. If I did, that statement would have BOA on it. I also looked around online and read about the sale. Can I reference websites or print stuff out from websites to back up my claim?

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