FSUgirl07

PRETRIAL FOR CACH LLC!! PLEASE HELP!!

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In the case of an OC affidavit that is not a failure and the plaintiff has the documents mentioned in the affidavit, some might subpoena an affiant in order to cast doubt on whether or not the affiant actually reviewed the records. In other words, it would be an attempt to prove robosigning.

I can't tell if that's a suggestion or a warning.

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That is because they are under the impression for whatever reason, I have no idea why, that I OPENED the account with BANK OF AMERICA! Which I did not! I have been wondering if I should bring this up or not. If I bring it up and say hey, I have this old statement and I DID open a card with one of the account numbers your are referencing but it was NOT with Bank of America. It was with Clout Visa, I am admitting to have had SOME kind of card and therefore debt. Not sure if I want to do this or not because then I need to argue the chain of custody which is a whole other bag of worms! I'm not sure if the banks changing hands (Clout to M and I Bank to MBNA to BOA to FIA etc) would require to follow the the same chain of custody rules as would a JDB buying a debt from a bank.

Cach could be under the impression that you opened the account with BofA because BofA never told them otherwise.

You have to weigh the pros and cons of bringing up the creditor with whom you opened the account. By bringing it up, you might possibly cast doubt on the veracity of the statements in the affidavit.

Or, the judge could say that it doesn't matter because payments were made to BofA.

I noticed this in the affidavit:

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

What is "originally known as"?

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Ok...unless an attorney wants to question the affiant in court, that person is not going to be there. Therefore, unless your rules state otherwise, if YOU want the affiant to be there in order for you to question him or her, you have to issue a subpoena.

Below is from my state's Rules of Civil Procedure:

RULE 45

SUBPOENA

(2) A subpoena commanding attendance at a trial or hearing shall issue from the court for the county in which the hearing or trial is to be held.

I do agree with you guys a lot. However I always tried to push the envelope and try a "far stretch" so to speak.The judge determines what will be allowed and it seems she has a good judge who is not prejudiced against her. I would argue that: they are the one bringing the case, they should produce the witness if they want to back up the affidavit( after all, if they had the original document they would not need the affidavit) and if it had they had the original document and the affidavit THEN it would make more sense that the judge MIGHT tell the defendant to subpoena (I doubt it though) I would also argue that it is overly burdensome and expensive for you to produce their witness especially since they are bringing the case and don't have the necessary documents but still want to proceed with the lawsuit and with no witness, you should not have to prove you don't owe, the plaintiff has to prove you owe & how much. And as I told my judge the affidavit (if it is to be believed and is not objected to) only states allegations of the OC, without producing a copy of the original document it is trying to back up BUT I never admitted and still deny ever having entered into the agreement with the OC in the first place, its the plaintiff's burden to produce the witness AND to prove up THEIR allegations, If they cannot or will not do so; then they should dismiss their case or be sanctioned for bringing a frivolous lawsuit.

Does that subpoena rule you're showing say the DEFENDANT has to be the one to subpoena?

I read a few books written by judges on "persuading judges" and found it to be very helpful, it might help others as well.

Edited by Anon Amos

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I would argue that: they are the one bringing the case, they should produce the witness if they want to back up the affidavit

I agree, IF they need the affiant to back up the affidavit. If the affidavit is sufficient on its own, why would they bring the affiant there for you to cross-examine?

The key is "How strong is their affidavit?". I think we would all agree that they are generally very weak BUT if the plaintiff feels it can stand on its own, they will not bring the affiant to testify. Why should they? The affiant has stated under oath everything they needed to state.

Now, if you want to cross examine them to discredit them, you would need to subpoena them to do so.

It's not a question of rules, it's a question of which side wants the affiant at trial.

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Cach could be under the impression that you opened the account with BofA because BofA never told them otherwise.

You have to weigh the pros and cons of bringing up the creditor with whom you opened the account. By bringing it up, you might possibly cast doubt on the veracity of the statements in the affidavit.

Or, the judge could say that it doesn't matter because payments were made to BofA.

I noticed this in the affidavit:

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

What is "originally known as"?

It's the original account number from my REAL OC.

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It's the original account number from my REAL OC.

I think BV80 was suggesting that the statement made in the affidavit was vague.

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I do agree with you guys a lot. However I always tried to push the envelope and try a "far stretch" so to speak.The judge determines what will be allowed and it seems she has a good judge who is not prejudiced against her. I would argue that: they are the one bringing the case, they should produce the witness if they want to back up the affidavit( after all, if they had the original document they would not need the affidavit) and if it had they had the original document and the affidavit THEN it would make more sense that the judge MIGHT tell the defendant to subpoena (I doubt it though) I would also argue that it is overly burdensome and expensive for you to produce their witness especially since they are bringing the case and don't have the necessary documents but still want to proceed with the lawsuit and with no witness, you should not have to prove you don't owe, the plaintiff has to prove you owe & how much. And as I told my judge the affidavit (if it is to be believed and is not objected to) only states allegations of the OC, without producing a copy of the original document it is trying to back up BUT I never admitted and still deny ever having entered into the agreement with the OC in the first place, its the plaintiff's burden to produce the witness AND to prove up THEIR allegations, If they cannot or will not do so; then they should dismiss their case or be sanctioned for bringing a frivolous lawsuit.

I read a few books written by judges on "persuading judges" and found it to be very helpful, it might help others as well.

I would argue that: they are the one bringing the case, they should produce the witness if they want to back up the affidavit( after all, if they had the original document they would not need the affidavit) and if it had they had the original document and the affidavit

No, they don't have to have the affiant there unless they want to put the affiant on the stand. As I said before, affidavits are made under oath and assumed to be truthful. YOU are the one who has to cast doubt on it. If the judge doesn't agree with your objection, he can allow the affidavit to serve whatever purpose it was meant to serve without the affiant being there.

If you were to offer an affidavit from another person to support your case, you would not have to have the affiant in the courtroom. It would become the job of the opposing party to either cast doubt on your affidavit or to get the person in court and question them.

if it had they had the original document and the affidavit THEN it would make more sense that the judge MIGHT tell the defendant to subpoena (I doubt it though)

You're right. The judge may not tell the defendant to subpoena the affiant. If you can't show why the affidavit is insufficient, unless the judge finds something wrong with it himself, he will agree with the plaintiff that the affidavit is sufficient.

I would also argue that it is overly burdensome and expensive for you to produce their witness especially since they are bringing the case and don't have the necessary documents but still want to proceed with the lawsuit and with no witness, you should not have to prove you don't owe, the plaintiff has to prove you owe & how much. And as I told my judge the affidavit (if it is to be believed and is not objected to) only states allegations of the OC, without producing a copy of the original document it is trying to back up BUT I never admitted and still deny ever having entered into the agreement with the OC in the first place, its the plaintiff's burden to produce the witness AND to prove up THEIR allegations, If they cannot or will not do so; then they should dismiss their case or be sanctioned for bringing a frivolous lawsuit.

Of course they have to prove their allegations. If they have no documentation, you're going to win. You're basing your arguments on no documentation. However, most JDBs do provide some records. That's when it becomes your job to show how those records are insufficient or inadmissible or both.

You're also basing your argument on "a copy of the original document it is trying to back up". I assume you mean the cc agreement or a signed contract? Most courts have ruled that a signed contract is not necessary. Charges and payments on billing statements prove an implied contract. It's going to depend on how the courts in one's state have ruled.

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I think BV80 was suggesting that the statement made in the affidavit was vague.

Oh ok...I didn't even catch that. What else could it be?

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Oh ok...I didn't even catch that. What else could it be?

FlyerFan is correct. The statement was vague.

However, it does show that there's some record that the account originally had another account number. You need to find out if that's the original account number.

We don't know what Cach might or might not know about BofA's purchase of the original bank's accounts. You could possibly bring up that Cach has provided no evidence of that account number. Why is it there? What is it?

Remember, the judge wants evidence of charges to the account. If they can't provide it, it sounds like he/she is on your side.

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FlyerFan is correct. The statement was vague.

However, it does show that there's some record that the account originally had another account number. You need to find out if that's the original account number.

We don't know what Cach might or might not know about BofA's purchase of the original bank's accounts. You could possibly bring up that Cach has provided no evidence of that account number. Why is it there? What is it?

Remember, the judge wants evidence of charges to the account. If they can't provide it, it sounds like he/she is on your side.

If I remember right (I don't have the statements in front of me) the account number on the BOA statements was the original account number. Not sure. I'll have to double check. I don't know where all the other account numbers came from though. If that's the case and it's the original acc # on the BOA statements, I wonder what that means? How can my "original" account number be on the BOA statements when I never opened my account with them? It was with someone else (several someone elses!) prior.

Edited by FSUgirl07

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Regarding CACH affidavits & notaries,

I googled the name of the notary on the affidavit of sale I got from CACH that and the name came up on a cach document where now the name of the notary was an employee of CACH and the custodian of records.

So the notary works for CACH, (I don't know if that is legal or not) but it is untrustworthy and might be used an an additional objection to an affidavit. Google any names you receive regarding jdb's, never know what you may find.

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So the notary works for CACH, (I don't know if that is legal or not) but it is untrustworthy and might be used an an additional objection to an affidavit.

It's not illegal nor is it technically untrustworthy. All a notary does is verify that the person signing the affidavit is the same person who made the statements in the document. It doesn't matter if the notary is employed by the same company as the affiant.

Whether or not it's untrustworthy or even illegal would depend on what you could prove. If the notary laws of that state say that the affiant must be in the presence of the notary when the affidavit is signed, but you show that wasn't the case, the affidavit could be invalid, and the notary could lose his or her license. But that's hard to prove.

However, it is worth reading the notary laws of the state where the affidavit was taken to make sure it complies with the laws. Also, you're right about never knowing what you might find if you google names. It's always a good idea to try to check out any name on an affidavit or other document.

Edited by BV80

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Regarding CACH affidavits & notaries,

I googled the name of the notary on the affidavit of sale I got from CACH that and the name came up on a cach document where now the name of the notary was an employee of CACH and the custodian of records.

So the notary works for CACH, (I don't know if that is legal or not) but it is untrustworthy and might be used an an additional objection to an affidavit. Google any names you receive regarding jdb's, never know what you may find.

Yes I was already aware of this and questioned it as well. Google is a wonderful thing :)

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If the signatures of the notary and the affiant happen to overlap in any way, that's another indication that the document could have been notarized in advance......depends whose signature is on top. You'd need the original document and a forensic document examiner, but if you can establish this, big trouble for them.

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If the signatures of the notary and the affiant happen to overlap in any way, that's another indication that the document could have been notarized in advance......depends whose signature is on top. You'd need the original document and a forensic document examiner, but if you can establish this, big trouble for them.

That's a good point, I didn't even think of that. Here's a point maybe we all missed (myself included): At the time we receive the affidavit(2-3 months before trial) there's no need to file a motion to strike because at this time the jdb is not introducing it as evidence, and at the very least we are going to request a witness & exhibit list (and file a trial brief) 30 days before trial. We will see if it makes the list.

Not only that but it's not so much as "does it meet the business records exception to hearsay" but is it even admissible as a "business record"?

And if it does find it's way to trial and the jdb is not there or the OC and only the lawyer is there, we may be able to motion the court to strike it as hearsay as well as other grounds.

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That's a good point, I didn't even think of that. Here's a point maybe we all missed (myself included): At the time we receive the affidavit(2-3 months before trial) there's no need to file a motion to strike because at this time the jdb is not introducing it as evidence, and at the very least we are going to request a witness & exhibit list (and file a trial brief) 30 days before trial. We will see if it makes the list.

Not only that but it's not so much as "does it meet the business records exception to hearsay" but is it even admissible as a "business record"?

And if it does find it's way to trial and the jdb is not there or the OC and only the lawyer is there, we may be able to motion the court to strike it as hearsay as well as other grounds.

I'm not picking at you. Really I'm not.

An affidavit is not a business record. A business record is a record that is made on a regular basis for the business. That would be an invoice, bill, a time sheet, etc. An affidavit does not fit that description.

As I stated before, an affidavit is an out-of-court statement made to prove the truthfulness of a matter. You cannot use the business records exemption for an affidavit because it doesn't apply.

The business record exemption applies to the business records...not the affidavit used to attempt to authenticate them. You have to show how the affidavit is insufficient to authenticate those records. If you can do that, then the business records (billing statements) haven't been authenticated as required by the rule of evidence.

Edited by BV80

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I'm not picking at you. Really I'm not.

An affidavit is not a business record. A business record is a record that is made on a regular basis for the business. That would be an invoice, bill, a time sheet, etc. An affidavit does not fit that description.

As I stated before, an affidavit is an out-of-court statement made to prove the truthfulness of a matter. You cannot use the business records exemption for an affidavit because it doesn't apply.

The business record exemption applies to the business records...not the affidavit used to attempt to authenticate them. You have to show how the affidavit is insufficient to authenticate those records. If you can do that, then the business records (billing statements) haven't been authenticated as required by the rule of evidence.

I know your not. I agree with you that it's not a business record and that is my point. Most cases (at least mine was) we get the affidavit and no records (unless we fight in discovery)so it's not a business record then it's just a worthless piece of paper. When we get the declaration in lieu of live testimony from them 30 days before trial that is the paper to be concerned about, and to object, answer, strike, subpoena, and if necessary fight it in trial.

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I know your not. I agree with you that it's not a business record and that is my point. Most cases (at least mine was) we get the affidavit and no records (unless we fight in discovery)so it's not a business record then it's just a worthless piece of paper. When we get the declaration in lieu of live testimony from them 30 days before trial that is the paper to be concerned about, and to object, answer, strike, subpoena, and if necessary fight it in trial.

Now we're finally agreeing. Just be sure to support your objections. :)

I stated that I wasn't picking on you because sometimes I can come across as critical when I really don't mean to be.

But let me clarify. You said "...so it's not a business record then it's just a worthless piece of paper." It's not a business record period...under any circumstance.

What you're fighting is whether or not it's sufficient to accomplish what it's supposed to accomplish. If it's purpose is to authenticate records, does it do so? If the purpose is to support summary judgment, does it do so? The sufficiency of the affidavit determines whether or not it's a worthless piece of paper.

In my opinion, any affidavit presented by an OC or JDB is worthless, but so far, there's no court precedent that states my opinion is of any value.

Also, an affidavit can be accepted in part. In other words, let's say it mentions billing statements, but it doesn't mention the bill of sale. Depending upon the assertions made in the affidavit, the court can decide that it authenticated the billing statements but did not authenticate the bill of sale.

Edited by BV80

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Now we're finally agreeing. Just be sure to support your objections. :)

I stated that I wasn't picking on you because sometimes I can come across as critical when I really don't mean to be.

But let me clarify. You said "...so it's not a business record then it's just a worthless piece of paper." It's not a business record period...under any circumstance.

What you're fighting is whether or not it's sufficient to accomplish what it's supposed to accomplish. If it's purpose is to authenticate records, does it do so? If the purpose is to support summary judgment, does it do so? The sufficiency of the affidavit determines whether or not it's a worthless piece of paper.

In my opinion, any affidavit presented by an OC or JDB is worthless, but so far, there's no court precedent that states my opinion is of any value.

Also, an affidavit can be accepted in part. In other words, let's say it mentions billing statements, but it doesn't mention the bill of sale. Depending upon the assertions made in the affidavit, the court can decide that it authenticated the billing statements but did not authenticate the bill of sale.

Can you take a look at my affidavit (posted previously) and see what it's supposed to be authenticating? It doen't really mention anything as far as I can tell. Not specifically. I think it's just being used to prove the sale of my account from BOA/FIA Card services to CACH. If that's the case, the bill of sale is what it's supposed to authenticate I would think and it was not provided.

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Now we're finally agreeing. Just be sure to support your objections. :)

I stated that I wasn't picking on you because sometimes I can come across as critical when I really don't mean to be.

But let me clarify. You said "...so it's not a business record then it's just a worthless piece of paper." It's not a business record period...under any circumstance.

What you're fighting is whether or not it's sufficient to accomplish what it's supposed to accomplish. If it's purpose is to authenticate records, does it do so? If the purpose is to support summary judgment, does it do so? The sufficiency of the affidavit determines whether or not it's a worthless piece of paper.

In my opinion, any affidavit presented by an OC or JDB is worthless, but so far, there's no court precedent that states my opinion is of any value.

Also, an affidavit can be accepted in part. In other words, let's say it mentions billing statements, but it doesn't mention the bill of sale. Depending upon the assertions made in the affidavit, the court can decide that it authenticated the billing statements but did not authenticate the bill of sale.

I think we have been agreeing on about 95%, I should present my argument better, I kind of rush thru it, but on the last 5% I will "stretch: the limits of a legal theory or "push the envelope" if you will, let the judge decide. As long as it doesn't damage the defense, it keeps the jdb working the case and it may drive them away.

"In my opinion any affidavit by the jdb or OC is worthless"

That's beautiful! It will make a nice motto

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BV80...I couldn't reply to your PM...your mailbox is full! You were asking me to send you a copy of the affidavit. I had to type it out because I couldn't figure out how to post a copy of the actual affidavit. Couldn't get the size right. It's on page 6 of this thread.

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Can you take a look at my affidavit (posted previously) and see what it's supposed to be authenticating? It doesn't really mention anything as far as I can tell. Not specifically. I think it's just being used to prove the sale of my account from BOA/FIA Card services to CACH. If that's the case, the bill of sale is what it's supposed to authenticate I would think and it was not provided.

It is being used to try to convince you to settle. It only proves that they don't have the document they need, it even says they don't have the document anymore. And as far as CACH goes "if you have seen one you have seen them all". Mine looks just like yours, even signed by the same person, only the numbers have changed. And they are not trying to introduce it as evidence now so it is really nothing. They use it to intimidate you and try to get you to settle, as they now know you are fighting. It is WORTHLESS unless you give it "weight" and submit to it.

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To be honest, the OC affidavit is pretty compelling.

Really?... It looks just like mine and it got "poured out of court" and with NO SUBPOENA!

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To be honest, the OC affidavit is pretty compelling.

Really?... It looks just like mine and it got "poured out of court" and with NO SUBPOENA!

I said it looked compelling. I didn't say it wasn't beatable. Also, you're in CA. She's in FL. She has to find out what her courts consider to be sufficient affidavits.

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I read the affidavit, and the reason it's compelling is because it references your name, account number, the date the account was opened, charged off, and sold.

However, your judge wants proof of charges to the account. In my opinion, that's what your judge needs for Cach to prove an account stated claim. If they can't come up with those statements, the judge is on your side.

The affiant states that the account was charged off on 9/30/2010 and it was sold to Cach on 10/13/2010. What are the dates on the billing statements? Does one of them indicate the charge off?

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