bmc100

For those being sued by CACH LLC - pay close attention

Recommended Posts

FOr every poster being sued by CACH LLC, please read this.

I am helping another poster on this board oppose an MSJ here in Michigan. CACH supplied their attorney with an affidavit supposedly to authenticate the bill of sale. The affidavit made by a person named Tom Vigil is not an employee of CACH LLC, he is an employee of a company called Squared Two FInancial in Colorado, employed as an affidavit spe******t.

Further, look at all of the documentation. In this posters case, CACH supplied a credit application with a forged signature on it, though Tom Vigil states that the records supplied in this case are true and accurate copies of the originals and stored over the course of regularly conducted business acitvity.

In other words, do your homework and you will find evidence of fraud upon the court. If you go in front of a crooked judge and you point out multiple flaws and defects in the Plaintiff's case, you can appeal where the court has to follow the law.

Share this post


Link to post
Share on other sites
FOr every poster being sued by CACH LLC, please read this.

I am helping another poster on this board oppose an MSJ here in Michigan. CACH supplied their attorney with an affidavit supposedly to authenticate the bill of sale. The affidavit made by a person named Tom Vigil is not an employee of CACH LLC, he is an employee of a company called Squared Two FInancial in Colorado, employed as an affidavit spe******t.

Further, look at all of the documentation. In this posters case, CACH supplied a credit application with a forged signature on it, though Tom Vigil states that the records supplied in this case are true and accurate copies of the originals and stored over the course of regularly conducted business acitvity.

In other words, do your homework and you will find evidence of fraud upon the court. If you go in front of a crooked judge and you point out multiple flaws and defects in the Plaintiff's case, you can appeal where the court has to follow the law.

If he shows up at trial, I would really appreciate knowing what he looks like. Someone else may have pretented to be him in another matter I have.

Share this post


Link to post
Share on other sites

Here's his LinkedIn profile:

Thomas Vigil | LinkedIn

Based on his grad date, at a minimum, he would be in his early 50s...

No photo though... I will need to work my magic...

Share this post


Link to post
Share on other sites

Yup. The question, however, is what does the guy look like that shows up and says he is Tom Vigil.

Share this post


Link to post
Share on other sites
FOr every poster being sued by CACH LLC, please read this.

I am helping another poster on this board oppose an MSJ here in Michigan. CACH supplied their attorney with an affidavit supposedly to authenticate the bill of sale. The affidavit made by a person named Tom Vigil is not an employee of CACH LLC, he is an employee of a company called Squared Two FInancial in Colorado, employed as an affidavit spe******t.

Further, look at all of the documentation. In this posters case, CACH supplied a credit application with a forged signature on it, though Tom Vigil states that the records supplied in this case are true and accurate copies of the originals and stored over the course of regularly conducted business acitvity.

In other words, do your homework and you will find evidence of fraud upon the court. If you go in front of a crooked judge and you point out multiple flaws and defects in the Plaintiff's case, you can appeal where the court has to follow the law.

I received a declaration in lieu of live testimony from Tom Vigil where he goes on record as the custodian of records for CACH. Square Two owns CACH I believe. Can't find any photos or actual proof he even exists.

Share this post


Link to post
Share on other sites

Pay close attention to his affidavit and all the other docs that they provided.

In the case I am posting about, Tom Vigil was stating that this was a credit card account and he is knowledgable with how credit cards work. The poster I am helping did not have a credit card, but a personal line of credit.

HE also states a couple paragraphs that show he has no personal knowledge of the account or the record keeping processes of the Plaintiff.

“The records are kept in the ordinary course of regularly conducted business activity and are made by either a person with personal knowledge of the information contained herein or base on the information conveyed by a person having personal knowledge of the person contained herein”. “I know from my experience in reviewing such records and from common knowledge of how credit cards work”.

“The business records furnished to Plaintiff show that the Defendant opened a credit card account with HSBC Consumer Lending”

“The records of both eletronic and hard copy that is generated, stored and maintained in accordance with generally accepted standards in the retail and financial industries by individuals that possess knowledge and training necessary to ensure the accuracy and reliability of the records”.

He also attested to the wrong account number.

How can he attest that all credits and payments were applied properly by Household FInancial or HSBC, when he was never an employee of either company.

In high insight, There is a 99.9% Tom will not show up in MIchigan. In fact, I have never heard of a JDB employee outside of Asset Acceptance show up in a court room in MI.

Share this post


Link to post
Share on other sites

There was also another affidavit attached to the complaint by a Peter Huber.

The affidavit has almost identical wording, but instead of stating it is a credit card, he states it is a consumer loan account.

There were no exhibits attached to the complaint, though he states they are true and accurate copies.

The only thing was that this affidavit was made more the 9 months before the complaint was filed and under Michigan Law, it cannot be used as prima facie evidence.

I addressed this affidavit in the opposition backed with caselaw.

Edited by bmc100

Share this post


Link to post
Share on other sites

DEFENDANT’S BRIEF IN OPPOSITION

TO PLAINTIFF’S MOTION

FOR SUMMARY DISPOSITION

ARGUMENT

1. Plaintiff cannot carry its burden to show it is entitled to summary disposition.

Plaintiff moves for summary disposition pursuant to MCR 2.116 © (9) and (10). “In presenting a motion for summary judgment, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions or other documentary evidence.” Smith v Globe Life Insurance Co. 460 Mich 446, 455; 597 NW2d 28 (1999). Only after the moving party has carried its burden does the burden shift to the opposing party to show that a genuine issue of disputed fact exists. Id. “The moving party must specifically identify the matters that it believes have no disputed factual issues.” St. Clair Medical, P C v Borgiel, 270 Mich App 260, 264; 715 NW2d 914 (2006). Cf. MCR 2.116 (G)(4).

2. Plaintiff fails to support its motion with any admissible evidence.

Materials submitted in support of, or in opposition to a motion for summary disposition under MCR 2.116© (10) must be admissible as evidence.

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule © (1) – (7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion. MCR 2.116 (G)(6)

Cf. Maiden v Rozwood, 461 Mich 109, 124-25; 597 NW 2d 817 (1999). Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion. MCR 2.119(B)(1).

None of the documents attached to plaintiff’s motion are authenticated, so as to be admissible as evidence, and therefore do not support plaintiff’s motion. All the documents submitted by plaintiff are inadmissible hearsay and not admissible evidence. Under MRE 803(7), a record of regularly conducted activity is excepted from the hearsay rule, but the business practice under which the record was produced must be “shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification...” Here, the documents are not supported by the testimony of the custodian or other competent witness nor are they accompanied by a written declaration under oath by the custodian or other qualified person as provided in MRE 902(11).

3. Plaintiff’s failure to produce the contract on which its claim is based is fatal to its claims.

MCR 2.112(F) requires that, when a claim is based on a written instrument, the instrument must be attached to the pleading.

(1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

(a) A matter of public record in the county in which the action is commenced and its location in the record is stated in the pleadings;

(B) In the possession of the adverse party and the pleading so states;

© In accessible to the pleader at the pleading so states, giving the reason; or

(d) Of a nature that attaching the instrument would be unnecessary or impractical and the pleadings so states, giving the reason.

Plaintiff did not attach a copy of any contract to its complaint.

Plaintiff’s failure to produce the contract on which its claim is based, as required by MCR 2.113(F), “warrants dismissal of the contract claim without prejudice.” English Gardens Condominium, LLC v Howell Twp, 273 Mich App 69, 81; 729 NW2d 242, 250 (2006). Accord: Woodward Nursing Home v Medical Arts, 2006 Mich App LEXIS 207 (Mich Ct of App 2006), Plaintiff’s failure to attach a copy of the real contract to its complaint is fatal to its claim.

In addition to the requirements of the court rule, the contract is necessary to support plaintiff’s claims. Without the real contract, plaintiff cannot demonstrate that defendant agreed to pay any particular rate of interest, late charges, or other fees, and it appears that much of the amount plaintiff claims is comprised of late fees and interest.

4. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed.

The Truth in Lending Act requires that a card issuer show that the use of the credit card was authorized. “In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the used was authorized...” 15 USC § 1643(B). In this case, plaintiff fails to carry that burden. Even if the purported statements attached to plaintiff’s motion as exhibit #1 were admissible, which they are not, those statements do not show that anyone made or authorized any charges at all on the credit card. The only transactions shown on those statements are interests and fees.

5. Plaintiff does not show a common law account stated.

Even if the documents submitted by Plaintiff were admissible, Plaintiff would still not be entitled to summary disposition based on its theory of an account stated. To probe an account stated, a party must show that the other party agreed he owes the amount claimed. “An account stated means a balance struck between the parties on a settlement.” Watkins v Ford (syllabus) 69 Mich 357 quoted in Kaunitz v Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955). Kaunitz is similar to the present case. In that case, the plaintiff sent a statement of account to the defendant indicating a balance due of $29,427.10 and defendant replied with a letter in which it stated “we hereby acknowledge our indebtedness to you...” Nevertheless, the court held that the trial court erred in granting plaintiff summary judgment. Defendant’s acknowledgement of an indebtedness was not sufficient to show that defendant admitted it owed plaintiff the amount claimed.

“The conversion of an open account into an account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account.” White v. Campbell, 25 Mich 463, 468.

“An account stated means a balance struck between the parties on a settlement.”

Watkins v. Ford (syllabus), 69 Mich 357.

To the same effect, see Kusterer Brewing Co. v. Friar, 99 Mich 190; Thomasma v. Carpenter, 175 Mich 428 (45 LRA NS 543, Ann Cas 1915A, 690). Id.

Merely sending a bill does not create an account stated. There must be some acknowledgment by the party billed that he admits owing the debt and that he further admits that the amount claimed is accurate. Unlike Kaunitz, the present Plaintiff does not show that Defendant ever acknowledged he owes the Plaintiff anything and there has been no acknowledgment by defendant that he owes the plaintiff the amount claimed.

Share this post


Link to post
Share on other sites

6. Plaintiff fails to show that it is the owner of the debt alleged.

An essential element of Plaintiff’s action is proof that it is owner of the debt claimed. The Michigan Court of Appeals recently reaffirmed the necessity of proving the assignment, and announced requirements for doing so, in Brown Bark, II LP v Bay Area Floorcovering & Design, 2011 Mich App LEXIS 1003, (May 31, 2011). The court held that the document submitted to prove the assignment of the debt was insufficient for several reasons, including the fact that the plaintiff did not produce the entire assignment agreement.

while the allonge was presented as evidence at trial, it was not attached to the note; nor did plaintiff introduce the agreement referenced in the allonge as evidence, citing privilege as its reason for failing to do so. Because the trial court did not have an opportunity to review the referenced agreement, and consequently could not determine what limitations might exist, the trier of fact could not reasonably conclude the half-page document constituted documentation of National City Bank’s intent to transfer all of its rights related to the defaulted loan without any power of revocation.

In the present case, Plaintiff has clearly not produced the entire agreement by which it allegedly acquired the debt, and there is no evidence that any amount involving the Defendant was included in whatever accounts were identified in the “Assignment and Bill of Sale” referred to in Exhibit 3.

7. Plaintiff fails entirely to show the amount of damages.

The amount that Plaintiff claims as damages is not supported by competent evidence. Attached to Plaintiff’s motion is an affidavit of Anita L. Bray who states that she is an authorized employee of Portfolio Recovery, the bad debt buyer. Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion. MCR 2.119(B)(1). If the affidavit refers to any papers, sworn or certified copies of those papers must be attached. MCR 2.116(B)(2). Plaintiff’s affidavit signer does not attach, or even identify the data on which her testimony is based and, as an employee of the assignee rather than the original creditor, lacks the requisite personal knowledge to support the plaintiff’s claim.

Courts have frequently held that an employee of the assignee of a debt does not have the personal knowledge necessary to testify about events or documents pertaining to the original creditor. See: Martinez v Midland Credit Management, 250 SW2d 481 (Tex Ct of Ap. 2008), Ex 2; Asset Acceptance v Lodge, 325 SW3d 525, (MO App 2010), Ex 3; CACH v Askew, 2011 Mo App LEXIS 429 (Mo App 2011) Ex. 4.

CONCLUSION

For the reasons stated above, Defendant submits that Plaintiff’s motion for summary disposition should be denied.

Share this post


Link to post
Share on other sites

I was just served by Cache via US Mail. So I'm gearing up to deal with this and need to know what I'm up against. Following this thread for sure. I wondering if this guy actually shows up in court are you allowed to card him? Have the bailiff ask for his ID although we all now that fake ID's can be acquired.

Share this post


Link to post
Share on other sites
Yup. The question, however, is what does the guy look like that shows up and says he is Tom Vigil.

Calawyer, are you not able to have a wittiness show a photo ID and proof of who they are before you depose or question them?

Share this post


Link to post
Share on other sites

I suppose if the witness isn't actually present you can not do that, but this sounds so illegal and it seems like it might be easy to bust them on it.

Share this post


Link to post
Share on other sites
Calawyer, are you not able to have a wittiness show a photo ID and proof of who they are before you depose or question them?

You can ask anything. If there is an objection, the Court might ask you why you are doing so. If not, the Court would probably say nothing.

It is not something I have ever done before or seen anyone do, but that doesn't mean it is improper.

Share this post


Link to post
Share on other sites

All right... so we need one of CO members to snap pics of all 50 year old men at Square Two's address...

4340 South Monaco Street

Denver, CO 80237

Share this post


Link to post
Share on other sites
All right... so we need one of CO members to snap pics of all 50 year old men at Square Two's address...

4340 South Monaco Street

Denver, CO 80237

If somebody wants to donate a plane ticket for me. I am a photographer and have a pretty good long lens and great gear. I used to shoot snowboarding! I'll do it! Any frequent flyer miles out there! ;):mrgreen:

  • Like 1

Share this post


Link to post
Share on other sites

Oh wait a minute I have an old friend in Denver I wonder if she wouldn't mind going over there. She's crazy enough that she could even go over there like she has a singing telegram or something silly!

Share this post


Link to post
Share on other sites

All right... so we need one of CO members to snap pics of all 50 year old men at Square Two's address...

4340 South Monaco Street

Denver, CO 80237

Or just the guy that shows up at trial and says,  "My name is Tom Vigil".

Share this post


Link to post
Share on other sites

If somebody gets a picture, we need some one with access to face recognition for FBI (DHS). Since these cases cross state lines it is their jurisdiction I believe. Might get FBI office in LA or Detroit to check it out. Very possible the guy's got some kind of record. They'd probably love it.

 

Just say he might have something to do with Petraues, they'd jump all over that LOL

 

Another is the affidavit was sent across the mail or telephone lines.......is that not mail and/or wire fraud or whatever also?

Share this post


Link to post
Share on other sites

lets expound more on The use of the US mail and Fax machines to commit fraud and perjury across state lines on federally regulated forms of communication. Could this be a class action against robosignors. I think if you make these robosigners liable they are gonna squeal and show that a bunch of people are signing his name.

 

@Calawyer you could also have him submit writing exemplars in court, that has been done before. also ask him if he drove to the courthouse, if he answers yes then ask to see his Drivers License.

 

I really want to see if any action can be taken against these false affidavits, I believe that the transmittal via fax or mail will constitute wire or mail fraud. and interstate perjury in violation of the uniform acceptance of affidavits act. Lets roll up some of the debt collection soldiers and the rest will refuse to sign their name.

 

@ JDB employees ghosting the board. Any former or current employees who have robosigned wishing to get immunity and maybe some whistleblower money should contact their local FBI office, or their states attorney. You could probably get a percentage of any fines which could be in the millions. Why sit in your cubicle while being yelled at by a hair plugged menace? Drop the hammer on these guys and get some coin.

 

The debt industry is gonna be doing layoffs soon as there is a shortage of defaulted accounts, so you have to look to your future. When one of you do this, the others are going to be hammered by the government it is best if you make the deal with the government now before the people sitting left and right of you do it. Just saying you could make more than 9.00 an hour from doing the right thing.

Share this post


Link to post
Share on other sites

CaLawyer,

 

Very possibly a picture of Tom Vigil has been located. It is on this company's corporate website. http://www.lsicolorado.com/about/ (look under managers). 

 

Most likely he has a full time job with the company mentioned above. They are located in Denver (Same location as Cach). It is a litigation company that helps out Corporations and Corporate Attorneys reduce costs and make the litigation smoother, i.e: companies like Cach and Square Two. Most likely, (but has become very difficult to prove) people like Tom Vigil are independent contractors of Cach/Square Two. They are not actual employees. That is why all of their declarations say authorized agent, not employee as you would typically see with an original creditor declaration. Very possibly this guy sits at his full time job and occasionally signs declarations for Cach after one shows up in an email from Cach that has been forwarded from the attorney who wrote the declaration. He may even fly out occasionally to a trial if he is available. This may be why Cach tells people during discovery that there are up to four potential witnesses because they don't know what these peoples schedules are at their regular jobs until closer to trial.  With an original creditor you only need one potential witness because they are actually employed by the O.C and easy to locate and get to trial. Hiring these independent contractors would save Cach a boatload not having actual employees (medical, dental, vision, salary, etc.) but may make it more difficult to get them to every trial. This is all theory but very possible based on research. If this independent contractor issue is common across the whole industry it may be a possible way to trip up these witnesses in court if they have no actual affiliation with the Plaintiff let alone the Original Creditor.  

 

If you go to their website under Solutions- ediscovery- expert witness, 

 

Read the Expert Witness Section.

 

 

Doesn't it sound like an Authorized agent for Cach testifying to an O.C. business records?

 

 

I am not an attorney

Share this post


Link to post
Share on other sites

I am going ot email Tom Vigil and see if he replies

  • Like 1

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.