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False Statements on a Midland Affidavit


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On previous posts I discussed a pending lawsuit my son is facing by Midland on a Chase account, repesented by Erica Brachfeld.  We have received superior support and guidance from all of you and are prepared to argue our case before the judge.  We have attempted service of the affiant at addresses listed on the affidavit and to no surprise, she was nowhere to be found and no one at the addresses had ever heard of her (law firm, no less).  We filed an MIL and will argue to have their affidavit excluded as it violates CCP 98.  Now, two questions:

1.  If my son is asked by the judge if he had the Chase account and defaulted, how does he answer?  Clearly he needs to answer honestly but is there a best way to answer that question?

2.  In our opinion, Brachfeld knew or should have known that the Affidavit filed by Midland had materially false statements as to where the affiant would be located for service.  This case could not be the first where Brachfeld's firm represents Midland and the defendant has filed an MIL because the affiant could not be located.  Does this rise to subornation of perjury?   I found this language and wonder if it can be argued before the judge: 

 

In legal practice, the condition of suborning perjury applies to a lawyer who presents either testimony or an affidavit, or both, either to a judge or to a jury, which the attorney knows to be materially false, and not factual.

 In civil law and in criminal law, the attorney’s knowledge that the testimony is materially false must rise above mere suspicion to what an attorney would reasonably have believed in the circumstances of the matter discussed in the testimony. Hence, the attorney cannot be wilfully blind to the fact that his or her witness is giving false, perjurious testimony.

 

Thanks fo any input

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Your son "can't recall."

 

As far as perjury, that is going to be tough to prove since you 1) don't have the witness to question on the stand, and, 2) probably are not of the skill level to dig up the dirt, and question that person to the point where they do perjure themselves. Don't be offended by #2 - it takes months of probing and investigation and you also have to be an experience interviewer.

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This shocker came from bench  :" Is this your account?"  I honestly couldn't say no, because we were there for a motion to compel arbitration (per terms of contract), it was my motion so you can see why I couldn't say : No !  it's not mine but I have a contract for it !

 

This is what I said and it worked well enough to stop the converstaion and get the court off my back. "Your honor this is entirely in dispute" !  I didn't say this account or amount or credit card, mine or yours, etc. I said  " IT is in dispute". Done.

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File an order to show cause

in that order you ask why Midlands affiant should not be found in contempt for supplying a false address. Also ask for an order for Midland to release such correct address.

 

The Order to Show Cause differs from a Motion, Since there are strict requirements as to how to make a motion, it is much easier to come to court in person and file an Order to Show Cause.

 

The Order to Show Cause is supported by an "Affidavit in Support," and copies of any documents that support the request and would help the judge make a decision. The papers must be served on all the parties in the manner directed in the Order to Show Cause. A party served with an Order to Show Cause may prepare papers to oppose the motion. On the hearing date, all parties must come to court and the judge will decide the Order to Show Cause.

 

You may submit as many affidavits from as many people as you feel are relevant to prove to the court that the request in the Order to Show Cause should be granted.

 

Both parties are required to show up for the court date.

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An invalid address does not rise to the level of perjury. Note what the statute says....materially false. That means that the issue could or would somehow unfairly change the outcome of your case if it went unnoticed or unchallenged. In this case, the only one who is going to suffer is the plaintiff, who was too stupid to make sure the address was valid. Now he stands a good chance of having his affidavit thrown out. I'd say pursue getting it kicked, and send them a thank you note for being terminally stupid.

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I'd say "yes I had a Chase account but have yet to see proof this is the same account", now it's on them to prove that the account they bought and are suing for is that account. It's their job to prove that. When they ask questions like "is this your acct number?" that's when he says "I don't recall". I addmitted to having a Chase acct, the addresses I lived at and that I did get mail there. After that "I don't recall"

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IS THIS YOUR ACCOUNT SON!!!

 

Your Honor, at one time I believe I may have had an account, but based on my current knowledge and the questionable and un-authenticated  statements of the plaintiff I cannot truly say it is mine.

 

Then he looks a little confused and can't truely remember anything else from that point on.

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Some times Judges will ask you questions, You could say I have had several accounts with chase bank I dont recall the account numbers, To the best of my knowledge all my accounts with chase were in good standing,and i have never had any account with Midland Funding.

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