LR_Knight

CACH vs LR Knight - I lost :(

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LR Knight,

I will at the courthouse, front and center for moral support. You can count on that!

-J

 

 

I tried to hit "like" but it said I already met my quota for the day. Anyway, that's very cool of you.

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If there is no witness then there is no one to lay a foundation for the evidence or to authenticate. It is hearsay, but sometimes they can get around that. They cannot get around lack of foundation or authentication. The judge will have hard time allowing all 3, unless unopposed.

 

Lawyers cannot testify (if they do; "objection, council is testifying"). They cannot lay a foundation or authenticate evidence, unless unopposed .

 

Have all your documents and notes where you can get to them easily, maybe a list of objections, and copies of important rules etc. You could keep a copy of any MIL's or trial brief you may have to help you.

 

If you end up on a witness stand you can take your time when answering questions and ask that it be repeated if necessary. Try to relax, and not let them intimidate you. Do not surrender any of your rights.

 

Make sure you say the word "objection" when objecting, and ask that the record reflect the objection,

 

Good luck to you, we are all behind you.

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Great advice Anon Amos! Could the judge admit the 'hearsay' evidence on the grounds that defendant did not file to subpoena anyone who signed these alleged 'bills of sales?'

I know the defendant has objected in an argued motion against the Plaintiff being able to overcome the business exception of hearsay. His motion, he has great arguments and some prior case law citations. BUT, if the judge DOES allow this "evidence," other than the obvious OBJECTION, what are some things the defendant can do?

I guess I'm asking for opinions on how to handle this 'evidence' being submitted? If arguing that 'affiant' does not know business practices of OC, should the affiant have been called upon as a witness to testify?? Just looking for different scenarios.

-J

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@Jimmy E

 

1.  You look at the affidavit submitted by the JDB.  Most JDBs submit one affidavit.  The purpose of that affidavit is to authenticate business records and to support summary judgment.

 

2.  Read your rules.  In most states, the business records exception to the hearsay rule of evidence is 803(6).  It contains specific language that must be included in an affidavit to authenticate and admit business records.  Does the affidavit contain all of those requirements?  If not, then you object not only to the evidence, but also to the affidavit because it does not comply with Rule of Evidence 803(6) and is not sufficient to lay the foundation for the admission of alleged business records.

 

3.  Know how your courts have ruled.  Some courts do not allow one business to authenticate the records of another business unless the affiant shows some knowledge of how the original business created or maintained the records.   In other words, just because the current business incorporated the records into their own records doesn't mean the records are trustworthy or are even business records.

 

Other courts will allow it simply because the current business relied upon those records.   If you have case law that supports your objection, use it.

 

4.  An affidavit does not have to be made on personal knowledge in order to authenticate records.  BUT, it must contain that language in order to support summary judgment.  In most states, that's based upon Rule 56, the summary judgment rule.  If it's not stated that the affiant his/her statements are based upon personal knowledge, then the affidavit is not sufficient to support the summary judgment motion.

 

Again, see how your courts have ruled.

 

5.  It is true that attorneys cannot authenticate records.  As long as he is presenting the evidence offered by his client, and relying on what is stated in that affidavit, he's not attempting to testify to the validity of the business records.

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You need a complete understanding of how your state and local court rules apply to affidavits. They do need to include the proper language, but even if It has that language you still need to attack it and the affiant.(not that anyone ever suggested you don't)

Just because the language is included in the affidavit does not make it true, and does not mean you don't have  a right to cross examine the affiant. Also, your rules MAY require that the affiant gives you an address for subpoena service and state in the affidavit that they will testify to the information if requested (jdb's usually leave this part out).

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. BUT, if the judge DOES allow this "evidence," other than the obvious OBJECTION, what are some things the defendant can do?

-J

Threaten to appeal his ruling if he doesn't get it right, and then do so if need be. Hiring a court reporter (if you are not provided one) helps prevent this from happening in the first place and preserves the appellate record (assuming you object properly), 

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Other side did not provide any list regarding witnesses they plan on calling.

 

Wondering if I could use this if decide to pull something.  Rule 26e

 

 

 

Supplementation of Responses. (1) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. This duty includes, but is not limited to, supplying supplemental information about the identity and location of persons having knowledge of discoverable matters, the identity and location of each person expected to be called as a witness at trial, and the subject matter and substance of any expert witness's testimony.

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Threaten to appeal his ruling if he doesn't get it right, and then do so if need be.

 

DUMBEST advice ever.  DO NOT ever threaten a judge unless you want to spend quality time in jail on contempt of court.  The proper way to challenge a ruling is to object to the admission of the evidence and then if admitted to note an exception for the purposes of appeal.  

 

The Blunder Twin is really fond of telling people to threaten Judges because he is not the one who will be sanctioned by the court for doing it.  He is also not the one who will have to pay the fine or spend a night or two in jail.  

 

Arkansas is one of the states that does allow appealing of small claims courts verdicts.  Not all states do.  That is why telling someone to do this is REALLY dangerous.  

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DUMBEST advice ever.  DO NOT ever threaten a judge unless you want to spend quality time in jail on contempt of court.  The proper way to challenge a ruling is to object to the admission of the evidence and then if admitted to note an exception for the purposes of appeal.  

 

I don't where you come up with stuff. I have never told anyone to threaten a judge. "Threaten to appeal" is a widely used term in law, you really ran with this one. I think most people with half a brain can see the point I was trying to make.  

The Blunder Twin is really fond of telling people to threaten Judges because he is not the one who will be sanctioned by the court for doing it.  He is also not the one who will have to pay the fine or spend a night or two in jail.  

So now you have resorted to name calling. I have no idea who the other "twin" is supposed to be. You are a really classy lady. I hope Clyde takes after his Father.

 

Arkansas is one of the states that does allow appealing of small claims courts verdicts.  Not all states do.  That is why telling someone to do this is REALLY dangerous.  

I don't know that the OP is in small claims court or that it's not appealable, but I have always said to check your rules. I don't know that it would be that dangerous anyway. If you are correct here, the judge would just say there is no appeals at this lever. When I say threaten to appeal his ruling; I mean " Your honor rule # says "......" and if this court rules against it I will appeal the ruling". I don't mean to threaten him with a knife, even you should be able to get a simple one sentence post.

 

Anyway, have the last word in your next useless post, I'm not going to argue with you.

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To get back to Ms. Knight…it appears to me that you have handled yourself admirably so far in dealing with this slime.

 

Nevertheless, expect that you will be more nervous than you ought to, given that you have prepared and prepared and prepared. It's normal. Expect that the slime will continue to be slime, and don't take any comments or actions by them personally. Write down your objections to their ridiculous statements, and when it's your turn, raise them, one by one.

 

Also, expect that, by the time you are done, your mouth will feel like a desert…that's the nerves.

 

Good luck. One more educated pro se is one more thorn in the side of the collections industry.

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So now you have resorted to name calling. I have no idea who the other "twin" is supposed to be. You are a really classy lady. I hope Clyde takes after his Father.

 

Funny how when I dish it back to you (yes, I saw the insulting posts you directed at me in several other threads but I chose to ignore) you act like you are innocent.  

 

Interesting that you assume Clyde is human.  Just goes to show you how way off target you can be when you assume about anyone.  You pass judgment on me and you don't even KNOW me.

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@LR_Knight

 

Good luck tomorrow, I wish you all the best, If you were in Cali I would be of more use to you, but nationwide, it's all the same strategy.

 

Jimmy said you have some good arguments, so I'm assuming you have the "standing" one covered. Before the trial begins, the judge will usually ask if there are any issues that need to be addressed (this is when MIL's might be addressed) but if not; you can raise the issue of standing at any point.

This is a good time to address your standing issues. If they cannot prove standing then the court cannot hear the case, as it will lack jurisdiction. So attack standing first.

 

If they prevail on standing, then you just move along with trial and defend the case. You do the best you can, and know that you are amongst the 5% that actually fight back.

 

Let us know how it goes, we will all be pulling for you. The outcome of peoples cases are VERY important to most people here.

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Here is what CACH LLC is using nowdays;

 

Exhibit C

 

Bill of Sale and Assignment of loans

 

The undersigned Assignor  ("Assignor") on and as of the date herof hereby absolutely sells transfers, assigns, set-over, quitclaims and conveys to CACH LLC, a limited liability company organized udner the laws of colorado ("Assignee") without recourse and without representations or warrenties or any type, kind charater or nature, express or implied, subject to the Buyers repurchase rights as set forth in Sections 8.1 and 8.2 of the Assingors right title and interest in and to each of the loans indetified in the loan schedule ("Loan Schedule") attached hereto (the "loans"), together with the right to all principal interest or other proceeds or any kind with respect to the Loans remaining due and owing as of the Cut Off date applicable to such Loans as set forth in the Loan Sale Agreement pursuant to which the Loans are being sold (including but not limited to proceeds derived from the conversion voluntary or involuntary, of any of the Loans into cahc or other liquidated property).

 

Dated July 21 2011

 

Assingnor: FIA Card Services, N.A.

 

Name: Debra L Pellicciaro

Title: Vice President

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Here is what CACH LLC is using nowdays;

 

Exhibit C

 

Bill of Sale and Assignment of loans

 

The undersigned Assignor  ("Assignor") on and as of the date herof hereby absolutely sells transfers, assigns, set-over, quitclaims and conveys to CACH LLC, a limited liability company organized udner the laws of colorado ("Assignee") without recourse and without representations or warrenties or any type, kind charater or nature, express or implied, subject to the Buyers repurchase rights as set forth in Sections 8.1 and 8.2 of the Assingors right title and interest in and to each of the loans indetified in the loan schedule ("Loan Schedule") attached hereto (the "loans"), together with the right to all principal interest or other proceeds or any kind with respect to the Loans remaining due and owing as of the Cut Off date applicable to such Loans as set forth in the Loan Sale Agreement pursuant to which the Loans are being sold (including but not limited to proceeds derived from the conversion voluntary or involuntary, of any of the Loans into cahc or other liquidated property).

 

Dated July 21 2011

 

Assingnor: FIA Card Services, N.A.

 

Name: Debra L Pellicciaro

Title: Vice President

Yeah, that looks familiar. Probably over-analyzing the situation, but Plaintiff must truly feel it has the "goods" for a win. IMO, they know LR Knight is not afraid to face them in court.

Besides it being hearsay, another thing I'd add is the fact that their 'contract' references a bulk purchase. With thousands of accounts purchased, I would want to see the 'loan sale agreement' that is the basis of this alleged account. There is a HUGE disconnect between FIA handing off these alleged accounts, and CACH having 'knowledge' of the OC's business practices.

This is a true example of company 'A' taking business files of company 'B,' dropping them into the company 'A' filing cabinet and calling it their own business records. You've made these and other great arguments in you motion.

-J

PS: This is not small claims, however, in Arkansas a small claims case can be appealed de novo (for ANY or NO reason whatsoever).

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PS: This is not small claims, however, in Arkansas a small claims case can be appealed de novo (for ANY or NO reason whatsoever).

It figures. Most small claims cases can be appealed anyway.

 

I guess now we wait. Cross your fingers....

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Other side did not provide any list regarding witnesses they plan on calling.

 

Wondering if I could use this if decide to pull something.  Rule 26e

Regarding post #139: I missed this due to the thread highjack which was posted at about the same time. It may be too late now, unless you have a late trial time.

 

This pertains to discovery. If you asked for witnesses etc. in discovery and they objected or said it was premature; then you could cite this rule if they produce a witness etc.. If you did not, then it would not be as effective. I don't know your rules pertaining to what they have to provide as a witness list (and whether or not you asked for one) But you could always add to your objections that they did not provide a witness list. Sometimes people do provide witness list, even unsolicited, when litigating in "good faith" which is something bottom feeders don't often do.

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