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Request for Producttion of Documents--forward flow agreement


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Hi:

I am being sued by CACH,LLC in CA. I want to send the 2nd Request for Production of Document ( you are allowed to do it in CA).

 

Let’s skip all other discussions and go straight to the point. I want the Forward Flow Agreement that CACH, LLC has. They will object it anyway. This Request is the preparation for the Motion to Compel later.

 

Bill of Sale and Assignment of Loans I received from CACH,LLC. Alos an redacted Loan Schedule, 5 pages( account number, name, address, SSN,and claimed money spread out on these 5 separated pages, which mean you have to combine them to form  completed infomation. If you separate these 5 pages, it means nothing.) 

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Bank of America

EXHIBIT C

Bill of Sale and Assignment of Loans

The undersigned Assignor (“Assignor”) on and as of the date hereof hereby absolutely sells, transfers, assigns, sets-over, quitclaims and conveys to CACH,LLC, a Limited Liability Company organized under the laws of Colorado (“Assignee”) without recourse and without representations or warranties of any type, kind, character or nature, express or implied, subject to Buyer’s repurchase rights as set forth in Sections 8.1 and 8.2, all of Assignor’s right, title and interest in and to each of the loans identified in the loan schedule (“Loan Schedule”) attached hereto (the “Loans”), together with the right to all principal, interest or other proceeds of 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 cash or other liquidated property.

DATED: MARCH 12, 2010

ASSIGNOR: FIA CARD SERVICES,N.A.

Signature here.

Name: D**** L P**********

Title: Assistant Vice President

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So, the question is “how to ask for it clearly without confusion?” simply asking for it will get an objection something like “vague”.

 

This is what I can think of:

1. please provide the said Loan Sale Agreement referred on the Bill of Sale and Assignment of Loans.

2. please provide the Loan Schedule that contain Defendant’s name and account number without redacted.

3. please provide any contract or agreement signed between Plaintiff and Assignor, FIA CARD SERVICES,N.A.

 

Any advices? reword?All answers are appreciated.

Thanks.

 

See other documents at post  #11

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You won't get an unredacted version, that would violate state disclosure laws concerning other people's information. This is the good part:

 

 without recourse and without representations or warranties of any type, kind, character or nature, express or implied,

 

If the OC refuses to guarantee the accuracy of these accounts, how can the JDB prepare an affidavit swearing that the amount they are suing for is accurate?

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The title of the document should be on your bill of sale, where it reads something to the effect of "no warranties or guarantees are included outside of the Credit Card Account Agreement Purchase to which this is an exhibit" or something like that.

 

In the above example you would ask for: "The Credit Card Account Agreement Purchase referenced in the bill of sale, plaintiff's exhibit B."

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This is how I defined Forward Flow Agreement in my discovery to CACH:

 

"FORWARD FLOW AGREEMENT" refers to the purchasing agreement between PLAINTIFF and the entity from which the alleged Account in the above entitled action was obtained. This agreement is the operative document that memorializes the transfer of account ownership and defines the successor-in-interest of the alleged account.

 

I also used CACH's responses to my first discovery requests as a basis for the language used in my second discovery requests. This way, if they say "what are you talking about," or try to suggest that you're being vague, you can simply say, "well, this is what you called it, so you must know what it is." Using the specific language in the Bill of Sale is also a good idea.

 

For example, in their communications to me, they suggested that my "use" of the card constituted my acceptance of the agreement governing their ownership of the account. So I requested information regarding my alleged "use" of the card, with the language styled in the same manner as their prior discovery answers to me.

 

They'll probably object to the lot of it, but at least you'll get your digs in there for future motions and stuff closer to trial.

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Do they ever produce this document?

 

Will they not just say it is a privileged business record?

 

They most probably will claim it's privileged.  However, in the complaint or in an affidavit, if they reference a sales agreement between themselves and the OC, then they're the ones who brought it up.  If they claim that the agreement included the sale of your account, then they should have to prove it.

 

Also, if the bill of sale references that agreement somehow, use that.  What does that agreement state about the accounts?  There are forward flow agreements that state that only 50% of the accounts are guaranteed in some way or another.  You can argue that the plaintiff brought up the agreement, the bill of sale references it, so where is it?

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The title of the document should be on your bill of sale, where it reads something to the effect of "no warranties or guarantees are included outside of the Credit Card Account Agreement Purchase to which this is an exhibit" or something like that.

 

In the above example you would ask for: "The Credit Card Account Agreement Purchase referenced in the bill of sale, plaintiff's exhibit B."

 

This is what I got from Discovery:

1. credit card statements from July 2009--June 2010, 12 monthes.

2. "credit card agreement" printed 8 years after account opened (account was opened in 1999, CC agreement date 2007. APR or Fee doesnt' match CC statements.)

3. "Affidavit of Claim and Certification of Debt" signed bank officer Elisabeth W. Plummer.

4. "Bill of Sale and Assignment of Loans" (shown it above, at post #1, I already typed all info on that page.)

5. "Loan Shedule" has my name,address,account nubmer, and $$ on it. Nothing else.

 

I did send the BOP. As you all know, they objected it. I am thinking about  a MTC, but will do it later. I want to file both MTC at the same time, so keep them busy(can i file 2 MTC at the same time? not so sure though). ::devillaugh::

 

Trial date set on 7/30/2013. 5 monthes to go.

 

Let's focus on the Request for Production of Document question here. If I do it right, I might be able to convince the judge to force the JDB to produce the Forward Flow Agreement. If that comes, case will be ended.

 

please take a look the following documents. Whatelse FATAL Production of Documents' question should I ask CACH?   BTW, this is a credit card account, how come does it go to the Loan Schedule?

 

here is the Summom, Affidavit, click for large picture. (I blackout the name of the Plaintiff b/c I don't know if I violate any law by doing this.)

post-83235-0-88983300-1362462521_thumb.j

post-83235-0-32299000-1362462527_thumb.j

post-83235-0-28326100-1362462532_thumb.j

post-83235-0-49482800-1362462898_thumb.j

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They will never produce the forward flow agreement or whatever they call it. They know it would doom them for not only this suit but imagine if it got out on the internet? They would never win another case.

 

What requesting (demanding) it will do is eliminate the bill-of-sale. If the bill of sale is gone, every other reference to them buying the account is conclusory meaning there is no documentary evidence to prove it. They'll try to use the affidavit to prove the sale but affidavits also require documentary evidence if properly challenged.

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They will never produce the forward flow agreement or whatever they call it. They know it would doom them for not only this suit but imagine if it got out on the internet? They would never win another case.

Pardon my ignorance, but why is this? What exactly is an FFA?

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The Forward Flow Agreement is basically the terms and conditions of the sale. Like the fine print on the bottom of your coupon that tells you it can't be combined with any other offer, only good on Thursdays in a leap year if you place your order hopping on one foot. (Sorry, bad dinner experience last night).

 

The FFA will have language that says (in a nut shell) that the accounts are sold "as is", with all of their faults and they do not guarantee their accuracy. It will also state how they bought them. Did the JDB buy them with (a) all available documentation or (b) off the bargain rack (Give me two statements, an affidavit and super size the most recent "terms and conditions", the worst photo copy possible, please). Uh... (b).

 

That would change things for your case, wouldn't it? Like to get that in the judges hands, would you? Of course. They will never let that happen.

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They will never produce the forward flow agreement or whatever they call it. They know it would doom them for not only this suit but imagine if it got out on the internet? They would never win another case.

 

What requesting (demanding) it will do is eliminate the bill-of-sale. If the bill of sale is gone, every other reference to them buying the account is conclusory meaning there is no documentary evidence to prove it. They'll try to use the affidavit to prove the sale but affidavits also require documentary evidence if properly challenged.

 

If they don't produce the FFA, what arguments should I make in order to eliminate the Bill-of-sale?

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If they don't produce the FFA, what arguments should I make in order to eliminate the Bill-of-sale?

 

Well first and foremost, without even going into the FFA, I have yet to see a bill-of-sale that specifically references your account. It is always a generic bill-of-sale that speaks of a pool of accounts. That right there makes it conclusory.

 

As the bill-of-sale references the FFA, or Credit Card Agreement Purchase or whatever they call it, usually stating the bill-of-sale is an exhibit TO that document, it would be an incomplete document without it. It is like showing you half of a contract, just the part that shows your responsibilities, and leaving out the part that has your rights. Check your rules of evidence and it will state how an incomplete document is inadmissible. 

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The OC affidavit does not state that everything related to the account was accurate.  Now look at the bill of sale.

 

The undersigned Assignor (“Assignor”) on and as of the date hereof hereby absolutely sells, transfers, assigns, sets-over, quitclaims and conveys to CACH,LLC, a Limited Liability Company organized under the laws of Colorado (“Assignee”) without recourse and without representations or warranties of any type, kind, character or nature, express or implied...all of Assignor’s right, title and interest in and to each of the loans identified in the loan schedule (“Loan Schedule”) attached hereto (the “Loans”)...

 

A warranty is defined as "[a] promise that a proposition of fact is true." Black's Law Dictionary 1423 (5th ed. 1979).  The bill of sale includes "without representations or warranties".   According to the legal definition of the term, the bill of sale specifically states that B of A does not guarantee anything about the accounts.

 

So far, neither B of A's affidavit or the bill of sale provides any proof that the information provided about the account is accurate.

 

An affidavit from an OC is compelling.  It holds more weight than a JDB affidavit.  However, you can still fight it.  Read every post you can find from Calawyer and SeaDragon. 

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That alleged OC affidavit is a standard boilerplate that CACH uses for all the BofA accounts.  Is it a real affidavit, or a forgery created by CACH? 

 

Check out everything you can about the affiant and the notary.  You can check out the notary with the NC Secretary of State.

 

At the bottom right of the affidavit page there is CACH,LLC 9.13.10.  What is this?  I have seen this on other alleged OC affidavits preapared for CACH.  Could it be an internal CACH document designation?

 

You need to question everything about this affidavit.

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That alleged OC affidavit is a standard boilerplate that CACH uses for all the BofA accounts.  Is it a real affidavit, or a forgery created by CACH 

 

Check out everything you can about the affiant and the notary.  You can check out the notary with the NC Secretary of State.

will check, based on what I have, the Affiant works for BoA. Her name is Elisabeth W Plummer (Elisabeth W. Plummer).

 

At the bottom right of the affidavit page there is CACH,LLC 9.13.10.  What is this?  I have seen this on other alleged OC affidavits preapared for CACH.  Could it be an internal CACH document designation?

I cant' tell. Maybe it is a date. You really can't argue that on court. If that is a date(if and only if CACH admited), then the Affidavit made just a day after that CACH requested, it will be inadmissible b/c it was prepare for litigation. That's all I can tell.
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Almost all affidavits are prepared for litigation. Your affidavit was prepared for litigation (assuming you did one). An affidavit is written testimony, usually used to authenticate documents. Why else would you prepare one if not for litigation?

 

Where the JDB (and OC for that matter) affidavits usually fail is documentary evidence. For example, an affidavit cannot simply state (if challenged) that an account was sold. They must refer to a bill of sale and attach that document to the affidavit as an exhibit to prove it was sold for it to hold weight. If no documentary evidence is referred to and attached, the statement is then considered conclusory, meaning that the affiant came to the conclusion that the account was sold based on other information. It was a Chase account and now the JDB has it in their files. One can conclude it was sold, but no proof has been given.

 

The affiants refer to "the records". The attorney then attaches a bill of sale. Uh-oh. They referred to records and attached them. Must be good, right? Wrong.

 

When the affiant merely refers to "records" there is no way to determine what was included in those records. Was this bill of sale part of those records? How would you know? It was not specifically mentioned and attached by the person who claimed to review them. If I wrote an affidavit I would go out of my way to make sure every document attached was specifically marked as an exhibit and mentioned in great detail to avoid that.

 

JMO

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That alleged OC affidavit is a standard boilerplate that CACH uses for all the BofA accounts.  Is it a real affidavit, or a forgery created by CACH? 

 

Check out everything you can about the affiant and the notary.  You can check out the notary with the NC Secretary of State.

 

At the bottom right of the affidavit page there is CACH,LLC 9.13.10.  What is this?  I have seen this on other alleged OC affidavits preapared for CACH.  Could it be an internal CACH document designation?

 

You need to question everything about this affidavit.

 

I agree that the affidavit is a standard boilerplate affidavit.  In credit card cases, most, if not all, affidavits are preprinted.  That goes for both OC and JDB affidavts.  In the case of this affidavit from B of A, it was probably preprinted, and the consumer's information was added at a later date.

 

I also agree that JDBs are unscrupulous.  I wouldn't put it past any one of them to create a false affidavit.  However, just to be fair to the poster, we should include that one doesn't make that accusation to the court unless it can be proven.   Some posters (not necessarily this poster) might take such a thought and run with it.

 

 

At the bottom right of the affidavit page there is CACH,LLC 9.13.10.

 

While I would question it, there might a possible logical explanation.  If Cach created a file on 9/13/2010, they may simply have included a copy of that affidavit in that file.

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