helpYoSelf

can't find my original thread...have some new questions (cach vs me in cali)

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Okay so I sent req. for prod of docs and rec'd a few things back...one of which is a very generic bill of sale- I have a few questions about it.      post-94178-0-64813700-1364453216_thumb.j

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It is super generic - doesn't list any account holder/ account number...etc.  The copy they sent me is VERY poor and nearly illegible! 

 

A few things I notice:

  1. it's not dated.
  2. it's not on letterhead
  3. Patricia Hall signed it but it does not state who she works for...could be Cach for all I know?

 

 

Shouldn't it be notarized or have letterhead at the very least?? Where do I even start with this...I am attacking on standing and want to make sure I don't skip a beat.  

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She does state where she's employed.  She states she's a financial accounts manager for Citibank.  It's also dated...May 10, 2011.

 

That being said, it does not state that any account allegedly owed by you was included in the referenced sale.  It merely states that accounts described in Exhibit 1 were sold.  Has that exhibit been provided?

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Oh okay I see her title...but it doesn't state explicitly that she works for Citibank...although I do see they put that above her name.   

The exhibit 1 that was included is  series of pages that looks like an excel spreadsheet (uploading it now) that is blacked out except for a singular line w/some data that refers to me by my current name.   There are headings across the top that aren't showing due to the flash...

 

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And the date too...now I see that DUH- totally read that wrong...I was thinking it was the date of the sale and that the doc date was a different date 0_o Thanks!

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A few other points:

 

I also wonder how to attack the amount they claim I  owe since the account was allegedly opened in 2000 and the only statements they provided (they say they have no other documents in their current possession) are for the 2010/2011

 

AND at the time they say I opened the account my name was not the same as it is now .....how can I get them to prove it's ME they are after? Everything they've shown has my current legal name...but at the date this account would have been opened my name was NOT the same. 

 

The other docs I rec'd are:

  1. statements dating 7/2010-5/2011
  2. affidavit below (not the same person on the "bill of sale")
  3. credit card agreement from 2008 citibank 

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California case -  you may want to consider threads from ASTMedic and SkippyB for additional resources as short-cut strategy to addressing your case (ref Sandra Pacheco's case - google online).

 

cheers,

homeschool mom

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http://www.creditinfocenter.com/community/index.php?app=core&module=search&do=user_activity&mid=94178

 

Look here for your thread. Maiden names don't make a very good defense. Did you ask for the written agreement? What was their response if you did?

I did ask for a written agreement..they said it was too much work ...(that's paraphrasing their legal jargon of course) ...

 

 

 

California case -  you may want to consider threads from ASTMedic and SkippyB for additional resources as short-cut strategy to addressing your case (ref Sandra Pacheco's case - google online).

 

cheers,

homeschool mom

will do...thank you! 

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A few other points:

 

I also wonder how to attack the amount they claim I  owe since the account was allegedly opened in 2000 and the only statements they provided (they say they have no other documents in their current possession) are for the 2010/2011

 

AND at the time they say I opened the account my name was not the same as it is now .....how can I get them to prove it's ME they are after? Everything they've shown has my current legal name...but at the date this account would have been opened my name was NOT the same. 

 

The other docs I rec'd are:

  1. statements dating 7/2010-5/2011
  2. affidavit below (not the same person on the "bill of sale")
  3. credit card agreement from 2008 citibank 

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Hey Helpyoself,

 

This affidavit was made for the purpose of litigation. If the account between Citibank and Plaintiff occurred in 2010 then why did they get an employee to verify this alleged account in 2012, 2 years after the sale. Why did they not have the employee verify the alleged account at the same time as the BOS was signed or at the time of sale? Save this argument for your MIL, "not made at or near the time of the event but made for the purpose of litigation."

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I did ask for a written agreement..they said it was too much work ...(that's paraphrasing their legal jargon of course) ...

 

 

 

will do...thank you! 

 

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=54-3-1.1

 

 

Read this statute and see if they still think it's too much trouble when you counterclaim them for illegal interest. The part about 54-11-9 does not matter, that is contract law and they cannot export it. They can only export their interest rate law. That may fly in SD, but you aren't in SD.

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Hey Helpyoself,

 

This affidavit was made for the purpose of litigation. If the account between Citibank and Plaintiff occurred in 2010 then why did they get an employee to verify this alleged account in 2012, 2 years after the sale. Why did they not have the employee verify the alleged account at the same time as the BOS was signed or at the time of sale? Save this argument for your MIL, "not made at or near the time of the event but made for the purpose of litigation."

And because of this it is viewed as "untrustworthy" which is a good term to use in your motions etc. because it is well recognized and used often in the evidence rules.

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A few other points:

 

I also wonder how to attack the amount they claim I  owe since the account was allegedly opened in 2000 and the only statements they provided (they say they have no other documents in their current possession) are for the 2010/2011

 

Look up the Rule of Completeness in the CA rules of evidence (for this one) They have not provided enough alleged cc statements to show an accounting from a zero balance to the amount they claim you owe. While you are there (in the rules of evidence) look into the best evidence rule, hearsay and business record exception to it, and the rules of authentication. Everything they gave you can be stricken from evidence in a motion in limine (when the time comes).

 

Also, affidavits are not business records, they are only assertions under oath, and hearsay, or compiled from hearsay, they also lack proper foundation, and in your case the affidavit was not made at or near the time of the sale (and I am not saying it has to be) but the fact that it was not, and that it was produced solely for the sake of litigation, is just another reason why it's not "trustworthy".

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Also, affidavits are not business records, they are only assertions under oath, and hearsay, or compiled from hearsay, they also lack proper foundation, and in your case the affidavit was not made at or near the time of the sale (and I am not saying it has to be) but the fact that it was not, and that it was produced solely for the sake of litigation, is just another reason why it's not "trustworthy".

 

Affidavits are often produced for litigation.  That's common and legal.  For instance, if you sued a person because were in an auto accident due to the fact the other party ran a red light and hit you, you could provide an affidavit from a witness who could state the other party ran the red light.  That affidavit would be prepared for litigation.  There's no other reason for the affidavit.  It would not be inadmissible simply because it was made for the purpose of your lawsuit.

 

The reference to preparing documents for the purpose of litigation has to do with other documents.  One example would be a summary of an account when there's no other evidence to support the information on that summary.  Because there's no other evidence such as invoices or credit statements that back up the information in the summary, that summary would be hearsay.  The fact that it was prepared solely as a document to support the plaintiff's claim in a lawsuit would make it untrustworthy.

 

However, I understand what you're saying about a JDB affidavit.  You attack that affidavit as being INSUFFICIENT to support the JDB's claims.  If the purpose of the affidavit is to authenticate business records, see if it complies with your rule of evidence for business records.  In my state, it's rule 803(6).  Also, check CA case law about 3rd party business records.  If the language in the affidavit doesn't comply with the business records exception, you point out that fact.  Therefore the affidavit would be insufficient to authenticate the records.

 

If the affidavit is offered to support a motion for summary judgment, see it complies with the summary judgment rule.  Again, also research case law. 

 

From what we've seen on these boards, most JDB affidavits serve both purposes.  They're supposed to authenticate business records AND support a summary judgment motion.   I've read cases in which the courts stated that parts of an affidavit can be insufficient to serve a purpose while the rest of affidavit is sufficient to serve another purpose.  If that's the case in CA (or across the board), you take the affidavit apart word by word.

 

All that being said, you can attack an affidavit as untrustworthy, but it's not because it was prepared for litigation.  In my opinion, a JDB affidavit is untrustworthy simply because it came from a JDB.

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All that being said, you can attack an affidavit as untrustworthy, but it's not because it was prepared for litigation.  In my opinion, a JDB affidavit is untrustworthy simply because it came from a JDB.

Sure it is, it's one the reasons anyway. Although affidavits are produced for litigation and that is common and legal, this one was produced to back up a sale, but it was not produced until 2 years later, and  solely for the sake of litigation. Now that may be perfectly legal however, it is also perfectly untrustworthy, and I would argue that, and any other reason to strike the affidavit.

 

I do agree with you that it is untrustworthy because it came from a jdb (as is anything else) but the above mentioned argument is a better one when it comes to striking it. Again, I am not saying that the affidavit has to be made at or near the time of the event, but if it was, it would be much more trustworthy (which sounds ridiculous when speaking of a jdb).

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I see what you're saying.  I'm not disagreeing with the fact that a JDB affidavit is untrustworthy.  I disagree with a blanket statement that an affidavit is untrustworthy because it's prepared for litigation.  That's statement by itself is not accurate.  There are court rules that state a complaint must include an affidavit that's dated within a certain period of time.  That affidavit was prepared for litigation according to court rules.

 

 

Although affidavits are produced for litigation and that is common and legal, this one was produced to back up a sale, but it was not produced until 2 years later,

 

That's not a problem if there's documentation to back up the claims in the affidavit.  That's how you make your argument.  It's not based on the fact that the affidavit was prepared for litigation.  Your argument is based on the fact that the DETAILS cited in the affidavit are unsupported.

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Affidavits are often produced for litigation.  That's common and legal.  For instance, if you sued a person because were in an auto accident due to the fact the other party ran a red light and hit you, you could provide an affidavit from a witness who could state the other party ran the red light.  That affidavit would be prepared for litigation.  There's no other reason for the affidavit.  It would not be inadmissible simply because it was made for the purpose of your lawsuit.

 

The reference to preparing documents for the purpose of litigation has to do with other documents.  One example would be a summary of an account when there's no other evidence to support the information on that summary.  Because there's no other evidence such as invoices or credit statements that back up the information in the summary, that summary would be hearsay.  The fact that it was prepared solely as a document to support the plaintiff's claim in a lawsuit would make it untrustworthy.

 

However, I understand what you're saying about a JDB affidavit.  You attack that affidavit as being INSUFFICIENT to support the JDB's claims.  If the purpose of the affidavit is to authenticate business records, see if it complies with your rule of evidence for business records.  In my state, it's rule 803(6).  Also, check CA case law about 3rd party business records.  If the language in the affidavit doesn't comply with the business records exception, you point out that fact.  Therefore the affidavit would be insufficient to authenticate the records.

 

If the affidavit is offered to support a motion for summary judgment, see it complies with the summary judgment rule.  Again, also research case law. 

 

From what we've seen on these boards, most JDB affidavits serve both purposes.  They're supposed to authenticate business records AND support a summary judgment motion.   I've read cases in which the courts stated that parts of an affidavit can be insufficient to serve a purpose while the rest of affidavit is sufficient to serve another purpose.  If that's the case in CA (or across the board), you take the affidavit apart word by word.

 

All that being said, you can attack an affidavit as untrustworthy, but it's not because it was prepared for litigation.  In my opinion, a JDB affidavit is untrustworthy simply because it came from a JDB.

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