NormInGeorgia

I got destroyed by the new Georgia evidence rules, did anyone else?

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So I stood up and made all the objections about how this person did not claim to have any personal knowledge of or any written proof of the claim that Chase wrote off or sold my specific account to Midlands.

 

This is where most people make a fatal mistake. They follow the "personal knowledge of the OC stuff" when the affidavit almost NEVER makes this claim. We've seen hundreds of them here, all templates, they all say the same thing, that the affiant (from Midland) has knowledge of Midland's records, which were transmitted to Midland by a person of knowledge from the OC. See how they make the chain complete without making any such claim as you stated above? Therefore, you cannot object to it on the grounds you stated. Incidentally, this satisfies the language in the federal statute, which quite a few states use or copy outright. To challenge this, you have to attack the records that were supposedly transmitted, find the person of knowledge who transmitted them, and drag his sorry butt into court and make him show just how much personal knowledge a robo signor really has.

so how do you request for the person of knowledge form the OC? that is what I need now. They have a LVNV witness that attests to yada yada all records kept in usual business fashion, so  I need them to produce OC person, but dot know how to do it.  lol I am so impatient, I asked what to do next in my own thread, but no answers yet.  So I am researching.  ;)

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so how do you request for the person of knowledge form the OC? that is what I need now. They have a LVNV witness that attests to yada yada all records kept in usual business fashion, so  I need them to produce OC person, but dot know how to do it.  lol I am so impatient, I asked what to do next in my own thread, but no answers yet.  So I am researching.   ;-)

 

That might be done through more discovery, if it's allowed.  You could send an interrogatories requesting the names of the persons who recorded that data contained in the cc statements and who transmitted the records to LVNV.  They probably will have no idea.

 

OR, depending upon what's stated in the affidavit, perhaps you could subpoena the LVNV affiant.  Most of these affidavits tend to include "It was in the regular course of business for a person with knowlege of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmitt information thereof to be included in such record."

 

Ask him/her the name of the OC employee who created or recorded the data in the business records.  I'd be surprised the affiant knows that person's name.

 

Then ask for the name of the person who transmitted the records.  If the affiant doesn't know, you can point out that he/she stated in the affidavit that the data in the records was recorded by were by someone with knowledge or were transmitted (to LVNV) by someone with knowledge.   If the affiant doesn't know who recorded the data or transmitted the records, how can he/she state for a fact that the data was recorded by someone with knowledge or was transmitted by someone with knowledge when he/she has no idea who either recorded the data or transmitted the records.

 

But it would depend upon whether or not you'd want to issue a subpoena and the rules of your court regarding subpoenas and/or depositions. 

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Also you forget the big picture issue. The OC made a statement on the bill of sale that the records were not reliable and therefore cannot be relied on as accurate or for collections. Most Bills of sale say that "No warranty as to accuracy or clollectability is being implied and the purchase is"as is""

 

That in itself precludes the new statute completely. That is the mega issue on appeal or a motion to vacate or for new trial.

 

Extrinsic evidence of authenticity as a condition precedent to admissibility shall not be required
with respect to the following: . . .
The original or a duplicate of a domestic record of regularly conducted activity that would
be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written
declaration of its custodian or other qualified person certifying that the record:
(A ) Was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of such matters;
( b ) Was kept in the course of the regularly conducted activity; and
( c ) Was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph shall provide written
notice of such intention to all adverse parties and shall make the record and declaration available
for inspection sufficiently in advance of their offer into evidence to provide an adverse party
with a fair opportunity to challenge such record and declaration.
 
 
Business Record Exception—”Integrated Records Rule”—
 
Georgia courts have struggled under the current business record
statute with the problem of one business laying foundation for
records received from a different business. The cases are inconsistent
and have permitted, in some cases, a witness to “lay foundation” for a
business record without any evidence that the witness has a clue as to
how the record was produced.
The new business record exception is based on the Federal Rule
and takes advantage of the “integrated records rule” as developed by
federal courts to address this problem. The basic requirements for the
integrated records rule are (1) a business relationship between the
business that initially made the record and the one who received it,
(2) the recipient business routinely relies upon the accuracy of the
record and integrates it into its own files, (3) the recipient business
has a witness who is sufficiently familiar with how the originating
business routinely prepared the record to establish that the record was
made and kept in the ordinary course of business at or near the time
of the events described in the record, and (4) circumstances support
the trustworthiness of the record.
 
You see how the bill of sale trashes this argument quickly? You see the OC has given them no reason to rely on them they say don't rely on them.
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So they failed to authenticate according to Rule 803© and Rule 901 and that trips up the incorporated records argument because when did they incorporate them the JDB's only buy the documents after litigation so that means they don't have them, that means no records integration. I will look at how the courts rule on the integration rule.

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Check the dates of affidavits, when was the affidavit signed (before or after the start of trial) and did they enter any business records that were redacted? Did they enter the exact copies? If you can challage that documents were redacted after the start of trial it questions their trustworthyness since documents can not be prepared for the purpose of litigation. Check the case laws for your state to see how they view documents created for the purpose of litigation. In my state even if they are created before trial knowning that it is going to trial, (because all efforts to collect have failed), makes them untrustworthy.

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This is very similar to the Texas rules for business records exceptions. The affidavit can be admitted unless there is reason to believe the business records are untrustworthy.

by being stated in the bill of sale that their is no warranty as to the accuracy or collectability. The plaintiffs didn't have good records and another point is when the alleged records were incorporated if it was after the litigation it fails the test for rule 803 and 902.

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I have never seen an actual bill of sale, its interesting but makes sense that the OC's want to include the disclaimer so they dont get dragged into court.

 

I recently had a JDB respond to a DV by sending a certificate of assignment and a business record affidavit signed by the JDB custodian and an unsigned account information report but not a bill of sale from the OC...this must be their strategy to hide it as long as possible.

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One of the keys to any debt collection lawsuit is asking for the name and address of any declarant or affiant whose testimony or affidavit may be used throughout the case.

 

As previously stated, the attorney will object to giving you that information, because they normally do not have a witness at trial. Then, you send out request for admissions. Since they did not disclose any witnesses the first round, they most likely will not respond to your RFAs.

 

You use this to your advantage. This works great when the Plaintiff does not supply an affidavit in the first place.

 

It also works well with a breach of contract claim. That is why most attorneys wont pursue the contract claim and go onto an account stated claim.

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lol yep, this attorney sent a motion for telephonic hearing stating their "witness" is Natalie xxxx Or another associate that works for LVNV.  So I guess she can brief and call her brother to testify, and no one would know the difference. ;)  It's alright, racecar game me questions that will destroy anyone who doesn't know what they are doing. 

 

Norm, you gonna appeal? Lots of useful info here, you may get it reversed. :).

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Also you forget the big picture issue. The OC made a statement on the bill of sale that the records were not reliable and therefore cannot be relied on as accurate or for collections. Most Bills of sale say that "No warranty as to accuracy or clollectability is being implied and the purchase is"as is""

 

That in itself precludes the new statute completely. That is the mega issue on appeal or a motion to vacate or for new trial.

 

Extrinsic evidence of authenticity as a condition precedent to admissibility shall not be required
with respect to the following: . . .
The original or a duplicate of a domestic record of regularly conducted activity that would
be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written
declaration of its custodian or other qualified person certifying that the record:
(A ) Was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of such matters;
( b ) Was kept in the course of the regularly conducted activity; and
( c ) Was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph shall provide written
notice of such intention to all adverse parties and shall make the record and declaration available
for inspection sufficiently in advance of their offer into evidence to provide an adverse party
with a fair opportunity to challenge such record and declaration.
 
 
Business Record Exception—”Integrated Records Rule”—
 
Georgia courts have struggled under the current business record
statute with the problem of one business laying foundation for
records received from a different business. The cases are inconsistent
and have permitted, in some cases, a witness to “lay foundation” for a
business record without any evidence that the witness has a clue as to
how the record was produced.
The new business record exception is based on the Federal Rule
and takes advantage of the “integrated records rule” as developed by
federal courts to address this problem. The basic requirements for the
integrated records rule are (1) a business relationship between the
business that initially made the record and the one who received it,
(2) the recipient business routinely relies upon the accuracy of the
record and integrates it into its own files, (3) the recipient business
has a witness who is sufficiently familiar with how the originating
business routinely prepared the record to establish that the record was
made and kept in the ordinary course of business at or near the time
of the events described in the record, and (4) circumstances support
the trustworthiness of the record.
 
You see how the bill of sale trashes this argument quickly? You see the OC has given them no reason to rely on them they say don't rely on them.

 

 

 

 

Hi Seadragon,
 
I have added an attachment to my original post.  It shows two affidavits and a bill of sale used by the plaintiff.
I'm guessing that over the years the junk debt buyers try to keep up with the laws and make adjustments to their documents to stay "valid".
I say this because I noticed that in the Bill Of Sale they have added a very large paragraph that says the Seller DOES warrant to the Purchaser that the account information is complete and correct.  
 
In the previous paragraph they make the statement about no warranty of title or enforceability, so the Bill of Sale appears to contradict itself, (making it suspect to me).
 
So obviously this big paragraph was added specifically for the purpose of future litigation since it blatantly recites verbatim the statutory evidence requirements.  I would think that would be a big red flag to a judge that something is wrong.   Or is this type of language commonplace for business documents anywhere other than the debt collection business? 
 
I am going to have to go back and read the 3-page post you submitted to see what I can use for my appeal.  That is a lot of info so I will have to read it about 20 times and look up the case law.
 
Just to clarify, my case was not a Motion for Summary Judgement.   It was in State Court.  So I think my only appeal option is to the Georgia Court of Appeals.  In that situation, the case is not heard again.  Instead, the court will review only the written record of the trial, the pleadings and evidence admitted, and appeal briefs from me and the plaintiff.   So what they will be looking for are reversible errors made by the State Court judge.   My biggest concern is whether they would overturn any error they can find or that I can point out in my brief, or if they would require that I "properly" objected during the trial.
 
By the way, the trial judge in my case specifically said at the end of the case that all my objections were stated in a way that preserved my rights to appeal.  I thought it was interesting he said that.
 
So at this time I am reading through your long post about electronic records and trying to boil down what I would put in my brief to identify as reversible errors.
 
I like the Missouri Supreme Court info that seems to rule out the "integrated records", but I'm concerned that a Georgia court will disregard that if cited.  I am also concerned whether the federal "integrated records" rule came into existence after that case or before that case.
 
I would really like something to specifically attack the use of "robo-testimony" in the two affidavits.  I found a New York City civil case where Lavergne testified for Midland and the court completely ripped his testimony apart and specifically called it "robo-testimony".      They pointed out the "verbatim recitation" of evidence statutes in his testimony.   Now that I think about it, there is "verbatim recitation" in both affidavits and the Bill of Sale, so obviously it was all done specifically for the purpose of litigation.   In my view that qualifies as "suspect testimony" but I do not know if the Georgia Court of Appeals would see it that way.
 
I also noticed that the Lavergne affidavit claims that he is aware of the process of the sale and assignment of electronic records but it does not say he knows anything about how they are created.
 
The trial judge in my case used the Emily Walker affidavit as the flood gate to let in everything else.  So I guess I need to to focus on attacking that one. 
 
 I'm curious about Emily's statement that "Midlands Credit Management is the servicer of the credit card account on behalf of Midland Funding".
 
It shows (to me at least) that MCM holds the alleged records, not Midlands.   But the Bill of Sale says the junk debts in the Final Data File were sold to Midlands, not MCM.   It's funny that they left a space for the name of the file but the doo doo heads never went back and filled it in.  It just says (Account's Primary File Name).
 
So Emily's statement is absolutely necessary to bridge the gap between MCM and Midland Funding.  How do I shoot down that bridge in the Court of Appeals?   Shouldn't Midland Funding have to provide someone employed by Midland Funding to verify that they did indeed SEND the electronic records to MCM to "service", just like they gave alleged evidence that Chase SENT the electronic records to Midlands Funding?
 
Where is the evidence that Midlands transferred the electronic record for my specific credit card to MCM???   I guess that is another magical moment when the judge just makes an assumption that  whatever  Emily says is the true gospel without having anything to back it up. 
 
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I am putting together a draft document that will be the basis for my appeal to the Georgia Court of Appeals  regarding how Midland's and the judge misused the "new" Georgia evidence rules.

 

Any feedback would be appreciated....

 

 

 

===============================

 

The trial court made an error in determining a question of law which affected a substantial right of the Defendant.

 

The error is regarding how the court applied Rule 803(6) and Rule 902(11).  As a requirement for the admissibility of hearsay business records, the records must be accompanied by "the testimony of the custodian or another qualified witness" or "a certification of the custodian or another qualified person".  Rule 803(6) and Rule 902(11) do not allow the court to exercise discretion in this matter.

 

Since this matter is regarding only a question of law, the error is also outside the trial court's significant discretionary powers provided by 24-1-104 (a), since it does not involve any preliminary question of fact that would need to be resolved by a preponderance of the evidence. 

 

 

In addition to the requirement of Rule 902(11) that a supporting affidavit must accompany the business records, the Court of Appeals has specifically stated:

 

"Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient."   PRATT v. TRI CITY HOSPITAL AUTHORITY. (193 Ga. App. 473) (388 SE2d 69) (1989)

 

In this statement, it is clear that the court not only expects relevant records to be attached to the supporting affidavit, but also expects the supporting affidavit to rely upon, refer to, and clearly identify those same relevant records.  Despite Defendant's objection that the business records submitted as evidence were not referred to or identified in the affidavit, a "packet" containing multiple hearsay documents was admitted as evidence by the court based only on the affidavit of Emily Walker.  

 

Defendant specifically objected to the admission of the entire "packet" on the grounds that the affidavit did not identify the "attached records" which it was intended to certify as business records exempt from the hearsay rule.   

 

It is apparent that the affidavit was intentionally written in a vague and open-ended manner regarding the "attached records" so as to accommodate the attachment of any and all hearsay documents the Plaintiff would be able to obtain prior to trial, regardless of whether the documents were relevant to the case and regardless of whether they were seen by Ms. Walker.  This was likely intentional, since Midland Funding has a well-known history of affidavit manipulation in multiple jurisdictions.

 

Defendant requests the Court of Appeals to reverse the judgement of the trial court and reinforce the court's previous opinion in PRATT v. TRI CITY HOSPITAL AUTHORITY that indicates not only must the business records support the affidavit and be attached to the affidavit, but also the affidavit must clearly identify the business records being certified.  

 

If the Court of Appeals fails to affirm this previous opinion, it will effectively allow any and all hearsay business records to become "self-authenticating" simply by attaching it to a custodian's affidavit, regardless of whether the custodian can identify the specific records or has any knowledge of those records. 

 

The identification of specific documents certified by a witness via affidavit is in all respects equivalent to the identification of specific documents certified by in-person witness testimony in a court room.  In both situations, a witness must clearly identify the documents they intend to authenticate or certify.  No court would accept witness testimony to authenticate a business record, or even read information from that business record, if the witness does not first identify the business record for the court.  Therefore, the Walker affidavit is insufficient and the business records lack foundation.  The Plaintiff's attorney cannot "stand in" for the witness to identify the documents, which is what happened in this case.

 

Uncertified hearsay documents were allowed into evidence by the trial court as if they had been certified by the Walker affidavit.  Those documents were then used by the Plaintiff to make  inferences that Chase Bank had assigned the credit card debt to Midland funding.  Using the Walker affidavit as the gateway, the court determined that all the individual documents in the Plaintiff's "packet" of evidence were admissible.   After the documents were ruled to be admissible evidence, the Plaintiff's inferences from the documents were determined by the court to be sufficient proof that an assignment had been made to Midland Funding and therefore Midland Funding had standing to collect the assigned debt.   It should be pointed out here that the hearsay documents did not show that an assignment had been made in writing, as required by the Court of Appeals in WIRTH v. CACH. 

 

“The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee.” WIRTH v. CACH, 300 Ga. App. 489 (2009).

 

But instead, the judgement in favor of the Plaintiff was based solely on inferences derived from the admitted hearsay evidence.  Nonetheless, it is within the discretion of the trial court to make such a ruling since these are questions of fact, but arising only as a result of the hearsay documents being allowed into evidence.  Therefore, this appeal is not based on those questions of fact, but instead is based only on the question of law regarding the application of Georgia's "new" evidence rules.

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I am putting together a draft document that will be the basis for my appeal to the Georgia Court of Appeals  regarding how Midland's and the judge misused the "new" Georgia evidence rules.

 

Any feedback would be appreciated....

 

 

 

===============================

 

The trial court made an error in determining a question of law which affected a substantial right of the Defendant.

 

The error is regarding how the court applied Rule 803(6) and Rule 902(11).  As a requirement for the admissibility of hearsay business records, the records must be accompanied by "the testimony of the custodian or another qualified witness" or "a certification of the custodian or another qualified person".  Rule 803(6) and Rule 902(11) do not allow the court to exercise discretion in this matter.

 

Since this matter is regarding only a question of law, the error is also outside the trial court's significant discretionary powers provided by 24-1-104 (a), since it does not involve any preliminary question of fact that would need to be resolved by a preponderance of the evidence. 

 

 

In addition to the requirement of Rule 902(11) that a supporting affidavit must accompany the business records, the Court of Appeals has specifically stated:

 

"Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient."   PRATT v. TRI CITY HOSPITAL AUTHORITY. (193 Ga. App. 473) (388 SE2d 69) (1989)

 

In this statement, it is clear that the court not only expects relevant records to be attached to the supporting affidavit, but also expects the supporting affidavit to rely upon, refer to, and clearly identify those same relevant records.  Despite Defendant's objection that the business records submitted as evidence were not referred to or identified in the affidavit, a "packet" containing multiple hearsay documents was admitted as evidence by the court based only on the affidavit of Emily Walker.  

 

Defendant specifically objected to the admission of the entire "packet" on the grounds that the affidavit did not identify the "attached records" which it was intended to certify as business records exempt from the hearsay rule.   

 

It is apparent that the affidavit was intentionally written in a vague and open-ended manner regarding the "attached records" so as to accommodate the attachment of any and all hearsay documents the Plaintiff would be able to obtain prior to trial, regardless of whether the documents were relevant to the case and regardless of whether they were seen by Ms. Walker.  This was likely intentional, since Midland Funding has a well-known history of affidavit manipulation in multiple jurisdictions.

 

Defendant requests the Court of Appeals to reverse the judgement of the trial court and reinforce the court's previous opinion in PRATT v. TRI CITY HOSPITAL AUTHORITY that indicates not only must the business records support the affidavit and be attached to the affidavit, but also the affidavit must clearly identify the business records being certified.  

 

If the Court of Appeals fails to affirm this previous opinion, it will effectively allow any and all hearsay business records to become "self-authenticating" simply by attaching it to a custodian's affidavit, regardless of whether the custodian can identify the specific records or has any knowledge of those records. 

 

The identification of specific documents certified by a witness via affidavit is in all respects equivalent to the identification of specific documents certified by in-person witness testimony in a court room.  In both situations, a witness must clearly identify the documents they intend to authenticate or certify.  No court would accept witness testimony to authenticate a business record, or even read information from that business record, if the witness does not first identify the business record for the court.  Therefore, the Walker affidavit is insufficient and the business records lack foundation.  The Plaintiff's attorney cannot "stand in" for the witness to identify the documents, which is what happened in this case.

 

Uncertified hearsay documents were allowed into evidence by the trial court as if they had been certified by the Walker affidavit.  Those documents were then used by the Plaintiff to make  inferences that Chase Bank had assigned the credit card debt to Midland funding.  Using the Walker affidavit as the gateway, the court determined that all the individual documents in the Plaintiff's "packet" of evidence were admissible.   After the documents were ruled to be admissible evidence, the Plaintiff's inferences from the documents were determined by the court to be sufficient proof that an assignment had been made to Midland Funding and therefore Midland Funding had standing to collect the assigned debt.   It should be pointed out here that the hearsay documents did not show that an assignment had been made in writing, as required by the Court of Appeals in WIRTH v. CACH. 

 

“The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee.” WIRTH v. CACH, 300 Ga. App. 489 (2009).

 

But instead, the judgement in favor of the Plaintiff was based solely on inferences derived from the admitted hearsay evidence.  Nonetheless, it is within the discretion of the trial court to make such a ruling since these are questions of fact, but arising only as a result of the hearsay documents being allowed into evidence.  Therefore, this appeal is not based on those questions of fact, but instead is based only on the question of law regarding the application of Georgia's "new" evidence rules.

Pretty compelling argument. I would also add that ex post facto applies because they cannot change the law of the case in midstream. I You are doing good. what is the timeline to appeal? Most states have a 15 day requirement for notice of appeal.

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Pretty compelling argument. I would also add that ex post facto applies because they cannot change the law of the case in midstream. I You are doing good. what is the timeline to appeal? Most states have a 15 day requirement for notice of appeal.

 

30 days to send in the notice to appeal.  I filed a request for an additional 30 day extension yesterday.  Waiting for the court reporter to send me the transcript of the trial.    

 

I hope I have found the silver bullet that can kill this case.  I pray that the transcript does clearly show that the objection was made correctly.   I talked to a lawyer and he was hesitant to do an appeal for a case he was not involved with, which is understandable.  So it looks like I'm going pro se on this one.  Nothing to lose I guess, except of course the slight possibility of accidentally making "bad law" for the entire population of Georgia! 

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Just in case the court is not convinced of the business records argument, you might want to focus some more on Midland's proof of ownership.  Even if the business records are admissible, if Midland can't prove ownership, they have no case.  Here's a suggestion.

 

In Wirth v. Cach, LLC, the ruling of the lower court in favor of Cach was reversed by the Georgia Court of Appeals.  The reason for that reversal was due to the fact that Cach had not proven that it was entitled to file suit.  Among the deficiencies in Cach's claim of assignment was the debt buyer's Bill of Sale which referenced an "Appendix A".  The Bill of Sale provided

 

"Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC ("Purchaser"), dated as of August 25, 2006 (the "Agreement"), does hereby sell, assign, and transfer to Purchaser, its successors and assigns, all right, title, and interest in and to the Accounts listed in the Account Schedule attached (as may be amended in accordance with the Agreement) at Appendix A to the Agreement[.]"

 

The court noted that "Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth's account number as one of the accounts Washington Mutual assigned to Cach."  Wirth v. Cach, LLC, 300 Ga.App. 488, 489, 685 S.E.2d 433 (2009).

The Court of Appeals made the same observation in Hutto v. CACV of Colorado and reversed the lower court's granting of summary judgment to CACV.  The Bill of Sale in that case provided

 

"FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA, National Association ("Seller") and CACV of Colorado, LLC ("Purchaser"), dated as of July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchaser, its successors[,] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit "A" attached hereto and made a part hereof for all purposes."

 

Furthermore, the Bill of Sale stated that it was assignment of "certain accounts" listed in "Exhibit A"; there is no document attached thereto labeled "Exhibit A," and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts.  Hutto v. CACV of Colo., 308 Ga.App. 469, 707 S.E.2d 872, 875 (2011).

 

In Yates v. CACV of Colorado LLC, the plaintiff appealed an arbitration award in favor of CACV.  The Court of Appeals reversed the trial court's decision.  Among the reasons for the reversal, the Appeals Court again noted that assignment of the account had not been proven.

Here, CACV attached to its petition a photocopy of a document titled "Bill of Sale and Assignment of Loans" as evidence that it was the assignee of MBNA's rights under the bank's credit agreement with Yates. CACV, however, did not file a supporting affidavit authenticating that document. Furthermore, the alleged assignment stated that it was an assignment of MBNA's rights "to each of the Loans identified in the loan schedule ("Loan Schedule") attached hereto. . . ." The photocopied document submitted by CACV, however, did not have an attached Loan Schedule and therefore did not demonstrate that Yates's loan had been assigned to CACV.  Yates v. CACV of Colorado, LLC, 693 S.E. 2d 629, 635 (Ga. App. 2010).

 

In each of the above cases, the debt buyers' Bills of Sale referenced another document such as an "appendix" or "loan schedule", yet none of those referenced documents were attached to the bills of sale or affidavits.  (Add here what Midland's Bill of Sale references).

 

In addition, just as the Bills of Sale provided by Cach and CACV did not reference the consumers' names or account numbers, Midland Funding's Bill of Sale does not reference Defendant's name or the alleged account number.

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BV80, your post was extremely useful in completing my appellate brief!!!

 

I did A LOT more research online and was able to rewrite the arguments that I posted originally.  I came up with 3 good solid errors of law with good arguments.

 

It must have been pretty good because Midland's lawyer called me and asked if I would settle the case so they won't have to write a reply brief. hahaha!  Made me feel about 10 feet tall.  

 

I will post another update after I find out if the Appeals Court is going to end up deciding this issue and I hire a lawyer to continue the FDCPA countersuit OR the Midland lawyer sends me a settlement agreement that gives me everything I want.

 

 

 

 

Just in case the court is not convinced of the business records argument, you might want to focus some more on Midland's proof of ownership.  Even if the business records are admissible, if Midland can't prove ownership, they have no case.  Here's a suggestion.

 

In Wirth v. Cach, LLC, the ruling of the lower court in favor of Cach was reversed by the Georgia Court of Appeals.  The reason for that reversal was due to the fact that Cach had not proven that it was entitled to file suit.  Among the deficiencies in Cach's claim of assignment was the debt buyer's Bill of Sale which referenced an "Appendix A".  The Bill of Sale provided

 

"Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC ("Purchaser"), dated as of August 25, 2006 (the "Agreement"), does hereby sell, assign, and transfer to Purchaser, its successors and assigns, all right, title, and interest in and to the Accounts listed in the Account Schedule attached (as may be amended in accordance with the Agreement) at Appendix A to the Agreement[.]"

 

The court noted that "Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth's account number as one of the accounts Washington Mutual assigned to Cach."  Wirth v. Cach, LLC, 300 Ga.App. 488, 489, 685 S.E.2d 433 (2009).

The Court of Appeals made the same observation in Hutto v. CACV of Colorado and reversed the lower court's granting of summary judgment to CACV.  The Bill of Sale in that case provided

 

"FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA, National Association ("Seller") and CACV of Colorado, LLC ("Purchaser"), dated as of July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchaser, its successors[,] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit "A" attached hereto and made a part hereof for all purposes."

 

Furthermore, the Bill of Sale stated that it was assignment of "certain accounts" listed in "Exhibit A"; there is no document attached thereto labeled "Exhibit A," and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts.  Hutto v. CACV of Colo., 308 Ga.App. 469, 707 S.E.2d 872, 875 (2011).

 

In Yates v. CACV of Colorado LLC, the plaintiff appealed an arbitration award in favor of CACV.  The Court of Appeals reversed the trial court's decision.  Among the reasons for the reversal, the Appeals Court again noted that assignment of the account had not been proven.

Here, CACV attached to its petition a photocopy of a document titled "Bill of Sale and Assignment of Loans" as evidence that it was the assignee of MBNA's rights under the bank's credit agreement with Yates. CACV, however, did not file a supporting affidavit authenticating that document. Furthermore, the alleged assignment stated that it was an assignment of MBNA's rights "to each of the Loans identified in the loan schedule ("Loan Schedule") attached hereto. . . ." The photocopied document submitted by CACV, however, did not have an attached Loan Schedule and therefore did not demonstrate that Yates's loan had been assigned to CACV.  Yates v. CACV of Colorado, LLC, 693 S.E. 2d 629, 635 (Ga. App. 2010).

 

In each of the above cases, the debt buyers' Bills of Sale referenced another document such as an "appendix" or "loan schedule", yet none of those referenced documents were attached to the bills of sale or affidavits.  (Add here what Midland's Bill of Sale references).

 

In addition, just as the Bills of Sale provided by Cach and CACV did not reference the consumers' names or account numbers, Midland Funding's Bill of Sale does not reference Defendant's name or the alleged account number.

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I like it when someone takes their darkest day and then continues on the fight. You have your opening brief served and are now awaiting them to write a brief to make it ok. Thank the plaintiffs attorney for f'ing the debt collection industry in Ga. up.

 

This is unfortunate that you have to be the one to have to do this, but it is also fortunate that someone smart like you is the one doing this.

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I got a phone call from a different attorney for Midlands today. Apparently Hannah is out and this new guy is in. But the story is still the same. They want to know what I want so I will agree to drop the appeal.

Since I know Midlands has had to pay out millions to different states for fraud and robo-signing, am I aiming too low if I just ask for a few thousand dollars to cover my time and court costs?

Part of me wants to see this through and get a reversal from the appeals court and make some good case law. But the other part of me just wants it to be over.

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I got a phone call from a different attorney for Midlands today. Apparently Hannah is out and this new guy is in. But the story is still the same. They want to know what I want so I will agree to drop the appeal.

Since I know Midlands has had to pay out millions to different states for fraud and robo-signing, am I aiming too low if I just ask for a few thousand dollars to cover my time and court costs?

Part of me wants to see this through and get a reversal from the appeals court and make some good case law. But the other part of me just wants it to be over.

 

While its always good to have new case law I would look out for yourself first. Make sure they delete the trade lines and account without sending you a 1099. You need to get advice from others here on the money part. A regular FDCPA case is worth at least 3K total, so I would shoot for more since you are approaching the next level. In this situation you might even get them to work with the OC for a total trade line deletion.

 

The attorney you are working with is probably an insurance defense attorney out of Birmingham. All he/she is getting paid to do is make you go away without any more possible damage.

 

Good Luck & Congratulations!  ::USA::

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@NormInGeorgia

 

I got a phone call from a different attorney for Midlands today. Apparently Hannah is out and this new guy is in. But the story is still the same. They want to know what I want so I will agree to drop the appeal.

Since I know Midlands has had to pay out millions to different states for fraud and robo-signing, am I aiming too low if I just ask for a few thousand dollars to cover my time and court costs?

Part of me wants to see this through and get a reversal from the appeals court and make some good case law. But the other part of me just wants it to be over.

 

If you want the judgment reversed, then I would think that what it would take for you to drop the appeal would be for Midland to get the motion vacated and to cease any and all collection efforts in connection with the account.   As Art suggested, also include the deletion of Midland's TL on your CRs.  I suppose you could throw in your court costs, but I'm not sure they'd go that far.

 

I'm also wondering if you could include that the account be considered paid.  I don't mean that the judgment is paid.  You want the judgment vacated as if it never happened. 

 

But who knows?  Stranger things have happened.

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