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BEWARE - Even with crappy lawyers, they're still getting better!

 

My civil hearing was today. As the title states, I lost.

 

I was unrepresented, as I could not afford a lawyer.

 

Asset hired a local lawyer who was not well prepared. When the magistrate asked questions, she would say she did not know or did not have the requested information. She had obviously not studied the papers she did have because she was just as confused as I was AND didn't even realize there were 2 separate bills of sale until I started to question ownership.

 

She started off by showing me a copy of a Dell/Citibank (OC) cardholder agreement that had no personal information on it. She then handed me 3 pages for a "bill of sale." All 3 pages looked exactly the same and were pretty generic. Somebody from Dell made a general statement saying they have access to accounts and have knowledge of the process of selling accounts and somebody from "WEBANK" (never heard of them) basically said the same thing. I did not see my account number anywhere. Believe me - I read and re-read everything! Also, it turned out there were actually 4 pages and at first, she told the magistrate she didn't have the missing page so I almost got her on that, BUT she decided to go through her folder again and after taking another look, she found it. Without it, she would not have been able to prove that Asset bought it from WEBANK & therefore, Asset would have had no standing to sue.

 

Additionally, the lawyer showed me account records that belonged to Dell, which showed the original sale, all my payments, and late fees, and also showed that Dell charged-off the account in May 2011. I tried to get out of that by saying those are Dell's records and that somebody can't just take somebody else's records, put them in a file, and say "hey, those are my records." However, the magistrate ruled that it was admissible evidence.

 

I was sworn in and the lawyer asked me many stupid questions that naturally, 5 years later, I don't remember the answers to most of. She wanted to know when I bought the stuff, when I received it, when I made the last payment, and also if it was one purchase or multiple and whether I still had the said items in my possession or had I surrendered them to Dell. The magistrate verified my previous addresses for the past 5 years as well.

 

The magistrate asked if I had anything to add and I pointed out that my signature was nowhere to be found (I know it's electronic but hoped to catch them off-guard) and my account number was nowhere on the "bills of sale" either and that the said "bills of sale" did not state they had direct knowledge of MY particular account. The lawyer pretty much said it would be inconvenient to get a list of account numbers because they buy them in bulk and every other account number except mine would have to be redacted. (Yes, I know & that's why I tried that tactic.) On all points, he sided with her. ::drowning::

 

By this time, I knew my chances of coming out on top were slim. Then, he surprised both of us by asking how long it had been since I got my drivers license. I wasn't sure what relevance that had but replied that I do not have one. He asked when the last time I did have one was. Never. Never had one. He just looked over at the lawyer, who said "I'm not sure what you're implying sir." He told her that if I didn't have a license then I couldn't have made the original agreement with Dell. I wish there would have been somebody else there to see how quickly she leapt from her chair, approached the bench, and started frantically searching for the license number on the documents she had presented to him.

 

I thought maybe this would be my saving grace....until she said "if they don't have a license, sometimes a Photo ID can be used." Pop! My bubble was burst. Yes, I have one and yes, it was valid then and is valid now.

 

That was that. I gave it my best shot but was soooo upset when I walked out. I will soon be receiving papers in regards to the over-$3k judgment plus court costs. In those papers will be instructions on how to appeal but I'm not sure it's even worth it. I can't hire a lawyer and don't want to hire one now, lose again, and lose even more money.

 

I just don't understand how Asset can do this and how courts can rule in THEIR favor. :waah:

 

 

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Because magistrates are not lawyers or judges and typically have limited if any knowledge of the law.  Then on top of that you were up against a lawyer.  Even one from the bottom of their graduating class gets it right once in a while.  

 

You can try an appeal. 

 

 

She started off by showing me a copy of a Dell/Citibank (OC) cardholder agreement that had no personal information on it. She then handed me 3 pages for a "bill of sale." All 3 pages looked exactly the same and were pretty generic. Somebody from Dell made a general statement saying they have access to accounts and have knowledge of the process of 

The magistrate asked if I had anything to add and I pointed out that my signature was nowhere to be found (I know it's electronic but hoped to catch them off-guard) and my account number was nowhere on the "bills of sale" either and that the said "bills of sale" did not state they had direct knowledge of MY particular account. The lawyer pretty much said it would be inconvenient to get a list of account numbers because they buy them in bulk and every other account number except mine would have to be redacted. (Yes, I know & that's why I tried that tactic.) On all points, he sided with her. ::drowning::

 

 I would appeal because I believe PA allows for a trial de novo in appeal.  The error made is that the magistrate took the attorney's word for it that they legally own the debt and could collect on it.  I would have attacked the bolded statement as hearsay.  My statement would have been "your honor I object to the admission of hearsay evidence.  The plaintiff cannot come to court and state "take our word for it we own the debt."  Then I would have attacked the use of "inconvenient" by stating it is inconvenient for me to pay an alleged debt to a collection agency that can't or won't prove they even have standing to collect on the debt.  The law requires they prove they own the debt.  Purchasing "a lot" of debt does not automatically equate to purchasing THIS debt.  Then asked the attorney do you have any evidence to submit that you legally purchased THIS alleged debt?  She has to say "no."  If the magistrate ruled against me I would have made an exception to be noted for appeal.  

 

 

Good luck. This company is one of the worst.

The only problem with this plan is on appeal they could very well come to court with ALL the records.  

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If you were in District Court, you can appeal to the Court of Common Pleas within 30 days of your judgment.  You will get a trial de novo, which means you start over again as if the district court hearing never happened.  Here is some info from Pennsylvania Legal Aid.

 

http://www.palawhelp.org/resource/debt-collection-defense-packet-for-pennsylvan?ref=FVtfq

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Here is a case which discusses PA Rules of Evidence and what documentation is required of creditors to prevail in a debt collection case.

 

http://scholar.google.com/scholar_case?case=9960544943488099936&q=credit+card+debt&hl=en&as_sdt=4,39&as_ylo=2009

 

If you do appeal, start a thread in "Is there a lawyer in the house?" so someone can help with your appeal.

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thanks for the info. checked out the links above. the legal aid provider it keeps referring me to goes by income guidelines, which I exceed. It's also the same office Asset decided to hire to represent them at the District Court hearing.

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I will be calling a hotline provided by my employer. I am entitled to a free 30 minute consultation with a lawyer. I will see if it's even worth it to appeal and if so, if I should get a lawyer to represent me at the court of common pleas trial.

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Some things I noticed are you saying you "tried to explain" or "tried to get out of that by saying". The only way to preserve an appeal is through objection. Did you actually say the words, "Objection, your honor" or "I object"? I don't know how formal this trial was but the judge can't object for you.

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It was just a magistrate. This trial took place in district court. Debating whether I should bother appealing the decision and taking it to court of common pleas.

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And the magistrate knew I was objecting because he turned to the lawyer and said "Miss Cxxxx is objecting to these documents...." It was all pretty informal.

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This is a Coltfan quote from a while back. And it was not Coltfan who said it, it was a judge.

 

"somebody can't just take somebody else's records, put them in a file, and say "hey, those are my records."

 

That being said, the judge made that paraphrased quote after Coltfan made strong arguments that the plaintiff's records did not satisfy the business records exception to hearsay. The quote itself is not the argument and does not work. Actually companies take other companies records and put them in their files and they become their records ALL THE TIME. Accounts are purchased by the thousands daily. If done properly, it is all perfectly legal. JDB's do not do it properly. They do it cheap and easy, cut corners and skimp on how much documentation they buy to save money. THAT is why their records are crap.

 

So in the future, you can't just quote Coltfan's judge. You have to do all of the legwork Coltfan did and argue against the business records as an exception to hearsay by citing where the records fail the exception. In Coltfan's thread he made it sound like he didn't even have to say a word. Probably true because the pleadings (the legwork) were already sitting in front of the judge. The judge knew Coltfan's argument and didn't need to hear it again. Theses cases are won before you step foot in the courtroom. Very rarely will a case take a sudden turn IN the courtroom. Make sound, legal arguments and stress where the documents fail the exception to hearsay.

 

I am sorry you lost your case. Unfortunately I see (right now) you only have 8 posts and 5 of them are on this thread after your loss. This stuff takes a lot of work. I'm not saying you didn't do your fair share of reading and maybe I'm out of line but perhaps a little more questioning on this site may have helped. 

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It would have been very nice if I had had more time to prepare or ask more questions. :) This actually all came about very suddenly. I may or may not have gotten any mail from Asset in the past. I don't know because if it looked like junk, I threw it away without opening. Out of the blue, I received a certified letter saying they were suing me in district court. The date was only a few weeks away. I'm away from home 11 hours a day, 7-8 days in a row plus have a young child to care for. Doesn't leave a whole lot of free time but I did spend as much time as I could reading Q & A on here and researching things pertaining to PA law prior to the hearing. It's just sad that people have to even do this type of thing in the first place. Can't believe Asset is still getting away with this.

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I do have questions now though: I received the notice of judgment/transcription from the district court. What happens now? Will I be contacted by an Asset representative regarding payment? Will they set a minimum payment?

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You might be hauled back into court showing proof of income and assets.  

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It is up to them regarding all of that. They can attach your wages or go after assets in some circumstances. If they go to attach your wages, there is a maximum they can go after depending on what you make.

 

It is a pain for them and they might work with you on setting up a payment schedule. Very hard to say.

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I recommend calling them and trying to work out a payment schedule, assuming you can't afford a lump sum pay off. There still may be some wiggle room to negotiate on a reduced lump sum pay off, but it's unlikely you'll get much of a break if any on a payment plan. You don't have much power in a negotiation at this point and as Flyerfan mentioned they can just garnish your wages if they want to at this point if you don't play ball with them.

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In my state, the exemptions that apply in bankruptcy also apply to judgments.  In other words, what they can't touch in bk, they can't touch in a judgment.  Read your bk laws and see if the exemptions apply to judgments.

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I live in PA and I've seen many people say that they cannot garnish my wages. If they do haul me into court for proof of income and assets, they'll be sorely disappointed. I have nothing to my name except my job and a car that is leased with my husband. Will his income and assets count?? This debt was incurred long before I was married.

 

 

EDIT: found this:

Only under very limited circumstances does Pennsylvania law permit the garnishment of wages. Garnishment of wages is a seizure of wages while they are still in the control of the employer, and have not yet been paid out to the employee. An employee's wages, salaries and commissions may be taken from an employer through appropriate legal procedures to satisfy these kinds of debts:

  • judgments for child or spousal support
  • obligations relating to final divorce distribution
  • PHEAA student loans
  • back rent on a residential lease
  • as restitution for criminal matters
  • for certain types of taxes
  •  
  • A credit card company cannot garnish your wages in Pennsylvania, if you live and work in PA. Under Pennsylvania law, garnishment of wages can only occur in limited circumstances, and a Credit Card Company does not meet those circumstances. In fact, such a threat is illegal as it is a violation of the Fair Debt Collection Practices Act. We can sue the debt collector if they have made such a threat against you.

    On the other hand, a Credit Card Company can garnish your bank account, including wages that are deposited there, IF they first obtain a judgment against you in a Court of Law. <----not liking the sounds of that.

    but nevermind:     An important distinction, however, is that a company cannot garnish a spousal joint bank account unless they obtain a judgment agasint BOTH spouses (very rare in credit card cases).

     

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They cant garnish your wages for debt in PA. You need to spend the $200 to appeal to common pleas court. They will then have to file a new complaint and then you have options. This starts everything over fresh and will be done by paper. You have to answer their complaint and then you have an option to take it to contractual arbitration. Either way you are dealing with real Judges and the doncuments required will be much stricter and by the law. Magistrate Judges are a hit or miss. Some know the debt laws and some dont. Do not pay AA , appeal De Novo. There will be plenty of help on these boards to assist you in answering the complaint.

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The Magistrate should have been familiar with Commonwealth Financial Systems v Smith, but then again, I guess you'd have had to brought it up.

 

At trial, CFS introduced account statements, bills of sale, and credit card agreement. Near the end of the trial, defense counsel objected to admission of CFS' exhibits, arguing they did not qualify as business records under Pennsylvania Rule of Evidence ("Pa.R.E.") 803(6).

 

You have to remember, these were oral arguments, so they were quite lengthy, but the short version is:

 

CFS had a witness they claimed sufficiently authenticated the documents (which were all produced by citibank).

 

Smith argued that the records were subject to Pa. R.E. 902(11) - need to be authenticated by someone from citibank with personal knowledge.

"mere acceptance or incorporation into an assignee's business records is not enough to satisfy the trustworthiness requirements of Pa.R.E. 803(6);" hence, the need for Pa.R.E. 902(11). Ms. Smith's Brief at 7.

 

The trial court agreed and the statements, bills of sale and cardholder agreement were stricken.

Judgment for Defendant.

 

The appeals court opined:

Regardless of a "nationwide trend" and "clear federal precedent" for allowing the introduction of business records consisting of documents generated by third parties, the Pennsylvania Supreme Court has not seen fit to adopt the rule of incorporation. We decline CFS' invitation to do so. Given the current law of this Commonwealth regarding business records and our narrow standard of review, we discern no abuse of discretion by the trial court in denying admission of CFS' exhibits.

 

See also Atlantic Credit and Finance v. Giuliana, 829 A. 2d 340 - Pa: Superior Court 2003

 

 

 

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I totally forgot to mention, I went to MD Court this morning against Asset on three separate complaints totaling $20K. They sent a local lawyer with an empty gun. My file was 2" thick with case law, his had 6 sheets of paper in it: one copy of each complaint and one account summary for each account printed from Assets own entry system. They didn't give this guy anything.

 

The lawyer had been authorized to settle for 50 cents on the dollar. I basically told him that I needed him to prove Asset was the real party in interest and did he have the forward flow agreements, bills of sale and data files showing my alleged account numbers had been purchased.

 

He said, "Are you sure we can't settle this thing? It's a good deal."

I said I didn't think so.

 

His exact next words were, "They always put me in a bad spot, I think I'll withdraw these complaints."

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I totally forgot to mention, I went to MD Court this morning against Asset on three separate complaints totaling $20K. They sent a local lawyer with an empty gun. My file was 2" thick with case law, his had 6 sheets of paper in it: one copy of each complaint and one account summary for each account printed from Assets own entry system. They didn't give this guy anything.

 

The lawyer had been authorized to settle for 50 cents on the dollar. I basically told him that I needed him to prove Asset was the real party in interest and did he have the forward flow agreements, bills of sale and data files showing my alleged account numbers had been purchased.

 

He said, "Are you sure we can't settle this thing? It's a good deal."

I said I didn't think so.

 

His exact next words were, "They always put me in a bad spot, I think I'll withdraw these complaints."

Good for you !  :yahoo:

Hope they do !  ::travolta::

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Good for you !  :yahoo:

Hope they do !  ::travolta::

 

He signed them in front of me. Then we talked to the judge for a few minutes about fishing. He's turning 70 before his term is up, so he can't run again. He's had a history of following the controlling PA Superior Court cases for debt collection suits. It's a shame to lose a consumer friendly judge. I know the guy who will most likely be elected to replace him. Nice guy, but he's not a lawyer, he's one of the township supervisors. What I see happening when the new judge takes the bench is all these JDB attorneys brainwashing the guy.

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He signed them in front of me. Then we talked to the judge for a few minutes about fishing. He's turning 70 before his term is up, so he can't run again. He's had a history of following the controlling PA Superior Court cases for debt collection suits. It's a shame to lose a consumer friendly judge. I know the guy who will most likely be elected to replace him. Nice guy, but he's not a lawyer, he's one of the township supervisors. What I see happening when the new judge takes the bench is all these JDB attorneys brainwashing the guy.

You need to post this in Victory lane... not Lost to Asset... just saying.. ::celebrate::

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You need to post this in Victory lane... not Lost to Asset... just saying.. ::celebrate::

 

Thanks, peanut. I don't think it's worthy of the Hall of Fame Winners thread, but I did post it in my original thread.

I posted it here in the hope that the OP would see it and decide to appeal their case. I think they have a good chance of winning in Common Pleas.

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