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Received response to request for production. Now what?


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So I am just a few weeks out from my court date. I have issued a request for production from the JDB and I received a bundle of papers from them. Most of it is the same old stuff, but I am concerned about one item in particular and I am not sure how to proceed.

 

What they sent to me is this:

 

The same bill of sale they sent when the case was filed

 

The same generic cc agreement sent when the case was filed

 

Statement from the alleged account - this time it is a years worth, not just one as when the case was filed

 

An invoice from the JDB same as the one sent when the case

 

An excel spread sheet that has my name and alleged amount owed - not included with original fling

 

The one that concerns me:

 

An affidavit from the OC, dated early this year, that states they affirm all documents and are true an correct and that they vaildate that the debt and amounts are legitimate.

 

Originally they sent an affidavit from someone that works for the JDB that said the same thing. I know that one would be easy to have dismissed as hearsay because that person did not work for OC and therefore could not verify the debt. But what about this one? I don't see how I can get around it.

 

I have tried to find information on this and have not found very much. Apparently the JDB's are catching on that their affidavits are useless and they are trying to find a way around it.

 

I was really hoping to get this thing dismissed and I am trying not to get disscouraged, but to me things seem as if they just took a turn for the worse. Any help is greatly appreciated.

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Thanks Bruno for responding. I will have to post it when I get home in a bit.

 

Basically it says that so in so is a representative that works for the OC and they affirm that on such and such day my alleged account was sold to JDB.

 

It also states that the affiant affirms that all of the documentation sent to the JDB is true and correct and that the affiant has knowledge about how the OC kept all of their records.

 

What I find interesting is that the affidavit is signed at the beging of this year. The account was allegedly sold mid 2011. That is an 18 month difference. And the affiant is in NC when the person that signed the bill of sale was in another state. How could the affiant from the OC state that they know that all of the documents given to the JDB are true and correct when they were not there when the account supposedly sold?

 

Does the affidavit have to state what documents the affiant is saying are true and correct?

 

There is also a clause in there that says that the original contract may no longer be available. That to me is a weird statement. They are admitting basically that they don't have it.

 

I have read that the signed agreement is necessary for them to win and I have also read that it is not. Do you know which is true?

 

Thanks again for your help and I will post the affidavit later this evening.

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Must be BofA, they are in NC and so are their affiants. Deion Sanders maybe? They all say the same thing. The fun part is when you get them on the stand and they have to admit they sign 300 of these per day. Leaves lots of time to study your account, huh. Bet they never signed one that contravened the position of their employer, huh? We call this go look for another job. 90,000 affidavits per year, all in favor of your employer. Yeah, you're not biased. Somebody from TX will fill you in on all the details of the rules of evidence, but the strategy is universal. These are paid hacks who wouldn't dare go against their boss.

 

There are no signed agreements in credit card cases. Forget this, did you sign one? Nope. If you did, you'd be the first. They should be required to produce all of the cardholder agreements that apply to the account. Ask for them in discovery.

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You are correct Bruno. The affiant is a Cristina someone. Don't recall the last name at the moment.

 

I am trying to figure out how  I would motion to strike. I know that time is running out.

 

This bundle of papers I received today may not be a response to my request for productions. I want to say that the heading on the front page said something about business records. It did not say anythign about a response. I will have to let you know when I get a chance to look at it again.

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Does the affidavit state that YOUR account was sold to the JDB?  Or does it simply reference "accounts"?

 

 

What I find interesting is that the affidavit is signed at the beging of this year. The account was allegedly sold mid 2011. That is an 18 month difference. And the affiant is in NC when the person that signed the bill of sale was in another state. How could the affiant from the OC state that they know that all of the documents given to the JDB are true and correct when they were not there when the account supposedly sold?

 

It's possible you'd have to show that BofA would have no records left for the affiant to have reviewed.   We know that the affiant didn't review diddly, but you have to do more than make the claim.  If it's assumed the bank still has records, the affidavit could be made at a later date.  Also, she would not have to present at the sale.  Again, she'd be reviewing records.

 

A good attorney could probably rip the affidavit to shreds, but most of us here are not attorneys.  If you subpoena an affiant, you have to know what to ask.

 

If the affidavit states that YOUR account was sold, the JDB is going to use that to prove their ownership of the account.  If it doesn't make that claim, then the JDB will use the affidavit to try to authenticate any cc statements they provide.  You need to see how your courts have ruled regarding debt, affidavits, a valid assignment, etc.

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Yes, the affidavit does include my name. This is what it says:

 

(all the legal stuff at the top)

 

The undersigned, Cristina Ordonez, being duly sworn, states and desposes as follows:

 

1. The Affiant is employed by FIA Card services in the position of Bank officer has personal knowledge of the manner and method by which FIA card services maintains its normal business book and records and is duly authorized to make this affidavit.

 

2 The contents of this affidavit are believed to be true and correct based on the computerized and hard copy books and records of FIA cs maintained in the ordinary course of business with the entries in them having been made at or near the time of the transaction recorded.

 

3. That FIA cs is a wholly owned subsidiary of BoA and is successor in interes to MBNA blah blah blah (other bank names)

 

4. That the records for FIA ca show that:

    a. Account number (blacked out) formerly account number (blacked out) was opened on (date) by my name.

    b. Pursuant to the terms of the card member agreement with FIA there was due and payable $$$ as of the charge off date of $$$.

    c. said agreement and account was on (date) sold transferred and set over unto AA with full authority to do and perform all acts     necessary for collection settlement adjustment compromise or satisfaction of the said claim and as of that date there was due and payable on this account the sum of $$$ with all just and lawful offsets payments and credits having been allowed. 

    d. There were no uncredited payments just counter claims or offsets against said debt when sold.

 

5. That as a result of sale of said account AA and its authorized agent has complete authority to settle adjust compromise and satisfy same and that FIA has no further interest in the account for any purpose.

 

6. That the original contract in this matter may not be available or no longer accessible to Affiant. 

 

It is then notarized.

 

 

 

I feel like I am screwed. I am trying to remain optimistic but it is getting harder.

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Usually, an affidavit by an OC can be compelling.  In this case, the account number was blacked out.  As a result, it might possibly be argued that there's no evidence that the account referred to in the OC affidavit is the same account claimed in the JDB complaint.  As a result, the affidavit doesn't show that the account referenced in the JDB complaint was included in any sale.  Nor does the affidavit authenticate any cc card statements because due to the redacting of the account number, there's no evidence the records referred to in the affidavit are the same records offered by the JDB.

 

BUT, I have to play the devil's advocate.  The affidavit did reference your name.  What would you do if the judge asked you if you had more than one account with the OC?   If you had only one account with the OC, it would stand to reason that the account referred to in the affidavit would the same account for which the JDB is suing.

 

Let me qualify that by saying I don't know if the judge would ask that question.  I just want you to know it's possible.

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It is notarized at the bottom by a Marty Jarrell. 

 

I have talked it over with my husband and I feel that I need to consult an attorney. I did not want to do that. I thought going into this that I had a good chance of defending myself but I fear that if I do with this new "evidence" I will end up paying a lot that I don't have and I really don't want a judgement hanging over my head. 

 

At the very least a lawyer could get the amount owed reduced, and at the most he could get it dismissed. I think either way it will be the cheaper way to go instead of defending myself. 

 

If anyone out there has a different opinion please share it with me. 

 

Thanks you everyone for your input.

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well I guess it would depend on if you could tear that affidavit apart.  Who is to say the dbj didnt forge that affidavit?  Is it dated at the time of the bill of sale? Because if it wasn't then it is a fake.  What state was it signed in, was it where they sell accounts?  Can yo find any links to robo signing with same affiant or notary? 

Defending yourself will take time, and homework.  Most people don't want to deal with it.  It is hard to learn a new language, and this court stuff is a new language lol.  Not by any means an expert here, stil learning, in fact I am still in kindergarten, but I do know you have to look at each piece of evidence, and then find ways to tear each down.  Sometimes the obvious isn't so obvious.

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I agree this is a new language for sure. The affidavit was signed in NC and the bill of sale was signed 18 months before that in Delaware.

 

I just noticed something on the Affidavit of Sale from BoA. There is an inconsistency. The third paragraph states that BoA sold accounts on or about -- 2001. Then it is dated in 2011. 

 

I know this is probably a typo, but is it something that could be used? Just a thought. I am probably just hoping too hard. 

 

My husband is sure that the affidavit from the OC is fake, and I am pretty sure it is too. Just don't know how to prove that. I am looking for something online that links it to being fake.

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The affidavits were not submitted together. The first one, the affidavit from the JDB was submitted with the original petition. I think that after I answered the summons and interrogatories they decided to get the affidavit from the BoA since they figured out they were not going to get a default judgement from me. The affidavit from BoA was submitted with the filing of business records and the affidavit from the JDB is not included with that filing.

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is it dated the same as the same as the business records--when they were sold?  I ask because it is highly doubtful she would sign one after the fact, ie when jdc needed it, she would have had to signed it when the sale was made.  They sell these accounts with no guarantee, usually if they have an affidavit from the OC, it is because the OC is the one suing.

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I guess I didnt read the above part of this thread lol.  So she signed it 18 months after it was sold. Ya right. 

I would call the OC, tell them you want to settle on this account and have them look it up.  (stay with me here we know you are not going to settle)  The nice person on the phone will tell you that you can't settle, because they have sold the account.  Act surprised, and ask her to please tell you some more information.  (I did this when OC was suing me, and found out OC was not suing me at all it was a attorney that also is a jdb, but he could use their name becasue of his attorney status)  Anyway, get all the info you can.  IF she can tell you info, they still have records, if she can only tell you it was sold, ask her to who.  This will also tell you if it was actually sold to someone else first, then the jdb that is suing you.  If you have this info, you may be able to tear apart affidavits apart.  That Would be even better if you could prove affiant doesn't work for BOA.  Just some thoughts here.

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They sell these accounts with no guarantee, usually if they have an affidavit from the OC, it is because the OC is the one suing.

 

If the OC affidavit states the account was sold, then it was sold.  Therefore, the OC is not suing.

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If the OC affidavit states the account was sold, then it was sold.  Therefore, the OC is not suing.

I understand that, and I am not saying it wasn't, but she could find out who it was sold to first, OR and if they still have records.  If they don't then how did affiant verify them 18 months later?  Like I said, just some thoughts lol

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