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Sworn Denial/Affidavit of Debt from the OC


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If I have filed a Sworn Denial in response to the Affidavit of Debt provided by the JDB (CACH, LLC) - signed by an employee of the OC.  Will the affiant have to appear in court to testify in person?  This person lives in another state.  

 

Can the JDB win their case against me based on that Affidavit of Debt without having to provide a signed contract?   

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1.)  Send  Attny Special Interrogatories and Admissions regarding Affiant (Person who Signed Affidavit)

Who are they .......

Where do they reside .......

who and where do they work for .......

Work contact info ........

Type of work they perform .....

Any and All witnesses they will bring to trial ..............

(purpose) : deposition

 

2.) The Affiant will have to show up regardless...

A witness will have to testify ...  You cannot put the Document on the "Stand" ....

 

3.) Hammer them with Discovery regarding Affidavit ....

Plaintiff doesn't answer ???  File a "Motion to Compel" ......

 

4.) If Plaintiff enters affidavit into evidence , "Object" ....... 

Affidavit is Hearsay ,

Look into "AZ" Hearsay rules .......

 

Rule 802. Hearsay Rule

Rule 901. Requirement of Authentication or Identification

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If I have filed a Sworn Denial in response to the Affidavit of Debt provided by the JDB (CACH, LLC) - signed by an employee of the OC.  Will the affiant have to appear in court to testify in person?  This person lives in another state.  

 

Can the JDB win their case against me based on that Affidavit of Debt without having to provide a signed contract?   

On a grant of Motion for Summary Judgment no affiant will be appearing to testify for opposing. At trial (or court connected arbitration if in AZ Superior Court and below the limit of $65k or so) the affiant should have to make an appearance. They will likely motion to appear telephonically if it proceeds beyond an MSJ.

 

My guess is, yes (depending on the judge) I would think that they can "win" their case on a grant of Motion for Summary Judgment ("MSJ") as we saw in these Arizona cases:

ACARTA, LLC v. Baker, No. 1 CA-CV 12-0344 (Ariz. Ct. App. May 2, 2013).

http://scholar.google.com/scholar_case?case=2248701516371361069

&

Wells Fargo Bank, NA v. Allen, 292 P.3d 195, 231 Ariz. 209 (Ct. App. 2012).

http://scholar.google.com/scholar_case?case=16306185451700995909

 

Of course it was not a permanent victory on the MSJs grants for these collection attorneys as the judges' errors were reversed when the self-represented parties successfully appealed. They are good reading on what the plaintiff will need to do/provide to make their MSJ non-reversible.

 

I always want to make a solid trial court record just in case I need it for appeal. I always like to expose opposing's missing elements for any and all causes of action that they filed with the court.

 

That affidavit opposing provided from the OC is likely close to low quality toilet paper and I'd inspect it closely for what it actually states and not what I thought it states on a first or second read. I'd research a bit to see if the affiant or the notary is a known robo-signer. Is the notary's commission current for the state they are signing in?

 

Not too familiar with JDB litigation but I would think they need some kind of bill of sale proving up standing. This site should have some posts with good insights based on experience with JDBs. If I was to be sued by a JDB I would search for and read any and all applicable threads here and would expect to find some really good posts that could assist me in handling a JDB suit.

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1.)  Send  Attny Special Interrogatories and Admissions regarding Affiant (Person who Signed Affidavit)

Who are they .......

Where do they reside .......

who and where do they work for .......

Work contact info ........

Type of work they perform .....

Any and All witnesses they will bring to trial ..............

(purpose) : deposition

 

2.) The Affiant will have to show up regardless...

A witness will have to testify ...  You cannot put the Document on the "Stand" ....

 

3.) Hammer them with Discovery regarding Affidavit ....

Plaintiff doesn't answer ???  File a "Motion to Compel" ......

 

4.) If Plaintiff enters affidavit into evidence , "Object" ....... 

Affidavit is Hearsay ,

Look into "AZ" Hearsay rules .......

 

Rule 802. Hearsay Rule

Rule 901. Requirement of Authentication or Identfication

Should I file a Motion to Strike the Affidavit? What happens if it is denied?  I have been preparing a Request for Production of Documents and I included on the request:  

 

"3. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally."

 

 

 

***From what I read, the affiant seems to only be attesting to the balance on the account at time of sale, last payment, when the account was opened, and that the account, among others, was sold to the JDB.  The Affidavit does not claim that the affaint has personal knowledge of the account.  Does that matter?

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On a grant of Motion for Summary Judgment no affiant will be appearing to testify for opposing. At trial (or court connected arbitration if in AZ Superior Court and below the limit of $65k or so) the affiant should have to make an appearance. They will likely motion to appear telephonically if it proceeds beyond an MSJ.

 

My guess is, yes (depending on the judge) I would think that they can "win" their case on a grant of Motion for Summary Judgment ("MSJ") as we saw in these Arizona cases:

ACARTA, LLC v. Baker, No. 1 CA-CV 12-0344 (Ariz. Ct. App. May 2, 2013).

http://scholar.google.com/scholar_case?case=2248701516371361069

&

Wells Fargo Bank, NA v. Allen, 292 P.3d 195, 231 Ariz. 209 (Ct. App. 2012).

http://scholar.google.com/scholar_case?case=16306185451700995909

 

Of course it was not a permanent victory on the MSJs grants for these collection attorneys as the judges' errors were reversed when the self-represented parties successfully appealed. They are good reading on what the plaintiff will need to do/provide to make their MSJ non-reversible.

 

I always want to make a solid trial court record just in case I need it for appeal. I always like to expose opposing's missing elements for any and all causes of action that they filed with the court.

 

That affidavit opposing provided from the OC is likely close to low quality toilet paper and I'd inspect it closely for what it actually states and not what I thought it states on a first or second read. I'd research a bit to see if the affiant or the notary is a known robo-signer. Is the notary's commission current for the state they are signing in?

 

Not too familiar with JDB litigation but I would think they need some kind of bill of sale proving up standing. This site should have some posts with good insights based on experience with JDBs. If I was to be sued by a JDB I would search for and read any and all applicable threads here and would expect to find some really good posts that could assist me in handling a JDB suit.

Thank you for posting this info.  Can the Plaintiff file for a Motion for Summary Judgement BEFORE discovery is completed by both sides?  I thought the Sworn Denial would overrule the Affidavit and force the affiant to testify in person, or be deposed.  

 

The more I read, the more I learn, but I also become even more confused!    

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1.) Should I file a Motion to Strike the Affidavit?  NO...  Not unless your sure the Affidavit has been entered into evidence...

You can call the clerk of the court  , give them your case # .   And ask what Documents have been entered into evidence ....

 

 

 

2.)  I have been preparing a Request for Production of Documents and I included on the request:  

 

"3. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally."

 

  A.)   You need to HAMMER "Assignment of Debt" .....

 

3.) From what I read, the affiant seems to only be attesting to the balance on the account at time of sale, last payment, when the account was opened, and that the account, among others, was sold to the JDB.  The Affidavit does not claim that the affiant has personal knowledge of the account.  Does that matter?

 

A.)  Absolutely ....  The Affidavit is Garbage .... Complete Hearsay .....  The Affiant is Bogus.....

Hammer them with Discovery regarding this worthless paper , and see how fast they Back pedal .....

 

 

Send me a personal message when you get a chance ....

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1.)  Send  Attny Special Interrogatories and Admissions regarding Affiant (Person who Signed Affidavit)

Who are they .......

Where do they reside .......

who and where do they work for .......

Work contact info ........

Type of work they perform .....

Any and All witnesses they will bring to trial ..............

(purpose) : deposition

 

2.) The Affiant will have to show up regardless...

A witness will have to testify ...  You cannot put the Document on the "Stand" ....

 

3.) Hammer them with Discovery regarding Affidavit ....

Plaintiff doesn't answer ???  File a "Motion to Compel" ......

 

4.) If Plaintiff enters affidavit into evidence , "Object" ....... 

Affidavit is Hearsay ,

Look into "AZ" Hearsay rules .......

 

Rule 802. Hearsay Rule

Rule 901. Requirement of Authentication or Identification

If the JDB files the Affidavit along with the Summons/Complaint, would it be wrong for me to assume they intend to use the affidavit as evidence?  I did receive their list of witnesses they intend, or could, call to trial, but the affiant was not listed.  

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how far into litigation are you?  Did you answer the complaint? Have you done initial disclosure? are you in, or has discovery been completed?

 

If you file a motion to strike affidavidt it will probably get denied, the affidavit is not entered into evidence, they attached it to the complaint, they will try to enter it.  Your time to get it tossed would be in a motion in limine (ruled on at trial) or at trial.

 

Do you have another thread? It is hard to help when all the information is not in the thread.  and yes they could file a motion for summary judgement, but if you have ongoing discovery, you could probably beat it with a good objection.

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how far into litigation are you?  Did you answer the complaint? Have you done initial disclosure? are you in, or has discovery been completed?

 

If you file a motion to strike affidavidt it will probably get denied, the affidavit is not entered into evidence, they attached it to the complaint, they will try to enter it.  Your time to get it tossed would be in a motion in limine (ruled on at trial) or at trial.

 

Do you have another thread? It is hard to help when all the information is not in the thread.  and yes they could file a motion for summary judgement, but if you have ongoing discovery, you could probably beat it with a good objection.

I posted my info below - go down to next thread/post

 

The only documents that have filed from my end are the answer to the Summons/Complaint (Breach of Contract), and I also filed a Sworn Denial (in the form of a graduated denial).  

 

I prepared my Disclosure statement, and Request for Production of Documents, but I have not prepared any Interrogatories.  

 

According to what I read under the AZ civil procedures, the only document I need to file within a time limit (40 days from my answer) is my disclosure.  There appears to be no order as to how I complete discovery unless ordered by the court.

 

How will I know what they enter into evidence?   

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Thank you for your assistance.
 
1. Who is the named plaintiff in the suit? CACH, LLC 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Law Office_______

 

3. How much are you being sued for? $3,000

4. Who is the original creditor? (if not the Plaintiff) US Bank 

5. How do you know you are being sued? (You were served, right?) I was served.

6. How were you served? (Mail, In person, Notice on door) In person/at my door.

7. Was the service legal as required by your state? Yes.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  I believe letters were sent via mail from the attorney's office, but were left unopened.  

9. What state and county do you live in? Arizona, Maricopa

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) within the SOL - don't want to say

11. What is the SOL on the debt? 3 (oral contract), 6 (written)

12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). No.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.  No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? The complaint is Breach of Contract.  We responded the day we we received the summons, and filed our answer with the court "need further documentation".

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 

 

1.  Exhibit "A" - a copy of a contract from the OC.  Not an original, or copy of a signed contract. It does list names with a bar code, as if it had been mailed.  

 

2.  Affidavit of Claim and Certificate of Amount Due - this document is signed by an employed auditor of the OC.  It lists the balance shown on the books, last payment date, the date of the sale of account to CACH, LLC, the account numbers and names on the account.

 

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