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Bill of Sale and Assignment of Assets, Specific Question!


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I love the helpful knowledge/thoughts from the forum members, so "thank you" to whomever responds; all input is very much appreciated!! I hope to reciprocate the help.... :) 

 

I received with my Disclosure Statement from the Plaintiff a Bill of Sale and Assignment of Assets document.  

 

In the language of the document, a "Tape" is mentioned aka "the Assets".  The signed Bill of Sale (by the OC employees)  references a specific "Lot No." along with a No. of Accounts. Attached is a printout which includes the aforementioned Lot No., and full account number of alleged account, along with alleged debtor name, alleged debtor partial social security #, and address and phone nos. of alleged debtor.

 

The "claim" from the JDB is "Breach of Contract".  I have filed an answer, a Disclosure Statement (with helpful advice from this forum, THANK YOU) and now I need to understand fully, what my defense is.  I 60% understand, and I have been reading and reading and reading, as much as I can, to prepare myself for a potential trial, or simply, just the next step in documents that I need to file.  I've also read my sate law in regard to civil procedure, but I have yet to find very specific statutes for my state (AZ).  

 

But my SPECIFIC question is:  Does this JDB have a winnable case based on the possible evidence they might provide?  Aside from the aforementioned document, they also have the following:

 

The Affidavit provided by the JDB attorney is from the OC and it attests to the: 

 

  1) Sale of Account (alleged)

  2) Balance Due (alleged)

  3) The Affiant is an alleged employee of the OC as someone who claims "knowledge of the bookkeeping practices/record keeping practices of the bank", but no "personal knowlege of account or account history" is mentioned.

 

The included information on the AOD is:

 

-The Bill of Sale date is referenced and to whom it was sold to.

-They attest to the new "owner" of the referenced account.

-The alleged date of the account being opened is referenced and the alleged name(s) on the account     and partial social security #s are listed.  

-The alleged balance is listed and last payment date is included in this document.

 

There is also a name of employee of the OC referenced and their "position" along with a statement about their responsibilities.

 

**I filed a Sworn Denial immediately in response to this document. 

 

 

 

I need further direction in my actual defense - state laws and cases.  I do not mind doing the work; but I often need these laws/rules interpreted.  

 

*****I am still unclear on "standing" - although I DID read a thread dedicated to that topic (can't remember the OP).  I don't fully understand the issue of hearsay in regard to "business documents" - a possible loophole the JDB might try to use.

 

I believe my overall defense is rather simple, I just need help in really understanding the law in my state.

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http://www.creditinfocenter.com/community/topic/312400-i-need-help-answering-a-motion-for-summary-judgement-in-az/

This is from beergoggles case in az it has some good case law and his opposition for summary judgment

 

Particularly significant to what evidence Plaintiff must submit are the Business Records Exception, Evid.R. 803(6); the requirement for a witness's personal knowledge, Evid.R. 602; proper authentication of documents, Evid.R. 901 and Evid.R. 902; and submission of originals, Evid.R. 1002. Read together, these rules require that:
1. Plaintiff produce competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of any and all hearsay materials, and
2. The admissible records be sufficient to carry Plaintiff's evidentiary burden.
In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343 the court upheld the trial court’s entry of summary judgment in favor of the defendant where the plaintiff had offered hearsay documents which may or may not have been sufficient to overcome summary judgment had they been properly authenticated pursuant to the Ohio Rules of Evidence. The point was moot as the hearsay documents were not properly authenticated:
Once the appellee established by reference to appellant’s unauthenticated documents attached to the complaint that there was insufficient evidence to establish that the appellant had acquired the account by assignment and that there was insufficient evidence to prove the balance due on the account, the burden shifted to the appellant to demonstrate the existence of genuine issues of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264. Because the appellant failed to properly authenticate the assignment documents and the account statements, the appellant essentially presented nothing of evidentiary value to rebut appellee’s argument and did not create a genuine issue of material fact. Although it is a harsh result, we find that the appellant’s failure to follow the requirements of Civ.R. 56 put the trial court in a position in which it could only come to one conclusion. That conclusion is that the appellee had affirmatively established that there was nothing of evidentiary value to support the essential elements of appellant’s claim for an action on an account. We therefore find that the trial court did not err in granting appellee’s motion for summary judgment.
 

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http://scholar.google.com/scholar_case?case=8784293257508011738&q=standing+to+sue&hl=en&as_sdt=4,3,135

 

Standing to sue doctrine sometimes referred to as standing to sue.

 

Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003

 

A. Standing

 

¶ 16 This court has, as a matter of sound judicial policy, required persons seeking redress in the courts first to establish standing, especially in actions in which constitutional relief is sought against the government. Sears v. Hull, 192 Ariz. 65, 71, 961 P.2d 1013, 1019 (1998). In Sears, we denied standing to citizens seeking relief against the governor because they failed to plead and prove palpable injury personal to themselves. Id. at 69-70, 961 P.2d at 1017-18. A contrary approach would inevitably open the door to multiple actions asserting all manner of claims against the government.

¶ 17 In the federal courts, standing requirements are firmly rooted in Article III of the U.S. Constitution. Indeed, the founders, at the constitutional convention of 1787, circumscribed federal jurisdiction carefully with the requirement that matters brought before the courts must constitute real "cases or controversies." See U.S. Const. art. III, § 2, cl. 1. In short, cognizable injury personal to those seeking redress would have to be shown. The case or controversy requirement provides clear recognition of the separation of powers principle that was central to the creation of our national government. See The Federalist No. 78 (Alexander Hamilton); see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To ensure separation of the powers of government under the U.S. Constitution, federal 316*316 courts have consistently established doctrines "founded in concern about the proper—and properly limited—role of the courts in a democratic society." Allen, 468 U.S. at 750, 104 S.Ct. 3315 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

¶ 18 The federal standing doctrine requires that a court refrain from addressing a case on its merits unless the parties can assert facts that give rise to an actual case or controversy. It is "perhaps the most important of [the Article III] doctrines." Id. To establish federal standing, a party invoking the court's jurisdiction "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751, 104 S.Ct. 3315.

¶ 19 Article VI of the Arizona Constitution, the judicial article, does not contain the specific case or controversy requirement of the U.S. Constitution. But, unlike the federal constitution in which the separation of powers principle is implicit, our state constitution contains an express mandate, requiring that the legislative, executive, and judicial powers of government be divided among the three branches and exercised separately.[6] This mandate underlies our own requirement that as a matter of sound jurisprudence a litigant seeking relief in the Arizona courts must first establish standing to sue.

¶ 20 Concern over standing is particularly acute when, as here, legislators challenge actions undertaken by the executive branch. Without the standing requirement, the judicial branch would be too easily coerced into resolving political disputes between the executive and legislative branches, an arena in which courts are naturally reluctant to intrude. See, e.g., Raines v. Byrd, 521 U.S. 811, 819-20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ("[O]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.").

 

 

 

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I think I finally understand heresay based on this article I came across (pasted below, link follows).  

 

So I absolutely need to object to the Affidavit from the OC, Bill of Sale & Assignment from the OC, etc. if they try to get those docs admitted as evidence because those are not the JDBers business documents; they are from the OC, and unless they produce a witness from the OC to testify, they are useless as long as I object to them.  Correct?

 

 

 

 

Debt Buyer Trial Tactics

Midland Funding‘s attorney will then proceed to try and get documents they received from the original creditor introduced into evidence.  They will try to do this one of two ways: through their witness (custodian of records), or through you, if you are the defendant.  Often in my cases my client can’t be at the trial due to work, and if the debt buyer‘s attorney didn’t subpoena them, they don’t have to be there.

This leaves the debt buyer’s custodian of records.  As defense counsel it is always interesting to sit there and watch the contortions that are necessary for Midland’s attorney to try and get their documents admitted into evidence. The problem they have is the documents they are trying to get admitted into evidence are not documents created by Midland Funding.  Recently, I have had them try and get an affidavit, written and signed by someone else, admitted through one of their other employees.

 

This is where they run into problems.  Courts are not supposed to allow hearsay to be admitted into evidence. Hearsay is basically any out of court statement, either verbal or written, that is intended to prove what ever it is being offered for.  So if the debt buyer is trying to prove that they are the rightful owners of a debt by submitting documents or affidavits that were created by Chase, or Discovery, or Citibank or whoever they are claiming to have purchased the debt from, that is hearsay.

As with all areas of law, there is, of course, an exception to the rule (actually more than one, but I will just focus on one). There is no real question that these documents are hearsay.  The grand hope of all debt buyers is that the judge will allow the evidence to be admitted under the “business records” exception to the hearsay rule (Rule of Evidence 803(6)).  This provides that documents that are created and kept in the normal course of business can be admitted if there is a witness to testify as to how the documents were created and stored.

 

Here is problem number two for the debt buyers – they never have a witness that can testify to those things.  I have never seen a debt buyer have a witness who actually worked for the original creditor.  Their witnesses all work for them.  So at the end of the day, all they can testify to is that some company sent them some documents and where they now store them.  The witness will try and testify to much more, but the testimony is not based on any real personal knowledge – just assumptions.

 

http://www.jdsupra.com/legalnews/judge-it-happens-all-the-time-66780/

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Hi, I'm from Az Just went through a year of this and trial.The best thing to do is PM Seadragon and ask him to give you a link to Jedimamas  Motion in limine to strike all their info.  BOS, Affadavits, CC statements.  Then when you get to court if you have to they have nothing to submit into evidence.

Also the Az laws changed in January 2013 and mimic the Supreme court laws, definately in our favor.  But a motion in limine is your best bet right now

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Hi, I'm from Az Just went through a year of this and trial.The best thing to do is PM Seadragon and ask him to give you a link to Jedimamas  Motion in limine to strike all their info.  BOS, Affadavits, CC statements.  Then when you get to court if you have to they have nothing to submit into evidence.

Also the Az laws changed in January 2013 and mimic the Supreme court laws, definately in our favor.  But a motion in limine is your best bet right now

My head is spinning from reading so much.  I'm not even sure I can make heads or tails of anything right now.  

 

Thank you VERY much for helpful input.  I will PM him....I need every ounce of help I can get!  

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Please do not start any new threads,   Try to get all you threads in this place as you have started so many that I was responding to ones a couple days ago.  Get them all in one place. It makes it hard to help you when all your info is all over the place.

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Please do not start any new threads,   Try to get all you threads in this place as you have started so many that I was responding to ones a couple days ago.  Get them all in one place. It makes it hard to help you when all your info is all over the place.

Oh, ok - good to know.  Woops!  I was a bit confused about adding new information on a thread I had previously posted.  Can I change the topic as I update? 

 

I posted my discovery answers today - hoping for feedback.  Should I leave them posted as-is, or move them to the original thread where all my case info is listed?

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