frosted1

Asset Acceptance going for the jugular. Need Help!!

Recommended Posts

Thanks Spikey!

 

The documents I'm referring to are the Loan Schedule and the Loan Sale Agreement, both of which are part of the BOS.  Without them, the BOS does not specify what accounts or debtors are involved, nor does the BOS give the particulars of the assignment.  It simply states that the OC sold some loan accounts to the JDB, but does not identify in any way, which accounts or details of each account.  The cardholder agreement does not state the correct rate of interest info and other important terms.  It does state a different state of law choice than the one I have acquired, but their copy is dated earlier than mine and changes have occurred with the OC that would preclude the earlier agreement and mine has Delaware as the state of law choice.  Those are the details I'm concerned about and considering in my reasons.

 

Am I totally off base, here?  I would like to know what your thoughts are.  You've been through this more than I have.  I have to give great weight to your judgement.  You've been there!  I haven't yet!  And I'm trying to look at all options available.

Share this post


Link to post
Share on other sites

Why would you want them to produce the loan schedule? It's the only proof they have that your account is possibility linked to the BOS. Everything else is hearsay that you can challenge. I don't think the loan sale agreement is critical either, the BOS has the "no warranty" clause on it. I'd only care about that if there wasn't a warranty clause. The card holder agreement is possibly worth perusing, although I believe you mentioned that their's is incomplete which you can challenge them on in court, especially if they're claiming breach of contract in the complaint. 

  • Like 1

Share this post


Link to post
Share on other sites

OK Guys,   

 

 

That's why I was questioning doing a Motion to Compel, because I don't want them to produce those documents.  The way things sit right now, I'm better off if they don't produce them.  I can refute their "standing".  If they try to produce them at the hearing,  I can object to their admissibility on grounds they failed to produce them in the proper time frame allowed by law?

 

Am I understanding this correctly???

Share this post


Link to post
Share on other sites

Thanks Spikey!

So the only documents that they haven't produced that I might want produced are all the statements showing the charges and such from the beginning of the alleged debt that verify the amount they're suing for? Am I right on that? And do I want those documents produced?

Also what other documents should I be asking for? I'm a little vague on that. I could ask for the witness material again. They've not sent any more than their original disclosures. In the M&C I sent, I did ask for a list of all employees of the OC because they did state that they would be calling BofA as a witness, also their own company as witness. They still haven't sent any response to that.

I'm open to suggestions here. And thanks again for all your help!

Share this post


Link to post
Share on other sites

Actually, the more I think about it, the more I think you don't want them to produce all the statements. It comes back to the no warranty clause on the bill of sale. The OC won't guarantee accuracy of the account information, you asked for and they refused to produce the statements, so how can they accurately claim that you owe them $4,200? Keep that in your back pocket, it's a useful argument for trial or a motion.

 

At this point, you can't ask for anything. Discovery is over. The witness list is required to be produced by disclosure. They have an on-going obligation to supplement both disclosure and discovery. If they try to call a witness at trial that's not on the provided list, you can object. If they gave you vague information in disclosure, that's likely something you can object to at trial. You'll have to do some case law review on that to see how judges have ruled on that though. I would not expect that an actual BoA employee will show up at trial. It's possible but highly unlikely. If they won't produce the documents you asked for because of expense, why would they spend money to fly a BoA employee in? We're talking about potentially $500-1000, if not more. Not to mention that generally speaking, once an OC sells an account, they basically wipe their hands of it.

 

I think you're in pretty good shape as long as you keep focused. Avoid the default first before you worry about trial.

Share this post


Link to post
Share on other sites

I would ask for the 8.1 and 8.2 (did't go back and look, I thinkt that is what it was).  It is the documents that say they don't guarentee the accounts except as provided for by 8.1, 8.2.  Commonly referred to as the purchase agreement-- they will never give it to you, but you ask for it because the bill of sale says on its face they don't guarentee the accounts except for what is provided in those sections.

Share this post


Link to post
Share on other sites

The BOS states:  The undersigned Assignor ("Assignor") on and as of the date hereof absolutely sells, transfers, assigns, sets-over, quitclaims and conveys to Asset Acceptance, LLC, a limited liability company organized under the laws of Delaware ("Assignee") without recourse and without representations or warranties of any type, kind, character or nature, express or implied, subject to Buyer's repurchase rights as set forth in Sections 8.1 and 8.2, all of Assignor's right, title and interest in and to each of the Loans identified...............

 

so the loan purchase agreement.

Share this post


Link to post
Share on other sites

so try to compel it anyway--they want his bank records, so why can't he ask for something that is referenced in the bos?  He is entitled to the complete bill of sale, just as they are to the bank records.  I'm just saying, they are trying to fight dirty, sometimes you got to be dirty back.  The worse that could happen is the judge says no.  Then it only reinforces his no guarentee, and standing objections.

Share this post


Link to post
Share on other sites

Guys.... during my research on standing this last weekend, I ran across SQL guy's case from this last year, and noticed he had mentioned in his request for admissions that whoever was suing him was declaring they were going to call Elizabeth Gamache as their witness.  SQL guy's admissions apparently were deemed admitted because the attorney failed to answer them in a timely matter.  

 

The statement made was:  "5. Admit that Plaintiff's witness Elizabeth Gamache has no personal, firsthand knowledge of record keeping procedures, billing practices, Defendant's alleged use of the alleged account, and any alleged agreement between Defendant and DELL FINANCIAL SERVICES/CIT ONLINE BANK."   That being the case, can I use that information to discredit the use of Ms Gamache as a witness in my case?   She would be testifying for Asset Acceptance in my case.  Is she some kind of testifying guru that has knowledge of all cases?  

 

She can't be a witness for the above-mentioned companies as well as Asset and B of A at the same time, can she?

 

Just thinking....    I look forward to your suggestions and remarks.

Share this post


Link to post
Share on other sites

This is completely normal operating procedures for Asset. They have a number of affiants that they use over and over. It's basically robo-signing, and can be challenged at trial when you get to cross-examine the witness.

Share this post


Link to post
Share on other sites

@frosted1

 

She's not testifying for the OC.  Assuming SQLguy is being sued by Asset, his admission asked them to admit she had no knowledge of Dell Financial's record keeping practices because she doesn't work for Dell.  She works for Asset.    In your case, she would have no knowledge of BofA's practices because she never worked for them.

Share this post


Link to post
Share on other sites

Thanks Guys for all your help!  I'm getting closer to feeling like I can withstand, at least!

 

One question.... tell me, what should I be redacting?  I do now have the 3 years of bank statements.  It's quite a stack of paper.  Do I redact my name? The Bank's name?  The account #?

 

I figure it's going to take me a bit of time to do so.  I want to get started asap.

 

Once I have the redacting done, do I take them to the Court immediately or deliver them to the attorney's office.  Or do I wait and present them at the hearing?  There's no way I'm going to mail them.  Too much cost involved and I've already shot the budget.

 

Looking forward to hearing from you.  Thanks for your help and suggestions!  Frosted 1

Share this post


Link to post
Share on other sites

Thanks Guys for all your help!  I'm getting closer to feeling like I can withstand, at least!

 

One question.... tell me, what should I be redacting?  I do now have the 3 years of bank statements.  It's quite a stack of paper.  Do I redact my name? The Bank's name?  The account #?

 

I figure it's going to take me a bit of time to do so.  I want to get started asap.

 

Once I have the redacting done, do I take them to the Court immediately or deliver them to the attorney's office.  Or do I wait and present them at the hearing?  There's no way I'm going to mail them.  Too much cost involved and I've already shot the budget.

 

Looking forward to hearing from you.  Thanks for your help and suggestions!  Frosted 1

Bank name is OK to leave as well as your name. Everything else that has nothing to do with the lawsuit, I would redact, All transactions not involved included

Share this post


Link to post
Share on other sites

Thanks, Mr Fletcher, for responding so quickly.  

 

Just to let you know...  there are no payments in the three years requested.  That would mean I would be redacting everything.  Are we referring to grocery and gas purchases, etc. as well.  There's a lot of info there that has nothing to do with the case.  Actually, there's nothing there that has anything to do with the case.

 

That means I'll be redacting the whole page, pretty much.  Is that acceptable?

Share this post


Link to post
Share on other sites

  That would mean I would be redacting everything.  Are we referring to grocery and gas purchases, etc. as well.  There's a lot of info there that has nothing to do with the case.  Actually, there's nothing there that has anything to do with the case.

 

That means I'll be redacting the whole page, pretty much.  Is that acceptable?

 

It's your call on what you redact, simply anything personal you do not think they need to see. It might not go over well with a judge if everything was redacted, but your call.

  • Like 1

Share this post


Link to post
Share on other sites

Mr Fletcher, I sure do appreciate your help.  I get so wound up over all of this legal hype and it's a bit overwhelming to say the least!

 

I am curious about something else that's been bothering me.  When the orders were signed to  provide the bank records, I was not notified by Plaintiff or the court until after the time had passed for me to have complied.  When I remarked about that in one of my objections, plaintiff claimed it was not her duty to inform me the orders had been signed.  Is she correct in this matter?  Because everything else I've read, states that she should have let me know the orders had been signed, once she was aware of it.

 

Also, there have been three different attorneys representing this case since its inception, one of which left the employment of this company.  I was never notified of any particular changes, just noticed, myself, when the signatures were different.  A notice of hearing was sent incorrectly to the old attorney of record, which the latest attorney claimed was the cause of her missing the hearing altogether.  Should that not have been her responsibility to make sure the proper notification was sent out?  I'm not sure if it could be any help to me, except to point out to the judge that their work has been sloppy, at best, which might help to alert the court to the harassing techniques used by this firm.  What do you think?

Share this post


Link to post
Share on other sites

Mr Fletcher, I sure do appreciate your help.  I get so wound up over all of this legal hype and it's a bit overwhelming to say the least!

 

I am curious about something else that's been bothering me.  When the orders were signed to  provide the bank records, I was not notified by Plaintiff or the court until after the time had passed for me to have complied.  When I remarked about that in one of my objections, plaintiff claimed it was not her duty to inform me the orders had been signed.  Is she correct in this matter?  Because everything else I've read, states that she should have let me know the orders had been signed, once she was aware of it.

 

​It is up to the Court to issue the order and that is who you should have heard from. I have had some issues with receiving items from the Court also. I would check with the Court Clerk and ask about the discrepancy. You do not want this to happen in the future.

 

Also, there have been three different attorneys representing this case since its inception, one of which left the employment of this company.  I was never notified of any particular changes, just noticed, myself, when the signatures were different.  A notice of hearing was sent incorrectly to the old attorney of record, which the latest attorney claimed was the cause of her missing the hearing altogether.  Should that not have been her responsibility to make sure the proper notification was sent out?  I'm not sure if it could be any help to me, except to point out to the judge that their work has been sloppy, at best, which might help to alert the court to the harassing techniques used by this firm.  What do you think?

 

I would point out to the Judge you did not receive the order from the Court until after the deadline for response. You should have also received the notice of hearing from the Court. Something is wrong here!! Again talk to the Clerk to see what can be done to fix it!

  • Like 1

Share this post


Link to post
Share on other sites

Sorry, Mr Fletcher, I didn't mean to mislead you.  The attorney is the one who didn't get the notice of the hearing because no one told the court that the original attorney was no longer working for the firm.  So the court sent the notice to him instead of her.  Convenient, don't you think?  Crap happens!  I understand that.  I was just hoping it might be something useful to my case.   

 

Should I even consider doing a Motion in Limine before the hearing?  Not really sure of the differences between MSJ, MTD and MIL.  They all seem to ask for dismissal.  Could you shed some light on this?

Share this post


Link to post
Share on other sites

MIL's are generally introduce at trial. Your upcoming motion for default has nothing to do with evidence you want to preclude. 

Share this post


Link to post
Share on other sites

 

Should I even consider doing a Motion in Limine before the hearing?  Not really sure of the differences between MSJ, MTD and MIL.  They all seem to ask for dismissal.  Could you shed some light on this?

 

Listen to Spikey. My only thought is it may let the Opposing counsel know they will be in for a fight,

Share this post


Link to post
Share on other sites

Thanks, Mr Fletcher, for responding so quickly.  

 

Just to let you know...  there are no payments in the three years requested.  That would mean I would be redacting everything. 

If it shows no payments then they actually do you some good. You only have to redact what you are very uncomfortable with them seeing. Maybe only your ss#. You probably don't care if they see payments to other companies.

If they don't show payments then the plaintiff won't be using them against you anyway. However you may use them to help prove it's not your account etc.

And you are supposed to send them to the lawyer. Just to get under their skin (and send a good message) I would call them (and speak only to the lawyer) and tell them you have the records but can't afford to send them. Ask for a stamped envelope from them (don't tell them that they show no payments).

Share this post


Link to post
Share on other sites

I would only redact things like your ssn, automatic paycheck depositing into your account. If you redact the other stuff they have no way of knowing if any payment was made to the bank or not. You were taking them to the hearing, right?

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.