frosted1

Asset Acceptance going for the jugular. Need Help!!

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Thanks Guys!

 

Shellieh98, I was planning on taking them to the hearing.  It's a fairly large stack of paper.  There would be no time for mailing an envelope to me and me mailing them back to the lawyer.

 

OK Guys, I'm going into the hearing this next Thursday to fight a default judgement for not obeying orders (signed Oct 2, 2013) to provide bank records to Plaintiff's atty within 14 days.  I was not made aware the orders had been signed until Oct 15th, and then still did not receive a copy until Nov 4th, when I retrieved them from the court myself.   I have submitted several oppositions and objections to these orders requesting protection for the records in each one of those documents.  I also stated that I was objecting because Plaintiff had not yet provided evidence of "standing" and felt it was incorrect to produce such records until "standing" was proved.  Going into this hearing, bringing the bank records with me, am I not allowed to approach the "standing" issue in my defense?  Or am I to just produce the bank records and not offer any defense?

 

If this were you, what would you be doing? or how would you be preparing for the hearing?

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I also stated that I was objecting because Plaintiff had not yet provided evidence of "standing" and felt it was incorrect to produce such records until "standing" was proved.  Going into this hearing, bringing the bank records with me, am I not allowed to approach the "standing" issue in my defense?  

 

The standing argument isn't likely going to fly at this point. While I understand it and agree with you, it's not going to help. In order to even bring a lawsuit to bear, they have to claim they have standing, which I'm assuming they've done in the complaint likely through an affidavit and some and cruddy documents they've provided to you. If their lack of standing is really that clear cut, you should have already filed a motion to dismiss based on them not meeting the minimum elements as required per URCP. You could still file an MTD based on this by the way. Barring that, they're claim of standing will hold until you challenge it properly at trial and they are allowed to request essentially anything they want during discovery which they believe will bring relevant admissible evidence. If you've denied ever having an account with the OC or denied it being your account, then requesting bank records is relevant unfortunately. 

 

 

 Or am I to just produce the bank records and not offer any defense?

 

 

If you're not going to argue your case, then why bother waiting for the hearing date. Call the opposition, offer up the records in exchange for making the hearing go away. 

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Spikey,

up until now, the only thing they have provided is an incomplete BOS and an incomplete cardholder agreement, that doesn't, in any way, identify me or the account number they're claiming to be mine. Excuse me, they did provide copies of some statements a month or so ago that show no charges or account activity except some phone payments that I know I never made. But those records were never produced until just recently. They are without authentication from the OC. That's been the point of this issue. They have not produced any creditable evidence to show standing in any way or at any time.

That's what I can't understand... how they can proceed without having had to provide valid evidence of their right to proceed just blows my mind.

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@frosted1 Creditable evidence isn't entirely necessary to bring a lawsuit. Unless they don't meet the standard set in the URCP, as far as the court is concerned right now, they have standing. You can't really argue the finer points of their documentation until it's entered into evidence at trial. In many states, just having an affidavit claiming they have standing is good enough to bring a lawsuit. They still need to prove they have standing of course. Again, if they've failed to meet the standard as set in the URCP, then you should file a motion to dismiss based on what they've failed to meet in the code. Otherwise, you fight that fight at trial.

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@frosted1

 

I agree with Spikey.  In order to bring a lawsuit, pretty much all a plaintiff has to do is allege that it has standing.  "Plaintiff is the owner of xxxx account.  Defendant defaulted on the account."

 

The plaintiff alleged an injury because the defendant defaulted on an account owned by the plaintiff.

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It MAY be that the best time to attack standing is right before the trial begins, because without standing the court lacks jurisdiction to hear the case.

 

However, standing being necessary for the court to have jurisdiction, may be attacked at ANYTIME during the litigation (or even after the case has been heard, as far as that goes, because without standing the court lacks subject matter jurisdiction (which can be attacked anytime, even after a case has been adjudicated).

 

I would recommend attacking standing before the case has been adjudicated however.

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Ok.... so what you're saying is... fight the default only... beg the Court's forgiveness, give up the bank records and live to fight another day???

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Ok.... so what you're saying is... fight the default only... beg the Court's forgiveness, give up the bank records and live to fight another day???

I lost track of what's going on with your case and don't recall how you came about to  be fighting a default, but definitely fight that, as priority. I don't know that the word "fight" and "only" ever go together, if you have something else you can fight, I would not leave it on the table.

 

You aren't begging the courts forgiveness; but asking it to reconsider. Assuming you get passed the default issue; I would challenge plaintiff's standing (and the courts jurisdiction due to this issue) ASAP.

 

As far as the bank records go (from what I recall); they work in your favor, and can be used against the plaintiff's claim, so by all means produce them (I think you were court ordered to do so anyway). One reason that you did not want to give them up in the first place may be that you have  a Constitutional right to privacy, and considered it an invasion of privacy.

Another reason could be that you also have  a Constitutional right to due process, and you felt that the plaintiff; bearing the burden of proof, should be able to do so without your bank records, as any proof of payment should be equally available between you and the OC, and therefor accessible to plaintiff.

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@frosted1 If the judge hasn't ruled on your motion to reconsider, I wouldn't turn the records over till he makes a ruling on it. That motion unless filed after the motion for default should be heard first. Motions are supposed to be heard in the order they were received by the court, unless the URCP says otherwise.

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I don't know. If you have an actual court order, with the word "order" and a judges signature on it, I would view that as a separate  issue from any motion hearing. It should also provide a firm date as to when the records need to be produced.

If it were mine I might fight the issue more if the records showed payments to them, but the OP says they don't, so the records should actually help Frosted and comply with the judges order.

 

I do believe you have Constitutional rights that could be argued against producing the records as well however, it just seems like this is a rare situation where the bank records actually work in the defendants favor.

 

In my opinion.

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Guys, I just want to thank you for all your support and helpful suggestions.  I really appreciate all you've done to get me this far.  I just want you to know that.

 

1. I filed a Motion to Reconsider the Production of Bank Records with the Court November 15, 2013.  

2. Plaintiff sent me their first Motion for Entry of Default Judgment on November 19th, but did not file it with the Court.  

3. On December 2nd I filed my Opposition to Plaintiff's Motion for Default with the Court and sent a copy to the Plaintiff.

4.  I received an Opposition from the Plaintiff, dated December 2nd,  outlining her arguments against my Opposition to the Default. (This I found interesting considering she had not even received my Opposition until December 4th).  (Also, she states: "Plaintiff plans to use the statements to compare against the statements of its client to examine if payments were made from Defendant's account to the Plaintiff's client."  Is the Plaintiff not the "client"?

5.  On December 11th I received Plaintiff's 2nd Motion for Default Judgment, a Request to Submit for Decision & requesting a hearing, reply to Defendant's opposition to the Motion, and she did file this one with the Court.

 

In between all this, we were filing over the Security Bond Issue, which at the last, ended up.. my order being halted until discussions can be had.

 

 Now..  do I need to submit requests for Decisions on my Motion to Reconsider the Production of Bank Records and the Security Bond Issue?  Or am I just sticking with the Default issue?   If I submit a Request for Decision, is there anything else that I have to submit along with it?

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The plaintiff is the lawyer's client.

 

I don't know your rules, but if you can submit a request for decision, and you have time, it may  not be a bad idea, as I it pertains to an important issue. Or; If you don't have time, you could address it at the hearing, assuming you first overcome the default issue, this may be a better method. 

 

You are going to have to beat the default and then fight the other issues. When you overcome the default, move right on to the next issues (bank records, etc.).

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Thanks Guys!

 

Just so I have this straight in my mind... beat the Default is first... but what arguments do I use to defend against the Default???  My thinking was "standing" ,  My reasons being

 

1. Plaintiff has not provided sufficient evidence to show standing and therefore I should not disclose bank records.

2. I have a constitutional right to privacy, until Plaintiff can demonstrate a valid position to be able to claim right to sue.

3. Orders were never properly served by the Court.  Defendant was unaware orders had been signed until several days after time to have acted on them had passed.  Several orders were introduced, but Defendant was unaware as to which orders had been granted until Nov 4th, when defendant retrieved from the court.

 

Help me out here, Guys!  I beg you to straighten me out on this one.  I'm thinking that everything is so intertwined.  How do I separate one from the other?

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Why are you chasing standing as a reason to oppose the default? From my gathering, they filed the motion for default as a sanction for not turning over your bank records. Turn over the records and the motion for default becomes moot. Unless I'm wrong with the time line.

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I guess my reason for turning to standing is that it is one of the reasons I felt I shouldn't have to turn those records over to them until they prove they have a right to them.  It goes against my Constitutional right to privacy against illegal search and seizure as well as them fishing for judgment info.   And why am I having to produce documents to help them prove their case.  Aren't they supposed to do that themselves?

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Frosted they are, but you have the order, just turn them over.  It will not affect your other case, because as you can see this is one of this law firms tactics.  They are going to ask you for your records in the next one you get sued in also.  They asked you, they asked SQL guy, it is what they do.  Deal with it one case at a time, and just give them to them.

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If you aren't going to give up your records then the ONLY way you can fight this decision is with the Constitution. Your right to privacy. Your right to due process (plaintiff bears burden of proof, if proof of payment exist then it would be equally available to plaintiff, and should be plaintiff's burden to bear, you should not have to make their case for them).

 

You would have to stand up to the judge and at some point let him know that you will appeal his ruling and you would need to make sure that all of this objection makes it on the record. 

 

All of the above is exactly what I would do (unless the records worked in my favor), but I don't suggest people do exactly what I would usually do, as it may produce some damaging results. It depends on the person (most people would produce the records).

 

But those are the options, produce the records  or fight the system (with the above method).

 

In my opinion.

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Arguing the Constitution of the United States is not going to go anywhere.  The U.S. Constitution describes the rights that the U.S. Government cannot abridge.   The Fourteenth Amendment says that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

 

Due process means the right to be heard and treated fairly.  In general, discovery rules say that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

 

If our bank records were privileged information under any circumstance, all we would have to do is deny making payments on an account, and the case would be over because the plaintiff would not be able to prove those payments were made by us.  It doesn't work that way.

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Arguing the Constitution of the United States is not going to go anywhere. 

That's your opinion. Vey bold and a bit sad. I know a few Vets and a Judge (friend and customer that has passed on) that would be saddened to hear a statement like that.

 

The U.S. Constitution describes the rights that the U.S. Government cannot abridge.   The Fourteenth Amendment says that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

 

That sounds like argument in favor of my post.

 

Due process means the right to be heard and treated fairly. 

Not violating  your right to privacy IS being treated fairly

 

In general, discovery rules say that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

 

I am well aware of this law. That is why I said the only way to attack it is with the Constitution. No law can be used against you if can be shown that It may be Un Constitutional in how it is being used against you. The Constitution was around a long time before any discovery laws were created. We have a Constitutional right to privacy. If you had to choose only 3 items that you could have a right to privacy over; banking information would be high on the list of most people. We have a Constitutional right to privacy regardless of what discovery laws may say.

 

If our bank records were privileged information under any circumstance,

We are not in a communist country.

 

all we would have to do is deny making payments on an account, and the case would be over

The case IS that we did not make  a payment on the account many times. So you're right, the case would be over. For the defendant.

 

because the plaintiff would not be able to prove those payments were made by us.  It doesn't work that way.

I'm not sure how much of this you really believe. My opinion sounds ridiculous to you and vice versa. Agree to disagree.

 

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That's your opinion. Vey bold and a bit sad. I know a few Vets and a Judge (friend and customer that has passed on) that would be saddened to hear a statement like that.

 

 

I made that statement in regard to this particular case.  Do not apply my statement where it was not intended.

 

Don't you think that if motioning to compel bank records was an invasion of privacy that the attorneys who visit this site would have said so by now?   In another thread, I posted what Nascar stated. 

 

"The bank records are likely to lead to relevant and admissible evidence showing payments made on the account. For that reason alone, they are discoverable."

 

If he had believed it was an invasion of privacy, he wouldn't have made that statement.

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I made that statement in regard to this particular case.  Do not apply my statement where it was not intended.

I didn't. I applied your statement right here in this very thread, pertaining to this particular case.

 

Don't you think that if motioning to compel bank records was an invasion of privacy that the attorneys who visit this site would have said so by now?  

In another thread, I posted what Nascar stated. 

There's only about 5 regular posting attorney's on this site and millions in practice.

 

"The bank records are likely to lead to relevant and admissible evidence showing payments made on the account. For that reason alone, they are discoverable."

 

If he had believed it was an invasion of privacy, he wouldn't have made that statement.

Maybe he doesn't believe it then, I don't know. I was talking about my opinion, and your opinion. I don't automatically agree with someone just because they are a lawyer. I didn't say they weren't discoverable or that it wasn't a rule. I said I would challenge it that in this situation it would be Un Constitutional. I didn't say it was a slam dunk and I didn't clear my opinion with any of the lawyers here.

 

"The bank records are likely to lead to relevant and admissible evidence showing payments on the account/ For that reason alone they are admissible.

 

It's a scale. "For that reason alone they ARE admissible". For the Constitutional right to privacy they ARE NOT. For the  Constitutional right to due process it could (by some) be argued that they ARE NOT. Under discovery rules an objection, since proof of payment would be equally available, again another one for  ARE NOT.

So it's 1 ARE and 3 ARE NOT'S on the scale of justice. I would let a judge decide. It was just my opinion, no one has to agree with it.

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I didn't. I applied your statement right here in this very thread, pertaining to this particular case.

 

 

This particular case is a state case.  I think I specifically stated that the U.S. Constitution describes what the federal government can and can't do.

 

I then brought up the 14th amendment which applies to states, and did not argue that there should not be due process.  However, due process applies to both parties, not just to the defendant.

 

I hope I'm wrong and that the judge agrees with the OP.   But it will be up to the OP to show that bank records are private information information that can never be compelled to be produced even though they may be relevant. 

 

Since you firmly believe this, I hope you have some relevant case law that will help him in regard to the privacy of bank records.

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