frosted1

Asset Acceptance going for the jugular. Need Help!!

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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.

You did. But NO form of Government can go against the Constitution (unless un challenged).

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.

Yes you did, and I agree. And since the proof of payment would be equally available to both parties if it truly exist, neither party will be deprived of due process by defendant not being forced to give up the right to privacy of bank records.

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. 

He doesn't have to show that they can NEVER be compelled. 99% of the time they are not opposed so they can almost always be compelled. In this situation however the defendant would be putting the judge on notice that the decision would be brought to the attention of the appellate justices. The judge MIGHT decide that just this 1% of the time, and since the proof of payment would be equally available (if it exist) he can rule in favor of the defendant without violating the due process of either side. If he doesn't come to that decision then he knows the appellate court will make the ultimate ruling.  

 

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.

I don't. I didn't know it was required of me. I can't very well go to his law library (due to distance) either (I research case law in a law library) I was just stating an opinion. I am sure you looked for case law opposing my opinion though.

I post my opinion and give people a possible direction. In this case I gave a direction to give the records and one to not. I always suggest they look up their own rules and case law.

 

Also (in my opinion) I would not always back down just because case law doesn't exist. I used to argue EVERY element of the Target v Rocha case long before it existed and caught flack for it every time. Now that the case law exist; people act like we just now received the rights and laws that the Target case now easily affords us.

Case law is made by people who hold an opinion that is not backed by many judges and lawyers but do not back down and stand up for their rights anyway. 

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Hi All!!!  Thanks for all the info!  I'm still trying to digest all that was said and make some serious decisions here.  But I really appreciate your opinions and suggestions.

 

Not to change the subject, but...One question.... on page 5, post #88, Mr KentWa states that the "Contract" should have been provided in Disclosures.  Is he referring to the BOS? or what, because other than that, I've received no other contract of any kind and was curious as to his remark.  I've been re-reading this whole thread and trying to make sure I'm understanding all the little things that will give me the ammo to beat the Default Motion.

 

Curious to hear your answers.

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Not to change the subject, but...One question.... on page 5, post #88, Mr KentWa states that the "Contract" should have been provided in Disclosures.  Is he referring to the BOS? or what, because other than that, I've received no other contract of any kind and was curious as to his remark.  I've been re-reading this whole thread and trying to make sure I'm understanding all the little things that will give me the ammo to beat the Default Motion.

 

 

I'm not sure what contract KentWA is referring to. If Asset is claiming breech of contract as a cause of action then they need to produce the governing contract, which is the credit agreement and not some generic POS they pull of the internet. 

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Hi Spikey!  

 

Mr KentWA was referring to the contract mentioned in the original complaint.  The Complaint stated that Defendant signed a contract with B of A.  Then it states that I entered into a "contract" with B of A opening an account ending in XXXXX, which contract was subsequently assigned to Plaintiff.  That's the "contract" we're referring to in this instance.  Other than the BOS, no other contract was ever provided in discovery or disclosures.  The BOS and cardholder agreement provided were both incomplete documents, the cardholder agreement having the appearance of something gotten off the internet.  Hence the question, what contract?  Is the BOS the contract Plaintiff is referring to in the complaint?

 

Do I need to be looking for something else? 

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I went back and reviewed the complaint and found this:

 

 

 

3. Defendant has defaulted on the obligation under the contract.

 

That indicates to me that their cause of action is breach of contract which is very typical of how Asset pursues these cases. In the case of a credit card, the contract is the agreement that you make with the lender every time the card is swiped. You assent to the terms of the contract with every purchase along with any amendments that are made which typically occur on a yearly basis. The terms and conditions are outlined in a credit card agreement which lists the terms of the agreement to lend you credit along with interest rates, dispute resolutions, what constitutes defaulting on the contract, etc.

 

It's a huge hole in their case if they haven't produce the contract. How can they prove that you breached a contract that they don't have? Depending on how Utah's laws read, you may be able to get the case dismissed for this. 

Edit: Reading back, you've said that they've produced an incomplete credit agreement. That's the contract right there. Of course you need to find out of the document is a generic document or the actual agreement. I can pull a complete agreement off the internet, that doesn't mean it's the correct agreement that you assented to and the original creditor would need to authenticate that document otherwise it's hearsay.
 

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@Spikey

 

While I agree that the JDB needs to provide the applicable cardmember agreement in order to prove the terms of the agreement, just note that it's not necessary in order to prove the existence of a contract.  Actions can prove a contract.   Using the card and making payments would indicate an agreement between the parties.

 

BUT, as you stated, argue that the JDB hasn't proven to WHAT TERMS the defendant agreed. 

 

Also, in most cases, a JDB doesn't allege that a defendant signed a contact., but in the OP's case, they did.  I'd hold them to it.  Why would they allege it if they didn't see his signature on a contract? 

 

While I'm being sarcastic because we know there's not usually a signed contract, I'd argue the point with complete sincerity.  Why would they make such a claim if it doesn't exist?   Would the plaintiff make a claim that it cannot support with evidence?   :twisted:  

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@BV80 The obviously challenge here is my lack of knowledge of Utah law. Illinois law is crystal clear, a claim of breech of contract requires production of the contract and goes so far as to require the contract be attached to the complaint or a notarized document stating why the contract isn't attached. It doesn't matter if it's a credit card suit or anything else. I agree with you that a contract can be inferred through actions, but if they supply someone else's documentation as proof, who's authenticating that information? It becomes the classic JBD case of "you owe me money because we say so". They need to be challenged on their claims and the documents that they're trying to use to prove it.

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@Spikey

 

I absolutely agree.  Here's a citation from the UT Supreme Court.

 

 In an implied contract, such intent is inferred from the conduct of the parties and other relevant facts and circumstances. Chandler v. Roach, 156 Cal. App.2d 435, 319 P.2d 776 (1957). See Martens v. Metzgar, 524 P.2d 666 (Alaska 1974); Ray F. Fischer Co. v. Loeffler-Green Supply Co., 289 P.2d 139 (Okl. 1955); Kilthau v. Covelli, 17 Wash. App. 460, 563 P.2d 1305 (1977).

 

If UT has a specific regarding debt and contracts, the OP needs to find it.

 

When challenging the admissibility of documents, one goes to the business records exception.  An affidavit to authenticate those records must comply with that rule.  Here's a case he needs to read.

 

http://scholar.google.com/scholar_case?case=12702568381945757974&q=%22803%286%29%22&hl=en&as_sdt=4,45

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Wow!  You Guys are tremendous!!!  Thanks for all the great information!

 

Hearing is in a few hours.  If the Plaitiff tries to introduce the missing parts of their documentation, what is the terminology used as an objection? Or on what grounds do I object?  

 

I know they did not produce the documentation in a timely manner, but i don't know how to reference that.  My brain is so fried right now, I'm lucky to just remember my name.

 

I do so appreciate all your help!  Thank you so much for your patience with me!

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It's the disclosure rule which is URCP Rule 26. 

 

(d)(4) If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

 

 

Good luck today!

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Well Guys! I made a couple of errors, but we made it through the Default. The judge is tough. She wouldn't even entertain my Motion to Reconsider. And I think that's because I didn't push hard enough on my Request to Submit. I did file it afterward though. She denied the Default, but is still requiring me to provide, within ten days, the name of the Bank and the account number to the Plaintiff. They can go after the records. She got a little frustrated with me when I tried to explain my defense on standing. I should have used different terminology, I think. She said she would not even entertain the subject because Plaintiff has already provided evidence of standing. She doesn't seem to share the understanding of contract law that we have been adhering to. I need to do some more digging, but at least I have ten more days to do so.

Any suggestions

Spikey, Thanks for the discovery info. Good to know! I will be using it in a future submission.

I want you guys to know, I couldn't have gotten through this without you! You are the best!!!!

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As far as the default is concerned that's good. Glad to hear that. 

 

I'm not all that surprised that the judged didn't care about the standing argument. Evidence of standing is enough to show standing until such time you can argue to the authenticity of their documents, which is trial. You should look at this case that @BV80 posted: http://scholar.google.com/scholar_case?case=12702568381945757974&q=%22803%286%29%22&hl=en&as_sdt=4,45

 

You've got a tough hill to climb on this case.

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@Spikey

 

 

That appellant case on records authentication is rough. 

 

 

Yes, it is.  I've read cases from other courts that have the same opinion.  While we believe that one business cannot authenticate the records of another business, not all courts agree.  In those cases, we have to either come up with evidence to support that the evidence is inaccurate or that the balance is incorrect. 

 

Absent evidence, we're left with casting doubt on the affiant and/or pointing out inconsistencies in the complaint or affidavit (such as references to unprovided documentation).

 

I've read cases in which the courts say that the purpose of the business record exception is to simply show that the records are what they are purported to be...business records that are regularly made because they are necessary to the business.  Reading the plain language of that rule, it makes sense. 

 

There are cases in which parties tried to submit documentation under the business records exception that were clearly not business records.  Based on the language of the rule (made in the regular course of business,  made at or near the time of events which would be business transaction or activities, etc.), the purpose of the rule is to separate business records from other types of documentation such as memos, office emails, etc. that are not made for every account or business transaction and are not necessary for the running of the business.

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. I need to do some more digging, but at least I have ten more days to do so.

Any suggestions

 

You didn't do too bad. As far as digging goes, I would dig into your states rule of evidence and fight the case. In 10 days you will have to give your bank and ac# from the dates they requested. Then the plaintiff will subpoena the records.  After that I think I would change banks if you are still with them, just in case.

 

It's probably in this thread, but, did you send discovery and when is your trial date?

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Thanks Guys for all your comments and suggestions.

Believe me, I'll be reading alot over the next few days. As far as I'm aware, no trial date has been set yet. Are you asking if I answered their request for discovery or did I send my request for RFA's and RFP's? Just to clarify, I answered their request for RFP's and RFA's last March and I sent my request for same from them December 16th.

Can I go to my bank and instruct them to only copy info within the dates specified and nothing more? Ask them to not entertain any other questions re the account? What protections do I have from them snooping into today's info like current balances, etc? I've been with this bank for a long time,... only bank I've ever used. I hate to have to make a change now.

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@frosted1 The bank will turn over whatever they request through the subpoena and that's it but you've basically lost control. The bank won't take instructions from you.

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Hi Spikey!

Will the bank give me a copy of the subpoena? I would like to know just what they're asking for. Or will they alert me at the time the subpoena comes in and let me verify they have it correctly? Or can I take a copy of the order from the Judge and post it to the record to avoid them trying to pull a fast one, claiming typo mistake? Paranoid as heck, aren't I. I just go nuts at the thought that they can go into my personal papers that way.

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Hi Spikey!

Will the bank give me a copy of the subpoena? I would like to know just what they're asking for. Or will they alert me at the time the subpoena comes in and let me verify they have it correctly? Or can I take a copy of the order from the Judge and post it to the record to avoid them trying to pull a fast one, claiming typo mistake? Paranoid as heck, aren't I. I just go nuts at the thought that they can go into my personal papers that way.

 

Anytime the Plaintiff sends out a subpoena, they must serve you a copy. You can rest assured it will be all encompassing. They should serve you at the same time they serve the bank. I would not spend a lot of time worrying about this. I would start working on your defense. 

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 I just go nuts at the thought that they can go into my personal papers that way.

That's why we have the Constitution. And it DOES apply to EVERY court. Not to start that debate up again however.

 

You could file for a protective order requesting that only specific information relating to the relevant dates be provided.

 

Regardless of how anybody feels about my opinion; it would slow the plaintiff down and cause them to put more effort into the case. The more pressure you keep on them the better chance of them dismissing. 

 

I agree, focus on the defense, but this wouldn't take that long.

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You could file for a protective order requesting that only specific information relating to the relevant dates be provided.

 

Great suggestion, make them work!!!!  xboxingx 

 

Regardless of how anybody feels about my opinion; it would slow the plaintiff down and cause them to put more effort into the case. The more pressure you keep on them the better chance of them dismissing. 

 

I agree, focus on the defense, but this wouldn't take that long.

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I was reading the PRA appeals case that BV80 posted and was struck by a few things:

 

First, it looks like the defendant was appealing based on the trial judge's "abuse of discretion" as far as their allowing all of the business records and affidavits to be admitted for PRA's MSJ.   Even though the business records exception allows us to defend our cases on those grounds, it is still up to the judge's discretion to apply it, correctly or not.  I would think there would have been a better angle to bring to the appeal, but maybe I'm wrong.

 

Also, it appears that PRA not only had an affidavit from one of their employees/custodian of records, but also had an affidavit of sale.  It seems like most people on this board only have the JDB affidavit and the "Bill of Sale" - the latter being neither sworn nor notarized.  That said, the judge and court of appeals were clearly not on this guy's side.

 

Also, my attorney deposed an employee of PRA a while back and found out that they send out employees on training missions every few months to their assorted OCs to become familiar with their accounting/computer/record-keeping systems, and then they come back and "train" PRA employees so they can say under oath that they are indeed familiar with the OCs record keeping practices.  And my attorney got beat by PRA 3 weeks ago.  Maybe they're at the top of their game, for now.

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Thanks Guys!   Lots of good things to consider.

 

If I submit for a protective order  requesting that only specific information relating to the relevant dates be provided,   do I specify what information is to be divulged or does the Court specify that?  Do I submit this to the Court directly, with copy to the Plaintiff, or the other way around?  Is there enough time?  I'm supposed to give them the Bank info within ten days.

 

I did request the judge to have the records examined "in Camera" or by outside counsel.  She just rolled her eyes and didn't comment from there.

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Thanks Guys!   Lots of good things to consider.

 

If I submit for a protective order  requesting that only specific information relating to the relevant dates be provided,   do I specify what information is to be divulged or does the Court specify that?

You have to ask the court to do exactly what you want, don't expect it look out for you. You could ask that only transactions from specific dates be viewed , or only payments made to so and so be viewed, or that your ac# not be viewed, whatever fits your case (but be reasonable) ask that everything thing else be redacted.

 Do I submit this to the Court directly, with copy to the Plaintiff, or the other way around?  Is there enough time?  I'm supposed to give them the Bank info within ten days.

Yes directly to the court, copy to the lawyer (with pos) never the other way around. Hopefully you are familiar with drafting motions already. You may have time if you do it fast. It's an "ex parte" motion, so you are not noticing the plaintiff. Sometimes there are emergency ex parte motions, Look it up in your rules, and do the best you can.

I did request the judge to have the records examined "in Camera" or by outside counsel.  She just rolled her eyes and didn't comment from there.

Good for you. However in camera does not necessarily mean that the lawyer would not be there, it means they will look at them in the judges chambers. The judge is the "trier of fact" in your case, so she needs to be the one to see them. You want to prevent the lawyer or anyone else to see them. It will be hard to prevent the lawyer from seeing them, but I would try anyway.  You might request that the judge first examine the records and see if  a possible payment may have been made to  the OC before the plaintiff gets to see it. You want your bank information "sealed" from the record as well. That way if your case file is pulled (it is public record) the bank info will be in a sealed envelope punishable by law if it is opened.

In your ex parte motion for protective order I would request the bank records are sealed from record, viewed in camera by judge only, in addition to your main request.

 

Also, in my opinion; if you are able to get a judge to roll their eyes and keep their mouth shut; you know you are on the right track. The MAIN focus needs to be wining the case, not so much not upsetting the judge.

 

A VERY important part of wining the case is always preserving an appealable record. Object properly, get objections on record, and get a court reporter for the trial (if it gets that far).

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