Az Piano Lady 14

Thank You All!!---A Midland Win

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@Az Piano Lady 14

First of all, congrats!  Second, I make a point to admit when I am wrong, and I am here to say publicly that misjudged you.  Good job in sticking with it!

 

 

I've been very cynical about the whole process, but she proved that a Pro Per can beat a big debt in a tough venue. Epic victory.

Not to take anything away from the hard work that PL put into this case, but it's important to note the distinction between this case and those that have fallen in Justice Court.  There is some AZ caselaw that makes it a layup for JDBs to get their evidence admitted, but the Justice Court rules and whatever is going on with the JPs add an extra layer of separation from "Justice" and "Court".

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@Az Piano Lady 14

 

Congratulations!

 

::band::  ♫ Another one bites the dust! ♫   ::celebrate::   :yahoo:

 

You knew what was best for you, and you followed your gut.   :-)

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Thank you for all your help and support. I just kept thinking if they were pushing me that hard to settle , but admit debt and get no costs, they knew they had lost.   I had a great and fair judge and that helped.  He was surprised I had my costs with me, and requested them on a different form and notarized. 

 

It came down to the principle that I spent a lot of time and I felt I should prevail. It took me longer to get ready in the morning than the trial lasted.    Again, Thank you so much!!!!!!

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Congratulations, good for you. That took a lot of nerve, I'm sure most people would have taken their offer (and a lot of them would have lost the MSJ). I think It should have been a ruling in your favor however, or at least dismissed with prejudice, but either way it's a victory.

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Nice job - congrats on your victory!!

 

 

Get your costs back and they probably will never come after you again.

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Already filled out the form for costs.  The judge had to rule without because they dismissed first, and after they asked for a continuance and it was denied, I should have jumped on MTD with but hey if they do file they pay my filing fee.  In sup court 300.00

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Not to take anything away from the hard work that PL put into this case, but it's important to note the distinction between this case and those that have fallen in Justice Court.  There is some AZ caselaw that makes it a layup for JDBs to get their evidence admitted, but the Justice Court rules and whatever is going on with the JPs add an extra layer of separation from "Justice" and "Court".

 

I'm sure that @Az Piano Lady 14 would be the first to note the difference between justice and superior court in AZ, so she understands that you're not taking anything away from her hard work.  She studied and learned the Superior Court rules and rules of evidence, did plenty of research, and prevailed.

 

Most of us know and would never question that you did your research and knew your justice court rules and the rules of evidence.  You did everything you could do under the circumstances.

 

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Most of us know and would never question that you did your research and knew your justice court rules and the rules of evidence.  You did everything you could do under the circumstances.

I wasn't trying to make this about me. I hope it wasn't taken that way and I apologize if it was. I want people to know that a Superior Court battle is a different thing because the playing field is, in most cases, more level than what one will find in Justice Court, and the arguments that work in Superior Court will not necessarily (and usually won't, in fact) work in Justice Court. Just ask those that have done battle in both; I'm sure they will agree.

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I am the first to say that I agree that JC and SUP court are totally different.  However,  we in AZ need to figure out WHY????

 

The rules are the same and as I have stated before with no agreement.  We need to write the AG  and the JC superiors and complain about the unfair treatment!!    This has been met  with and mockery before.   New AG.    i am personally  committed to helping anyone in here with the ability to win their case,    Is it easy???   No. Is it possible?   Yes  But how do we get people in here is my burning question!!

 

i see onlne all the midland cases daily   How do we help???  This is my passion now;  Any ideas????

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I didn't see that you said the rules are the same. If I had I would have disagreed. Justice Court rules are based on Superior Court rules and drafted by debt collection lawyers (all of their names are right at the beginning of the rules), but the rules are different from Superior Court rules. Some are very different, some slightly different and some identical.

The reason things are the way they are is because of money. The deepest pockets win every time. It's the same reason things are going to stay the way they are and the same reason "complaining" won't work. If you can send some $$$$ with your complaint then you'll get heard. Until then it's going to remain status quo. Or until we can get some politicians that don't accept money for votes.

Hahahahhahahahh... yes, that was a joke. I know they don't exist.

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 Justice Court rules as laid out in Supreme Court No. R-12-006 with a cross reference to the Arizona rules, are not intended as I understand it to make any major changes but rather just make the JC rules easier to understand.

 

The Rules of evidence are not included in the Justice Court rules that just relate to procedures.  My understanding is that all courts in Arizona have to follow the Arizona rules of evidence that conform in all the areas we have an interest to the Federal Rules of Evidence. 

 

It would be interesting if anyone pointed out any differences that are relevant to our credit card cases between JC and Superior Court, as I have not found any.   It seems the JC simply doesn't follow the rules of evidence as they are suppose to which is why so many cases get reversed and remanded on appeal. 

 

I also note under Rule 133 d. Regarding change of judge if a party does not believe they will get a fair hearing.  Follows ARS 22-204A whereby:

 

22-204. Change of venue

A. If a party to an action before a justice of the peace makes an affidavit supported by the affidavit of two other credible persons of the county that they have good reason to believe, and do believe, that the party cannot have a fair and impartial trial before the justice, or in such justice's precinct, the justice shall at once request the justice of the peace of some other precinct within the county to conduct the trial within the precinct where the action is pending, and hear all matters involved therein, or to transfer the action to the nearest justice of the peace within the county not subject to the same or some other disqualification.

---

The problem with that is I have not heard of many (if any) wins in JC's in Maricopa County.  Ignoring the rules of evidence and getting reversed seems common with most JC's.  I understand a judge not to have is Judge Conti in Dreamy Draw JC, but one might get assigned to an equally not follow the rules of evidence judge if can get two others to agree.

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Congratulations AZ and What I liked most is you had a supportive spouse who said do what you think is best. Don't forget appeal costs and anything prepped for trial. Well done.

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As for the telephonic witness AZ caselaw points to only 3 specific reasons to allow the witness: When someone cannot appear due to health reasons: specifically a compromised immune system, Incarceration, and when a witness cannot be in the state because of military service. All three cases on point for that stress that telephonic witness is to be allowed only for extreme circumstances.

 

I am looking those cases up now

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It seems the JC simply doesn't follow the rules of evidence as they are suppose to which is why so many cases get reversed and remanded on appeal.

I've spent many hours reading appeal rulings on Justice Court cases and very few JDB cases are being reversed on evidence since the State v. Parker ruling in 2013.

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Consider this--------------------------  State v. Parker is not applicable

 

Midland Funding argues its case rests squarely on the applicability of State v. Parker 231 AZ etc...  However there is salient difference between this case and State v. Parker-- 1.  Insert your affiant name here,  an employee of MCM, did not testify she was familiar with the procedures of OC; 

2.Ms (your affiant) did not testify that she was familiar with the procedures Chase Bank(or your OC) used to create the records.

Further, this case is distinguishable from Parker in that in Parker a Capital One employee was called to testify about records created by Capital One that had information incorporated from outside sources.

 

Here we have an employee of MCM attempting to testify about business documents created by separate non-parties and pass them off as Midland Funding LLC's business records.

 

The only connection the documents submitted have to the current litigation is the testimony of a person employed by MCM who conceded she is not familiar with the manner in which Chase Bank created and maintained their records, or if the records received by Midland Funding from Chase had any adherent reliability.

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@Az Piano Lady 14

 

I believe Harry made that argument.   The problem is the "adoptive business records doctrine".   One business can adopt the records of another business.  If that second business incorporate thems into their own records and relies on them, that business is allowed to authenticate them.

 

In Midland Funding, LLC v. Howell, the AZ Court of Appeals quoted State v. Parker and ruled that Midland could authenticate the OC's records for that very reason.  However, the judgment in favor of Midland was overturned by the appeals court because the affidavit was not from a Midland employee.  It was made by an employee of MCM.  If the affidavit had been made by a Midland employee, then according to the court's explanation, it would have been sufficient to authenticate the records.

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@Az Piano Lady 14

Did the witness in that case testify Midland incorporated the OCs records into their own and that she was a custodian of Midland's records?

And you all are missing a very important point I'm trying to make. If you have been sued in Justice Court, IT DOES NOT MATTER what we think of Parker or how we interpret it. Because there is only a single appeal available from Justice Court, there is only one person's opinion that matters, and that person is the judge that hears your appeal.

You can all argue the applicability of Parker to these cases, but it's purely academic. If the affiant testifies they are a custodian for the plaintiff's records and that the OCs records were incorporated into those of the plaintiff, and the Justice Court allowed the admission of those records, I already know how the appellate court is going to rule. I've had it happen to me, I've seen it happen to others here and I've read dozens of Justice Court appeal rulings that are congruent with my experience and observations.

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@Az Piano Lady 14

 

I believe Harry made that argument.   The problem is the "adoptive business records doctrine".   One business can adopt the records of another business.  If that second business incorporate thems into their own records and relies on them, that business is allowed to authenticate them.

 

In Midland Funding, LLC v. Howell, the AZ Court of Appeals quoted State v. Parker and ruled that Midland could authenticate the OC's records for that very reason.  However, the judgment in favor of Midland was overturned by the appeals court because the affidavit was not from a Midland employee.  It was made by an employee of MCM.  If the affidavit had been made by a Midland employee, then according to the court's explanation, it would have been sufficient to authenticate the records.

I think that we can argue against the Adoptive Business Records Doctorine by saying that the OC's sell these accounts with the disclaimer that the records are not authenticated by them and are not to be relied on. As far as adopting them as business records,

The records must pass the tests of In Re:Vinhee before they can be incorporated in a plaintiffs business records for litigation. It is basically garbage in=garbage out. So we must necessarily show the break between the Originator and the Plaintiffs where the records are concerned.

 

@Az Piano Lady 14

Did the witness in that case testify Midland incorporated the OCs records into their own and that she was a custodian of Midland's records?

And you all are missing a very important point I'm trying to make. If you have been sued in Justice Court, IT DOES NOT MATTER what we think of Parker or how we interpret it. Because there is only a single appeal available from Justice Court, there is only one person's opinion that matters, and that person is the judge that hears your appeal.

You can all argue the applicability of Parker to these cases, but it's purely academic. If the affiant testifies they are a custodian for the plaintiff's records and that the OCs records were incorporated into those of the plaintiff, and the Justice Court allowed the admission of those records, I already know how the appellate court is going to rule. I've had it happen to me, I've seen it happen to others here and I've read dozens of Justice Court appeal rulings that are congruent with my experience and observations.

True, but you would have to bring up parker and it's ensuing issues in the trial court to preserve it for appeal. That is why the bill of sale and the forward flow agreement can be used to disrupt the adoptive business records because Plaintiffs acknowledge by signing that they are not to rely on the records for any purpose. This is an inconsistent statement as far as plaintiffs are concerned. This makes it possible to show affirmatively that the affiants statements are in fact conclusory.

You have to really tear apart the affiants and conduct discovery targeting them, such as the actual date of employment, records access, etc. The mere reading of a computer screen is not sufficient to authenticate.

We however have to jump through very big hurdles because the judge sees a bill that looks like his credit card bill and thinks it is good enough. We have to show them their errors and further get it on the record to preserve it on appeal. Getting a court reporter will help to preserve the record and requesting a statement of decision or equivalent to put the courts reasoning on the record will help to get that appeal to overturn the judgement.

Maybe recusal should be another way to get it away from Debt Collectors buddies by showing a valid reason for recusal. Also making a request for jury trial in the answer will mitigate the judges. I have helped @Jedimamma123 to prep for jury trial after getting the SJ denied. The jury will eat the debt collectors up because everyone in phoenix has a friend or relative sued by these jerks.

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@Seadragon

 

I think that we can argue against the Adoptive Business Records Doctorine by saying that the OC's sell these accounts with the disclaimer that the records are not authenticated by them and are not to be relied on.

 

 

Assuming one could get a copy of the forward flow agreement, what part of the agreement would imply that the OC is selling records that were not created by the OC in the regular course of business?

 

 

That is why the bill of sale and the forward flow agreement can be used to disrupt the adoptive business records because Plaintiffs acknowledge by signing that they are not to rely on the records for any purpose.

 

 

How is the plaintiff acknowledging that they are not to rely on the records for any purpose?  

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@Seadragon

 

 

Assuming one could get a copy of the forward flow agreement, what part of the agreement would imply that the OC is selling records that were not created by the OC in the regular course of business?

We can show on the record that the records created by the OC no longer complied with the business records exception to the hearsay rule, then show that the plaintiffs through assignment documents acknowledged that the records were untrustworthy and/or inaccurate which renders them inadmissible as far as the evidence code for hearsay because even if the plaintiff adopted the records into their business records they were inadmissible when sold. Plaintiffs cannot engage in document laundering simply by inserting inadmissible records into their own files and call them clean.

How we can disrupt their adoptive records assertions are finding out when they actually put the records into their files, and whether they had contemplated litigation then they were not business records but litigation documents. because we know they only purchase documents after filing the lawsuit, we can make them disclose earlier in the process by forcing disclosure on them when the case first starts by answering sooner than later. disclosure starts when the answer is filed, so getting that answer filed starts the disclosure clock. They typically don't have the documents at hand when they file, so targeted admissions and request for production earlier will make sure that you disrupt the adoptive records because they are incorporated only for litigation purposes.

 

 

@Seadragon

 

How is the plaintiff acknowledging that they are not to rely on the records for any purpose?

It is in the forward flow agreements as part of the recitals. That is why they do not want to give it to us because then in every account they litigate, the forward flow from your case can be used in other cases with the same bill of sale, All 100,000 cases. Because it would be filed in a court record it would become self authentication as far as the hearsay rule as a government record.

Edited by Seadragon

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@Seadragon

 

We can show on the record that the records created by the OC no longer complied with the business records exception to the hearsay rule

 

 

I don't understand what you mean.  The purpose of the business record exception is to show that a record is a "business record" as opposed to another type of record such as a report or memo.   That's why some courts allow one business to authenticate the records of another business.   It's because the records are, in fact, business records that were created by the OC and now relied upon by the 2nd business.

 

then show that the plaintiffs through assignment documents acknowledged that the records were untrustworthy and/or inaccurate which renders them inadmissible as far as the evidence code for hearsay because even if the plaintiff adopted the records into their business records they were inadmissible when sold.

 

 

What is the exact language in a forward flow that shows the records were inaccurate?  Sold "as is" does not, in itself, mean either untrustworthy or inaccurate.   Where in the forward flow does the OC say that records are inaccurate?

 

Again, this is assuming that you can get a copy of the applicable forward flow agreement.

 

 

How we can disrupt their adoptive records assertions are finding out when they actually put the records into their files, and whether they had contemplated litigation then they were not business records but litigation documents. because we know they only purchase documents after filing the lawsuit, we can make them disclose earlier in the process by forcing disclosure on them when the case first starts by answering sooner than later. disclosure starts when the answer is filed, so getting that answer filed starts the disclosure clock. They typically don't have the documents at hand when they file, so targeted admissions and request for production earlier will make sure that you disrupt the adoptive records because they are incorporated only for litigation purposes.

 

 The above is what I've mentioned.  Not the part about "contemplated litigation".  So what if they were already contemplating litigation when they purchased the records?   That doesn't mean that they didn't try to collect before suing. 

 

The part I agree with is whether or not they had documents on hand before they sued.  If they didn't have documents before suing, they could not have "adopted" or "incorporated" them into their records.  As a result, in AZ, State v. Parker would no longer apply.

 

The tricky part is finding out when they actually received the records.  It might require more than interrogatories and/or requests for production of documents. 

 

In regard to re Vinhnee, that was a federal ruling specific to electronic documents.   State courts don't have to follow it.  Here's a state court ruling from WA (which is in the 9th Circuit). 

 

Discover Bank v. Butler, WA Court of Appeals (2011):

 

"Repeating an argument she raised for the first time in her motion to reconsider, Butler nonetheless argues that the trial court should have followed In re Vinhee, 336 B.R. 437 (9th Cir. BAP 2005) in holding the Adkins materials inadmissible. In Vinhee, the Bankruptcy Appellate Panel for the Ninth Circuit upheld a federal district court trial ruling excluding electronic records under Federal Rule of Evidence 803(6) on authentication grounds. Butler, however, has cited no Washington authority adopting the Vinhee approach under the applicable Washington statutes and rules of evidence. See State v. Copeland, 130 Wn. 2d 244, 258, 922 P.2d 1304 (1996) (Washington interprets its rules independently of the federal courts' interpretation of federal rules, even when the rule is identical to the state rule). The trial court's ruling comported with existing Washington law regarding the admissibility of business records and we find no basis for creating new requirements in addition to those rules here."

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 Sold "as is" does not, in itself, mean either untrustworthy or inaccurate.

 

Exactly what I believe they told Harry.

 

One must always keep in mind that Midland, for example, legally purchased the debts they are suing on - this isn't like some massive organized-crime conspiracy. It does no one any good to pretend that we didn't charge stuff and then stop paying - Midland isn't making this stuff up.

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True but as far as the business records exception goes it would have to comply with ALL the requirements of Evid code 902 and 803.

“Because elements for both rules are essentially identical, they frequently are analyzed together when Rule 902(11) is the proffered means by which a party seek to admit a business record. See In Re Vee Vinhnee, 336 B.R. at 446; Rambus, 348 F. Supp. 2d at 701 (holding that analysis of Rule 803(6) and 902(11) go “hand in hand,” and identifying the following requirements for authentication under Rule 902(11): (1) a qualified custodian or other person having personal knowledge makes the authenticating declaration, who must have “sufficient knowledge of the record-keeping system and the creation of the contested record to establish their trustworthiness;” (2) the declaration must establish that the record was made at or near the time of the occurrence or matters set forth in the document by someone with personal knowledge of these matters or from information provided by someone with personal knowledge thereof; (3) the declaration must show that the record is kept in the course of the regularly conducted activity of the business, and the “mere presence of a document . . . in the retained file of a business entity do[es] not by itself qualify as a record of a regularly conducted activity”; and (4) the declaration must establish that it is the regular practice of the business to keep records of a regularly conducted activity of the business, and “it is not enough if it is the regular practice of an employee to maintain the record of the regularly conducted activity . . . . it must be the regular practice of the business entity to do so”— i.e. it is at the direction of the company that the employee maintain the record).” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 572 (D. Md. 2007)

http://www.mdd.uscourts.gov/Opinions/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf

This will help to explain the adoptive records portion: Pages 25-40

This may be useful:

Similarly, if a party properly makes his or her

FED. R. CIV. P. 26(a)(3) pretrial disclosures of documents and exhibits, then the other side has

fourteen days in which to file objections. Failure to do so waives all objections other than under

Rules 402 or 403, unless the court excuses the waiver for good cause. This means that if the

opposing party does not raise authenticity objections within the fourteen days, they are waived.

but the adoptive records doctrine must necessarily jump through the hoops of Electronically stored information(ESI) before it can go through the other things.

Where my arguments can go for naught, the court can simply do what it wants and force an appeal. I think it is more about disrupting the authenticity and trustworthiness of the records as they were made that makes what I propose more of a defense weapon. Because if you don't bring the arguments they will be waived on appeal.

@Goody_Ouchless

We are allowed to defend within ALL reasons acceptable to win in court. If they were more reasonable instead of trying to get max recovery, people would be more agreeable to settlement. Perhaps if they would settle for 20% they would make a tidy profit and people would settle. The debt collectors are quite literally taking food right out of peoples mouths and they have a SH**** attitude about it, so people are free to fight in court, however you have to pay attention to detail in court to win.

The fact that money is owed doesn't figure because it is how they go about getting it. And cry me a river for the banks, how many overdrafts have we all gotten this year because of entry manipulation. The debt collectors are worse. If the banks themselves settled for 20% their balance sheets would look mighty good.

I know it is distasteful not to pay debts, but a little more humanity in the collection process would go along way towards making people want to pay. Nobody is going to work with abusive people or processes, that is why people don't pay for the most part. If debt collectors truly wanted more money, they should wait until times are better to collect.

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@Seadragon - you are missing my point. You are talking about "feelings" and what "should" constitute "justice." I think everyone of us, in whatever jurisdiction, would be better served by looking at things from the other perspective: Instead of playing the victim card, try placing yourself in the position of the thief.

 

I still see way too many people think they will "win" because the debt buying industry is somehow illegal. I made that mistake in the beginning. My wins since then have been akin to shoplifting. My next win, if things break the right way, will be through unethical manipulation.

 

I'm just saying that I wouldn't use the case in this thread as a template. The plaintiff's counsel appears to have committed legal malpractice.

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