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Here is what I have so far. Please let me know if I should change anything. I'm hoping to get this out to them asap 


 


Argument against Sanction request marked on August 12, 2013


 


At no time was the Defendant made aware that a motion to compel had been filed or that a decision by the court had been made with no opportunity for the Defendant to object.


At this time the Defendant is requesting a motion that this case be dismissed for Lack of Standing on the part of the Plaintiff as they have disregarded any attempt to show their right to pursue this debt on the part of the original debtor. The continued attempts to get the Defendant to receive a default judgment so that documentation does not have to be shown is now bordering on harassment. Request for financial institution account records seeks documents that are irrelevant and are overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The Defendant has complied with all requests and provided every document in possession, care or control at present and will further provide any new documents that come into possession in the future. Defendant has asked multiple times for documentation showing the Plaintiffs right to pursue the collection debt but has not received any documents showing such and seeks to ask the Court if any such documentation has been provided or recorded showing that the listed Plaintiff has the right to pursue a suit against the Defendant. The Burden of Proof is being shifted to the Defendant rather than its rightful place with the Plaintiff.


The Plaintiff has also not made any response to the original valid objection submitted to both the District Court and the Plaintiff on May 29, 2013 with a certificate of service.

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Take a deep breath....first, read your rules on disclosure. My rules are different, but in my state they cannot supplement their disclosure without permission from the court. Check your rules.

2nd, bill of sale doesn't mean much. Post it and the affidavit word for word. :)

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You did not receive the motion for sanctions? Is there any thing else you did not receive? What does the certificate of service say that is on file with the court? Ny guess it is something other than mailed to you. If this is the case file a motion for protective order requiring them to properly serve you at the address on file in accordance with the rules, they will just love to have to defend that motion.

 

Interestingly enough if you fight them on it, the Bill of Sales are inadmissible. Rule 106 of the rules of evidence and the Completeness doctrine require that the documents be complete. They are not since I do not see Account Purchase Agreements for each sale. Send a meet and confer letter that they need to complete the documents by providing the Account Purchase Agreements and the non-redacted data files. Also object to the late disclosures and their attempt to reserve the right to supplement. The rule 26 do not allow them to supplement.

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I also see a problem here in that both affidavits identify CIT Bank as original owner, but they do not have a affidavit or bill of sale from that entity. There is more in there if you dig in deep, like neither affiant declares they have personal knowledge (Rule 602).

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You did not receive the motion for sanctions? Is there any thing else you did not receive? What does the certificate of service say that is on file with the court? Ny guess it is something other than mailed to you. If this is the case file a motion for protective order requiring them to properly serve you at the address on file in accordance with the rules, they will just love to have to defend that motion.

 

Interestingly enough if you fight them on it, the Bill of Sales are inadmissible. Rule 106 of the rules of evidence and the Completeness doctrine require that the documents be complete. They are not since I do not see Account Purchase Agreements for each sale. Send a meet and confer letter that they need to complete the documents by providing the Account Purchase Agreements and the non-redacted data files. Also object to the late disclosures and their attempt to reserve the right to supplement. The rule 26 do not allow them to supplement.

 

 

Obviously there is still a lot for me to learn... How do I find out what the certificate of service says with the court? I did receive a motion for sanctions but I received that a couple weeks ago. I can include it though if it will help.

 

My biggest problem right now is that my job has super cracked down on taking time off so little things like going to the courthouse is almost impossible for me to pull off.    

 

What would a meet and confer do? Sorry any suggestions are really helpful. I'm doing the best I can but I was definitely not a lawyer in a past life.  Any suggestions on how to word an objection? I haven't really done one yet except the one against the sanctions that I posted above. 

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You may be able to call the clerk and get them to send you the case file. A meet and Confer is an informal letter putting them on notice that you object to the materials provided in their current form and is the first step to getting them excluded. If you look around here you will find quite a few examples of objections.

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You did not receive the motion for sanctions? Is there any thing else you did not receive? What does the certificate of service say that is on file with the court? Ny guess it is something other than mailed to you. If this is the case file a motion for protective order requiring them to properly serve you at the address on file in accordance with the rules, they will just love to have to defend that motion.

 

Interestingly enough if you fight them on it, the Bill of Sales are inadmissible. Rule 106 of the rules of evidence and the Completeness doctrine require that the documents be complete. They are not since I do not see Account Purchase Agreements for each sale. Send a meet and confer letter that they need to complete the documents by providing the Account Purchase Agreements and the non-redacted data files. Also object to the late disclosures and their attempt to reserve the right to supplement. The rule 26 do not allow them to supplement.

 

 

How would I word objecting to the late disclosures and the right to supplement?

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How late are these disclosures? Typically it would be through a meet and confer letter, which is an informal letter to opposing counsel identifying the issues and giving them 10 days to correct the deficiencies. Pick each point apart one by one in your letter.

 

"I received your supplemental disclosures on xx/xx/2013, dated xx/xx/2013. As I am sure you are aware Rule 26(a)( 2 ) requires you to disclose information of this nature within 14 days. The rules intent is to require you to have your case prepared before filing. Therefore materials of the nature you sent are not proper for supplemental disclosure 60 days after filing.

 

You provided a bill of sale from JDB1 to JDB2 which references a "Account Purchase Agreement" which was not included. As I am sure you know Rule 106 requires the complete document or it is inadmissible. Please supplement the Bill of sale with all referenced agreements, exhibits, amendments, annexes, etc within 10 days. If you fail to do so I shall seek relief from the court.

 

You provided a bill of sale from JDB2 to JDB3 which references a "Account Purchase Agreement" which was not included. As I am sure you know Rule 106 requires the complete document or it is inadmissible. Please supplement the Bill of sale with all referenced agreements, exhibits, amendments, annexes, etc within 10 days. If you fail to do so I shall seek relief from the court.

 

The Affidavit of Joe Smith references the original owner of this account as CIT, however there is no evidence or authentication of the transfer from an entity known by that name. This makes all evidence of chain of title you have submitted inadmissible. Please supplement with admissible evidence within 10 days or I shall seek relief from the court.

 

This gives you an idea of how to address them It is very quick and off the top of my head so you will want to refine it quite a bit. However you can see how I addressed each point separately.

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How late are these disclosures? Typically it would be through a meet and confer letter, which is an informal letter to opposing counsel identifying the issues and giving them 10 days to correct the deficiencies. Pick each point apart one by one in your letter.

 

"I received your supplemental disclosures on xx/xx/2013, dated xx/xx/2013. As I am sure you are aware Rule 26(a)( 2 ) requires you to disclose information of this nature within 14 days. The rules intent is to require you to have your case prepared before filing. Therefore materials of the nature you sent are not proper for supplemental disclosure 60 days after filing.

 

You provided a bill of sale from JDB1 to JDB2 which references a "Account Purchase Agreement" which was not included. As I am sure you know Rule 106 requires the complete document or it is inadmissible. Please supplement the Bill of sale with all referenced agreements, exhibits, amendments, annexes, etc within 10 days. If you fail to do so I shall seek relief from the court.

 

You provided a bill of sale from JDB2 to JDB3 which references a "Account Purchase Agreement" which was not included. As I am sure you know Rule 106 requires the complete document or it is inadmissible. Please supplement the Bill of sale with all referenced agreements, exhibits, amendments, annexes, etc within 10 days. If you fail to do so I shall seek relief from the court.

 

The Affidavit of Joe Smith references the original owner of this account as CIT, however there is no evidence or authentication of the transfer from an entity known by that name. This makes all evidence of chain of title you have submitted inadmissible. Please supplement with admissible evidence within 10 days or I shall seek relief from the court.

 

This gives you an idea of how to address them It is very quick and off the top of my head so you will want to refine it quite a bit. However you can see how I addressed each point separately.

 

The original disclosure would have in November or December of last year.   Do you have a suggestion on a sample meet and confer letter and I've been searching for an objection letter but not finding what you were talking about. Can you push me in the right direction?

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This can give you an idea of what a meet and confer looks like. Beware this is a sample from California and not related in any way. You are going to have to pull it together for your exact circumstances. 

 

http://www.scribd.com/doc/77428536/Sample-Meet-and-Confer-Letter-for-California

 

"Objection letter"? Your meet and confer is notice to opposing counsel about your objections. Or do you mean how you formally object? That would be through a motion to strike or motion in limine, which you would go that route if they did not satisfactorily respond to a meet and confer.

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You provided a bill of sale from JDB1 to JDB2 which references a "Account Purchase Agreement"

 

https://www.documentcloud.org/documents/329732-chase-palisades.html

 

Great call, KentWa, The request for the Account Purchase Agreement from JDB1 to JDB2, and then JDB2 to JDB3 is impossible for Johnson Mark to provide. You’ve cushioned the request nicely by reminding that the Bill of Sales are inadmissible, per Rule 1006 of the Rules of Evidence and the Completeness Doctrine, requiring that the documents be complete. Its also a basic element of contract law, as in if one presumes to sue another for contract breach, they must produce the ENTIRE contract (indicating a party’s right to claim breach), not just fragments of it. It is the only way a JDB can ever prove debt ownership, standing, and the legal right to collect a debt from another, by showing that assignment of debt/instrument in conveyance was properly conveyed. The Bills of Sales provided by JDBs in every Complaint are fractions of these much larger documents, and never reference the account or debt specifically at issue, yet these BoSs are paraded as the Holy Grail as proof of debt purchase. By not providing the entire document, the BoSs prove no debt ownership on their face, the Plaintiff is prohibiting due process and unfairly prejudicing the defendant in litigating the defendant’s case. The defendant has a legal right to know and the ability to inspect which documents are being used against him.

 

This case should disappear, now that Johnson Mark becomes aware that SickofdebtSLC knows about and is requesting an Account Purchase Agreement. I’ve referred to them as Forward Flow Agreements. I’ve included a link above to a rare internet find of a Forward Flow involving Chase as an example of their components….careful, 33 pages. These are not supposed to be available to us. APA/FFA are always pretty much generic, in that there are always the same subsections in each one of them, indicating the terms of the agreement/contract between seller and purchaser. What will prevent Johnson Mark from providing this  for SickofDebt SLC is that the confidentiality clause contained in every APA/FFA specifically restricts these agreements from ever becoming public. The exhibit that contains SickofDebt SLC’s name and account number as proof that their account was indeed transferred by this agreement on this date is contained in the electronic file exhibit. Problem is, this file is hundreds of pages long and contains thousands of other account names and numbers, and supplying this in a public forum like a court case opens up privacy issues. Secondary to that obstacle and even better for Sickofdebt SLC, is that Midland wasn’t a party to the sale between JDB1 and JDB2, and is not in possession of that transaction’s APA/FFA. Like the rest of us, all Midland was supplied with was a generic BoS, that proves nothing in the way of identifying SickofDebt SLC’s account by name or any assurance in writing that Sick’s account was transferred. Because Midland can’t locate or produce the APA/FFA between JDB1 and 2 means, legally, that Midland can’t prove intact chain of assignment. Nor is Midland contractually allowed to provide its own APA/FFA. Because intact chain of assignment can’t be proven, Midland can’t prove debt ownership. That Midland can’t prove debt ownership, Midland can’t prove standing. Case closed.

 

This is foundational. And earth-shattering in How-to-Win-Your-Debt-Case. Every defendant involved in suits needs to know about the existence of APA/FFAs and understand how they are integral in winning their case. It is how EVERY JDB complaint will vamish in thin air.  The BoS provided evidences that they exist, they’ve been provided to defendants, but defendants must ask for their larger counterparts in document requests, which will be immediately denied for the above reasons. The defendant needs to find pertinant state case law that addresses this deficiency and cite it. In Georgia law, we have:

 

OCGA 11-3-309 ( B): A person seeking enforcement of an instrument must prove the terms of the instrument and the person's right to enforce the instrument.

 

In Nyankojo v. N. Star Capital Acquisition, 298 Ga. App. 6, 10, 679 S.E.2d 57, 61 (2009), the Court of Appeals of Georgia refused to uphold an assignment where the documents produced in the case did notaffirmatively link the assigned account to the same account number as the original account. The Court noted that computer-generated information, showing certain information tending to show an assignment for which no foundation was laid by a witness, was inadmissible hearsay.

 

Traditionally a very creditor-friendly state, Georgia courts have recently become much tougher on debt buyers, specifically with regard to assignment issues. In Georgia, a party may assign a contractual right to a third party. However, that assignment must be in writing in order for that contractual right to be enforceable by the assignee. The written assignment must identify the assignor as well as the assignee. In Wirth v. Cach, LLC, 300 Ga. App. 488, 490-91, 685 S.E.2d 433, 435 (2009), the Court of Appeals of Georgia held that a written assignment evidencing the transfer must be present in the record for the debt buyer to succeed in its suit. An affidavit attesting to the assignment is not sufficient. Nor is a bill of sale without an attachment that identifies the transferred account number. This case demonstrates that debt buyers should be diligent in obtaining all available documentation in order to support their assigned debt or risk being unable to collect in court.

 

Find applicable Utah law: http://www.govcollect.org/node/265

 

Hope it helps.

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Summaries of business records may be admitted as evidence, however, under Rule 1006 of the Utah Rules of Evidence. Under Rule 1006, "[t]he contents of voluminous writings ... which cannot conveniently be examined in court may be presented in the form of a ... summary." Whether the records are too voluminous to conveniently be examined in court is a determination to be made at the discretion of the trial judge. However, the records must be made available for examination by other parties. Utah R.Evid. 1006 (2012). The party offering the summaries has the burden of making the records available to the other parties' satisfaction. Trolly Square citing Gull Labs., Inc. v. Louis A. Roser Co., 589 P.2d 756, 758-9 (Utah 1978).

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I just received in the mail the following papers from Johnson and Mark. A request to submit for decision dated 9/5/13 stating they want sanctions decided on a failure to comply order. They are stating that the defendant is blatantly refusing to provide court ordered documents and asking for rule 7 and 37e. The final paper looks like a default judgement but its attached to a (proposed) certificate of service. What does this mean? Did they win the default judgement or is this their court proposal. What do I need to do to respond? They wording of the document is like they are completely ignoring my objections and asking the court to change the pleading to default. I can scan and attach the documents tomorrow if it's necessary but some quick reassurance would be nice. 

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Sick-

It sounds to me that Johnson Mark is playing incredibly unfair hardball with you……but I think I know why. Follow me:

You opened an account with CIT Bank Online on 10/1/2006. You made your last payment 3/2009. Your original cc or whatever type arrangement this was, was originated by a bank who is organized in the bank-friendly State of Delaware. CIT Bank chose to charge-off your account 10/5/2009.

Your charged-off debt underwent three additional sales through JDBs, eventually winding up with Midland in Feb. 2012.

Regardless of who’s hands your debt is sold into, your account specifics, including those involving it's inception are specific to the OC and never change, regardless of the organizing State where the new owners are located.

What I’m getting at is---Delaware has a Statute of Limitations on debt collections of three years, regardless of the borrower’s residency. That doesn’t change when your debt is sold.

Johnson Mark is being an a$$ because they’re trying to collect on your debt, which is now time-barred debt. SOL has expired 11 months ago. They bought this debt 2/2012 and waited to file in the last half of 2013, 8 or 9 months after SOL expired. They’re trying to rush this through, ignoring your requests, falsely portraying you on court requests as being non-cooperative to prejudice the judge against you, while hoping to get a ruling for judgment in their favor immediately---on a debt that can’t legally be collected. You now have a really nice countersuit quietly brewing. Not only harassment, but trying to collect w/o standing. This is fraud, promissory estoppel, slander, contributory negligence just for starters. Compensatory damages for incalculable mental distress, financial harm, CRA defamation. I would begin thinking seriously about submitting a declaratory judgment ASAP including counterclaims, damages. I bet once they realize that you’ve caught them, they may be really interested in settling. Make them pay you big money for this. They should be punished because they knew better. This is their industry. Ask for sanctions against THEM. Google Midland for any previous penalized legal shenanigans to demonstrate a possible history of 'unclean hands' as their standard operating procedure for this judicial review.

Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”. Delaware Code Title 10, Chapter 81,§ 8106 (a) Actions subject to 3-year limitation.

No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.

As such, Plaintiff’s action is barred. The time for Plaintiff to sue on these claims has terminated since 10/2012. 3-year SOL began with CIT Bank charge-off 10/5/2009. Plaintiff's Complaint must therefore be dismissed WITH PREJUDICE for fraudulently attempting to sue on what Plaintiff should know by fundamental industry protocol is a time-barred debt.

 

Utah Code, Sec. 78B-2-103. Action barred in another state barred in Utah. A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.

Plaintiff is barred from this Complaint due to promissory estoppel. Plaintiff has made false statements by way of this Complaint to Defendant and Defendant has relied AND ACTED on what was told to her/him in good faith and to her/his disadvantage. Defendant is now suffering from incalculable emotional distress from the threat and harassment of an unwarranted lawsuit from a debt Plaintiff fraudulently claimed she/he owed. Defendant is now suffering incalculable financial harm and defamation for unwarranted and illegal credit reporting for a duration to date of 11 months for a debt not owed.

 

Plaintiff is barred from this complaint for misrepresenting material facts. Plaintiff provided as a means to prove debt validation a CIT Online Bank “Account Agreement”, purporting to be governing credit-granting terms between the original creditor, CIT Online Bank, and Defendant. This document has a transmission time-stamp by facsimile of ‘9/04/02’. Defendant’s alleged account with CIT Bank occurred 4 years later,10/1/2006. Plaintiff has provided an outdated, inappropriate agreement, as credit-granting entities are constantly amending terms and agreements. Plaintiff has provided no updated, accurate ‘Agreement’ to be one that was in effect from an era when Defendant’s alleged account went into default 2009, or proof that Defendant received same. Plaintiff has intentionally provided inaccurate information as legal record and has failed to prove pertinent facts to demonstrate any breach of an alleged Agreement, Contract or Account.

 

Plaintiff is barred from this Complaint for Lack of Prima Facie Evidence. By way of response to the specific allegations contained in Plaintiff’s Complaint declaring on oath that “the foregoing is a just and true statement of the Plaintiff and claim made against Defendant, exclusive of all set-offs and just grounds of defense and that amount is just, true, due and unpaid”: To the extent as may be shown through pleadings and counterclaim and subject to all of the following defenses set forth herein, Defendant shows to this Court by way of Plaintiff’s filing of frivolous documentation as prima facie evidence as follows:
Plaintiff cannot prove through any legitimate, non-hearsay, non- illusory documentation recently filed upon the Court, it’s legal standing, ownership, assignment or legitimacy of Defendant’s alleged indebtedness payable to Plaintiff, or alleged amounts due, owing or unpaid. Plaintiff proves no ownership of an alleged account, one that has been subsequently discovered by Defendant to be time-barred according to Plaintiff’s own Debt Validation supporting documentation. Plaintiff has indicated no consideration paid for this alleged debt, therefore no harm or financial injury has occurred. Plaintiff proves absolutely no legal standing. Plaintiff is pursuing stubborn litigiousness, harassing this Defendant, while wasting valuable time of this Honorable Court.
-------------------------------------------------------------
The applicant's parent, The CIT Group, Inc., is a publicly held Delaware corporation that finances and leases a wide variety of real and personal property. The parent company operates worldwide with most business being conducted in the United States and Canada. The CIT Group, Inc., is 27% owned by a registered foreign bank holding company, Dai-Ichi Kangyo Bank Ltd. (DKB), chartered under the laws of Japan. DKB also wholly-owns a U.S. bank, Dai-Ichi Kangyo Bank of California, Los Angeles, California.

The proposed institution will provide financing for the purchase of electronic products and services offered by hundreds of vendors. Small amounts of revolving consumer credit will be offered to selected vendor customers over the telephone and by the Internet. The applicant will operate from a single location and marketing efforts will be conducted through the applicant's and vendors' Internet web sites. Deposits will be limited to $2,000,000 of parent company funds and brokered deposits. The parent will provide additional funding from public borrowing sources.

For the purposes of this proposal, capital is adequate, projections for future earnings prospects are favorable, management is considered satisfactory, and the investment in fixed assets is reasonable. Corporate powers to be exercised are consistent with the purpose of the Federal Deposit Insurance Act. No formal objections to this proposal have been filed and no undue risk to the insurance fund is apparent.

Accordingly, based upon careful evaluation of all available facts and information, the Associate Director, acting under delegated authority, has concluded that approval of the application is warranted.
---------------------------------------------

CIT Bank Online (OC )
Acct opened: 10/1/2006

Acct Closed/Charge-off: 10/5/2009

CIT to WebBank (JDB1)
11/4/2009

WebBank to Dell (JDB2)
1/29/2012

Dell to Midland (JDB3)
2/1/2012


Johnson Mark/Midland –Plaintiff’s Supplemental Disclosures to Sick
8/29/2013

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Midland’s unclean hands, standard operating procedure is ‘efficiency’, not accuracy

1.

https://www.dllr.state.md.us/finance/consumers/pdf/midlandsettlement.pdf

Midland Maryland 2009 $995,000.00 FDCPA and Maryland Collection Law violations

2.

http://www.ag.state.mn.us/Consumer/PressRelease/121212DebtBuyers.asp

Midland Minnesota Atty General $500,000.00 Robo-signed affidavits, time-barred debts

3.

http://www.dailykos.com/story/2010/04/05/854290/-Woman-Sues-Debt-Collector-Wins-8-1-Million#

Plaintiff sues Midland 2010 awarded $8M for harassment, non-debt
 

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