SQLguy

I Think I Just Won My Case. Need Help With Next Steps

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@Anon Amos

 

 

 

 

 

 In case I didn't explain it properly, a Constitutional argument doesn't apply if the Constitution is not being violated.

If I suggest to a defendant to use the Constitution; it is on the assumption that a Constitutional right is in jeopardy of being violated, and needs to weighed by a trier of fact (be it the judge or appellate justices). I don't need it explained to me.

 It is a tough subject, and I am generally speaking here, not entirely case specific. I know it's going to be too much for many people, but for many others it's not.

 

However I won't muddy the waters with it anymore here.

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I think talking to the lawyer was a good idea, especially if he worked with them. I would want to find out if you are collection proof. Depending on your rules and what you make, it's possible they can't collect from you anyway.

 

I think you can drive them away and force them to dismiss if you keep enough pressure on them. But that takes time and effort. So the only reason to settle would to be if you just can't go thru with it and want it over now (in my opinion). Sometimes however settling doesn't end it, and down the road there are more problems, as you can't trust a bottom feeder, 

 

I think you could do much better than 50% however, assuming they actually honored the agreement. 

 

I don't think I'm collection proof. I am working, and make a decent wage but also have a lot of debt and am trying to adopt a child this year. I did find out that my employer will be closing our office in March and will be transitioning things to Michigan, however I will be working for them from home until the end of the year. My house is joint with my wife. My bank account has $250.00 a month from my wages go into it, the rest goes into my wife's account. So the main thing I can see is a garnishment on my wages. The rule in Utah states that they can only do 25% of disposable income. They don't define disposable income so I'm not exactly sure what that means 

 

The attorney did tell me that if I go the settlement route to make sure there is an indemnity clause in it that protects me from any further action on this account. If I decide to settle I do plan to present a low ball offer along with my sob story and see what happens. Apparently the Asset Acceptance attorney only has the ability to settle for 75% Anything less and they have to talk to Asset Acceptance. 

 

I also had an interesting conversation with another Defendant in a Johnson Mark case. He mentioned to pay attention to the post marks on their mailings. He said that they are mailing stuff with an Idaho postmark that has no mailing date on it. He indicated that this was a Federal  violation as it is impossible to determine something was mailed. Anyone have any insight into this? I do have some mailings that seem to match but I wasn't sure what sort of violation he was talking about.

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I also had an interesting conversation with another Defendant in a Johnson Mark case. He mentioned to pay attention to the post marks on their mailings. He said that they are mailing stuff with an Idaho postmark that has no mailing date on it. He indicated that this was a Federal  violation as it is impossible to determine something was mailed. Anyone have any insight into this? I do have some mailings that seem to match but I wasn't sure what sort of violation he was talking about.

 

Everything i get from them is stamped with an in house postal machine, which only marks they date when they stamp it in office. One thing I notice is it is always mailed 2-3 days after they stamp the letter. Some times more if there is a weekend involved. I can only determine this on the day I receive a communication from them. It is always received next day after they actually mail it.

 

Is the Plaintiff's attorney's first name Katia? If so, she has only been licensed to practice law since last spring.

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Everything i get from them is stamped with an in house postal machine, which only marks they date when they stamp it in office. One thing I notice is it is always mailed 2-3 days after they stamp the letter. Some times more if there is a weekend involved. I can only determine this on the day I receive a communication from them. It is always received next day after they actually mail it.

 

Is the Plaintiff's attorney's first name Katia? If so, she has only been licensed to practice law since last spring.

 

 

See that's the thing. Some of those in house stamps don't have a date on them.  I've got at least 2 envelopes with no date on the postmark. And yes her name is Katia. I'm told she goes by Katy. However it was a different attorney at the hearing today. I found this odd because I'm pretty sure I received a notice of substitution of counsel that said this particular attorney was no longer employed there.

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Apparently the Asset Acceptance attorney only has the ability to settle for 75% Anything less and they have to talk to Asset Acceptance. 

 

 

I would tell him to start talking then. Even if you do settle (which I am not suggesting) you still need to fight them for a while. That's how you get a good settlement. I would never settle, but if I did, it would be toward the end of the case, and definitely not even before a pre trial hearing. You could win the case on account that no witness showed up to authenticate the evidence.

 

Also, if you drag it out and fight a while, not only does your settlement improve, you could save up the money and give them a low ball cash offer or the opportunity to go to trial. If you are going to settle you don't need a lawyer and could use that money as part of your offer.

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You could win the case on account that no witness showed up to authenticate the evidence.

 

Good point. My attorney did say My hearsay argument was pretty good, and he brought up the fact that their affiant was not an party to the original agreement and that the documents provided were the plaintiff's and not from the OC.

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See that's the thing. Some of those in house stamps don't have a date on them.  I've got at least 2 envelopes with no date on the postmark. And yes her name is Katia. I'm told she goes by Katy. However it was a different attorney at the hearing today. I found this odd because I'm pretty sure I received a notice of substitution of counsel that said this particular attorney was no longer employed there.

 

Yes, I know what you mean, I recall There have been a couple with no dates.

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Good point. My attorney did say My hearsay argument was pretty good, and he brought up the fact that their affiant was not an party to the original agreement and that the documents provided were the plaintiff's and not from the OC.

Exactly. And if defended properly they need a witness from the OC and the plaintiff. No matter what you do, you fight for a while. Why rush into making payments? Especially if your job situation  may change in  a year.

 

If you try to settle now you have no leverage. You already want to settle, they have no need to negotiate. If you make them work for a while and then offer them the chance to not have to fly witnesses all over the country to trial, you will get a better deal (again I am not suggesting you settle however).

 

3 cases were just dismissed because the defendant sent them discovery. Discovery Is not even filed with the court and can be as simple as requesting 4 things in a request for production of documents (of course I don't know your rules, so check).

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Good point. My attorney did say My hearsay argument was pretty good

When you learn how to combine that with "lack of foundation" and "lack of authentication" (with the rules of evidence and authentication) it can destroy their case. And you have plenty of time to learn how to do this. You can use that time against them.

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Good point. My attorney did say My hearsay argument was pretty good, and he brought up the fact that their affiant was not an party to the original agreement and that the documents provided were the plaintiff's and not from the OC.

 

@SQLguy

 

Exactly.  The business records exception references the custodian of records or another qualified witness.  While some courts don't require the custodian of records of the OC, a JDB still must have a "qualified witness".  

 

Even if an affiant claims that they are the custodian of records for the JDB, you point out that they have no knowledge of how the OC created and maintained records.  If your courts don't require a custodian of records from the OC, concentrate on the JDB's failure to prove that their employee is a qualified witness as required by the business record exception.

 

Most JDB affiants simply state that they represent the OC in some capacity.   They never seem to describe exactly how they are a qualified witness. 

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