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need help with cach


sandcrab
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Hey I need some help from any Arizona people on here.

1 cach llc

2 joe pezzuto

3 around 4,000

4 sears

5 alternate service

6 taped to door

7 yes

8 two calls from law office, never left voicemail

9 Arizona, maricopa

10 March 2011

11 6 years

12 suit filled with the court but nothing on court calender.

13 no

14 yes I have the signed green card where they signed for DV letter

15 20 days

16 They sent an affidavit from Lana Handy from citi bank saying she is familiar with the account.

complaint not verified, no bill of sale or anything with my signature on it. Only cause of action was breech of contract,

their exhibit A was a generic terms and conditions from citi bank. They sent no statements with complaint.

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Hi,

 

When I see an affidavit like this, for some reason, my first question is with regard to the signature on it.  These companies are probably robo-signing these documents.  Could you post up a scan of the affidavit you received, so we can compare signatures?  Here's a recent post from this same forum where someone in California is dealing with a Unifund lawsuit, and has received a similar affidavit to yours.  They attached a scan, compare the signatures on it to yours and tell us if they match up or not.

 

http://www.creditinfocenter.com/community/topic/320895-unifund-llc-credit-card-lawsuit-california-need-advice-on-robosigned-affidavit-from-lana-handy-of-citibank/#entry1253398

 

If they do not match, then you have a robo-signed affidavit on your hands.  Not the most important piece of information to fight one of these, but if it is robo-signed, then this could get interesting.

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There are lots of az people on here with some great knowledge that is going to help you. First thing is to get the law suit answered, then you will have some time to learn the ropes. I believe if you don't have an answer form, you can download one from your courts website. General denial denying the debt, you can use plaintiff lacks standing as an affirmative defense. You may need to file a proof of service with your answer, and I am not sure about az, you may also need an affidavit, but your court rules will tell you.

Here are the rules for justice court, is it in justice court? Find your court website for your county, you may have local rules that apply.

http://weblinks.westlaw.com/toc/default.aspx?Abbr=az%2Drules%2Dweb&Action=ExpandTree&AP=NEED2B4B00DC911E2A64FAA1BEECFEC1A&ItemKey=NEED2B4B00DC911E2A64FAA1BEECFEC1A&RP=%2Ftoc%2Fdefault%2Ewl&Service=TOC&RS=WEBL13.10&VR=2.0&SPa=AZR-1000&pbc=DA010192&fragment#NEED2B4B00DC911E2A64FAA1BEECFEC1A

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Thanks kraftykrab my affidavit is identical to the one you linked to. They didn't send any statements. Just wondering is the generic terms and conditions

they sent something to worry about. The only action they say is breech of contract, so what now. Thanks for all the help. Even the notary is the same.

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But what about the signatures on it?  Are they the same as that example?    Also, what is the date that your affidavit was sworn to?

 

 

the generic info they provided there is not sufficient to prove their case.  They do this because they hope that you will not respond, and then they will win by default without ever having to prove their case.  There is nothing that proves their claims in that affidavit.  It is known as hearsay, and as such you should object to it.  First things first though, you do need to file an answer or else they will get a default judgment. 

 

If you post up the complaint they filed against you, there are lots of people here that can help you form a proper answer.  The generic terms and conditions they provided is also worthless, because they need to prove in a breach of contract case that a contract actually existed.  They need to prove that you agreed to be bound by the conditions in that agreement.  What I mean is, you need to force them to prove it.  Let's start with their complaint, and take things in order.  Can you scan it and post it?  If not, you might need to type it up.  Feel free to block out any personal info about yourself. 

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Regardless of what the complaint looks like; DENY all the allegations. In my opinion

 

As far as the signature being the same on the affidavits go; there is more to robo signing than just that. The signature may be the same, but she may have signed 300 affidavits that day, or 1000 that month, and could not have known about all the accounts or had time to verify all of them.

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AA is correct, in part.  These signers have sometimes admitted to signing as many as 2000 of these in a single day.  But there have also been more than a couple of cases where the same affiant has had several different signatures--showing that multiple people actually signed as this person.  if you can ever find that happening with an affidavit you have received like this, then you have ammunition to cast some serious doubt.  You also would have the basis for complaints against the notaries that notarized those different signatures as being all from the same person.  In fact...

 

http://www.debtorboards.com/index.php?topic=17910.0

 

I think you might find that link to be of some interest.  It would seem that the same OC as in your case has been outed for this practice, and outed by someone who was working there. 

 

As for Lana Handy, I can tell you that she is a real person, age between 35-40, living in an apartment within 30 miles or so of Kansas City, MO, which is where her office is.  I cannot tell you if she actually is employed by Citi in any capacity, aside from what she has stated on her affidavit.  I do know that in at least one case involving Asset Acceptance as the debt collector, the affiant claimed to work for Citicorp, but in fact was an employee of AA instead. 

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  • 2 weeks later...

CACH is a JDB just like any other. You have 20 days from the date you were served to file an answer, so answer the complaint and deny everything but your name. After that, you have 40 days to serve them with initial disclosure. Once you do that, sit back and see what they do next. They will probably serve you with a few statements, a card agreement and a bill of sale. It's hard to give direction until you get these things because the approach from there will depend on what you get and what it says, but basically they have to prove you incurred a debt AND that they magically own the right to collect that debt. Without a Citi employee there to testify, it's next to impossible under Arizona rules of evidence.

The unfortunate thing is you're (probably) in justice court. Maricopa JPs are by and large lazy and not concerned with the facts of a case. They want an easy disposition and the JDB lawyers hand it to them in the form of MSJs. You may be completely right but still lose in trial court and then have to appeal to get the correct judgment.

Settle in and get ready to earn your civil law degree. :-)

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@BV80 OP said the affidavit he received is identical to this one:

http://www.creditinfocenter.com/community/topic/320895-unifund-llc-credit-card-lawsuit-california-need-advice-on-robosigned-affidavit-from-lana-handy-of-citibank/#entry1253398

 

And that one references an alleged debor by name, last 4 of SSN and account #.  Is that enough to survive Summary?  If so, why aren't all the JDBs getting these types of affidavits from the OCs?

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@Harry Seaward

 

OC affidavits are more difficult to challenge, and this one is a pretty compelling affidavit.  The affiant states her duties with Citibank, and the affidavit contains the language required in 803(6) to authenticate business records.  It would be difficult to argue that an employee of the OC can't authenticate the OC's records.

 

However, she claims that her statements are made upon information and belief based upon either personal knowledge or a review of the records.  She doesn't specify whether she reviewed the records or has personal knowledge of the account.  Depending upon one's case law, you might could make an argument out of that.   We know it's robosigned, but you have to convince a judge.

 

The affiant could be subpoenaed, but the questions asked would have to apply to an OC employee, not a JDB employee.

 

Why don't all JDBs get affidavits from the OC?  Your guess is as good as mine.  Laziness.  Possible cost.  Who knows?

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AA is correct, in part.  These signers have sometimes admitted to signing as many as 2000 of these in a single day.  But there have also been more than a couple of cases where the same affiant has had several different signatures--showing that multiple people actually signed as this person.  if you can ever find that happening with an affidavit you have received like this, then you have ammunition to cast some serious doubt.  You also would have the basis for complaints against the notaries that notarized those different signatures as being all from the same person.  In fact...Doubt,,,? this is nothing but pure fraud perpetrated on the court and the defendant, it is also forgery.

 

http://www.debtorboards.com/index.php?topic=17910.0

 

I think you might find that link to be of some interest.  It would seem that the same OC as in your case has been outed for this practice, and outed by someone who was working there. 

 

As for Lana Handy, I can tell you that she is a real person, age between 35-40, living in an apartment within 30 miles or so of Kansas City, MO, which is where her office is.  I cannot tell you if she actually is employed by Citi in any capacity, aside from what she has stated on her affidavit.  I do know that in at least one case involving Asset Acceptance as the debt collector, the affiant claimed to work for Citicorp, but in fact was an employee of AA instead. 

Only way to prove this would be to subpoena Citi"s employment records...a far reach but you never know. If the attorney obtained this information through the plaintiff who purchased the account, how can he guarantee the authenticity of this document. How can we and the court be certain that the plaintiff did not produce it? Was it notarized? Do the notary dates match the signature dates? Does the affidavit specifically mention your account? Does the affidavit set forth any indication that she personally handled your account? Does the affidavit set forth exactly what she knows of your account? all that she states is that she is familiar with the business practices of CITI, that is a broad and vague statement, which business practices does she know about? accounting, human resources, etc. What is her exact job title and job description? Is she hired just to sign affidavits or does she actually take part in the business records production on a daily basis? Did affiant state she actually reviewed the records of the account or is the statement vague? How did she review the account? Did she do an accounting to make sure the alleged amount is correct or did she just read through it? How much time did she spend reviewing the alleged account? Did she review it for errors, or just skim over it and accept it as fact? Did she rely on what someone else told her about the alleged account? Or did she even actually see the account at all?

Affidavits are usually vague in a lot of aspects. You have read it several times and see what is DOES say, and then read it and see what it DOES NOT say. 

Another big issues is the sales contract, I bet somewhere in that sales contract the seller states that they do not warranty any of the information contained in the debt. If the seller cannot warranty any of the evidence, then how can the plaintiff who is asking a judge to rely on it as evidence also warranty the evidence? I would also say that the sales receipt and contract probably does not specifically mention your alleged account.

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@BV80


The affiant could be subpoenaed, but the questions asked would have to apply to an OC employee, not a JDB employee.
 

 

In the case of a trial, I understand the process of subpoena, but if the plaintiff files a MSJ based on this affidavit, what is the angle of attack to defeat the MSJ in order to get to the trial?  I'm thinking it would have to be something specific about the affidavit (like the 'personal knowledge' challenge you mentioned) so that the issue could be raised on appeal if the trial court rejects the argument.

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@Harry Seaward

 

The affidavit will have to be read very carefully to see if we missed anything.  I did notice that the affidavit doesn't specify any records.  Only the term "records" is used.  I'd argue that any documentation is not authenticated by no specific documentation is referenced in the affidavit.  There's no way of knowing which records Citi might have provided to Cach so you don't know which records were actually authenticated.

 

We need to know the cause(s) of action.  Discovery needs to be conducted because we need to see what records they have and the contents of those records.

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...

Affidavits are usually vague in a lot of aspects. You have read it several times and see what is DOES say, and then read it and see what it DOES NOT say.

...

DITTO

 

@Harry Seaward

 

The affidavit will have to be read very carefully to see if we missed anything.  I did notice that the affidavit doesn't specify any records.  Only the term "records" is used.  I'd argue that any documentation is not authenticated by no specific documentation is referenced in the affidavit.  There's no way of knowing which records Citi might have provided to Cach so you don't know which records were actually authenticated.

 

We need to know the cause(s) of action.  Discovery needs to be conducted because we need to see what records they have and the contents of those records.

Good points.

The CoA is "The only action they say is breech of contract, ..." from post #4

 

This thread seems to have some good comments on affidavits and plaintiff MSJs in AZ: http://www.creditinfocenter.com/community/topic/318765-portfolio-recovery-services-msj-in-az-need-help-with-opposition/#entry1222498

 

Insights into what a judge might be thinking when denying a plaintiff's MSJ - AZ Superior Court minute entry for denial of plaintiff's MSJ: http://www.creditinfocenter.com/community/topic/318765-portfolio-recovery-services-msj-in-az-need-help-with-opposition/#entry1222573

 

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@Credator

 

It remains to be seen what the JDB will have to prove the existence of a contract and an alleged breach.

Yes, it does remain to be seen.

 

Fortunately, we know what they need in Arizona and since the OCs don't have it or won't produce it for an MSJ the odds are extremely low that a JDB would, IMHO.

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@HarrySeaward

 

Regarding your post #17. The angle of attack to defeat an MSJ in order to get it to go to a trial: is to file an opposition to the MSJ and show that there are triable issues that do need to be settled at trial, and that they should not be awarded a ruling without the trial as there are disputed issues. Any evidence you may have to back you up is supposed to be attached. I don't know your rules, but some courts require an affidavit with you argument as well.

 

I think more than attacking an affidavit at an MSJ (not that you don't do that as well) is to show a triable issue.

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