bluewraith

Cach vs Me in Indiana

Recommended Posts

@bluewraith

 

Stubborn little buggers, aren't they?  :(

 

Yeah they are. Then again, so am I. I have no problem spending hours researching how to fight this. Its easy for me to step out of the emotional side of things and treat it like it is..

  • Like 2

Share this post


Link to post
Share on other sites

Do I need to do anything with their response to TR41E? They state that I never returned their discovery, yet I have a signed green card saying I did. It also included an Order to keep the case on the books.

Share this post


Link to post
Share on other sites

See what your rules say about MSJ and opposition to them. The proof you have that you sent the discovery can be used as an attachment to your opposition. You need to show reasons why this should go to trial and not awarded in a MSJ. Check you rules.

Share this post


Link to post
Share on other sites

Do I need to do anything with their response to TR41E? They state that I never returned their discovery, yet I have a signed green card saying I did. It also included an Order to keep the case on the books.

I would file a response to this ASAP if this is something they filed with the court.

Share this post


Link to post
Share on other sites

I would file a response to this ASAP if this is something they filed with the court.

Yes, it was filed in the court.

 

"Comes now the Plaintiff, by counsel, and for its response to the Court's Trial Rule 41 (E) hearing states as follows:

The Plaintiff has been awaiting discovery responses from the Defendant, but received none. Plaintiff is requesting summary judgment on that basis by separate motion. Wherefore, Plaintiff respectfully requests that the Court enter the attached Order allowing the case to remain on the active docket so that it may move forward with the prosecution of its case." Order and CoS attached to it.The MSJ says nothing about me not replying to Discovery.

 

I'd imagine this is just another one of their form letters. They can tell the court that I never returned Discovery, but until I contest that fact with evidence that I did (green card) then what? Opposition to Plaintiffs Response to Courts TR41E hearing? I don't see anything about opposition to TR41E in the book, short of what they did.

 

As for the MSJ, I have ~30 days to reply. Its been close to a year since I had to mess with any of this, but looking through my files I seem to have been expecting a MSJ. Got a lot of notes on an opposition and even have a reply started. Hopefully I can hit the ground running this time around, since I already have so much stuff prepared from last year.

Share this post


Link to post
Share on other sites

Yes, it's your response to TR41E they responded to. If not receiving your discovery is the basis for their MSJ then you can fix that problem for them easily enough.

You might also send them a meet and confer letter explaining they received your response and another copy of your response as well.

Share this post


Link to post
Share on other sites

So I just finished reading the MSJ.. Included were two Exhibits.. A and B.

 

Exhibit A is a short stack of BoA billing statements, nothing more.

Exhibit B is the "Exhibit C" Bill of Sale, "Schedule 1" which is a few sheets that include my name and account information without any real headers. Looks like an excel sheet printoff. Also included is the Affidavit of Claim from the Complaint, as well as am Affidavit of Sale and Cert. of Debt, signed and dated nearly two months AFTER the Complaint was filed. I belive this is the OC affidavit

 

They make reference in the MSJ to Exhibit A saying that it substantiates the balance due to the Plaintiff. They make ZERO mention of Exhibit B anywhere. This seems important to me. Don't they have to at least reference something to get it attached to the MSJ?

 

The reference "the agreement" in each of their 4 "Statement of Undisputed Facts", yet have included no such agreement. They say its in Exhibit A, but thats only billing statements.The OC Affidavit clearly states that the original contract "may not be available, or no longer accessible to Affiant"

 

Now then.. isn't there something against an affidavit prepared for a case? Would that not be the case for the OC affidavit, since it is clearly dated after the case has started?

Should I bring up the point in my opposition that their MSJ makes no reference to any of their affidavits, bill of sale, etc in Exhibit B?

 

The Argument section of the MSJ goes on citing MSJ caselaw boilerplate, followed by a conclusion:

"This is a simple collection action for the payment of an unpaid balance. The Plaintiff has supported its claim and attached proof evidencing the true and correct balance due on the account. The Plaintiff submits that the Defendant cannot produce evidence which will create an issue of material fact which will warrant a judgment in favor of the Defendant or which will prevent the entrance of a judgment in favor of the Plaintiff. Therefore, Plaintiff moves the Court to enter a judgment in its favor granting all relief sought in its Complaint."

 

Why no reference to Exhibit B? Why is the OC affidavit dated 2 months after the start of the case, and only now being sent to me instead of during Discovery? It looks to have been created after I sent POD,

 

Affidavit says the sale of the account occured 5/14/12, bill of sale states 5/17. I can see how a large sale like that may take a couple days, but shouldn't those dates match for the court?

 

Sorry, I tend to ramble on.. lol

Share this post


Link to post
Share on other sites

Now then.. isn't there something against an affidavit prepared for a case? Would that not be the case for the OC affidavit, since it is clearly dated after the case has started?

Should I bring up the point in my opposition that their MSJ makes no reference to any of their affidavits, bill of sale, etc in Exhibit B?

 

http://www.creditinfocenter.com/community/topic/320190-quick-question-on-a-rule/?p=1313011

@BV80 states:

"However, if a party tries to introduce as a business record an affidavit that was recently made by someone else, then you object because a record that was recently made could have been made for the purpose of the lawsuit (litigation).   For instance, a JDB might try to introduce an OC affidavit as a business record.  What's the date on that affidavit?  Is it recent?  Was it made long after the sale?   If that OC affidavit was made just for the sake of the lawsuit, then it cannot be a business record.  Of course, there might be exceptions under which such an affidavit might be allowed as a business record.  I guess it might depend on the circumstances."

 

I knew I had read something about that.. now I just need to decipher it. lol

Share this post


Link to post
Share on other sites

I would never consider an affidavit a business record. They are always hearsay.

Affidavits are allowed in msj but shouldn't be allowed in trial under a hearsay objection.that is the reason you need to show issue and reason for this to go to trial and not settled at msj. You can't object to affidavit as hearsay in a MSJ but at trial you would.

You need to read what your rules say about this.

Share this post


Link to post
Share on other sites

I would never consider an affidavit a business record. They are always hearsay.

Affidavits are allowed in msj but shouldn't be allowed in trial under a hearsay objection.that is the reason you need to show issue and reason for this to go to trial and not settled at msj. You can't object to affidavit as hearsay in a MSJ but at trial you would.

You need to read what your rules say about this.

 

What about the other questions? Shouldn't Exhibit B at least be referenced somewhere to be considered part of the MSJ?

Share this post


Link to post
Share on other sites

I'm still reading your post. I was just commenting where I already had an opinion. I'll go over it again later and post.

Share this post


Link to post
Share on other sites

I'm still reading your post. I was just commenting where I already had an opinion. I'll go over it again later and post.

Ok thanks. :) Sorry if I come off a bit fast.. My brain works on its own clock sometimes. lol

  • Like 1

Share this post


Link to post
Share on other sites

Do I need to do anything with their response to TR41E? They state that I never returned their discovery, yet I have a signed green card saying I did. It also included an Order to keep the case on the books.

 

 

I can't tell you how many OPs have reported that the JDB claimed they never received discovery.  For that matter, I have seen defense lawyers say that in non-debt collection cases as well.  I guess it must be SOP for them.  Part of the stonewalling process to try to grind you down.

  • Like 1

Share this post


Link to post
Share on other sites

I can't tell you how many OPs have reported that the JDB claimed they never received discovery.  For that matter, I have seen defense lawyers say that in non-debt collection cases as well.  I guess it must be SOP for them.  Part of the stonewalling process to try to grind you down.

That's what I figured. It didn't bug me too much, but I do think I'll have to address it soon.

Share this post


Link to post
Share on other sites

@bluewraith
 

 

I wish I had noted the case where I saw that a party had offered an affidavit made by another entity and claimed it was a business record because the party had kept it in their files.  In any case, the post was based upon how a JDB offers an affidavit by an OC.

Let's say there's an affidavit or declaration from the OC that attests that a consumer's account was sold to the JDB.  Then, the JDB offers it's own business record affidavit attempting to authenticate OC records and references the OC affidavit.  That could mean the JDB is offering the OC affidavit as a business record.  Well, unless the OC routinely and in the course of business makes such an affidavit, it would be considered testimonial in nature and therefore, could not be a business record.

 

Also, you'd look at the date on the OC document.  If it was written right before or after the lawsuit was filed, you could also object to it as a document prepared for the sake of litigation.

Share this post


Link to post
Share on other sites

@debtzapper

 

Do you know what happened in the "Seth" case after Seth won the appeal?

 

I'd like to see the other documents on the docket in the appeal, and also after it was remanded.

 

btw, the "Seth" appeal decision is also available in pdf form here: http://www.in.gov/judiciary/opinions/pdf/11081301ewn.pdf

 

That brings up another question I have..

 

What does "attach" mean in the legal sense? Does stapling a billing record to it count? Or, the way I see, must the affiant specifically mention a document for it to become "attached"? The affidavit works as the witness to the documents.. if documents are just thrown in without being referenced (a foundation, I think its called?) they can be attacked easily, correct? IE, I have to knock out the affidavit before the bill of sale or the statements.

 

I guess what it boils down to is I have no idea how evidence is actually introduced, nor when to try for a motion to strike or limine. In the Opposition to MSJ so far I've been working against the original affidavit from the complaint, but I feel as if I need to address the OC affidavit as well, since it was included in the packet.

 

 

Sidenote: The OC affiant was not disclosed during discovery.

Share this post


Link to post
Share on other sites

So I just finished reading the MSJ.. Included were two Exhibits.. A and B.

 

Exhibit A is a short stack of BoA billing statements, nothing more.

Exhibit B is the "Exhibit C" Bill of Sale, "Schedule 1" which is a few sheets that include my name and account information without any real headers. Looks like an excel sheet printoff. Also included is the Affidavit of Claim from the Complaint, as well as am Affidavit of Sale and Cert. of Debt, signed and dated nearly two months AFTER the Complaint was filed. I belive this is the OC affidavit

 

They make reference in the MSJ to Exhibit A saying that it substantiates the balance due to the Plaintiff. They make ZERO mention of Exhibit B anywhere. This seems important to me. Don't they have to at least reference something to get it attached to the MSJ?

Again, read your rules for MSJ, but yes, I would think they would need to mention it and then attach it. It doesn't do much good without their argument but it is filed with the court (with the MSJ) so I would think it needs to be addressed. You need to make issues of material fact that show a reason to go tot trial and not rule against you in a msj.  

 

The reference "the agreement" in each of their 4 "Statement of Undisputed Facts", yet have included no such agreement.

Check your rules for something about "remainder of writings" or "rule of completeness" and see what you find about mentioning something but not attaching it or providing a complete document etc. You want to show that these are "disputed facts" and material issues of fact do exist and this needs to go to trial not MSJ. 

They say its in Exhibit A, but thats only billing statements.The OC Affidavit clearly states that the original contract "may not be available, or no longer accessible to Affiant"

You need to attack the fact that they cannot lay a foundation or authenticate records of the OC. The OC may not have all the records or any records as far as you know because this case was brought by jdb. Check your business records exception to hearsay rule and use it to form objections to these statements (as well as other evidence).

 

Now then.. isn't there something against an affidavit prepared for a case?

You have a rule against hearsay (at trial) which is what an affidavit is. Check your rules.

"A document prepared for the sake of litigation is not a business record because it is lacking trustworthiness".  Parker v Hoffman 318 U.S. (1943).

 

Would that not be the case for the OC affidavit, since it is clearly dated after the case has started?

Untrustworthy with the dates and an issue of material fact (as well as an exhibit for you to attach evidence) for your opposition to the msj showing a reason for this to go to trial (find as many issues of material fact as you can).

Should I bring up the point in my opposition that their MSJ makes no reference to any of their affidavits, bill of sale, etc in Exhibit B?

I would attack these exhibits (rather than just saying they didn't mention them) and show how they are untrustworthy, have foundation and authentication issues and any other argument I can find for them showing a material issue of fact and attaching it as an exhibit and evidence for your opposition to their msj showing reasons for this to go to trial and no tot be decided in the msj.

 

The Argument section of the MSJ goes on citing MSJ caselaw boilerplate, followed by a conclusion:

"This is a simple collection action for the payment of an unpaid balance. The Plaintiff has supported its claim and attached proof evidencing the true and correct balance due on the account. The Plaintiff submits that the Defendant cannot produce evidence which will create an issue of material fact which will warrant a judgment in favor of the Defendant or which will prevent the entrance of a judgment in favor of the Plaintiff. Therefore, Plaintiff moves the Court to enter a judgment in its favor granting all relief sought in its Complaint."

Read your msj rules for what is underlined here. The jdb is telling you how to beat their msj. Use it against them. The underlined is what you need to do to beat the msj which is priority. You must have a timeline for this so check your rules.

 

Why no reference to Exhibit B? Why is the OC affidavit dated 2 months after the start of the case, and only now being sent to me instead of during Discovery? It looks to have been created after I sent POD,

These are issues of material fact which need to be tried in court, not msj. No reference to exhibit B could just be sloppiness and really isn't much of an issue that is going to do anything for you. They don't need to reference it for you to use it against them, they attached it so find the material issues against it to beat the msj.

 

Affidavit says the sale of the account occured 5/14/12, bill of sale states 5/17. I can see how a large sale like that may take a couple days, but shouldn't those dates match for the court?

 

 

The date should be accurate and the jdb doesn't have any knowledge of this and can't lay a foundation for OC records or authenticate them. Learn about this and check your rules on it, and see what case law is available on this. I would tell you exactly what to do if you were in CA, so you need to see your rules.

 

Hope this helps

  • Like 1

Share this post


Link to post
Share on other sites

@bluewraith

 

Now then.. isn't there something against an affidavit prepared for a case?

 

 

If that's the OC affidavit, what does it say?

Share this post


Link to post
Share on other sites

@Anon Amos

http://www.in.gov/judiciary/rules/trial_proc/

http://www.in.gov/judiciary/rules/evidence/

 

TR 56 © in part...Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits....

 

It says that if it is referenced, it needs to be attached with it. Nothing for items that are just randomly tossed in, like Exhibit B.

 

As for completness:

 

Rule 1006. Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time or place. The court may order the proponent to produce them in court.

 

So summary of things to include in the opposition:

The referenced "the Agreement" (the sale of the account) in the OC Affidavit, yet only included one page and a Schedule 1 document.

Attack the fact that they cannot lay the foundation or authenticate OC records using the original affidavit from CACH (attached to complaint included with statements)

The OC affidavit is untrustworthy due to the discrepancy of the date of sale vs bill of sale, as well as being created two months after suit began

Basically, dig through all their evidence they sent me with the MSJ, attach it as exhibits to my opposition and tear it all apart? Gathering as many issues of material fact as I can along the way?

Share this post


Link to post
Share on other sites

@bluewraith

 

 

If that's the OC affidavit, what does it say?

@BV80

watered down:

 

1. Affiant is employed by FIA in position of Bank Officer (yet Linkedin says mortgage manager.. whatever)

2. contents are believed to be true and correct based on the computerized and hard copy books and records of FIA, maintained in the ordinary course of business with the entries in them having been made at or near the time of the transaction recorded.

3. FIA is owned by BOA, successor in interest to MBNA etc.

4. That the account records of FIA Card Services, N.A. show that: (various stuff pulled from Schedule 1. Name, account numbers, total owed, date of sale)

5. As a result of the sale of said account, CACH has complete authority to settle, adjust, etc. and that FIA has no further interest.

6. Original contract not available, or no longer accessable to affiant.

 

Signed dated notorized 5/20/14, almost 2 months after suit started.

Share this post


Link to post
Share on other sites

It says that if it is referenced, it needs to be attached with it. Nothing for items that are just randomly tossed in, like Exhibit B.

 

 

This may more relevant then I thought. It should not be considered in the msj, you may be able to motion to strike it. Also be prepared to argue against it however (and you may have to in order to show issues of material fact).

Share this post


Link to post
Share on other sites

@bluewraith

 

The reference "the agreement" in each of their 4 "Statement of Undisputed Facts", yet have included no such agreement.

 

 

Use TR 56©.

 

Previously, you stated:

 

Right now, they have only submitted 2 cc statements. One to attest to the balance claimed, and another showing a phone payment on a date that does not match the date of last payment stated in the affidavit of claim. Both of those statements were attached to the complaint, and again in the discovery package.

 

 

In the statements they provided with the MSJ, is there one that shows a payment on a date that matches the date of last payment stated in the affidavit of claim?

 

 

Here's a good case for you to read.  Seth v. Midland Funding

 

http://scholar.google.com/scholar_case?case=13169856357742435649&q=%22Seth+v.+Midland%22&hl=en&as_sdt=6,41

Share this post


Link to post
Share on other sites

In the statements they provided with the MSJ, is there one that shows a payment on a date that matches the date of last payment stated in the affidavit of claim?

 

Yeah

November statement lists a payment on 10/30. Both October and December statements for that year are missing. It picks back up with January.

In their response to discovery, October is included and shows a payment in September. Still no December statement too, unless its way out of order. Its a pretty sizeable stack of statements and I'm falling asleep on the keyboard right now. lol I'll pick back up on this in the morning.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.