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Lost to FIA Card Svcs. at trial, with a lawyer

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Here is my cautionary tale.  I was served with a summons from a Bank of America card with an almost $4,000 balance, with FIA Card Services as the company requesting the funds.  Law firm representing FIA - Hanna and associates.  

 

Case went to trial, and the judge ruled for the plaintiff.  My lawyer made objections to the hearsay evidence presented at trial regarding record keeping, but was denied.  

 

Plaintiffs brought a witness from FIA, and had a copy of my signed credit card application from 1998.

 

I just don't even think I can win on appeal.  Good luck out there.

 

 

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Here is my cautionary tale.  I was served with a summons from a Bank of America card with an almost $4,000 balance, with FIA Card Services as the company requesting the funds.  Law firm representing FIA - Hanna and associates.  

 

Case went to trial, and the judge ruled for the plaintiff.  My lawyer made objections to the hearsay evidence presented at trial regarding record keeping, but was denied.  

 

Plaintiffs brought a witness from FIA, and had a copy of my signed credit card application from 1998.

 

I just don't even think I can win on appeal.  Good luck out there.

 

Hanna is getting craftier.  Having that application and a live witness is virtually impossible to defeat even with Hanna on the other side.  Sorry it went that way.

I don't know what your other debts are but if you qualify I would BK him so that he spent all that money for nothing.

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This was in FL.  

 

My lawyer made several objections to the hearsay evidence presented by their "witness".  My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America.  Then FIA Card Services.  That's four different institutions who have had the account.  

 

Oh well... Florida only gives you 10 days to appeal.  That wasn't enough time for me to consider my options.  

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This was in FL.  

 

My lawyer made several objections to the hearsay evidence presented by their "witness".  My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America.  Then FIA Card Services.  That's four different institutions who have had the account.  

 

Oh well... Florida only gives you 10 days to appeal.  That wasn't enough time for me to consider my options.  

 

 

Florida gives 30 days to Appeal.   Not sure where you got 10 days from, I think you are confusing the time to file for a Motion for Reconsideration or Rehearing which is not the same thing as an Appeal.  You still have time to Appeal if you want to :-)   Just be prepared the filing fee is $300 and the Initial Brief is due within 15 days so you're probably going to need to request an extension of time (and in Florida you must call the opposing counsel to get their stance on your motion for an extension and state it in your motion) or the courts will reject your motion for an extension of time automatically. 

 

I'd go for it if you feel you have a valid reason to appeal.  Worst case scenario you lost about $400-$500 after costs to prepare the record and filing fee, and you wasted a lot of their time which makes it well worth it in my opinion. 

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The lawyer sent me something which had the titles "Final Judgment", "Statement of Fact", and "Statement of Law."  Under the statement of law portion, my lawyer stated the following about the witness for FIA Card Services:

 

"In order to prove standing, the witness was placed under heavy cross examination as to her qualifications as a records custodian for the Plaintiff.  The witness was unable to verify the reliability of the documents Plaintiff presented to the court.  The Plaintiff did not present any written evidence to the court in support of their position as to the issue of standing.  Furthermore, Plaintiff was unable to produce any documentation evidencing that there was any assignment, contract or other documents showing any transfer or conveyance from ABC company (I put ABC company in there), to BofA, to FIA.  

 

The witness was unable to testify when any of the data pertaining to this account was entered or who entered the data into the computer system of Plaintiff. " 

 

He went on to say a few more things... and said "the witness's testimony was limited to reading from a statement, meaning she was not a qualified records custodian and failed to show the record was made at or near the time of the event, or that it was made by or from information transmitted by a person with knowledge as required by the Supreme Court of Florida.  (he then references a case).

 

He then states that the Plaintiff failed to answer Defendant's Request for Admissions in a timely manner, did not have a stipulation to file late responses, nor sought and received leave of court to file late responses.  Then he questions as to whether or not the Plaintiff had standing to even bring the lawuit.   "Since Plaintiff was unable to prove that the securitized account was sold, transferred or conveyed back to Plaintiff before they filed suit, they were unable to prove they had standing."

 

How in hell did I ever lose this case?!?  I am now taking donations for the appeal.  

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My lawyer made several objections to the hearsay evidence presented by their "witness".  My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America.  Then FIA Card Services.  That's four different institutions who have had the account.  

 

I honestly consider this to be an OC situation. B of A bought MBNA (aka FIA Card Services) a long time ago. B of A also bought the Wachovia credit card business that used to be administered by FIA. Today, FIA is a subsidiary of B of A.

 

Obviously I could be wrong, but when you have legitimate big banks doing M&A, I just don't see there being assigment issues. Pretty much all the institutions in play in your case are just one big family. That's why they were able to have witnesses and an actual signed agreement.

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Doesn't matter. If you are Big Bank, and you are trying to use the courts to collect money, you had better be able to show how your acquisition of Slightly Smaller Bank allows you to do so.

 

BoA's systems are internally incoherent. On the one hand, they say that all the previous banks (Wachovia, Providian, BoA are now under the umbrella of FIA. In the robosigned affidavits they give to their JDB buyers, they say that FIA Card Services is a wholly owned subsidiary of BoA.

 

Which is it guys? It's not me. But if it were, I'd be appealing this.

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I hope there is an appeal and the OP ends up victorious. However, my point was that there was no JDB involved. So while it may be true that the BoA umbrella is not leakproof, I would have lowered expectations that the BoA family (in comparison to an entity that primarily engages in the business of buying distressed consumer debt) would be unable to prove it has standing and sufficient evidence to support its claim .

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If the trial court judge erred;

the trial court record shows the error;

a timely appeal is filed; and

a competent consumer attorney is representing the defendant on appeal - I would not be surprised if an appeal is won by the appellant/defendant and sent back to the trial court.

 

If the plaintiff determines that the cost of appeal and/or the risk of any adverse case law is too great for their risk tolerance, a settlement might be reached prior to an appeal decision.

 

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I spoke with my lawyer and he said that an appeal would cost anywhere from $5,000 to $10,000 and that the chance of success in overturning the decision is low.  He said he has never seen an appeal from the lower courts reversed on appeal, because the higher court judges don't like to reverse a decision from another judge.  That was just one lawyer's opinion, although he has been on the consumer side for at least a decade.  He did say how shocked he was that I lost.  I could hear it in his voice that he was as outraged as I was at the proceedings of the court.  He said the other lawyer showed up 20 minutes late for the trial (the judge held the trial for the lawyer), and that the witness for the bank was a joke.  

 

My lawyer also stated that there was no court reporter present at the trial, so that presents additional problems.  

 

A thought did occur to me though... if Hanna is bringing all of these lawsuits based on Bank of America assigning of accounts to FIA Card Services, wouldn't a "lack of standing" class action lawsuit be possible?  There has to be other judges in the country who see that although Bank of America received millions billions of dollars in bailout money from the government, they are not allowed to skirt the law in the courtroom.  

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A thought did occur to me though... if Hanna is bringing all of these lawsuits based on Bank of America assigning of accounts to FIA Card Services, wouldn't a "lack of standing" class action lawsuit be possible?  There has to be other judges in the country who see that although Bank of America received millions billions of dollars in bailout money from the government, they are not allowed to skirt the law in the courtroom.  

 

They are not skirting the law and were it not for the millions billions of dollars in defaulted debt they might not have required a bail out.  

 

FIA Services IS BoA.  They do not assign the debt to them.  FIA Card Services IS the official card issuer for BoA.  BoA rarely sells their debts and seeing BoA/FIA Card Services as a plaintiff indicates a suit by an original creditor and those are much harder to win.

 

The witness was unable to testify when any of the data pertaining to this account was entered or who entered the data into the computer system of Plaintiff. " 

"Since Plaintiff was unable to prove that the securitized account was sold, transferred or conveyed back to Plaintiff before they filed suit, they were unable to prove they had standing."

 

How in hell did I ever lose this case?!?  

 

If the witness works for BoA she can testify to the records and doesn't require special qualifications or knowledge.

 

My guess is you lost this case because your lawyer attacked it like a junk debt case not realizing it was an original creditor case.  The court is going to dismiss and not allow attacks on standing because the OC always has a right to sue until they sell the debt.  Hanna is slime and will end up in hell one day but even he occasionally gets one right.  

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I spoke with my lawyer and he said that an appeal would cost anywhere from $5,000 to $10,000 and that the chance of success in overturning the decision is low.  He said he has never seen an appeal from the lower courts reversed on appeal, because the higher court judges don't like to reverse a decision from another judge.

...

My lawyer also stated that there was no court reporter present at the trial, so that presents additional problems.  

...

If it actually takes anywhere from $5-10k for a 10 year attorney to properly brief/argue an appeal in the OP's case I would estimate it should be similar in cost to the respondent/plaintiff to brief/argue as the appellant/defendant. That is where the competent and confident self-represented party increases costs/risks to opposing on an appeal. Of course I would not appeal without a reversible error/abuse of discretion documented in the trial court record.

 

The AZ CoA is not likely (from decisions I have read) to permit the trial court to error and ignore previously decided CoA case law/published opinions. Perhaps appealing to a court that cannot make case law/published opinions results in a reluctance of that "appeal court" to "reverse a decision from another judge" in an even lower court. IDK Those types of unpublishable "appeal court" decisions are not ones I would normally be reading as they have minimal to no impact on a trial judge I would be likely to deal with.

 

I consider an AZ justice court appeal to the AZ superior court a bit sketchy as it is presumably difficult or discouraged to get appeal errors made by the superior court before the AZ CoA. The AZ CoA is where judges begin to pay close attention to the proper interpretation and application of the law, statutes and rules. IMO

 

If there is not a proper trial court record for appeal then the parties have given the trial court judge permission to literally rule based over the weather or a litigants hair color. A credible threat of appeal, should they make an reversible error, is the only thing that will cause the judge to consider ruling based on controlling law and the rules.

 

If I don't properly plan and make my record for an appeal, I believe that I have most likely planned on losing without any recourse. An attorney failing to make a pristine record for an appeal of any reversible errors is tantamount to malpractice IMHO.

 

Interestingly, whenever an attorney with less than a decade of experience in collection litigation sues me it seems they are quickly moved to the background when I start to engage them in litigation. It appear that a decade is about the minimum to keep you from making fatal or painful mistakes as a DC attorney. It seems that those with <10 years of experience are merely there to add to the billing hours while getting their on the job training.

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The AZ CoA is not likely (from decisions I have read) to permit the trial court to error and ignore previously decided CoA case law/published opinions. Perhaps appealing to a court that cannot make case law/published opinions results in a reluctance of that "appeal court" to "reverse a decision from another judge" in an even lower court. IDK Those types of unpublishable "appeal court" decisions are not ones I would normally be reading as they have minimal to no impact on a trial judge I would be likely to deal with.

 

I consider an AZ justice court appeal to the AZ superior court a bit sketchy as it is presumably difficult or discouraged to get appeal errors made by the superior court before the AZ CoA. The AZ CoA is where judges begin to pay close attention to the proper interpretation and application of the law, statutes and rules. IMO

 

@Credator

 

Not sure why you are quoting AZ rules of civil procedure and cases when the OP is in Florida.  Fred Hanna does not practice in AZ.  Currently he is based in GA and has branched out to FL and MO.

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@Credator

 

Not sure why you are quoting AZ rules of civil procedure and cases when the OP is in Florida.  Fred Hanna does not practice in AZ.  Currently he is based in GA and has branched out to FL and MO.

I have not quoted civil rules of procedure for AZ nor any AZ cases in this thread.

 

In my experience Hanna does not practice in Arizona At least they chose not to practice on me after sending me a threatening dun letter for an alleged debt. I mailed my DV letter to GA. They stopped annoying me evermore.

 

My comments merely gave the OP's attorney the benefit of the doubt, What I suggested might explain why any attorney might possibly be correct in stating, "He said he has never seen an appeal from the lower courts reversed on appeal, because the higher court judges don't like to reverse a decision from another judge." Any one with experience in FL that has information contradicting my explanation that, "Perhaps appealing to a court that cannot make case law/published opinions results in a reluctance of that "appeal court" to "reverse a decision from another judge" in an even lower court." is welcome to do so. There also may be posters with experience that indicate the OP's attorney is flat out wrong in their "don't like to reverse" claim in any court with or without an ability to make case law. If so, my apologies for giving the attorney the benefit of the doubt.

 

I assume, lacking controverting evidence, that appeals to a court that can publish case law are going to have similar foundational basics. Such basics as making a proper trial court record that indicates a reversible error. *If* the OP's attorney is appealing to an appeal forum that makes FL case law I suspect they are incorrect in stating that "the higher court judges don't like to reverse a decision from another judge". That is the primary purpose (reverse or affirm) of an appeal court In AZ, FL, and other states AFAIK.

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My lawyer also stated that there was no court reporter present at the trial, so that presents additional problems.  

 

 

This is your main problem. On appeal, the appellate court also wants a transcript of the trial. Without that you would have to have sworn testimony of what happened in court signed by the judge who heard the case (at least that's my understanding). I'm not trying to bring you down, but it also depends on the judge you had - we have quite a few "rubber stamper" judges in the Florida court system. Look at other cases the judge ruled on that are similar to yours. We have one in our county who has not ruled once for a defendant - all of his rulings are in favor of the plaintiff no matter what evidence is presented or not presented. He is a new judge who was a former state attorney and is biased as all get out against defendants. Ask your attorney if there is a law that covers an appeal based on the judge's obvious bias, if that turns out to be what happened with your case.

 

And, IMO, the issue of BofA to FIA is not the point - rather, this statement, "My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America." is where there may be an issue of standing and ownership. Again, consult with your attorney because I'm just giving you my opinion based on what you've posted.

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Which is also why it's good to get your arguments in writing that way if there is no transcript, there is still a record that you presented the arguments to the court which can be used for an Appeal.  Obviously you can't go back, but lessons for the future!

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My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America.  Then FIA Card Services.  That's four different institutions who have had the account.

 

 

 

And, IMO, the issue of BofA to FIA is not the point - rather, this statement, "My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America." is where there may be an issue of standing and ownership.

 

 

MBNA took over Wachovia, but they merged with BofA.   That merger was not a transfer to a different institution.  FIA is the servicer for BofA, so again, no transfer.

 

Whether or not a transfer and/or merger is a big issue might depend upon the evidence.  If the defendant used the credit card after it was transferred to BofA and the evidence reflected that usage, the plaintiff could argue that the defendant had accepted that BofA had control of the account and had never disputed it. Then you have to include the fact that they had a live witness from FIA. 

 

OC's usually have sufficient admissible evidence.  Unless the defense is stronger than a claim of hearsay evidence, haven't shown a complete accounting, etc., it's usually going to be an uphill battle even with an attorney.

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I assume, lacking controverting evidence, that appeals to a court that can publish case law are going to have similar foundational basics. Such basics as making a proper trial court record that indicates a reversible error. *If* the OP's attorney is appealing to an appeal forum that makes FL case law I suspect they are incorrect in stating that "the higher court judges don't like to reverse a decision from another judge". That is the primary purpose (reverse or affirm) of an appeal court In AZ, FL, and other states AFAIK.

 

If a case has reversible error, and it is supported by case law, appeals courts are bound to follow it.  If they ignore binding case law, you can go over the Appellate Court's head as well via a petition for writ of certiorari.  Basically, if you are right, and your argument is supported by case law and the courts are simply ignoring it, you can keep climbing the food chain.  However there is a very big difference between a court ignoring binding case law, and simply disagreeing with a Judge's conclusion.  If you merely disagree with a judge's decision, you can appeal and basically get a 2nd opinion which may or may not reverse.  Depending on how much time, effort and money you are willing to put in, this may or may not be worth it to you.  Hypothetically speaking, if there is clear reversible error, I would not hesitate to file an Appeal myself.  However, absent clear reversible error, you would have to weigh the pro's vs the con's of whether or not it is worth it to you to Appeal knowing you are risking time, effort and money if you lose again.

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