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Congratulations!  ::USA:: 
 

& With Prejudice!  ::USA::  ::USA::

 

+ Cost!  ::USA::  ::USA::  ::USA::

 

So how does living beyond the SOL feel?!?!

Remember to keep your C&D letters ready beside your FDCPA handbook. 

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I doubt they will be calling.  We have already filed a suit against Portfolio for the violation of calling me after already being represented by an attorney and will soon be filing one against the JDB attorney for abuse of discovery of which he has already been sanctioned twice for in this case.

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Congratulations!!

 

I always wanted to try this approach.  Oregon Courts are famous for allowing JDB Plaintiff's to enter summons and complaints without any evidence. Timing is everything. A limited time slot opens when discovery can be requested as well as closing prior to mandatory Court Adjoined Arbitration. The whole process favors the Plaintiff and usually is an automatic win for the Plaintiff at the Arbitration level. 

 

I always thought that if the next day after receiving Summons and Complaint a Defendant filed a "MSJ for lack of evidence in lieu of Answer" the Plaintiff Attorney would be scrambling for time to maintain his action and stay within the time frame of the ORCP (Oregon Rules for Civil Procedure) and Oregon evidence rules. Purchasing the evidence package takes time and costs the Plaintiff money and if the Judge goes along with the motion a dismissal might just be possible. Texas has some better rules but the concept is similar. 

 

Did you file your motion before or after your requests on Plaintiff for Discovery?

 

Regardless, this is a great win and a great procedure. Congratulations again.

 

HP

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This has been going on since June of last year.  They initially delivered the typical objections to discovery and sat idle until December when they were told to produce the complete sale/forward flow agreement or a Motion to Compel would be filed.  They retaliated by sending me this monster discovery of 149 items including things like "Admit you are in the United States illegally"  "Admit that you have been convicted of multiple felonies" a few days after the discovery period was over.  They continued to object to the request for the sale agreement and in January were compelled by the court to do so and were sanctioned over $2,800 for sending ridiculous irrelevant discovery after discovery was closed and $825 for abusing discovery for the purpose to harass.  At the same time our motion for a protective order from having to answer it was granted.  

 

At this point 99% of JDB's would drop the suit but they actually did produce the agreement.  (This is another prize I was awarded- an actual sale agreement between a bank and a JDB; something I had never actually seen in person although I was aware of some of the stipulations that it contains.)  Sure enough it has all the wording that totally contradicts a JDB's reliance on an OC's business records, the accounts are sold "as-is" with no implication of any warranties and specifically states that both parties agree that this document is to remain confidential and can never be made public.  This is a condition that I was unaware of which further explains why they are always so reluctant to let anyone see it. I found that the best thing in it is a sentence that reads, "The evidence of indebtedness shall not be deemed to imply that the debt evidenced is enforceable."  Lastly, they were not smart enough to ask for a protective order so I believe I am free to show it to anyone of whom I so desire.

 

The MSJ was filed in early March.  Back in July the discovery sent to them was set up to contradict anything in advance that they came up with later such as an affidavit from their employees.  They admitted that the account was governed by a card member agreement but failed to produce one.  They had initially provided one credit card statement dated months after the alleged account was charged off with just an amount due and no purchases or payment activity but in their response to our MSJ they attached about six statements which were inadmissible because it was way after discovery was over.  They also included an affidavit by a Portfolio employee who had not been identified in discovery either plus said affidavit was full of unsupported factual conclusions.  They pretty much shot themselves in the foot with every single thing they tried to do.

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...They continued to object to the request for the sale agreement and in January were compelled by the court to do so and were sanctioned $2,800 for sending ridiculous irrelevant discovery after discovery was closed and $825 for abusing discovery for the purpose to harass.  At the same time my motion for a protective order from having to answer it was granted.  

Awesome, love it.

 

...Back in July the discovery sent to them was set up to contradict anything in advance that they came up with later such as an affidavit from their employees...

Would like to see what it was you did here, would be good for our education.

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...They continued to object to the request for the sale agreement and in January were compelled by the court to do so and were sanctioned $2,800 for sending ridiculous irrelevant discovery after discovery was closed and $825 for abusing discovery for the purpose to harass.  At the same time my motion for a protective order from having to answer it was granted.  

Awesome, love it.

 

...Back in July the discovery sent to them was set up to contradict anything in advance that they came up with later such as an affidavit from their employees...

Would like to see what it was you did here, would be good for our education.

 

Of course you will have to check your rules to see how many of these you are allowed to send:

 

Admit that Plaintiff did not provide any goods or services to the defendant.

Admit that Plaintiff did not enter into any contract with the defendant.

Admit that the account that is the subject of this lawsuit is governed by a written contract between the original creditor and defendant.

Admit that the terms and conditions for the account that is the subject of this lawsuit are set forth in a card member agreement.

Admit that no employee, agent or representative of Plaintiff is a custodian of records for the original creditor on the account at issue in this lawsuit.

Admit that the original creditor sold or assigned the alleged account with a disclaimer of warranty.

Identify each employee of the original creditor with whom you communicated concerning the record keeping or any of the records pertaining to the account at issue in this lawsuit.

Identify all representations or claims made by the original creditor and relied upon by you in which the original creditor represented the records of the subject account were accurate or reliable.

Identify all representations or claims made by the original creditor that caused you to believe you could rely upon the accuracy of its business records pertaining to the subject account.

Identify any disclaimers of warranty made by the original creditor with respect to its sale or assignment of the account that is the subject of this lawsuit.

If you contend your reliance upon the accuracy or reliability of the original creditor's business records was reasonable notwithstanding the disclaimer of warranty stated in the purchase agreement or bill of sale, state the factual and legal basis for your contention.

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Congratulations!!

 

I always wanted to try this approach.  Oregon Courts are famous for allowing JDB Plaintiff's to enter summons and complaints without any evidence. Timing is everything. A limited time slot opens when discovery can be requested as well as closing prior to mandatory Court Adjoined Arbitration. The whole process favors the Plaintiff and usually is an automatic win for the Plaintiff at the Arbitration level. 

 

I always thought that if the next day after receiving Summons and Complaint a Defendant filed a "MSJ for lack of evidence in lieu of Answer" the Plaintiff Attorney would be scrambling for time to maintain his action and stay within the time frame of the ORCP (Oregon Rules for Civil Procedure) and Oregon evidence rules. Purchasing the evidence package takes time and costs the Plaintiff money and if the Judge goes along with the motion a dismissal might just be possible. Texas has some better rules but the concept is similar. 

 

Did you file your motion before or after your requests on Plaintiff for Discovery?

 

Regardless, this is a great win and a great procedure. Congratulations again.

 

HP

 

Glad to see you posting again, HP.

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You rock, TR!  And thank you and and all the other TX posters who guide OP's through TX law and procedure.

In Texas without being able to rely on the OC's business records the JDB absolutely cannot prove standing.  There is one precedent, Simien v. Unifund CCR Partners that they always cite in their attempt to get these records admitted into evidence.  If 1. They have already admitted that they did nothing to verify said records are accurate or reliable;  2. They have already admitted that none of their employees have ever been a custodian of records for the OC; and 3. We can show the court that the bulk accounts were sold with no guarantee that any information included with them is accurate or reliable then when they come up with an affidavit from their own employee it becomes null and void because they cannot meet the required standard of "reasonable reliance" set forth in Simien.  Merely stating that they relied upon the records without an explanation of how they verified the accuracy is an unsupported factual and legal conclusion.     

 

In my case after being compelled to produce the complete Asset Sales Agreement the plaintiffs amended their responses to identify the Agreement as their basis of reliance.  Unfortunately for them it is well-supplied with disclaimers as to the accuracy or reliability of the account records.  They failed all three checkpoints for creating an admissible affidavit- It lacked any explanation of reasonable reliance on third party business records, was packed full of legal conclusions, and was prepared in anticipation of litigation, any one of which would have been enough to sustain an objection.  

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I am quite familiar with it.  It was a very bad decision with little explanation- they said that Unifund had evidence of "reasonable reliance" but failed to elaborate further on what exactly that evidence was.   The result of this is JDB's try to say that any business records themselves are the evidence of reasonable reliance so it is best to circumvent this assertion well in advance before they draft an affidavit which is usually in the final stages of the game. 

 

Edit:  I just read that article and noticed how it was championing the Simien decision big time.  I then noticed that it was written by Michael J. Scott, a bottom-feeding JDB attorney in Carrollton, Texas. 

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Of course you will have to check your rules to see how many of these you are allowed to send:

 

Admit that Plaintiff did not provide any goods or services to the defendant.

Admit that Plaintiff did not enter into any contract with the defendant.

Admit that the account that is the subject of this lawsuit is governed by a written contract between the original creditor and defendant.

Admit that the terms and conditions for the account that is the subject of this lawsuit are set forth in a card member agreement.

Admit that no employee, agent or representative of Plaintiff is a custodian of records for the original creditor on the account at issue in this lawsuit.

Admit that the original creditor sold or assigned the alleged account with a disclaimer of warranty.

Identify each employee of the original creditor with whom you communicated concerning the record keeping or any of the records pertaining to the account at issue in this lawsuit.

Identify all representations or claims made by the original creditor and relied upon by you in which the original creditor represented the records of the subject account were accurate or reliable.

Identify all representations or claims made by the original creditor that caused you to believe you could rely upon the accuracy of its business records pertaining to the subject account.

Identify any disclaimers of warranty made by the original creditor with respect to its sale or assignment of the account that is the subject of this lawsuit.

If you contend your reliance upon the accuracy or reliability of the original creditor's business records was reasonable notwithstanding the disclaimer of warranty stated in the purchase agreement or bill of sale, state the factual and legal basis for your contention.

 

Thanks for posting this texasrocker!  I'll be taking a good look at these so I can get a feel for what you did. :)%

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great job! I bet they are so pissed. ;)  But then again:  My Dr. and I had a convo the other day about attorneys.  He said his attorney friend told him when asked "how do you do it?" Said:

 

It's all a game.It really doesn't matter if you win or lose.  You play the game, and play the game well. (meaning if you have to drag it out, do it)  I get paid to play, it doesn't matter if I lose, it pays the same.

So there you have it. 

 

I guess those lawyers that work on contingency might feel a bit differently.

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Hi anyone has done a motion to compel the purchase agreement (it is often called a "forward flow agreement"). I need a sample to help me get thing started. I live in Ca and will be sending to the Los Angeles superior court if it matters. Thanks   

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