Jump to content

Getting a game plan for my case


Recommended Posts

1. Who is the named plaintiff in the suit? Midland

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for? 6k

4. Who is the original creditor? (if not the Plaintiff) Chase

5. How do you know you are being sued? Sherriff

6. How were you served? (Mail, In person, Notice on door) door

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in?MN

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  last paid 2/10, charge off 12/11

11. What is the SOL on the debt? To find out: 3 years using DE, 6 for Mn

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Sent a discovery plan, initial disclosures, case not filed with court yet

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
 

Already responded

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
 

Card opened in 03', , gave me last year of statements. BOS with affidavit of assignment from chase to midland

 

 

 

I am about to start discovery, and at this point I think I really need to get a game plan, to this point I have just been responding.  I will post below what I have sent and received so far.  My next step would be to serve Midlands Atty with my discovery.  From what I have read on the web and this site, I think challanging their standing, basically their affadavit assigning the credit contract from chase to midland,  and going after the afiants from chase and midland, The latter I have no idea how to approach (subpeoning a witness, deposing etc.)  I have read Coltfans primer on standing and followed AST medic's method for a general idea of what needs to be done.  

 

Plaintiff discovery plan

 

midland_discov.doc

 

Revised plan I sent back

Discovery Plan_blank.docx

 

Plaintiff Initial disclosures + exhibits. (B.O.S, affidavit, billing statements) -Note, they have not yet to date provided the credit card agreement which is governing their actions.. they might not have one since card was opened in 2003. Even if they produced one at this point its not included in the affidavit and would definitely be hearsay.(right?)

 

 

exhibits.doc

 

My disclosures

Only listed :

Myself

Plaintiff

Chase

affiant from chase

affiant from midland.

 

 

So theres most of it.  Which leaves me to now start discovery and go to work on there "evidence".  I need a good set of discovery q's which I have seen several lists, 1 from RaceCar and theres a word doc with a shorter list floating around, but more importanty I need good attack plan.

 

THANKS

Link to comment
Share on other sites

Looking at the MN rules of evidence, their  B.O.S. was definitely created to survive the business records exception to the hearsay rule

 

their language from the B.O.S. :

 

"This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of title or enforceability is expressed or implied.

With respect to account information for the Accounts listed in the Final Data File, Seller represents and warrants to Purchaser that (i) the Account information is complete and accurate; (ii) the Account information constitutes Seller's own business records and accurately reflects in all material respects the information in Seller's database; (iii) the Account information was kept in the regular course of business; (iv) the Account information was made at or near the time by, or from information transmitted by, a person with knowledge of the data entered into and maintained in the Seller's database; and (v) it is the regular practice of Seller's business to maintain and compile such data."

 

Now MN business records exemption:

 

 

 

"(6)Records of regularly conducted business activity.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.
(7)Absence of entry in records kept in accordance with the provisions of paragraph (6).

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness."

 

The strongest argument I see at the moment is the fact that the MN AG sued midland and they consented to judgment ,  for Robo signing affidavits, and their is testimony of former Midland employees saying they signed affidavits having no knowledge of the subject matter. 

 

Another thought is just that, their B.O.S. is almost comical in that it pretty much is non existent except to satisfy the Biz records hearsay exception, like in what other contract or B.O.S. would it indicate this was created in the normal course of business...

 

Thoughts?

Link to comment
Share on other sites

Who is the OC?

 

Whoever it is, google them and robo-signing, them and credit card scandal, words like that; try to find case law in other states (hard to find MN case law that isn't ancient; DC attorneys settle rather than creating case law) and use that for your objections.

 

In any case, you want ALL records on the alleged account, back to inception.

 

You want the entirety of the sales contract, not just the BOS.

 

Look around the site for suggestions for what to ask for in discovery.

 

You don't have to send the discovery and the ROGs at the same time. You could, if you so choose, send the discovery, wait till they send you little or nothing that you have asked for and/or objected to your discovery, and then, after playing nice and telling them you are giving them ONE MORE CHANCE to comply with your absolutely reasonable requests, hit them simultaneously with a Motion to Compel the documents and your Admissions, among which, of course, will be the fact that they have no standing because they don't have the records.

 

Unless a BOS can be tied to YOUR PARTICULAR ACCOUNT, all the protestations of the accuracy of the records mean nothing. Look at the language in the ROE about the testimony of a Keeper of Records. That MUST be from the OC.

Link to comment
Share on other sites

The OC is Chase, I uploaded everything they had with the sales contract  except the billing statements, basically a printout from some computer program with the account information.

Well any info from the sales contract is redacted, I didn't notice that the BOS is referring to a batch of accounts being sold....interesting

 

Nice catch

Link to comment
Share on other sites

SeaDragon has some great stuff I have been reading.  The more I look at this, the more I think I will go another way (than attacking affidavit)

 

Maybe WhoCares1000 can chime in, I can't find a rule in the MN ROE, RCP that forces the disclosure of all evidence before trial.  Also, nothing similar to the affidavit in lieu of testimony (CCP 98) that ASTmedic and Seadragon show

 

What would the actual process look like getting their BOS thrown out, for MN?  heres my first stab:

 

I object to BOS being  admitted to evidence 

 

1.on grounds its hearsay not meeting biz records exception, that it was created specifically for litigation, affiants have no personal knowledge, cite MN AG's robo signing jusgement against Midland, and other states AG's litigation with Chase for Robo signing affadavits.

 

2. State the fact that their BOS does not reflect my account, but a group of accounts, and can therefore affidavit cannot attest to the requirements for firsthand personal  knowledge of my account ( I know I need more here, cant find your keeper of records req.)

 

 

Anyways I did not receive the initial user agreement from plaintiff, shouldn't this satisfy my defense of "Failure to state a claim upon which relief can granted"   I am assuming they don't poses one, their Initial disclosures claimed to give me ALL docs in their possession related to this case...errr maybe they could request that from plaintiff

( insight on this would be appreciated)

 

So my thinking is I could use affidavit attack as rope-a-dope strategy when the knock out is from the failure to state a claim.

Link to comment
Share on other sites

What they claim to possess doesn't matter. What you demand that they produce, does.

 

And you absolutely want to insist that they produce the entire sales contract. Because, when these are wrested out of the grimy hands of the JDBs, they show all sorts of questionable behavior on the part of the banks and their buyers.

 

In addition, all those "warranties" alluded to in the BOS are usually demonstrated to be big old lies in the actual sales contracts, where the OPs clearly state that all sales are without warranty.

Link to comment
Share on other sites

@Super_Dad

 

1.on grounds its hearsay not meeting biz records exception, that it was created specifically for litigation

 

 

I doubt those 2 issues would work.  A bill of sale would be considered a business record because it's necessary in the operation of the businesses of both the OC and JDB.

 

It wasn't created specifically for litigation.  It was created confirm a transaction between the OC and JDB. 

  • Like 1
Link to comment
Share on other sites

@Super_Dad

 

 

I doubt those 2 issues would work.  A bill of sale would be considered a business record because it's necessary in the operation of the businesses of both the OC and JDB.

 

It wasn't created specifically for litigation.  It was created confirm a transaction between the OC and JDB. 

So pursue the affiant ? Assuming he's not available as a strategy to get the affidavit tossed?  If they MSJ  right away will objecting to their BOS /affiant be enough to survive on?

 

 

 

 

And you absolutely want to insist that they produce the entire sales contract. Because, when these are wrested out of the grimy hands of the JDBs, they show all sorts of questionable behavior on the part of the banks and their buyers.

 

In addition, all those "warranties" alluded to in the BOS are usually demonstrated to be big old lies in the actual sales contracts, where the OPs clearly state that all sales are without warranty.

 

 I'm sorry I'm not familiar with the differences and how they were used, the BOS is not even specifically for my account but the group they bought right? What is the actual sales contract?

Link to comment
Share on other sites

Look closely at the wording of the bill of sale, "...except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit"

This could well be the key to winning against them.

 

I just recently became the proud owner of a Credit Card Account Purchase Agreement between an OC and a JDB resulting from a court order to compel its production and can tell you first hand that it contains plenty of stipulations that the accuracy of the information concerning the accounts included in the bulk sale is not guaranteed in any way, shape, or form.  I have now seen it for myself and no longer need to just speculate. 

 

You need to trap them in admissions and interrogations by making them admit that they did not take any measures to authenticate any of the information relating to your alleged account and find case law from your state showing that business records must be verified as accurate before being admitted as evidence.  There is no way an employee of the JDB who signs a generic affidavit could have personal knowledge of any of the accounts they purchased if they had never been employed by the OC.  All they can come up with is, "to the best of my knowledge..."  

 

Send request for production of the complete Credit Card Account Purchase Agreement that is referred to in the bill of sale with account holders' personal information redacted.  Read your state's and court's rules and procedures for the steps to filing a motion to compel discovery after they most certainly will object to it. 

  • Like 2
Link to comment
Share on other sites

 

 

I just recently became the proud owner of a Credit Card Account Purchase Agreement between an OC and a JDB resulting from a court order to compel its production and can tell you first hand that it contains plenty of stipulations that the accuracy of the information concerning the accounts included in the bulk sale is not guaranteed in any way, shape, or form.  I have now seen it for myself and no longer need to just speculate. 

 

 

 

So that's what @Wins the Battle was trying to tell me.  Thank you for that actionable intelligence!

Link to comment
Share on other sites

Did you receive an affidavit from an alleged employee of the OC? Just for kicks and giggles, it might be a good idea to record a call to HR at the office of the OC where s/he allegedly works, and request employment history for that affiant.

 

Not that Midland would ever do such a thing, (cough cough) but there are cases where the SAME affiant, within a few days, signed affidavits alleging to be an officer of two different OCs, and swearing to the accuracy of the records.

 

I'd want to know if the affiant in my case A) actually worked for the OC at the time that the affidavit was signed and B) actually had a job title that led to him/her having expertise in the records keeping of the credit card business. Not to mention, that s/he was actually charged with reviewing the records of the tens of thousands of credit card accounts that were sold in any given month to a JDB.

 

FTR: MN is a one party state. That means that, should you decide to record a phone call, you do NOT need to inform the other party that you are doing so.

Link to comment
Share on other sites

Interesting you bring up the scummy tactics, earlier this week, an early 20's kid stops at my house claiming to sell cancer insurance.  Now I live in the middle of nowhere, I asked him who  was representing and he seemed confused, and then responded, anyways, he had No literature with him... and wanted to chat me up even though I told him I was not interested in any insurance products.  As he is half into his car he asks my wifes name, I said why do you ask, so I can "cross you off my list" he said.

I'm pretty sure Messerli & Kramer sent this errand boy out to see if I had had anything attachable.  He said he was from the cities, which is an hour from me, and he didn't stop at any neighbors....all 2 of them within a mile.  Good for me I have a gate and a game camera that takes pictures, I just wish it had sound. Not sure if I should even expend the effort trying to prove he is not who he said he was

Link to comment
Share on other sites

you see texasrockers game plan is the game plan. Expose that they are overstating their rights and the business records are not certified accurate and therefore they had no right to rely on them.

 

I will definitely request the JDB's purchase agreement in discovery.  What do you think about holding back on specifically demanding the credit card agreement/contract, so I can pull that out at as needed or before trial to have a safety net? (they haven't provided one, their initial disclosure indicated I have been supplied with all discoverable materials relating to this account)

Link to comment
Share on other sites

I'm confused. Why would you not want to know EVERYTHING they have?

 

At best, if you do not, and they actually have that signed initial contract, you can object to its admission at trial, and the judge can choose to honor your objection or not.

 

If you are in a rural county in MN, you have that much less of a chance of being respected as a pro se. Go for everything, and go aggressively.

Link to comment
Share on other sites

I'm confused. Why would you not want to know EVERYTHING they have?

 

At best, if you do not, and they actually have that signed initial contract, you can object to its admission at trial, and the judge can choose to honor your objection or not.

 

If you are in a rural county in MN, you have that much less of a chance of being respected as a pro se. Go for everything, and go aggressively.

If they have pleaded breach of contract then include in your request for admissions to admit that the alleged account is governed by a  card member agreement. If they have not provided a copy of the agreement in discovery they are dead in the water having admitted to it with nothing to show the court the terms of the contract. 

Link to comment
Share on other sites

I'm confused. Why would you not want to know EVERYTHING they have?

 

At best, if you do not, and they actually have that signed initial contract, you can object to its admission at trial, and the judge can choose to honor your objection or not.

 

If you are in a rural county in MN, you have that much less of a chance of being respected as a pro se. Go for everything, and go aggressively.

 

I will asks for it in discovery, all agreements, amendments to and such, but if they don't produce it, I don't want to push them to come up with one, just giving them a stronger case. I am thinking they don't have one, unless they already lied

 

Breach of contract was not in their complaint.  Complaints  are :

 

Chase issued card xxxx-xxxx to defendant

Defendant made purchases with said account

Defendant is in default/ failed to make payments

 

Rice county mn, I haven't found any cases yet, there are 2 default judgments in my county for midland, didn't find any for other JDB's, I was just searching by party here: http://pa.courts.state.mn.us/default.aspx

Link to comment
Share on other sites

you see texasrockers game plan is the game plan. Expose that they are overstating their rights and the business records are not certified accurate and therefore they had no right to rely on them.

http://www.ag.state.mn.us/consumer/Publications/DebtBuyers.asp

The Minnesota Attorney General states that a debt buyer must show "admissible evidence of a valid and complete chain of assignment of the debt from the original creditor to the debt buyer seeking the default judgment, with documentation evidencing that the particular debt at issue was included in the assignment or assignments."  Find the exact statute that designates this and it will be as good as case law for compelling the production of the complete Credit Card Account Purchase Agreement.  You do need to find case law on what specifically has been ruled "admissible" as it is not defined here.

 

The OP needs to find out how his courts have ruled.  Some courts have ruled that the conduct of parties can determine the existence of a contract.  If his courts have made such rulings, then evidence of charges and payments could indicate the existence of a contract.

True but that would still be spelled out in a card member agreement.  It is highly unlikely that they will have any statements showing anything but an amount due.  He has since said they did not plead breach of contract anyway so my post #17 will not apply in this case.

 
Link to comment
Share on other sites

Interesting you bring up the scummy tactics, earlier this week, an early 20's kid stops at my house claiming to sell cancer insurance.  Now I live in the middle of nowhere, I asked him who  was representing and he seemed confused, and then responded, anyways, he had No literature with him... and wanted to chat me up even though I told him I was not interested in any insurance products.  As he is half into his car he asks my wifes name, I said why do you ask, so I can "cross you off my list" he said.

I'm pretty sure Messerli & Kramer sent this errand boy out to see if I had had anything attachable.  He said he was from the cities, which is an hour from me, and he didn't stop at any neighbors....all 2 of them within a mile.  Good for me I have a gate and a game camera that takes pictures, I just wish it had sound. Not sure if I should even expend the effort trying to prove he is not who he said he was

 

I would follow up on this.  If this was someone from the law firm, would this be a FDCPA violation?  Making false and deceptive statements in an attempt to collect a debt?

 

I would talk to a consumer lawyer about this.

Link to comment
Share on other sites

unfortunately once you are in litigation the "litigation privilege" covers any statements made in the case. The court case protects anything they say or do related to the case. If you say lawyer with an irish brogue you find out why the litigation priviledge came about, you see a lawyer has to advocate his clients position therefore he has to say what the clients tell him is true.

Link to comment
Share on other sites

unfortunately once you are in litigation the "litigation privilege" covers any statements made in the case. The court case protects anything they say or do related to the case. If you say lawyer with an irish brogue you find out why the litigation priviledge came about, you see a lawyer has to advocate his clients position therefore he has to say what the clients tell him is true.

Jurisdictions vary, but attorneys do not have complete immunity in AZ for "anything they say or do" on behalf of their client:

http://www.cshlaw.com/wp-content/uploads/2011/10/FTD-1101-BolickKiser.pdf

Somewhat even more surprising, the Court of Appeals of Arizona allowed  suit to proceed against the attorney of a defendant insurer because the attorney filed a declaratory judgment suit to challenge coverage under a policy that his client had issued to the insured. Chalpin v. Snyder, 220 Ariz. 413, 424, 207 P.3d 666, 677 (2009). Although not termed “civil  conspiracy”  in  Chalpin, but  rather “aiding and abetting,” the concept of holding an attorney liable for the actions of clients, without requiring allegations that the attorney committed some underlying tort, is the same.

Link to comment
Share on other sites

@nobk4me

 

First, the kid would have to be located.  Did he provide his name?   If he did, was it his real name?  In the event that he was located, it would have to be proven that he was working for the JDB or attorney.

 

Maybe the OP should enlist the police for this.  I would report this event to the police.  It certainly sounds suspicious to me.  I would consider it a potential "casing the joint" activity, even if it had nothing to do with debt issues.  Did the OP get a license plate?

Link to comment
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.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.