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PhillyCredit

Being sued in Phila Pa for an old Credit One Card

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I am in need of some help with this old Credit One Bank.

 

My statement of Claim; An unpaid balance of a MSW Capital, LLC Credit card acct # xxxxxx123 in the sum of $1,889.23 plus interest and costs.

 

So Capital One sold my acct to Sherman Originator III then they sold to MSW Capital who in turn is suing me with the above statement of claim.

 

There must me 50 pages of affidavits etc

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50 pages of cc statements right , not affadavits??  When were you served? You must file an answer within the 20 days after service. Is there a notarized affadavit from any of the above.   Were the statements all from cap 1?

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Only one CC statement from Cap One and  a notarized transfer affidavit from Cap One, a bill of sale and assignment, an affidavit of sale,and  2 certs of conformity, the Cap one cardholder agreement and arbitration agreement. I went to court in April they tried to settle with me and I disputed the debt. a court date is set for June 17th 1:15pm

It is small claims court so I do not have to file and motions prior to appearing but I would like my ducks in order.

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So sounds like it is small claims court. It is still within the sol, so your job is to make them prove standing. Object to any thing they try to bring as evidence. On the grounds there is no foundation, records are heresay. They will try to authenticate them with the affidavidt's, you object especially if they are from their own people. The bill of sale only lists a pool of accounts, no way of telling if the alleged account is yours. JDB cannot authenticate business records of another business. Is there an affidavidt's from the original creditor? No? Records are heresay. Yes? Well they did not include a place you could serve that person to appear for questioning.

Read up on your states rules of evidence, especially heresay.

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There is an affidavit from Credit one about their business paper work practices and that they are true and blah blah. the CC statement has my name on it with the acct # blacked out. I will read up on heresay but by having a statement with my name on does that prove anything?

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Can they create documents? Assuming that you ever had an account w/Cap1, how can you possibly know if the one "statement" is yours, when it doesn't even have an account number on it?

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"Commonwealth Financial Systems v. Smith," (2011) discusses PA Rule 803(6), the admissibility of business records, and what is required for a plaintiff to win a credit card case.  Here the court affirmed the trial court's judgment that Commonwealth had not proven its case.

 

http://scholar.google.com/scholar_case?case=4292405848022920725&q=%22803(6)%22&hl=en&as_sdt=4,39&as_ylo=2010

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All very helpful thank you. I have been reading a lot on this site and it sounds like the real battle is from jump with fighting the paperwork he is trying to submit. So if he has a statement with my name and address on it and the acct # blacked out wont he try to ask me if I live there and validate the mailing address for the statement? How would I get around that?

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It's not a statement. In order to be considered an actual statement, it would need some sort of documentation from the OC noting that it was a true and accurate copy of a statement sent to you by them, and be notarized. Of course, that's only if you bring up that fact. The rules of evidence are pretty strict. But the judge won't enforce them unless you push for them to be enforced.

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So am I just denying the admission of the debt and the copy of the statement to be mine? What foundation must he lay to admit this paperwork? I think if I know his offense I can prep my defense??

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Even if the "statement" is admissible, the issue is standing: how can they prove that they have the right to collect on that account, even if it's yours?

 

THAT is what you need to learn about, and be ready to challenge. It's called the chain of title. And the longer the chain, the more likely that there are broken links in it.

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Again thank you for the help. So if they have a clear chain from the OC to them (debt was transferred twice) with notarized affidavits isn't that a clear chain to them? I am reading so much my eyes hurt... Im in court tomorrow..

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Object to any of the affidavidt's, if they state the account is yours, and they are saying this is what you owe. Object. A person from one business cannot lay foundation for another business.

Language in the affidavidt's need to say they are so an so, they are a person familiar with the business records of OC, and your Ccount is true and correct. The only person that can do that is someone from the OC.

If they are affidavidt's for the bill of sale, object. The bill of sale does not list your alleged account, all it says is a pool of accounts were sold. The bill of sale is incomplete, the only part you got was the affidavidt part, but it is only a part of. A much larger agreement, they did not supply that so you could examine it.

Statement object to them as heresay, there is no foundation. Read up on your rules of civil procedure regarding the business records exception rule. Know the number for that code so you can give it in court.

There needs to be affidavidt's from the oc attesting your account is true and correct, and one for the bill of sale to the first JDB. Then there needs to be one from the first JDB saying your account is true and correct, and one for the bill of sale to JDB number 2. Then they need one saying your account is true and correct, as well as statement copies. If none of the statements show a payment you also object to the amount, they did not show you how they arrived to the amount they are suing you for. Object to everything they try to introduce, but you have to give a reason each time for your objection.

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I Won!!!

 

It went different then I thought but this is it...

 

Met the lawyer he tried to settle, No thank you, he asked why I said its not my debt. He asked for more details for when we go in front of the judge I said ill give you more details when we are in front of him.

We are called

 

Philadelphia SC court the judge explained how it works, plaintiff talks then I talk then he makes a decision he said its pretty simple.

 

JDB introduces the cc statement with his other paperwork and I object that the Plantiff has no legal standing that the statement is not notarized and that the acct number is blacked out, there is no foundation for it and that the affidavits are heresay.

 

Quite pause......

 

judge looks at the lawyer as if to say " well what are you going to say?"

 

JDB says it has my name on it the acct is blacked out for privacy issues and that is his foundation.

judge says he will allow it?

 

so now im like WTF? I argue it for a min and the judge stops the convo and askd the jdb if he has questions for me.

 

He asks do I live there at the address, Yes have I ever seen this statement before NO, do I have an acct with OC NO could this be my acct? I asked the judge does he want me to speculate if I had an acct that I have already denied having?

Judge--Is this your acct Sir --No your honor

Judge-- I pay my bills sir and I hope this is not your acct!!

Judge-- to jdb (throws paperwork on desk) guess what? you have nothing!! nothing signed by the defendant, no admittance by him, you have nothing! I see so much of this Junk Debt in front of me and you guys need to get your act together! case dismissed.

 

I wanted to ask for it to be dismissed with prejudice so I said excuse me your honor.

Judge--Sir don't say a word, not one word!

 

He was mad that I won   but whatever. So thank you to all the people who have helped me directly and indirectly. I have read a lot on this site and it gave me the basic knowledge to fight and represent myself accordingly. Next step? who knows?

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Hahaha. Congrats! I think the judge was testing you. To many people don't speak up when the judge makes a bad ruling. You challenge it, and even if he knows it is probably your debt, he can't rule that way if he thinks you may appeal. To many of those, and he gets questioned on how he can be impartial, and make such rulings. They don't like that. ( they are in troubbbbbblllleeee) lol. Good job!

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