Sammyvill

Motion to compel the purchase agreement

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HI Everyone I’m looking to defend myself against a JDB and has asked for their Purchase agreement. I know they are going to object but and I  need to file a motion.  Has anyone done a motion to compel the purchase agreement (sometimes called "forward flow agreement").  I am located and fighting in Los Angeles California so something that pertains to my area would be even more helpful. IF so can you please Personal message me so I get a notification.

 

Thanks 

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Why would you file a motion to compel evidence that HELPS the JDB. IF they are refusing to provide it, attack them on their lack of evidence.

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the forward flow purchase agreement can be used to attack:

 

employees personal knowledge by showing that they are making a conclusory statement when the agreement shows that the records were not accurate and that an employee has no reason to believe they are accurate.

 

the standing of a plaintiff using Cal. Evid. Code 1272 to show that missing documents would prove that they did not buy an account with your name on it.

 

That it can be used to show that balances are inflated

 

That the plaintiffs misrepresented the character or nature of a debt

 

etc

 

So a motion to compel this document would in fact be very advantagious because a plaintiff would rather dismiss than ruin their ability to collect in that court.

 

try this: http://www.saclaw.org/pages/motion-to-compel.aspx

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Why would you file a motion to compel evidence that HELPS the JDB. IF they are refusing to provide it, attack them on their lack of evidence.

 

 

The forward flow often disclaims warranties of accuracy of the information that the OC provides to the debt buyer.  If so, how can a debt buyer possibly say that the OC's documents are accurate?

 

The FTC report has some very good information (starting on page 24) about these agreements.  Here is a link:  http://www.ftc.gov/s...uyingreport.pdf

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Why would you file a motion to compel evidence that HELPS the JDB. IF they are refusing to provide it, attack them on their lack of evidence.

If you attack on the lack of evidence some judges have and will say that you should have filed a MTC, and that the bottom feeder has shown a 'preponderance' of evidence, which is all it had to do.

 

Also, the probability of them actually producing the "forward flow" is probably equal to the defendant winning the lottery, but by filing the MTC will show that every available effort was made by  the defedant. 

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If you have conducted discovery and asked them for the documents, and they refused to provide them. Your best chance would be to file a motion for summary judgment on the Plaintiff's claims and attack the lack of evidence. If they then provide the purchase agreement, that would defeat or motion. On the other end, if they dont provide it you would win judgment on their claim(s)

 

 

 

Going the MTC makes them WANT to provide the document. If it is on record that a party is ignoring a MTC, sanctions are usually in order, and in some cases those sanctions are monetary.Essentially, filling a MTC will make them do their best to obtain that document. Whereas right now, they are just not taking the case serious.

 

If a Plaintiff is refusing to provide a document essential to their claims, let them dig their own grave with that refusal.Documents not provided during discovery cant be used at trial. If they are refusing to provide the documents, file a motion in limine  to make sure they cannot introduce it at trial. After that what do they have left as admissible evidence? A Hearsay Affidavit and (in some cases), unauthenticated account statments.

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Going the MTC makes them WANT to provide the document....Essentially, filling a MTC will make them do their best to obtain that document....

 

 

Perhaps with other documents...but probably not very likely with their forward flow agreement with the alleged original creditor. 

 

Its much more likely that the most the Plaintiff will produce (besides meritless objections) in response to a document request for their forward flow is there own Motion to the Court asking for a Protective Order trying to keep it out of your hands.

 

Once Plaintiff's Motion for a Protective Order covering their forward flow was denied by the Court in my case, the JDB very quickly agreed to dismiss with prejudice, remove any trade lines, not sell or transfer their alleged assignment, per my stipulations - so as not to have to produce the document.  

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@Anon Amos

 

Also, the probability of them actually producing the "forward flow" is probably equal to the defendant winning the lottery, but by filing the MTC will show that every available effort was made by  the defedant.

 

 

I agree.  The defendant is showing that he's doing his best to comply with court rules and obtain as much evidence as possible.

 

@Trapezius

 

 

If you have conducted discovery and asked them for the documents, and they refused to provide them. Your best chance would be to file a motion for summary judgment on the Plaintiff's claims and attack the lack of evidence. If they then provide the purchase agreement, that would defeat or motion. On the other end, if they dont provide it you would win judgment on their claim(s)

 

 

 

Going the MTC makes them WANT to provide the document. If it is on record that a party is ignoring a MTC, sanctions are usually in order, and in some cases those sanctions are monetary.Essentially, filling a MTC will make them do their best to obtain that document. Whereas right now, they are just not taking the case serious.

 

If a Plaintiff is refusing to provide a document essential to their claims, let them dig their own grave with that refusal.Documents not provided during discovery cant be used at trial. If they are refusing to provide the documents, file a motion in limine  to make sure they cannot introduce it at trial. After that what do they have left as admissible evidence? A Hearsay Affidavit and (in some cases), unauthenticated account statments.

 

I disagree that a MTC WANTS them to provide the document.  Depending upon the language in the document, they may not want to provide it.

 

Whether or not a MTC is granted would depend upon the judge's determination of the need for the document.

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the forward flow purchase agreement can be used to attack:

 

employees personal knowledge by showing that they are making a conclusory statement when the agreement shows that the records were not accurate and that an employee has no reason to believe they are accurate.

 

the standing of a plaintiff using Cal. Evid. Code 1272 to show that missing documents would prove that they did not buy an account with your name on it.

 

That it can be used to show that balances are inflated

 

That the plaintiffs misrepresented the character or nature of a debt

 

etc

 

So a motion to compel this document would in fact be very advantagious because a plaintiff would rather dismiss than ruin their ability to collect in that court.

 

try this: http://www.saclaw.org/pages/motion-to-compel.aspx

So Let me get this right, is a motion to compel discovery and a motion to compel "forward flow" the same thing? Can I use a CA sample MTC  discover vs a MTC purchase agreement? Is it the same thing? 

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Filing said Motion to Compel is one of if not the best tactic for us as defendants to use.  As calawyer said it disclaims warranties of the accuracy of the information of the accounts included in the bulk sale.  Even better, it also is probably the best way to make them drop the suit.

 

I recently acquired one in my last case and can now say first hand that it is the ultimate exhibition of a JDB shooting themself in the foot.  Not only does it spell out that the accounts are sold "as-is" with no implication of any warranties (which means total contradiction of a JDB's reliance on an OC's business records) it also specifically states that both parties (buyer and seller of bulk account package) agree that this document is to remain confidential and must never be made public. 

 

If your motion is granted they are screwed- most likely they will drop the case in lieu of producing the agreement because they know what it says plus if they produce it they will be in trouble with the OC for breaching the agreement to not let anyone see it.   If they do produce it as they did in my case it is a gold mine of nails for their coffin.

 

Trapezius, the time to file a Motion for Summary Judgment is if and when they produce the purchase agreement.  You word your discovery for the sole purpose of leading up to requesting this agreement- make them deny that they cannot rely on the OC's business records, to admit that none of their employees or agents ever worked for the OC, to admit that they did nothing to verify any information about your alleged account and then how did they determine that any information about the defendant or his/her alleged account is accurate?  That is something they cannot answer so they will object.  They will most certainly object to producing the purchase agreement because it will turn the tables on every last bit of the "evidence" that they typically come up with. The Motion to Compel Discovery Responses should be twofold, combined with a Motion to Overrule Objections.        

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So Let me get this right, is a motion to compel discovery and a motion to compel "forward flow" the same thing?

 

Same thing.  It will probably be titled: Motion to Compel Production of Documents, and the document you're compelling them to produce is the purchase agreement.

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Same thing.  It will probably be titled: Motion to Compel Production of Documents, and the document you're compelling them to produce is the purchase agreement.

"Defendant's Motion to Overrule Objections and Compel Discovery Responses"

 

Sammyvill, check your private messages for the template that you asked me for.

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If you have conducted discovery and asked them for the documents, and they refused to provide them. Your best chance would be to file a motion for summary judgment on the Plaintiff's claims and attack the lack of evidence. If they then provide the purchase agreement, that would defeat or motion. On the other end, if they dont provide it you would win judgment on their claim(s)

 

 

 

Going the MTC makes them WANT to provide the document. If it is on record that a party is ignoring a MTC, sanctions are usually in order, and in some cases those sanctions are monetary.Essentially, filling a MTC will make them do their best to obtain that document. Whereas right now, they are just not taking the case serious.

 

If a Plaintiff is refusing to provide a document essential to their claims, let them dig their own grave with that refusal.Documents not provided during discovery cant be used at trial. If they are refusing to provide the documents, file a motion in limine  to make sure they cannot introduce it at trial. After that what do they have left as admissible evidence? A Hearsay Affidavit and (in some cases), unauthenticated account statments.

 

 

I think you are not understanding what agreement we are talking about here.  We are NOT talking about the credit card agreement.  We are talking about the master agreement under which the JDB purchases a pool of accounts from the Original Creditor.

 

There is nothing in the agreement that is essential to the JDB's claim.  But there will likely be information that will be helpful to your defense.  The OC typically says that it will not guaranty the accuracy of the documents it provides to the JDB.  Often, a JDB will dismiss the case if a judge orders them to produce the agreement.  But if they actually produce it, you can have a lot of fun with that document at trial.

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There is a MTC in ASTMedic's thread that you can use as a template to draft yours. Also, you should first send them a meet and confer letter advising them to produce the forward flow agreement (or whatever they call it) within 10 days or you will file the MTC with the court. And then do so.

 

Also, it's extremely hard to win a summary judgment UNLESS there is no opposition to it whatsoever, which is very rare.

 

 

Edit: I didn't notice TexasRocker PM'd you a MTC template, but for others reading there is one on ASTMedic's thread.

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Same thing.  It will probably be titled: Motion to Compel Production of Documents, and the document you're compelling them to produce is the purchase agreement.

 

^^^^^^ Agreed.

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Sammy,

Don't let the discussion of MTC get you all twisted, you having just sent the discovery request will not be doing much of anything from an offensive standpoint for at least 30 days. Most will take the full time limit or more to answer. Once you recieve an answer Anon is correct you will send a meet and confer outlining the issues with the answer, to give them time to correct or submit a supplemental response. Then and only then will the MTC come into play.

Frankly, I would expect you to be recieving a large packet of discovery from them. They will be wanting to have you make their case a winner, by missing a deadline or answering in a way that allows them to file for MSJ.

Lets review where you are based on what documents you do have from them to date:

1. Bill of Sale/Chain of title is in question from Wells to Absolute Recovery, due to CCP 2015.5 not being proper to be accepted by the courts. (missing under penalty of perjury blah blah State of California)

2. Bill of Sale/Chain fo title is in question from Absolute Recovery to GCFS as affiant never use the terms "personal knowledge", it dances around giving alot of ancillary information but never from the affiants "personal knowedge". Further, even if it had personal knowledge it includes the following statement " to the best of the affiants knowledge, information and personal belief". Meaning I don't know for sure I am guessing....

3. You have a periodic billing statement from Wells Fargo that shows a Notice of Important information "item was tranfered from lost/stolen account". Based on another completely different account number. There is no information/proof related to who this account number belongs to.

So you can see there case is in real trouble, they can still win, but if you carefully make the right decisions and stay within the rules of procedure you are doing really well so far....

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There is a MTC in ASTMedic's thread that you can use as a template to draft yours. Also, you should first send them a meet and confer letter advising them to produce the forward flow agreement (or whatever they call it) within 10 days or you will file the MTC with the court. And then do so.

You need to refer to it exactly as it is referred to in the bill of sale that they provide-  It will usually say "complete credit card purchase agreement that this document (i.e. the bill of sale) is an attachment to" or "Exhibit A: Sale agreement between [OC] and [JDB]" or something along those lines.  If you just say "forward flow agreement" they will play dumb and object or say that after a diligent search they found nothing called that. 

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You need to refer to it exactly as it is referred to in the bill of sale that they provide-  It will usually say "complete credit card purchase agreement that this document (i.e. the bill of sale) is an attachment to" or "Exhibit A: Sale agreement between [OC] and [JDB]" or something along those lines.  If you just say "forward flow agreement" they will play dumb and object or say that after a diligent search they found nothing called that.

Very true.

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This is from the Langel Law Firm of NYC about Forward Flow Agreements.

 

 

 

Why debt buyers literally can't prove some collection lawsuits
Posted on Apr 9, 2012 7:06pm PDT

Consider this part 2 to our previous blog, "why some debt buyers have difficulty enforcing collection lawsuits," we focused on the issue ownership of the debt by means of a valid assignment (transfer of legal interest).

A recent investigation by American Banker, a financial and banking publisher, revealed a prominent reason why debt buyers come up short: the forward flow agreement.

A "forward flow" is an agreement between a debt buyer and debt seller to transact a fixed amount of debt over a fixed period of time for a predetermined price. For example a debt buyer and debt seller may enter an agreement to transact $20 million face value of debt each month for 12 months at a price of 7%.[1]

American Banker analyzed a particular forward flow agreement produced in a California civil court case concerning written-off debt that Bank of America sold to debt buyer, CACH, LLC. Bank of America sold these debts to CACH on an "as is" basis.

Some disturbing characteristics of the forward flow agreement, drafted by Bank of America, include:

  • CACH, LLC would initially receive no documentation to support the debt;
  • CACH, LLC might not be able to acquire supporting documentation even if asked;
  • Some accounts may be have been extinguished by bankruptcy; and
  • The agreement cautioned that some stated balances could be inaccurate.

Nevertheless, CACH, LLC went on to file thousands of lawsuits in state courts across the country. This manner of high volume, electronic transfer, and lawsuit churning are "emblematic of wider industry practice."

While forward flow agreements may advance business interests by cutting corners, they appear to be damning evidence showing that debt buyers not only lack necessary proof, but also may be violating the Fair Debt Collection Practices Act (FDCPA) in the process.

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There is such a small percentage of defendants that fight back after they are served with the lawsuits and out of those few a very much smaller percentage are savvy enough to demand that they turn over the agreement so it is of little concern to the JDB business model.

 

They make so much off of default judgments that it does not matter to them that the wording of the purchase agreement can kill them in at best one or two percent of the lawsuits which they filed. 

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I have a question, if the debt was being sold from Wells Fargo to Absolute Credit and them from Absolute Credit to GCFS does that mean that i should be asking for both Purchase agreements? Or do I just ask them for the more recent, the one from Absolute to GCFS?

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Both. GCFS, as the alleged current owner/assignee, is responsible for both purchase agreements. They need to be able to show the entire chain of ownership.

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I have a question, if the debt was being sold from Wells Fargo to Absolute Credit and them from Absolute Credit to GCFS does that mean that i should be asking for both Purchase agreements? Or do I just ask them for the more recent, the one from Absolute to GCFS?

 

If i'm not mistaken, only one of the two bills of sale that you posted references a purchase agreement; I would request that one.

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This seems relevant to this discussion:
http://dalie.org/contracts/

I couldn't believe my eyes when I stumbled onto this gold mine....

 

She's even gone to the work to compile all 44 agreements into a single .zip file:

http://dalie.org/wp-content/uploads/2014/02/contracts.zip

 

What an angel.

 

Of course these specific agreements will not be admissible because it did not come directly from discovery in your case, but if you can find an agreement that names your OC, it will gives you a preview to know how badly you should push your JDB to hand over the agreement controlling the transaction involving your account.

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I have a question, if the debt was being sold from Wells Fargo to Absolute Credit and them from Absolute Credit to GCFS does that mean that i should be asking for both Purchase agreements? Or do I just ask them for the more recent, the one from Absolute to GCFS?

You need to have both to establish the integrity of both transactions, however the only agreement GCFS will be able to produce is the one between Absolute to them.

 

The truth is GCFS cannot avow to the accuracy of the transaction from Wells because they were not a party.  Unless there is an affidavit from Wells attesting to the accuracy of their data, the agreement between Absolute and GCFS is irrelevant, even it states the data transaction was ironclad.  In other words, the data GCFS obtained from Absolute may be perfectly intact.  That doesn't prove the data from Wells wasn't compromised in some way.

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