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They replied to discovery with copies of monthly statements. Is it over?


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After discovery where I requested several documents: an original agreement with my signature, all monthly statements for the lifetime of the account, all transactions, proof they are the sole owner, and proof they own the debt - they sent 2 documents:

 

1. Copies of a couple of years worth of monthly statements with my name on it, not the entire account, but it shows the balance of about $4k.

2. A bill of sale between a claimed subsidiary of the original creditor and them with their signature. The bill of sale doesn't specify an account on there. It looks like it's a bill of sale for multiple loans. Then on a separate sheet, the plaintiff included a copy of a redacted section that displays the account # referenced in the statements.

 

Are there any odds of winning? Is it over.

 

 

 

Re: defending debt collection case

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Whos is your JDB? Can you upload the bill of sale and anything else they sent you in other then the bank statment? Make sure you block off your personal info. And it’s not over till the judge says it’s over and even then you can appeal. You still have a pretty good chance at winning this if you play your cards correctly. But you need to keep fighting, you have more the qualified people to help you here as long as you keep fighting.  

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After discovery where I requested several documents: an original agreement with my signature, all monthly statements for the lifetime of the account, all transactions, proof they are the sole owner, and proof they own the debt - they sent 2 documents:

 

1. Copies of a couple of years worth of monthly statements with my name on it, not the entire account, but it shows the balance of about $4k.

2. A bill of sale between a claimed subsidiary of the original creditor and them with their signature. The bill of sale doesn't specify an account on there. It looks like it's a bill of sale for multiple loans. Then on a separate sheet, the plaintiff included a copy of a redacted section that displays the account # referenced in the statements.

 

Are there any odds of winning? Is it over.

 

 

 

Re: defending debt collection case

 

They are not required to provide every statement for the life of the account.  Many defendants make the mistake of demanding this in discovery.  The longer the account has been open the less likely they are to have to come up with that.  The last two years showing use and default is sufficient for most courts.

 

 I would attack any redacted document because for all you know the redacted portion states your account is PIF.  

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Hey guys, thank you so much. If it wasn't for you guys I wouldn't be this far. So here is what they sent me, I excluded the credit card statements:

 

The key document seems to be the credit card statements and the bill of sale, the rest are affidavits, although I'm not sure if the bill of sale is also an affidavit. It seems like they don't have the original agreement.

 

Now I'm wondering what my defending arguments would be. I originally denied the complaint.

  1. But now they sent statements with my name on it so I'm confused how to handle admissions?
  2. Can I ask for the people who signed the affidavits and the bill of sale to testify in court? How would I do that.

Plus if I lose this will be a ton of money for me to handle.

 

Here are the Documents received after my request for discovery. They sent it on the last day of their allotted time and only sent it after I wrote a letter saying I would file for a motion if they didn't send it as the court recommends:

 

https://drive.google.com/folderview?id=0B4H_k3ErK1H-TjJPM3FPWjdTR1k&usp=drive_web

 

@Sammyvill it's cach

@Clydesmom Thank you, how would I attack it, Just ask for the original? It looks like a copy from an Excel spreadsheet as you can see in the bill of sale.

@shellieh98 Ok. I'll keep it here. All my questions were sort of disconnected, so I wasn't sure, but now I think I'm on one track.

 

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The court is not going to expect or allow the ACTUAL bill of sale.  If that were needed the darn thing would be worn out traveling the country with the thousands of suits each month.

 

You need to attack the affidavits and whom ever is swearing to these records.  You attack the affidavit itself as hearsay:  "your honor I can't question an affidavit" and you attack the credibility of the person to is the affiant of those records.  i.e. how long have they been an employee, what their job duties are, how long they spent on YOUR file, storage of records, method of verification.  etc.

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Here is a good brief written by a nJ consumer lawyer. Pay particular attention to the parts that talk about assignment. In your case they say FIA is a subsidiary of Bank of America, who aquired MBNA. They didn't provide any proof of that. This brief has some case law that talks about even though the plaintiff was given the account by its partner, they had no assignment from them, and could not therefore collect on the account. Also I think nJ has a rule about having to notify you when your account is assigned....did cach ever send you a letter pre trial telling you they were the new owners?

This brief can help you object to the assignments and bill of sale. Now you need some to object to the affidavits.

http://www.philipstern.com/files/pldg.NJ.BRIEF.collectiondefenseSJ.pdf

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Here is a good brief written by a nJ consumer lawyer. Pay particular attention to the parts that talk about assignment. In your case they say FIA is a subsidiary of Bank of America, who aquired MBNA. They didn't provide any proof of that. This brief has some case law that talks about even though the plaintiff was given the account by its partner, they had no assignment from them, and could not therefore collect on the account. Also I think nJ has a rule about having to notify you when your account is assigned....did cach ever send you a letter pre trial telling you they were the new owners?

This brief can help you object to the assignments and bill of sale. Now you need some to object to the affidavits.

http://www.philipstern.com/files/pldg.NJ.BRIEF.collectiondefenseSJ.pdf

This is a much better idea then just attacking the affidavits (regardless of whether or not the court expects an original BOS (or how much traveling it would have to do).  You definitely want to attack the BOS and their standing, probably as  a starting point (of course you attack the affidavits and anything else as well).

Look up your state and local rules, as well as rules of civil procedure on affidavits and see what it says.

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Here is a appeal that reversed the trial courts ruling based on assignment.

As an assignment needs no particular form and requires only so much of a description of the intangible assigned to make it readily identifiable, K. Woodmere Assocs., supra, 316 N.J.Super. at 314, we agree with the trial judge that the assignments need not specify each account transferred to effectively transfer accounts included in an accompanying electronic file.   The key is the intent of the assignor to transfer specific accounts.  Ibid. That intent is gleaned from the documents themselves and surrounding circumstances.  Id. at 315–16;  see also Sullivan, supra, 68 N.J.L. at 546–47 (acknowledging appropriate use of parol evidence to confirm identity of the thing assigned).   Accordingly, we conclude that New Century's certifications properly authenticate the assignment documents and electronically-transmitted information evincing a proper chain of assignments of Oughla's Credit One account from MHC Receivables through to New Century.

There is, however, no document evidencing the first link in New Century's assignment chain, the transfer of Oughla's account from the card issuer, Credit One, to MHC Receivables.   New Century asserts that “[t]here are no documents from Credit One in the chain because the account was not owned by Credit One.” New Century further explains with reference to Mazzoli's certification, that the “accounts are originated by Credit One and then sold, while live, to MHC Receivables, Inc.[,] Credit One Bank acted thereafter only as the account servicer.”

We cannot agree that because the credit card accounts are originated by Credit One and assigned to MHC Receivables while the accounts are still active, that no proof of assignment is necessary.10  New Century's assertion that Credit One did not own the account appears at direct odds with Mazzoli's certification that MHC Receivables “purchases and holds” Visa and MasterCard accounts “originated by Credit One.”

Further, we note that Mazzoli's affidavit discussing MHC Receivables is markedly less clear than the Galic certifications.   Instead of explaining his position with MHC Receivables and describing the source of his knowledge, Mazzoli says only that as “authorized representative” for that entity, he has “personal knowledge” of how it “originates, services, owns and manages Visa and MasterCard accounts.”   The affidavit neither reveals his position, if any, with MHC Receivables, nor the source of his knowledge of this aspect of its operations.   See Ford, supra, 418 N.J.Super. at 599–600.   The Mazzoli affidavit on behalf of MHC Receivables raises more questions than it answers and thus does not provide sufficient proof of Credit One's transfer of Oughla's account to MHC Receivables, the first link in New Century's chain of assignments.  Ibid.

Accordingly, the summary judgment against Oughla must be reversed because New Century did not establish the full chain of ownership of its claim.   While Mazzoli's affidavit is not sufficient to establish the transfer of Oughla's charged-off Credit One account to MHC Receivables, we note that he asserts that Credit One cardholders are noticed of the transfer of their accounts, thereby suggesting that proof of MHC Receivables' ownership of Oughla's account may be established in ways other than production of an assignment.   We express no opinion on the method by which New Century may prove MHC Receivables' ownership of Oughla's account on remand.   It suffices to say that it must be established by admissible evidence presented by affidavit of a witness competent to testify.  Ford, supra, 418 N.J.Super. at 599–600.

- See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1659256.html#sthash.7yrs3nB7.dpuf

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The defendant lost this one because the lawyers DID attach proof that chase acquired WAMU. This is what they need to prove your assignment.

Finally, Zaidi contends that even assuming that the assignments included in the summary judgment record were properly admissible, MSW Capital, like New Century, cannot prove the first link of the assignment chain, here the transfer of Zaidi's account from WAMU to Chase.   We are satisfied that the trial judge did not abuse his discretion in concluding otherwise.  Estate of Hanges, supra, 202 N.J. at 383–84.

MSW Capital offered the certification of its counsel Lang to prove that the FDIC had taken over WAMU and subsequently sold all of its assets to Chase.   Lang attached publicly available documents of Chase's filings with the Securities and Exchange Commission and the FDIC noting the FDIC's receivership of WAMU and sale of its assets to Chase.   While Zaidi contends that those filings are not the proper subject of judicial notice under N.J.R.E. 201(a) because the documents are not “findings” of those agencies, the FDIC's takeover of WAMU and sale of its assets to Chase would appear a proper subject of judicial notice under N.J.R.E. 201(a) or (B) as evidenced by the many state and federal courts that have taken judicial notice of those very facts.   See, e.g., Carswell v. JPMorgan Chase Bank, N.A., 500 Fed. App'x. 580, 583 (9th Cir.2012);  Arguenta v. J.P. Morgan Chase, 787 F.Supp.2d 1099, 1101–04 (E.D.Cal.2011);  Shirk v. JPMorgan Chase Bank, N.A. (In re Shirk), 437 B.R. 592, 596 n.1 (Bankr.S.D.Ohio 2010);  Stewart v. JPMorgan Chase Bank, N.A. (In re Stewart), 473 B.R. 612, 618 n.2 (Bankr.W.D.Pa.2012), aff'd, 2013 U.S. Dist. LEXIS 111516;);  Scott v. JPMorgan Chase Bank, N.A., 154 Cal.Rptr.3d 394, 401–09 (Ct.App.2013), modified 2013 Cal.App. LEXIS 280, rev. denied, 2013 Cal. LEXIS 4861.

Although we think the trial court could have taken judicial notice of the FDIC's transfer of WAMU's assets to Chase, thus establishing the first link in MSW Capital's chain of assignments, it was not necessary for the court to have done so.   While Zaidi's account may have originated with WAMU, the periodic account statements included in the summary judgment record document credit card transactions between Zaidi and Chase.   Accordingly, if those account statements are properly admissible then no further proof of Chase's assumption of Zaidi's account was necessary.   The account statements would establish a direct contractual relationship between Zaidi and Chase.   See Novack v. Cities Serv. Oil Co., 149 N.J.Super. 542, 548 (Law Div.1977) (noting use of a credit card constitutes acceptance of the offer of credit in accordance with its terms), aff'd, 159 N.J.Super.   400 (App.Div.), certif. denied, 78 N.J. 396 (1978).   We turn to those periodic account statements now.

- See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1659256.html#sthash.7yrs3nB7.dpuf

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I don't know the first thing about NJ rules of evidence and procedure, but in most cases, the statements and any other documentary evidence are useless unless they are introduced and authenticated by an affidavit (MSJ) or live witness (trial) and I didn't see the statements referenced in any of the affidavits.

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From the document Shellie referenced, why don't you contact Mr. Stern?  A consultation is free.  He could give you a quick evaluation of your case.  From all accounts, he is a very pleasant person to speak with.

 

 

Prepared by Philip D. Stern, Attorney at Law
Dated February 27, 2014
697 Valley Street, Suite 2d
Maplewood, NJ 07040
(973) 379-7500
pstern@philipstern.com
www.philipstern.com
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From the blog of the NJ consumer law firm Scammell, Large and Danziger I referenced above.  This is from another case they defended against Calvary:

 

 

You see, under NJ Court Rules, specifically the New Jersey Rules of Evidence, a witness (i.e, an employee or a record custodian, etc. of Cavalry SPV) must appear in court to verbally testify to the origin and custody of the billing records, statements, assignment of debt, etc. This is called “laying a foundation” for the evidence to be formally “entered” into evidence so that the judge may then review and consider the statements & paperwork before making a decision.

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This case, decided June 24, 2014, was won by  CACH.  The court discusses the evidence and documentation they provided, which seems more extensive than what was given to you.

 

http://scholar.google.com/scholar_case?case=5123278383820892517&q=colvell&hl=en&as_sdt=4,31

 

Ouch, that hurts, exact same court, same year and it seems like the same documents (as you can see in the 4th paragraph) 

 

The judge didn't seem to care if the affiants testified in court, even when the defendant argued the judge said he felt their affidavits were reliable.

 

Question: Am I right in understanding that the only difference between this case and mine is that in my case the alleged account was sold from the original creditor to FIA and then to the plaintiff whereas in the other case it was directly between original creditor and plaintiff?

 

P.S. And thank you everyone! I'm reading every single reply. I'm still trying to put all the details together. This case seems to be the closest thing. As much as I hate it, thank you @debtzapper

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I cant pull up the paperwprk you posted on this computer.  But was this a HBSC credit card that then went to Bank of america?  Are there any statements they gave you that show a relationship between you and Bank of america? Example, any payments or charges when it was bank of america and not HBSC?   FIA is the servicer for bank of america so when BOA sold it to the JDB, FIA is the entity that needs to be custodian of records. 

If they can't show you did buiness with BOA directly, and only HBSC, you would fight them on standing, there is nothing to show HBSC was sold/assigned to BOA.

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I cant pull up the paperwprk you posted on this computer.  But was this a HBSC credit card that then went to Bank of america?  Are there any statements they gave you that show a relationship between you and Bank of america? Example, any payments or charges when it was bank of america and not HBSC?   FIA is the servicer for bank of america so when BOA sold it to the JDB, FIA is the entity that needs to be custodian of records. 

If they can't show you did buiness with BOA directly, and only HBSC, you would fight them on standing, there is nothing to show HBSC was sold/assigned to BOA.

 

 

@shellieh98 Yes, they sent copies of the last 2 year's worth of statements with my name on it sent from the original creditor: B of A until it was charged off. But the bill of sale they sent is between the plaintiff and FIA Card Services. And in the additional affidavit of sale, an Affiant from FIA says in #3 that FIA is a wholly owned subsidiary of B of A.

 

Not sure how else to argue this:

  1. I see some people said to attack the affidavits, but in a similar case same plaintiff, as posted by @debtzapper it looked the NJ judge accepted the affidavits, but this could be that it was a summary judgment that didn't go to trial.
  2. Some said that I have to be notified of the transfer; I'm sure I wasn't.
  3. If I can argue in court that I'd like to question the affiants in court, then I will.
  4. I'm wondering if there should be a bill of sale between B of A and FIA.
  5. The affidavit says the original agreement may not be available so does their bill of sale serve as sufficient proof without the agreement.

Re: Documents sent by Plaintiff. (link excludes credit card statements which they did send)

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Ouch, that hurts, exact same court, same year and it seems like the same documents (as you can see in the 4th paragraph) 

This was a summary judgment however, NOT a trial. You are going to trial. BIG difference, you really can't compare the two. Although we do have people here who always bring in the summary judgment rules when we are talking about a trial.

 

The judge didn't seem to care if the affiants testified in court, even when the defendant argued the judge said he felt their affidavits were reliable.

You do not need witnesses for summary judgment, hearsay is acceptable. All the defendant did was challenge the credibility of the person signing the affidavit when that was a non issue at the time. At this point he needed to attack the case, not so much as just the affiant of the affidavit.

 

Question: Am I right in understanding that the only difference between this case and mine is that in my case the alleged account was sold from the original creditor to FIA and then to the plaintiff whereas in the other case it was directly between original creditor and plaintiff?

NO you are not right in your understanding, however, that is a big difference (being sold to 2 bottom feeders) and increases your chance to win.

 

P.S. And thank you everyone! I'm reading every single reply. I'm still trying to put all the details together. This case seems to be the closest thing. As much as I hate it, thank you @debtzapper

I have not been following this closely, nor have I read much of theses cases, but if this is the closet one then that is good. As I said this was a MSJ, yours is a TRIAL, they are nothing alike (it's like a car compared to a motorcycle). In a MSJ you do not attack the affidavit so much, you fight the lack of evidence or the quality of it, you have to show a reason why it should go to trial. All the defendant had to do was show a material issue why this should have went to trial. All the defense did was question the affiant, not any of the issues. The judges even said so;

"There is no evidence that the defendant ever contested any charge or calculation with the OC".    "The defendant never challenged the evidence as untrustworthy" (or something to that effect). Make sure you do what is underlined for starters.

 

This case is NOT like yours, and does not have to be the same result. If this person would have came to CIC (and talked to the right people, as he most likely would have) then he most likely would have beat the MSJ and moved toward trial as hundreds of people before him have done. 

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@johnny123

 

The account was not sold by BofA to FIA because the 2 companies are affiliated.  A successor-in-interest can be different than an assignee (JDB). 

 

Do the credit card statements reference both BofA and FIA?  Or do they just reference one of the businesses?  Check the statements carefully.

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I just posted these in another thread but feel free to read these..........

 

http://www.howtowina...nding-lawsuits/

 

This case deals with proving any defendant's account was sold to Midland.........

 

http://statecasefile...f?ts=1388597457

 

They can't just show a piece of paper claiming they own your debt they have to actually produce the sales document listing your exact account.

 

 

You might be lucky enough to go against a lawyer this bad at the trial.......

 

http://www.creditinf...n-lawsuit.shtml

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The court is not going to expect or allow the ACTUAL bill of sale.  If that were needed the darn thing would be worn out traveling the country with the thousands of suits each month.

 

 

If you see this link I posted above..........

 

http://statecasefiles.justia.com/documents/ohio/first-district-court-of-appeals/c-120674.pdf?ts=1388597457

 

What would you call the "final data file" as seen on page 9 of that link and described here:

 

 

Lavergne’s affidavit and the one-page, redacted bill of sale establish that on November 28, 2011, Midland

became the assignee of Chase Bank’s interest in “certain receivables, judgments or

evidences of debt.” But the list identifying those accounts—the Final Data File—was

never filed with the trial court. Thus Midland did not present any evidence to the trial

court that Farrell’s agreement was among the accounts assigned to Midland by Chase Bank.

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