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Questionable Bill of Sale and Assignment with Cavalry


ccc
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I'm getting my response and Affirmative Defenses ready for a Summons served. Cavalry included a Bill of Sale and Assignment from the OC that they claimed in Accusation 2 to be true and accurate (which I'm denying).

Upon further examination, this "true and accurate" document marked as Exhibit A in the Summons is also marked as Exhibit C on the document as well. Additionally, the copy has a date marking that's 13 days behind the alleged origination date.

To me, it appears this document has been used on multiple occasions in a cut and paste fashion.

Should I point this out in my Affirmative Defenses, and is this evidence of Unclean Hands due to the fact the BOS is inaccurate?

Thanks in advance for the input.

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So, the BOS shows an execution date that predates the supposed origination of the debt, is that what you are saying? I would definitely point this out to the court. An account could not possibly be sold to another party before said account even existed. Does the BOS identify you or a specific account number in any way? They claimed it as "Exhibit A", do they list any other exhibits or did they provide any other documentation?

 

Yes, they used the BOS template without name or account number. Originally marked as Exhibit "C" for another Claim with a fax date from another State 13 days before they originated my alleged BOS. They just marked it as Exhibit A and claimed in accusation 2 that it's "true and accurate"

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I intend to use it in six Affirmative Defenses related to my case. The question is if I state the Plaintiff is Barred from seeking damages for violating the Clean Hands doctrine, would that open up a can of worms during Discovery, and if that should be part of a counter Claim? My inclination is this is an act of Fraud under Color of Law, and Defendant should be entitled to treble damages. Frankly, I have to much on my plate as-is, and just want JDB to dismiss before Discovery. However, if they want to take me for the ride, I want them to pay for it, including a Happy Meal for my time.

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@cccCould you upload the bills of sale so that we can view them?

 

Upon another look blown up, the origination date is correct. Execution date is 13 days ahead. It's still listed as Exhibit A in the Summons, but Exhibition C is in the header. Opinion is very much appreciated @BV80

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Hmmm....Never used them. Apparently jpeg File size is too large and not readable after resizing.

 

Several format changes and using different browsers. I can only determine there's a scripting error on this forum because "Attach Files" and/or the paper clip will not highlight. The "basic uploader" just refreshes the page. I'll come back to this later in the day.

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Villegas v Silverman, 832 N.E. 2d 598 (Ind. Crt of App. 2005)

 

 C. Unclean Hands The trial court also found that Doe and Smith had "unclean hands" and therefore could not challenge the new identification requirements because they "intentionally relied on a false social security number when attempting to establish an identity."[12] Id. at 16. The principle of unclean hands is that "he who comes into equity must come with clean hands." Wedgewood Cmty. a$$'n v. Nash, 781 N.E.2d 1172, 1178 (Ind.Ct.App.2003) (quotation omitted), clarified on reh'g, 789 N.E.2d 495 (Ind.Ct.App.2003), trans. denied. The doctrine of unclean hands is not favored and must be applied with reluctance and scrutiny. Id. For this doctrine to apply, the misconduct must be intentional, and the wrong that is ordinarily invoked to defeat a claimant by using the unclean hands doctrine must have an "immediate and necessary relation" to the matter before the court. Id. (quotation omitted

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Thank you @debtzapper. The"attach file" wording or icon does nothing. Even if the file selected would not load, I would at least be able to click attach file after selecting it. I appreciate the case law for Unclean Hands, and proving the error to be intentional could be cumbersome.

In accusation 2 of the summons states the copy of the BOS to be "true and accurate" The "accuracy" portion is a given because the BOS is generic. It does not state name or account number, nor does it disclose any monetary or other consideration for the purchase. The signing date is 13 days ahead of the origination date, and the photocopy marking also indicates the document originated on 9-13-13, although the signature date in the BOS is 9-26-13. The name and title, and even the name of the JDB is completely illegible. Also, it's Submitted in the Summons as Exhibit "A" but also marked as Exhibit "C" on the Bill of Sale.

I really want to upload this, because I don't think I'm describing just how egregious the BOS is. The hope is just getting the JDB to dismiss before going through discovery and also having a Counter Claim in the even they decide to waste more of my time. I would like to include the Plaintiff is barred from seeking damages for presenting a BOS that is not accurate per accusation 2, but I may just have to state the BOS is vague, ambiguous and inaccurate for the reasons stated.

My other Affirmative Defenses are....

The Plaintiff has not proven the debt to be valid or accurate. The Plaintiff must prove collection costs, principal, and interest are correct. Additionally, the Defendant insists the Plaintiff disclose the account numbers, statements, and purchase receipts to prove the amount of the debt.

The Plaintiff admits to purchasing debt allegedly owed by the Defendant, causing Plaintiff’s injury to itself and therefore barred from seeking damages.

The Plaintiff fails to allege a valid assignment and presents no factual arguments of valuable consideration.

No exchange of goods, services, or money occurred between Plaintiff and Defendant, constituting Failure of Consideration.

The Defendant reserves the right to amend and/or add additional answers, defenses, and/or counterclaims for a later date.

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@BV80 I think uploading the BOS on this forum is a hopeless cause. The Points in question are the obvious, inaccurate, no name, account number, sum for purchase.

Exhibit "C" which refers to nothing in this complaint is on the top of the copy, and Exhibit "A" (reference to paragraph 2 of the Complaint) is listed on the bottom. The origination date is 9-13-13, but the signing date is 9-26-13. There is a photocopied date mark, presumably from the Exhibit "A" listing dated 9-13-13, indicating:

a. the document wasn't truthfully signed on the execution date of 9-26-13

b. the exhibition listing was initiated 13 days before the signing of the BOS.

c. the BOS was originally Exhibit C in another Complaint, changed to Exhibit "A"

for the purpose of this Complaint.

Still a sticky situation bringing up the Clean Hands Doctrine, so I'm trying a different approach in Affirmative Defenses... To bar the Plaintiff from seeking damages for filing an Exhibit that's invalid and inaccurate based upon the assertion from the Plaintiff that it's true and accurate.

Although I believe each point stands on its' own, I want to be as concise as possible. Any feedback or criticism to this Affirmative Defense in answer to the Complaint is appreciated.

8. Plaintiff is barred from seeking damages for stating an invalid and inaccurate Bill of Sale to be “true and accurate” in paragraph 2 as it does not specify Defendant’s name, account number, or specific sum for which alleged debt was sold. Bill of Sale is erroneously marked as both Exhibit “A” and Exhibit “C,” irrelevant to this Complaint. Additionally, a photocopy stamping on the document is for the agreement date of 9-13-13, bringing into question how the Bill of Sale was truthfully signed on the execution date of 9-26-13, or how it became Exhibit “A” 13 days before the Bill of Sale was signed.

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Somewhat off topic, but have they produced an affidavit yet? In the one they used in my case the affiant said his statements were made as a "direct result of [his] personal knowledge … or were obtained through diligent research”. He never said which of his statements were made on personal knowledge and which were obtained through diligent research. Since our rules out here require affidavits to be made only on "personal knowledge", and there is no concession for "diligent research", the affidavit was worthless.

(Unfortunately I did not catch this earlier on in my case so I had to bring it up on appeal).

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Somewhat off topic, but have they produced an affidavit yet? In the one they used in my case the affiant said his statements were made as a "direct result of [his] personal knowledge … or were obtained through diligent research”. He never said which of his statements were made on personal knowledge and which were obtained through diligent research. Since our rules out here require affidavits to be made only on "personal knowledge", and there is no concession for "diligent research", the affidavit was worthless.(Unfortunately I did not catch this earlier on in my case so I had to bring it up on appeal).

 

Yes Harry, I did get an Affidavit where the Affiant stated he's familiar with the way the Plaintiff conducts business and keeps records, but nothing about personal knowledge or diligent research. Additionally he states the JDB purchased the debt on 9-26-13, 13 days before the date stamping of Exhibit "A" (or Exhibit "C"). Also, this is signed by a Notary but not stamped, although I don't think that has any bearing.

Requesting interrogatories for the Affiant will be part of Discovery as well as a detailed work resume. I appreciate the help. Did you find the rule in your State's Civil Procedure, or through the local court?

There was a period of 14 months between OC charge off and when the JDB allegedly purchased the debt. That seems like a very long time, making me wonder if another JDB had it (and hence the marking of Exhibit C). Of course if that's the case, the BOS was forged. Asking for a receipt for the purchase of my debt and from whom is a reasonable Discovery question.

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Indiana Trial Rule 56 E 6

Indiana Trial Rule 56(E) provides in pertinent part that “upporting and opposing

affidavits shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent to testify to

the matters stated therein.”

Thanks again, Harry... Another Affirmative Defense.

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Plaintiff's Affiant in the Affidavit of Claim fails to state Personal Knowledge as it is pertinent to supporting Affidavits in Indiana, therefore rendering the Affidavit of Claim as inadmissible.

(If wording is what you meant by not being an affirmative defense)

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@ccc

An affirmative defense is a reason why you're not liable for the plaintiff's claim. Examples would be the SOL, plaintiff's lack of standing to sue (you may owe someone, but you don't owe the plaintiff), the debt has already been paid, etc.

A declarant's lack of personal knowledge of the details in the affidavit is not a reason you're not liable for the debt.

The lack of personal knowledge might be brought up in a motion to strike or in opposition to a summary judgment motion. However, when raising the issue, you need supporting case law.

Here's an IN ruling for you to read.

http://scholar.google.com/scholar_case?case=13169856357742435649&q=%22Seth+v.+MIDLAND+FUNDING,+LLC%22&hl=en&as_sdt=4,15

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As for Affirmative Defenses, just list lack of standing and failure to state a claim.

I would include statute limitations (they have to prove last payment) and waiver. If Cavalry is seeking interest and the OC did not in the 14 months after charge-off, I would argue the OC waived any rights to interest it may have had and such waiver was shifted to Cavalry.

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From "Landers v. Wabash Center,"(Ind Crt of App. 2013)

The party pleading a statute of limitation bears the burden of proving the suit was commenced beyond the statutory time allowed. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274 (Ind.2009). Once the party makes a prima facie case, the burden shifts to the other party to prove such facts as will prevent the running of the statute. Arnold v. Dirrim, 398 N.E.2d 426 (Ind.Ct.App.1979). Nevertheless, the ultimate burden of persuasion remains on the party asserting the bar. Id. Determining when a cause of action accrues is generally a question of law. Cooper Indus., 899 N.E.2d at 1280. However, where, as here, application of a statute of limitation rests on questions of fact, it is an issue for the finder of fact to decide. Id. at 1279.

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