fight2win

Won before, but here we go again....

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@fight2win

 

You post documents in the text input box, there is a button that says "More Reply Options", which will bring you to a new page, and at the bottom you'll see an area to attach files.

 

Attach everything they sent you in their MSJ, disclosures, discovery etc...  Make sure all your personal info is redacted.

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@fight2win

When you reply to a thread, there is a button that says "more reply options". Click that and you will have options to attach a file.

Your objection is due 35 days after they mailed the MSJ to you. If your pre-trial falls within that 35 day window you should be safe, but you should have arguments ready in case they ask the court to rule on the outstanding MSJ.

Yes, CACH will be testifying they received records from the OC and those records were incorporated and relied upon. That's all they need to say to trigger the presumption of trustworthiness.

How do you know the OC affidavit was prepared for litigation purposes? If it was created at or near the time of the events described in the affidavit, CACH will introduce it as a business record and then the same 'incorporated and relied' manta applies.

There are many cases for many different things. If the question is:

"Can a CACH witness testify about OC's records when the witness testifies 1.) he/she is a custodian for CACH's records (or is familiar with its record keeping practices); 2.) he/she is familiar with and has reviewed the records being introduced; 3.) the records were incorporated into CACH's own records; and 4.) CACH relied on the records in the normal course of business?", the appellate court will look to Parker for guidance, and the appellate court believes Parker says that he/she can introduce those records. I have yet to see a case where the appellate court didn't rule this way on that question.

If someone knows of a ruling that invalidates Parker for this purpose, I sure wish they would let us all know about it. So far Parker is the only case the appellate court is looking at in deciding the above question. And that includes cases where the defendant is represented by an experienced consumer attorney. If there was a magic way, don't you suppose the attorneys would know about it?

So yes, people here win. They win because they deny under oath the underlying debt. They win because the JDB doesn't being a live witness to trial. They win because the JDB produced an agreement dated 3 years before the account was opened. They win because the judge doesn't like the JDB's lawyer. They win because the judge likes the way the defendant looks in a short skirt (or tight jeans, whatever). You're asking if there is a way to win every JDB case. The answer is no, there is not. There is a clear path to success for the JDB's and if they follow that path, they stand a very good chance of succeeding. Without the benefit of seeing the affidavit they used for your case, I can only speculate they will follow the path to success as they have in the last several months.

Again, if someone knows a way to win against these guys here in Arizona, I beg you to please let us know what it is. We're bleeding out here. The consumer lawyers would sure appreciate it too, since they can't seem to figure it out either.

I agree you should fight if you don't want to settle. Those are your only two options at this point.

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Ok, I see how to upload the file.  I will post them up in the morning because I need to rescan a few pages (can still see my info under the Sharpie). I'll post up the affidavit, BOS, Cach Affidavit, MSJ.... and there is one other MSJ summary.  

 

Thanks :)

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legal docs 021815.pdf ok, here are the docs.... 

 

CACH affidavit

BOS

OC affidavit

MSJ

Summary Of Facts MSJ

 

other discovery provided but not included on attachment were:

 

-1 years billing statements with 2 purchases and several payments

- Schedule 1 attachment to BOS with my name, alleged amount owed, etc.

- CACH computer screen printou of basic info

-Copy of CC Agreement with my name typed on top

 

 

thanks-

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Ok, so right out of the gate I see two problems.

 

1. The affidavit of claim does not say the records were incorporated into CACH's records and it does not say CACH relied on the records in the ordinary course of business.

 

2. The affidavit of sale was made more than a year after the alleged sale, thus it was not made 'at or near the time' as required by Rule 803(6) to be admitted as a business record.

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Ok, so right out of the gate I see two problems.

 

1. The affidavit of claim does not say the records were incorporated into CACH's records and it does not say CACH relied on the records in the ordinary course of business.

 

2. The affidavit of sale was made more than a year after the alleged sale, thus it was not made 'at or near the time' as required by Rule 803(6) to be admitted as a business records

So the CACH affidavit needs to include verbiage that specifically says that THEY rely on the records in the ordinary course of business....

and for #2 - the affiant would have needed to sign that document near the time of sale, not a year later.  This would indicate that the affidavit of debt was created for the purpose of litigation?  I'll go back and read rule 803(6).

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Also, did anyone see in the MSJ where CACH actually claims to own the debt?

They say a lot about establishing that the account was opened and used, but I didn't see any arguments stating that CACH purchased the debt and is entitled to collect it.

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Won't CACH say that:

 

"Plaintiff's books and records contain account records and information of the account referenced..." = "The records were incorporated..."

"The records are kept in the ordinary course of business activity..." = "The records are relied upon..."

 

They are using different verbiage, but isn't the intent the same?

 

The date discrepancy is interesting, though.

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Also, did anyone see in the MSJ where CACH actually claims to own the debt?

They say a lot about establishing that the account was opened and used, but I didn't see any arguments stating that CACH purchased the debt and is entitled to collect it.

 

"6. For good and valuable consideration, Plaintiff purchased the Account form the Original Creditor or its assignee and Plaintiff is the current creditor of the Account."

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Additionally, the date referenced regarding the "sale" on the Affidavit of Debt, by the affiant, is different from the date referenced on the Bill of Sale.

 

Is this not something, at least, that could be included in an Opposition for Motion for Summary Judgement - it's at least ONE thing, which to my understanding is all that is needed. 

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So the CACH affidavit needs to include verbiage that specifically says that THEY rely on the records in the ordinary course of business....

and for #2 - the affiant would have needed to sign that document near the time of sale, not a year later.  This would indicate that the affidavit of debt was created for the purpose of litigation?  I'll go back and read rule 803(6).

This is from Parker:

"Trustworthiness and reliability stem from the fact that Capital One regularly relies on the information that third parties submit as part of their ordinary course of business."

If CACH is not testifying that they regularly relied on the info in the ordinary course of business, according to Parker, the presumption of trustworthiness and reliability is not present.

 

 

The affidavit is hearsay because it's a statement being made by someone not personally present to testify.  There are exceptions where hearsay can be allowed.  One is if the a document can be authenticated as a "business record".  The rule for that is 803(6) and here's what 803(6) says about 'at or near the time':

 

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;

 

I don't see how a year after the fact could ever be perceived as "at or near the time" of the event.

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"6. For good and valuable consideration, Plaintiff purchased the Account form the Original Creditor or its assignee and Plaintiff is the current creditor of the Account."

Ok, missed that.  Thanks.

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Won't CACH say that:

 

"Plaintiff's books and records contain account records and information of the account referenced..." = "The records were incorporated..."

"The records are kept in the ordinary course of business activity..." = "The records are relied upon..."

 

They are using different verbiage, but isn't the intent the same?

 

It's a pretty roundabout way to say "CACH incorporated the records and relied on them in the ordinary course of business".  If that's what they mean, why not just say that?

 

The judge could reasonably buy the explanation you give, but I think it's something to throw in their path.

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I'm sorry, please forgive the stupidity of some of my questions, but what does that mean that they "incorporated the records" - why does this make a difference?  If CACH is given documents from the OC on account 123, what indicates that they "incorporated" the records?  Do they have to use the word "incorporate" to make that sufficient?  Must that say that THEY rely on these records, and not simply that the OC relies on those records?

 

I'm trying to understand what that means.

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I think Midland and Cavalry are better at tailoring these things using state-specific jargon. The attached "CACH computer screen printout of basic info" may be pointed to as physical proof of the incorporation of the records.

 

The BOS is from 2013 and the "Affidavit of Sale and Certification of Debt" is from 2014. Can it be argued that those are separate events? CACH will say that the 2014 affidavit is an additional layer of proof - that the information attested to (that this specific account was part of the 2013 sale) was reviewed at or near the time of the affidavit?

 

Using the "preponderance of evidence" threshold, will the information provided to the court lead the judge to side with CACH 51% to 49%?

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Additionally, the date referenced regarding the "sale" on the Affidavit of Debt, by the affiant, is different from the date referenced on the Bill of Sale.

 

Is this not something, at least, that could be included in an Opposition for Motion for Summary Judgement - it's at least ONE thing, which to my understanding is all that is needed. 

 

Yes, this does seem like a problem.

 

IN WITNESS WHEREOF, each party, through its duly authorized officer, has caused this Bill of Sale and

Assignment of loans to be executed in their name this 24th day of April, 2013.

 

And

 

Said agreement and account was, on 04/19/2013, sold, transferred and set over unto CACH, LLC,

 

Seem to be talking about the same event taking place on two different days.

As I said before, though, CACH may try to say they are not the same event.

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I'm sorry, please forgive the stupidity of some of my questions, but what does that mean that they "incorporated the records" - why does this make a difference?  If CACH is given documents from the OC on account 123, what indicates that they "incorporated" the records?  Do they have to use the word "incorporate" to make that sufficient?  Must that say that THEY rely on these records, and not simply that the OC relies on those records?

 

I'm trying to understand what that means.

 

When the OC sent billing statements, for example, they looked at their records to get your address and current balance, etc. When they sold the account to CACH, CACH put that information in their computer system. They used that information to find and sue you - the relied on the records that they incorporated, or added, to their computer system. 

 

We make a big deal out of the business record verbiage because so many AZ cases are decided that way on appeal. It really isn't that complicated, as CACH's complete record of all accounts they own could probably be stored on a smart phone. 

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I don't know if it matters but 4/19/2013 was a Friday. Perhaps the auction of this account portfolio took place on 4/19, and CACH won the bidding. The final payment and transfer took place on the following Wednesday - three business days for funds to transfer, etc.?

 

As for practical matters, your opposition to MSJ should include an affidavit where you deny any knowledge of the debt (if you feel comfortable with that), attacks on the dates (both the sale date(s) and the year gap between the BOS and sellers affidavit.) and highlight anything that doesn't exactly match 803(6) language.

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I'm sorry, please forgive the stupidity of some of my questions, but what does that mean that they "incorporated the records" - why does this make a difference?  If CACH is given documents from the OC on account 123, what indicates that they "incorporated" the records?  Do they have to use the word "incorporate" to make that sufficient?  Must that say that THEY rely on these records, and not simply that the OC relies on those records?

 

I'm trying to understand what that means.

To be admissible as a business record, the record has to be relied upon in the normal course of business.  If the records aren't incorporated after being transferred from one party to another, how else can the receiving party claim to have relied upon in the records in the normal course of that party's business?

 

Per Parker, it's not necessary to show the records were reliable before they were received by the receiving party.  If you know of something about the records as they were kept by the originator that makes them unreliable, you can introduce that, but you can't simply say "how do we know the records were reliable before they were transmitted?"  Parker says "Trustworthiness and reliability stem from the fact that Capital One regularly relies on the information that third parties submit as part of their ordinary course of business."  This is the presumption of reliability.  It can be overcome, but you have to put forth something to question that presumption.  "How do we know?" is not sufficient.

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I don't know if it matters but 4/19/2013 was a Friday. Perhaps the auction of this account portfolio took place on 4/19, and CACH won the bidding. The final payment and transfer took place on the following Wednesday - three business days for funds to transfer, etc.?

They would have to make a case that "executed" is not the same thing as "sold, transferred and set over".

 

I'm no contract lawyer, but they sound like the same thing to me.

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Yes, this does seem like a problem.

 

IN WITNESS WHEREOF, each party, through its duly authorized officer, has caused this Bill of Sale and

Assignment of loans to be executed in their name this 24th day of April, 2013.

 

And

 

Said agreement and account was, on 04/19/2013, sold, transferred and set over unto CACH, LLC,

 

Seem to be talking about the same event taking place on two different days.

As I said before, though, CACH may try to say they are not the same event.

But you'll also notice on the BOS that it claims the date of the Loan Sale Agreement as being the April 15, 2013.  

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Wow, ok, so the affiant is saying that it was set over to the Plaintiff 4 days AFTER the Bill of Sale indicates for the Loan Sale Agreement.  How is it possible?

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Wow, ok, so the affiant is saying that it was set over to the Plaintiff 4 days AFTER the Bill of Sale indicates for the Loan Sale Agreement.  How is it poss

I believe this is the nail.

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But you'll also notice on the BOS that it claims the date of the Loan Sale Agreement as being the April 15, 2013.  

The Loan Sale Agreement is not the same thing as when the loan sale actually took place.  This is what I was saying earlier.  They decided to enter an agreement on April 15 and then 4 (or 7) days later the money and accounts changed hands.

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The Loan Sale Agreement is not the same thing as when the loan sale actually took place.  This is what I was saying earlier.  They decided to enter an agreement on April 15 and then 4 (or 7) days later the money and accounts changed hands.

Ok, it's just that when she references the "agreement" is gets really confusing.   

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