fight2win

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

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What you're arguing are issues of "trustworthiness".  This could be a problem for them, but if they are able to explain this to the satisfaction of the judge (e.g. there are two agreements executed on two different dates, or these are clerical errors due to the enormous number of lawsuits they file), then what?

 

The forward flow won't identify your account.  It's a master agreement that a series of debts are sold under.  Here is one from BofA/FIA selling to CACH.  This is probably identical to the one used in the sale of your account.  The only damaging part if these agreements are the "disclaimers" where the parties agree the debts are sold without warranty of any kind.  You have to convince the judge this means the parties knew the info about the debts may not be accurate.

 

http://dalie.org/wp-content/uploads/2014/10/2013.06.19-FIA-Card-Svcs-to-CACH-LLC.pdf

Ok, I'll look at that link.

 

So, at this point I need to prepare for an MSJ.  Can you help me with that?  

 

How does that work?  JDBA files a MSJ.  I receive a copy or notice in the mail, or not always?  

 

I file an opposition based on my remaining questions about the agreement sale date, what else? 

 

When does the judge sit and look at the case and does he decide right then and there who wins and who loses and how much has to be paid?

 

What about the next pre-trial conference date that was set for mid-February?  

 

I really need to be informed of what to look out for and I need to know when to pursue settling, if I decide to do that.  

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well, yeah it "could" mean a bunch of other things besides the data is garbage, but it doesn't say that they data isn't garbage.  It doesn't say that the data is 100% error free.  Isn't that the way attorneys spin things on their own behalf?!!??  

 

(and thanks)

This is the problem for us here in AZ when fighting JDBs:

 

 

Parker argues that there is a double hearsay problem because Ward did not know who transmitted the information into Capital One's database. But courts regularly admit business records even when the testifying witness did not assemble the complete record. See, e.g., United States v. Langford, 647 F.3d 1309, 1326 (11th Cir.2011) (records of credit card transactions properly admitted under federal rule 803(6) despite custodial witness "not hav[ing] personal knowledge of each of the records"); State v. Veres, 7 Ariz. App. 117, 125, 436 P.2d 629, 637 (1968) (to same effect), overruled on other grounds by State v. Osborn, 107 Ariz. 295, 295, 486 P.2d 777, 777 (1971); see also Weinstein's Federal Evidence § 803.08[8][a], at 803-84 to 803-86 ("The witness need not have ... personally assembled the records ... [,] [and t]here is no requirement that the records have been prepared by the entity that has custody of them...."). 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. See, e.g., United States v. Adefehinti, 510 F.3d 319, 326 (D.C.Cir.2007) (listing cases that permit business records of one entity to be admitted as a business record of another entity if the latter entity relies on those records and keeps them in the ordinary course of business). The trial court did not abuse its discretion in admitting this evidence as a business record.

State v. Parker, 296 P. 3d 54, 64 - Ariz: Supreme Court 2013

 

This means CACH only has to testify that they regularly rely on the records they get from BofA/FIA and viola!, the records are deemed trustworthy.  Now it's up to you to reveal the chinks in the armor of their records.  The things you brought up are reasons to doubt trustworthiness, but it's largely up to the trial courts to allow or deny evidence.  Appeal courts won't reverse evidentiary rulings absent a clear abuse of discretion.  What seems clear to you and I are not always what the appeal courts are looking at.

 

 

You may win your case.  But you may lose.  There's nothing about your case that stands out to me as a "slam dunk" for you.  What is your plan if the judge grants their MSJ?  Or rules in their favor at trial?  And if you appeal and the appellate court finds the trial court made no errors?

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This is the problem for us here in AZ when fighting JDBs:

 

State v. Parker, 296 P. 3d 54, 64 - Ariz: Supreme Court 2013

 

This means CACH only has to testify that they regularly rely on the records they get from BofA/FIA and viola!, the records are deemed trustworthy.  Now it's up to you to reveal the chinks in the armor of their records.  The things you brought up are reasons to doubt trustworthiness, but it's largely up to the trial courts to allow or deny evidence.  Appeal courts won't reverse evidentiary rulings absent a clear abuse of discretion.  What seems clear to you and I are not always what the appeal courts are looking at.

 

 

You may win your case.  But you may lose.  There's nothing about your case that stands out to me as a "slam dunk" for you.  What is your plan if the judge grants their MSJ?  Or rules in their favor at trial?  And if you appeal and the appellate court finds the trial court made no errors?

Harry, what is the process of the MSJ?   At what point should I settle (If I do that?)  Do I wait to see if they file an MSJ, or is that shooting myself in the foot (potentially) if the judge denies my opposition?  I'll read on the boards - I haven't researched that enough.  Thanks

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Ok, I'll look at that link.

 

So, at this point I need to prepare for an MSJ.  Can you help me with that?  

 

How does that work?  JDBA files a MSJ.  I receive a copy or notice in the mail, or not always?  They are supposed to send you a copy.

 

I file an opposition based on my remaining questions about the agreement sale date, what else?  MSJs should not be granted where there are genuine issues of material fact.  You need to raise as many issues as you can with their case against you.  The dates are potentially a problem for them, but as I said, they may be able to explain this to the satisfaction of the judge so don't hinge everything on this one issue.  Anything that seems questionable needs to be raised.

 

When does the judge sit and look at the case and does he decide right then and there who wins and who loses and how much has to be paid? https://govt.westlaw.com/azrules/Document/N6F4945F00DDE11E2B1BB87D5DA3B811F?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29  One party files an MSJ (the 'filing party') and the other party has an opportunity to respond ('responding party') within 30 days.  If there is a response, the filing party can file a reply to the response within 15 days.  The judge should wait to be sure there is no response.  Sometimes they rule right after the deadlines, sometimes they wait several weeks.  Most are within a month of the deadlines.  If you ask for a hearing in your response, they court is supposed to schedule a hearing if the judge isn't inclined to deny the motion.

 

If the judge grants the MSJ, CACH will file a proposed order of judgment with all of the amounts they want awarded to them.  You should have an opportunity to respond to that if you don't agree with what they claim for costs and attorney's fees, etc. The judge will sign the order and the clerk will file it a couple days later and mail you a copy.

 

 

What about the next pre-trial conference date that was set for mid-February?   Go to any scheduled appearances.  If something has been vacated, you'll get a notice from the court.

 

I really need to be informed of what to look out for and I need to know when to pursue settling, if I decide to do that.  Watch your mail for an MSJ.  That's your main concern right now.  What did the court give as the reason for the next pre-trial?  If you are seriously considering settling, you should call them now and see what they are willing to accept.  You don't have to agree to anything on the spot, but usually the longer you wait the higher their settlement price will be.

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Did they disclose a witness (name, address, and phone #) in their disclosures?  Did they provide an affidavit that specifically authenticates the documents they have provided to you? 

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Did they provide an affidavit that specifically authenticates the documents they have provided to you? 

Yes, good point.  I remember there was the affidavit from the BofA employee early on, but OP said she now has an affidavit from CACH.

 

@fight2win can you post the text of the CACH affidavit?  And the bill of sale (although I'm sure it's the boilerplate variety).

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The undersigned, Mindy Stevens, being duly sworn, states and deposes as follows:

 

1.  That Affiant is employed by FIA..........in the position of Bank Officer, has personal knowledge of the manner and method by which FIA Card Services......maintains its normal business book and records, and is duly authorized to make this affidavit.

 

2.  That the contents of this affidavit are believed to be true and correct based on the computerized and hard copy books and records of FIA Card......maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded.

 

3.  That FIA Card Services..... is a wholly owned subsidiary of......................

 

4.  That the account records of FIA ............show that:

 

       a.   Account number 123456789, formerly account numer 1234576543, was opened on 7/7/2007 by MINNIE MOUSE.

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The undersigned, Mindy Stevens, being duly sworn, states and deposes as follows:

 

1.  That Affiant is employed by FIA..........in the position of Bank Officer, has personal knowledge of the manner and method by which FIA Card Services......maintains its normal business book and records, and is duly authorized to make this affidavit.

 

2.  That the contents of this affidavit are believed to be true and correct based on the computerized and hard copy books and records of FIA Card......maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded.

 

3.  That FIA Card Services, N.A. is a wholly owned subsidiary of Bank of America Corporation and is successor in interest to MBNA America Bank NA, Fleet Bank (RI), and Bank of America, National Association (USA).  

 

4.  That the account records of FIA Card Services, N.A. show that:

 

       a.   Account number 123456789, formerly account numer 1234576543, was opened on 7/7/2007 by MINNIE MOUSE.

 

       b.   Pursuant to the terms of the card member agreement with FIA, there was due and payable $1111.11 as of the charge off date of 01/01/2013.

 

(full affidavit listed below - this posted by mistake)

 

       c.    Said agreement and account was, on 04/19/3013 sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim, and as of that date, there was due and payable on this Account the sum of $1111.11, with all just and lawful offsets, payments, and credits having been allowed.

 

       d.   There were no uncredited, payments, just counterclaims or offsets against said debt when sold.

 

5.  That as a result of the sale of said account, CACH, LLC and/or its authorized Agent, has complete authority to settle, adjust, compromise and satisfy same, and that FIA Card Services, N.A. has no further interest in the account for any purpose.

 

6.  That the original contract in this matter may not be available, or no longer accessible to Affiant.

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@fight2win

 

There is no other affidavit they produced?  Did they disclose Ms. Stevens in their disclosures?

They sent the Affidavit of Debt with the original summons.  I don't know if they disclosed Ms. Stevens in their disclosure statement - but I had the affidavit from the beginning.  

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Sorry - I was confused by this:

 

"Yes, good point.  I remember there was the affidavit from the BofA employee early on, but OP said she now has an affidavit from CACH.

@fight2win can you post the text of the CACH affidavit?  And the bill of sale (although I'm sure it's the boilerplate variety)."

 

I'm not sure how an affiant from OC can attest to how CACH maintains records...

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Sorry - I was confused by this:

"Yes, good point. I remember there was the affidavit from the BofA employee early on, but OP said she now has an affidavit from CACH.

@fight2win can you post the text of the CACH affidavit? And the bill of sale (although I'm sure it's the boilerplate variety)."

Yeah for some reason, the OP's posts after the pre-trial left me with the impression CACH had disclosed a second affidavit.

So now we're back to this discussion:

http://www.creditinfocenter.com/community/topic/324767-won-before-but-here-we-go-again/?p=1307613

Edit: this doesn't seal the case. They can still call a live witness to trial.

Since it would be difficult to win summary judgment without their own affidavit, this possibly explains why they have not filed a MSJ.

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Yeah for some reason, the OP's posts after the pre-trial left me with the impression CACH had disclosed a second affidavit.

So now we're back to this discussion:

http://www.creditinfocenter.com/community/topic/324767-won-before-but-here-we-go-again/?p=1307613

Edit: this doesn't seal the case. They can still call a live witness to trial.

Since it would be difficult to win summary judgment without their own affidavit, this possibly explains why they have not filed a MSJ.

their live witness is in NC, correct?  I did receive a disclosure statement, but I don't recall seeing the affiants name listed as a witness, only the employees of CACH.  I will look again at that document.

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Affiants are witnesses and should be disclosed.  I believe the goal in AZ is to get passed a MSJ and onto trial.  That being said, look up the rules that pertain to disclosures, and what the penalty is for non-disclosure.  The AZ rule website is down right now, so I can't look it up for you.  

 

If you suspect you are going to be receiving a MSJ soon, then (and smarter people than I can chime in here) you may consider doing a motion to preclude the affidavits and any document they reference.  Cite the AZ rule(s), and dig up some case law on non-disclosures.  Then follow that up with a MSJ of your own stating that the JDB has no legal standing, nor have they produced any admissible evidence or witnesses that can authenticate & lay foundation.

 

The thing is:  when the JDB files for a MSJ they will use those non-disclosed affidavits as the foundation of their motion.  Allowing the JDB to use non-disclosed witnesses violates the RCP, and your due process, as you never had the chance to conduct depositions or subpoena them, as they were not disclosed per the RCP.

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Affiants are witnesses and should be disclosed. I believe the goal in AZ is to get passed a MSJ and onto trial. That being said, look up the rules that pertain to disclosures, and what the penalty is for non-disclosure. The AZ rule website is down right now, so I can't look it up for you.

If you suspect you are going to be receiving a MSJ soon, then (and smarter people than I can chime in here) you may consider doing a motion to preclude the affidavits and any document they reference. Cite the AZ rule(s), and dig up some case law on non-disclosures. Then follow that up with a MSJ of your own stating that the JDB has no legal standing, nor have they produced any admissible evidence or witnesses that can authenticate & lay foundation.

The thing is: when the JDB files for a MSJ they will use those non-disclosed affidavits as the foundation of their motion. Allowing the JDB to use non-disclosed witnesses violates the RCP, and your due process, as you never had the chance to conduct depositions or subpoena them, as they were not disclosed per the RCP.

1. How is it a violation of "due process"?

2. The sanctions for non-disclosure are discretionary. The rules say the court "may" impose them. I have seen the appellate court uphold a trial court's ruling to allow testimony of a non-disclosed witness. In order to prevail on appeal, you have to make a solid argument for how you will specifically be prejudiced if the court allows the testimony of that witness.

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@fight2win  Did they send you a disclosure statement at all?  If so, there should be a section that lists witnesses they plan on using (name, address, phone #).

Yes, I looked and they did not list the affiant as a witness.

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I have major junkyard brain right now and can't sort my thoughts out here.  

 

To me, there are two issues:

 

1) What documents does the JDB need to provide to PROVE that they own the debt?  Is one page of a Bill of Sale and a "Schedule" with my name and part of an account number on it enough?  I don't get it.

 

2)  The affiant is attesting to an alleged balance owed, but there is nothing provided to indicate how she came up with that amount, what she was looking at when she wrote down or affirmed that number, etc.  Also, when asked in my Roggs and RFAs how errors are dealt with from the OC, the JDBA clearly stated that they DON'T KNOW about the practices of a third party - yet, they can ASSURE that the amount is correct?  Something just doesn't add up - how can any JDB win based on a couple of pieces of PAPER?  In addition, if a date is indicated referencing a sale, shouldn't that date stay consistent?  And, isn't it my right to seek clarification?  I mean, there could be a major error on their part.  

 

I'm confused right now.  I need a time out.  :)

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1. How is it a violation of "due process"?

2. The sanctions for non-disclosure are discretionary. The rules say the court "may" impose them. I have seen the appellate court uphold a trial court's ruling to allow testimony of a non-disclosed witness. In order to prevail on appeal, you have to make a solid argument for how you will specifically be prejudiced if the court allows the testimony of that witness.

1.  They utilized a witness that was undisclosed, that you had no opportunity to cross-examine, thus if awarded a judgment it deprived you of money, and/or your property.

2.  It is discretionary, and it's only allowed if the JDB can show "Good cause", and that it didn't prejudice the defendant.  The affiant proves their chain of custody, and they violated the RCP by presenting the witness, and depriving you the ability to cross-examine (depose, etc...) said witness.  That is prejudicial.

 

They still need to lay foundation & authenticate the records (which they need live witnesses, or affiant to do).

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@Coffee_before_tea

 

While FIA's affiant may not have been included in disclosure, it can't be argued that the affiant's name was not disclosed because it has been.  It's on the affidavit and that person can be subpoenaed or deposed.

 

If the JDB includes an affidavit in support of summary judgment that from an affiant who not disclosed, it's possible a defendant can request a delay in order to depose him.

 

56(f)(1):

 

(1) If a party opposing summary judgment files a request for relief and expedited hearing under this Rule, along with a supporting affidavit showing that, for specified reasons, it cannot present evidence essential to justify its opposition, the court may, after holding a hearing:

 

(A) defer considering the motion for summary judgment and allow time to obtain affidavits or to take discovery before a response to the motion is required;

 

 

They still need to lay foundation & authenticate the records (which they need live witnesses, or affiant to do).

 

 

They don't need live witnesses at an MSJ hearing.

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@Coffee_before_tea

 

While FIA's affiant may not have been included in disclosure, it can't be argued that the affiant's name was not disclosed because it has been.  It's on the affidavit and that person can be subpoenaed or deposed.

 

If the JDB includes an affidavit in support of summary judgment that from an affiant who not disclosed, it's possible a defendant can request a delay in order to depose him.

 

56(f)(1):

 

(1) If a party opposing summary judgment files a request for relief and expedited hearing under this Rule, along with a supporting affidavit showing that, for specified reasons, it cannot present evidence essential to justify its opposition, the court may, after holding a hearing:

 

(A) defer considering the motion for summary judgment and allow time to obtain affidavits or to take discovery before a response to the motion is required;

 

 

 

They don't need live witnesses at an MSJ hearing.

 

Sure it can be argued; however, the Rules of Civil Procedure are there for a reason.  A random witness can be dug up through discovery, but a chief witness needs to be disclosed as the rule states.  Moreover, if the plaintiff or defendant wanted to use that random witness, then they'd have to supplement their disclosures to include them.

 

I don't read rule 56 the same way you do.  The defendant is not presenting evidence to justify its opposition, they are trying to preclude evidence/witnesses that weren't disclosed pursuant to the RCP.

 

Besides, why request relief, when you can request to preclude non-disclosed witnesses instead?

 

They don't require a live witness to be at a MSJ hearing; however, the evidence still needs to be authenticated as it would have to at trial.

 

Really the bottom line here is getting passed a MSJ.  I would suggest hitting all available points to create genuine issues of fact that need to be resolved at trial.  If precluding plaintiffs witnesses/evidence does that, then why not try.

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