fight2win

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

Recommended Posts

I found the answer to why I thought CACH had their own affidavit:
http://www.creditinfocenter.com/community/topic/324767-won-before-but-here-we-go-again/?p=1311718
 

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.

The RCP provide a remedy for undisclosed witnesses/information in the form of a motion to compel.  If you know there is a witness that has not been properly disclosed, you have a responsibility to try to resolve it prior to trial.  If you don't, your silence could be interpreted by the court as a waiver of your right to proper disclosure.

 

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.

Considering we now know that CACH does not have their own affidavit, I would be surprised if they try to file an MSJ. They disclosed 5 potential witnesses here: http://www.creditinfocenter.com/community/topic/324767-won-before-but-here-we-go-again/?p=1314701(rogg #21) If they go to trial and bring in one of these witness, then what?
 
 
In the last few weeks I have discovered that the appellate court for Justice Court cases in Arizona gives the Justice Courts broad discretion in admitting evidence and witness testimony.  I am on the record as saying this case could go in the OP's favor if CACH makes a mistake or doesn't bring a witness to trial, but it could also blow up in her face, even if CACH does make a mistake, and she'll have only one shot at an appeal with an appellate court that has ruled "no error" far more often than not on JDB cases.  In fact, out of 14 the JDB appeals I found from the last year, 9 of them had a trial.  7 of those had a live witness appear and NOT ONE of them with a live witness were reversed.  According these numbers, there is a 64% chance of going to trial, a 78% chance they will bring a witness to trial and a 100% chance you will lose if they do.  Of course these numbers are anecdotal, but probably not far from reality.  I don't think the chances of prevailing are good if they show up with a witness, and since no one knows if they will produce a witness until the day of trial, it's literally going to be calling each other's bluff until the day of trial.  If the goal is to minimize the amount of money owed, my suggestion is to call CACH and see what they will accept.

 

I'm not going to keep banging this drum in yet another thread so I'm done with debating possible outcomes in this case and I also won't participate in leading OP to the mouth of the volcano on a bluff when there is at least one other sensible alternative.  Pragmatism isn't about standing up for yourself when doing so puts you in harm's way.

Share this post


Link to post
Share on other sites

@Harry Seaward

 

The RCP provide a remedy for undisclosed witnesses/information in the form of a motion to compel.  If you know there is a witness that has not been properly disclosed, you have a responsibility to try to resolve it prior to trial.  If you don't, your silence could be interpreted by the court as a waiver of your right to proper disclosure.

 

 

Also:

 

Moreover, we note that if the timing of the disclosure prejudiced appellant, she had a ready remedy via a motion for continuance under Rule 56(f), Arizona Rules of Civil Procedure.  A.H. v. Arizona Property & Cas. Ins. Guar. Fund, 189 Ariz. 378, 384, 943 P.2d 738, 743 (App.1996).

 

Then there's the fact that a MSJ can be filed before disclosure is ever made.  Again, one would utilize 56(f).
 

 

Considering we now know that CACH does not have their own affidavit, I would be surprised if they try to file an MSJ.

 

 

An affidavit in support of summary judgment is not required.

 

56(b):

 

(1) A claimant may move for summary judgment with or without supporting affidavits:

Share this post


Link to post
Share on other sites

An affidavit in support of summary judgment is not required.

 

56(b):

 

(1) A claimant may move for summary judgment with or without supporting affidavits:

Understood, but since business records are required to be introduced by a custodian or other qualified witness, I don't see any way other than affidavit to introduce them in an MSJ.

 

I suppose there is the option of claiming the documents aren't hearsay or business records.

Share this post


Link to post
Share on other sites

The court (at least in AZ) is much more interested in facts than technical games. I have seen nothing here to indicate anything other than that the OP defaulted on a CC and the debt was sold to CACH.

 

If those are the facts of this case, then a settlement call seems in order. If they won't play ball, you can always risk continuing.

 

I suspect they will file MSJ and invoke Parker, as the supplied affidavit uses all of the Parker language. Was an affidavit from CACH (which would say the same thing) specifically requested by the defense in discovery? This goes back to what Harry found about both sides having a responsibility to handle the case. It will most likely be argued that the defendant found the initial affidavit sufficient.

Share this post


Link to post
Share on other sites

 

The mandatory exclusion of evidence in cases where no “good cause” has been shown for the failure to timely disclose can at times bring about results that are unduly harsh, overly punitive, and inconsistent with the purposes of the new rules.

. . . .

We never intended such a result. In adopting the amendments to the rules, it was not our desire that substantive legal rights should automatically be forfeited on the basis of harmless human failings. We believe the interpretation and application of Rule 26.1© should be accorded a “common sense” approach similar to that recently espoused in Bryan v. Riddel, 178 Ariz. 472, 277, 875 P.2d 131, 136 (1994). Although it is true that “[t]he purpose of the mandatory exclusionary sanction is to put ‘teeth’ into the disclosure requirements of Rule 26.1(a),” id. at 476, 875 P.2d at 135, and to deter parties from practicing “litigation by ambush,” it was not meant to be a weapon of destruction in the hands of “win at all costs” litigators.

Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995)

Share this post


Link to post
Share on other sites

Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995)

This is a case of untimely disclosure, not failure to disclose.

 

I can't think of a better description of a JDB attorney as a "win at all costs" litigator.   They litigate their cases in a precise strategy that is in accordance with their prescribed business model.  Any non-disclosures and discovery ambiguity is part of their method.  Unfortunately, this method works well with the 95% rubber-stamped default judgments.  The upside to those who defend these actions, is that we can employ strategies to disrupt/preempt/exploit the opposing parties tactics.  This is what attorneys do everyday.  The legal system is one big technicality, why do you think there are hearings on what the word "is" is?

 

If those are the facts of this case, then a settlement call seems in order. If they won't play ball, you can always risk continuing.

 

 

I'm only posting to offer suggestions to the OP.  If she wants to settle, then she should settle.  If she wants to fight, then offer opinions to assist in that endeavor.  Instead, it seems that all I see is how doomed the people in AZ are in contesting these cases.  I rarely see any creative thinking or alternative strategies, only bickering on the nuances of how harry & goody lost their cases, and somehow it's the end all, be all of court cases.

 

I would be surprised if they try to file an MSJ. They disclosed 5 potential witnesses here: http://www.creditinf...gain/?p=1314701(rogg #21) If they go to trial and bring in one of these witness, then what?

 

 

They can get an affidavit from any of those 5 potential witnesses, and use it in their MSJ.  If it goes to trial and they bring in their witnesses, then you show that the witness is unqualified to attest to the creation, accuracy, storage, transfer, and authenticity of the records.  Just because they show up at trial doesn't mean they are going to win, but at least you get a fair shake (arguably) in cross-examining the witness and defending yourself.

 

Moreover, we note that if the timing of the disclosure prejudiced appellant, she had a ready remedy via a motion for continuance under Rule 56(f), Arizona Rules of Civil Procedure.  A.H. v. Arizona Property & Cas. Ins. Guar. Fund, 189 Ariz. 378, 384, 943 P.2d 738, 743 (App.1996).

 

Then there's the fact that a MSJ can be filed before disclosure is ever made.  Again, one would utilize 56(f).

 

Again, there is a difference between "untimely" and "non" disclosure.  If a MSJ was filed without disclosure or discovery, then you could invoke 56(f).  If disclosures & discovery have already taken place, then they file a MSJ using an undisclosed witness/evidence, then that is called litigation by surprise and should be properly excluded.  An MSJ is a trial by paper (so to speak), so why invoke 56(f) (besides isn't this case in Justice court?). Instead, why not move to strike the undisclosed information pursuant to rule 121{c} & rule 127(d).

 

I have to apologize to the OP for these tangents. 

Share this post


Link to post
Share on other sites

 Instead, it seems that all I see is how doomed the people in AZ are in contesting these cases.  I rarely see any creative thinking or alternative strategies, only bickering on the nuances of how harry & goody lost their cases, and somehow it's the end all, be all of court cases.

 

I've never lost, yet my lawyer agrees with Harry. There is now a road map in AZ that makes fighting and winning these cases difficult to the point of futility.

 

Is it your contention that CACH did not buy the OP's defaulted debt from BoA/FIA?

Share this post


Link to post
Share on other sites

 

I'm only posting to offer suggestions to the OP.  If she wants to settle, then she should settle.  If she wants to fight, then offer opinions to assist in that endeavor.  Instead, it seems that all I see is how doomed the people in AZ are in contesting these cases.  I rarely see any creative thinking or alternative strategies, only bickering on the nuances of how harry & goody lost their cases, and somehow it's the end all, be all of court cases.

 

 

They can get an affidavit from any of those 5 potential witnesses, and use it in their MSJ.  If it goes to trial and they bring in their witnesses, then you show that the witness is unqualified to attest to the creation, accuracy, storage, transfer, and authenticity of the records.  Just because they show up at trial doesn't mean they are going to win, but at least you get a fair shake (arguably) in cross-examining the witness and defending yourself.

 

 

I have to apologize to the OP for these tangents. 

 

 

 

 

 

Arbitration.

 

When dealing with a JDB in these states that rubber stamp judgements, as @Goody_Ouchless & @Harry Seaward are trying to point out to help OP, Arbitration is the creative, out of the box, alternative to use.

 

When OP and others insists on fighting it out in the courts that have shown, time and again, do not follow the conventional rules of evidence, then explaining the hurdles and road blocks they face are something the OP should know about. I don't see giving good information and facts on how the courts operate anything near "bickering" about "nuances" of one person's particular case that they lost.  Sometimes when events repeat themselves in a pattern, that is something that needs to be taken in consideration and, yes, that information can be the "end all be all" of all cases in those courts.

  • Like 1

Share this post


Link to post
Share on other sites

I've never lost, yet my lawyer agrees with Harry. There is now a road map in AZ that makes fighting and winning these cases difficult to the point of futility.

 

Is it your contention that CACH did not buy the OP's defaulted debt from BoA/FIA?

My contention is that all possible angles need to be employed in defending these actions.  I realize AZ has had a rough go of things in Justice Court; however, there is always a way, be it a particular strategy, technicalities, the law etc...that can be used to prevail.  I understand that it is not guaranteed, but if you (we) are going to defend ourselves, then it's time to come up with ways to do it.  Browbeating new AZ posters with ample amounts of negativity is simply unnecessary, especially when the "Caveat to all AZ debt cases, is most likely you're going to lose, so look at all possible alternatives" has been hammered time and time again.  If people want to defend themselves, then try to give them the ammo to do it, and don't pound the rest of us trying to help into the ground because, roadmaps and feelings of times past.

 

Congrats on your win btw.

Share this post


Link to post
Share on other sites

The problem is that bad things happen when members, like the OP, don't understand that they owe money to a debt buyer. My successes came once I realized that I was not a victim of CACH, or Midland or Cavalry but that they (and the original creditors) were victims of me.

 

Again, unless I missed a page, the OP knows the debt is accurate and she should understand that CACH owns it. Now, if she wants to go to court and play discovery games and try to game the system, that's fine - but she shouldn't be surprised when the judge says "we all know you owe the money."

 

What Harry is saying (and I agree completely) is that she should weigh any settlement offer against the odds of this thing becoming a judgment that could be three times the amount of the original debt - let alone the time and stress of court and an appeal.

  • Like 2

Share this post


Link to post
Share on other sites

@Coffee_before_tea

 

If people want to defend themselves, then try to give them the ammo to do it, and don't pound the rest of us trying to help into the ground because, roadmaps and feelings of times past.

 

Of course, members want to provide defendants with the ammo to defend themselves.  However, we also need to provide "full disclosure".  

While absolute negativity is not good, neither is absolute confidence or assurance that a JDB will be defeated.   I''m not asserting that you have made such claim.  But it has been made by other members.

 

A poster requesting help deserves to understand what he's up against in order to make an informed decision that's right for him.  He deserves to know how his courts have ruled on various issues so that he can decide if he should fight or settle.   While some posters will choose to fight to the end, others may choose to settle because they don't have the time needed to devote to their defense or are not willing to risk garnishment of wages or liens upon assets.

So, while you don't want to be pounded for offering ammo, others don't want to be pounded for presenting the argument(s) that could be offered by a JDB/OC. 

In regard to disclosure, whether untimely or not disclosed at all, the AZ have made this ruling:

 In the context of addressing appropriate sanctions for violations of procedural rules for civil litigation, our supreme court has encouraged trial courts to apply those rules so as "to maximize the likelihood of a decision on the merits."  Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995).

Yes, Allstate was about untimely disclosure.  But the ruling itself is about procedure.  It doesn't provide a separate sanction for untimely disclosure vs. a failure to disclose.  Whether the disclosure is untimely or not disclosed, the court has discretion to determine whether the failure would affect the outcome.

Then, you have AZ Rule 56(b).  An MSJ can be filed right after the defendant answers the complaint.  That means it can filed before disclosure is due.   If the failure to disclose the name of an affiant in an affidavit in support of summary judgment would absolutely preclude the affidavit, why would a party be allowed to file an MSJ before disclosure?   That, in itself, proves that the failure to disclose is not fatal to an MSJ.  

The attachment of an affidavit in support of summary judgment would show the name of the witness.  Therein, lies Rule 56(f).

I agree with you that one should object to the failure to disclose the name of an affiant in an affidavit in support of summary judgment.  But, in all fairness, it must disclosed that it's not necessarily a deterrent to the court's granting the MSJ in favor of the JDB due to the fact that the defendant can utilize Rule 56(f).

  • Like 1

Share this post


Link to post
Share on other sites

however, there is always a way, be it a particular strategy, technicalities, the law etc...that can be used to prevail. I understand that it is not guaranteed

Ok, is there always a way or is it not guaranteed? These two statements are explicitly mutually exclusive.

The correct answer, of course, is that not only is it not guaranteed, not prevailing is the far more likely possibility.

Share this post


Link to post
Share on other sites

Here, the issue is whether the trial court incorrectly allowed Plaintiff’s witness to testify when Plaintiff failed to disclose the witness’ name prior to trial. Disclosure at Justice Courts is governed by the Justice Court Rules of Civil Procedure, (JCRCP). Defendants asserted a party is not permitted to use a witness at trial if the witness was not disclosed prior to the trial. Defendants cited JCRCP Rule 127(d) as authority for this position. Rule 127(d) JCRCP, however, does not support Defendants’ claim. The rule provides a remedy when disclosure is incomplete. It allows a party or attorney to seek court assistance. Rule 127 states—inrelevant part:

a. General rule. A party may file a motion with the court requesting a court order that requires another party or a person to disclose information or to provide discovery responses in the following situations: (1) If a party fails to disclose information that is required under Rule 121; to appear at a deposition under Rule 123; to answer a question at a deposition, or to designate a knowledgeable representative under Rule 123©; to answer an interrogatory under Rule 124; to respond to a request for production or to permit entry upon property under Rule 125; or to appear for a medical examination under Rule 122(f)(6). (2) If a person who is not a party fails to obey a subpoena that requires the nonparty to appear as a witness at a deposition under Rule 123, or to answer a question at a deposition, or to designate a knowledgeable representative under Rule 123©. A failure to disclose, appear, answer, designate, or respond includes evasive or incomplete disclosures, appearances, answers, designations, or responses. If a party or person fails to comply with an order that requires disclosure of information or providing discovery responses, upon motion the court may impose against that party or person a penalty specified in Rule 127(d).The court may also assess an appropriate penalty against any party or attorney who has engaged in unreasonable, groundless, abusive or obstructionist conduct during a deposition, as provided in Rule 123(d); or against a party or attorney who has denied requests for admissions without a reasonable basis, as provided by Rule 126(d). [ARCP 37(a), (B)]

b. Discovery motion filed by an attorney. An attorney who files a motion under this rule against a party must certify in the motion that he or she has been unable to satisfactorily resolve the matter after a good faith attempt to personally consult with the opposing party. [ARCP 26(g), 37(a)]

c. Failure to provide electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under this rule on a party or a person for failing to provide electronically stored information that has been lost as a result of the routine, good-faith operation of an electronic information system. [ARCP 37(g)]

d. Penalties.The penalties that a court may impose include ordering that certain witnesses or exhibits may not be used at trial; that a particular fact is deemed established; that a pleading or a claim or defense in a pleading be stricken; or that the party be assessed the reasonable attorneys' fees, costs, and expenses of a party who was harmed by inaccurate, untimely, or lack of disclosure or discovery. The court may also impose any other reasonable civil penalty, including a monetary penalty, which is appropriate under the circumstances. [ARCP 37(a), (B)]

Neither party sought to enforce any alleged disclosure or discovery violation despite having been apprised of potential problems with discovery in 2012. Indeed, the same problems with lack of specificity in identifying the Plaintiff’s witness’ identity and Defendants’failure to timely file a disclosure statement plagued this case in the earlier proceeding. JCRCP Rule 121(a)(1) requires the identification of witnesses a party intends to call. The rule states:

1) A list of trial witnesses. This list must include the names, addresses, and telephone numbers of the witnesses the party will call if the lawsuit goes to trial, and a brief description of what the party expects the witness will say. “Witness” is defined in Rule 137(a) as “a person, including a party, who provides sworn testimony during a lawsuit.” If a witness is going to offer expert testimony, the list must include the expert’s qualifications, and a summary of the opinions of the expert.

Defense counsel was within his rights to demand Plaintiff’s counsel disclose the name and identity of its witness. If Plaintiff’s counsel changed its listed witness, it had a duty to supplement its disclosure statement. JCRCP Rule 121(B) mandates:

Disclosure of new information.If a party discovers new or different witnesses, documents, or other information that will be used at trial, the party has a duty to promptly provide to the other parties: (1) a statement containing the additional information or witness information, or (2) copies of the new documents. The duty to make the disclosures required by this rule is a duty that continues until the lawsuit is over. [ARCP 26.1(B)].

The potential penalties for failing to meet this requirement are detailed in JCRCP Rules 121© and 127(d). JCRCP Rule 121© states:

c. Penalties for failure to disclose.

Disclosures by a party must include enough information that a witness who is called or an exhibit that is presented at trial will not surprise the other parties. The court may penalize any partywho fails to disclose or who fails to timely disclose witnesses, exhibits, or information, or who discloses inaccurate information. Penalties that the judge may impose are provided in Rule 127(d) [ARCP 37(a), ©, (d).]

This rule does not require a judge to impose penalties although it allows a judge to do so if the judicial officer believes the penalties arewarranted. Similarly, Rule 127(d) utilizes the term “may” and is permissive. As stated in State v. Lewis, 224 Ariz. 512, 233 P.3d 625, ¶ 17 (Ct. App. 2010) aff'd, 226 Ariz. 124, 244 P.3d 561 (2011):

A general principle of statutory construction is that the use of the word ‘may’ generally indicates a permissive provision; in contrast, the use of the word ‘shall’ typically indicates a mandatory provision.

The rule allows the trial court to fashion an appropriate remedy for a discovery or disclosure problem but does not mandate the trial court impose a particular remedy or any sanction. In this case, although Defense counsel argued there was a discovery violation, Plaintiff’s counsel asserted she made timely disclosures of the information she had. The trial court did not impose any penalty. Because (1) the rule is written in permissive rather than mandatory language; and (2) the trial court chose to forego implementing any sanctions, this Court has no basis for challenging the trial court’s decision to allow Mr. Grayson to testify.

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/112013/m6054353.pdf

Share this post


Link to post
Share on other sites
The rule provides a remedy when disclosure is incomplete.

 

 

The rule allows the trial court to fashion an appropriate remedy for a discovery or disclosure problem but does not mandate the trial court impose a particular remedy or any sanction.

 

 

And there it is.  Whether or not the failure to disclose has prejudiced the defendant or would prevent a judgment on the merits is for the court to decide. 

 

So far, nothing concrete has been offered to deter a JDB's MSJ in AZ.    By "concrete", I'm referring to no documentation, no affidavit that conforms to Rule of Evidence 803(6), contractions in complaint and the documentation and/or affidavit.  

 

Recently, I have suggested that it might be necessary to depose a witness before a motion for summary judgment.  In the event a witness was not disclosed before a MSJ was filed, one can utilize Rule 56(f).

Share this post


Link to post
Share on other sites

In the this case the "sanction" take the form of:

 

Judge: "Mr CACH, please fetch an in-house affidavit."

Mr. CACH: "Ok."

 

None of it changes anything unless @Coffee_before_tea is suggesting that the content of an affidavit from CACH will blow this case wide open. 

Share this post


Link to post
Share on other sites

Hello all,

 

I do appreciate the help I receive on this forum, and I'm grateful for anyone who has taken the time to offer their opinions, advice, and help.  I don't hold anyone here responsible for the outcome of my case.  It's up to me to make the best decisions I can  based on my own research and studying of my laws here in AZ. 

 

Here is what I don't understand:

 

CACH provided an affidavit from the OC.  From what I have read, that document is hearsay unless they have an employee of the OC present to testify.  They can not have one of their witnesses testify about the documents that they received from FIA Card Services.  

 

CACH only listed their employees as witnesses, but that ultimately leaves them nothing.  If I challenge the admittance of their testimony based on the hearsay rule (even with the business records exception) it would be unlawful for any judge to admit their testimony.  What would they be testifying about, exactly? 

 

What has this JDB provided that has everyone believing that I'm doomed?  I don't understand.  There was no affidavit from CACH.  

 

I received billing statements from the OC - hearsay 

I received an affidavit from the OC - hearsay

I received a Bill of Sale - one page with signatures

I received an attached Schedule with my name on it - part of an account number and dollar amount

 

 

So, please help me understand why this case is so different from my last case.  I was reminded over and over again last time about the hearsay rule.  

 

Please know I'm respectfully asking for input.  I don't know what I don't know, so all of your input is appreciated, although I may need you to speak (write) in as clear terms as possible.  I often feel like I'm reading parables on here :-)  I just need it straight.  Do judges just ignore the hearsay rule here and screw the pro se litigants?  

 

Thank you all!

 

Oh, AND - if a MSJ is filed, the judge will consider the affidavit in his judgement, correct?  So, how do I deal with that?  In my opposition to summary judgement do I then bring up the hearsay rule, or am I screwed because I didn't challenge it from the start!??  

Share this post


Link to post
Share on other sites

The problem is that bad things happen when members, like the OP, don't understand that they owe money to a debt buyer. My successes came once I realized that I was not a victim of CACH, or Midland or Cavalry but that they (and the original creditors) were victims of me.

 

Again, unless I missed a page, the OP knows the debt is accurate and she should understand that CACH owns it. Now, if she wants to go to court and play discovery games and try to game the system, that's fine - but she shouldn't be surprised when the judge says "we all know you owe the money."

 

What Harry is saying (and I agree completely) is that she should weigh any settlement offer against the odds of this thing becoming a judgment that could be three times the amount of the original debt - let alone the time and stress of court and an appeal.

Can someone offer me input about settlements - how to go about them, when to do it, how much to offer, etc?  Is it possible to settle and get certain items removed from your credit report?  I have read that you have to be careful about the settlement offer, but really don't know much else.

Share this post


Link to post
Share on other sites

So, please help me understand why this case is so different from my last case. I was reminded over and over again last time about the hearsay rule.

What's different is State v. Parker from 2013 and the way the appellate court is applying this ruling to JDB cases. She is ruling that a CACH (or any JDB) employee can testify about FIA/BofA (or any OC) records.

I personally think one of two things will happen. 1.) CACH will come up with their own affidavit to submit with their MSJ, or 2.) CACH will skip the MSJ and just see you in court with a live witness.

#1 seems unlikely to me because it doesn't seem they have yet disclosed a second affidavit. They could supplement their disclosure to include the second affidavit, but it seems like if this was their plan they would have disclosed it by now.

Share this post


Link to post
Share on other sites

I have read that you have to be careful about the settlement offer, but really don't know much else.

Getting a dollar amount from them is not where you have to be careful. It's as simple as picking up the phone and asking what's the least they will take to settle the debt in full. If you're comfortable with that number then they send you a settlement agreement. That's where you have to be careful but really you just have someone look it over before you sign it and send it back. It might be worth $50 to have a lawyer look at it for you.

Share this post


Link to post
Share on other sites

What's different is State v. Parker from 2013 and the way the appellate court is applying this ruling to JDB cases. She is ruling that a CACH (or any JDB) employee can testify about FIA/BofA (or any OC) records.

I personally think one of two things will happen. 1.) CACH will come up with their own affidavit to submit with their MSJ, or 2.) CACH will skip the MSJ and just see you in court with a live witness.

#1 seems likely to me because it doesn't seem they have yet disclosed a second affidavit. They could supplement their disclosure to include the second affidavit, but it seems like if this was their plan they would have disclosed it by now.

Would the reason for a second affidavit be solely for the purpose of filing a MSJ? Otherwise, they can't really request for MSJ?   I'm slow, in case you have not noticed.  I am trying to spend more time on here reading other cases/threads.... it is helping.

 

I have another pretrial conference schedule (by request of the JDBA) - why on earth would they schedule a second one?  Well, anyway, is it too late to settle after a MSJ has been filed?  I need to know this and am having a hard time finding answers.  

Share this post


Link to post
Share on other sites

What's different is State v. Parker from 2013 and the way the appellate court is applying this ruling to JDB cases. She is ruling that a CACH (or any JDB) employee can testify about FIA/BofA (or any OC) records.

I personally think one of two things will happen. 1.) CACH will come up with their own affidavit to submit with their MSJ, or 2.) CACH will skip the MSJ and just see you in court with a live witness.

#1 seems unlikely to me because it doesn't seem they have yet disclosed a second affidavit. They could supplement their disclosure to include the second affidavit, but it seems like if this was their plan they would have disclosed it by now.

Ok - I guess I better go read up on that one...

Share this post


Link to post
Share on other sites

I've never lost, yet my lawyer agrees with Harry. There is now a road map in AZ that makes fighting and winning these cases difficult to the point of futility.

Is it your contention that CACH did not buy the OP's defaulted debt from BoA/FIA?

What have they given me that shows proof that they have?  They have given me one page of a Bill of Sale - with discrepant dates.  What have they given me that shows that they own the debt?

Share this post


Link to post
Share on other sites

Would the reason for a second affidavit be solely for the purpose of filing a MSJ? Otherwise, they can't really request for MSJ?   I'm slow, in case you have not noticed.  I am trying to spend more time on here reading other cases/threads.... it is helping.

 

I have another pretrial conference schedule (by request of the JDBA) - why on earth would they schedule a second one?  Well, anyway, is it too late to settle after a MSJ has been filed?  I need to know this and am having a hard time finding answers.

My thoughts on the second affidavit is just a theory.  I'm not saying that they cannot prevail on MSJ without it.  Just that I think it could help their case and it would take them 5 minutes to put one together.  Which, frankly, makes it all that much more strange that they didn't include one yet.

 

I have no idea why they asked for a second pre-trial.  Possibly to see if they could get more records. (Did the additional things they provided, statements, etc come after they requested the second pre-trial?)  Possibly to see if you would settle.  Possibly to see if you would flinch or make a mistake.

 

Parties can settle any time.  It even happens a lot the day of trial.

 

 

 

Is it your contention that CACH did not buy the OP's defaulted debt from BoA/FIA?

What have they given me that shows proof that they have?  They have given me one page of a Bill of Sale - with discrepant dates.  What have they given me that shows that they own the debt?

Paragraph 4 of the FIA affidavit (i.e. testimony provided under penalty of perjury) shows an account was opened in your name on date A, there was an agreement that you would repay the debt, a balance of $xxxx.xx was created and left unpaid which went to charge-off status on date B and the debt was sold to CACH on date C.  Paragraph 5 says CACH has inherited all rights to collect the debt.

http://www.creditinfocenter.com/community/topic/324767-won-before-but-here-we-go-again/?p=1307575

With sworn testimony to this level of detail, I can't see why a bill of sale is necessary even though they provided one.  In fact, I believe this affidavit is more effective in proving the sale of a specific account than would be the typical bill of sale we usually see on these cases.  Now factor in that you have not said this is not your debt and that CACH's burden of proof is only that their version is more likely than your version (which is what, exactly?).  So if proving a debt exists and that they own the debt is all you ask of CACH, I say they have met their burden of proof of these claims.  If it's your claim that the FIA affiant cannot lay foundation for his/her claims, then you have a right to depose this person (at your expense) to explore the basis for their claims.  If you don't exercise this right it's assumed you do not contest their ability to make the claims they have made.

 

 

Now, CACH has produced 1.) a contract, 2.) billing statements with your name and address showing charges and payments, 3.) a bill of sale and assignment of loans and 4.) an affidavit of sale and certification of debt.  They have not offered testimony from a custodian or qualified witness about these specific records.  If the FIA affidavit did not exist, CACH would need testimony/affidavit from their own custodian, but in my opinion, the FIA affidavit renders the additional records (and accompanying affidavit from CACH) unnecessary.  But even if a CACH affidavit is needed, as I said earlier, it would take them 5 minutes to put one together for a MSJ.  And if they go to trial, their live witness will eliminate the need for an affidavit from them.

 

I went back and tried to follow the logic of the discrepant dates but I didn't get it.  Can you briefly summarize the discrepancy?  I know you are putting a lot of weight on the dates.  This could be a problem for them, especially since the dates appear in sworn testimony, but do you have any absolute reason to believe the court won't accept that the dates given in the affidavit are correct and an explanation from CACH that the dates that appear elsewhere are clerical error?

Share this post


Link to post
Share on other sites

I agree with @Harry Seaward on the affidavit provided. Usually we them from the buyer, which could make them questionable as to motive. This one is from the seller and leaves no doubt, in my mind, about the true state of this account.

 

The second conference could be a ruse - we were hit with MSJ while waiting for a third mediation session. It could also be to talk settlement.

 

The way to approach settlement is to call ask what they'll take to save everyone time and money. You try to remain calm, let them know that you've won these cases before, so it's not like you're intimidated, etc. When they give you a number you may want to counter lower and see where it goes.

 

In my last case they offered 50% at the mediation hearing. In others my lawyer has been negotiating for months. It may all come down to how busy they are.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.