fight2win

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

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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.

I never even thought about the seller's motive.  It doesn't make the statements infallible, but by the time the seller creates the affidavit, they have already gained (or will soon gain) a fixed amount from the JDB so there is no motive to knowingly fabricate false testimony.

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The more I think about this case, the more I see it as one that will end at MSJ. If the MSJ granted, then it's game over. If it is denied, then it becomes a question of witnesses, which may be more trouble to CACH than the debt is worth.

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From what I have seen over the last several months, I wouldn't gamble on them not bringing in a witness.  I don't know how CACH operates, but Cavalry has their own witnesses that reside right here in AZ.  The cost for them to appear a witness is about $5 in gas.

 

I suppose the witness address info in the disclosure statement could be telling assuming they didn't just use the local attorney's address.

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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.

 

 

 

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?

Harry, 

 

The affiant claims that date of sale of the account was on one day (I keep making dates up - let's say May 19, 2014).  The Bill of Sale states the "Agreement" was dated on May 15, 2014.  Why would there be two different dates for the "Agreement"?  Obviously, the affiant was looking at SOMETHING when she swore to the accuracy of her info - so I think at least challenging that is worth a shot, don't you?  Maybe she made a clerical error.  If so, that definitely challenges the trustworthiness of her testimony.

 

Aren't these the types of errors that you suggest pro se litigants to look out for.  I've seen in other threads where you suggest that the defendant look for any dates, amounts, etc.  Even if her accounting is off by a cent, that is an error worth challenging.

 

Additionally, I've received  two documents from the Plaintiff that reference the wrong court - these are all mistakes that challenge trustworthiness.  When you ask me if I "know" that the courts won't accept the dates - of course I don't.  But all of court is a gamble - even with a strong case.  I don't think I should allow fear to dictate my decision.  I feel that because my suit is for a fairly low amount, it may be worth my time to fight.  I'm still on the fence.

 

Why do you believe that a simple affidavit of testimony from the OC is going to hold so much weight, Harry?  I have said repeatedly, but it falls on deaf ears - my case last time ALSO had an affidavit from the OC - and the other attorney dropped the suit.  If he KNEW he could file an MSJ and win because his case was so strong based on that piece of paper, why didn't he?  Maybe they know that this judge doesn't like JDB's and if it goes to trial and a judge sees a defendant actually making the effort to fight back - they're screwed.  I don't know.  But everyone on my thread seems 100% certain that A) I'm getting a MSJ in a mailbox, and B) I'm screwed and losing if I fight.

 

You could be right, and I will be sure to post my outcome with my tail between my legs if you are correct.  :) I do believe you are trying to offer me helpful advice - and I appreciate your time and input greatly.  I'm just wondering what happened to asking for the Forward Flow Agreement (that they don't and won't give up) - or fighting with the defense that they purchase accounts without warranty, etc.?  Why do these defenses no longer apply?  Why can't I see the "Agreement" - if the JDB bought my alleged account, don't I, as the defendant, have the right to see the fine print of that document?  I don't understand.  

 

Yes, maybe that means that they DIDN'T necessarily purchase flawed accounts, but maybe that also means that they did!  It's still an argument and one worthy of including in my opposition for summary judgement.  I have a few things I can put on there if need be.  And like you said before to others, try and get a face to face with the judge to discuss these issues.

 

I did find this statement that you made on another thread "Don't get me wrong. I once was blinded by idealism and propegated info that I wanted to believe was true. I have since found that our courts here have a lot of latitude with the interpretation and application of our rules here. I don't want to see someone else get blindsided by their faith in what a court "must" do."

 

I believe there is a lot of wisdom in that statement - so I am "getting" what you're trying to communicate.  But if I decide to settle, I want to be clear on all these other little issues.  I want to feel like I made the right decision overall.  

 

Thanks - again.

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@fight2win - it's clear you are struggling with what to do.

 

I had a similar debate with another AZ member (HotInAZ) - we were both sued by same plaintiff for amounts roughly 10 times larger than yours. She fought and won while I am settling. For her the principal was more important than the risk. For me, it's about getting these things resolved for a figure I can live with.

 

As for your questions, Harry has provided ample evidence that Arizona courts are more interested in facts than deciding cases on clerical errors and legal tricks. For example, many people on this board win in California using techniques that would not work here. An example of how this cuts both ways, AZ RCP says you have 20 days to answer a complaint. I have answered a couple of my cases on the day of default judgement - in one case six months after being served. While a date discrepancy and "fine print" sound like "smoking guns," in AZ they don't carry much weight.

 

Of course, if you decide to fight (and I agree that for a small amount it might be worth it for entertainment value), you are correct to challenge everything.

 

Can you give more detail on the "wrong court?" If they sued you in the wrong Justice Court then that can be grounds for dismissal.

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@fight2win - it's clear you are struggling with what to do.

 

I had a similar debate with another AZ member (HotInAZ) - we were both sued by same plaintiff for amounts roughly 10 times larger than yours. She fought and won while I am settling. For her the principal was more important than the risk. For me, it's about getting these things resolved for a figure I can live with.

 

As for your questions, Harry has provided ample evidence that Arizona courts are more interested in facts than deciding cases on clerical errors and legal tricks. For example, many people on this board win in California using techniques that would not work here. An example of how this cuts both ways, AZ RCP says you have 20 days to answer a complaint. I have answered a couple of my cases on the day of default judgement - in one case six months after being served. While a date discrepancy and "fine print" sound like "smoking guns," in AZ they don't carry much weight.

 

Of course, if you decide to fight (and I agree that for a small amount it might be worth it for entertainment value), you are correct to challenge everything.

 

Can you give more detail on the "wrong court?" If they sued you in the wrong Justice Court then that can be grounds for dismissal.

My responses to my Roggs and RFAs were sent with the wrong court referenced on the top of their pleading paper.  Not an issue that affects the facts/details of the case.  

 

I am hearing what you two are saying, but it's almost as if you are instructing anyone in AZ who has been sued by a JDB to settle.  Every court and every situation is different.  Again, I continue to ask why they didn't enter an MSJ last time if their "affidavit" from the OC was going to basically decide the case.  This is the same law firm.  But once this suit is done, no matter the outcome, I know I will never enter into these types of situations again. I'm out of the game - period.  

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@fight2win

 

@@Harry Seaward and @Goody_Ouchless are not instructing you to settle.  They're providing you with positive and negative details so that you can make an informed decision that's best for you.   You deserve to see both sides of the coin.

 

In regard to the FIA affidavit:  OC affidavits are very compelling to a court because they come from the originator of the account who paid merchants for your charges, accepted your payments, and created the records.  

 

Here's what I think is good.   In my opinion, the FIA affidavit provided to you does not authenticate any records.   The affiant doesn't claim that the records were created by FIA in the regular course of business.  

 

The date discrepancy may not be a big deal, but as you said, bring up trustworthiness.   The affiant was either looking at a different record and did not review the bill of sale, OR more likely, someone else who was looking at a different record wrote the affidavit, and she merely signed it.   If the judge were to determine that the discrepancy in the dates was not a problem then, while the affidavit doesn't authenticate the business records, it would serve to establish that your account was sold to CACH. 

 

I would be very surprised if the JDB filed a MSJ without its own supporting affidavit attempting to authenticate the business records.

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I think part of the issue is that things have changed drastically in the past year. Plaintiffs are using a standard formula and the judge handling appeals of these cases is of the firm belief that affiants from debt buyer can attest to the accuracy of OC records.

 

Much has been made about disclosure and the lack of a CACH affidavit. I don't know if you follow the Jodi Arias case, but to give you an example of how AZ courts operate, the prosecution called a witness last week that had not been disclosed. The judge told the defense to take the guy in another room and question him for a few hours - then she let him take the stand. That was an undisclosed witness - sprung during trial - in a Capital Murder case. Do you really think an AZ Justice Court is going prevent a supplementary affidavit in a credit card case?

 

My suggestion is to call them yesterday to see if they are willing to make a deal - not to fold, but to have all of the facts at your disposal. 

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I think part of the issue is that things have changed drastically in the past year. Plaintiffs are using a standard formula and the judge handling appeals of these cases is of the firm belief that affiants from debt buyer can attest to the accuracy of OC records.

 

Much has been made about disclosure and the lack of a CACH affidavit. I don't know if you follow the Jodi Arias case, but to give you an example of how AZ courts operate, the prosecution called a witness last week that had not been disclosed. The judge told the defense to take the guy in another room and question him for a few hours - then she let him take the stand. That was an undisclosed witness - sprung during trial - in a Capital Murder case. Do you really think an AZ Justice Court is going prevent a supplementary affidavit in a credit card case?

 

My suggestion is to call them yesterday to see if they are willing to make a deal - not to fold, but to have all of the facts at your disposal. 

IMO if they are willing to make a deal they don't believe they can win - whether it be by MSJ or in court.  IF they file these suits all the time, and if the affidavit from the OC truly holds so much weight, why would they not have already filed a MSJ?  If they can make a lot more money going that route, why accept settlement?

 

And once I inquire about settlement, doesn't that mean I'm saying I owe the debt?

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No - settlement discussions have nothing to do with admitting anything. Just say it's to save everyone time and effort. Besides, they already know you owe the debt - that's why they sued.

 

There are many reasons for them to settle - what if they win and you still don't pay? The time and effort to garnish your wages and empty your bank account takes time and money. Also, settling lets them get that money on the books and concentrate on the next suit. (My settlement has taken so long because the plaintiff is so busy suing people that their lawyer can't come to the phone - it's ridiculous.)

 

I have no doubt that an MSJ is coming, but I have been wrong before.

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IMO if they are willing to make a deal they don't believe they can win - whether it be by MSJ or in court.  IF they file these suits all the time, and if the affidavit from the OC truly holds so much weight, why would they not have already filed a MSJ?  If they can make a lot more money going that route, why accept settlement?

 

And once I inquire about settlement, doesn't that mean I'm saying I owe the debt?

 

Accepting a settlement means money now.  Winning a case only gets them the judgement.  They still have to work to garnish your wages or put a lien on your home, levy your account, etc.  And if you've structured yourself properly, they may never collect the judgement.

 

Settlement talks aren't admissable I believe, but it's basically saying, "How about I just pay $x amount to save both of us the time/cost/effort to continue fighting this"

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@fight2win

@Harry Seaward and @Goody_Ouchless are not instructing you to settle.

 

Actually, I was really leaning hard on settlement, and this is why:

 

I definitely don't want to receive a judgement over a $1,000.

 

@fight2win What did you mean by this? I took it to mean you definitely didn't want a judgment over $1,000. The only way to "definitely" avoid a judgment over $1,000 is to settle for a lesser amount. If you will notice, after you said this is when I really started hammering on settlement.

 

If you can live with a $2,500 judgment, by all means, forge on.  Bring up all of the dates and anything else that you think shows a lack of trustworthiness.  I haven't seen any smoking guns here so in my opinion, it could go either way for you.  I don't know your judge and maybe CACH dismissed last time because they know something about him we don't.  But if that's the case, you fought last time, they should know you're also going to fight this time so you have to ask yourself why they haven't dismissed yet.  It may be a different judge now (we just had JP elections in November and the new JPs took the bench Jan 1).

 

The point is none of us know anything about why anyone did anything before or what they will do this time around.  Anything short of settlement is a gamble.  If you can stand to lose, roll the dice.

 

I don't expect anyone to come back with their tail between their legs to tell me I was right.  I have no dog in this fight and I'll never criticize you for doing this or not doing that.  I formed my suggestions based on what I thought you needed the outcome to be.  Win or lose, I hope you come away with your head high knowing you did what was right FOR YOU.

 

P.S. I have said in my last few posts that I don't think CACH will file an MSJ.  But that doesn't mean you're out of the woods if they don't.  They can still take it to trial and bring in a live witness, in which case I think your fate will be all but sealed.

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Accepting a settlement means money now.  Winning a case only gets them the judgement.  They still have to work to garnish your wages or put a lien on your home, levy your account, etc.  And if you've structured yourself properly, they may never collect the judgement.

Maybe, but judgments in AZ can be renewed an indefinite number of times.  They can follow you to your death bed and beyond (your post-mortem estate is liable for your debts).

 

Also, "structuring yourself right" means you can never have a house, car or bank account in your name and you can never work for a company as a payroll employee.  So again, ask yourself if all of this headache is worth not even finding out if you can manage a settlement.

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Actually, I was really leaning hard on settlement, and this is why:

 

 

@fight2win What did you mean by this? I took it to mean you definitely didn't want a judgment over $1,000. The only way to "definitely" avoid a judgment over $1,000 is to settle for a lesser amount. If you will notice, after you said this is when I really started hammering on settlement.

 

If you can live with a $2,500 judgment, by all means, forge on.  Bring up all of the dates and anything else that you think shows a lack of trustworthiness.  I haven't seen any smoking guns here so in my opinion, it could go either way for you.  I don't know your judge and maybe CACH dismissed last time because they know something about him we don't.  But if that's the case, you fought last time, they should know you're also going to fight this time so you have to ask yourself why they haven't dismissed yet.  It may be a different judge now (we just had JP elections in November and the new JPs took the bench Jan 1).

 

The point is none of us know anything about why anyone did anything before or what they will do this time around.  Anything short of settlement is a gamble.  If you can stand to lose, roll the dice.

 

I don't expect anyone to come back with their tail between their legs to tell me I was right.  I have no dog in this fight and I'll never criticize you for doing this or not doing that.  I formed my suggestions based on what I thought you needed the outcome to be.  Win or lose, I hope you come away with your head high knowing you did what was right FOR YOU.

 

P.S. I have said in my last few posts that I don't think CACH will file an MSJ.  But that doesn't mean you're out of the woods if they don't.  They can still take it to trial and bring in a live witness, in which case I think your fate will be all but sealed.

I meant that I don't want to receive a judgement over a mere $1k.  Receiving a judgement when I could have settled for much less would sting.  So, I do appreciate all the advice on here.  And why would I potentially be facing $2500?  They were asking for a couple hundred in attorney's fees and then the $1kish amount.  Is there something else that gets added to that?  

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The initial legal fee they gave you is what they get for a default judgement. Since you are contesting the matter, their fees will go up. Harry discovered that these agreements are typically capped at $1500 (which is where they will be at MSJ.) 

 

Again, getting their settlement number could be all you need to make up your mind. In my situation, if they'll settle for what it would cost me to defend the case, it's a no brainer. On the other hand, if they want the whole thing then it's worth fighting.

 

I think you have the ability to get better terms since you've beaten them before and are not some novice.

 

EDIT: Another example of "facts" and how the laxity of AZ's rules work both ways can be found in G'Day's thread. His was the classic case of a Pro Se getting slapped around by the opposing lawyer and the judge. No matter how many "technical" errors he may have made, in the end he had the "facts" on his side.

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@fight2win

The affiant claims that date of sale of the account was on one day (I keep making dates up - let's say May 19, 2014).  The Bill of Sale states the "Agreement" was dated on May 15, 2014.  Why would there be two different dates for the "Agreement"?  Obviously, the affiant was looking at SOMETHING when she swore to the accuracy of her info - so I think at least challenging that is worth a shot, don't you?  Maybe she made a clerical error.  If so, that definitely challenges the trustworthiness of her testimony.

 

You're talking about two different things.  The "date of sale" is not the same as the "Agreement" and the way you have it here, it seems logical.  The parties come together on May 15 and say "Hey, let's do business.  Here's the terms of our Agreement. Let's put it in writing today and then we'll do the deal in 4 days".  Then 4 days later, the "sale" takes place.  (The "agreement" has to happen before the "sale".)  Maybe there were a dozen "sales" that took place over several days or weeks pursuant to the May 15 "agreement".  I don't see that this proves a discrepancy.  Someone else may see this differently.

 

 

Also, I touched on this a few posts back, but it's important.  If you are going to fight an MSJ or trial, you have to present an alternative theory that controverts CACH's claims. Saying "this doesn't prove anything" or "the dates are wrong" or "how does CACH know BofA's affiant was telling the truth?" isn't going to cut it.  You have to explain why it doesn't prove anything, or why the dates being wrong is significant, or introduce something that proves the affiant wasn't telling the truth.

 

I know it's disheartening to think about, but the consensus here is that the BofA affidavit is pretty damning.  The reason the affidavit is damaging is because it's sworn testimony.  If you do not come to terms with that fact, you're going to miss the forest for the trees.   You wanted to know what the affiant was looking at when she came up with such and such date.  CACH is not obligated to know the answer to this because the affidavit was made under oath and CACH and everyone else has sufficient grounds to rely on those statements unless it can be proven otherwise.  (This is THE reason affidavits exist.)  If you want to know what the affiant was using as her basis to make her statements, you have to ask HER.  The only admissible way to ask her is to depose her under oath. If you don't go to the source, the court has the discretion to accept that affidavit as uncontested testimony given under penalty of perjury (<--- this carries a lot of weight with the court).  So if the court accepts the statements in the affidavit as fact, CACH will have to resolve any discrepancies in their records if you raise them.  Of course they will say the dates in the affidavit are correct because those were made under penalty of perjury.  If there are dates that appear in other documents that are discrepant with those that appear in the affidavit, CACH will say those were clerical error because they weren't made under oath.  So then it's your job to argue it's something else or that the clerical error is fatal to their case.  The more official your evidence is, the greater your chances of swaying the court.

 

Look at it this way.  This is not a criminal proceeding and as such, the burden of proof is LOW in comparison.  BofA has sworn under oath that a debt with your name was created and that they sold it to CACH. You haven't said the debt is not yours so the only evidence before the court shows an account with your name was opened, used and sold to CACH.  You have to sell the court on the idea that someone else with your same name opened and used the account or that the testimony from the affidavit is false.  If you cannot swear under oath that this is not your account, all you're left with is to depose the BofA affiant to find a defect in her testimony.

 

The bottom line is the bar is low for CACH just as it is for you, but with the BofA affidavit, they have the upper hand right now and you HAVE to controvert their evidence with something the court can buy into.  Or you can hope CACH will make some catastrophic error or decide they won't want to pursue it.

 

P.S. I suspect you have been getting contacted via PM from people telling you I and everyone else that shares my view are wrong.  You are certainly welcome to follow their advice, but you should ask yourself why none of them can back up their claims with Arizona case law.  I and others have posted ruling after ruling that show why we believe what we do.  We don't just make this stuff up for fun.   Of course there can be only one outcome and no one knows what it will be.  To that end, you should weigh all of the advice you are being given and consider what's at stake for YOU in each scenario.

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@fight2win

 

You're talking about two different things.  The "date of sale" is not the same as the "Agreement" and the way you have it here, it seems logical.  The parties come together on May 15 and say "Hey, let's do business.  Here's the terms of our Agreement. Let's put it in writing today and then we'll do the deal in 4 days".  Then 4 days later, the "sale" takes place.  (The "agreement" has to happen before the "sale".)  Maybe there were a dozen "sales" that took place over several days or weeks pursuant to the May 15 "agreement".  I don't see that this proves a discrepancy.  Someone else may see this differently.

 

 

Also, I touched on this a few posts back, but it's important.  If you are going to fight an MSJ or trial, you have to present an alternative theory that controverts CACH's claims. Saying "this doesn't prove anything" or "the dates are wrong" or "how does CACH know BofA's affiant was telling the truth?" isn't going to cut it.  You have to explain why it doesn't prove anything, or why the dates being wrong is significant, or introduce something that proves the affiant wasn't telling the truth.

 

I know it's disheartening to think about, but the consensus here is that the BofA affidavit is pretty damning.  The reason the affidavit is damaging is because it's sworn testimony.  If you do not come to terms with that fact, you're going to miss the forest for the trees.   You wanted to know what the affiant was looking at when she came up with such and such date.  CACH is not obligated to know the answer to this because the affidavit was made under oath and CACH and everyone else has sufficient grounds to rely on those statements unless it can be proven otherwise.  (This is THE reason affidavits exist.)  If you want to know what the affiant was using as her basis to make her statements, you have to ask HER.  The only admissible way to ask her is to depose her under oath. If you don't go to the source, the court has the discretion to accept that affidavit as uncontested testimony given under penalty of perjury (<--- this carries a lot of weight with the court).  So if the court accepts the statements in the affidavit as fact, CACH will have to resolve any discrepancies in their records if you raise them.  Of course they will say the dates in the affidavit are correct because those were made under penalty of perjury.  If there are dates that appear in other documents that are discrepant with those that appear in the affidavit, CACH will say those were clerical error because they weren't made under oath.  So then it's your job to argue it's something else or that the clerical error is fatal to their case.  The more official your evidence is, the greater your chances of swaying the court.

 

Look at it this way.  This is not a criminal proceeding and as such, the burden of proof is LOW in comparison.  BofA has sworn under oath that a debt with your name was created and that they sold it to CACH. You haven't said the debt is not yours so the only evidence before the court shows an account with your name was opened, used and sold to CACH.  You have to sell the court on the idea that someone else with your same name opened and used the account or that the testimony from the affidavit is false.  If you cannot swear under oath that this is not your account, all you're left with is to depose the BofA affiant to find a defect in her testimony.

 

The bottom line is the bar is low for CACH just as it is for you, but with the BofA affidavit, they have the upper hand right now and you HAVE to controvert their evidence with something the court can buy into.  Or you can hope CACH will make some catastrophic error or decide they won't want to pursue it.

 

P.S. I suspect you have been getting contacted via PM from people telling you I and everyone else that shares my view are wrong.  You are certainly welcome to follow their advice, but you should ask yourself why none of them can back up their claims with Arizona case law.  I and others have posted ruling after ruling that show why we believe what we do.  We don't just make this stuff up for fun.   Of course there can be only one outcome and no one knows what it will be.  To that end, you should weigh all of the advice you are being given and consider what's at stake for YOU in each scenario.

True, I have received PMs.  I  don't believe your view is wrong at all.  I do believe you are offering sound advice/opinions based on your own experience and your knowledge about these types of cases IN Arizona.   I can accept reality, but it just takes me a while to understand all the little details.  I feel far more secure in making a wise decision when I fully understand all the facts. You have been a great help to me.  I'm a busy mom trying to learn when I can on here, and without people like you willing to take the time to offer input, I'd really be at a loss.  I think my case could go either way - it all seems like a gamble, but I'm feeling better equipped to make a good decision overall.  

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Whichever direction you go, there are a lot of people here with personal experience that can guide you along.

 

Please keep us updated as you go and don't hesitate to ask any questions you may have.

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@fight2win - Harry and I go against the idea that "everybody can win" based on personal experience. He has done his work Pro Se and I have done mine with a lawyer, yet we have arrived at the same place (as he said, we are not making this up.) 

 

I have repeatedly suggested getting a settlement figure so you know where you stand. I guarantee that is the first piece of information a defense lawyer would get.

 

I don't know, or care, who is PMing you, but many here still believe that debt buying is "illegal," that a debt buyer could never "own" your account, and that your obligation to them should be limited to what they paid for the account. (The astute reader might notice the contradiction - those that don't believe a debt buyer owns your account are the same people telling you how little they paid for it...)

 

I get the feeling that, in your heart, you want to fight this - it's hard to resist people telling you are right and are engaged in a fight of good versus evil.

 

You will have my assistance and support, whichever path you choose.

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I get the feeling that, in your heart, you want to fight this - it's hard to resist people telling you are right and are engaged in a fight of good versus evil.

I'll take it a step further and say I'd probably fight this myself but I'm a stubborn old cuss. (I hope that's not your reason!) Maybe part of it is revenge for some wrong you may have perceived was done to you. I get all of that and wouldn't judge you at all if that was part of the driving force because that's where I was 2 years ago. I wish I had the me from today to tell the me from two years ago what I've been telling you. I don't know if it would have deterred me, but at least I wouldn't have been so astonished when I lost.

I said it before - my big push for settlement was in response to your statement that you couldn't accept a judgment over $1,000. If you want to defend this in court, I too will offer any help I can.

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Ok, I've decided to go ahead and post an update.  Harry, I told you I'd just PM you, but I just want to get a general consensus.  I've not been able to spend the time I'd like to reading and researching, and I need to continue to weigh all my options here.

 

I did receive a(n) MSJ.  My pretrial is next week.  I need to prepare an opposition in the event that we can't reach a settlement.

 

1.  Can someone (anyone) please, one last time explain to me how the Plaintiff can reference an "Agreement" in the Bill of Sale, and how I am not allowed to ask for that "agreement".  It's like buying a car and receiving only the signature page of the auto loan contract.  

 

2.  The Bill of Sale states that they purchase accounts without representation or warranty, etc.  This means that the accounts that they purchase "could" be flawed and erred.  

 

3.  The Bill of Sale references a pool of accounts, but does not reference MY account.  It references a Schedule, and attached I was given a little one line printout with my name, etc. and an alleged balance.  ANYONE could create a document like that.  How does that prove anything?

 

4.  The affiant only swore to an alleged amount owed.  The affiant did not swear that the Plaintiff purchased my account.  She references the "agreement" but it's dated different from the date mentioned for the agreement in the B.O.S.  I want to know what "AGREEMENT" she was looking at.  

 

LASTLY - If any "agreement" or document is referenced - isn't there a rule that says that the Plaintiff needs to provide that document?   Otherwise, I could walk into any court with my stack of papers claiming X, Y, and Z and say that Judy Moody owes me money because the PAPER says so.  And...the paper references other papers... but I'm not providing the "other" papers.

 

 

Something is not right here.  

 

I'm willing to attempt settling, but I have a fixed amount I'm willing to settle for.  Otherwise, I'd like to know how to proceed based on what I referenced above.  I need to prepare an answer/opposition to the MSJ to have ready for next week.  

 

Harry and Seadragon, I keep feeling unsettled by the idea of just settling.  I know AZ courts can be unfair, but these are legitimate defenses that I want to use in case settlement can't be reached.  

 

As always, thanks to anyone that offers input.

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Hi @fight2win - sorry about the MSJ, but I figured that would be their next move.

 

In order to answer your questions would it be possible to upload redacted copied of everything they have sent you, including the MSJ? It's hard to tell exactly what they are missing without seeing what they have sent.

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@fight2win

I am 100% behind you wanting to discuss this publicly. It's the only way to get the most complete overview of your situation.

These are my thoughts on your questions:

#1 You can ask for whatever you want. The other side will argue the relevance of your request. Then you have to convince the court why you believe you have a right to view whatever you ask for. You might convince the judge it's relevant and he orders them to turn it over. Then what? It's not like once you have the agreement in your hands the game is over. You've already seen what the agreement says. How do you plan to use the contents of the agreement to your advantage?

#2 They could be flawed, but Parker creates a presumption that the records are reliable because they were incorporated and relied upon. You have to over come this presumption with something persuasive.

#3 The witness will testify under oath that the one line was extracted from a master document that contained all accounts sold in the transaction. Can you prove he/she is lying? Can even swear under oath it's not your account?

#4 I'd have to see the affidavit to be able to comment on this.

#5 Would you be testifying that you purchased the account from someone else and that someone provided you with the records you have in your possession?

Something is not right here.

Ok, what is it?

I don't know how else to say it. You might get lucky and the judge could reject the plaintiff's evidence as everything stands right now. BUT! there is nothing on the record prohibiting him/her from accepting the records at face value and so far it looks like everything is shaking out to be exactly what the plaintiff claims. If the affidavit says what I suspect it does, the appellate court will not reverse the trial court's decision to admit the evidence. What are you going to put forward to controvert their evidence and testimony and to give the appellate court a hook to hang it's hat on?

The affidavit *could* be deficient and that may win your case. I haven't seen it so I'm basing my comments off what JDBs usually provide. Post the affidavit and I could have different thoughts. Just remember that the affidavit is only to secure an MSJ. If the judge denies the MSJ, you move forward to trial where they have the opportunity to produce a live witness. And they usually do.

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The pre-trial is looming and if I don't reach a settlement, then what?  Do I need to have an answer prepared for the MSJ (Opposition)?  

 

I scanned the MSJ - how do I post it to this thread?  i will also post the affidavit.

 

The live witness that CACH would have is from CACH.  That witness would only be testifying to documents that they received from the OC.  The OC prepared the affidavit for litigation purposes.  Is that allowed?  Doesn't that challenge the trustworthiness.

 

The court case Parker that you reference, Harry, is that the only case that the judges refer to?  People still fight JDB's in AZ, they still win their cases, and I just wonder how they win?  

 

I don't want to go round-and-round.  I fear that my post earlier is looking like I'm rehashing the same stuff again.  I need to know what I need prepared for court - in the event that we DO settle and in the event that we don't.  If they are not going to accept a reasonable settlement, I may as well roll the dice and fight.  

 

And I'll post up the MSJ  - just let me know how to do it.  ((thanks))  I need to get my ducks in a row for next week - they're all over the place! :)

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