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In it to win it. Preparing to attack JDB "evidence" before next court date

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Hello, I'm pretty new to this site, but it has so far been quite helpful in forming a defense as I am in the process of fighting a lawsuit. Just a few weeks ago, I was feeling overwhelmed by my situation, but a little bit of research in the last week has me feeling optimistic about the opportunity that I have to defend myself.

 

I would like some input as I move forward if anyone has information that would fit my particular situation. I am also lurking about and proactively seeking answers. I'm not 100% comfortable with putting the exact specifics of my circumstances on here, so I'm sorry if anything is a bit vague. Apologies in advance that this will be LONG. I just want to thoroughly explain.

 

The initial contact was made by delivery of summons earlier this year. I made the mistake of calling the JDB to ask what my options are before going to court. I did not make any agreements, but I was not at all careful how I discussed the claim as I was uneducated about this type of business practice at the time. I fear that this conversation may come back to bite me in court.

 

I did appear in court, and a trial date was set. I asked the lawyer to explain the lacking information included in the complaint, and he advised me that I would receive all the info I needed about a month before the trial date. He also advised me that they wouldn't be willing to negotiate a settlement once I "let it get that far." (Insert eyeroll.)

 

Just as he advised, a packet arrived that seemed damning at first glance:

 

Affidavit from JDB records keeper

 

Bill of Sale/ Assignment of Loans (which was already included in previously delivered complaint - no account numbers, etc)

 

Account statements (that began nearly two years after the date the alleged account was allegedly opened. Date of amt owed on last statement differs from the amt I allegedly owe)

 

Affidavit of Sale/ Certification of Debt signed by OC (Dated over a year after the alleged date of acquisition. Obviously in preparation for litigation. Also, Google says the "Bank Officer" who signed is a Mortgage Specialist in a different sector of the parent company.)

 

Spreadsheet with just the information of the account in question.

 

 

So. I stewed for a while on whether or not I should attempt to settle as I was intimidated by the paperwork. However, I am not convinced that the debt is mine. Just concerned that I cannot defend it. I decided to attempt to verify the information by calling the OC. I was told that any of my account information was archived as I had not been an active customer in several years (I had various accounts with them over a ten-year period). I advised them of the suit against me, and I asked if they would be willing to verify information in the claim. They said they could not. I was advised that they only have a profile to store my personal information as a customer, but no information regarding previous accounts as it has all be archived. I asked for anything they could provide in terms of a contract for a credit account, and they told me they can't access anything. They advised me to request this information from anyone who was suing me as anyone who would have purchased an account from them should have all available documentation accessible.

 

So, I decided to call the JDB to attempt to request this sort of documentation. Again, what was I thinking? This was only last week, but I know so much more now. I wish that I would've gone about this differently. I hope that I didn't say anything that can be used against me in court. I was transferred to multiple people who did their best to convince me that I just needed to shut up and pay up. That they have sent me all the validation they need to, and that a judgement is the next step if I don't pay. I asked for contact information for an attorney or someone in records who could help, and I was told there was no one who would take my call and that I should just ask my questions in front of a judge. Um. Ok, I will.

 

Between that call and the trial date (earlier this week), I did a lot of research to see how many holes there are in the case they have presented. I'm probably countless steps behind, but I decided to file a Sworn Denial before we went to trial to have my stance made clear.

 

I showed up to court feeling really confident, but still worried that I would not be able to effectively defend myself. Partly because the atmosphere of the court is surprisingly informal. I really like the judge. I like the way he doesn't take crap from anyone, but he is compassionate and makes jokes through the session. I was relying on my ability to appeal to his reasonable side, but I also am not confident enough in my understanding of the process to speak with authority on my concerns about the "evidence." I found myself wishing I had more time and reasonably nervous that I would be leaving with a judgement.

 

The lawyer sat down with me prior to the trial and asked if I recieved the packet and asked if I had any questions. I told her that I have a lot of questions and also presented her with the Sworn Denial. She advised that she may not be able to answer my questions, but she would like to know how she could help. I told her I didn't recognize any of the account information, and showed her the apparent opening date of the account. I told her that I was confused about why I would only have statements from the last year the account was open and no contract to show how I would have been responsible for the account. I also asked her where the amount in the first statement that was presented came from. She simply advised me that they can't go all the way back through the account, but said she would ask the judge for a continuance in hopes that the JDB would get me the information I needed.

 

Was I wrong to do a happy dance on the inside? It gives me a little confidence that I presented enough of an issue to keep her from being able to prove her case with the information they gave me. But now the question is, how do I effectively go on the attack?

 

Some thoughts.. I believe I still have a couple of days to file a Motion to Strike. Based on what I've read I have 30 days in TN. I wonder if I should skip that and file a Motion to Dismiss? Should I file them both? Create my own affidavit? Send the JDB a Request for Production? I would love to threaten them with a counterclaim, but I'm not sure how much of a case I would have. I am more interested in scaring them off than I am pursuing them.

 

I am off to do more research. If you are still reading, thanks for taking the time. TIA for any particular thoughts or similar experience.

 

 

 

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@Clydesmom gave some excellent advice above. I would rather give a little money to an attorney instead of giving a lot to a JDB.

 

It really is impossible to help you without knowing the OC, the JDB, the attorney(s), the amount, the age of the debt, what they have sent you, your location etc. I understand you not wanting to share this info online, so you definitely should at least speak with an attorney concerning the details. @TNConsumerLawyer will not charge you for a phone call. 

 

You can try some of the things you mentioned above, but most of them will not fly in general sessions court. To be completely honest with you it sounds like you may have talked with them more than you should have. I personally only like to speak with these people when a judge is present to hear the conversation. This is another reason you might want to speak with an attorney. At least find out if you have gone to far with your conversations. While most out of court conversations should not be used against you anything is possible in general sessions court. Just by talking to them you have tipped your hand that you might be open to settling if they give you what you asked for.

 

Another thing is that they will not care if you threaten them with a counter-suit. The only thing that will get their attention is filing an FDCPA lawsuit in federal court, and this only works if you have a valid claim. Once again this is something that you will need an attorney to assist you with. 

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Thank you for referring to someone who can help me! I will definitely be giving him a call today. I have been a little worried about contacting an attorney for various reasons, but I am thrilled to know this one has a good reputation here. Thank you thank you thank you :)

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@Clydesmom gave some excellent advice above. I would rather give a little money to an attorney instead of giving a lot to a JDB.

 

It really is impossible to help you without knowing the OC, the JDB, the attorney(s), the amount, the age of the debt, what they have sent you, your location etc. I understand you not wanting to share this info online, so you definitely should at least speak with an attorney concerning the details. @TNConsumerLawyer will not charge you for a phone call. 

 

You can try some of the things you mentioned above, but most of them will not fly in general sessions court. To be completely honest with you it sounds like you may have talked with them more than you should have. I personally only like to speak with these people when a judge is present to hear the conversation. This is another reason you might want to speak with an attorney. At least find out if you have gone to far with your conversations. While most out of court conversations should not be used against you anything is possible in general sessions court. Just by talking to them you have tipped your hand that you might be open to settling if they give you what you asked for.

 

Another thing is that they will not care if you threaten them with a counter-suit. The only thing that will get their attention is filing an FDCPA lawsuit in federal court, and this only works if you have a valid claim. Once again this is something that you will need an attorney to assist you with. 

I didn't realize that not sharing that info would make a difference. Let's say that the OC is FIA/BoA and the JDB is PRA. Age of the debt is about a year, and the amount is less than $3500.

 

As for general sessions court, I feel like I agree that it's sort of anything goes. That's one reason I was glad to have the continuance.. because I felt like I would be made a mockery if I tried to point out the flaws in their evidence in such an atmosphere. I was hoping that filing motions in writing would be more effective. Care to expound on why these efforts wouldn't fly? TIA

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Do you mean the date of the last payment to the OC was a year ago? 

Sorry no. They aqcuired the account last year. Last payment date was 10/2012.

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In small claims court a Sworn Denial is a powerful weapon against frivolous lawsuits filed by JDBs. You deny by telling JDB's lawyer I have no Knowledge, I don't know what you're talking about and that's the end of the bogus case. Because they simply do not have the kind of proof that would stand in the court of law. Remember they allegedly bought data list that might have had your name but  they did NOT buy a debt that you might have had with ANYBODY especially if that debt might have been charged off and closed by the alleged OC.  

 

I will never pay a dollar to a JDB as long as I live.

 

As far as your case do not be intimidated by the judge or the JDB's lawyer. Be calm and polite, Deny by claiming lack of knowledge and ask for COMPLETE evidence and you will win. They won't even be a trial. I did win against Junkland Funding in Georgia by doing just that.

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In small claims court a Sworn Denial is a powerful weapon against frivolous lawsuits filed by JDBs. 

 

MAYBE.  There are many instances where the court through out the defendants sworn denial because it was not properly done  or submitted.  Also it can be tossed as nothing more than self serving.  

 

You deny by telling JDB's lawyer I have no Knowledge, I don't know what you're talking about and that's the end of the bogus case. Because they simply do not have the kind of proof that would stand in the court of law.

 

Not necessarily.  The court determines what is proof and acceptable.  NOT either side of the case.  Simply denying everything is not a slam dunk win in any court in any state.

 

 Deny by claiming lack of knowledge and ask for COMPLETE evidence and you will win. They won't even be a trial. I did win against Junkland Funding in Georgia by doing just that.

 

NOT in TN.  Tennessee is VERY creditor friendly and has a tendency the majority of the time to simply rubber stamp the case for the Plaintiff.  

 

However, when Barnette law gets involved they almost always fold and walk away.  There WILL be a trial if the OP proceeds pro-se.

 

Please do NOT make blanket statements about what will happen in a state that you haven't been sued in.  It is great that you had that success in GA but unfortunately that is not always the case in other states and tactics that will work in one state may not be doable in others.

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I told her that I was confused about why I would only have statements from the last year the account was open and no contract to show how I would have been responsible for the account.

AHHHH. YES! “I told her that I was confused about why I would only have statements from the last year the account was open and no contract to show how I would have been responsible for the account”.

EXACTLY. (Going through the same thing myself.)

Though I admit that in my case, I did once have an account with "Retailer", there is no accurate verification so far that THIS account being sued upon and my old account are one and the same. The contract/application form with numbers, etc. would prove that. Three requests for it, and Plaintiff has withheld the data.

 

As I was just sent a Summary Judgment with another Defendant’s name and case number on it, you can see why I would question the accuracy of a document bearing my name. (The other information is not even close to mine. Not the same gender, either!)

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In small claims court a Sworn Denial is a powerful weapon against frivolous lawsuits filed by JDBs. 

 

This is a false statement. In WA, a sworn denial means crXp and is thrown out by judges and such "frivolous" lawsuits are routinely ruled in favor of JDBs, in spite of all sort of objections inspired by Colftan72's interesting topics. However, I am speaking for WA, which is a different universe completely, though I am aware of a few summary judgment reversals on appeal, even by pro-se, but the process is not easy at all.

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This is a false statement. In WA, a sworn denial means crXp and is thrown out by judges and such "frivolous" lawsuits are routinely ruled in favor of JDBs, in spite of all sort of objections inspired by Colftan72's interesting topics. However, I am speaking for WA, which is a different universe completely, though I am aware of a few summary judgment reversals on appeal, even by pro-se, but the process is not easy at all.

 

In TN a sworn denial is a necessary part of the process, but its not the magic bullet. From my personal experience filing a sworn denial keeps the other side from running over you in the beginning. You show up for your hearing and the judge states that the defendant has filed a sworn denial and then he/she sets a trial date. 

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In TN a sworn denial is a necessary part of the process, but its not the magic bullet. From my personal experience filing a sworn denial keeps the other side from running over you in the beginning. You show up for your hearing and the judge states that the defendant has filed a sworn denial and then he/she sets a trial date. 

Right, depending on the state. In TN, it is necessary but not sufficient. In WA, it is irrelevant. The point of my post was to prevent folks from becoming overly confident because of some misinformation from bald/general statements on this board.

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