Seadragon

How do we as defendants get the Forward flow purchase agreement between the OC and the assignees?

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I believe a way to disrupt the business records exception to the hearsay rule is to obtain the sale documents from The OC to the assignees. This will most likely hinge on the subpoenaing of that record from the OC. JDB's like to subpoena records from the OC so that they avoid there assignors charges for records. This will be a tough road because for the most part it involves out of state subpoenas.

 

As a method to destroy affiants foundational claims it will help to refute the conclusory statements in affidavits declarations etcetera.

 

I brought up this point here:

http://www.creditinfocenter.com/community/topic/324987-fighting-a-lawsuit-filed-by-persolve/?p=1310909

But don't want to crowd the thread.

This could be a significant weapon for defense. Or once obtaining it could generate significant leverage for negotiation. The plaintiffs usually assert a claim of privilege but I believe they have no assertion of priviledge if they are not a party to the first transaction.

I believe that there is now a practice of selling accounts which entities scrub from their own files and maybe inaccurate accounts are used to "season" portfolios for sale.

Lets discuss without heated debate plz.

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You most likely will never get this document. But you ask for it in discovery, request for production of documents (calling it exactly what they call it in the bill of sale).

After they object (and a meet and confer letter) then you can file a motion to compel. If the court orders them to compel; they may be more likely to dismiss then to produce it.

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I took sometime to do a bit of research and found a few interesting details.  An attorney in Georgia has written an article and compiled some decent information about all the states.  There is a group that put together a set of proposed statutes that states could adopt.  The act is called the Uniform International and Interstate Deposition/Discovery Act.

 

California has adopted this as well as other states.  Example Delaware has which is good as many of the Banks are registered in Delaware.  I reviewed CCP 2029.100 as it is California's Civil Procedures for the UIIDD.

 

The jest of how the UIDD functions is to allow an Out of State Subpoena to be presented to any County Clerk.  The OOS subpoena along with the foreign states documents are then signed without court review, and are available to serve. (Simple version of what is involved)  Obviously, you have to pay the fee.

 

The problem arises that could require an Out of State attorney, in that if the entity decides to fight the subpoena, they can file in the local court.  As a pro se, no way to fight for your subpoena in Delaware if you live in California with local counsel.

 

I have attached the article and updated chart that shows which states have adopted the UIIDD.  Based on my 1 hour of time, I can't see a cost effective way for a Pro Se to accomplish this.  Minimally you could have 2 filing fees, then you would have process serving fee's.  If all goes well and the bank coughs up the document, still pretty expensive proposition.  If the bank fights, then clearly a losing proposition.

Obtaining-Out-of-State-Evidence-for-State-Court-Civil-Litigation.pdf

Out-of-State-Subpoena-Citations.pdf

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Which is more important, to get the forward flow agreement (aka sales contract), or getting correct & useful arguments regarding the 'bill of sale & assignments' they put forth?

 

If we can create material issues of fact to get passed MSJ, and onto trial, then the bill of sale & assignment needs to be proven at trial.  From my perspective we all need more reliable ways to get passed the MSJ stage and onto trial.  The forward flow provides more concrete evidence of ownership, regardless of the language.

 

What does the forward flow & supporting documents contain?

- Parties involved

- List of accounts

- Obligations of the OC & Assignee

- Warranties, or lack thereof.

- Consideration paid

- Signatories 

 

What does the bill of sale & assignment contain?

- Parties involved

- usually a single signature from the OC

- Reference to documents that are rarely produced.

- Reference to dates, that are often inaccurate.

- No proof consideration or mutual assent

- No proof of rights & obligations

- sometimes they contain 'as is' language or no warranty available.

- Absolutely no reference to the debtor or account info.

 

The theory is they have to prove the assignment in order to be the real party of interest.  This much easier to do with the forward flow.  The unfortunate aspect is that some courts are allowing these incomplete bills of sales into evidence at the MSJ stage.  Once at trial, these assignments have to proven, and backed up with documentation & testimony.  If there is a "supposed integrated contract" between parties, then Secondary/parol evidence should be objected to. Random statements & card agreements do not prove assignment.

 

From my perspective, I would rather not have the forward flow.  Let them object to it, and force them to prove their assignment in court.  My 2cents adding to the discussion.

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In my opinion, the original agreement is irrelevant from the alleged debtor's viewpoint..There isn't any point in having an in-depth analysis on how to get the agreements. If the JDB doesnt want to prove its assignment, then I would be happy to let them maintain that strategy. The burden of proof is upon the Plaintiff.

 

 

Sticking strictly to the rules of evidence a Defendant would win every time:

 

 

1.) These agreements, from my experience, never reference an actual account # or the ss# of the alleged debtor. Even if the JDB was somehow able to get their agreement in the record as admissible, they have no proof they actually purchased your account.

 

2.) If the JDB is not the first assignee(ie a sale from JDB1 to JDB2), there needs to be a witness from JDB1 to authenticate the document and sale. Notwithstanding the fact that, again, the agreement never references a specific account #.

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My point in all this is, that if the OC says that the records and information concerning the group of accounts is unreliable and untrustworthy then how can the assignees say they are reliable as far as the 802 and 903(11) business record exeception goes.

Example:

You subpoena the Forward flow purchase agreement from Big Azz Bank between them and Unscrupulous Debt Collectors LLC.

The agreement states that the accounts are sold as is with no warrantee as to accuracy or trustworthiness.

You make a motion at trial to exclude the 3rd jdb in the chains affidavit because they claim that the records are accurate and the system was checked ...

It is the First forward flow agreement that disrupts the presumption of accuracy or trustworthiness that plaintiffs need for evidence foundation for the business records exception to the hearsay rule.

So because many jdb's are not a party to previous assignments they cannot object to the subpoenas. The only snag I see is if the bank or the first jdb object.

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In my case I obtained an order to produce the forward flow, but they never did. Perhaps I could/should have subpoened the doc?

 

Judging by what i've read from another JDB forward flow, it could definitly be used to refute many of their claims. 

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In my case I obtained an order to produce the forward flow, but they never did. Perhaps I could/should have subpoened the doc?

 

Judging by what i've read from another JDB forward flow, it could definitly be used to refute many of their claims.

True you could have subpoenaed the forward flow directly from the bank. Then the hammer would drop on them.

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@Seadragon

 

My point in all this is, that if the OC says that the records and information concerning the group of accounts is unreliable and untrustworthy

 

 

If you're referring to the word "warranty" in the bill of sale, the use of that word doesn't necessarily mean that the OC is implying that the records and information are unreliable and untrustworthy.  It simply means that the OC isn't making any claims other than what's in the agreement.   We don't know what's in the agreement.   You're assuming it would be favorable to the consumer.  In fact, it could very well be enough to satisfy a court that the records are accurate.

 

If the JDB refuses to produce it, that might help the defendant, but we don't know for sure. 

 

Let's say a defendant subpoenas the agreement, the JDB produces it, and it's not helpful to the defendant.  What then?   Does he claim it doesn't count because even though he's the one who subpoenaed it,  the JDB can't authenticate it?  

 

If one's state has consumer-friendly laws and court rulings, don't rock the boat. California is a prime example of a state that has consumer-friendly statutes.  If the consumer knows those statutes and how to use them, the chances are that the plaintiff (either OC or JDB) will dismiss or will lose if the case goes to trial.

 

Other states have rulings by which courts applied strict standards for proof. 

 

If one's state has neither consumer-friendly statutes or court rulings, whether or not to subpoena the agreement should probably be decided on a case by case basis. 

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@Seadragon

 

 

If you're referring to the word "warranty" in the bill of sale, the use of that word doesn't necessarily mean that the OC is implying that the records and information are unreliable and untrustworthy.  It simply means that the OC isn't making any claims other than what's in the agreement.   We don't know what's in the agreement.   You're assuming it would be favorable to the consumer.  In fact, it could very well be enough to satisfy a court that the records are accurate.

 

If the JDB refuses to produce it, that might help the defendant, but we don't know for sure. 

 

Let's say a defendant subpoenas the agreement, the JDB produces it, and it's not helpful to the defendant.  What then?   Does he claim it doesn't count because even though he's the one who subpoenaed it,  the JDB can't authenticate it?  

 

If one's state has consumer-friendly laws and court rulings, don't rock the boat. California is a prime example of a state that has consumer-friendly statutes.  If the consumer knows those statutes and how to use them, the chances are that the plaintiff (either OC or JDB) will dismiss or will lose if the case goes to trial.

 

Other states have rulings by which courts applied strict standards for proof. 

 

If one's state has neither consumer-friendly statutes or court rulings, whether or not to subpoena the agreement should probably be decided on a case by case basis.

https://www.documentcloud.org/documents/329733-fia-to-cach-forward-flow.html

http://s3.documentcloud.org/documents/329735/usb-forward-flow2.pdf

http://agreements.realdealdocs.com/Asset-Purchase-Agreement/ASSET-PURCHASE-AND-FORWARD-FLOW-AGREEMEN-228804/#doc_start

http://voidjudgements.net/suedc/fia-to-cach-forward-flow.pdf

http://www.occ.gov/news-issuances/congressional-testimony/2013/pub-test-2013-116-oral.pdf

A little bit of light reading to get everyone the representations typical in these agreements

I noted with pleasure that the banks did not sell the accounts themselves, so plaintiffs lack standing

I was shocked to learn that they make no warranties of anything to anyone.

In the last one the sale of 3.2 billion in accounts for 142 million and change was weird. Why would the banks sell so low?

Eyes open, brain in gear, forward ho.

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I noted with pleasure that the banks did not sell the accounts themselves, so plaintiffs lack standing

 

 

 

Where do the docs show that the banks did not sell the accounts?

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How did the other defendants get the forward flow? There are examples of them on the net where attornies got it and hammered home on the point of no  warranties and sold as is.

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Where do the docs show that the banks did not sell the accounts?

In the first one under section 2.1 it says they sold the receivables but not the actual account and they may not use the account number. This may explain why the jdbs have different account numbers.

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How did the other defendants get the forward flow? There are examples of them on the net where attornies got it and hammered home on the point of no  warranties and sold as is.

I believe they subpoenaed them from the oc and the other jdb's

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In the first one under section 2.1 it says they sold the receivables but not the actual account and they may not use the account number. This may explain why the jdbs have different account numbers.

 

 

In that paragraph, they separated the terms "loan" and "account".  Who knows why?   Perhaps it has to do with the origination of an account itself.  For instance, when you buy a car, you're only buying that car.  You're not buying the design rights to the car.

 

The reason a JDB is not purchasing the original account number is because that number is created by and identifiable to that bank.   Some of the numbers identify the particular bank issued the card.  That's why a JDB can't own the number.

 

But the point is, the "loans" were sold.  The bank sold the indebtedness.   You can't get around that.

 

Please don't take my comments the wrong way.  I believe that the forward flow agreement could be helpful under certain circumstances.  As I stated before, one of those circumstances might be when a defendant's courts have either no case law in regard to debt buyers or case law that's unfavorable to the defendant.

 

Also, in my opinion, we have to be careful about nitpicky details that won't help us.  Without a "smoking gun", certain details in the agreement aren't going to make a difference to a judge.  I don't believe "Loan" vs. "Account" vs. "Receivable" would make a difference.

 

What I do believe would help would be a defendant who has no supporting or favorable case law is in the first document under Article IX, Section 9.4(d).    That's the "as is" Article. 

 

But we have to remember that the docs you provided are 2 past documents for 2 banks.  We don't know that current documents for all banks contain the same language.   I'm assuming they would contain similar language, but we all know what might happen when we assume.

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In that paragraph, they separated the terms "loan" and "account".  Who knows why?   Perhaps it has to do with the origination of an account itself.  For instance, when you buy a car, you're only buying that car.  You're not buying the design rights to the car.

 

The reason a JDB is not purchasing the original account number is because that number is created by and identifiable to that bank.   Some of the numbers identify the particular bank issued the card.  That's why a JDB can't own the number.

 

But the point is, the "loans" were sold.  The bank sold the indebtedness.   You can't get around that.

 

Please don't take my comments the wrong way.  I believe that the forward flow agreement could be helpful under certain circumstances.  As I stated before, one of those circumstances might be when a defendant's courts have either no case law in regard to debt buyers or case law that's unfavorable to the defendant.

 

Also, in my opinion, we have to be careful about nitpicky details that won't help us.  Without a "smoking gun", certain details in the agreement aren't going to make a difference to a judge.  I don't believe "Loan" vs. "Account" vs. "Receivable" would make a difference.

 

What I do believe would help would be a defendant who has no supporting or favorable case law is in the first document under Article IX, Section 9.4(d).    That's the "as is" Article. 

 

But we have to remember that the docs you provided are 2 past documents for 2 banks.  We don't know that current documents for all banks contain the same language.   I'm assuming they would contain similar language, but we all know what might happen when we assume.

All valid points. I think that it shows that the oc is basically disavowing itself from the status of the accounts. This distancing can be used to show plaintiffs were sold a dirty diaper.

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Sticking strictly to the rules of evidence a Defendant would win every time:

 

 

1.) These agreements, from my experience, never reference an actual account # or the ss# of the alleged debtor. Even if the JDB was somehow able to get their agreement in the record as admissible, they have no proof they actually purchased your account.

 

How do you figure?  If a JDB drops in front of the judge a bill of sale, a line item showing details of your specific account, 3 dozen sequential billing statements and an affidavit/witness that neatly links everything together, the burden of dis-proof then shifts to you.  You can't simply say "that doesn't prove anything!" because it actually proves quite a bit.  At the very least, it proves the JDB somehow ended up with 3 dozen billing statements with your name and address on them.  If they didn't get them directly from the OC, where did they come from?

 

(I'm speaking only to debts that are sold directly from the OC to the JDB.  Adding another OC or JDB into the chain of custody complicates things for the plaintiff JDB, but their case is still winnable if the same elements are there.)

 

Something that gets overlooked is that these are civil suits and the standard of proof is "preponderance of evidence" which is to say that something is more likely to have happened than not.  That's only 51%, folks.

 

I know there have been cases where JDBs have fabricated evidence, but they are rare and there is always a smoking gun somewhere.  There are probably more frequent inaccuracies like specific dollar amounts of account balances or dates of last payment, but if the debate is whether or not your defaulted account was sold to a JDB, to be realistic, we're talking about 99.99% legitimacy these days.

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How do you figure?  If a JDB drops in front of the judge a bill of sale, a line item showing details of your specific account, 3 dozen sequential billing statements and an affidavit/witness that neatly links everything together, the burden of dis-proof then shifts to you.  You can't simply say "that doesn't prove anything!" because it actually proves quite a bit.  At the very least, it proves the JDB somehow ended up with 3 dozen billing statements with your name and address on them.  If they didn't get them directly from the OC, where did they come from?

"Strictly sticking to the rules of evidence" (as was suggested) is a far cry from "simply saying that doesn't prove anything", in my opinion. Hearsay, business records exception to hearsay, rules of authentication / foundation, standing....

 

(I'm speaking only to debts that are sold directly from the OC to the JDB.  Adding another OC or JDB into the chain of custody complicates things for the plaintiff JDB, but their case is still winnable if the same elements are there.)

Their case is also still lose able

 

Something that gets overlooked is that these are civil suits and the standard of proof is "preponderance of evidence" which is to say that something is more likely to have happened than not.  That's only 51%, folks

FAR MORE than 51% of people that fight (just here alone)  win their case

.

 

I know there have been cases where JDBs have fabricated evidence, but they are rare and there is always a smoking gun somewhere. 

I think that is a very far fetched statement and can be very discouraging if someone were to believe it. I'm not trying to bash on you or answer for someone else, and I don't just tell people what they want to hear, but this is not very empowering or correct.

There are probably more frequent inaccuracies like specific dollar amounts of account balances or dates of last payment, but if the debate is whether or not your defaulted account was sold to a JDB, to be realistic, we're talking about 99.99% legitimacy these days.

Even if there really is less than a 1% chance it wasn't sold to A  jdb, you don't know that the jdb suing you is the actual one that really bought it (without  defending the case and conducting at least some form of discovery). There have been many people that paid a jdb only to find out they were paying the wrong bottom feeder.

 

 

I know it may be harder in AZ, but there have been people here who won there as well, and the majority of those who lost there (including yourself I believe) are appealing (and I wish you all the best of luck).

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FAR MORE than 51% of people that fight (just here alone)  win their case

You misunderstood. To prove a case on a "preponderance of evidence", they only have to prove that it's barely more likely than not that something happened. In other words, 51% likely that something happened. Back to my original post, if the JDB produces a bill of sale, a line item with your name, account # and SSN, a pile of credit card statements with your name, address and account # and then a witness that can affirmatively tie all of these things together with testimony that his employer purchased your debt from the OC on such and such date, if I was on that jury, I'd say it was FAR more likely than not that the witness testimony is at the very least credible. So then, as I said, the burden of dis-proof shifts back to the defendant, and there is a lot of dis-proving to do. It's not impossible, but it would mean you would have to somehow show the JDB committed outright criminal fraud. Why else would they have all of those records?

 

 

 

I know there have been cases where JDBs have fabricated evidence, but they are rare and there is always a smoking gun somewhere.

I think that is a very far fetched statement and can be very discouraging if someone were to believe it. I'm not trying to bash on you or answer for someone else, and I don't just tell people what they want to hear, but this is not very empowering or correct.

 

 

Fabricated evidence in a lawsuit is criminal fraud on the court.  What percentage of JDB lawsuits filed in the current era do you believe are based on fabricated evidence?  And are you saying that in that percentage, the JDBs are able to wipe away all traces of evidence of their crimes?

 

 

Even if there really is less than a 1% chance it wasn't sold to A  jdb, you don't know that the jdb suing you is the actual one that really bought it (without  defending the case and conducting at least some form of discovery). There have been many people that paid a jdb only to find out they were paying the wrong bottom feeder.

This entire discussion is based on evidence being produced through litigation and this is the first mention of someone paying a JDB outside of a lawsuit.  I was never talking about that.

To that end, you know the JDB suing you is the one that owns your account because they produce a bill of sale, a line item with your name, account # and SSN, a pile of credit card statements with your name, address and account # and an affidavit from a witness that ties everything together with a pretty red bow.  If you pay them after they provide all of the above evidence, and they are the wrong JDB, as you well know, they will be paying YOU and possibly be facing criminal charges.

 

 

I know it may be harder in AZ, but there have been people here who won there as well, and the majority of those who lost there (including yourself I believe) are appealing (and I wish you all the best of luck).

It is indeed harder here in AZ and many of my comments are admittedly colored by this fact and my experiences.  But I suspect that the reverse is also true and that your comments are based on your experience of the legal system in California.  I'm willing to admit the reality falls somewhere in the middle.  Agreed?

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That is the reason for objecting. You see for the most part, courts allow everything not objected to. In the past we have not attacked the evidence good enough to keep it out. The hearsay exception is not for allowing things in automatically it has to comply in every single section of the exeption or it doesn't come in. Motion in limine and Objections are what we have So we must come up with the best ones to exclude.

 

Objections are to exclude prejudicial matters from getting into court. If your whole case is based on heresay within heresay, it is highly prejudicial.

 

For example:

 

You are sued and the account is 100% not yours, If they bring a bunch of stuff and some has your address on it(It is possible to alter electronic records) it will be prejudicial because the court will assume it is a bill of yours. Now if you exclude it they cannot make their case.

 

Listen up people, it is plainly evident the oc's do not want collectors to sue. They tie the hands of plaintiffs lightly so they can sell the accounts. The plaintiffs don't want these agreements out. What I am proposing is getting the agreement from the oc directly. Most banks are third or forth times removed from these cases. If you subpoena the agreement they have to give it because they know that if they don't, they have to spend money to fight it. The bank has been on the up and up so to speak it is not proprietary and you are not asking for the whole dbase of accounts just the terms of sale.

 

I believe that we need a better way of excluding, and this would really help

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I think our focus should be using Forward Flow agreement as a method of excluding everything. Lets come up with some valid objections and excluding arguments. But first, How to conduct a third party subpoena duces tecum on a national bank. Since the first sale will be the first break in the chain of authenticity, we should go there first to destroy the arguments.

 

That would also prevent the oc from making a later affidavit saying the records are valid. It would be an inconsistent statement.

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Frankly, if there is a chance they will run for the hills or become reasonable in settlement it would be a chance to say F U to plaintiffs. As far as plaintiff leaning courts, this will smoke them out, because the court cannot smooth this either.

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@Seadragon

 

You are sued and the account is 100% not yours, If they bring a bunch of stuff and some has your address on it(It is possible to alter electronic records) it will be prejudicial because the court will assume it is a bill of yours. Now if you exclude it they cannot make their case.

 

 

The forward flow agreement is really not needed in this instance.

 

If the account is not yours, you deny it and deny making payments.  It will be up to the JDB to show that it is your account and that you made payments.  If they "altered" the records, they will not attempt to prove you made payments because they know they won't be able to do so.

 

If the "bunch of stuff" shows payments, your own bank records will show otherwise.   Therefore, they either have the wrong person, or as @Harry_Seaward pointed out, they've committed fraud. 

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I say this because we had an IT fellow who posted on here that a JDB had hired him on craigslist to write a program to alter PDF's. The person posted here and on other sites because he was not paid by them. I don't know if it was true but stranger things have happened such as a worker at wamu downloaded account info and sold it to third parties. Imagine if after wamu failed all the creepy employees sold all info to jdb's how would we be able to tell.

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