Seadragon

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

Recommended Posts

There is another layer that needs to be added here.  Many of the JDB's do not get the records from the OC.  They get them from data repositories, like convoke systems.  This is important, because it adds another layer of foundation that is required.

 

OC > Convoke > JDB1 > JDB2 > JDB3 > etc...

 

The original sales contract (forward flow) will show which intermediary (if any) the records are being stored & available from.

  • Like 1
Link to post
Share on other sites

But when are they going to see the digital files? 99% of the time all that would be submitted to the court is a paper record....haven't seen any file dates on most printed records. (Windows works fine too...just set the PC date as required, re-save the files..then set it back)

 

I know of several programs that will let someone do major alterations to a PDF.....considering doing so with some of their documents (and of course marking them as samples, not legal documents) and using them as examples in Court. If a judge has evidence right before his eyes that proves without a doubt that such fraud could be injected into a case in his/her court (and cause them to possibly be sanctioned if the "proof" were exposed).............my thoughts are that they would themselves would put a choke hold on the Plaintiff and demand a "higher degree" of proof from Plaintiffs.

 

Heck I could take the affidavits of the "record expert" and turn it into an affidavit showing the Plaintiff owes me! The affidavit I have actually looks to have been modified........in that the acct #, my name and the amount shown are in bold and the font is not exactly as is the rest of the document, close but no cigar. As for a copy of a monthly statement...those too can be "modified" to fit any client desired. Just pick a statement overlay the account # and name...volia!, we have "Proof"

 

All that is required is a fillable form PDF (or OCR scanned Word document) with spaces left to insert the needed information..........the original (IF you could find one) could merely be a boiler plated signed and Notorized document..............with spaces left for the JDB to fill in, as needed..............It is really quite easy for them to commit fraud upon the court and even there own attorney, especially in light of the fact that most judges don't pick at the evidence in such a manner.

 

Thus without a truly authentic virtually unalterable document before them (such as one on security paper or with embedded holograms)..............who can really say? I dare say that putting yourself in a JDB shoes with the pressure to collect massive amounts with skimpy documentation, along with the ease of modification (and lack of morals) and the lack of any real oversight by the courts in this area............that a large majority create "authentic" documents when needed, at least one or two in a case.

 

We have all heard of one such document....found on a WH website......the only reason it was really questioned is that when it was posted the "document artist" forgot to "flatten" (merge all the modifications into one seamless doc) the PDF (It was pulled within hours, but not before 40 or 50 K downloads were made). Even then several items in the document don't jive with reality and fonts.

 

Basically these case's rely on basic trust and morality..............a sadly lacking commodity these days, especially in the most government sectors and in a great deal of the legal arena.

 

Just my opinion....................

Link to post
Share on other sites

It has been a long time since I have seen anyone claim they were sued by a JDB on a debt they unequivocally did not incur.  It's been even longer since I've seen anyone claim they paid a JDB only to find out the JDB did not actually own the debt.

 

Those things have happened and probably still do happen on very rare occasions, but let's have an honest discussion about the topic.  The vast majority of people that come here asking for help did incur the original debt and everything produced by the JDB indicates the JDB does in fact own the rights to collect the debt.  At that point we're just splitting hairs over loopholes and technicalities.  That's fine, there's nothing illegal about using this approach.  Just be honest about what is it and don't be surprised when the judge sees through the smokescreen and decides what the rest of us already know.

  • Like 1
Link to post
Share on other sites

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

 

 

Can you back that up based on 2014's results?

In all seriousness, I can't think of a single victory using Harry's criteria (single link in the chain of custody and supporting documentation listed in thread.)

Link to post
Share on other sites

I don't know if I would put a "without prejudice" dismissal where the defendant, as of October, is still being contacted by Midland, in the victory column, but it's better than nothing.

 

EDIT: a re-read indicates that the plaintiff had no bill-of-sale, which was one of the criteria discussed in this thread. I'd like to see a victory where there is BOS/Affidavit(s)/CC Statements.

Link to post
Share on other sites

It has been a long time since I have seen anyone claim they were sued by a JDB on a debt they unequivocally did not incur.  It's been even longer since I've seen anyone claim they paid a JDB only to find out the JDB did not actually own the debt.

 

Those things have happened and probably still do happen on very rare occasions, but let's have an honest discussion about the topic.  The vast majority of people that come here asking for help did incur the original debt and everything produced by the JDB indicates the JDB does in fact own the rights to collect the debt.  At that point we're just splitting hairs over loopholes and technicalities.  That's fine, there's nothing illegal about using this approach.  Just be honest about what is it and don't be surprised when the judge sees through the smokescreen and decides what the rest of us already know.

 

Given that 95%+ of the defendants end in default judgment, I don't find it all that surprising that we don't hear about potential tomfoolery committed by the JDB's.  The very few people that actually defend these cases don't typically have an understanding of what is going on.  I think the evidence is sparse in these debt sales, and in many cases entirely false.

 

Also, any Consumer Atty that a Pro Se will consult, is looking for a slamdunk FDCPA case where they can collect a few grand just by sending a demand letter.  Cases that are more complex, and they cannot get a class action, then they rarely want to be bothered with it. 

 

I think it is good to be honest about these subjects; however, with peoples chaotic personal lives, and the strife that they are enduring; it is not surprising that many cannot recall various debts, balances, creditors, etc... sometimes 3,4,5 or 6 years down the road.  If the information presented has your name & address, but the account, balance, charges, payments are unrecognizable, then the fact remains that these are in dispute.  This is not a smokescreen, this is demanding authenticated evidence that is conclusive.  If an Attorney was defending you, they would claim that the records are in dispute, and that they must be substantially proven.  They will defend you, the same way we Pro Se's are defending these cases.  

 

Judges are material fact finders, and adjudicators of law.  The legal process is made up of half truths, and smokescreens. The legal arguments are tightly woven into loopholes & technicalities.  That's why there are rules of evidence & procedure.  The JDB's will try to enter unauthenticated documents, knowing that 99% of the time the defendant won't object properly.  That is a loophole they exploit hard & fast.

 

This discussion is good, and I hope it gets people to understand the legal process & system, moreover I hope more Pro Se's can start thinking like an attorney while defending themselves.

  • Like 1
Link to post
Share on other sites

I don't know if I would put a "without prejudice" dismissal where the defendant, as of October, is still being contacted by Midland, in the victory column, but it's better than nothing.

I most certainly would. She did not have to pay them or continue to trial, and she doesn't have to answer the phone if they call. It is far better than nothing and many (not all) victories are going to be without prejudice.

 

EDIT: a re-read indicates that the plaintiff had no bill-of-sale, which was one of the criteria discussed in this thread. I'd like to see a victory where there is BOS/Affidavit(s)/CC Statements.

I have seen plenty of cases won with all of the above. Most cases will have a BOS/affidavit/cc statements etc. I can't remember a PM where all of the above wasn't a part of the case.

Link to post
Share on other sites

Can you back that up based on 2014's results?

If need be I could, but it would have to be thru PM. You can read all the threads here and see that by far most people that fight do win (I know you guys are having trouble in AZ (but I don't know your rules or exactly why, but even there some people here have won). I have seen a lot of cases in PM's win (99% are CA) in fact only 1 that we worked with lost this year and it is going to be appealed.

In all seriousness, I can't think of a single victory using Harry's criteria (single link in the chain of custody and supporting documentation listed in thread.)

I'm not sure what "Harry's criteria" is or how well it's worked for him (I usually only post in CA threads, and don't follow much of the other post).

Link to post
Share on other sites

As I mentioned earlier, a state-by-state rundown would probably be most beneficial. CA is one of a handful of states that have unique ways of handling these things. I don't see AZ as any different than the other 40+ states that allow a JDB affiant to testify to OC's records. 

 

I need to make an effort to go through this year's posts and come up with a "score card" so we can all stop guessing. I will stand by my belief that Midland/Cavalry, when they are one step from OC, rarely lose at trial with BOS/Affiant(s)/CC statements.

Link to post
Share on other sites

It has been a long time since I have seen anyone claim they were sued by a JDB on a debt they unequivocally did not incur.  It's been even longer since I've seen anyone claim they paid a JDB only to find out the JDB did not actually own the debt.

It's been a while since I can report seeing the same as well. I would also consider it completely irrelevant as to how you would defend a jdb case. 

 

Those things have happened and probably still do happen on very rare occasions, but let's have an honest discussion about the topic.  The vast majority of people that come here asking for help did incur the original debt and everything produced by the JDB indicates the JDB does in fact own the rights to collect the debt.

Again, irrelevant (in my opinion). Who cares? Most people here it is their debt, they incurred it, AND (If they fight it PROPERLY) they will win. The bottom feeders don't deserve it anyway, and many of them have surrendered their right to it by "unclean hands" in the first place.

  At that point we're just splitting hairs over loopholes and technicalities. 

I disagree. Speaking for us here in Cali, we use very few "loop holes and technicalities" (I would have to think hard to come up with one). We apply HEAVY use of the rules of evidence, the civil code of procedures, statutes, local court rules, and preserving a written record, as well as hard work and a few other things.

That's fine, there's nothing illegal about using this approach.  Just be honest about what is it and don't be surprised when the judge sees through the smokescreen and decides what the rest of us already know.

Again Harry, not an attack on you, but how well do you really know your states rules of evidence, authentication and foundation procedures relating to the admittance of evidence, and what steps to take to insure that a live witness appears at trial?

Link to post
Share on other sites

As I mentioned earlier, a state-by-state rundown would probably be most beneficial. CA is one of a handful of states that have unique ways of handling these things. I don't see AZ as any different than the other 40+ states that allow a JDB affiant to testify to OC's records.

I only know about CA law, but it doesn't really have a "unique" way of handling these things. Our laws (as do most states) mirror the Federal rules of evidence and authentication.

Link to post
Share on other sites

As I mentioned earlier, a state-by-state rundown would probably be most beneficial. CA is one of a handful of states that have unique ways of handling these things. I don't see AZ as any different than the other 40+ states that allow a JDB affiant to testify to OC's records. 

 

 

Are you speaking of a JDB's win through MSJ, or trial?   There is a big difference between the two.  From what I've seen is most win through MSJ, when the bar is set much lower.

 

Also, I don't think people are attacking the affidavits sufficiently.  The JDB's affiant rarely list specific business records, it's usually a generalized "business records" statement.  This is not sufficient to authenticate records, and needs to be objected to properly.  Did the affiant use "information and belief", and "to the best of my knowledge"?  Were the affiants properly disclosed?  These are supposed fact witnesses, and may only put forth facts, not place "qualifying" statements to cover their butts, if the info is incorrect.

  • Like 1
Link to post
Share on other sites

I think jdb cases are very winnable in all states (if you put the work in and study the correct areas( and are not misled). 

 

Many cases that have been lost are simply because the judge did not apply the law (bottom feeder friendly) and for that very reason we have appellate courts, OR, the defendant had no clue as to what they were doing.

  • Like 1
Link to post
Share on other sites

EDIT: a re-read indicates that the plaintiff had no bill-of-sale, which was one of the criteria discussed in this thread. I'd like to see a victory where there is BOS/Affidavit(s)/CC Statements.

 

Plaintiff had all that in my case; I got the bos and affidavits precluded from trial though.  Not sure if that counts.  (Judgment for Defendant)

  • Like 1
Link to post
Share on other sites

@Anon Amos

 

@string

 

You guys in CA have CCP 98.  Other states don't have that. 

 

In other states, as long as the statements in the affidavit comply with the business records exception and the referenced documents are produced, affidavits are allowed in place of live testimony at trial even if you object.  If you subpoena a witness, he can be allowed to testify via phone.

 

In addition, Arizona has the adoptive business records doctrine.  That makes it difficult for defendants.

Link to post
Share on other sites

@Anon Amos

 

I'm not sure which other states require that an affidavit is only admissible with 30 days notice.  Rule 803(6) doesn't make such a requirement. 

 

Also, since other states allow affidavits at trial, I'm not sure which states require that there be an offer of a deposition with an affidavit. 

Link to post
Share on other sites

@Anon Amos

 

I'm not sure which other states require that an affidavit is only admissible with 30 days notice.  Rule 803(6) doesn't make such a requirement. 

Not 30 day notice for use of an affidavit, but to use it in lieu of live testimony at trial (depriving someone of their Constitutional right to due process and cross examination). Some states (including CA (ccp 98) will allow the affidavit in lieu of testimony if the opponent was offered a chance to participate in a deposition and they were given 30 days notice..

Rule 803 6 (or the business records exception to hearsay) need not mention it. An affidavit is not a business record or a record of a regularly conducted activity. It is a statement under oath and it is hearsay. Those who lump an affidavit in with 803 6 will most likely be the ones that lose. 803 6 is for records, not affidavits (which is not a record). It is widely accepted amongst states that hearsay is inadmissible at trial.

 

Also, since other states allow affidavits at trial, I'm not sure which states require that there be an offer of a deposition with an affidavit.

The offer of deposition is because the affidavit is trying to be used in lieu of testimony, and CA for one is a state that will allow that. CA will allow affidavits in trial as well, if unopposed or nothing is disputed. Regardless of what state anyone is in, they have a Constitutional right to due process. I would argue that losing at trial to a hearsay document (affidavit) regardless of whether or not it's notarized  does not accomplish that.

  • Like 1
Link to post
Share on other sites

@Anon Amos

 

Not 30 day notice for use of an affidavit, but to use it in lieu of live testimony at trial (depriving someone of their Constitutional right to due process and cross examination).

 

 

If you want to question a witness at trial, it's up to you to get him there or to arrange for a deposition.  Your due process rights are only violated if you follow the procedure to procure the witness at trial or arrange a deposition, but the court denies you the right to confront the witness.

 

 

Rule 803 6 (or the business records exception to hearsay) need not mention it. An affidavit is not a business record or a record of a regularly conducted activity. It is a statement under oath and it is hearsay. Those who lump an affidavit in with 803 6 will most likely be the ones that lose. 803 6 is for records, not affidavits (which is not a record). It is widely accepted amongst states that hearsay is inadmissible at trial.

 

 

I never said that an affidavit is a business record.  It is allowed by courts to authenticate business records.   Most states have a coordinating evidence rule to 803(6).  In some states, it's 902(11).  It's based upon the admission of business records by the use of an affidavit as long as the affidavit conforms to the language of 803(6).

 

Regardless of what state anyone is in, they have a Constitutional right to due process. I would argue that losing at trial to a hearsay document (affidavit) regardless of whether or not it's notarized  does not accomplish that.

 

 

Again, it's up to the defendant to follow the necessary procedure to question the declarant. 

  • Like 1
Link to post
Share on other sites

@Anon Amos

 

@string

 

You guys in CA have CCP 98.  Other states don't have that. 

 

Understood. (I actually used CCP 96 - which I'm guessing they also don't have.)  I made no argument, just responded to the request for an example. (Perhaps with a non-representative example?)

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