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

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@BV80

 

Here is a case that describes the sale of accounts:  Tradex, Inc. v. Modern Merchandising, Inc., 386 NW 2d 800 - Minn: Court of Appeals 1986
 
UCC-9-102 for definitions:
 
(2) "Account", except as used in "account for", means a right to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued, (iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out of the use of a credit or charge card or information contained on or for use with the card, or (viii) as winnings in a lottery or other game of chance operated or sponsored by a Stategovernmental unit of a State, or person licensed or authorized to operate the game by a State or governmental unit of a State. The term includes health-care-insurance receivables. The term does not include (i) rights to payment evidenced by chattel paper or an instrument, (ii) commercial tort claims, (iii) deposit accounts, (iv) investment property, (v) letter-of-credit rights or letters of credit, or (vi) rights to payment for money or funds advanced or sold, other than rights arising out of the use of a credit or charge card or information contained on or for use with the card.
 
(3) "Account debtor" means a person obligated on an accountchattel paper, or general intangible. The term does not include persons obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper.
 
(73) "Secured party" means:

(A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding;

( B) a person that holds an agricultural lien;

© a consignor;

(D) a person to which accountschattel paperpayment intangibles, or promissory notes have been sold;

(E) a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest or agricultural lien is created or provided for; or

(F) a person that holds a security interest arising under Section 2-4012-5052-711(3), 2A-508(5), 4-210, or 5-118.

 


UCC-9-109 for Scope
 
(a) [General scope of article.]

Except as otherwise provided in subsections © and (d), this article applies to:

(1) a transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract;

(2) an agricultural lien;

(3) a sale of accounts, chattel paperpayment intangibles, or promissory notes;

(4) a consignment;

(5) a security interest arising under Section 2-4012-5052-711(3), or 2A-508(5), as provided in Section 9-110; and

(6) a security interest arising under Section 4-210 or 5-118.

 

UCC-9-406 Assignments
 
(a) [Discharge of account debtor; effect of notification.]

Subject to subsections ( B) through (i), an account debtor on an accountchattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

( B) [When notification ineffective.]

Subject to subsection (h), notification is ineffective under subsection (a):

(1) if it does not reasonably identify the rights assigned;

(2) to the extent that an agreement between an account debtor and a seller of a payment intangible limits the account debtor's duty to pay a person other than the seller and the limitation is effective under law other than this article; or

(3) at the option of an account debtor, if the notification notifies the account debtor to make less than the full amount of any installment or other periodic payment to the assignee, even if:

(A) only a portion of the accountchattel paper, or payment intangible has been assigned to that assignee;

( B) a portion has been assigned to another assignee; or

© the account debtor knows that the assignment to that assignee is limited.

© [Proof of assignment.]

Subject to subsection (h), if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (a).

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@Coffee_before_tea

Before your post, I read all of that, but after reading it more than once, I now understand what you mean.

To be honest, I'm not sure how that can help us. 

First, the UCC states that we have to receive a notification of an assignment of an account, but it doesn't specify what is considered a reasonable notification.  If a JDB sends you a letter that they bought the account, is that sufficient notification?

If you read the court rulings on that issue, we have to respond within a reasonable amount of time if we want proof of that assignment.

Second, it doesn't specify what constitutes a proof of assignment.   That's up to the courts.

 

The members on this site have consistently stated that a JDB has to prove ownership of an account in order to prove their standing to sue.  I'm thinking that if the UCC is a major issue in determining standing, there'd be more case law available for us.

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@BV80

 

 if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (a).

 

 

They are required to provide "authenticated" proof of assignment, that "reasonably identifies rights assigned".  This can be requested at any time.  However, don't confuse my point here, as I'm trying to create material issues of fact, in order to get passed a MSJ and onto trial.

 

The UCC and the TILA are not "case winners" per se.  However, they are procedural barriers that need to be overcome by the JDB.  The reason why we don't see a bunch of case law in this area is (in my opinion) because,  these are complex arguments, entwined in complex statutes.  I doubt these are argued that often.  I do know Edelman mentions these arguments.

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@Coffee_before_tea

Before your post, I read all of that, but after reading it more than once, I now understand what you mean.

To be honest, I'm not sure how that can help us. 

First, the UCC states that we have to receive a notification of an assignment of an account, but it doesn't specify what is considered a reasonable notification.  If a JDB sends you a letter that they bought the account, is that sufficient notification?

If you read the court rulings on that issue, we have to respond within a reasonable amount of time if we want proof of that assignment.

Second, it doesn't specify what constitutes a proof of assignment.   That's up to the courts.

 

The members on this site have consistently stated that a JDB has to prove ownership of an account in order to prove their standing to sue.  I'm thinking that if the UCC is a major issue in determining standing, there'd be more case law available for us.

Unfortunately there is not a lot of caselaw for credit card litigation anywhere. Collection by litigation is rarely taken to reviewing court levels, This is ripe discussion for application of UCC as debt collection is governed by federal statute I believe that the UCC being a more specific statute is in accord with the FDCPA. Since Standing to sue is part of the character or nature of a debt, misstating the character in an affidavit is a per se violation of the FDCPA.

Because if the JDB knows the records are inaccurate, and they say they are in court so that is the disparity. The courts believe them because people reelect bad judges by not voting because the just have to get some votes to win. Disrupt the trust the court has for members of the collections bar is the priority.

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Unfortunately there is not a lot of caselaw for credit card litigation anywhere. Collection by litigation is rarely taken to reviewing court levels, This is ripe discussion for application of UCC as debt collection is governed by federal statute I believe that the UCC being a more specific statute is in accord with the FDCPA. Since Standing to sue is part of the character or nature of a debt, misstating the character in an affidavit is a per se violation of the FDCPA.Because if the JDB knows the records are inaccurate, and they say they are in court so that is the disparity. The courts believe them because people reelect bad judges by not voting because the just have to get some votes to win. Disrupt the trust the court has for members of the collections bar is the priority.

out here, in my area of California, each of us registered and voting voters represent ___25___ members of the population with each visit to the polls.

on the one hand, that is kind of awesome power, but, on the other, that kind of disappoints and dilutes the authenticity of the pool when foreclosed homes are used to register phantom voters, and deliver their absentee voter ballots, (and so much more voter fraud prolifically prospering at a rampant pace all across the nation - in some precincts, more votes than residents are logged!)

my sore spot has long been how judges seem to just run on name while other candidates list everything from education to family composition for paragraph upon paragraph. Why is this? And, is my hypothesis that judges get in, or voted out, based up the votes of area fellow judges, mostly area fellow attorneys, and the local resident county workers and their relatives?

most of all, how do you propose achieving your goal? I am game for moving it forward here, in the 52nd precinct, FWIW.

Warmly,

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Unfortunately there is not a lot of caselaw for credit card litigation anywhere. Collection by litigation is rarely taken to reviewing court levels, This is ripe discussion for application of UCC as debt collection is governed by federal statute I believe that the UCC being a more specific statute is in accord with the FDCPA. Since Standing to sue is part of the character or nature of a debt, misstating the character in an affidavit is a per se violation of the FDCPA.Because if the JDB knows the records are inaccurate, and they say they are in court so that is the disparity. The courts believe them because people reelect bad judges by not voting because the just have to get some votes to win. Disrupt the trust the court has for members of the collections bar is the priority.

out here, in my area of California, each of us registered and voting voters represent ___25___ members of the population with each visit to the polls.

on the one hand, that is kind of awesome power, but, on the other, that kind of disappoints and dilutes the authenticity of the pool when foreclosed homes are used to register phantom voters, and deliver their absentee voter ballots, (and so much more voter fraud prolifically prospering at a rampant pace all across the nation - in some precincts, more votes than residents are logged!)

my sore spot has long been how judges seem to just run on name while other candidates list everything from education to family composition for paragraph upon paragraph. Why is this? And, is my hypothesis that judges get in, or voted out, based up the votes of area fellow judges, mostly area fellow attorneys, and the local resident county workers and their relatives?

most of all, how do you propose achieving your goal? I am game for moving it forward here, in the 52nd precinct, FWIW.

Warmly,

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It's relevant because summary judgment cuts the evidence discussion off at the knees.

There won't ever be much discussion on evidence in a summary judgment, and even if there were the evidence will not be weighed there.  You would however create a genuine  issue as to any  material fact, and show that at least one does exist and that the case must be heard by a trier of fact (It must go to trial).  

  If we cannot get to a trial because of affidavits submitted at summary judgment, what good is a discussion if we're only going to talk about evidence admitted at trial?  That doesn't help pro se litigants that never make it to trial.

It's not the AFFIDAVIT at summary judgment that's going to kill your case, it's how you respond to the summary judgment itself. A summary judgment awarded is saying that there was no issues at all and that both sides agree with the evidence and there's really nothing to be heard in trial.

If anyone in any state thinks they are going to beat a summary judgment by getting an affidavit stricken they are already dead in the water. There's always going to be an affidavit in a MSJ and there should be. I as a defendant would not want to have to subpoena a witness or argue hearsay if I didn't when all I had to was show a material issue exist and move to trial where I would then proceed with the above.

The discussion is good because people might realize that "what the rest of you already know" may not be correct. And MANY people never have a summary judgment in the first place so they need to learn how to keep the affidavit out of trial (even if they fo have a MSJ they need to learn keep the affidavit out of trial).

 

You've read the affidavit Cavaly used to obtain summary judgment against me.  Tell me specifically how you would have tried to knock this back if it was you that had been sued.

 

 

I would have shown that there is a genuine issue as to any material fact existing. You have a constitutional right to due process and to face your accusers (regardless of whether or not you are in a federal court). Your rules state you can submit affidavits, answers to RFA's and ROGS, memorandums to accomplish that, and your rules were amended to give defendants more time to do that.

Your rules also say " the judgment sought shall be rendered forth if the pleadings, deposition, answers to rogs and RFA's  ON FILE together with affidavits if any SHOW THAT THERE IS NO genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage"

 

Also, you beat the first summary judgment even with an affidavit the first time. Did you do the exact same opposition to the summary judgment as you did the first time the second time around?

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  If we cannot get to a trial because of affidavits submitted at summary judgment, what good is a discussion if we're only going to talk about evidence admitted at trial? 

It's good because most people that lose do so by affidavit. And many people will never see a summary judgment in the first place, BUT they will definitely see an affidavit. And most people that fight summary judgments win.

 

I have spoken to people here from AZ and in a few cases they never had an MSJ.

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If anyone in any state thinks they are going to beat a summary judgment by getting an affidavit stricken they are already dead in the water.

 

That's not true.   By getting an affidavit stricken, the plaintiff has no affidavit in support of summary judgment.   Therefore, summary judgment cannot be granted for the plaintiff.

 

 

I would have shown that there is a genuine issue as to any material fact existing.

 

 

Just because a defendant claims there's a genuine issue of material fact doesn't make it so.   You can raise every issue you can think of, but unless those issues are supported by your own affidavit, facts, or evidence, then they're not genuine issues.

 

Your own affidavit must give the judge a reason to deny summary judgment.   If your affidavit isn't enough, you have to support any issues you raise with your own admissible evidence.   If you don't have your own evidence, then those issues have to be supported by applicable case law.  The JDB's motion is going to contain case law in its favor.   If you can't support your issues with case law, then they will not be considered genuine issues of material fact.

 

 

You have a constitutional right to due process and to face your accusers

 

 

If the summary judgment process violated the Constitution, the process would not be allowed in the first place.

 

The right to confront in the Sixth and Fourteenth Amendments to the Constitution is for criminal prosecution.  That fact is stated in the first sentence of the Sixth Amendment.  One's own state constitution (or possibly court precedent) would have to offer such a right in civil court.

 Tana also argues that the admission of the affidavits deprived her of the opportunity for cross-examination because she was unable to question the experts who prepared the affidavits and SFP presented no in-person witness testimony. However, in support of her argument, Tana cites only criminal cases addressing the Confrontation Clause. Although the United States and Arizona Constitutions guarantee criminal defendants the right to confront their accusers, there is no corresponding civil right in this context. See Matter of Appeal in Maricopa Cnty. Juv. Act. No. JS-7499, 163 Ariz. 153, 157, 786 P.2d 1004, 1008 (App. 1989) (The right to confront an accuser under the state and federal constitutions "belongs solely to the accused in a criminal prosecution."); cf. In re MH-2008-000867, 225 Ariz. 178, 236 P.3d 405 (2010) (finding that criminal cases addressing the Confrontation Clause were inapplicable to mental health commitment proceedings because such proceedings are civil).

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(It must go to trial)

Or what? Please explain how it "must go to trial" if the trial court finds the evidence admissible on summary judgment, the appellate court refuses to "second guess" the trial court findings, and there are no further appeals available.

I would have shown that there is a genuine issue as to any material fact existing. You have a constitutional right to due process and to face your accusers (regardless of whether or not you are in a federal court). Your rules state you can submit affidavits, answers to RFA's and ROGS, memorandums to accomplish that, and your rules were amended to give defendants more time to do that.

Your rules also say " the judgment sought shall be rendered forth if the pleadings, deposition, answers to rogs and RFA's ON FILE together with affidavits if any SHOW THAT THERE IS NO genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage"

Also, you beat the first summary judgment even with an affidavit the first time. Did you do the exact same opposition to the summary judgment as you did the first time the second time around?

This didn't answer my question. I asked how you would have specifically responded.

Edit: I didn't beat the first MSJ. The judge just denied it. I incorporated my responses from the first MSJ into my response to the second MSJ, so yes, I used the same arguments the second time. The exact same, in fact.

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I have spoken to people here from AZ and in a few cases they never had an MSJ.

A few maybe, and I guarantee you these few were not in Justice Court, not in the last couple of years and not when there is an affidavit like the one used against me.

The court rules changed at the start of 2013. Any lawsuit under $10k must be filed in Justice Court, which has its own set of rules of procedure that were drafted almost exclusively by debt collection lawyers. The judges in Justice Court are not required to have any legal education whatsoever. Further, Justice Court has a single level of appeals that render unpublished "minute entries". It's a complete joke. All that's happening is these cases are being kept out of real court.

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Or what? Please explain how it "must go to trial" if the trial court finds the evidence admissible on summary judgment, the appellate court refuses to "second guess" the trial court findings, and there are no further appeals available.

I'm not sure if I can because It would be case specific, I don't know the details on your case and never followed it, or your rules and because of that there are things that I won't understand in this post, I'm not saying you have a good court, but to me it looks like you MAY have made some mistakes.

I don't understand "if the TRIAL court finds the evidence admissible on summary judgment". Why are you in a TRIAL and having a ruling on what is admissible on a summary judgment? "the appellate court refuses to"second guess" evidence". The appellate court should address whether or not it was admissible in the first place or if there are issues of foundation. They don't have to second guess or weight the evidence, just whether or not a proper foundation was laid for it and it  (assuming it was properly objected to).

"or what" IF they did all of this, you do have a complete understanding of foundation, authentication, rules of evidence, summary judgment and trial rules, the Constitution, due process ETC, ETC,  THEN I would say you must have a corrupt court as well as  some constitutional rights violated as well as other violations, and if there truly is no appeal from there then I would look into whether or not you have a state court commissioner and file a complaint there and with the attorney general, state bar or any other place my research provided. Or just accept it and work on another angle to not pay the bottom feeder anything more then a hard time.

This didn't answer my question. I asked how you would have specifically responded.

I would have had them under discovery (disclosure) before they filed the MSJ (because it may have helped), I probably would have used something in the discovery or objections to it (depending on what happened (case specific), I may or may not have introduced an affidavit of my own (depending on the details of the case). I am going to assume the affidavit is  correct by procedure and contains the proper language (not very hard for them to do considering it's written right in the code) so I am going to attack the affiant in the affidavit and raise foundation issues (how can he authenticate other peoples records, how de we know he is who he says he is even if he could. Furthermore if he is to be considered relevant to this case; then I would want to subpoena him if that's what it takes; because I am going to invoke my Constitutional right to Due Process and want a day in trial to cross examine witnesses, not be beaten by hearsay.

I would look for any case law on hearsay, foundation, if it is not there as people are saying; then I would look for US Supreme Court opinions on hearsay, due process, right to cross exam etc. I myself would find and show a material issue of fact. I would continue to fight until the bitter end and if not like I said, complaints to attorney general etc.

 

Edit: I didn't beat the first MSJ. The judge just denied it

I'm not sure why that's not the same thing because I don't know the case specifics and what happened.

. I incorporated my responses from the first MSJ into my response to the second MSJ, so yes, I used the same arguments the second time. The exact same, in fact.

I thought I asked a few time what it was you did to oppose it but didn't get an answer. In any event (and just speculating) I think you MAY have made mistakes and MAY not have had complete knowledge of critical areas. If that's not the case, then  (if it were mine) I would continue to fight it like I said above. If not, then yes you are done and out of luck, because I don't think you are going to appeal to the U.S. Supreme Court as they only hear 6% of the case request and you need a lawyer for that.

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A few maybe, and I guarantee you these few were not in Justice Court, not in the last couple of years and not when there is an affidavit like the one used against me.

The court rules changed at the start of 2013. Any lawsuit under $10k must be filed in Justice Court, which has its own set of rules of procedure that were drafted almost exclusively by debt collection lawyers. The judges in Justice Court are not required to have any legal education whatsoever. Further, Justice Court has a single level of appeals that render unpublished "minute entries". It's a complete joke. All that's happening is these cases are being kept out of real court.

It does sound bad there, and I can't research law etc out of CA. If that's the case, like I said, I would contact the court commissioner (if you have one), attorney general, and I would find any other areas as well, end up on 60 minutes etc. if that's what it takes.

That's why I would attack it with the Constitution. All of that is un Constitutional regardless of whether or not they have made it law.

 

Has there not been a single defendant to win here since 2013? 

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That's not true.   By getting an affidavit stricken, the plaintiff has no affidavit in support of summary judgment.   Therefore, summary judgment cannot be granted for the plaintiff.

IF you can get the affidavit stricken. I haven't heard of any case where the affidavit was stricken from a summary judgment (not saying it never happened), and the conversation is that the affidavits are now written correctly, so it should be getting harder. But yes, if you could strike the affidavit then they could not be granted summary judgment.

I just figured that since he said they already accepted the affidavit and it was written perfect, that that is a moot point.

 

 

 

Just because a defendant claims there's a genuine issue of material fact doesn't make it so.   You can raise every issue you can think of, but unless those issues are supported by your own affidavit, facts, or evidence, then they're not genuine issues.

Agreed. I never suggested not doing anything to support it or not to file affidavit, or discovery responses, etc. I have seen PLENTY of people here beat MSJ's.

 

 

 

If the summary judgment process violated the Constitution, the process would not be allowed in the first place.

I never said the summary judgment PROCESS violated the Constitution. The RESULT of a summary judgment MIGHT; depending on the case and specifics. You are taking things out of context.

 

The right to confront in the Sixth and Fourteenth Amendments to the Constitution is for criminal prosecution.  That fact is stated in the first sentence of the Sixth Amendment.  One's own state constitution (or possibly court precedent) would have to offer such a right in civil court.

 Tana also argues that the admission of the affidavits deprived her of the opportunity for cross-examination because she was unable to question the experts who prepared the affidavits and SFP presented no in-person witness testimony. However, in support of her argument, Tana cites only criminal cases addressing the Confrontation Clause. Although the United States and Arizona Constitutions guarantee criminal defendants the right to confront their accusers, there is no corresponding civil right in this context. See Matter of Appeal in Maricopa Cnty. Juv. Act. No. JS-7499, 163 Ariz. 153, 157, 786 P.2d 1004, 1008 (App. 1989) (The right to confront an accuser under the state and federal constitutions "belongs solely to the accused in a criminal prosecution."); cf. In re MH-2008-000867, 225 Ariz. 178, 236 P.3d 405 (2010) (finding that criminal cases addressing the Confrontation Clause were inapplicable to mental health commitment proceedings because such proceedings are civil).

Are you saying that we have no Constitutional rights if we are in a Civil Court (I'm not considering this comment as taken out of context because we have had this very conversation so many times before). What about the 5th Amendment Due Process Clause? The guarantee of due process for ALL citizens. The 5th amendment may apply only to the federal government, but the identical text in the 14th amendment explicitly applies this due process requirement to the states as well.

 

I know you disagree, and in doing so many others will as well. Agree to disagree. Some people will win their case and some will lose.

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I never said the summary judgment PROCESS violated the Constitution. The RESULT of a summary judgment MIGHT; depending on the case and specifics. You are taking things out of context.

 

 

I'm not taking anything out of context.   You mentioned that one has a right to face his accusers.  That does not usually take place in a MSJ hearing.  If that's not what you meant, fine but don't start making accusations.

 

 

Are you saying that we have no Constitutional rights if we are in a Civil Court

 

 

By pointing out that the Sixth Amendment applies to criminal court, how in the world does that translate to an implication by me that we have no Constitutional rights if we are in Civil Court?  

 

 

I know you disagree

 

 

No, I do not disagree.  I have never said that we do not have the right to due process. 

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@Anon Amos

I don't for one second believe I made zero mistakes. I know of several, in fact. To my knowledge, however, none of those mistakes should have cost me my case in trial court ("trial court" is the term used used for courts of initial jurisdiction - it doesn't mean a trial actually took place).

I clearly and thoroughly documented my case in my thread and posted everything I filed with the court. I'm not going to repost everything here since it exists elsewhere on the site, but you're welcome to read through it and let me know if you can spot any fatal mistakes. Any time there was a concensus on specific advice, I followed it. At any rate, I don't think you'll find anyone that put together a more convincing string of arguments against summary judgment and Cavalry's evidence.

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By the way, the appellate court made a point of the fact that I did not deny opening the account with BofA. I try to not commit perjury and I couldn't say with certainty that I never did this so I couldn't in good faith swear to it under oath.

I suppose that could be considered "fatal" not not a mistake since it was deliberate.

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Harry, I don't doubt for one minute you have bad courts there, we have them here as well. If you had a chance to appeal this I would probably would look up your case. I would have to research your rules and you can't appeal anyway.

I would suggest trying to file complaints elsewhere as I said. Find a way not to pay them.

I wish I could be of help to you my friend. If you we were to move to Cali and got sued again you would have it made.

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I did not debt l deny opening the account with BofA. I try to not commit perjury and I couldn't say with certainty that I never did this so I couldn't in good faith swear to it under oath.

In the same sense; can you swear under oath that it is your debt and you did open the account?

The judge asked me if I can swear under oath it's not my account. I said no more than I can swear under oath it is my account.

You might need due process and cross examination before you can swear under oath in either direction to certain allegations. Especially if they object to discovery.

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Could you make a case that the Justice courts are not a court of competent jurisdiction under the fdcpa?

Yes, but this is a different discussion, albeit a very valid one.

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common law says you have a right of cross-examination of witnesses.

 

 

True, but you have to follow the proper procedure.  If witnesses are allowed at the summary judgment hearing, you can't just assume that a witness is going to be there.  Unless the other party has stated that their witness will appear, you have to subpoena him.  If witnesses not allowed at the hearing, then perhaps you should depose the witness beforehand.   Just because you have the right to question a witness doesn't mean you don't have to follow the proper procedure in order to be able to question him.

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