Seadragon

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

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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.

These are different things. There can be several reasons why you cannot swear to something under oath and only one reason you can (which is to affirm or deny whatever you're swearing to).

I came across something that fits in with our earlier discussion regarding "preponderance of evidence". The way it was worded in the case I was reading is that when two possible scenarios are presented, the court has to side with one or the other. This is unlike a criminal proceeding in that the court or jury can find the government's scenario more likely, but can decide there exists a reasonable doubt. When you look at these cases in this light, how can you expect a court to find for the defendant in the presence of supporting documentation and a legit affidavit? Sorry, but in my mind a simple denial cannot overcome that kind of evidence. There has to be put forth by the defendant a plausible alternative and supporting evidence.

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I never said there didn't need to be. I always say to do discovery. You have to fight the case.

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I conducted discovery. What specifically should I have asked for? They admitted the accounting in their demand letter was inaccurate. The judge didn't find that to be a material issue.

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There's an example of RFP'S in ASTMEDIC'S thread that can help people in any state as far as what to ask for. It's a simple 3 or 4 item list not the laundry list discovery and it's Calawyer approved.

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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.

 

I don't know about AZ but here in OK you can petition (at least in Civil CPS proceedings) to move your case from "CPS Kangaroo Court" to District Court (if you push real hard). But we don't have many such special small claims courts (rural state) most are in a District Court to start with. Case's under 10,000 are "small claims" and get a different Case prefix (CS) while those over 10,000 get a different prefix as do Criminal middemors and felonys do too. All are usually presided over by the same District Judge (not all Counties here have an Associate Judge).

 

Been a while since I went over appeal rules, but I am sure that in OK if you petition within 30 days of a SJ judgment a kick up and review by the Appellate Court (on the record review..gotta have those objections in there) is pretty much automatic. If you have raised numerous objects (insufficient affidavits, bills of sale, etc) and the appellate court sees them as insufficient, they will usually overturn it or..... kick it back to the trial court to redo.

In my case, so far all the documents I've gotten (discovery will happen soon) are so insufficent they are ridiculous..hoping the judge thinks so too.

I don't really see how they can make an affidavit sufficient...most are created months or year's after the sale date specifically for litigation purposes (and therefore not the same caliber record)....how can that be ".....around the time.....and with full knowledge of... "document specialist"   (an oxymoron in and of itself) ()(who the heck created and maintained this record?), Heresay, he does not have "first hand knowledge.....not involved in the creation........", no business record exemption, especially when they don't specify and specifically Identify the particular document(s) they "inspected" to arrive at their conclusion.

 

If this is a problem in AZ it might take a ProSe (or helpful lawyer) lawsuit (class action?) filed (or numerous suits). I would think that this would run over into a "Civil Rights Violation" territory. That would kick it out of the possibly corrupt state court system.

 

Not sure that just picking some good ole boy out and majically calling him a judge (poof...your a mushroom!) would be defensable by the state in a Federal Civil Rights court. Unless they have some kind of legal training I know some good ole boys that would be very favorable to us. I'll volunteer LOL.......NOT.

Even their job description does not give them "expert knowledge of YOUR acct and they didn't do the data entry or personally inspect every document filled in..again there not data entry or accountants.

 

DOCUMENT SPECIALIST

 

Document specialist job responsibilities may vary with the industry, and with the methods used to store and retrieve documents. Document specialists are responsible for storing data and records for document retrieval and archives. Business documents are used to standardize production of goods and services, and can become legal documents to ensure company compliance to internal and external policies and procedures.But he didn't create or maintain those documents, he merely files, organizes and see's if they were filled in, in the proper manner.....he didn't calculate and post every transaction on your account or any account for that manner!

Responsibiities

Documentation specialists are responsible for maintenance of company documents. They are responsible for storage, cataloging and retrieval of documents. They maintain the integrity of working documents and update documentation   (Qualifications? Account degree? Personally calculate and store your records? Have a crimminal record?)when revised (bet he didn't do the revising,data entry, their not accountant's.). They maintain systems for document storage and retrieval, and help train employees on efficient system usage. They are also responsible for document security (responsible don't actual input or maintain them all), for assigning access (he watch every employee transaction? Got any exfelons working there...he sure?), and for removing and destroying obsolete documents (did he remove or change your documents? Just how hones is he?).

Skills

Document specialists must be detail-oriented and able to work with a high volume of documents in a fast-paced environment (and never make a mistake or misfile something?). They have to be highly organized and process-oriented (robosigning assembly line). They must have excellent oral and written communications skills (Bravo Seria) to interact with all levels of an organization. They must have excellent listening skills, and be able to handle multiple requests while detailing document activity.

 

Mary Nestor-Harper has more than 12 years as a human-resources director and more than 19 years experience as an HR/management consultant. She has been published in "Training Magazine," "The Savannah Morning News" and on the Web. A television and radio business, career and motivation expert, she shares career and job search tips as Ageless Media Network's career expert on WTKS-AM 1290, Savannah, Ga.

 

Man, I sure hope that none of these "Mushroom" Judges have anything to do with issuing INS paperwork. They'd hand it out like candy (even more so than///.... .....well you know). They'd roll over for any of their Federal Master's.

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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.

I learned that lesson the hard way.

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It's time to get back to the original intention of this thread.  I apologize for responding to posts that were not relevant to the topic. 

 

If we cannot adhere to the topic and/or there are no more viable options to be offered, this thread will be locked.  

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Agreeded BV80, who cares if they are or....are they not useful. Just get them, look them over, formulate response or not. Woulda, Shouda, Coulda.......

 

Getting the FF agreements.....Not sure that getting them from the JDB would be the best way. What I would prefer is that thru say FOI request to CPBB, FTC, and Secretary of States office filings (for possible UCC 901 filings in conjunction with a debt sale. Or some other method I'm not thinking of right now.

 

It would be much better in my opinion, to merely ask for the agreements (so when they don't send them or don't think they need to and deny it) so we can attack what little they give.

 

Personally I think that just having several of these documents stuck in my notes and highlighted, will some case law if possible, would give a pro se a much larger pre-trial or trial advantage in using them to come in from out of left field with pointed hard arguments and conclusion's and try to knock the Plaintiff's attorney's off their "game" so to say.......as most seem to have a fairly well set script, they are comfortable and confident with it.............use the FF and UCC filings to SHOVE....not push them out of that comfort zone. 80% of any court case is grabbing the moment, running with it and keep the opposition from catching up...so to say.

 

Let's quit cussin and discussing the pro's and cons of their use. Get them, use them as needed, or not......................I'm willing to call, write or send faxes, emails whatever and stir the waters, time for the peasant's to rise up push....proactive instead of reactive............start putting the JDB's on the defensive by giving them a constantly moving target.

 

What we need is a viable way to proceed on that, put our heads together and get the scripts (document request samples, fax examples, FOIA forms examples and numbers, fax numbers, addresses, contact information) and game plans worked out post them for everyone to get these method documents (just without the opposition knowing that you have them or know about them). you know boiler plate request then mod them to fit the OC and/or JDB. Get copies of these from as many different one's as possible......just don't let them know who's going to use it on them or in which case.

The OC's (or their filings at the Sec of St offices) might be the best place to get them as they are the one's that write them (to cover themselves) and the JDB basically sign them and OC would be less likely to care as they are not as well, INVESTED in the account in longer.........from the horses mount to say. Maybe from the CPBB, should be a public record???

 

We need a Credit-hatton Project.....................Build a better (lower the) boom. I know we have some sharp minds on the board and a few "legal professionals" (who might have the professional contacts).....if documents can leak out of the WhiteHouse, then why can't a few of FF "leak" out of some unknown and unidentifiable "DeepThroat's"? Cut throat professions always have disgruntled associates.......or employees. What about a generic type fax....sent by the hundreds to the Gov agencies demanding these generalized aggreements be posted............truth in lending  Their contents affect anyone in the public with a loan, CC or debt - defaulted or not..

 

If not building a better mousetrap.......how about one that hurts them more?

::Rant Off::

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Getting FF agreements....

It would be much better in my opinion, to merely ask for the agreements (so when they don't send them or don't think they need to and deny it) so we can attack what little they give

Agreed. Good point.
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I downloaded the zip file just in case it goes down. What you can use it for is to make admissions that are specific. This is a very good link. Your Google-fu is strong.

 

Seadragon, What do you mean "make admissions that are specific"?

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That is where the counter affidavit comes into play. And a statement of disputed facts. Where having the Forward flow would be of utility in the MSJ situation, it can be used to support disputed facts.

 

For example: The MSJ affiant says the records are accurate... The Statement of disputed facts say the account was sold defective...

 

It is making the court unable to rule for them which is important. Tying the courts hands. In doing that you will preserve the issues for appeal.

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Seadragon, What do you mean "make admissions that are specific"?

Where you ask for instance:

1. Admit that the recitals on the forward flow say Quote FF recitals in regards to records inaccuracy and untrustworthiness

2. Admit that YOU did not obtain the alleged documents until after this lawsuit was filed

Something like that

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Apologies for being so late to a thread that I can shed some light on first hand.   I am the proud owner of a forward flow agreement of which Portfolio Recovery was ordered by the court to produce.    I went into a more thorough description last year in this thread-  http://www.creditinfocenter.com/community/topic/323418-happy-day/#entry1290310.

 

To answer the original poster's initial question, the way you get one is to formulate your discovery from the very beginning for the sole purpose of leading up to giving the JDB the choice of producing this document or, more likely, dropping the suit in lieu of producing it.   Everyone seems to assume that the purpose of discovery is simply to reveal what the plaintiff plans to use against you.  When being sued by a JDB discovery is also by far the most important tool that you have to win your case.  You need to word your discovery from the get-go to counteract what you anticipate the JDB to come up with in the later stages of the case.  Any of us who are seasoned JDB battlers know exactly what they pull out of their hats to try to spring on us.  Craft your request for admissions and interrogatories so the result of producing any of their typical "evidence" will be nothing more than shooting themselves in the foot.

 

The acquisition of a forward flow agreement is not meant to disprove that the JDB purchased an account with your name on it.  It is to invalidate the typical robo-signed affidavit that will inevitably be sprung sooner or later should the JDB choose to fight.  There is nothing better for your defense than a blatant contradiction of their own words from themselves.  If they are bold stupid enough to show you (and the court) the forward flow agreement then they have not only shot themselves in the foot but also in the head at the same time. 

 

Besides contradicting the affiant's declaration that the account records that he knows everything about are reliable and accurate there is also a clause that says the contents of the agreement is never to be revealed to anyone.  By giving up this information the JDB is in now in hot water with the OC so their future business dealings may be in jeopardy.  

 

I would stake a huge bet that anyone who is savvy enough to get to the point of the JDB being ordered to turn over the agreement that they will come out a winner.  Admittedly my case was not won exclusively by being granted the motion to compel the forward flow agreement but there is no doubt it was a tremendous reinforcement.  The JDB attorney, Ahn Regent out of Houston, is basically a loose cannon and is despised by most courts.  Read the thread that I referenced above; anything short of me standing up in court and exclaiming,"OK, I admit it, I owe this JDB the full amount!" may well have resulted in my victory.     

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there is also a clause that says the contents of the agreement is never to be revealed to anyone.

I'm pretty sure this clause cannot be enforced where the JDB is under court order to present the document. I've seen dozens of these agreements involving all of the major players that continue to do business with each other. If what you say is true, the JDBs in all of the agreements I have seen would no longer be in business with the OC identified in the agreement and that's not the case at all.

Perhaps the parties believe it's in their best interest to continue to do business with each other despite the breach in contact.

I still think a court order releases a party from any non-disclosure provisions.

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I'm pretty sure this clause cannot be enforced where the JDB is under court order to present the document. I've seen dozens of these agreements involving all of the major players that continue to do business with each other. If what you say is true, the JDBs in all of the agreements I have seen would no longer be in business with the OC identified in the agreement and that's not the case at all.

Perhaps the parties believe it's in their best interest to continue to do business with each other despite the breach in contact.

I still think a court order releases a party from any non-disclosure provisions.

I think the non disclosure agreement in the forward flow would possibly trigger them to be forced to dismiss to protect OC from disclosure, I believe that is why they exert trade secret privilege when we ask for it. We must therefore sharpen up our Motion to compel motion arguments.

@texasrocker That is a huge HR. Most excellent Post. Texasrocker sniper in the Credit Litigation Resistance Militia

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Harry Seaward, on 02 Jan 2015 - 10:35 AM, said:
I'm pretty sure this clause cannot be enforced where the JDB is under court order to present the document. I've seen dozens of these agreements involving all of the major players that continue to do business with each other. If what you say is true, the JDBs in all of the agreements I have seen would no longer be in business with the OC identified in the agreement and that's not the case at all.
Perhaps the parties believe it's in their best interest to continue to do business with each other despite the breach in contact.
I still think a court order releases a party from any non-disclosure provisions.

 

Possibly but not necessarily.  In the vast majority of cases if they are ordered by the court to produce it they drop the lawsuit at that point. 

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It's time to get back to the original intention of this thread.  I apologize for responding to posts that were not relevant to the topic. 

 

If we cannot adhere to the topic and/or there are no more viable options to be offered, this thread will be locked.

Thank you for keeping the train on track. I think we are doing some good here.

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Here are some discovery requests for California that have @texasrockers, @seadragon, @BV80, and some others I have picked up over time. Lets review please.

 

 

This is a good discussion.

 

Lets come up with trial questions for any witness they bring along the lines of disrupting adoptive records claims.

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Going back to the Parker case, I have seen how our situations with JDB's are distinguisheable. In Parker , Ward was 1. An actual Custodian of records for Capital 1. 2. That as a fraud investigator was a qualified witness with the requisite first hand knowledge of the OC's record keeping practices. 3. Had a business duty because charges to the account were made after the deaths of the cardmember. And lastly could attest to the accuracy and trustworthiness of the records.
 
In our cases, the jdb affiant would have to themselves show that they had all the 803(6) prerequisites before the records were transferred. That is how it is coloreable is that the records are not vouched for going in therefore the business cannot rely on them for any purpose. Also the testimony of Ms. Ward was taken at deposition and not declaration or affidavit. Parkers counsel was there for questioning the witness with power to object. Ward made an incourt testimony, an affidavit is different and inadmissible at trial, after a court is going to rule on summary judgment it to is in effect a trial, therefore the affidavit is not testimony. Telephonic witnesses are not the same as a video deposition. For the SJ to be valid they would have to submit deposition testimony to support an SJ.

 

From State v. Parker.

"D. Admitted Business Records

¶ 28 Parker asserts that the trial court improperly admitted a report of the Smiths' credit card transactions and Wayne's handwritten timesheets under the business records exception to the hearsay rule, Arizona Rule of Evidence 803(6). We review these rulings for abuse of discretion. Tucker, 205 Ariz. at 165 ¶ 41, 68 P.3d at 118. The business records exception requires that the record be made at or near the time of the entry by or from information transmitted by someone with knowledge, be kept in the ordinary course of business, be made as a regular practice, and be testified to by a qualified witness. Ariz. R. Evid. 803(6).

 

1. Credit card report

 

¶ 29 At trial, the State introduced evidence of transactions on the Smiths' Capital One credit cards through videotaped deposition testimony of Keri Ward, a Capital One fraud investigator. The State also introduced a report Ward prepared by copying and pasting the Smiths' credit card transaction information from Capital One's database. Parker objected to the report, arguing that it was not prepared in the regular course of business. The trial court overruled the objection.

¶ 30 Documents prepared solely for purposes of litigation generally are not made in the regular course of business. See Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1258–59 (9th Cir .1984) (discussing Federal Rule of Evidence 803(6)). If documents prepared for litigation are mere reproductions of regularly kept database records, however, such documents may qualify as business records. See U–Haul Int'l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043–44 (9th Cir.2009) (discussing federal rule 803(6)); see also Jack B. Weinstein and Margaret A. Berger, Federal Evidence § 901.08[2], at 901–84 (Joseph M. McLaughlin ed., 2d ed., rev. 2012) (“[P]rintouts prepared specifically for litigation from databases that were compiled in the ordinary course of business are admissible as business records to the same extent as if the printouts were, themselves, prepared in the ordinary course of business.”). This is the case with the records at issue here.

¶ 31 Ward testified that Capital One regularly makes and keeps records of all credit card transactions. She described how merchants and other third parties transmit the information used to create the records. Although the records aid in fraud and police investigations, Ward indicated that the records serve several other business purposes, including billing, tracking spending habits, and resolving customer disputes. These facts qualify the entries in Ward's report as business records.

¶ 32 Further, Ward's report did not change the character of the records. Ward testified that she accessed the Smiths' account information in Capital One's computer and copied and pasted that information into a document she faxed to the police. Although Ward made the report at the request of the police, the information provided was identical to Capital One's business records. Because the report simply repeated information that was admissible as a business record, the report itself was likewise admissible. See Ariz. R. Evid. 1006; U–Haul Int'l, Inc., 576 F.3d at 1043–44 (noting that “evidence that has been compiled from a computer database is also admissible as a business record” under corresponding federal rule 803(6)).

¶ 33 Parker argues that there is a double hearsay problem because Ward did not know who transmitted the information into Capital One's database. But courts regularly admit business records even when the testifying witness did not assemble the complete record. See, e.g., United States v. Langford, 647 F.3d 1309, 1326 (11th Cir.2011) (records of credit card transactions properly admitted under federal rule 803(6) despite custodial witness “not hav[ing] personal knowledge of each of the records”); State v. Veres, 7 Ariz.App. 117, 125, 436 P.2d 629, 637 (1968) (to same effect), overruled on other grounds by State v. Osborn, 107 Ariz. 295, 295, 486 P.2d 777, 777 (1971); see also Weinstein's Federal Evidence § 803.08[8][a], at 803–84 to 803–86 (“The witness need not have ․ personally assembled the records ․ [,] [and t]here is no requirement that the records have been prepared by the entity that has custody of them․”). Trustworthiness and reliability stem from the fact that Capital One regularly relies on the information that third parties submit as part of their ordinary course of business. See, e.g., United States v. Adefehinti, 510 F.3d 319, 326 (D.C.Cir.2007) (listing cases that permit business records of one entity to be admitted as a business record of another entity if the latter entity relies on those records and keeps them in the ordinary course of business). The trial court did not abuse its discretion in admitting this evidence as a business record "

- See more at: http://caselaw.findlaw.com/az-supreme-court/1625396.html#sthash.MsnC1tSa.dpuf

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From State v. Parker.
"D. Admitted Business Records

¶ 28 Parker asserts that the trial court improperly admitted a report of the Smiths' credit card transactions and Wayne's handwritten timesheets under the business records exception to the hearsay rule, Arizona Rule of Evidence 803(6). We review these rulings for abuse of discretion. Tucker, 205 Ariz. at 165 ¶ 41, 68 P.3d at 118. The business records exception requires that the record be made at or near the time of the entry by or from information transmitted by someone with knowledge, be kept in the ordinary course of business, be made as a regular practice, and be testified to by a qualified witness. Ariz. R. Evid. 803(6).


1. Credit card report

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