Seadragon

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

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So this deadly Parker case that we have heard so much about could have actually helped defendants. I never read it but I'm not the least bit surprised.

That's blatantly obvious.  It seems apparent that you didn't even read the entire post.  Especially when you think Parker can help defendant's in a JDB lawsuit when the JDB has presented its evidence in accordance with the opinion given by the Parker court.

 

Your own partner in crime is turning the corner on the Parker ruling.  I'd seriously be rethinking my position, or at least how far I want to stick my foot in my mouth at this point.

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@Seadragon

 

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 Parker:

 

¶ 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.

 

Note that the court pointed out that it understood that the information in the credit card statements came from 3rd parties...merchants.   But because Cap1 regularly relied on that information, the information was deemed trustworthy making the records admissible.

 

That's one of the arguments we use against JDBs.  They're using information provided by another party.   The court shot it down.   Then the court cited U.S. v. Adefehinti (records of one entity admitted as the business records of another entity) and obviously agreed with it.

 

Have you read Midland Funding, LLC v. Howell?  The AZ Court of Appeals quoted State v. Parker:

 

Business records originally created by another business entity may be admissible as business records for a party that neither prepared nor created them if the party "regularly relies on the information that third parties submit as part of their ordinary course of business." State v. Parker, 231 Ariz. 391, 401-02, ¶¶ 31, 33, 296 P.3d 54, 64-65 (2013).

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@Anon Amos

 

 

 

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



So this deadly Parker case that we have heard so much about could have actually helped defendants. I never read it but I'm not the least bit surprised.

 

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 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. 

 

For what it's worth my Midland Affidavit uses this language essentially word-for-word. Harry is right - Parker gave them all the road map they need.

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@Anon Amos

Please explain how what you quoted would have made a difference.

It allowed for affidavits to be used if testified to by a qualified witness. The reason they got by using the affidavit is because they first had a deposition where parkers attorney's were able the cross examination a qualified witness and make any objections to his testimony at trial, therefore a live witness was no longer needed a at trial, and so the affidavit was allowed.

These people got just the affidavit. No invite to a deposition. So they had hearsay testimony and lost at trial. They got to cross examination no one.

In their case it may not have mattered anway, but for others it might. Other people might believe they have a Constitutional right to a fair trial, a right to cross examination, and protection from defeat by hearsay testimony. These others could say that in parker the litigants had a deposition before the affidavit was allowed.

It also referenced 803 6 and stated as shown by testimony of a witness.

the point is to force the need for a live witness instead of (or in addition to) an affidavit. If you can do that, they may dismiss instead of going to trial, regardless of what they can prove or how strong their case is.

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@Anon Amos

also I was trying to post the part where the witness was at the deposition but I got the wrong part. Working from a phone here. I know you guys disagree, but others have done it successfully and will continue to do so.

Please explain how what you quoted would have made a difference.

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It allowed for affidavits to be used if testified to by a qualified witness. The reason they got by using the affidavit is because they first had a deposition where parkers attorney's were able the cross examination a qualified witness and make any objections to his testimony at trial, therefore a live witness was no longer needed a at trial, and so the affidavit was allowed.

These people got just the affidavit. No invite to a deposition. So they had hearsay testimony and lost at trial. They got to cross examination no one.

In their case it may not have mattered anway, but for others it might. Other people might believe they have a Constitutional right to a fair, a right to cross examination, and protection from defeat by hearsay testimony. These others could say that in parker the litigants had a deposition before the affidavit was allowed.

It also referenced 803 6 and stated as shown by testimony of a witness.

the point is to force the need for a live witness instead of (or in addition to) a live witness. If you can do that, they may dismiss instead of going to trial, regardless of what they can prove or how strong their case is.

 

 

@Anon Amos

 

These people got just the affidavit. No invite to a deposition. So they had hearsay testimony and lost at trial. They got to cross examination no one.

 

 

Who are "these people"?  

 

@Harry Seaward never made it past summary judgment.  There was no trial.    In Midland Funding, LLC v. Howell, there was no trial.   The ruling was based upon a granting of summary judgment.

 

No invite to a deposition?    It's not required for summary judgment.  If the defendant wants to question the affiant before summary judgment, then the defendant is the one who has to request the deposition.

 

These others could say that in parker the litigants had a deposition before the affidavit was allowed.

 

 

Yes, before the affidavit was allowed at a TRIAL, not a summary judgment hearing.

 

the point is to force the need for a live witness instead of (or in addition to) a live witness. If you can do that, they may dismiss instead of going to trial, regardless of what they can prove or how strong their case is.

 

 

Again, the defendants have to get past summary judgment.   If efendants want to question the witness, the defendants have to request the deposition before the SJ hearing.  If the court allows live witnesses at the SJ hearing, then the defendant is the one that has to subpoena the witness.

 

Read Midland Funding, LLC v. Howell and tell me how you'd question a witness that is employed by the plaintiff.

 

 

Other people might believe they have a Constitutional right to a fair, a right to cross examination, and protection from defeat by hearsay testimony.

 

 

I think all of us believe that we have a Constitutional right to a fair hearing.  I'll say it again:  Since affidavits are allowed at a summary judgment hearing, if the defendant wants to question the witness, the defendant is responsible for requesting a deposition.

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ANYTHING I have posted is assuming you get past a summary judgment and is not specific to any one case or member. I am only speaking about AFFIDAVITS and TRIALS. I understand if you can't get past the MSJ you can't go to trial, but for those that do, the post made are to help keep affidavits from defeating you at trial.

 

I don't mean to suggested you need a witness at an MSJ or will be able to get the affidavit stricken from and MSJ.

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@Anon Amos

 

Fine.  You said "These people got just the affidavit." but did not explain.  The AZ people here who have lost by affidavit lost at summary judgment.  One of the issues we've been trying to address is getting past that stage.  That's why Parker is damaging.  It makes it more difficult to do so.

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I "generalized" too much and lumped several earlier arguments and post into "they". I've made suggestions for people to get past MSJ but they seem get opposed here.

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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

My entire point being that the government conducted a video deposition of a qualified witness of the first party business in which defense counsel had the opportunity to cross examine the witness. Affidavits are not testimony at summary judgment

Ar.Evidence Code 803(6)(e) all the above are shown by the testimony of the custodian or other qualified

witness, or by certification that complies with Rule 902(11).

However, such evidence shall not be admissible if the source of information or the

method or circumstances of preparation indicate a lack of trustworthiness or to

the extent that portions thereof lack an appropriate foundation.

The term "business" as used in this paragraph includes business, institution,

association, profession, occupation, and calling of every kind, whether or not

conducted for profit.

 

Also:

“[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986)

I believe you guys have missed my point, that Parker is distinguisheable in a third party debt collection case because 1. an affidavit is not testimony in court a deposition is. 2. Parker relies on OC testimony and which is based on expert testimony of a fraud investigator 3. that it was at trial not summary judgment and 4. The witness was questioned about qualifications and reliability and trustworthiness.

And no haven't turned the corner, just trying to show how it can be fought in a debt collection case. My point being that the supreme court ruling in Anderson v. Liberty Lobby will help to prevent you from getting rolled in sj.

Now please allow me to continue with the benefits of getting the forward flow agreement to disrupt the adoptive records doctorine, because the allegations in the forward flow agreement would give evidence of unreliability and untrustworthiness to counter that they relied on them for their business.

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I "generalized" too much and lumped several earlier arguments and post into "they". I've made suggestions for people to get past MSJ but they seem get opposed here.

 

@Anon Amos

 

Opposed by the posters?   What suggestions did you make?

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I don't want to beat a dead horse. The post are all on here somewhere all over the board, it's not important. I'll try to post only with the CA threads and definitely out of anything to do with AZ. My point with Parker is that IF people can get past MSJ there are some good things in that case to prevent affidavit at trial.

 

I would think that most people anywhere trying to strike an affidavit at MSJ will be out of luck, and you need triable issues, foundation and trustworthiness issues, etc (depending on what your rule say) to get past the MSJ.

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@Seadragon

 

 

Affidavits are not testimony at summary judgment

 

 

Yes, they are.  They are a form of testimony.  Why do you think courts require one for summary judgment?    Your statement can go both ways.   What if a defendant had an affidavit from his doctor proving that he could not have made certain charges on his credit because he was in the doctor's office at the time those charges were made?   That affidavit would not be considered testimony?

 

Arizona Association of Chriropractic v. Brewer (AZ Court of Appeals, 2011)

 

The State Comptroller testified in his affidavit that he is "the custodian of financial records" for the Boards' funds.

 

I believe you guys have missed my point, that Parker is distinguisheable in a third party debt collection case because 1. an affidavit is not testimony in court a deposition is. 2. Parker relies on OC testimony and which is based on expert testimony of a fraud investigator 3. that it was at trial not summary judgment and 4. The witness was questioned about qualifications and reliability and trustworthiness.

 

 

You're missing the point.  The courts have ruled that it is not distinguishable. 

 

1. an affidavit is not testimony in court a deposition is.

 

 

An affidavit is a form of testimony at a summary judgment hearing.

 

2. Parker relies on OC testimony and which is based on expert testimony of a fraud investigator

 

 

Did you not read what the AZ Supreme said about records offered by one business but were created by another business?  

 

3. that it was at trial not summary judgment

 

 

It was a criminal proceeding.   Are summary judgment motions filed in criminal cases?

 

4. The witness was questioned about qualifications and reliability and trustworthiness.

 

 

Because it was a trial, and we don't know if a summary judgment hearing was held or could have been held.

 

The circumstances do not always have to be the same in every lawsuit.   Just because there's a trial in one case doesn't mean there has to be a trial in another case.  It's the context of a higher court's ruling that determines the need for a trial.

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The circumstances do not always have to be the same in every lawsuit.   Just because there's a trial in one case doesn't mean there has to be a trial in another case.  It's the context of a higher court's ruling that determines the need for a trial.

To put an even finer point on this, the appellate courts here take a very 'hands off' approach to considering issues on appeal.  They aren't looking for a specific outcome based on what is in the trial court record.  They are only looking to see if the trial court had *something* to base its ruling on.  If a JDB floods the trial court with mounds of evidence, the trial court can find the evidence un-compelling because of a single ambiguous fact (transposed number in a date in one of the records, etc).  By the same token, the trial court could have seen additional evidence that made it clear the error in the evidence was a typo and decided the remainder of the evidence was sufficient to grant judgment to the JDB.

 

If there is no error of law or abuse of discretion, the appellate court won't reverse.  They have said over and over again that their job is not to substitute their own judgment for that of the trial court.  They will not "second guess".

 

Everyone take a look at this case.  If the trial court had ruled in favor of the JDB on this one, we can all agree that the trial court would not have erred.  Instead, this is one of the rare cases where the trial court wasn't convinced by the JDB's evidence and didn't believe it was right to steamroll a defendant.  On the other hand, it's pretty clear from the language of the appeal ruling that the appellate court almost certainly would not have reversed if it had been the JDB that prevailed.  In other words, the appellate court makes room for the possibility that the trial court could have come to either conclusion and neither would have been wrong.

 

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/122013/m6097285.pdf

 

By the way Rule 121 cited by the trial court judge says the trial court "may" impose sanctions for failure to disclose.  Here is another case where the JDB didn't disclose in time and the appellate court affirmed the trial court's judgment to allow the witness to testify anyway because the court is not required to take any action.

 

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/112013/m6054353.pdf

(Witness discussion is page 5 to page 7)

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All in all, it appear's that the state of AZ is faithfully following the manner and methods of our grand and glorious US Attny General and Grand Leader.........rule by decree. The rule of law is all but dead and buried............................it's now this is how "We" want it. Fiat Rule...................or Facist Rule. Take your pick.

 

What it appear's it will take in AZ is getting rid of the JP type judges in their  legal system......but the F/F agreement could give some very substanstial weight to appealable issues and quite possibly it wouldn't take but a small few of these won to negate any "Parker effect". Win 1 or 2 appeals and the JDB would have to switch tactic's or start getting their backsides handed to them big time. But be careful as they will not want any to be taken to appeal and sure don't want any to win.

Another good tactic is if someone in AZ has some legal contact's to get an Attorney or 2 to "Backup and legitimtize" a team of individuals to work at getting not 3 out of 100 to fight back, but increase that to 40 or 50 of 100 to fight back with some assistance from the "Team" and the Attorney "Couches" Start stacking case's a mile high in these kangaroo courts.....that will get somebodie's attention in the State Legislature. If only half the case's were won, it would soon become apparent to the JDB that pickin's in AZ are just too tough a nut to chew on.

Right now THEY have the numbers on their side.....................flip that and something will change. Harry appear's to be the type that could make this happen, but he will need some help from a Legal Eagle or two who can advise and run legal cover for him. The information about the true cost of your account would lend itself to a really good argument against the JDB that they are "using: the AZ courts for "Unjust Enrichment". I believe their is a section in my OK law statutes (AZ surely has something similar) that indicate's that a Plaintiff can't recover more in value on damages (your defaulted loan) than what they are "damaged". ie.......Unjust Enrichment .....Accord and Satisfaction (a slight angle thereof, the original loan is satisfied and the new damages are a small percentage). This is why having this information either on your opponent or several other JDB (show an industry standard ) could also be of great value......Something that needs a trial to determine and precludes SJ. Would also I would think open up some real issue's of appeal.

 

/rant on/

 

But even that type rule is subject to being unsurped........using their own methods.......dig up enough dirt on the judicuary that is doing this, get a scandel going, become a "concerned citizen". None of these types are squeeky clean.

 

I understand that most all here (including me) as a rule try and do the fair and legal way in fighting these lawsuits............But by and far the opposition is not playing by such rules........Green Money and other "consideration" spread in the right places will get about any outcome they want............kosher or not. All we can do in that vein is keep picking, poking and costing them money..........at some point they may decide it's not really worth the hassle and expense....... for the pittance they get..........

 

What I would like to know is .........does anybody really have the extra money to actually pay these "hard won SJ's"?? Even after all their efforts you then have to actually collect on them or the victory is very, very hollow..............Most collection is limited pretty much by the general bankruptcy rules, so unless you own property (houses, cars, investment rentals, etc) with a substanstial equity.......................what the heck are they gaining???? Surely they don't do these just for fun and games....the only one's making any money are the attorneys in the bottom 1/3 of their class. And I'm willing to bet that these JDB don't pay them that well (who would pay a 4th class attorney much to do anything serious).

 

I'm a good example....65 on disability, my income they can't garnish, will likely never get a job or income anymore, that amounts to anything, probably only temporary-short term, I own no real estate (like I'd get a 300k 30yr mortgage at my age, jeeezz), I drive a 18 yr old car (in great shape), all my electronics is over 5 yrs old, no tools that any newer than 10 yrs old, etc.............All their efforts are accomplishing are giving me something to keep my mind sharp and my hands busy (a good thing I guess?). IF they were to get a judgment (which I'd appeal, further damaging their pocketbooks), their odds of ever collecting a dime are slim to non-existent.....ever, as my age and limited income also works against my credit worthiness, their efforts can do little further harm, I'll never see the top side of 600's again. This is the absurdity of the whole thing. To a certain degree I represent a large percentage of "dead beats so to say".

 

It would be more profitable if they just sold US our own debt at the prices they sell them to the JDB (I found an old 2008 F/F agreement selling debt to Pallisaides....2.4 % on the face value of uncollected accounts) and cut out the bottom feeder attorney's, if I could payoff all my debts for .024 of the total and be clear, I'd jump on that in a heartbeat and never own another credit card in my life (and some are trying to get me to do so as we speak)................................Oh, I forgot...the only real growth industry in this country is............drum roll................the legal system!

 

Remember the Golden Rule......................"He who has the gold, makes the Rules..."

 

Stack it..and stack it high.......

/end rant/

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And about Anderson v. Liberty Lobby. My whole point is the courts are allowing the summary judgment procedure to become a paper trial

Affidavits are misused in Maricopa county for the evils that were evinced in Anderson. The whole purpose is not to weigh evidence but to test if there are issues for trial.

There are summary judgments in criminal trials usually filed by defendants.

The evidence code itself shows that for multiple layers of hearsay, each layer of hearsay has to authenticated(a key point in Lorraine v. Markel).

I was wrong about the affidavit I misread and thought it had to be a deposition.

Parker has filed for review in the Supreme Court which because it is a death penalty case would get favored status as far as going first

I have found this which is helpful in opposing SJ http://apps.supremecourt.az.gov/docsyav/Cases/Cundiff%20vs%20Cox/2004-09-29%20RESPONSE%20TO%20MOTION.pdfas to citable cases.

Also in looking over past sj motions for jdb's and defendants I haven't seen cites to Orme School v. Reeves 802 P.2d 1000 (Ariz. 1990) https://www.courtlistener.com/opinion/1351151/orme-school-v-reeves/?which is precedent for the SJ standard.

I am doing serious research because If you cannot trump SJ it will infect the courts in other states.

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To put an even finer point on this, the appellate courts here take a very 'hands off' approach to considering issues on appeal.  They aren't looking for a specific outcome based on what is in the trial court record.  They are only looking to see if the trial court had *something* to base its ruling on.  If a JDB floods the trial court with mounds of evidence, the trial court can find the evidence un-compelling because of a single ambiguous fact (transposed number in a date in one of the records, etc).  By the same token, the trial court could have seen additional evidence that made it clear the error in the evidence was a typo and decided the remainder of the evidence was sufficient to grant judgment to the JDB.

 

If there is no error of law or abuse of discretion, the appellate court won't reverse.  They have said over and over again that their job is not to substitute their own judgment for that of the trial court.  They will not "second guess".

 

Everyone take a look at this case.  If the trial court had ruled in favor of the JDB on this one, we can all agree that the trial court would not have erred.  Instead, this is one of the rare cases where the trial court wasn't convinced by the JDB's evidence and didn't believe it was right to steamroll a defendant.  On the other hand, it's pretty clear from the language of the appeal ruling that the appellate court almost certainly would not have reversed if it had been the JDB that prevailed.  In other words, the appellate court makes room for the possibility that the trial court could have come to either conclusion and neither would have been wrong.

 

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/122013/m6097285.pdf

 

By the way Rule 121 cited by the trial court judge says the trial court "may" impose sanctions for failure to disclose.  Here is another case where the JDB didn't disclose in time and the appellate court affirmed the trial court's judgment to allow the witness to testify anyway because the court is not required to take any action.

 

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/112013/m6054353.pdf

(Witness discussion is page 5 to page 7)

I think you are right on that. If you don't direct the court towards your position he will not go there on his nose. I believe that is where we fail in these cases is failure to use the caselaw to lead them down the hallway to our side. To go head to head with an attorney we have to thoroughly trash his position and leave no room for the court to infer on it's own. you have to reign on their discretion.

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Here's a link that might be interesting especially @Seadragon..... and in line with the discussion here:

I'm looking over them myself.

 

http://voidjudgements.net/inthenews.htm#44

 

September 4, 2014
Forward Flow Agreements Between Creditors and Debt Buyers:

 

Jefferson Capital/Midland Funding and Encore Capital Group - http://agreements.realdealdocs.com/Asset-Purchase-Agreement/ASSET-PURCHASE-AND-FORWARD-FLOW-AGREEMEN-228804, In pdf format with highlights of significant information.

 

FIA Card Services/CACH, LLC Forward Flow Agreement - https://s3.amazonaws.com/s3.documentcloud.org/documents/329733/fia-to-cach-forward-flow.txt,

 

U.S. Bank/Livingston Financial - http://dalie.org/wp-content/uploads/2014/02/2009.01.30-USB-and-Livingston-Forward-Flow-amts-may-be-wrong-as-is-rep-of-compl-with-laws.pdf,

 

Arrow Financial/CACH LLC - http://debtbuyeragreements.com/wp-content/uploads/2014/03/Arrow-Financial-Services-LLC-to-CACH-LLC-11-09-2007.pdf.

 

 

44 more Forward Flow Agreements in zip file format for you to download..
Thank you Dalié Jiménez.

Notice that the sales are made in "as is" condition with no warranties as to
completeness, accuracy or documentation.
What does this mean to you? It means: that there may or may not be any evidence that there is even a debt; that the amount claimed may or may not be correct; that the debt may be yours or may belong to someone who has the same or similar name as you do.

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I cited Orme School v. Reeves in opposition to summary judgment. The judges know reversals on those kinds of decisions are rare, and an appealing pro se defendant is even more rare. They'd rather roll the dice to dispose of a case on the very high probability their decision won't get smacked back at them.

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They are in the bag of debt collectors. You won't see me moving to Maricopa been there to many cactus' and tumbleweeds.

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I like cacti and there aren't any tumbleweeds in the city. I come across one or two a year out where I live but I can deal with it.

I did hit one hard enough to poke a hole in my radiator once though. That was a surprise.

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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.

so in this link in their site Convoke Systems in the Prohibited Actions Column here http://convokesystems.com/wp-content/uploads/2014/04/CRS-Fair-Debt-Collection-Practices-Act-04-11-2013.pdf,

How can the debt collections use this information legally when it says - see below

 

Debt collectors are prohibited from communicating with third parties regarding the consumer’s
debt except for the purpose of locating the consumer.
26
When making such contacts, the debt
collector must identify himself and state that he is confirming or correcting location information
concerning the consumer, and is prohibited from disclosing to the third party that the consumer
owes any debt.
27
In general, debt collectors may contact third parties only once.
28
The FDCPA
also prohibits publication of lists of consumers who allegedly refuse to pay debts, except to a
consumer reporting agency, as well as the advertisement for sale of any debt to coerce payment of
the debt.

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@credit2011

I'm not sure what the question is. Can you elaborate?

What I stated above if the get the bills and info they send to you from this company above in discovery.  Is it  arguable in court that this is not valid?  . "Where did this information really come from and how is it pieced together? Is it purchased in bulk or an individual debtor?  And is  that this information valid enough since its passed down- how does it get verified?. Looks like they get what they can and try to piece it all together.

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