Seadragon

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

Recommended Posts

@Coffee_before_tea

 

 

Just because an OC chooses to sell an account doesn't mean it's not accurate.  Businesses, especially large ones, establish a business model.  They determine which efforts are worth their time and money and which efforts are not.

 

Collecting accounts costs money.  The collectability of accounts is not determined on an account by account basis.  State SOLs and garnishment laws vary.  Some consumers have jobs and assets while others don't.   Some states are community property states while others are not.  As a result, a business can choose to rely on statistics.  If a bank determines that it's not worth the time and money to collect charged-off accounts, then it's going to sell them.  Getting a percentage of charged-off accounts is better than getting nothing.

 

I never said that it wasn't accurate, just not completely accurate.  I also pointed out that "something" in the OC's business metrics moved them to sell the account.  You don't know what that "something" is, and neither do I.  However, that is not the point.  The point was that a portion of creditor accounts have inaccurate information (we'll probably never know the actual percentage), in the Almonte case she discovered a rate around 20%.  That is significant if you are trying to establish trustworthiness and the burden of proof falls onto the creditor.  The forward flow language illustrates the point that the OC doesn't warrant the accuracy or collectibility because they know that a certain percentage of accounts they sell will be inaccurate. 

Link to post
Share on other sites

@Coffee_before_tea

 

And if your account is not proven to be inaccurate, that forward flow agreement will demolish a defendant's claim that a JDB has proven standing to sue.

 

TILA: USC 15 § 1643 burden of proof
In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.

Danner v. Discover Bank, 257 SW 3d 113 - Ark: Court of Appeals 2007

Crestar Bank, NA v. Cheevers, 744 A. 2d 1043 - DC: Court of Appeals 2000

DBI ARCHITECTS v. AMERICAN EXPRESS TRAVEL-RELATED SERVICES CO., INC., Court of Appeals, Dist. of Columbia

 

You need to read the details of the above-cited rulings.

Link to post
Share on other sites

@BV80

 

It is a risk that needs to be weighed, but it is another angle of defense.  Use it as you will.

 

I did read the details of the cases that I posted, that's why I posted them.  The question is:  How is a JDB going to prove authorized use without going back to the OC for further documents, that will need to be authenticated (if they can even get those records to begin with). 

Link to post
Share on other sites

except that their "proof" is legally flawed and all but a blrant lie

What are you taking about? Are you seriously going to sit here and tell us all that you honestly believe the major player JDBs fabricate their evidence in this era?

10 years ago they may have done it on the occasional account they couldn't substantiate with the records the had, but when was the last time you saw someone come here and flat out deny the debt and the JDB pushed ahead with forged evidence? I haven't seen it even once in the 2+ years I've been actively participating on this board.

Sorry. It just doesn't happen.

Link to post
Share on other sites

What are you taking about? Are you seriously going to sit here and tell us all that you honestly believe the major player JDBs fabricate their evidence in this era?

10 years ago they may have done it on the occasional account they couldn't substantiate with the records the had, but when was the last time you saw someone come here and flat out deny the debt and the JDB pushed ahead with forged evidence? I haven't seen it even once in the 2+ years I've been actively participating on this board.

Sorry. It just doesn't happen.

I've never admitted the accounts mine.............and I haven't said it wasn't..................I just haven't said.

 

You mean an affidavit that mentions none of the items they submit, the items they submit are not certified, sworn or listed in the affidavit with nothing that follows legal standards for business records is truth telling?

 

My MSJ is being pushed using legally deficient documentation. So I've seen it. The Bills of Sale don't mention my account, they are not certified or submitted with statements from the OC (thus qualifying as business records), the affiant's qualifications as an "Affidavit Document Specialist" (according to Federal Rules affidavits created specifically for litigation are defective....mine was made 9 days before they filed) are not enumerated (he's and expert right, where's the proof he is), he doesn't mention the Bills of Sale (bills that are not certified by the O.C. in any case), the account statements or the contents of the Notification file (which is not certified or sworn by the O.C.).....

 

The plaintiff says it is...and they wouldn't ever, ever lie........., but does that mean it is?

 

Now tell me............what's legal about any of that?? Besides I can show you the same affidavit they submitted ..with Mickey Mouse, his "account #", owes my JDB $1.74. And it looks perfectly like theirs'.......................................so yes they can fake it at least enough of it to get by the majority of the time.

 

As the moving party the burden is theirs' to prove.................The burden doesn't shift unless they do. So if they "try" to make them so, I prove that they haven't.....still their burden.

Now what a judge does ..or doesn't do about that is different, as he/she has to make a ruling on the evidence if I object (using legal decisions and statutes to back me up). That is where the wild card is.

Link to post
Share on other sites

I've never admitted the accounts mine.............and I haven't said it wasn't..................I just haven't said.

This is your problem. Just because you don't like what they submit doesn't make it 'not evidence'. You still have to contravert it. If you don't deny the debt, the court only has one set of evidence to consider.

In Arizona, and I'm sure where you live also, evidence admission is discretionary. If the judge allows it, (again) is your job to prove their evidence is improper. If you don't submit any evidence, what would you like the judge to use to rule in your favor? A hunch? You might get lucky, but if not, don't count on it getting reversed on appeal.

My MSJ is being pushed using legally deficient documentation. So I've seen it.

No you haven't. I asked if you have seen it when the defendant denied the underlying debt. You already said you didn't deny the debt so your case doesn't meet the criteria I asked about.
Link to post
Share on other sites

This is your problem. Just because you don't like what they submit doesn't make it 'not evidence'. You still have to contravert it. If you don't deny the debt, the court only has one set of evidence to consider.

In Arizona, and I'm sure where you live also, evidence admission is discretionary. If the judge allows it, (again) is your job to prove their evidence is improper. If you don't submit any evidence, what would you like the judge to use to rule in your favor? A hunch? You might get lucky, but if not, don't count on it getting reversed on appeal.

No you haven't. I asked if you have seen it when the defendant denied the underlying debt. You already said you didn't deny the debt so your case doesn't meet the criteria I asked about.

 

Oh....you mean the DV letter (and their acknowledgement of it) I attached to the response, where I deny the account in it''s entirety (so maybe I did...just not the way they wanted.....or in the way you meant) and demand proof (and their MSJ states I didn't dispute the debt with the O.C..........well their not the O.C. and they didn't submit any certified or sworn statements or documents from the O.C. proving that I didn't.....just their unsupported claim that I didn't.....remember they are moving party they must prove I didn't otherwise its just heresay....they wouldn't lie would they)? The didn't send anything but the bare minimum.......so they didn't verify at least not with the type of records that the courts demands (courts demand what you tell them with statutes and case law saying they have to), FDCPA maybe.

 

You mean like citing case law, statutes for each of plaintiffs exhibits and claims.....showing how it doesn't comply with statute and how appeal courts, and state supreme courts have ruled on similar arguments.That their "evidence" is just their own, beating their chest claims without legal foundation...which is required to get records declared "business records". I did this, item by item, statement by statement, claim by claim....all with case law and statutes..........that's why the response was 36 pages long (MSJ was 12 pages). They had so many fanciful claims and outright unsupported claims and statements that it took that many pages, just to touch on all of them in a (hopefully) complete manner, I tried to shut down all their arguments and lead the court to MY desired result.

 

I am confident that I have argued all the claims and evidence as well as I can, hopefully in the all the right manner as to dispute and create a solid idea idea to the court that many things are in dispute and that little of their "evidence" can be converted to evidence at trial. Tried to present them into a corner that the only real way for them to dispute it is to bring a witness or deposition from one or more individuals at the O.C. to trial. I don't think they want to go that far..... although I could be wrong....... the current fight is I believe, one of intimidation on their part towards a pro se.

 

Your right about one thing...........I could lose...best laid plans of etc......Even with ironclad arguments and legal foundation it is still up to a judge who still has a subjective view of the law, and may or may not be JDB friendly to rule on this. There is no real black and white, open and shut case in the United States. All our law is different shades of grey, German law used to be very black and white.

 

All this over a less than $800 claim. One they stand virtually no chance of ever collecting in my lifetime, even if they were to win......I suspect a young not overly experienced attorney with a Napoleon complex as picking at small claims like this with stiff resistance is not normally in their business plan.

 

So we will see, as I refuse to be overly confident.....................Win Lose or Draw I win....... As the experience learned will help with further litigation..........much more to come I am afraid.

 

One of the points I hammered on related to the FF Agreement. Without it none of their evidence is supported in any real manner.....................I don't need the FF. The lack of its production it is more damning to their side than helpful to mine (in this case). I did run across some case law that would work (might) to cast some doubts on their claims because of the FF wording and disclaimer's (forgot to bkmark it, will cast around again just in case)

 

If it was produced that would mean that further case law would need to be dug up and parts of it "forcefully and creatively argued" based against that case law. Can we say another 20 pages or so? LOL

Link to post
Share on other sites

@Coffee_before_tea

 

I appreciate that you took the time to locate those cases.  That's what we should do.  :-)

 

Please explain how each case helps a defendant in a JDB lawsuit.

 

Hear, hear..............me too.

 

We just had a case in OK involving Love, Beal & Nixon on a Unifund as successor in interest to a Citibank credit card claim, reversed the MSJ at the Appellate Courts, kicked it back to District Court for further proceedings, although in the subnotes it indicates that they are doubtful suit could be brought as it stands............................the Appellate Court picked finely at each component of Midland's "evidence" and claims......there are at least 3 citations on each element. It just came out in September of 2014. They were picking quite hard at the "accounts" & "receivables" referenced in a document not attached (Forward Flow or Purchase Agreement). At least some judges (at least appellate ones) are noticing and pointing out the obvious deficiencies.

 

That without this document, the rest were deficient more or less.

 

I'll try and post it on my sig line soon. UNIFUND CCR, LLC VS. EXPO

Link to post
Share on other sites

Ok, everyone, let's put the shoes on the other feet.

Imagine you're sitting home one evening relaxing with your family and a guy barges through your front door and holds a gun to your wife's/husband's/son's/daughter's/whoever's head while he goes through your house and steals several items of value. Fast forward a few months and you attend a pre-trial hearing for this guy. You know he's the one that did it because his face has been seered into your memory. But now at this hearing his lawyer is arguing that the fingerprints taken from the scene and stolen property don't match the guy sitting in court and they don't match anyone in your family. It's an unknown set of prints. But you know this is the guy. There isn't enough other evidence to prosecute the guy so they have to let him go. (It's my story so I get to say that it really is the guy but there was never any explanation for the unknown set of prints so there was no way to prove it wasn't someone else.)

So now you think back to your debt collection case where you really did owe the debt, but their evidence wasn't good enough so you didn't have to pay the $1700 debt. Do you think to yourself "I guess if the fingerprints didn't match the court got it right."?

You can try to convince yourself these debt collection cases are somehow different, but fundamentally it's the same argument overt evidence. I'm less liberal than most folks here and I say if the debt is yours and if the court arrives at the truth, I say job well done. Even in my own case, I can't say the courts were ultimately wrong. I don't agree with the method used to get there, but I can't argue with the final determination.

I think if everyone were honest with themselves, they would come to the same conclusion.

 

Edit:  I wouldn't lose a wink of sleep if there was never any direct evidence tying the guy from my story to the crime, but got railroaded through the legal system and was convicted and sentenced to 25 years in the clink.  I can say that because I know how I would feel if it were me experiencing the break-in.

Link to post
Share on other sites

@BV80

 

I'm really not sure what you're not understanding here.  Here is a fair synopsis of the TILA as it relates to CC debt from an attorney.  Page 6-11:  (PDF warning) http://www.law.gonzaga.edu/files/Jarzombek-Defending-Debt-Collection-Suits.pdf

 

Most people deny the allegations in the answer to the complaint, yes?  Then the debt is disputed (any amount or the full amount), then it is, by statute, incumbent on the creditor to prove that the use of the card was authorized or unauthorized.

Link to post
Share on other sites

Because there are "other reasons" for selling the accounts, as you correctly pointed out, it's your job to prove your account is rife with errors. If that's the case then, the forward flow is superfluous.

In other words, the forward flow doesn't prove there are errors in your account.

And as if to stick a fork in the debate, courts have ruled now that the "as-is" language of the forward flow and bill of sale means nothing in terms of the accuracy of the debts.

But it rebuts the presumption of accuracy and/or trustworthiness, a necessary component of Evid. Code 902(11)and because that statute is used in the analysis of 803(6).

The incorporated records are not presumed correct, foundation and testimony has to be properly laid for them to be admitted. Even if admitted the records do not "speak for themselves" So you have to drag an affiant in there the same way you have to in California, you have to subpoena the witness to court, because if you don't you waive the right of cross-examination of a witness.

The Forward flow agreement introduces a level of controversy into the proceedings necessary to lay the groundwork for defendants attack of the evidences presumptions. Without it the plaintiffs will make highly conclusory ipse dixits (because they say so)to get the court to rule their way. At trial, the court is going to shift the burden on you to refute what those pieces of paper show so you have to show error at the time of creation.

It sucks that Arizona has to be this way, it is because nobody holds these courts accountable for their actions. You see they do not fear the citizenry, so unless you fight hard and attack the allegations and move that preponderance needle to your side, you will be left holding the bag.

I can see no reason not to push for the forward flow agreement.

Link to post
Share on other sites

And for the record, I just want to say if every Collection attorney was riding on a train, and it derailed while going over a Lake, I would be highly upset that they didn't attach extra cars for the plaintiff leaning judges to ride along also.

  • Like 2
Link to post
Share on other sites

@BV80

 

Most people deny the allegations in the answer to the complaint, yes?  Then the debt is disputed (any amount or the full amount), then it is, by statute, incumbent on the creditor to prove that the use of the card was authorized or unauthorized.

They may deny the JDB owns the debt or deny owing a debt to the JDB, but, no, most people don't deny having incurred a debt to the OC.  And anyway, denials in an answer are not "testimony" because they aren't made under oath.

 

Even if the defendant does deny the underlying debt, the 2 dozen credit card statements with the defendant's name and address showing charges and payments being made is proof of authorized use of the card.  So now the burden shifts to the defendant to explain how they can deny the debt when there is evidence of charges and payments being made by someone with the defendant's name living at the defendant's address.  I'm sure there are some possibilities, but short of flat out alleging the JDB fabricated the evidence (and you still have to prove this anyway), I sure can't think of any that would explain away two years worth of statements showing charges and payments.

Link to post
Share on other sites

But it rebuts the presumption of accuracy and/or trustworthiness, a necessary component of Evid. Code 902(11)and because that statute is used in the analysis of 803(6).

I'm with you on this point, but only to the extent that you can use it to argue trustworthiness to the trial court.  It's still not a smoking gun that proves, or even suggests, that even one of the accounts included in the portfolio is inaccurate.  If the trial court hears the "as-is" arguments and decides there is enough other evidence to find the records trustworthy, that is squarely within its discretion to do so.

 

It may be different somewhere else and everyone can argue with me all day long about how it "should" be that way in Arizona also, but it just isn't.  There are piles of AZ case law establishing that the admission of evidence is purely discretionary and that it is improper for an appellate court to reverse absent a clear abuse of discretion.

 

P.S. I tried the "as-is"/trustworthiness argument here.  The trial court shot it down and the appellate court found there was no abuse of discretion.

Link to post
Share on other sites

You can try to convince yourself these debt collection cases are somehow different, but fundamentally it's the same argument overt evidence. I'm less liberal than most folks here and I say if the debt is yours and if the court arrives at the truth, I say job well done. Even in my own case, I can't say the courts were ultimately wrong. I don't agree with the method used to get there, but I can't argue with the final determination.

It sounds like you're at the wrong forum these days Harry.  Your experience may be partially relevant to the people in AZ, but there are 49 other states where many of these arguments are successful.  

 

It's not about being liberal, it's about using statutory & procedural thresholds to your benefit.  Sure, we may lose, but we give it our best shot, and at least we're not part of the 95% default judgment statistic.  

  • Like 1
Link to post
Share on other sites
They may deny the JDB owns the debt, but, no, most people don't deny owing the debt to the OC.  And anyway, denials in an answer are not "testimony" because they aren't made under oath.

 

 

The TILA arguments can be made in motions or at trial.  

 

Even if the defendant does deny the underlying debt, the 2 dozen credit card statements with the defendant's name and address showing charges and payments being made is proof of authorized use of the card.

 

 

 

There are many cases where only a handful of statements are provided.  Some of them have purchases, some of them have payments.  A line item for a smoothie from TCBY in 2009 may not be a smoking gun, neither is an 'autopay' payment (most people have this setup these days).  There are many situations where unauthorized use may occur.  There are also situations where the debtor is unsure (cannot swear affirmation or denial) of the amount they are being sued for.  If they recollect they owed $500, yet they are sued for $5,500, that $5000 is in dispute and the burden falls upon the creditor to prove it was authorized.  That is what the TILA statute is for, to protect the consumer.

 

Anyway, this is not a one-size-fits-all argument.  If it works for your situation, then use it, or don't.  

Link to post
Share on other sites

It sounds like you're at the wrong forum these days Harry.  Your experience may be partially relevant to the people in AZ, but there are 49 other states where many of these arguments are successful.

I agree, except that my experience is not partially relevant - it's fully relevant to people in Arizona.  And in light of this, what I can't understand is why people that are not from Arizona try to convince people that are from Arizona that I don't know what I'm talking about.  Maybe you have some input on this subject you'd like to share.

 

 

It's not about being liberal, it's about using statutory & procedural thresholds to your benefit.  Sure, we may lose, but we give it our best shot, and at least we're not part of the 95% default judgment statistic.

I'm all for giving it your best shot and I'm glad I gave it a fight.  I learned a hell of a lot if nothing else.  But at the end of the day, can anyone really stand there and say, "golly, I can't understand why the judge said I owe this debt.  The JDB only had a bill of sale, a contract, two years of statements with my name and address and a live witness to introduce it all.  Sure, I never denied I owed the debt and I never offered any explanation for why the JDB might have all of those statements showing the charges and payments I made, but gee whiz, I said I didn't think the records were trustworthy.  That should have been enough."   I said it before - just because you don't like the evidence a JDB submits doesn't change the fact that it is still evidence.  It has weight, and like any scales, you have to counter that weight with a plausible alternative.

 

I can tell you this.  If I knew two years ago what I know now, I would have gone some other route.  I was bamboozled into believing that I could win if I just worked hard enough.  No one ever said "you know, there's a very good chance you could lose this thing."  This MUST be said to people (from Arizona, at least) that come here looking for help.  It's irresponsible to not let them know the odds are they will lose.

  • Like 1
Link to post
Share on other sites

The TILA arguments can be made in motions or at trial.  

 

 

 

There are many cases where only a handful of statements are provided.  Some of them have purchases, some of them have payments.  A line item for a smoothie from TCBY in 2009 may not be a smoking gun, neither is an 'autopay' payment (most people have this setup these days).  There are many situations where unauthorized use may occur.  There are also situations where the debtor is unsure (cannot swear affirmation or denial) of the amount they are being sued for.  If they recollect they owed $500, yet they are sued for $5,500, that $5000 is in dispute and the burden falls upon the creditor to prove it was authorized.  That is what the TILA statute is for, to protect the consumer.

 

Anyway, this is not a one-size-fits-all argument.  If it works for your situation, then use it, or don't.  

Plausible alternative have to be stated as fact, not as hypothetical.

"For all anyone knows, my card could have been stolen when no one was looking, then maybe the thief bought a smoothie and then slipped the card back into my wallet, again, while no one was looking."

 

is very different from

 

"I specifically remember one day in July of 2009 when I went to use my card and it was missing.  I paid close attention to my billing statement for that month and noticed a charge for TCBY that I'm positive I didn't make."

 

No sane person would decide the first statement carries more weight than line items on a billing statement.

 

 

In the $500 vs. $5500 scenario, an undisputed final billing statement showing a $5500 balance is the proof it was authorized.  (You only have "reasonable" amount of time to dispute items on your bill.  Most times this is 60 days.)  If it's your claim you never got the final bill or that you did dispute the bill, these are things that will balance the scales in your favor.  But you cannot simply say "they haven't proven I got the bill".  You have to allege you didn't get the bill, and for full effect, you should swear to it under oath.  NOW the burden may shift to them to prove the bill was sent.

 

 

And you're right.  It's not an argument for everyone.  But to be effective, it needs to be explained how to effectively make whatever arguments may be there.

Link to post
Share on other sites

I agree, except that my experience is not partially relevant - it's fully relevant to people in Arizona.  And in light of this, what I can't understand is why people that are not from Arizona try to convince people that are from Arizona that I don't know what I'm talking about.  Maybe you have some input on this subject you'd like to share.

 

 

I'm all for giving it your best shot and I'm glad I gave it a fight.  I learned a hell of a lot if nothing else.  But at the end of the day, can anyone really stand there and say, "golly, I can't understand why the judge said I owe this debt.  The JDB only had a bill of sale, a contract, two years of statements with my name and address and a live witness to introduce it all.  Sure, I never denied I owed the debt and I never offered any explanation for why the JDB might have all of those statements showing the charges and payments I made, but gee whiz, I said I didn't think the records were trustworthy.  That should have been enough."   I said it before - just because you don't like the evidence a JDB submits doesn't change the fact that it is still evidence.  It has weight, and like any scales, you have to counter that weight with a plausible alternative.

 

I can tell you this.  If I knew two years ago what I know now, I would have gone some other route.  I was bamboozled into believing that I could win if I just worked hard enough.  No one ever said "you know, there's a very good chance you could lose this thing."  This MUST be said to people (from Arizona, at least) that come here looking for help.  It's irresponsible to not let them know the odds are they will lose.

 

I'll shed some light:  Every single case is different.  The strategy you employed, unfortunately didn't work; however, there are other strategies that need to be explored if people are going to defend themselves. Will they win?  Who knows, but it is up to the individual to explore all the potentialities of their argument & case.  If anything, find alternative arguments/strategies for new people to explore on their own.  

 

To me, it sounds like the people in Arizona need to compel Arbitration in the beginning and/or counter sue in Federal Court.   

 

That being said, having a healthy discussion about forward flow agreements & statutory hurdles is a good thing.  In fact, any obstacle you can place in front of a JDB for them to overcome is a fantastic thing.  Any good attorney will have a multi-pronged strategy, why shouldn't we?  Remember, sometimes it only takes one obstacle that the JDB can't overcome for you to prevail.

Link to post
Share on other sites

In the $500 vs. $5500 scenario, an undisputed final billing statement showing a $5500 balance is the proof it was authorized.  (You only have "reasonable" amount of time to dispute items on your bill.  Most times this is 60 days.)  If it's your claim you never got the final bill or that you did dispute the bill, these are things that will balance the scales in your favor.  But you cannot simply say "they haven't proven I got the bill".  You have to allege you didn't get the bill, and for full effect, you should swear to it under oath.  NOW the burden may shift to them to prove the bill was sent.

 

This is simply not true.  If the consumer fails to dispute within 60 days, this does not alleviate the burden of proof that is required by the TILA 1643.  Read pages 6-11 here: http://www.law.gonzaga.edu/files/Jarzombek-Defending-Debt-Collection-Suits.pdf   And the following cases:

 

Danner v. Discover Bank, 257 SW 3d 113 - Ark: Court of Appeals 2007

Crestar Bank, NA v. Cheevers, 744 A. 2d 1043 - DC: Court of Appeals 2000

DBI ARCHITECTS v. AMERICAN EXPRESS TRAVEL-RELATED SERVICES CO., INC., Court of Appeals, Dist. of Columbia

Link to post
Share on other sites

I agree, except that my experience is not partially relevant - it's fully relevant to people in Arizona.  And in light of this, what I can't understand is why people that are not from Arizona try to convince people that are from Arizona that I don't know what I'm talking about.  Maybe you have some input on this subject you'd like to share.

 

 

I'm all for giving it your best shot and I'm glad I gave it a fight.  I learned a hell of a lot if nothing else.  But at the end of the day, can anyone really stand there and say, "golly, I can't understand why the judge said I owe this debt.  The JDB only had a bill of sale...to be a business document must be certfied, show the items, condition, compensation, etc or Heresay...., a contract<<testified to by the O.C. or JDB witness?.., two years of statements....anything proving they actually sent them or that you received them...from the O.C. the JDB cannot attest to that? If not unauthenticated..... with my name and address and a live witness..from the O.C or JDB? JDB witness cannot know the O.C. records or introduce them....if Objected to....... to introduce it all.  Sure, I never denied I owed the debt and I never offered any explanation for why the JDB might have all of those statements showing the charges and payments I made, but gee whiz, I said I didn't think the records were trustworthy.  That should have been enough." No not enough, must be objected to and motion to strike or they going to let it in.....use it OBJECTION or lose it........  I said it before - just because you don't like the evidence a JDB submits doesn't change the fact that it is still evidence..Unauthenticated evidence, heresay without testimony or sworn statement directly from the O.C, the JDB is not privy to that informantion and unless the O.C makes that available directly from the O.C sworn and certified to the JDB they cannot truely claim they are true, accurate, their statement that they are is gosh! Heresay does not comply with the rules to comply with Business rule exception ......... if not mentioned or stated that they were used in the determination of the balance and interest....again Heresay does not meet the standards for inroduction as a business record..If not objected to and motion to strike it, the court will in most probability allow it in......game over scales broken.  It has weight, and like any scales, you have to counter that weight with a plausible alternative.

 

Looks like a few tactical error's and a little too much trust in the honesty of the system, which in reality doesn't exist, after a few trips here to Divorce court and getting taken to the cleaners more than once I have learned that being right or wrong really doesn't matter.....and the JDB jumped on it and drove it home.....BUT it appear's that you know that now, no guarantees that would have made any difference, but a lot of Objections, even if not 100% correct would have raised a few more issues........Now that you have seen it in action and obviously seen where they gouged you,......... with your own guilt trip........I'd bet they won't be able to do it again. So to help everyone else in AZ point out that to them the pitfalls.....BUT remember.....fight and you have a shot......don't fight you lose immediately. Nobody promised you a Rose Garden LOL song just ran thru my head!

 

 

I can tell you this.  If I knew two years ago what I know now, I would have gone some other route.  I was bamboozled into believing that I could win if I just worked hard enough.  No one ever said "you know, there's a very good chance you could lose this thing."  This MUST be said to people (from Arizona, at least) that come here looking for help.  It's irresponsible to not let them know the odds are they will lose.

 

Its kind of like this, without evil there cannot be good....without winners there are only loser's......without love there can be no hate......a car without wheels is useless. In other words, there is always a chance you can lose, if everyone is a winner all the time there is no point to it and makes no sense and in an adversarial justice system they goin be a bigger elephant in the room sooner or later.....just keep loading the .50 cal elephant gun and keep shooting...enough lead will at some point will drop it, or it will get tired of the annoying lead bees and leave the room.....but while shooting don't forget the lawyer behind you holding the Crocodile Dundee pig sticker....and....put yourself in the mind frame that you owe mabye...BUT NOT THEM regardless.

 

Old saying...........it's not whether you win or lose..........It's all about how you play the game...to win...........And trust me, its nothing but a stinking silly game that I too think is silly and stupid. The stakes are just different. You play to win, the harder you play the better chance to win, but somebody's going to lose.....we just try to make sure it's not us every time.

 

Even if you'd have gotten an attorney..its just a game to him,...not his money....what real skin in the game would he have had? Then you'd have owed at least 1 enitities win or 2 and  lose. Win or Lose by comparing notes over and over on different JDB and attacks we are trying to build knowledge to try and win more and more often.

 

I'll know in a month or so just how well I played the game, had one lawyer tell me he'd never seen a pro se win in OK, his smug manner just ticked me off and made me more determined to win just to be able to prove him wrong. But win or lose I'll use this to sharpen the skills for the next bottom feeder that pops up. I have no funds to hire an attorney or pay anyone, I have to fight.

 

Link to post
Share on other sites

I'll shed some light:  Every single case is different.  The strategy you employed, unfortunately didn't work; however, there are other strategies that need to be explored if people are going to defend themselves. Will they win?  Who knows, but it is up to the individual to explore all the potentialities of their argument & case.  If anything, find alternative arguments/strategies for new people to explore on their own.

 

I have no problem with people choosing to pursue whatever methods they want.  The problem is when they are only told things they can do to challenge the JDB but are never told "hey, none of this is likely to work in Arizona, so be prepared and have a contingency plan in place in the likely event the JDB gets a judgment for two or three times the amount of the debt."

Link to post
Share on other sites

 

 

From Danner:

 

Appellant defended by admitting that she had had Discover credit cards in the past, but that she thought she had paid them off and was surprised to have received a demand for payment of the sum sought.

 

 

From Crestar:

 

Mr. Cheevers claimed that he did not make or authorize most of the charges alleged.

 

 

From DBI:

 

On May 31, 2002, DBI notified AMEX of Moore's fraudulent charges and requested a refund of $133,254.79 for the corporate account and $162,139.04 for the personal account. AMEX denied the request.

 

 

Are you seeing the pattern here?  They all either flat out denied making the charges or offered an alternative scenario (fraudulent use, paid the debts off).  They didn't stand there and say "Plaintiff has to prove the charges were authorized, but I'm neither admitting nor denying that I made them."

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