jazz

Need Help: Received Opposition from Plantiff

Recommended Posts

I really appreciate any help I can receive to figure out: a) what to do in response to this document; and B) what angle the Plaintiff is preparing to play.

Quick background:

  • Served by JDB
  • Followed @Linda7's thread exactly
  • Filed my answer and a MTC private/contractual arbitration w/JAMS (with Exhibit B as a copy of the credit account agreement)
  • Judge granted a MTC hearing
  • Date is set and has been agreed upon by all parties
Now I have received this document in the mail:

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Case No: xxxxxxxxxxx

Judge: (this was left blank by them)

Plaintiff, through counsel, hereby opposes Defendant’s motion to either dismiss or stay this matter so that the

dispute can proceed through private arbitration via JAMS. Defendant argues that the terms and conditions

governing this account includes an arbitration provision granting her this right. Defendant submits a sworn

affidavit signed under penalty of perjury that the terms and conditions attached to the motion Exhibit B are “a

true, unaltered copy of the XXXX credit agreement that contains the arbitration provision which governs

the dispute between the parties for this alleged account.” Plaintiff intends to call Defendant Jazz Debtslave to

testify before the Court under oath as to the source of these terms and conditions. Based upon information

and belief, Plaintiff is relatively certain Defendant will not be able to lay a foundation for these contract

terms.In the alternative, if Defendant is able to lay the foundation for these contract terms then the Plaintiff

asks the Court to stay the proceedings so that the parties may return to Court after private arbitration and

enter the arbitration award as a final judgement on the matter.

My initial questions are:

1) Should I file an answer to this Opposition?

2) When will the plaintiff call me to testify before the court? During the MTC hearing? Or is this showing intent to schedule some other court hearing?

3) Obviously, the Plantiff is trying to keep this out of JAMS and drive me into state ordered arb. It looks like they want to attack my copy of the agreement. What can I most likely expect from being called to testify and how can I best prepare?

4) Can I requests documents from them that explain why they have "information and belief" that I will not be able to lay a foundation for the contract terms?

T H A N K Y O U to this forum for your help!

So far, at least, I have kept myself out of Oregon state arb -- this is no small feat!! I consider being granted the MTC private arb in the state of Oregon a little victory. Could not have done it without this great group of people

Share this post


Link to post
Share on other sites

I have never heard of this strategy before, must be a new approach since a lot of folks are getting agreements online.   The only thing I can think of is to try to put the burden back on them.  Are they suing under breach of contract?  If so, where is the contract?  If there is no contract that they can produce, how can they sue you? 

 

What you did, prepare an affidavit regarding the agreement, is often advocated.  The logic is, your affidavit is evidence, and to controvert it, the plaintiff has to produce its own evidence, which means an affidavit from the OC about the correct agreement, which they will never get.

 

I would file a reply to their opposition, making the points above.  It sounds like they plan to call you to testify at the MTC hearing.

 

You might want to pose this question at Debtorboards, as there are some arb gurus there who may have better advice.

 

http://www.debtorboards.com/index.php/board,121.0.html

Share this post


Link to post
Share on other sites

That is why an affidavit is so strong.  Where did you get the contract from?  What contract did they say you breached to sue you on? If they are suing on account stated, what was the agreement of the underlying account?

 

It is a red herring.  But since they have beat you to the punch, it is now on you present the source.  If it is online then use the affidavit with "it is the defendant's belief that these represent the terms that govern the account."  Then put the burden on the plaintiff to refute your evidence by qualified witness.

 

Definitely respond and state that if they would like for you to testify, then they need to schedule a deposition and not burden the court with such a basic discovery issue.

Share this post


Link to post
Share on other sites

@lheart

 

The document is hearsay.  In order for it to be admissible, it must fall under one of the hearsay exceptions.  The person offering the hearsay has to lay the proper foundation by showing that it falls under one of those exceptions.  That's why the JDB says its going to call the OP as a witness.  They want to show that the OP may not be able to show that the document is admissible under one of the exceptions.

Share this post


Link to post
Share on other sites

If I offer a document to the court as evidence with an affidavit, it is now evidence not hearsay. If the opposition wants to question my affidavit then they are saying I have perjured myself by testimony. It is no longer a hearsay issue.

Again, they are perverting the process. If they want to question proposed evidence or know the OPs position in the suit, that is what discovery is for. Since this is now evidense before the court for a motion, the need to present admissible evidense to counter the OP.

If they cross examine during the hearing, the OP just restates what is in the affidavit. If they ask questions beyond the scope of the affidavit or motion, object as discovery is ongoing and an arbitration ruling is pending.

It is an intimidation tactic.

Share this post


Link to post
Share on other sites

DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MTC:

If this gets kicked back into court couldn't you under discovery request all cardmember agreements issued on the account along with subsequent modifications for the history of the account? One of them might have the arb w/survivability clause agreement. If they don't like the one you have, have them show what they've got and go after it making them prove they meet hearsay/business records exception.

 

I'm sure they want to show only the latest one with no arb clause. Make them show every agreement for the life of the account- date sent to you as well as effective date. Then have them provide the source of this detail.

 

Here's a format to follow (although this is federal, work with it copying the Judge's reasoning for giving the order to arb).

https://www.adr.org/cs/idcplg?IdcService=GET_FILE&dID=31997&dDocName=ADRSTAGE2020260

 

If you got the agreement from the CFPB site which receives them from the card issuers, point that out. If you didn't but find it there, compare and if no difference, again see what their objection is other than stalling.

http://www.consumerfinance.gov/credit-cards/agreements/

Share this post


Link to post
Share on other sites

@lheart

 

It depends on what's stated in the affidavit and under which exception the evidence falls.  For instance, the business records exception lays out what must be stated in an affidavit in order the lay the foundation for admissibility. 

 

They wouldn't be accusing you of perjury.  They'd simply be saying that your affidavit is not sufficient to lay a proper foundation.

Share this post


Link to post
Share on other sites

@CCRP626

 

 

That's what I'm thinking.  If the judge were to deny the motion because the OP can't lay the foundation, he can request the cardmember agreements that were issued over the life of the account.

Share this post


Link to post
Share on other sites

Contracts offered by affidavit are not hearsay.

 

http://www.law.harvard.edu/publications/evidenceiii/professorspages/tmch5a.htm

 

Scroll down to Problem - Contractual Terms and Hearsay

 

It is an issue of Best Evidence. http://lawprofessors.typepad.com/evidenceprof/2013/04/when-i-am-teaching-the-rule-against-hearsay-to-students-one-of-the-things-that-i-always-tell-them-is-that-the-rule-is-inappl.html

 

Once the OP attested to the validity of the contract, it is up to the plaintiff to provide better evidence that it is not the contract.  

 

It is not a hearsay issue.  The OP is a party to the contract so it is direct evidence of the agreement, not hearsay.  Evidence is required to controvert evidence, not just creating speculation. 

Share this post


Link to post
Share on other sites

@lheart I'm not sure I like that one, it sounds too much like the Arizona issue of debt buyers' affidavits used to enter OC documents into evidence.

The point:

Contractual terms, when offered to prove that a contract exists, are not hearsay. They are verbal acts, or automatically true.

Answer and Analysis

Objection overruled; not hearsay. The document is an assignment which has the legal effect of assigning the claim. The document proves the assignment without necessitating that the factfinder rely on the testimonial capacities of an out-of-court declarant.

Share this post


Link to post
Share on other sites

@lheart

 

The best evidence rule is used to show what types of writings, etc. can be produced in place of an original doucment.   In other words, originals are required under certain circumstances, but other times, copies or duplicates can be offered instead of an original.   Other evidence can be offered to prove that a document existed if the original has been destroyed.  All of that is to prove the existence of a writing such as a contract.  Just because a document is a copy or a summary doesn't make it inadmissible.   If a rule or statute allows for a duplicate, you can't object that it's not an original. 

 

However, that has nothing to do with authentication and laying the foundation for a document's admission.   A cardmember agreement is a business record.   The JDB plaintiff in the OP's lawsuit doesn't say under what exception the agreement applies, but I can't think of another rule to which they'd be referring.

 

I'm not saying there's not a contract.  Of course, there is.   Nor am I saying that the JDB is right or will win the argument.   However, what the JDB is doing is what we defendants have done.   They're saying it must be authenticated and a foundation laid for its admission.  If challenging the authenticity of documents is perverting the process, then every defendant who has ever objected to a cardmember agreement due to a lack of foundation has done the same thing.  

 

If all a party has to do is state in an affidavit that "this is the right agreement" in order for it to be admissible without authentication, then we could never challenge the admissibility of a card agreement offered by either an OC or JDB.   

 

Here's some cases in which parties opposed to arbitration raised the issue of authentication of the agreement to arbitrate.  In the first 4, the courts ruled that the parties who motioned to compel arbitration had complied with 803(6) (the business record exception) and the agreements were authenticated.

 

Davis v. Cach

http://scholar.google.com/scholar_case?case=11556755918792107782&q=%22Davis+v.+CACH,+LLC%22&hl=en&scisbd=2&as_sdt=3,41

Funderburke v. Midland Funding

http://scholar.google.com/scholar_case?case=3667189616530641164&q=%22Funderburke+v.+MIDLAND+FUNDING%22&hl=en&scisbd=2&as_sdt=3,41

Cage v. CACH

http://scholar.google.com/scholar_case?case=15633271895274099985&q=%22Cage+v.+CACH%22&hl=en&as_sdt=6,41

Achey v. BMO Harris Bank

http://scholar.google.com/scholar_case?case=12142885440038179016&q=%22ACHEY+v.+BMO+HARRIS+BANK%22&hl=en&as_sdt=6,41

 

 

In the following, arbitration was denied because Midland did not authenticate the agreement.

Hinten v. Midland Funding

http://scholar.google.com/scholar_case?case=12422727109407957802&q=%22Hinten+v.+MIDLAND+FUNDING%22&hl=en&as_sdt=6,41

Share this post


Link to post
Share on other sites

@BV80

 

What you are missing in your analysis.  When we use this against JDB, we are saying that they need to produce someone that has direct knowledge of the agreement or account; i.e. a qualified witness.  

 

Since the OP is a direct party to the contract, his/her testimony via affidavit is as a qualified witness.  They are the very person that agreed to enter into the contract, so the affidavit is sufficient to lay the foundation.  Just as if the JDB got a records keeper from the OC that would lay the foundation.

 

Best evidence then kicks in because this may not be the original contract that was mailed to the OP.  But if it was pulled from http://www.consumerfinance.gov/credit-cards/agreements/then the OP can by affidavit attest to the true copy nature of the evidence presented.

 

This is a lot easier for the consumer than the JDB to lay foundation to authenticate, and once that is done, the JBD has to produce controverting evidence that it is not the agreement, and at that point they have the burden of laying foundation with a qualified witness, or the alternative is to perjure the testimony of the OP.  Sounds like they have chosen the later.

Share this post


Link to post
Share on other sites

Now can we remove the (Use Arb. at your Peril insult) from the Arb. heading. And I'm still waiting for someone to defend that thread about Banning Arb. from future agreements. (Card Co's are taking people to Arb. against there will ?????)

 

It seems to me we are still fighting to get Arb. And I know it is getting old but it still boils down to not how long winded one is or how much case law is sited but simply what Judge/Mag. you get and what mood they are in.

 

I think the next problem we are going to face is the JDB's downloading card agreements (without the Arb. clause) and submitting them with there own affidavit and including it with there law suit. If they are not doing it now, They sure will in the future 

 

If they start striking 1st. and attaching there own card agreements with there own affidavits to there Summons, We need to at least beware of it and prepare for it.  

 

In 2015 the ? should be not if Arb. works but how do we keep up with the enemies tactics and preserve our Defcon 1 option aka Arb.

Share this post


Link to post
Share on other sites

Let's see if we can narrow the issues down.  Answering the following may help:

 

1. What is the suit based on? Account Stated or Breach of Contract?

 

2.  Did they include a copy of the agreement with the filing?

 

3. What is the source of your agreement?

 

4.  Is there a date on the agreement?  If so, does it correspond with the last agreement that was in place while the account was active?

 

5. Who is the OC for the account?

Share this post


Link to post
Share on other sites

@prove-it It seems to me we are still fighting to get Arb. Yes, because the cost is high to get that rolling which the Plaintiff bears so they drop the suit. I don't think many defendants want to be in Arb if the other side coughs up the dough to get it running. If your court options are something like small claims with relaxed evidence standards or justice of the peace court where the "judge" doesn't even have to be an attorney, maybe, but if it's real court, arb is probably not the preference, especially in a state like California.

 

I will say a lot of those pinned threads are from back in 2010 or so possibly before Attys General throughout the country went after Arb since most of the funding came from card issuers but those arb firms are out of business.

Share this post


Link to post
Share on other sites

I understand how Arb. works I have used it and won. My point is people/members may not beware of just how much Arb. has changed and how it is used (Leverage) No one is wanting to go to Arb. Only those who do don't understand it !

 

But for those who aint paying attention or are new, All you see is OLD info about old strategies. mostly condemning it even going as far as to stop giving advice unless you have personal experience using the Arb. defense.

 

Now I'm talking about posts from just a week ago an article to show us just how wrong we are to want Arb. and how it only hurts us.

 

Because it is evolving and Arb. in 2015 is not the same as 04- ??? And JDB's are catching on trying everything they can to stop us from Arb. I think the next thing will be them downloading card agreements without Arb. with affidavits to preempt us from doing it 1st. thus screwing us on MTC ARb.  

Share this post


Link to post
Share on other sites

@lheart

 

What you are missing in your analysis.  When we use this against JDB, we are saying that they need to produce someone that has direct knowledge of the agreement or account; i.e. a qualified witness.

 

 

This has nothing to do with the status of the plaintiff (JDB vs. OC).

 

I'm not trying to argue or discount your analysis.  I'm only speculating as to the JDB's strategy, motive, or whatever it is.  If we don't try to understand an opposing party's motives and anticipate its actions, then we can't always protect ourselves, correct?  

 

I understand what you mean, but I think you're misunderstanding me.  I'm not disputing the validity of the agreement just because the OP found it online.  I agree that it would comply with the best evidence rule, so that's not an issue.

 

The issue is whether the foundation has been laid for the admission of the document (authentication).   Even when a document complies with the best evidence rule, the foundation for that document must still be laid in accordance with the rules of evidence.

 

The Harvard link you provided only shows that contractual terms are not hearsay if they are offered to prove that a contract exists.   There's no doubt that a contract exists between the parties.   That's not an issue.  The issue is the terms within the contract.

 

The OP has offered the contract for 2 reasons. 

 

1.  To prove that a contract exists between the parties.  That's not hearsay. 

 

2.  To prove the truth of what he has asserted.  He's asserted that the terms of the contract allow for arbitration of a dispute and has provided the contract to prove that assertion.   That's the definition of hearsay.  

 

ORS 40.450(3)

(3) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

 

The Federal Rule of Evidence (803(6)) is the same.

If you read the hearsay exceptions in the rules of evidence, note the documents listed.  It lists business records.  Why would it have to list business records?   The reason is because business records are often produced to prove a cause of action (truth of the matter asserted).   In debt collection, the matter asserted is that a defendant owes a debt.   Business records would be offered to prove that debt.  Therefore, according to the definition, the documents would be hearsay.  However, those records would be an exception to the hearsay rule IF certain conditions can be shown.   Those conditions are in Rule of Evidence 803(6).   While the records may be hearsay because of the reason they've been offered, they would be ADMISSIBLE hearsay if the stipulations provided in 803(6) are met.
 

Because the OP has offered the document to prove his claim that the terms within the contract stipulate that this dispute should be resolved by arbitration, the JDB may be attempting to use Rule of Evidence 803(6).   

 

If an original creditor (not a JDB) files a lawsuit, it still has to authenticate it's own evidence even though it created the evidence.   Why?  Because the creditor is offering the evidence to prove the truth of matter asserted (cause of action).

 

That authentication is usually by an affidavit that contains the language in 803(6) (made in the regular course of business, etc.)  If the original creditor files a MSJ, and affidavit is not provided that contains that language, then a foundation has not been laid for admission of the business records, and the records are unauthenticated.  An objection by the defendant will prevent the granting of the MSJ.  At a trial, there would need to be a witness for the original creditor that could testify that the business records were made in the regular course of business, kept in the course of a regularly conducted business activity, etc. 

 

That's possibly what the plaintiff is trying to do here.  Of course, the OP has knowledge of his own account, but the JDB may be trying show that the OP has no knowledge that the credit card agreement was made in the regular course of business, kept in the course of a regularly conducted business activity, etc.   I don't know that the judge will agree but, just in case the judge might agree, the OP has to be prepared.

 

I'm not defending JDBs or debt collection attorneys.  I'm defending the rules that can also play in our favor.  The attorney in this case is doing what he's supposed to do.  If you hired an attorney, wouldn't you expect him to use the rules of evidence against the other party?

Share this post


Link to post
Share on other sites

@BV80

 

While it is off topic, I think the discussion is good for the board.

 

That being said, I still disagree with you.  You are basing your position by attempting to reverse the roles of consumer and collector (JDB or OC).  The reason the business has to use the "Business Record Exemption" to hearsay, is that a lot of times the person who entered the contract on behave of the business may not be available to testify for the business.  So they only need to show it was maintained as part of the normal business.

 

A consumer does not have the burden of Business Record Exemption.  They are offering first hand testimony, "I entered this contract with ABC corp."  It is direct testimony from a witness to the act, so there is no hearsay involved.  It is direct testimony introducing evidence. No hearsay is evolved. 

 

@prove-it +1

 

Arbitration is about increasing the cost of litigation to pursue the consumer. Nothing more and noting less. 

 

The idea is not to actually have an arbitration hearing.  If it gets that far, you will likely lose the case.  If you have a bad case in court, you have a bad case in arbitration.  If you have a good case in court and good defense evidence, STAY IN COURT.  The court has constraints on procedures and evidence that is predictable and can be appealed.  Arbitration is a lot looser with rules and the arbitrator has a lot of latitude.

 

Once the MTC is granted and before the arbitration fees are paid is the sweet spot of arbitration and the time to negotiate your best resolution.

Share this post


Link to post
Share on other sites

Fisthardcheese came up with this law:

The CARD Act of 2009, which amended TILA.

https://www.ftc.gov/sites/default/files/documents/statutes/credit-card-accountability-responsibility-and-disclosure-act-2009-credit-card-act/credit-card-pub-l-111-24_0.pdf

SEC. 204. INTERNET POSTING OF CREDIT CARD AGREEMENTS.

(a) IN GENERAL.—Section 122 of the Truth and Lending Act (15 U.S.C. 1632) is amended by adding at the end the following

new subsection:

(d) ADDITIONAL ELECTRONIC DISCLOSURES.—

(1) POSTING AGREEMENTS.—Each creditor shall establish and maintain an Internet site on which the creditor shall post the written agreement between the creditor and the consumer for each credit card account under an open-end consumer credit plan.

(2) CREDITOR TO PROVIDE CONTRACTS TO THE BOARD.—

Each creditor shall provide to the Board, in electronic format, the consumer credit card agreements that it publishes on its Internet site.

(3) RECORD REPOSITORY.—

The Board shall establish and maintain on its publicly available Internet site a central repository of the consumer credit card agreements received from creditors pursuant to this subsection, and such agreements shall be easily accessible and retrievable by the public.

(4) EXCEPTION.—

This subsection shall not apply to individually negotiated changes to contractual terms, such as individually modified workouts or renegotiations of amounts owed by a consumer under an open end consumer credit plan.

(5) REGULATIONS.—

The Board, in consultation with the other Federal banking agencies (as that term is defined insection 603) and the Federal Trade Commission, may promulgate regulations to implement this subsection, including specifying the format for posting the agreements on the Internet sites of creditors and establishing exceptions to paragraphs (1) and (2), in any case in which the administrative burden outweighs the benefit of increased transparency, such as where a credit card plan has a de minimis number of consumer account holders.

It may or may not help to throw this at them.

  • Like 1

Share this post


Link to post
Share on other sites

@lheart
 

 

While it is off topic, I think the discussion is good for the board.

 

That being said, I still disagree with you.  You are basing your position by attempting to reverse the roles of consumer and collector (JDB or OC).  The reason the business has to use the "Business Record Exemption" to hearsay, is that a lot of times the person who entered the contract on behave of the business may not be available to testify for the business.  So they only need to show it was maintained as part of the normal business.

 

 

 

I disagree that this if off topic.  It's directly related to the plaintiff's opposition. 

 

I agree that a consumer is offering first-hand testimony of his contract with "ABC corp".   My response is based upon the plaintiff's claim in this case that the consumer has not laid the proper foundation for the admission of the agreement.   While the consumer testifies that he entered "this contract with ABC corp."  the plaintiff may be claiming that the consumer cannot lay the proper foundation. 

 

You said that the opposition is a "red herring".  I'm simply offering another explanation just in case the judge agrees with the plaintiff so that the OP can be prepared.

 

A consumer does not have the burden of Business Record Exemption.  They are offering first hand testimony, "I entered this contract with ABC corp."  It is direct testimony from a witness to the act, so there is no hearsay involved.  It is direct testimony introducing evidence. No hearsay is evolved.

 

 

I absolutely agree that the OP can show that "I entered this contract with ABC corp.".   But that's not what the JDB disputed.   From what I can tell, the JDB has presented an argument that neither JDBs or OCs have ever presented that needs to be addressed.

 

BTW, it is not the "Business Record EXEMPTION".  The rule uses the term  "EXCEPTION".   The 2 terms are have different meanings. 

 

If you have precedent that says a consumer is EXEMPT from the rules of evidence, it would be very helpful because the rules of evidence make no such stipulation.

Share this post


Link to post
Share on other sites

@BV80

Sorry, the Exemption was a typo.

 

The discussion is futile because you lack the understanding of the difference between direct testimony and hearsay. A direct party to a contract can introduce it into the record as evidence and the foundation is established. It is not hearsay, no exception is needed.

Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F. 3d 527 - Court of Appeals, 5th Circuit 1994  See line 540

 

I can provide more case law to support this, but this is basic contract law.  (also see the reference from my previous post)

 

Let me elaborate and see if I can break this down for the benefit of everyone reading this:

 

We will use the Federal Rules of Evidence as a basis since most states mirror them. http://federalevidence.com/downloads/rules.of.evidence.pdf

 

Article IX covers Authentication and Identification.  Rule 901 covers Authenticating or Identifying Evidence. 

 

 

901 ( b ) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

 

 

When you have the Testimony of a Witness with Knowledge, the evidence is authenticated and the foundation is laid.  If you do not have a Witness with Knowledge, then you move into Article VIII - Hearsay.

 

Now you need to authenticate evidence without a Witness with Knowledge, or Hearsay.  As mentioned there are Exclusion from Hearsay defined in Article VIII. 

 

803 (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diag- nosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
( B ) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

( C ) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certifica- tion; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. 

 

 

 

This is what is commonly known as the Business Records Exclusion from Hearsay.  It is called that because it is a protection for businesses to authenticate records.  ( B )  Is why it would not apply to the consumer.  Those definitions do not apply to non business, organization, occupation or callings.  And if they did, then the individual would have to substantiate their practice of maintaining records, how they are filed, stored and retrieved.  But since they are a party to the contract and a direct witness to it, there is no Hearsay.

 

Go back to article VIII. It defines Hearsay:

 

801 ( c ) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement. 

 

By affidavit, the OP has testified so the first leg of the Hearsay definition fails.  The definition has an "and" so both 1 and 2 need to be present for the Hearsay definition.  Since 1 fails, 2 need not be examined.

 

Let's talk about the contract.  The contract fails the Hearsay test also.  It is evidence.  When a party to the contract authenticates it by 901( b ) it then fails 801(c ).  This is not true for a business, unless you bring in a witness from the business that was party to the signing of a contract, then there is no need for a 803(6) exception because you have a 901( B ) witness.

 

Which is why I said, for the OP this is not a Hearsay issue.  Even the opposition listed never mentioned Hearsay.  This is because they are grasping at straws hoping to intimidate the OP to admit the debt and the amount during what should be a MTC hearing.

 

As long as the OP objects to issues of Discovery and sticks to the issue of a binging arbitration agreement, he/she should be fine.  If they plaintiff talks of Hearsay, then the OP can object on the basis it is direct testimony from a witness with knowledge that fails the first hearsay test.

Share this post


Link to post
Share on other sites

@lheart that case deals with a signed contract. A generic, undated cardmember agreement with only the card issuer's name is different. At least in Illinois when a Plaintiff tries to introduce one of those, they at a minimum have to also indicate the date the defendant allegedly received the agreement as well as when they were told it would become effective.

 

The objection was—in fact—inapposite. "Signed instruments such as wills, contracts, and promissory notes are writings that have independent legal significance, and are nonhearsay." A contract is a verbal act. It has legal reality independent of the truth of any statement contained in it. Under the objective theory of contracts, the fact that two parties signed a contract is enough to create legal rights, whatever the signatories might have been thinking when they signed it. The admission of a contract to prove the operative fact of that contract's existence thus cannot be the subject of a valid hearsay objection. To introduce a contract, a party need only authenticate it. Thus, in this case, LSI's objection to the admission of the 1972 Licensing Agreement on the grounds of hearsay was inapt.

Share this post


Link to post
Share on other sites

@BV80

 

 

The discussion is futile because you lack the understanding of the difference between direct testimony and hearsay.

 

 

 

 

 

 

 

 

The discussion WAS interesting until you made it personal.  

Share this post


Link to post
Share on other sites

@CCRP626

 

It was cited because there is very little case law for the current situation where the plaintiff is claiming that the contract presented is not applicable to the case.

 

The OP has authenticated the contract by testimony (affidavit).  While it is not signed, by the Rules of Evidence it is now evidence of the contract before the court.  The only way the plaintiff can contest the validity of the contract at this point is to purjure the testimony of the OP.  They will need to present a witness that can authenticate an agreement that contradicts the OP's authenticated document that has more weight than his/her affidavit.  

 

My point is there is no Hearsay argument to be made because it is direct testimony introducing evidence.

 

@debtzapper 

 

I did not make it personal.  I presented why this is not a Hearsay issue. BV80 ignored the issues raised in my post and went right back to the Hearsay issue.  I do not know BV80 and have no reason to make this personal.  If he/she were to provide case law or rules that establish why this is Hearsay, I would admit that I was wrong publicly. I always do.

 

I am only attempting to narrow the issue for the OP and present established contract law and rules of evidence as to why Hearsay is a non-issue and if presented can be easily defeated.

 

@ALL

 

I have nothing to sale, or nothing to gain by posting, spending time and proving any help I can.  My only motivation is to provide the help that I received when I was in the same situation.

 

That is why I posted the series of questions to the OP.

 

In my case, once JAMS accepted the claim, the OC I was going up against tried to claim that Arbitration was removed from the contract in 2010, so therefore I did not have the option to arbitrate the claim.  Well their lawyer filed a 2006 agreement in the local court when they filed the lawsuit. So I argued that if they presented an agreement to the court that was not the correct agreement, then I would file an FDCPA claim against the lawyers and a state consumers claim against them for unfair business practices.

 

The point is, they play these games all the time hoping that we as ProSe's will be distracted by their tactics and not stick to the basic principals of contract law and rules of evidence.  So the more time we spend in court fighting for something that is already a given, the more likely we are to slip up and loose.  And the court will not always inform us or protect us from such mistakes.  

 

So if the OP says he/she is no longer interested in my perspective, I will remain silent on this issue, and no longer post on this thread.

Share this post


Link to post
Share on other sites

Let's see if we can narrow the issues down.  Answering the following may help:

 

1. What is the suit based on? Account Stated or Breach of Contract?

 

Only Breach of Contract

 

2.  Did they include a copy of the agreement with the filing?

 

They included nothing with the filing.

 

They have directly sent me, at my request, what they are referring to as DV = a single piece of paper with my personal info typed out on it, along with an account number, and the name and address of the OC.

 

3. What is the source of your agreement?

 

I honestly do not exactly recall. It is a pdf in my computer files. I think I may have actually gotten it off of the CIC forum.

 

4.  Is there a date on the agreement?  If so, does it correspond with the last agreement that was in place while the account was active?

 

There is no date. I don't think it's the last agreement from when the account was active because the OC sold/went BK and a new bank took over. I am using this particular agreement because it clearly shows the OC's name and address that the Plaintiff's lawyer typed out on that DV sheet. Would it be helpful if I uploaded the agreement?

 

5. Who is the OC for the account?

 

The OC is CIT Bank (not Citibank). It took me awhile to figure out who CIT Bank even was, then I realized it's Dell (which is not on the DV sheet the plaintiff's lawyer gave me).

 

There are no CIT Bank/Dell agreements on the consumer protection database website. There is one for WebBank/Dell, who I assume took over the account when CIT Bank imploded, but the JDB is suing me on an account they claim they bought from CIT Bank, so I didn't want to use the WebBank agreement because they don't mention WebBank in the complaint or on anything they have sent me. They only ever mention CIT Bank. The WebBank agreement on the CFPB website also has an arb clause, however.

 

For what it's worth, they have never sent me any statements, either. Only a copy of a spread sheet several pages long, with my personal info cut and pasted on the first sheet, and a bunch of lines of accounting figures thereafter; my name is nowhere on the rest of the spreadsheets.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.