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Motion to Dismiss and Strike. If their evidence is still allowed, do discovery-interrogatories, request for documents, requests for admission. Study your rules of civil procedure. If it goes to trial, they'd have to produce a qualified witness to back up their documents. A JDB wouldn't meet this for original creditor records (business records exception to hearsay rule among other sections of your state's evidence rules). http://www.creditinfocenter.com/legal/motion-to-strike-affidavit.shtml

If this would ever get to court, you can prepare for objecting there if they would put someone on the stand. Nolo's Represent Yourself in Court should be in your public library among others and you can post back if this ever gets to that point.

NCLC material is excellent, like the document you PDFd. Study that. They may also have additional subscription access material at a local law library which would be free for you to review.

 

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Yeah that article was great. Gave me a lot of hope. And the judge at my pretrial hearing was extremely nice to me. 

So it would be a motion to dismiss and strike the evidence? I don't want just their affidavit stricken, I want their faulty BOS's gone too. Would this template for the motion to strike the affidavit be able to be used as one to strike all the evidence? Or is that for later? How would I make it a motion to dismiss, but also ask to strike evidence? If I was asking for dismissal, wouldn't I not be asking for anything else? Or does a judge not view it that way?

As for discovery, what are some important things I should be asking for?

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That NCLC PDF has what you need. They have starting on page 65 of 133 material you can use. Evidence code is fairly standard for most states. Like that's Kentucky there but Maine has pretty much the same wording if you refer to 803 (6) and 902 (11) for attacking a JDB affidavit trying to provide the foundation to enter records that aren't their own. Chain of title examples should also be studied.

Evidence Code- http://www.courts.maine.gov/rules_adminorders/rules/text/mr_evid_2015-9-1.pdf

Rules of civil Procedure- http://www.courts.maine.gov/rules_adminorders/rules/text/mr_civ_p_2015-9-1.pdf

Study your Rules of Civil Procedure and check with your county court website/clerk on any specifics, like if a Notice of Motion required.

For each link in the chain of ownership, the entity that has been assigned a debt must be identical to the entity that subsequently assigns it to the next assignee in the chain. To mention just one example, an appellate court found no standing to bring a collection action when the chain of ownership was broken because the chain included a sale to Union Acceptance Corporation and then a sale from a different entity, Union Acceptance Co., L.L.C., without any transfer between these two entities.Green v. Cavalry Portfolio Servs., L.L.C., 700 S.E.2d 741 (Ga. Ct. App. 2010);see also Benson v. Asset Acceptance, L.L.C., 712 S.E.2d 83 (Ga. Ct. App. 2011) (credit card with Citibank (S.D.), N.A., but assignment from Citibank USA to debt buyer and no evidence of transfer from Citibank (S.D.), N.A., to Citibank USA); Hutto v.CACV of Colo., L.L.C., 707 S.E.2d 872 (Ga. Ct. App. 2011) (affidavit provides that JP Morgan Chase & Co.assigned debt to debt buyer, but debt was with Chase Manhattan Bank).

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So, they don't meet 803 (6) and 902 (11) to introduce any of the business records that aren't their own, like original loan documents. They'd have to provide a qualified witness from the original creditor. In your discovery if this wasn't dismissed already you'd ask the Plaintiff to indicate any witnesses they plan to provide at trial. If they have no witnesses, again ask for a dismissal. An affidavit can't take the stand. You can also look at your state's rules to see if it's mandatory for them to indicate all witnesses and evidence before trial without you having to ask for that through discovery. If none indicated, ask for a dismissal or if they try to sneak any in, point that out with your dismissal request for not following the rules.

How much is this for? If it meets small claims, review those rules as well.

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@CCRP626 That's exactly where I was reading too, on those pages. It seem identical. Even the same OC.

What makes this confusing is at the beginning the venue was transfers to a court in my county. While waiting to hear that the clerk may have erroneously told me to wait to hear from the new judge before making any discovery or any motions. Then I received the new judge and pretrial date. Went to pretrial where the judge asked if there was any discovery to be done, plaintiff said no, I said yes. Then the judge asked if there are any motions left to file, plaintiff said no, I said yes. So then the judge gave a deadline for discovery and all motions. So I don't think I can wait to hear if a motion to dismiss is granted or denied. If it's denied, I'm past my deadline for discovery. It seems I have to do it all at once, unless I'm mistaken. He then asked the plaintiff's attorney how long he expected the trial to last, and said that all witness lists needed to be in 10 days before the trial. On the pretrial sheet I got in the mail it said all motions and discovery need to be filed before a certain date, except for motions in limine that would affect the trial. Is a motion in limine where I could ask mthe evidence getting thrown out?

I just don't want to miss my deadline on anything.

Also, it's for $20,xxx. So unfortunately it's not in small claims.

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Read the heading for 902. Evidence That Is Self-Authenticating. To be admitted as evidence, the business records have to meet 803 (6). The JDB is trying to use their employee's affidavit to meet this so their records aren't thrown out as hearsay. They can't, since they don't know the original creditor's practices as required in 803 (6). Going further into the evidence code, Rule 602, a JDB employee wouldn't have personal knowledge of anything elsewhere that happened before they obtained records. They can't testify without personal knowledge. Even if a JDB employee showed up and took the stand their testimony wouldn't count as soon as they admit they've never worked for the original creditor much less in a custodian of records capacity there. Objection Hearsay.

With all that knocked down, the documents are not self-authenticating. They'd have to provide a witness from the original creditor who meets custodian of records qualifications. Rule 901.

 

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@RandomHero

1 hour ago, RandomHero said:

Also if a motion to dismiss is denied. Does that mean I sacrifice that defense at trial? Or can it be re approached at trial with more evidence? 

Your defense would not be waived.

If your motion is denied, send discovery requests.

When was the account charged off?  If you don't know, check the OC's entry on your CR.  It might give a date of charge off.  If it doesn't, what is the date the OC last updated?

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Okay great! Thank you so much for this. I'm planning on filing everything tomorrow so I need to make sure all my ducks are in a row.

With discovery, how do I file it? Do I simply send it certified to the attorney? What do I file in court for the discovery?

For the motion to strike the evidence, that needs to be filed with the court as well as sent to the attorney?

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@BV80 The only thing relating to the OC on my CR is from a subsidiary of the same company. The original lender was USFB. On one of the transfer agreements they sent they said it was sold to USFB-SPV in January 2014 (the day before it was sold then to Citi and then Calvalry. All within a day or two).

On my CR it says that the loan from UFSB was closed and last updated was April of 2010, which is when Cavalry said it defaulted. So for some reason maybe UFSB waited 3 years to actually default the loan?

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Check your rules of civil procedure for discovery. The court doesn't get the discovery itself, just proof of service that you've sent it. All other paperwork, like Motions- the court gets a copy and the Plaintiff does as well.

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@RandomHero

If it's possible, you might attach bank records from 2010 up to the date the plaintiff says the account went into default in order to show no payments were made around that default date.  Therefore, the plaintiff's claim is wrong just like their claim of a payment made in 2013 is wrong.

I don't know how quickly you can get copies of statements or if your bank even has copies from 2010 and 2011.   However, if the bank doesn't have statements from that period, you can point out that the plaintiff not only misstated the date of last payment, but it has provided no evidence of the alleged date of default.  

Then you wait to see if the plaintiff responds to your motion.

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@BV80 @fisthardcheese @CCRP626I'm back! So, here's an update!

I filed a motion to dos is based on sol and a motion to strike the affidavit. Both got denied. Yay. 

Trial is next week. I sent out discovery two months ago, sent another request, and finally a motion to compel. 

Two days ago cavalry sent me what evidence and witnesses they plan to bring to trial. The witness isn't the person from the affidavit. And all they added as evidence were some records from the OC. But they still only have the bill of sales that reference 'attached accounts' but without listing any accounts. They took the affidavit out of evidence though. But who is this new witness? It says he's authorized to testify on behalf of cavalry. 

Should I still go to court and argue the SOL and to he fact that the BOS' don't show my account anywhere on them? And that the contract is still just a blank contract photocopy? 

I filed for a postponement based on the lack of discovery answers making it impossible for me to prepare a defense  but that hasn't been answered yet either  

Thanks guys!

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@RandomHero The account has been through four different owners. Any records that aren't Cavalry's, did they come with an affidavit? When did the witness ever work for the other parties in the chain of title and in what capacity? Who is their current employer? Does that company name exactly match the Plaintiff? Where are the bills of sale to show your account passing from one to the next to prove standing? Where are the original documents? See 602, 803 (6), 806, 901 b1&9,  902 (11), 1002. http://www.courts.maine.gov/rules_adminorders/rules/text/mr_evid_2015-9-1.pdf

When was the deadline for discovery to be completed and failure to comply according to your discovery rules?

 

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@CCRP626 The only records that aren't cavalry's are ones I recently got. They were from the lawyer saying this is the evidence they'll be using at trial. It included some statements from the OC and the original BOS forms they included with their original complaint. And the photocopy of the blank contract. The BoS is still the one the mentions 'attached accounts' with nothing attached  

The witness is listed as a representative of cavalry spv. The same as the ones suing. It says he's capable of testifying concerning the records of the company and information contained within. No title listed and I'm assuming he never worked for the other companies. But this witness isn't the original affiant from their affidavit. Why is that? The affidavit from the complaint wasn't in the evidence packet they sent me. 

No affidavits from the buyers in between. And none from the OC either. Just an account history while they had it. Also no where to be found is proof of that $100 payment they claim was made in 2010. 

So the only bills of sale they have show dates and that company x bought loans from company y at that time. And to see the account schedule attached, which isn't attached. Isn't that enough to argue standing? Sure, good for those company's for buying some loans at that time, but there's no proof my loan was one of them? 

Discovery deadline was beginning of April, and that was included the extra chance I had to give them in Maine. Then I filed the motion to compel. The trial date now is apparently some type of schedule hearing? I'm not sure what that means now either  

The only original document I guess they have is the statement from the OC (well, it doesn't say the OC, just American education services due diligence report) which says the delinquency date was in 09, and the loan request form. But the contract they attached is separate and blank. So basically I want to say that could be any contract, not necessarily one that I signed. 

My big question is that I filed to strike the affidavit. It was denied. But now they send their evidence list to make the deadline and they have a new witness and didn't include their original affidavit as evidence? 

Is standing still a good option? Should I continue to push the sol as well even at trial? 

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@RandomHero

Did you provide any of your bank statements to show that a $100 payment was never made at time they claim?

You said they provided statements from the OC.   The OC would be UFSB?   What do those statements show?

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@fisthardcheese I did file the motion for summary judgement based on the SOL. But it got lumped in with my striking the affidavit motion and both got denied. Basically saying that because their complaint had the basic paperwork needed to actually file a lawsuit, he had no choice but to deny it. I can upload a picture of the denial too. You guys may understand it better. 

@BV80 I wasn't able to get a statement from my old old bank at that time to show it. But I submitted and affidavit saying I never made that payment. The statements from union federal showed their attempts to contact. And even contacted the school to check for enrollment. Nothing from the in between buyers or cavalry though. 

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