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@RandomHero how about pulling your credit reports to see the original creditor last payment detail for your SOL defense?

For discovery, in addition to pursuing your compel/dismiss you may also want to research Motion in Limine. It's not really fair they ignore discovery but are stating they reserve the right to introduce at least four other items at trial. Have those been provided to you?

Quick look at those docs you attached show it's a non-recourse/as-is sale, so you could also look at focusing on that in addition to your account not being shown and no notary stamp on any of it or statement on how it meets the business records exception. All that stuff, whether it be documents supposedly created years ago or the one telling you who's coming to trial tomorrow interestingly look almost identical. Some don't even have name or title, so best evidence rule would seem to be applicable- need to see the original documents, not questionable copies. Where are the referenced exhibits?

"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?  "

Since the affiant and witness supposedly do the same thing at the JDB, they don't need the affidavit now that an in person witness is scheduled for trial. They still have to testify that any of the hearsay they're trying to introduce as evidence meets 803 (6) of the evidence code.

 

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@RandomHero

Just from what you posted I see a giant gaping hole in their evidence.  They provided a documents showing that the Credit Union sold or transferred the account to another arm of the credit union.  Then, there is a bill of sale that says CitiBank, NA sold some account to Cavalry.  Ok, seems to me that either these 2 documents are completely unrelated, or they are missing the document where the account went from the credit union to citibank.  Chain of assignment here seems to be incomplete or wildly inaccurate.

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@BV80 I plan to show my discovery asking for proof of that $100 payment to see where it came from. They also removed their (cavalry's) account statement that shows that $100 payment on it from the papers they submitted as evidence though. It was in the complaint, not in the evidence. 

@CCRP626 So what do the documents need to say to meet that rule? I just want to make sure I'm not looking at it wrong and they actually have met it. What about their papers fail to meet the hearsay exception? The referenced exhibits in the transfer agreements have never been included. Just shows that at some point in that time some loans were transferred. That's a strong argument, right? And with their new witness, unless he has personal knowledge of each place it went, even his in person testimony is hearsay just like the affidavit? Can I ask why the original affiant isn't testifying? 

@fisthardcheese I think there's a third I uploaded showing something from ufsb to citi. But in that same one it also mentions cavalry. So that one confused me. I understood Union federal to ufsb-spv, and citi to cavalry, but that one in between confused me as to why it mentions everything going to cavalry and then another going to cavalry. You know?

 

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Am I allowed to object to this new evidence and witness from being admitted? Or would that not really accomplish much? 

I already asked for those transfer agreements to get thrown out with the affidavit because they're incomplete. It got denied and then they just resent them as evidence they'll be using. 

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@RandomHero review the civil procedure code before you file more paperwork. No matter what type of motion you filed has to have that 7b1a statement. Maine doesn't have a rule that a written document has to be attached with the complaint, so you can't use that for a dismiss unless they went for a Motion for Summary Judgment. The idea is they'll supposedly provide all that detail later after pleading during discovery. http://www.courts.maine.gov/rules_adminorders/rules/mr_civ_p_plus_index.html

Feel free to object as often as you feel like. In writing if you can so it's on record in case you need to ask for reconsideration or appeal.

Also review the evidence code posted earlier which contains the business records exception including sections of the code to look over.  I think you should read the thread from the beginning again since there was a lot of good info already posted like go to page 65 of 133 of the NCLC PDF.

As for the original affiant, they're solution is to provide another qualified person to testify in person. If that person isn't there on the day of the trial, push to dismiss. If you didn't do a deposition or subpoena that person listed on the affidavit or they aren't referred to in any of your discovery I don't know there's much you can do about the new person testifying.

It sounds like you've still got a hearing on discovery and them not complying?

 

 

 

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5 hours ago, RandomHero said:

@BV80 I plan to show my discovery asking for proof of that $100 payment to see where it came from. They also removed their (cavalry's) account statement that shows that $100 payment on it from the papers they submitted as evidence though. It was in the complaint, not in the evidence. 

Usually, if it's attached to the complaint, it's part of the record.

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@CCRP626 So because I didn't mention the rule about the 21 day notice it got denied? That's where I got tied up. I read it as if they don't respond within 21 days, they're waiving the right to object to it. But it means I have to add that into the motion that they have 21 days?

ive looked at page 65 on that pdf extensively since it was so similar. And read through the thread a lot too. 

In my discovery I had interrogatories directed at the original affiant. In my motion to postpone I said without discovery I can't form an effective defense or witness list. 

The hearing on Tuesday was supposed to be a trial but it got changed to some sort of scheduling hearing. I'm planning on just going in and saying look. This is their evidence. I object to it. These transfer agreements are incomplete. It's past the sol. Can we dismiss? Otherwise, I want my discovery and a new trial date. 

How can I submit anything with a 21 day notice this close to the date?

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@RandomHero my read on it without checking any caselaw is without that notice the Plaintiff doesn't need to respond and you don't get the benefit of them waiving their objections or the 21 day time limit. The Judge still looks like he reviewed your motion, at least the dismissal one and I don't see any review of the strike other than denied.

If you're looking for an extension of time, see 7b3-4.

1 hour ago, BV80 said:

Usually, if it's attached to the complaint, it's part of the record.

one thing I noticed from that Judge's denial of randomhero's motions is there's mention of an amended complaint. Not sure of Maine law but elsewhere unless the original complaint was verified the amended complaint wipes out the original and the defendant needs to restate any objections/defenses such as standing and SOL to that amended complaint or they may be considered waived.

I think if that $100 statement (posted above with Cavalry letterhead containing typed in amounts from before they owned it) came with an affidavit from Cavalry swearing to it and the Judge didn't strike it, it should stand to use against them.

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@CCRP626 it does look like he reviewed it. He just mentioned the notice because I messed up in not including it. Almost like a tip. Lol. 

But it still looks like he reviewed the motion to dismiss, but lumped the motion to strike in there too and didn't mention why that was denied. 

For the record. I know I'm asking a ton of questions about this. I just want to make sure I'm doing the right procedures since that date is Tuesday and I don't even know what we're doing. It was supposed to be a bench trial, and now it's something else. Regardless, I appreciate everything you guys are giving me about this. I really do. 

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@CCRP626 we had pre trial back in January. This was supposed to be the actual trial date. I got paperwork today that said its been changed to a later date, but the meeting this Tuesday is to discuss evidence and discovery and the motion to compel. How should I prepare for that?

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@RandomHero did they answer and return any of your discovery? You may also want to ask for them to produce all documents and indicate all witnesses they intend to introduce at trial. Right now that earlier document of theirs you posted with the name of the witness seems to have a bunch of may introduce areas in it. If they have the documents, provide them and name all witnesses. Go through those discovery rules 26-37 so you make sure any timelines are met and you're not surprised by last minute introductions.

Take it serious but also keep in mind they may come in with a last minute settlement offer as well.

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@CCRP626 they didn't respond at all to discovery. Nothing. I asked for documents, asked about the affiant, asked about that mystery payment in 2013. Nothing. All I've heard from them is them trying to get their evidence in by the deadline. But it's not what I asked for. 

But what happens if the lawyer says he just doesn't have the info I want? Can I ask for dismissal? Can I ask for his evidence he presented not to be allowed? 

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If they didn't answer or object at all, it seems like 26g2 would apply but it sounds like they said they're trying to get documents? How did they relay that to you? That might apply for rule 34 request for production of documents if you think they have an excuse by the rules there but it sounds like you also sent interrogatories and requests for admission? If so, did they comply with those rules 33 and 36? Best thing is to read through all that so on your hearing next week you can say they didn't answer or object within 30 days. Rule 33 for interrogatories does give them the option to answer with a business record. For requests for admission there's not the wiggle room for them to not answer at all. If they didn't, it's admitted.

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@CCRP626 it sounds like cavalry is trying to get documents? From me? I got no form of discovery from them at all.  The last I hard from them was at pre trial and the judge asked each of us what we needed to do. I said discovery and a motion to strike their affidavit. The lawyer said nothing and that they'd have their witness and evidence list ready. Then I sent discovery and never heard from them again until they sent the witness and evidence list. In response to my discovery I sent I received nothing. No partial answers, no letters at all. 

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@RandomHero I probably misread something wrong. I thought they'd replied to some of your requests with an answer they were looking for the documents or had contacted other parties. It sounds like they never did that and pretty much ignored your discovery requests but did their own thing with what they planned on introducing for trial?

The only thing you could have done differently to help your case is you're required to make a good faith effort (a reminder letter you haven't received anything when the discovery response deadline is near) to resolve any disputes over discovery before filing a Motion to Compel discovery, then this Rule 26 hearing is set and the Judge decides on the compel motion. Looks like other than that, they'll be the ones with explaining to do. If you sent your discovery requests with certified mail, include that detail showing receipt when you go there next week.

It really doesn't sound like a hearing is needed since they haven't answered or objected, the court should have just issued an order for discovery but this should all get cleared up next week.

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@CCRP626 Ohhhhh. No. I got nothing from discovery. Just them sending their evidence to the court to meet the evidence deadline recently. I did send a good faith reminder close to the discovery deadline. My original discovery I sent certified and have the delivered slip. But the good faith one was just standard mail, so I'm guessing they'll just say they didn't receive it? Either way I'll take all of it. 

I plan to tell the judge the only thing holding it up is their lack of cooperation. Their claim of the default date is figgetent than the one on the statements from the OC. And I asked for proof of that mystery 2013 partial payment in discovery. Which seems to be the only thing holding us up from it being time barred. Let alone my requests for other original and complete documents to complete their chain of custody. Then ask to dismiss again based on all of that. 

Doesnt seem fair they can get their own evidence submitted but my defense is relying on them getting me my discovery.   If they answered discovery with the proof of my account being transferred, I'd likely take it as a defeat at that point, but I'm guessing they don't have the 'attached accounts' referenced in the BOS'. 

Or can I not ask for dismissal at th discovery hearing? Is the judge going to ask them why they ignored it? 

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