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18 hours ago, RandomHero said:

@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?

If they have not responded to your discovery requests, bring it up.     They made a claim about a particular date, you requested documentation to back up that, but they haven't responded.

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@CCRP626 @BV80 Will the judge ask me why I need discovery? Like why it's related? Or just ask them to produce it?

Would they have to produce everything I requested to 'comply'? I read in the rules that even a partial answer is taken as no answer. So if they have even one partial, can I move to dismiss?

Can I ask for dismissal right at this hearing? Even without discovery, their evidence is incomplete so if they don't have more than that anyway, can I ask it to be thrown out without waiting longer?

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I would think the Judge would only ask why you need discovery if the Plaintiff objected after making an effort to provide it. They just totally ignored it. It's clear for SOL you need to see where they're getting their payment date info from when you've provided an affidavit saying that is not correct. They also haven't shown standing/chain of title with anything attaching you to that. Since they're dragging their heels, it may be appropriate to ask them to not only answer your discovery but when they do that to produce all documents they intend to provide for trial along with the witness list.

If the deadline from the court order for that comes and they haven't provided it, look into asking for dismissal.

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@CCRP626 So it should already make sense to the judge why I want to see these things. That's good. I'll do that then, ask to see everything as well as discovery. Even the evidence they did submit to meet the trial deadline doesn't prove standing  so they're gonna have to show more than just that  

@BV80 Nothing on my credit report that shows a charge off date. Though the papers from them that cavalry submitted as evidence show a date in 2009. And no mention at all of any payment after that, specifically nothing in 2013 of $100. In my discovery I asked for proof of all payments including that mystery one. 

With any luck, they'll ignore the motion to compel too and I'll just ask for dismissal on that. Any case examples I've read show specifically that transfer agreements have to be complete and show the 'attached accounts' to hold up as evidence. I'm guessing if they had them, they would've submitted them. 

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3 minutes ago, RandomHero said:

 Nothing on my credit report that shows a charge off date. Though the papers from them that cavalry submitted as evidence show a date in 2009. And no mention at all of any payment after that, specifically nothing in 2013 of $100. In my discovery I asked for proof of all payments including that mystery one. 

1.  What is the 2009 date?

2.  What evidence did Cavalry submit showing that 2009 date?

 

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@BV80 I'm a bit confused as to what they are. Account statements I guess. They all have a delinquency date of 07/2009. And show a last payment date of 12/08. Something about a due diligence report too, showing attempts to make contact, but again nothing showing that $100 payment. I'll take some pictures and upload them soon. Would that delinquency date in 09 be my sol date?

if you guys get a chance too if you could go over those transfer agreements I uploaded and explain them a bit to me  like which one is saying who it goes to? And what the as-is type of sale means?

 

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15 hours ago, RandomHero said:

@BV80 I'm a bit confused as to what they are. Account statements I guess. They all have a delinquency date of 07/2009. And show a last payment date of 12/08. Something about a due diligence report too, showing attempts to make contact, but again nothing showing that $100 payment. I'll take some pictures and upload them soon. Would that delinquency date in 09 be my sol date?

if you guys get a chance too if you could go over those transfer agreements I uploaded and explain them a bit to me  like which one is saying who it goes to? And what the as-is type of sale means?

 

The transfer agreements are an attempt to show that UFSB transferred loans to Citi and Citi transferred them to Cavalry.   Pages are obviously missing because they don't show the Account Schedule (Exhibit A) which lists the loans included in the sale.

The "as is" section states:

"without recourse and without representations or warranties except those as outline in the Agreement (as defined below), express or implied, of any type, kind, or nature:"

The Agreement contains representations and warranties, but it since that section is not attached, we don't know anything about representations and warranties related to the accounts.

In regard to the account statements, is there a header?  Were they created by UFSB, Citibank, or whoever?  

 

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@BV80 So what about the transfer from ufsb to usfb-spv? Is that considered a transfer or not really because it's within the same company?

the account statement looks like it's from usfb. Although they're only listed as the loan originator, not in the header. No mention of citi anywhere on them. Would the delinquency date on those be my sol date? 

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3 minutes ago, RandomHero said:

So what about the transfer from ufsb to usfb-spv? Is that considered a transfer or not really because it's within the same company?

Hey, this document sounds familiar-

page 12 of 133 http://www.studentloanborrowerassistance.org/wp-content/uploads/2013/05/robo-signing-2014.pdf

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. footnote 67 at page for case cite.
 
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@CCRP626 that's the document that also has the specific case about another private student loan from Union federal. In their case it showed that not having the entire transfer agreement made it inadmissible. Which is what I'm going for. 

For the broken chain. In the transfer agreements I uploaded, where do you see the break? I've looked at them hundreds of times now and I thought I saw it go from Union federal, to usfb-spv, to citi, then to cavalry. All mentioning accounts that were never listed. But you said you saw a break in the chain. Where is that? I must be reading it wrong because that would be invaluable to point out tomorrow! 

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58 minutes ago, RandomHero said:

@BV80 So what about the transfer from ufsb to usfb-spv? Is that considered a transfer or not really because it's within the same company?

the account statement looks like it's from usfb. Although they're only listed as the loan originator, not in the header. No mention of citi anywhere on them. Would the delinquency date on those be my sol date? 

I don't believe that's considered the same kind of transfer as one between 2 different companies or even between subsidiaries.   In any case, the transfer shows that USFB-SPV  transferred accounts Citibank.  I don't see a break in the chain.

What I would be pointing out is that the transfer references accounts listed in the Account Schedule (Exhibit A) but no account schedule is attached that shows the account for which you're being sued.

If there's no affidavit from the OC stating that the specific account in question was sold, Cavalry is asking the court to simply take their word for it that the account was included in the transfers and sale.

 

53 minutes ago, RandomHero said:

I worded it wrong. The header says American education services skip tracing due diligence report. It mentions usfb private loan as the loan owner. 

Based upon that, I'd point out that there's nothing that verifies that American Education Services has anything to do with USFB.  Who is that company?   Where is the proof that the information contained on those "statements" came from USFB?

Where are statements from Citibank? 

Where's the Account Schedule (Exhibit A)?

Where's proof of the 2013 payment?

Again, Cavalry is expecting the court to take its word for it that the account in question was included in a transfer to USFB-SPV and then in a sale to Citibank and from Citibank to Cavalry, that the amount claimed is correct and owed, and that a payment was made in 2013.

 

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@RandomHero the whole thing looks like a mess to me. What about those other entities- first Marblehead and whatever? List all the parties involved and try to connect them. If you can't, that's part of your defense. There's nothing to tie Exhibit A and B together by reference or date. Exhibit B actually looks like it had the date whited out and reentered near the bottom paragraph. Exhibit B repeatedly mentions "the loans" as Exhibit A but no Exhibit A provided. Also, there's a signature but no idea who that is. BEST EVIDENCE RULE.

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3 hours ago, CCRP626 said:

@RandomHero the whole thing looks like a mess to me. What about those other entities- first Marblehead and whatever? List all the parties involved and try to connect them. If you can't, that's part of your defense. There's nothing to tie Exhibit A and B together by reference or date. Exhibit B actually looks like it had the date whited out and reentered near the bottom paragraph. Exhibit B repeatedly mentions "the loans" as Exhibit A but no Exhibit A provided. Also, there's a signature but no idea who that is. BEST EVIDENCE RULE.

Union Federal is a subsidiary of First Marblehead.

http://www.sec.gov/Archives/edgar/data/1262279/000119312512389404/d363936d10k.htm

Look under Part I

"Our subsidiary Union Federal Savings Bank, which we refer to as Union Federal®, offers retail banking products, including education loans, residential and commercial mortgage loans, time and savings deposits and money market deposit accounts. "

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@BV80 It may be part of the family of companies but they still should show chain of title transferring between all of these. Depending on documents introduced, it could also come in handy challenging an affidavit when one employee tries to claim personal knowledge of recordkeeping for numerous sub-companies.

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@BV80 @CCRP626 I think first Marblehead is the company that owned Union federal. Or owned them after Union federal went under. I think I'm overthinking tomorrow. It's not a trial, just a hearing about discovery and to set a new trial date. I'm also worried that if I put too many cards on the table that they'll realize they need to find the attached accounts and will include them. What can I do to prevent that? 

Also, the date is absolutely whited out. As far as signatures go too you should've seen the original affidavit signature. Just circles. Haha. 

How do I ask for the best evidence rule? That means that the full original document needs to be there to be evidence, right? 

Even if they have a statement saying ufsb as the original holder, they need Citi's records too? Not just usfb and cavalry's?

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“OBJECTION: Your Honor, this is not the best evidence. The original document is the best evidence.”

or if they haven't finished discovery, add the originals of the suspect documents to your request.

22 minutes ago, RandomHero said:

It's not a trial, just a hearing about discovery and to set a new trial date. I'm also worried that if I put too many cards on the table that they'll realize they need to find the attached accounts and will include them. What can I do to prevent that? 

They provide what you asked for in your discovery requests and indicate any additional documents/witnesses they intend to introduce before trial. You have to check the rules but that all has to be there so many days prior to the trial so you aren't surprised.

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33 minutes ago, CCRP626 said:

“OBJECTION: Your Honor, this is not the best evidence. The original document is the best evidence.”

or if they haven't finished discovery, add the originals of the suspect documents to your request.

They provide what you asked for in your discovery requests and indicate any additional documents/witnesses they intend to introduce before trial. You have to check the rules but that all has to be there so many days prior to the trial so you aren't surprised.

Copies are allowed.  The objection would be based upon the fact that the copy being offered is incomplete.   Certain parts are whited out.   The referenced Account Schedule is missing.   The document does not support Cavalry's claim that the account in question was included in any transfer or sale of accounts.

LDC General Contracting v. LeBlanc - Me: Supreme Judicial Court 2006

[¶ 7] M.R. Evid. 1002, the best evidence rule, provides that "[t]o prove the content of a writing, ... the original writing ... is required, except as otherwise provided in these rules or by statute." M.R. Evid. 1004 carves out exceptions to the best evidence rule, providing that the original is not required if it: (1) was lost or destroyed, absent bad faith; (2) is unobtainable; (3) is in the control of the party against whom the document is offered; or (4) relates to a collateral matter.  LDC Gen. Contracting v. LeBlanc, 2006 ME 106, ¶ 7, 907 A.2d 802, 804.

Any deviation from the best evidence rule is harmless error, unless an actual dispute exists as to the terms of the document at issue. LDC at ¶ 8.

 The purpose of the best evidence rule is to secure the most reliable information as to the contents of a document when its terms are disputedState v. Navarro, 621 A.2d 408, 411-12 (Me.1993).

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@BV80 @CCRP626 So update from today. Got in front of the judge and she was basically just going through everyone as fast as possible. We got up there and the opposing attorney said his clients got 'confused' with the mix of discovery and my motions to dismiss. So he said they're working on the interrogatories but they had the production of documents. He gave me a copy of them and said the originals would arrive soon (since he mailed them yesterday. Conveniently the day before trial.) The judge then told him he had until the 10th of June to finish. And if I had any objections to let him and the court know.  

Well the poets he handed me are all ones I've already seen. Nothing that I actually requested. No proof of that 2013 payment, nothing from ufsb or citi. Just the same incomplete chain of custody forms. 

On everything I didn't get an answer to, they objected  mostly with the same answer. One objection was to my request for documents or anything they had from the OC, and they said they can't speak for the OC..

Ill upload the objections soon but is it pretty normal for them to object to everything? Do I write back as to why each of my requests were valid?

 

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31 minutes ago, RandomHero said:

@BV80 @CCRP626 So update from today. Got in front of the judge and she was basically just going through everyone as fast as possible. We got up there and the opposing attorney said his clients got 'confused' with the mix of discovery and my motions to dismiss. So he said they're working on the interrogatories but they had the production of documents. He gave me a copy of them and said the originals would arrive soon (since he mailed them yesterday. Conveniently the day before trial.) The judge then told him he had until the 10th of June to finish. And if I had any objections to let him and the court know.  

Well the poets he handed me are all ones I've already seen. Nothing that I actually requested. No proof of that 2013 payment, nothing from ufsb or citi. Just the same incomplete chain of custody forms. 

On everything I didn't get an answer to, they objected  mostly with the same answer. One objection was to my request for documents or anything they had from the OC, and they said they can't speak for the OC..

Ill upload the objections soon but is it pretty normal for them to object to everything? Do I write back as to why each of my requests were valid?

 

I guess the plaintiff and their attorney have never dealt with a debt collection lawsuit before...?  They "got confused"?  lol....stalling...

About their objections, yeah, it happens here and there.  Any time they do not have something, or they do not want you to have access to it, they object.  When they objected to your one request that pertained to the OC, how exactly did you word your request?  What specifically were you asking for in that one?  Depending on what you are asking for, and what they have claimed thus far about the assignment, etc etc, you might be able to turn the tables on that objection.  Seems really weak to me that they claim to be standing in the shoes of the OC, but now want to distance themselves from being able to prove that they really are in the shoes of the OC.  Not unexpected, but weak.  The judge did say that you are to let the court and the plaintiff's counsel know.....If your request ties in to what your state's case law requires for them to be able to prove the assignments, etc etc, then you could object to their responses and ask the court to compel.  I do not know the rules in your state, some states require a M&C first.  But if they intend to claim that they are the proper party, they should be made to prove that they are the proper party.  But again, this does rely upon what you were asking for.  Some things are just not going to be included in those documents, and the court will not require every single piece of paper through the life of an account to be produced or anything.  Someone may be able to help more accurately once you post up the specific RFP's and their specific objections.

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@kraftykrab I think in that one I asked for a full payment history on the account. Including that mystery payment no one made in 2013. I also asked for an affidavit from someone from the OC, and for the full transfer agreements showing the account in question. 

It was literally all objections. Every last one. One of their objections said they couldn't provide some evidence because it wasn't in their possession. The only documents they actually produced are ones I've already seen  

I know they don't have to show literally everything. But don't they at least need to produce the full transfer agreements that show my account was bought by them to win? Oh. And they're now referring to themselves as assignee of the OC. Instead of just Cavalry like they've been saying. 

This was supposed to be my motion to compel and reschedule hearing. But how do I object to their objections to show all they're doing is ignoring every single requests. It kind of pissed me off the judge so easily accepted the 'we got confused' excuse. And then when I showed the judge all they'd done was object to everything and not produce any new documents, she told me to file it with them and with the court. But I don't know how to do that. Here's a page of examples from them. image.png

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@RandomHero when you left that hearing, did the Judge issue an order saying discovery to be complete by June 10? Is there another hearing set at a later date? You may need to prepare your own order for the Judge to sign in the future.

 

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1 hour ago, RandomHero said:

But don't they at least need to produce the full transfer agreements that show my account was bought by them to win?

Not all courts require it.   Again, you'd raise the issue that there is no evidence that the account in question was included in a transfer and sale.   There's only the plaintiff's allegation.

If you requested proof of the date of last payment (2013), what was their response?

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