Chalmers Johnson

JDB affidavit and Arkansas 16-45-104

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Good morning, long time lurker first time poster here! :rolleyes: Currently engaged with PRA in district court over a alleged old Cap 1 debt under $1,500. Only Plaintiff evidence so far is their affidavit, a statement in their response to my answer (seems to be in SOL by 2 months) and a generic 2010 contract. I responded with denials and reserving right to affirmative defenses etc., along with an immediate Request for Production.

Then I reviewed  the MTS Plaintiff's affidavit advice on this site at http://www.creditinfocenter.com/legal/motion-to-strike-affidavit.shtml . I had previously generally denied all its allegations in my answer (per [a][2] of the statute). When reviewing the general advice, I realized the affidavit in my case did not contain any "true to the best of my knowledge" nor "familiar with the books and records..."  language, merely a "competent to testify" and "based on a review" statement.

Let's cut to the chase though (gotta get to work): does anybody have experience in caselaw for the above cited statue, and how literally should the following requirements be read?

"(b) An affidavit of account under subsection (a) of this section shall be attached

to the complaint and shall contain:

(4) a statement that the affiant is familiar with the books and records of the

creditor and the account;

(5) a statement that the information and amount stated in the affidavit is true

and correct to the best of the affiant’s knowledge, information, and belief;

(6) the interest rate and the source of the interest rate; and"

Their affidavit contains none of the above, please see attached...

Thanks in advance!!!

rdacted.pdf

Edited by Chalmers Johnson
attaching affidavit

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Your case will not be won on motion to strike affidavit.  The Plaintiff will say, rightfully so, that the affidavit was a 'duly taken and a certified affidavit of the account balance, which is the requirement for filing on an account.  SEE Ark. Code Ann. 16-45-104 (revised July, 2011).  'The proper response to the affidavit is not a motion to strike, but instead, a denial under oath.'

The will likely site "Miller v. Transamerica Commercial Finance Corp, 74 Ark. App 237, 47 S.W.3d 288 (2001)," 

That is why the judge will deny your motion.  But, that's ok -- you forced them to WORK!  You should send 'Request for Admissions' and 'Request for Production of Documents,' which will tie them up.  Stay on the attack until they see that it's not worth it for them to continue to pursue.  My 'RFA' to them had about 150 items!  Make'em WORK!

Since this is District (small claims), even if you LOSE, you can appeal the decision, de novo, to Circuit Court, which resets everything back to ZERO -- as if the small claims case never existed.  I would be guided primarily by my location in Arkansas.  If you live in Little Rock or surrounding counties, an attorney WILL show for the case.  If you live out "in the country" (the farther the better) -- Marshall, Clinton, Booneville, Vilonia, etc., the Plaintiff is not going to waste a full day fighting a low-dollar case that is not a guaranteed 'win.'  Instead, they'd rather grab the "low-hanging-fruit" of cases they can win because defendant never responds.

I've been through this a couple of times, and Plaintiff ultimately slithered back under his rock.  If I can help in any way, let me know.  We won't let a fellow Arkansan be shanked by these turds!

Best of luck!

Jimmy Edwards

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They didn't attach any of the documents they're basing that affidavit on, that would be conclusory. What is the affiant looking at? In your discovery, reference the CFPB Consent Order and request production of the required docs (specifically starting at page 32). http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

For help finding caselaw, give google scholar a shot- https://scholar.google.com/scholar?q=16-45-104&btnG=&hl=en&as_sdt=4%2C4

That 16-45-104 seems in places worded loosely for creditor which could lend weight to a JDB using it to introduce documents that were from the original creditor. Holding them to 803 (6) Business Records Exception to Hearsay Rule standards would shed light on how unqualified a PRA employee is to speak about Cap One records. http://law.justia.com/codes/arkansas/2012/title-16/subtitle-4/chapter-41/section-16-41-101/

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Hey guys, thanks to both of you for the feedback! Responded in blue where you're quoted below, and thanks again...

2 hours ago, Jimmy E said:

Your case will not be won on motion to strike affidavit.  The Plaintiff will say, rightfully so, that the affidavit was a 'duly taken and a certified affidavit of the account balance, which is the requirement for filing on an account.  SEE Ark. Code Ann. 16-45-104 (revised July, 2011).  'The proper response to the affidavit is not a motion to strike, but instead, a denial under oath.'

Good, while I've already filed an MTS, denied this affidavit in my answer as well...

The will likely site "Miller v. Transamerica Commercial Finance Corp, 74 Ark. App 237, 47 S.W.3d 288 (2001)," 

That is why the judge will deny your motion.  But, that's ok -- you forced them to WORK!  You should send 'Request for Admissions' and 'Request for Production of Documents,' which will tie them up.  Stay on the attack until they see that it's not worth it for them to continue to pursue.  My 'RFA' to them had about 150 items!  Make'em WORK!

Good, sent the "First" RPoD along with my answer. Thursday they sent me RPoD with RfA and Interrogatories, quotable verbatim per older threads in this forum .They haven't responded yet to the RPoD, and are due to 16 days earlier than I by my count...

Since this is District (small claims), even if you LOSE, you can appeal the decision, de novo, to Circuit Court, which resets everything back to ZERO -- as if the small claims case never existed.  I would be guided primarily by my location in Arkansas.  If you live in Little Rock or surrounding counties, an attorney WILL show for the case.  If you live out "in the country" (the farther the better) -- Marshall, Clinton, Booneville, Vilonia, etc., the Plaintiff is not going to waste a full day fighting a low-dollar case that is not a guaranteed 'win.'  Instead, they'd rather grab the "low-hanging-fruit" of cases they can win because defendant never responds.

Good, in the same county as Booneville, still far from the Interstate! :lol:

I've been through this a couple of times, and Plaintiff ultimately slithered back under his rock.  If I can help in any way, let me know.  We won't let a fellow Arkansan be shanked by these turds!

Best of luck!

Jimmy Edwards

 

2 hours ago, CCRP626 said:

They didn't attach any of the documents they're basing that affidavit on, that would be conclusory. What is the affiant looking at? In your discovery, reference the CFPB Consent Order and request production of the required docs (specifically starting at page 32). http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

Good, referenced  the Consent Order in my Motion to Strike, even if Jimmy's right and the MTS isn't granted I was able to reference how no other evidence was sent, etc., right in line with their statutory violations as outlined by the CPFB...

For help finding caselaw, give google scholar a shot- https://scholar.google.com/scholar?q=16-45-104&btnG=&hl=en&as_sdt=4%2C4

That 16-45-104 seems in places worded loosely for creditor which could lend weight to a JDB using it to introduce documents that were from the original creditor. Holding them to 803 (6) Business Records Exception to Hearsay Rule standards would shed light on how unqualified a PRA employee is to speak about Cap One records. http://law.justia.com/codes/arkansas/2012/title-16/subtitle-4/chapter-41/section-16-41-101/

Good, thanks for the good direction!

 

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8 hours ago, Jimmy E said:

Your case will not be won on motion to strike affidavit.  The Plaintiff will say, rightfully so, that the affidavit was a 'duly taken and a certified affidavit of the account balance, which is the requirement for filing on an account.  SEE Ark. Code Ann. 16-45-104 (revised July, 2011).  'The proper response to the affidavit is not a motion to strike, but instead, a denial under oath.'

The will likely site "Miller v. Transamerica Commercial Finance Corp, 74 Ark. App 237, 47 S.W.3d 288 (2001)," 

That is why the judge will deny your motion.  But, that's ok -- you forced them to WORK!  You should send 'Request for Admissions' and 'Request for Production of Documents,' which will tie them up.  Stay on the attack until they see that it's not worth it for them to continue to pursue.  My 'RFA' to them had about 150 items!  Make'em WORK!

Since this is District (small claims), even if you LOSE, you can appeal the decision, de novo, to Circuit Court, which resets everything back to ZERO -- as if the small claims case never existed.  I would be guided primarily by my location in Arkansas.  If you live in Little Rock or surrounding counties, an attorney WILL show for the case.  If you live out "in the country" (the farther the better) -- Marshall, Clinton, Booneville, Vilonia, etc., the Plaintiff is not going to waste a full day fighting a low-dollar case that is not a guaranteed 'win.'  Instead, they'd rather grab the "low-hanging-fruit" of cases they can win because defendant never responds.

I've been through this a couple of times, and Plaintiff ultimately slithered back under his rock.  If I can help in any way, let me know.  We won't let a fellow Arkansan be shanked by these turds!

Best of luck!

Jimmy Edwards

Jimmy!

Our resident ARK  member.  Thanks for your excellent and prompt advice and for still checking in here.

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Though I've never had a run-in with PRA, this 'CFBC Consent Order,' which I admit, have not read completely, may provide the ammunition.  In my experience, the junk debt buyers continually 'tweak' their affidavits and complaints.  All the more reason to keep the pressure on!

If the Plaintiff attorney is in Little Rock, there is no way they will drive anywhere NEAR that distance, UNLESS they have cases all day at that courthouse.

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1 hour ago, Jimmy E said:

Though I've never had a run-in with PRA, this 'CFBC Consent Order,' which I admit, have not read completely, may provide the ammunition.  In my experience, the junk debt buyers continually 'tweak' their affidavits and complaints.  All the more reason to keep the pressure on!

If the Plaintiff attorney is in Little Rock, there is no way they will drive anywhere NEAR that distance, UNLESS they have cases all day at that courthouse.

 

Yep, I referenced it and the URL it could be found at, but thought it would get me on the clerk's bad side to try and submit a 60 page document as an exhibit. I did the claim the right to amend and supplement with an exhibit. Didn't really have a good template of how to write it into the motion, so I can't guarantee this is viable legalese, but this is how I referenced it in case it helps anybody else:

Quote

 

10. These deficiencies are troubling in light of the Consent Order recently issued by the Unites States Consumer Financial Protection Bureau, File No. 2015-CPFB-0023, issued September 9, 2015 (“CONSENT ORDER”) against Plaintiff PORTFOLIO RECOVERY ASSOCIATES, which is viewable at: http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf 

11.       Plaintiff appears to be engaging in practices specifically cited in CONSENT ORDER’s findings of violations by Plaintiff of the Federal Fair Debt Collection Practices Act (“FDCPA”) §15 U.S.C. 16932e, to wit:

“(page 24) Filing Misleading Collection Affidavits, in Violation of the FDCP A:

100. In numerous instances during the Relevant Period, in connection with collecting or attempting to collect Debt from Consumers, in affidavits filed in courts across the country, Respondent represented directly or indirectly, expressly or by implication, that:

a. PRA affiants had reviewed account-level documentation from the

original creditor corroborating the consumer's debt;

b. Documents attached to affidavits were specific to the consumer; or

c. PRA affiants were familiar with the content of account agreements.

101. In truth and in fact, in numerous instances:

a. PRA's affiants had not reviewed account-level documentation from

the original creditor corroborating the consumer's debt;

b. Documentation attached to affidavits was not specific to the

consumer; or

c. PRA affiants were not familiar with the content of account

agreements because, for example, the account agreements at issue

were no longer available for affiants to review.

102. The representations set forth in Paragraph 100 are false or misleading and

constitute a deceptive act or practice in violation of Sections 807, and 807(10) of the

FDCPA, 15 U.S.C. §§ 1692e, 1692e(10).”

 

12.       Specifically per the quoted excerpt of CONSENT ORDER paragraphs 100(b) and101(b), the only documentation attached to Plaintiff’s affidavit is an unsigned, poorly photocopied generic card member agreement  which there is no indication of being specifically applicable to Defendant or to this matter.

 

 

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Chalmers,

I haven't seen any of your postings where you say the alleged debt is yours.  So, I thought I would expound on filing a 'SWORN DENIAL.'  

If you did this, it would need to be a statement in WRITING that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, filed with the clerk of the court and a copy sent to the collection lawyer.

It needs to be a graduated denial. In other words, it might say, I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount.

The sworn denial is a powerful tool. It eliminates the affidavit filed by Plaintiff. As you know, the vast majority of collection suits proceed without a witness for the Plaintiff. They just enter an affidavit signed by the creditor that the debtor owes the debt and that is this amount. With that affidavit in hand, the court can give the Plaintiff a judgment. When a sworn denial is filed, the debt collection attorney cannot rely upon am affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again.

By 'graduating' a sworn denial, you are not claiming 100% that the alleged debt is NOT yours -- just that you don't believe it is, etc.  That's why it would need to be worded very, very carefully.

If not you, perhaps another forum member can benefit from this.  As always, check your state's rules of civil procedure.

 

Jimmy

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34 minutes ago, Jimmy E said:

Chalmers,

I haven't seen any of your postings where you say the alleged debt is yours.  So, I thought I would expound on filing a 'SWORN DENIAL.'  

If you did this, it would need to be a statement in WRITING that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, filed with the clerk of the court and a copy sent to the collection lawyer.

It needs to be a graduated denial. In other words, it might say, I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount.

The sworn denial is a powerful tool. It eliminates the affidavit filed by Plaintiff. As you know, the vast majority of collection suits proceed without a witness for the Plaintiff. They just enter an affidavit signed by the creditor that the debtor owes the debt and that is this amount. With that affidavit in hand, the court can give the Plaintiff a judgment. When a sworn denial is filed, the debt collection attorney cannot rely upon am affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again.

By 'graduating' a sworn denial, you are not claiming 100% that the alleged debt is NOT yours -- just that you don't believe it is, etc.  That's why it would need to be worded very, very carefully.

If not you, perhaps another forum member can benefit from this.  As always, check your state's rules of civil procedure.

 

Jimmy

Hey Jimmy, thanks for thinking of me and the further followup!

So, you are saying that the denial I provided in the response to the complaint is NOT adequate, but instead I must prepare something as you describe, where I swear under oath to a graduated denial and have it notarized and filed (copy to adversary) per a regular pleading? Is one assumed to be under oath in the Answer to Complaint pleading?

This is how I phrased the denial of the affidavit in my answer (and to related allegation):

4. As to paragraph 4, Defendant admits he at one time received a credit account from

CAPITAL ONE BANK, NA, and made charges on such account. However, Defendant

denies the correctness of the outstanding balance and interest rate charges, and further

denies that Plaintiff lawfully and properly obtained assignment of all rights, title and

interest to the account from CAPITAL ONE BANK, NA, and therefore avers Plaintiff

has no standing to bring the action set forth in the Complaint.

5. As to paragraph 5, denied. Additionally, Defendant generally and specifically denies the

allegations in the attached affidavit.

If this will not suffice to meet the element of sworn denial, I will prepare something this afternoon and file it... although I wasn't planning to file anything else as they are at 24 days and counting on my RPoD and 14 days and counting on my MTS (I am at 8 days on their discovery)... please let me know what you think...

Edited by Chalmers Johnson
add a bit more

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Also, I referenced the direct portion of the staute which calls for the denial "under oath" in my MTS: 

3.         Defendant generally and specifically denied the allegations in the AFFIDAVIT in paragraph five (5) of his ANSWER, per Ark. Code Ann. §16-45-104(a)(2).

 

So I guess my main questions are:

 

Whether my signed Answer and MTS are considered "under oath"? I'd assumed they were, but can't find a definitive answer in the Civil Rules of Procedure.

If not, will the Plaintiff have to motion or object, or will the Court discount my denials on its own? If the Plaintiff would have to object, I'd probably leave well enough alone for the time being...

 

 

 

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1 hour ago, CCRP626 said:

@Chalmers Johnson search the threads for sworn denial and graduated denial. It's been discussed before. I remember some of us (me included) didn't like the sound of the graduated phrasing. @BV80

I agree with you.   It is not a "sworn denial" because the declarant is not swearing to anything as the statement is conditional.  It allows for the fact that it might be his debt.

First, the declarant "swears" it's not his debt then immediately follows with "IF it is my debt" and "IF it is a valid debt".   It's no better than swearing you don't recognize the account.

What if a JDB submitted an affidavit that contained such a statement?

"I, Mary Doe, am a legal specialist for JDB, LLC.   I have reviewed the records of the defendant.  If I have not reviewed the records, I declare that they are true and correct copies of records created by the OC.  If they are not true and correct copies...".  

You get the idea.  We'd be all over that affidavit.

@Jimmy E

Please do not mistake my disagreement over the "graduated denial" as a criticism of you or your help.  You're a valuable member, and we truly appreciate you.

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1 hour ago, Chalmers Johnson said:

Whether my signed Answer and MTS are considered "under oath"?

Just signing them doesn't make them under oath and there may not be a requirement for that. See Rule 11.

https://courts.arkansas.gov/rules-and-administrative-orders/court-rules/rule-11-signing-pleadings-motions-and-other-papers

A party who is not represented by an attorney shall sign his or her pleading, motion, or other paper and state his or her address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. 

Summary Judgment (rule 56) would be a time you'd need to worry about this. If you do notice the Plaintiff's complaint is verified (not just signed), see if you need to verify yours. Not sure of Arkansas rules but there may be a requirement if a complaint is verified the answer has to be as well or it's ignored.

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I can certainly understand what might be the illogic of filing a 'Graduated Sworn Denial.'  My intent was for the OP to consider any and everything he might legally do in the slight chance the case is heard by a judge.  Based on what the OP has filed so far, I think he's in good shape, and PRA will ultimately drop it.

While I partially agree with @BVD80 and @CCRP626 , I disagree with a comparison drawn to "what if a JDB submitted an affidavit that contained such a statement?"  IMO, those are completely different.  Over time, I've seen many others be as prepared as possible before on court date -- and still lose -- because of a 'JDB-friendly,' or 'pro-se negative' judge.

As strange as it may sound, I believe the 'GSD' could make sense.  At the very least, nullifies the affiant's affidavit to a point, thus, forcing Plaintiff's hand.  I don't believe a judge is going to read through most discovery filings -- at least at the district level -- unless there is something he or she MUST take action on.  A graduated sworn denial being one of those.

Apologies for not articulating this in the best way, but I believe each part of a 'GSD' can rationally be broken down so it makes sense to a judge, as so:

1.  I deny this is my debt -- in other words, I honestly do not believe this is my debt.

2.  If it is my debt, I deny that it is still a valid debt -- I have so many things going on in my life, perhaps I overlooked it.  But, after searching and searching, I still can't find evidence of having a 'x' credit card.  I signed up for a 'cc' in college.  Could that be it?  Maybe I'm wrong, so show me.

3.  If it is a valid debt, I deny the amount sued for is correct -- I always pay my bills!  There's no way that amount is correct.  Starting at ZERO, how was this 'final' amount calculated?  Before I hand over my hard-earned money, you've got to prove it, because there are too many slick scammers out there.

IMO, it's no sillier than the affiant's affidavit.  In fact, the above makes more sense!  Either way, the judge is much less likely to summarily dismiss it, imo.

Finally, I'm not advocating using a graduated sworn denial -- just something to consider should you feel you need it.  Great to hear from you guys!

Jimmy

 

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I remember this from a JDB Attorney who has a Blogspot on how to defeat a collection lawsuit.

http://debtcollectionlawyer.blogspot.com/2006/08/how-to-not-pay-your-debt-or-beat_03.html 

 

The second step is to file a SWORN DENIAL. This needs to be a statement in WRITING that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, filed with the clerk of the court and a copy sent to the collection lawyer. It needs to be a graduated denial. In other words, it needs to say, I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount. The sworn denial is a powerful tool. It eliminates the Sworn Affidavit of Account. The vast majority of collection suits proceed without a witness for the creditor The collection attorney enters an affidavit signed by the creditor that the debtor owes the debt and that is this amount. With that affidavit in hand, the court gives the creditor a judgment. When a sworn denial is filed, the debt collection attorney can not rely upon a sworn affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again.

 

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Again, I'm not advocating for or against using a graduated sworn denial.  To the poster who lost his case because of such a denial, PROVES the judge looked at no other evidence.  I can speak only for Arkansas DISTRICT (small claims), where a judge can rule against you because he doesn't like the way you WALK.  In cases I have sat in, I can't count the number of times the judge looked at old credit card statements and asked the defendant, "Did you purchase an iPod at Best Buy on June 10, 2012?"  If the defendant answered YES, ruling was immediately for Plaintiff, regardless of whether Plaintiff could prove it owned the debt, or even if was collectible.

In cases like this, the only way to have a chance of a judge actually 'weighing' the case, is to appeal to Circuit, which in Arkansas, can be done 'de novo' as if the case never happened.  The parties regroup, and the ENTIRE process begins anew.

I would also make a distinction between 'SWORN DENIAL' and 'GRADUATED SWORN DENIAL.'  To me, a SD means, "This is not my debt. I've never seen this. Someone must have stolen my identity. You have the wrong person.  A 'GSD' in my opinion, is as I described above.  Is it completely out of the question that someone legitimately may have thought they paid the measly $1200, and truly are not sure.  A 'GSD' is saying, "I deny this debt, but on the off-chance it IS my debt, you need to prove it!"

IMO, if a judge reads a complete 'Sworn Denial' then sees credit card statements with defendant's name on them, I can see where the judge would immediately think the defendant is not telling the truth.  That's why a true 'Sworn Denial' IS powerful -- you're saying with 100% certainty, "this is NOT my debt."  A 'GSD' imo, is saying, "I'm not sure, so prove it."

Finally, I believe the OP will win his case for different reasons.  After reading what he's filed so far, a sworn denial is not necessary, imo.  Good luck!

Jimmy

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Good morning all. Rec'd response to my MTS yesterday:

They assert their affidavit is complaint with 16-45-104 as it is "signed by a witness who is familiar with P's record-keeping practices and the business records kept for the account which is the subject of this lawsuit, and signed by a notary public." They don't directly address the parts of the statute I referenced in the original post, which were added in 2012.

They assert that affidavit is admissible either way under Rules 803 (6-7) of the Arkansas rules of evidence. This is the hearsay exception for business records I've read about, but don't fully understand how/ if this can be disputed:

  • They cite 2 cases to support this argument, 23 Ark. App. 110 (1988) and 17 Ark. App. 169 (1986). I will look these up later on this morning; is anybody here familiar with them? You guys have advised that the points I cited from the statute may not hold up, but I wonder, does the Annotated Code and Rules of Evidence carry the same weight?

They ask that the reference to the Consent Order from the CPFB not be considered, simply claiming it does not apply in this matter.

Now the interesting part: they requested a hearing per Rule 78, to rule on the pleadings at that time. Will the court schedule this and send me a notice?

  • Will the entire case be open for discussion at such a hearing including discovery status, or only the motion?
  • May be I will need to present a sworn denial at this hearing after all?

In the meantime, Plaintiff is now at calendar day 30 for the Request for Production of Documents I sent w/ my answer. I plan to call the court this afternoon to see if responses have been received. If not, will send a Meet & Confer letter tomorrow certified mail, and follow up with a Motion to Compel/ Dismiss if they fail to respond after 5 more business days, and file this simultaneous with my answer to their discovery, on about June 27th, to make sure I meet my deadline. 

Please feel free to advise with any suggestions to help resolve this, and thanks again!!!

 

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@Chalmers Johnson you said they included a 2010 cardmember agreement? See if that has an arbitration clause in it. You may be a bit far into this with discovery to elect arbitration but could always say anything used so far will be beneficial to arbitration and it's up to the arbitrator to decide (see wording in agreement) after the court has decided if there's a valid arbitration agreement.

The big thing I think you'll want to wade through in the cases you've found is if Arkansas allows adoptive records keeping practice where a JDB can admit records of companies they buy debts from. That's where 803 (6) will come into play. I would look into hitting them on trustworthiness and bring that CFPB order into play on how PRA has a history of affidavit abuse and other evidential failures. I would also file a CFPB complaint online if their case rests solely on a PRA "custodian".

https://courts.arkansas.gov/rules-and-administrative-orders/court-rules/rule-803-hearsay-exceptions-availability-declarant

(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or disagnoses [sic], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Rule 602: https://courts.arkansas.gov/rules-and-administrative-orders/court-rules/rule-602-lack-personal-knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.

 

 

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@Chalmers Johnson What has PRA provided to show standing? Any bills of sale with your account clearly shown in it? Did you request documents during discovery? See paragraph 31, 49, 51 (any documents referenced in the affidavit and are they attached?) 71 and 72 among others of the order.

The representations set forth in Paragraph 100 are false or misleading and constitute a deceptive act or practice in violation of Sections 807, and 807(10) of the FDCPA, 15 U.S.C. §§ 1692e, 1692e(10).

If arbitration isn't shown in the cardmember agreement, do you have any counterclaims in your answer? If not, how long do the rules allow you to amend?

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1 hour ago, CCRP626 said:

@Chalmers Johnson What has PRA provided to show standing? Any bills of sale with your account clearly shown in it? Did you request documents during discovery? See paragraph 31, 49, 51 (any documents referenced in the affidavit and are they attached?) 71 and 72 among others of the order.

The representations set forth in Paragraph 100 are false or misleading and constitute a deceptive act or practice in violation of Sections 807, and 807(10) of the FDCPA, 15 U.S.C. §§ 1692e, 1692e(10).

If arbitration isn't shown in the cardmember agreement, do you have any counterclaims in your answer? If not, how long do the rules allow you to amend?

Thanks for your feedback!

All that was provided in addition to the affidavit was a generic and poorly scanned in 2010 agreement (the one where they removed arbitration). No bill of sale or assignment documents of any sort. They did respond to my answer by disclaiming my asserted SOL defense by attaching an OC statement indicating a 4/2011 payment (they filed in Feb.). 

One thing which provides me with profound doubt as to their standing is that they didn't claim to purchase this until 3/2014, but I had previously been "dunned" by another JDB a couple of years ago, who never followed up after providing me 6 statements per my DV request.

Yes, the day I filed my answer I also filed a Request for Production, redacted copy is attached.

No counterclaims in my answer, but claimed the right to counterclaim after discovery, I will look up the Rule for any deadline to amend.

So based on the above, all I've seen is the affadavit, a generic contract, and a few old OC statements. I think I will file a CPFB complaint, as the Consent Order totally reflects their practice here, especially if they don't respond to my RPoD...

 

 

 

5-17 draft request for production redact.docx

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A hearing is generally scheduled by the county clerk.  He or she look for an open date, lets Plaintiff know, who will let YOU know.  The thing about where you live, if the Plaintiff attorney is who I think it is (LW), you can count on her filing continuance after continuance, citing a "conflict" on the hearing date.  Plaintiff likes to have several different cases scheduled on the same date, to make it worth the time.  Keep in mind, if you really are in Logan county, find out what Plaintiff has on the docket when the date of a hearing is requested.  If you see the Plaintiff has lined up a lot of cases for that day, file your own continuance -- having your own 'conflict' on that date.  Often, a single continuance is rescheduled to be heard anywhere from 60 to 90 days later.

Again, if it is the attorney I think it is, she's filed three continuances in a row on a case in your county worth almost $8k!  Think of it..... Plaintiff files suit, but can't be bothered to show up in person for almost a YEAR.  In the particular case I reviewed, the defendant hired an attorney and filed an answer.  But, now, the defendant's attorney has withdrawn from the case for lack of payment.  Meantime, the judge will not give Plaintiff summary judgment because Plaintiff attorney did not show on the most recent hearing date (neither did defendant)!

Silly, huh?  Just stay on top of it.  In fact, if you ever DO end up in front of the judge, point out that the Plaintiff attorney wastes the courts valuable time by filing case after case, and continuance after continuance, demonstrating that she counts on the fact that few will respond to suits filed -- winning Plaintiff summary judgment, all via post and computer.  In the rare case a 'junk debt buyer' case makes it to trial, Plaintiff attorney loses interest in pursuing her own cases -- as demonstrated by filing multiple continuances -- and has done so in MANY cases before this court.

None of the above will mean anything, legally speaking, but in the small chance you ARE in front of the judge, he will see the pattern.  This is something I would definitely do in 'small claims' (district) court, as it can be a looser atmosphere.  Plus, from a handful of cases I glanced over, the judge seems to be 'debtor friendly.'

Jimmy

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@debtzapper thanks.  For the record, AR is Arkansas.  AK is Alaska! ;)

Thanks for the vote of confidence, but I only know what I've personally seen -- but I AM familiar with almost all the different attorneys who file JDB suits.  The pattern, at least in Arkansas is a single law firm will file ALL JDB cases for MIDLAND, for example.  Another single law firm will file for PORTFOLIO, and yet another, out of state law firm from Kentucky files JDB cases for CALVARY.  At least that's the pattern I see when browsing through county records in Circuit courts in AR.

I'm somewhat familiar with the 'Arkansas Rules of Civil Procedure,' but no expert by any means.  My 'advice' is of course, only MY opinion.  If I know for sure who the JDB attorney is, I can look at the kinds of things they have filed in past and current cases, and share what a defendant might expect.

All I know is if a case happens to make it to trial, the defendant should be as prepared as possible to argue his or her case, which oftentimes is more important than what a defendant has filed.  I see this especially at the District (small claims) level, as it literally IS like Judge Judy -- who can rule against a party 'just because.'  That could be the reason Arkansas allows a 'de novo' appeal for any reason whatsoever -- causing the entire case to start over from scratch.

J

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