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JDB affidavit and Arkansas 16-45-104


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Hey Jimmy, thanks for checking in! 

  • The court set a trial date for the 2nd of August
  • I responded to their discovery requests on the 30th, on time, there is a thread here on CIC  that outlays what they sent me word for word, which of course helped a lot. Of course I personalized my answers based on this case & what I've previously denied/ moved, and referenced their ongoing failure to respond to my discovery in response to their "stacked" interrogatory:

"INTERROGATORY NO. 11: In regard to Plaintiffs Request for Admissions to Defendant, if

any of the responses by Defendant is anything other than an unqualified admission, please explain such

response in detail, and identify or furnish copies of any documentation which would tend to support

any such response(s) of and from Defendant.

Objection, question is overly broad and burdensome, shifts the burden of proof and essentially asks

Defendant to present a full rehearsal of his case prematurely to the appointed trial date. Moreover,

details of Defendant’s case are contingent on Plaintiff’s response to Defendant’s Request for

Production of Documents, which as of the date of Defendant’s timely response here, are now 12 days

past due, with no response yet received to a good faith letter mailed to Plaintiff 10 days ago."

  • That same day, the 30th, I filed my motion to compel discovery., with my good faith letter and mailing receipt as my exhibit. The clerk said the judge may sign this quickly, but I have heard nothing back yet.

  • I'm following as a roadmap a  case from a nearby county (Pope) with the same Plaintiff and Attorney, for a lot more money, which was handled well by a local attorney last year.

  • Still have heard nothing back to my discovery requests.

  • If we get to the hearing date and still no response, I plan to cite my MTC discovery immediately. My MTS their affidavit has not been ruled upon either.

It doesn't look like they are coming forward with anything. If they have the documentation, they ought to produce it right?  I'm considering calling  and asking for the attorney who signed the Complaint (or the one also listed on the Complaint whose name is on much of the correspondence), and asking him (or her) straight out if they will dismiss with prejudice, or I will seek one of a few attorneys in mind to represent me, who of course may win attorney's fees for themselves if we prevailed.

  • Will plaintiff's Attorney be willing to discuss? Does their failure to respond to my discovery give me any leverage here, i.e. do you think these attorneys would have any violations here so they could get involved without requiring a retainer? One attorney in mind has previously helped me with a wrongful eviction suit where a 3rd party collector also committed FDCPA violations, the other is the one from the roadmap case I mentioned above.

As always, feedback is welcomed!:rolleyes:

 

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@Chalmers Johnson , it appears you may have meant your above topic to be 'PM'd' to me, instead of posting directly on the forum.  Either way, the only negative would be if the Plaintiff attorney reads these threads -- MANY DO.  But, facts are facts.  In that regard, I suppose it doesn't matter.

In my opinion, I would NEVER contact the Plaintiff attorney for ANY reason!  The ball is in their 'court' now -- they have missed the deadline to answer discovery.  You have done the proper thing in filing a motion to compel.  From what I gather, you have sent the Plaintiff a reminder letter to answer your discovery.  I see no reason why the judge would NOT grant the MTC.

It would never hurt to contact the defendant attorney of the case you mentioned -- he may find a FDCPA violation, or have reason to file for sanctions against Plaintiff -- who knows? 

Either way, I believe you're in a good spot right now.  Finally, I know it's tempting to argue in the above Interrog #11 -- but, I would have left the "overly burdensome" part, then simply said, "After a diligent search, defendant has no documents, but will update his response if that changes" -- or something like that.  Again, you're in good shape.

Best,

Jimmy

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@Chalmers Johnson, after looking at past postings, it was forum member @Mantis Knight who did battle in Pope County some time back.

I may have mentioned it before, but the JDBs are continually tweaking the things they use a 'evidence' of a debt.  I've noticed the affiant's "Affidavit" has been more carefully worded -- along with other papers -- in an effort to further solidify cases.  But, regardless, in the end, it's all smoke-and-mirrors.

Jimmy

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Well, I called the court and politely inquired with the ladies there, who advised that the judge is unlikely to sign my MTC Discovery in advance, and will probably just deal with it on the trial date (now 2 1/2 weeks away) per his typical practice. I did include the letter and Certified Mail receipt as an exhibit to this motion. This is unfortunate as we could avoid wasting the court's time if it were resolved out in front of the hearing date.

Like you said @Jimmy E, ball is still in their court, no reason to call P's attorney at this point, I suppose I'm better off if they don't answer my discovery...

When the date comes, assuming Plaintiff shows, I plan to immediately try to get my Motions to be addressed.  Actually, not necessarily, but surely they must be (particularly the MTC Discovery) in order for any sort of fair trial to be held right? I guess what I'm driving at is, should the Plaintiff or Judge decide to just start grilling me, do I have a leg to stand on by objecting and asking that my motions be ruled on first? 

Even going back to my MTS their Affidavit, the Plaintiff in their response cited the hearsay exception in the rules of evidence. Not sure if this response of theirs  is even applicable or relevant (noticed they do LOTS of copy and pasting). I wonder if the Code trumps the Rules of Evidence anyway? The clauses I referenced in my 1st post were added by the state legislature in 2011, and regardless of how they tweak their affidavits, by my reading this one  just doesn't contain the requirements of clauses (b)4-6 I originally quoted.  I imagine  they revised the law for a reason, not just for shucks and giggles, but I suppose we shall see if things even get that far...

 

I look forward to updating you guys further, thanks for all the support, and I believe I will be in good shape...

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@Jimmy E Update: rec'd a letter certified mail from the Plaintiff attorney on Saturday, indicating they had filed another affidavit, and other documentation... just swung by the Courthouse to get a copy...

·         There’s a new affidavit from a PRA employee, still don't meet the criteria I had noted in my MTS their 1st one. Will have an opportunity to make a sworn denial to this one on the 2nd at trial?

·         There’s a vanilla bill of sale date 10-1-2013, closing 3-25-2014, which references a Sale file. No personally identifying information here, and accounts are sold without recourse or representation...

·         There a page of spreadsheet data with personal info, but no indication whether it’s from the original creditor or what

·         There are statements going back from 11-2011 to 1-2010, do these prove their standing to sue?

So they’ve really not answered any of the questions I put into my Request for Production of documents (attached again here). Does this give me any leverage?

 

If I have to go it alone (have contacted an atty. to see if they are interested), I plan to immediately object and point out how they haven't participated in discovery, and for my defense, do down the list of documents I requested in my RPoD and try to point out how they haven't answered me on these, so what they have provided is inadequate. I wonder if that dog will hunt... any thoughts?

5-17 draft request for production redact.docx

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@Chalmers Johnson any response to the CFPB complaint? Does it appear since you've asked for the documents required they've provided them within 30 days as detailed in the CFPB order? Look at entering the order under Judicial Notice-

https://courts.arkansas.gov/rules-and-administrative-orders/court-rules/rule-201-judicial-notice-adjudicative-facts

 

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On 6/6/2016 at 2:51 PM, CCRP626 said:

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 afternoon @CCRP626 , thanks for your comments in my thread. I wanted to call back this early comment you made about the Business Records Exception to Hearsay rule. Our trial date is less than 2 weeks away. They had filed no OC records to this point, only their affidavit and a generic 2010 cardmember agreement. In the past week, Plaintiff filed a

  • generic bill of sale which has no personally identifying info about me, it's so generic I can attach it unredacted, and
  • a printout with 2 columns of info which appears to be generated by  PRA but it is tough to say (no header or footer information to identify), and
  • about 18 months of CAP 1 statements. Never made any purchases during said time.

My question is, can I object to the introduction of the statements as hearsay under this rule, because they offer no witness from the OC to speak to their records?

Would I have to do this out front, or only if the P attorney references them in their case?

I don't plant to object to the bill of sale, as it would be too generic to mean much I imagine...

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@Chalmers Johnson If they are providing any additional records without an 803 (6) qualifying affidavit each time, go after that to strike the records. If the affidavit doesn't reference any records, that's conclusory: robosigning or looking at a computer screen. They'll need a witness to overcome the hearsay objection (business records exception to the hearsay rule) at trial and it isn't going to be one from the original creditor.

Look at the CFPB order. It specifically states what they are supposed to have in their possession before initiating a lawsuit. When you ask for those items in writing they have 30 days to provide them or are in violation. CFPB complaint and Judicial Notice detailed above. That will be part of your evidence.

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@CCRP626 Thanks for the reply. I reviewed the Consent Order a bit more, and they sorta barely scrape by on a couple of the points of minimal requirements (i.e. these statements do show payments.). So I will review further over the weekend, but am not sure if I have a slam dunk argument from the CPFB document, and I admt I didn't get a separate CPFB complaint filed yet.

However, I think I've got this figured out though as to the hearsay problem with PRA trying to attest to CAP 1's records. Not quite fully understanding how to assert or articulate what you said, a couple more searches brought me back to this thread. This sort of helped me fully understand the caselaw behind which, a competent witness must be available from the OC to authenticate these OC records.

In my RPoD which Plaintiff has ignored for over 2 months (attached 4 posts up) I asked for any information on their witnesses, if any, so they  should have no excuse for not having an OC witness.

I am now 12 days until trial, so I think it is too late to file a written opposition to said records.  Should I still try?

They filed this stuff exactly 15 days until trial (seemed tactical on their part). So will I get a chance to refute the statements orally at the trial?

If so, and if this gets to the point of an actual trial, will I have to start objecting to all this stuff they filed, or do I wait until the Plaintiff's attorney brings it up orally, and then do I object?

Thanks again,

CJ

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I'm not up to speed on the intricacies of AR rules but I'd look into any rules they have where prior to trial each side is to reveal all evidence and witnesses so many days prior (is 15 days allowed?). Anything new they try to introduce beyond that should be excluded. If there's no rule, look into a Motion in Limine. You already asked about witnesses with no disclosure from them, so use that to your advantage. Anything else they haven't provided in discovery at this point? What do your discovery rules state for failure to comply procedures?

Make sure you practice saying Objection Hearsay come trial day if they don't dismiss or settle in the hallway. The advantage of a written objection (motion to Strike) if you have time is a paper trail for the records in case an appeal/reconsideration is something you want to do. Transcripts for appeal are usually expensive, so this is a way around that.

Some trial prep guides-

http://www.arlegalservices.org/system/files/The Self-Help Guide to Representing Yourself in Court.pdf

http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1321&context=plr

 

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@Chalmers Johnson go to the CFPB order linked earlier. Page 32, start at the bottom there but read the whole thing if you can. They're required to have this to begin with, providing it to you within 30 days if you ask is just another burden. Even if you haven't requested all this in discovery or a CFPB complaint, they should have provided it after the many months this has been going on since it is supposed to be in their possession prior to suing. All documents Plaintiff intends to rely on to prove their case would have met the request.

A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off; c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio.

 

Have any of those affidavits provided referenced any specific documents? If not, page 35 affidavits, paragraph 121 c and d.

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13 hours ago, CCRP626 said:

@Chalmers Johnson go to the CFPB order linked earlier. Page 32, start at the bottom there but read the whole thing if you can. They're required to have this to begin with, providing it to you within 30 days if you ask is just another burden. Even if you haven't requested all this in discovery or a CFPB complaint, they should have provided it after the many months this has been going on since it is supposed to be in their possession prior to suing. All documents Plaintiff intends to rely on to prove their case would have met the request.

A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off; c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio.

 

Have any of those affidavits provided referenced any specific documents? If not, page 35 affidavits, paragraph 121 c and d.

Thanks for pushing me on this @CCRP626 I think I am getting close to where I need to be. The Bill of Sale requirements you put in bold italics are very solid aren't they? I think this will help me establish, with the added weight of the Consent Order, that their BOS is just BS!  :rolleyes: I will get this order submitted for judicial notice by providing s copy, and a written request, within which I will identify the appropriate clauses. 

The self-representation resource you provided is also short and sweet and helpful, thanks again...

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@Chalmers Johnson the only way they could weasel out of the CFPB order is if they filed the lawsuit prior to Sept 8, 2015 (the order's effective date) but many of the areas covered such as that bolded chain of title blurb are so basic the court should use them if you challenged standing. I would still file a CFPB complaint since in addition to reviewing your situation they can get a heads up that PRA is most likely filing other lawsuits against the order they agreed to. Some of those other defendants who should never get sued will end up paying PRA to make this go away.

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I'll comment further when I have time, but wanted to reiterate something I have mentioned previously regarding ARKANSAS LAW.  In a worst-case-scenario, if you happened to lose, you can appeal 'de novo' -- bumping it up to Circuit Court (instead of District, 'small claims' Court).  You can appeal for ANY reason.  In fact, even if you don't show up at trial and get a summary default against you -- you can still appeal to Circuit.  This resets the case to ZERO, and everything begins again, as if there had never been a case.

Of course, I'm not saying "don't show up," but instead, concentrate on how to argue your case in what will be a much "looser" atmosphere.  The law must be followed, sure.  But, at the 'small claims' level, the judge has very very broad discretion on his or her rulings.  The judge may be debtor friendly, Plaintiff-friendly, or completely neutral.

As with any court case, the Plaintiff will have her turn, as you object to everything that she tries to introduce.  Then, it will be YOUR turn to argue -- and this is important... use as much ARKANSAS case law as possible.  Cite relevant case law from surrounding states if needed.  I am confident you will win -- but you must combine compelling arguments against, along with pointing out why PRA have lost similar cases.  Search out these cases for laws cited.  Don't break your neck -- just a handful.

Remember, in the end, you've got the 'ace-in-the-hole,' because no matter WHAT happens, you can appeal 'de novo.'

 

Jimmy

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CFPB complaint filed on their website, including attachments from Plaintiff filings from my case.

 Request for Judicial Notice filed, including a reference to the filed CFPB complaint by number.

At first, my Judicial Notice Request included arguments as to how what they did violated the Consent Order, but I decided to remove all arguments, and just include facts, per the text of the rule, and not wanting to file something which would be stricken. I've kept the version I drafted with the arguments for an aide at trial.

Also, Plaintiff finally responded to my RPoD. Nothing new was included beyond their recent filing. Many boilerplate objections. I figure this helps me, as now they don't have an excuse to keep filing (better or adequate) evidence against me. Honestly feel like their responses put them into more of a corner, as they:

  • Object to as irrelevant my request for adequate chain of title which is very close to the Consent Order requirements from 119c
  • State that they have no witnesses to call. So, with no affidavit ever filed from the OC, I should be able to beat them by objecting to anything from the OC as hersay (vanilla bill of sale, 1 page 2 column printout, 18 months of statements showing no purchases, only payments)
  • as I mentioned, their responses included less than what they filed for trial, so no new nor compelling evidence

Get to the courthouse to file my Judicial Notice, and true to @Jimmy E's prediction, Plaintiff has already postponed trial for 5 weeks. Comment to the clerk how unfortunate it is that P plays so many games, and that this delay was totally predictable, I'd like to get this over with.

This makes me glad I filed the CFPB complaint. Their website asks you what a fair resolution would be, I answered that I want a Vacate/ Dismissal of current case, release and cease CR reporting of all alleged accounts (they claim an add'l one from GE Capital for about $630), and restitution of $1,000 in lieu of my filing FDCPA claims. Hell, that is a good discount for them!

Hopefully, the CFPB  complaint will get them moving...

Question: is there any way to head them off from asking for further continuances?

 

 

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To answer your last question:  NO -- they have the right to file a continuance.  But, remember, you do TOO!  Look, it's my opinion that this will never go to trial, BUT, whatever the new "trial date," you should wait a couple of weeks before, and file your own continuance!  However, I know you want this over.

I forgot:  Did you send 'Request for Admissions' -- and did they answer them in time?  If they did not answer RFA, then those become "admitted" -- as if they are completely true.

If you really want to 'light a fire' under them, you should file another 'Motion to Compel' based on evasiveness,  and 'non-answers' to your 'RPD.'  You "NEED" what you asked for so you can defend yourself! (wink, nod).  I would seriously consider turning this into a 'Motion to Compel or in the Alternative, Motion to Dismiss WITH Prejudice, with Brief.'  Sounds like a lot, but not really.  Just argue why their answers (or lack of) are evasive in the RPD they answered.  In the MTD, include arguments you have already made, plus a few more, if they can be cited by law.  Finally, the 'Brief,' as you know, is more of a narrative argument as to why your new MTC or MTD should be granted.  While you would cite as much case law as possible, you can also mention plain FACTS about PRA.  For example, do a little research and find out how many JDB cases are filed.  The fact that Plaintiff asks for continuance 'X%' of the time "in this court," every time a regular citizen answers their complaints.

In the end, the goal would be to compel them to provide REAL answers to your RPD, and why the case should be dismissed (especially if deadlines are missed).  The 'Brief,' being what you would say if you were in front of the judge -- a narrative that includes facts about PRA in general (look at other cases), and why the case should be tossed.

Or, just wait for new trial date -- or for them to dismiss the case (which is what they will ultimately do, imo).  At the very least though, I would highly consider a 'Motion to Compel,' because you did NOT get answers from them -- only garbage, which is all they have!

Best,

Jimmy

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No, never sent an RFA. I didn't want to get too cute and dig myself a hole, or seem vexatious, or give them a chance to provide something better as to evidence.  I'd say my knowledge has certainly increased since this began, and if I had it do over again I would, but right at the outset, I wan't as confident.

That may be one reason I might want to hold off from trying to re-open with an MTC/MTD or a new RFA: If they've answered my discovery, and filed their documentation for trial as they did a couple of weeks, doesn't this close the door on them introducing more documentation just whenever they darn well please? Although unlikely, perhaps they produce the sale file info, and it indicates something adverse for my case? However, I do see the strength in such an approach, and will keep this option in mind tactically. 

Hopefully the CFPB complaint will light that fire under them, because as it stands now, they clearly seem to be on the wrong side of the Consent Order in the mandated conduct provisions highlighted by @CCRP626 above, certainly 119, and probably 121. They really need to revise their practices  to what was ruled on by the government, and hopefully I can help persuade them to do so...

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5 hours ago, Chalmers Johnson said:

Question: is there any way to head them off from asking for further continuances?

If they do this orally, object. If they file a motion, you can do an opposition. It's up to the Judge's discretion but a continuance is supposed to be for good cause. If you have no objection to the Plaintiff continuing to do this, the Judge may not put a halt to it. It's up to you if you want this over with or if you're okay with it going on.

For the CFPB order, they're supposed to have all this before initiating a lawsuit, so really no excuse for a delay beyond the allowed 30 days.

I'd also even if they aren't doing a summary judgment, quote Rule 56 if you see a continuance request less than 45 days before trial. This deadline allows for full briefing and a hearing on the motion before trial, which should promote more efficient use of judicial resources. In addition, it prevents a party from using a late motion for summary judgment as a stealth motion for continuance.

See Rule 40: Continuances. The court may, upon motion and for good cause shown, continue any case previously set for trial.

FRCP 40 sets no guidelines for determining when a continuance should be granted. The federal courts have taken the position that the matter of granting or refusing to grant a continuance rests in the discretion of the trial court. McSurely v. McClellan, 426 F. 2d 664 (C.C.A. D.C., 1970); Connell v. Steel Haulers, Inc., 455 F. 2d 688 (C.C.A. 8th, 1972). Prior Arkansas law made a continuance mandatory under superseded Ark. Stat. Ann. 27-1401 (Repl. 1962) when a party was represented by an attorney who was in the legislature and it was in session; otherwise, the matter of continuances rested within the discretion of the trial court. Baltimore & Ohio Ry. Co. v. McGill Bros. Rice Mill, 185 Ark. 108, 46 S.W.2d 651 (1932); Wallace v. Hamilton, 238 Ark. 406, 382 S.W.2d 363 (1964). Under this rule, a continuance is never mandatory as was previously the case involving a member of the legislature. To this extent, Rule 40 changes Arkansas law.

Rule 40 does not require that a motion for continuance be in writing. Neither does it require that notice be afforded to opposing counsel that a continuance is sought. The court can, in its discretion, require such notice and as a practical matter notice, either orally or in writing, should be given to opposing counsel in most instances.

 

 

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Yep, either way, I really do think they'll drop it.  Just for 'fun,' I did a search for cases filed by attorney (LW), and see that, on average, files almost 100 cases per MONTH -- and that' JUST IN CIRCUIT COURT!!

Even with cases of a defendant not answering, she often files an 'extension' because she simply doesn't have time a adjudicate what she files -- a VERY clear pattern of 'legal' abuse of the judicial system, imo.

Jimmy

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5 hours ago, Chalmers Johnson said:

Question: is there any way to head them off from asking for further continuances?

 

@CCRP626 is right about continuances.  The only thing I can add is based on where you live, the attorney would never present an ORAL motion for a continuance.  Most judges will grant a continuance for both sides at least once.  If Plaintiff files a second one, then I would file a motion against it -- spelling out what you've been through since the beginning, including late answers, etc.  Then, if it is attorney I think it is, I would print out a couple of months of cases (LW) had filed.  It should be several hundred.  Research all you can about the number of continuances she has filed across the state, along with cases where defendant did not respond, and she filed for more time!

Let me explain the last bit, about filing for time extension on cases when defendant doesn't respond.  See, the moment she wins summary judgment, the clock is ticking for her to research and prepare to send 'Writs of Garnishment' to losing defendant.  If she doesn't feel she can get it all done, she just files a time extension, and disposes of the case later.

GAWD, what a racket!  It's legal though.  Unless there are a number of cases lined up on for the same day in your town, she will never show up -- not worth it.  I would certainly get across the point that she files too many cases to effectively adjudicate, causing her to file time extensions and continuances.  She has time to file hundreds and hundreds of cases, she should not now be allowed to show up only when it is convenient to her, and not this court.  I dare say, she is legally abusing the judicial system.  Put a stop to it your honor.  Deny her request for yet another continuance!

You're in good shape either way!

Jimmy 

 

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@Chalmers Johnson more leverage for you-

A lack of diligence alone is sufficient cause to deny a continuance. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).

AR Code § 16-63-402 (2015)

http://law.justia.com/codes/arkansas/2015/title-16/subtitle-5/chapter-63/subchapter-4/section-16-63-402/

Continuance for absence of evidence or witness.

(a) A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.

(b) If thereupon the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause. However, the opposite party may controvert the statement so set forth in the motion for continuance by evidence.

 

 

...the law is well established that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). When deciding whether a continuance should be granted, the following factors are to be considered by the trial court: (1) The diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id.; see also Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). Additionally, the appellant must show prejudice from the denial of the continuance, and when a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). Finally, the court has also held that a lack of diligence alone is sufficient cause to deny a continuance. Id.

 

We have upheld denials of motions for continuance on similar contentions many times. In Shinsky v. State, 250 Ark. 614, 466 S.W.2d 909, we held that there was no abuse of discretion in denial of a motion for continuance which simply stated that appellant's counsel had not had adequate time to prepare a defense, even though almost four weeks intervened between the defendant's arrest and trial. We find no significant difference between that case and this one. We have held that there was no abuse of discretion or arbitrary action in refusal of a continuance when the defendants had about three weeks to prepare for trial, Meyer v. State, 218 Ark. 440, 236 S.W.2d 996, and in the absence of any showing of prejudice, we cannot say that refusal of a continuance is error. Nash v. State, 248 Ark. 323, 451 S.W.2d 869.  -Russell v. State, 559 SW 2d 7 - Ark: Supreme Court 1977

 

 

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  • 2 weeks later...

Great and thanks for the replies guys! I never saw the motion for continuance until after I was advised of the new court date by the clerk. 

@Jimmy E you picked a perfect time to check in. As you can see below, Plaintiff is trying to continue Discovery. Do you have a template for an apt RFA I can send them?

1. 15 days on the CFPB complaint was today, They wouldn't hold PRA to an answer because it is already the subject of pending or priorlitigation, so complaint closed with no relief. They said they would forward the info to the Consumer Sentinel, so as far as I know this route is dead. Irritating that I guess no CFPB complaint can address litigation practices by that standard.

2. They filed an opposition to my Request for Judicial Notice. Claimed it wasn't relevant to the case. I'd drafted a version that had my arguments included after citing the Consent Order, but I removed the argumentative language to merely state facts. They want it denied and waive their right to a hearing. Should I send an amended one with the arguments or respond further? I planned to demonstrate how Plaintiff was in violation of the Order at trial. My goal here is just to have the court recognize the Order as a standard to go by.

3. They responded to my MTC for my RPoD. They'd already responded to the discovery per earlier in the thread, so oh well right?

4. They filed a 2nd Interrogatory and RPD. They want info on each and every bank between 2010 and 2011, including:

  • Address
  • Account number 
  • Names of all signatories
  • Type of account
  • Open and close dates

think I remember the bank name (since bought out), account long since closed, don't remember account number and don't want my wife's name introduced at all. Can I object to stating her name?

RPOD 1: Then they request bank statements, canceled checks and deposit slips on all accounts.

I have none of the records they request, so I plan to honestly answer, as I do all questions.

RPOD 2: Then, they request I sign and place my SSN# on an "Authorization for Financial Records" where I outright give them a blanket authorization, no time restriction for "any of my personal  or business financial records" upon request to Plaintiff's attorney. They didn't even include the self addressed stamped envelope they referenced! :rolleyes:

Is this an FDCPA violation, or just a stupid test? Surely I can object as overly broad, etc. and of course I will not grant them this unless on pain of incarceration... :lol:

 

 

 

 

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Use your discovery code for specific statutes and wording. Some objection choices to use can be found here relating to fishing expeditions and privacy concerns.

http://documents.jdsupra.com/9921c758-1d18-452e-a93c-c38171614feb.pdf

 

Portfolio still has to provide those required documents 30 days after you requested. That will be part of the reason for the Judicial Notice they'll have to object to. You can also add the stipulation as a supplement with their CEO's signature waiving any other right to challenge or contest the validity of the order. http://files.consumerfinance.gov/f/201509_cfpb_stipulation-portfolio-recovery-associates-llc.pdf

When it gets to the 30 day mark with no documentation provided, see about updating the CFPB complaint since that's a clear violation of the order. Arkansas Atty General also might have an interest in debt collectors suing without documentation.

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