Chalmers Johnson

JDB affidavit and Arkansas 16-45-104

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@Chalmers Johnson, I've attached some RFA.  Admittedly, a lot of it is just 'needling,' BUT, they have to answer EVERY single one.  I was hesitant to attach the file directly onto the forum, but thought, "what the heck!"  Even if Plaintiff saw it, I see no disadvantage -- and believe they would answer them the same anyway.

Again, I don't know much about the CFPB, so I would stick with others' opinions regarding that.  I see @CCRP626 has posted some GREAT info.

Regarding their wanting Consent Order denied, saying it is not relevant, and you can show it IS relevant, go ahead and argue it. 

In the response to your MTC, did they just say they had already answered it??  If they answered it with "non-answers," you need to argue why it is necessary that they provide you with 'X' 'Y' and 'Z.'  If they say 'client privilege/privacy' prevents them, then it is ok to provide you with a redacted copy of what they are not providing.

Look at the timeline again -- from the time you sent the first RPoD, and how long it took them to answer.  If it was more than 30 days, cite the appropriate rule that they waited too long.  I forgot the exact rule number, but it is there for a reason, and NOT to be ignored!  Since the district judge has broad discretion, he or she would let them slide if they were a couple of weeks late.

As far as their 2nd RPD -- their 'fishing.'  They are asking for very private information.  Besides, they likely provided the same 'privacy' answer to your requests.  Not only is what they ask for private, use their own reply of:  "Not reasonably calculated to lead to the discovery of admissible evidence."  Bottom line, don't worry about your bank or account -- it's private.

RPOD 1:  Overly burdensome and not reasonably calculated to lead to the discover of admissible evidence.

RPOD 2:  (Same as above). 

I don't see an FDCPA violation -- though, I have not seen the whole case info.  However, there is an attorney at the 'Cook Law Firm' in Little Rock, who LOVE to sue JDB debt collectors.  If there IS some kind of violation, they would find it.  Google them, call or email.  They would likely review it FREE.

If I were you, I would send and file whatever you decide to file, wait for their answers, then ask the clerk for a trial date.  You know this back-and-forth discovery is not going to be a net benefit, but a firm trial date will cause them to sh*t or get off the pot.

Finally, I know of some defendants who answer initial discovery without adding anything else -- purposely waiting for a trial date to argue their case in front of a judge.  Either way, you're still in good shape with this.

Jimmy

By the way, of course you need to massage the attached RFA doc with your info.

 

RFA-Updated.doc

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On 8/11/2016 at 10:51 AM, Jimmy E said:

 

If I were you, I would send and file whatever you decide to file, wait for their answers, then ask the clerk for a trial date.  You know this back-and-forth discovery is not going to be a net benefit, but a firm trial date will cause them to sh*t or get off the pot.

 

 

Agreed. I was mailed a reference of the motion after the clerk told me about the continuance, but it was never included (only cover letter and certificate). When I respond to their new RPoD today or tomorrow, I am going to ask a clerk if I could see the original to understand what the stated cause was, and then (politely) ask if I will be given an opportunity to oppose any further continuance request. The Rules don't seem to grant me the right to oppose (court's discretion), but I will do my best...

Also planning to hold of on the RFA for now since that could be used as an excuse to continue this further...

On 8/11/2016 at 10:51 AM, Jimmy E said:

 

In the response to your MTC, did they just say they had already answered it??  If they answered it with "non-answers," you need to argue why it is necessary that they provide you with 'X' 'Y' and 'Z.'  If they say 'client privilege/privacy' prevents them, then it is ok to provide you with a redacted copy of what they are not providing.

 

It was to Compel an answer, not more definite statements. I hear you, and specifically requested redacted if needed list of accounts in portfolio as called for in the Consent Order, #119.

Would you guys agree at this point it's best not to keep pushing them for better answers because what they provided was weak (see below form earlier post)?

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

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@Chalmers Johnson, you're in good shape.  I saw a request for a continuance for JDB attorney in your county, and the judge flat out DENIED it -- without the defendant filing anything against it.  I believe the judge knows PRA have SO MANY cases filed around the state, there is no way they can adjudicate all of them, if even HALF the defendants fought back.

I'd check with the clerk to find out if the continuance was granted, as it is not a given with the judge.  If he has not said one way or the other, it might not be too late to demonstrate the sheer number of cases they have filed in every county, and how they want to court to work on THEIR time, not the courts!

However, if you specifically asked for things they did not provide, and you feel COULD have provided, then I think it would be wise to follow-through with the MTC.  Here's why. 

Let's say you DO go to trial and the judge says, "Mr. Chalmers, it looks like the Plaintiff answered your RpoD."  Then you say, "your honor, they answered essentially with 'non-answers,' and didn't give me what I needed to defend my case."  I promise you, at that point, the judge is going to ask, "Well, did you file a motion to compel for the information you needed?"  See what I mean?  I've seen this happen several times.  So, unless you answer the Plaintiff's 'objections' in their answers, with why you need 'X' information, the judge will say you should've filed a MTC.

*IF* you asked for something you think you truly DO need from them, I would consider the above.  If not, then you can beat them in other ways.  Certainly get an opinion from fellow forum members.

I believe there's a time to flood the Plaintiff with everything you can.  If they are too busy and have bigger 'fish to fry,' they might dismiss your case.  But, that's certainly up to you.  I think the case will be dismissed in the end anyway.

Jimmy

 

Edited by Jimmy E
updated

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Yeah I don't want to push them to provide more, because their weak answers as they stand show they don't have what they need to prove they own a valid debt, so I feel I'm headed the other way, I want my hearing in front of the judge without more delays. All in all, with no OC witnesses nor affidavits authenticating the records they sent to PRA, nothing I ever signed, nor any proof my acct was in the portfolio referenced by their bill of sale, isn't anything they try to introduce from the OC, including their own affidavits, hearsay per the qualified witness standard of the hearsay exception?

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There's no way they will show up for court anyway -- for the very reasons I mentioned in, probably my first post!  You might want to check with the clerk to find out if the judge has seen and/or ruled on the Plaintiff continuance.  If he has, and granted it, oh well no big deal.

BUT, if he hasn't, I would at least file a letter with the clerk, pointing out several reasons why no continuance should be granted.  It wouldn't be a formal 'motion,' but something the judge could be made aware of, such as Plaintiff files so many cases all over the state, they are attempting to have trial dates meet THEIR schedule, not the courts.  I don't know if you've searched the Arkansas cases, but this attorney has filed no less than 125 cases per MONTH, every month, for the past two years.  There are literally hundreds and hundreds and hundreds of cases brought by this attorney -- counting on most not to answer, and the others to be tried on their schedule, not the courts!

Or not.  Either way, they'll drop the case.  But, if I was a judge and made aware of the sheer volume of PRA cases filed, I would almost haul them in for sanctions -- for abusing the judicial system!

Good luck!

Jimmy

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1 hour ago, Jimmy E said:

There's no way they will show up for court anyway -- for the very reasons I mentioned in, probably my first post!  You might want to check with the clerk to find out if the judge has seen and/or ruled on the Plaintiff continuance.  If he has, and granted it, oh well no big deal.

BUT, if he hasn't, I would at least file a letter with the clerk, pointing out several reasons why no continuance should be granted.  It wouldn't be a formal 'motion,' but something the judge could be made aware of, such as Plaintiff files so many cases all over the state, they are attempting to have trial dates meet THEIR schedule, not the courts.  I don't know if you've searched the Arkansas cases, but this attorney has filed no less than 125 cases per MONTH, every month, for the past two years.  There are literally hundreds and hundreds and hundreds of cases brought by this attorney -- counting on most not to answer, and the others to be tried on their schedule, not the courts!

Or not.  Either way, they'll drop the case.  But, if I was a judge and made aware of the sheer volume of PRA cases filed, I would almost haul them in for sanctions -- for abusing the judicial system!

Good luck!

Jimmy

Right, so best case scenario is no new continuances are granted (I like your idea about the letter and plan to discuss with Clerk first, that I would like to oppose any future requests) I show up on trial date, they don't, then I ask for a dismissal (with prejudice)? Even a plain dismissal should be with prejudice at this point as they filed against me in my former county of residence last year then dismissed...

If they do show I want to get it done.  I'll be putting my notes together soon...

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4 hours ago, Chalmers Johnson said:

Yeah I don't want to push them to provide more,

Then go the other direction and use the rules (probably the same section discovery failure sanctions are found) to block them from introducing anything else after they've had 30 days to get you the CFPB order required docs and anything else you asked for in discovery. @Jimmy E may know of a disclosure requirement so many days before trial where all evidence is to be provided or if none look into a motion in limine.

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@Chalmers Johnson, just an FYI.... I looked at several cases in your county where this certain Plaintiff attorney filed for continuance, and judge just DENIED it.  There was no reason.  "Scratch that."  There was no "official" reason given .... judge just said 'NO.'  This *could* be a situation where the judge knows this attorney has LOTS of filings, OR the defendant could have submitted a letter.

As @CCRP626 mentioned, get clear on the deadline dates, and file a 'Motion for Summary Judgment' with Brief.  In fact, you could use the exact same MSJ and Brief the Plaintiff attorney files in cases where defendant never answers.  I have both in DOC form, if you would like to see them.

Jimmy

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Yeah, when I dropped of the latest responses discussed immediately above, I asked the lady about whether I'd be effectively be able to oppose any further motions to continue by the plaintiff. Her answer was pretty much no, the judge would likely sign it if he got it.

Today, I got a letter from plaintiff's lawyer dated Monday 8/29, saying my recent responses were not acceptable and threatening their own MTC if better answers were not rec'd within 2 weeks. 

Of course, trial is scheduled for Tuesday (day after holiday). I'm hoping that no further request for continuance is sent. I plan to call at 4:00 pm Friday afternoon (maybe earlier) to get a confirmation as to whether we're on for Tuesday. I'm hoping that we are on and, as you predict @Jimmy E, P's attorney doesn't show.

If they don't. do I immediately ask for dismissal with prejudice?

If they do, I wonder if they'll ask for further continuance based on the discovery they want better answers to (unlikely?). If they do, I'll object, and argue that this doesn't affect material issues of ownership, and beg for a disposition that day?

 Hell I'll even admit I probably made payments, they still haven't proven ownership worth a damn, and if the Judge is still gonna rule against me, let's get it on so I can decide whether to appeal.

If on Friday it appears that we're on for Tuesday, I'll take my work computer home, go back through everything and prepare an outline with good notes, and mainly come prepared to argue :

  • lack of adequate proof of PRA's ownership,
  • and the hearsay exception to any Cap1 business records is not met, based on the fact they offered no competent testimony as to the reliability, validity or veracity of anything from alleged OC (so I'll object to anything they claim is from OC), no signed agreement, no specific reference to me in the bill of sale, and admit to having no witness planned per their earlier discovery response. 

I plan to refer to the link to another thread on this site. I mentioned earlier in my thread. I will also study up on this link I found, I really want to get as good references to caselaw as possible:

https://issuu.com/bgordy/docs/2014springdocket

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@Chalmers Johnson, IF it goes to trial, you should prepare all you can to push back at Plaintiff, in such a way that what you say and object to, can be easily cited LEGALLY.  Prepare how you will respond if judge allows their "ownership" records, and accepts the affiant's affidavit on its face.  You have to be able to articulately argue points the judge might 'breeze over.'

On two separate occasions, I sat in on a Circuit JDB trial.  The judge looked at a few pages of credit card statements that Plaintiff provided, then asked the defendant if he purchased 'X' product at Best Buy on such and such date.  The defendant answered 'yes,' and just immediately found in favor of the Plaintiff.   Defendant tried to argue that JDB did not own the debt.  The judge said, "I have the bill of sale that says they purchased this account."  The defendant said, "but they bought my alleged account along with several thousand others from the original creditor.  They can't prove that any amount I might owe is even accurate.  Further, everything they submitted is their own paperwork.  There is no 'chain of ownership.'  They're simply guessing."

The judge asked if defendant had asked for these "missing" documents in discovery.  The defendant said he did, but JDB did not provide them.  The judge asked if defendant filed a motion to compel that information.  The defendant said NO, and judge immediately found for Plaintiff.  All of this took less than five minutes.

I could see what the defendant was trying to say regarding ownership, etc., but he had no PROOF -- no arguments based in legal FACT.  He lost as a result.

I know that won't happen in your case, but just saying to be completely prepared with any legal arguments you can make -- even if some of the citations are from a different state.

The judge in the previous defendant's case, clearly was not debtor-friendly.  He saw cc statements and immediately thought defendant was a dead-beat debtor, trying to get out of paying his bills -- not seeing the bigger picture of a JDB and their crappy paperwork.

IF it goes to trial, just have all your ducks in a row.  District court will be MUCH 'looser' than Circuit, which I believe will be a good thing.  I'm happy to help if you have any questions.

Jimmy

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Can

1 hour ago, Jimmy E said:

 

The judge asked if defendant had asked for these "missing" documents in discovery.  The defendant said he did, but JDB did not provide them.  The judge asked if defendant filed a motion to compel that information.  The defendant said NO, and judge immediately found for Plaintiff.  All of this took less than five minutes.

 

Jimmy

Hmmm... @Jimmy E, please see the attached excerpts from my RPOD where P objected.

Should I have filed a motion to compel on these objections? Can I bring one with me to the trial date?

Of course if the judge is that rough I'm probably sunk in this court...

rpod3.JPG

rpod5.JPG

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@Chalmers Johnson, in my opinion, your requests were perfectly fine, but believe #3 could be shorter.  Just the length of the request "sounds" overly broad, while #4 is 'general' enough, where the Plaintiff could get away with answering the way she did.

Be short and sweet about it.  In #3, you are simply wanting a copy of the 'sale' contract between OC and JDB, the one they always refer to as the "Sales Agreement," often called the 'Forward-Flow agreement.'  Therefore, the request is simply:  Please provide "Sales Agreement" between OC and JDB as referenced in 'Bill of Sale.'

In other words, #3 and #4 are essentially the same request.  A simple request for a document usually referenced several times in what they DO give you, is not overly broad -- you are being very specific on what you want.  When they object, you can argue in a MTC as to WHY you need this for your defense -- and that reason is:  The OC always states that the sale of records are 'as-is,' and cannot guarantee every record is correct or collectible.

There's ALWAYS that type of language in that sales agreement -- and that's why the JDB doesn't want to produce it.

Either way, no matter how you presented it, they would have very likely given the same reply.  This is when the MTC becomes important, AND followed through.  I believe you said you filed one.  What was the result?  Did the judge give any kind of ruling on it?  Or, has the trial date come up before he could answer?  If so, and you feel the need, file your OWN continuance, citing the need for 'his honor' to rule on a motion during ongoing discovery.

Over time, I have saved some, mostly out of state arguments -- one being a muli-page argument against the admittance of the 'hearsay' AFFADAVIT.  Even if you verbally have to argue, you could glean some good nuggets of info from it that could make the judge think.

One argument that paints a picture of the JDB, especially in regards to the affidavit, is to simply say this:

"Your honor, imagine if someone came in here to give eyewitness testimony in a traffic accident case and they actually didn't see the crash -- they just read about it somewhere.  Well, this is the same thing.  The debt buyers don't know anything about the debt -- they just read about it."

Finally, I have no doubt you will win, and certainly don't mean to make you nervous before a trial.  Just saying, be ready with any and all arguments you can gather, and use them as needed.  Many things can be argued as common sense, and many with legal citations in 'small claims.' 

Tell the judge, it would take you about two minutes to write a 'Bill of Sale' like Plaintiff provided -- no OC logo, no way to know if person they say is the OC, is even authorized.  You have to admit, that one pager looks like it could have been quickly typed-up in Word.  The affiant on affidavit doesn't have personal knowledge, as she doesn't work or OC.

All this goes to that "Sales Agreement" that is referenced, but not produced.  And, it is why you need to see it.

Edited by Jimmy E
extra info

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42 minutes ago, Jimmy E said:

@Chalmers Johnson, in my opinion, your requests were perfectly fine, but believe #3 could be shorter.  Just the length of the request "sounds"

Either way, no matter how you presented it, they would have very likely given the same reply.  This is when the MTC becomes important, AND followed through.  I believe you said you filed one.  What was the result?  Did the judge give any kind of ruling on it?  Or, has the trial date come up before he could answer?  If so, and you feel the need, file your OWN continuance, citing the need for 'his honor' to rule on a motion during ongoing discovery.

 

Yeah thye were overdue with their response so the MTC only addressed this, not the adequacy of their answers... they answered 22 days after I filed it and sent a response to the MTC a few weeks later saying it was misfiled but moot anyway since they already answered the RPOD, albeit late...

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I always say IF it actually goes to trial, because most of these do not.  An exception would be if the attorney has a number of cases being heard on the same day, which is not always easy for them to do -- hence the continuances. 

Since they clearly have  not provided the 'Forward-Flow' agreement between them and OC, over time, I know I've seen cases where JDB HAD to supply this agreement, which lost them the case.  I'll look around, but was thinking, if you could file a true sales agreement from PRA and an OC, print it out -- even though Plaintiff did not provide you one.  You could show the judge what these agreements look like, AND highlight the wording from OC regarding not being liable, sale 'as-is' with no warranty, etc. 

Since a credit card is considered an "ongoing" agreement, there is no way Plaintiff can conclusively say the amount alleged is either accurate, or even owed at all!  Also, find cases from other states where attorneys general have come down hard on PRA.  I'm sure with a little research, you can find enough 'continuing evidence' that PRA has been untrustworthy.

Just keep in mind that District court is generally very relaxed, and you can make the arguments you want to make.  Point out how this single attorney has filed hundreds of hundreds of these cases all across the state, with what a lot of judges believe is 'scant' evidence.

Finally, don't forget that you have in your back pocket, an APPEAL de novo -- for any reason whatsoever.  The case can begin anew in Circuit court, where most judges tend to scrutinize the evidence more closely.

Good Luck!

Jimmy

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You can also get previous forward flow agreements from cases in which it was requested and they were made to produce them. Even if it is Not the one with this JDB it shows what a "Typical" forward flow doc would have embodied into the sale look for one with the same OC.

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@Jimmy E Yep we had a trial last Tuesday, with the young associate from the LR law firm. I'm pretty sure you weren't there, unless you were the judge, clerk, bailiff or opposing counsel! Place was empty besides us.

Judge was pretty courteous and treated me fairly, listened to my arguments as to hearsay, trustworthiness, etc. Spoke to me about 40% of the time or a bit less talking to me.

Judge made a significant point of noting that Plaintiff had no OC affidavit or other testimony when Plaintiff kept trying to point out the affidavits from PRA as good evidence.

Judge noted the bill of sale was not even notarized, and contained no personally relevant information. Gave P's attorney a speech about an '85 Cadillac and an unverified bill of sale.

We went back and forth as to whether the 2 columns of spreadsheet info provided was an adequate proof or original documentation, I noted that there was no way to identify, link or reference back to the bill of sale.

I continued to assert that in light of this, any purported items form the OC were inadmissible hearsay, including a year of statements which showed no actual purchases (just payments).

Judge wants a signed contract, they produce the poorly photocopied 2010 generic and I object that, by P's own assertions, my account was opened before 2010 and therefore it fails civil rule 10(d) on multiple counts (even if the unsigned generic is acceptable, it's the wrong one).

I brought up the consent order, Plaintiff's counsel argued that it didn't apply to the instant action, said there was no admission. I introduced a copy of the stipulation to the consent order, which the Judge took as an exhibit, and I described the findings made on their debt buying, affidavit and litigation practices.

I really couldn't argue SOL, and admitted that I at one time had a C1 card, denied correctness of balance but didn't say it was zero. Judge denied their further pursuit of my records per their 2nd RPoD.

Judge was indicating he had enough to rule. Plaintiff's attorney said he'd like to submit a letter brief w/ case law (as to why his documentation was sufficient?). There's a good Arkansas thread on here (hyperlinked earlier in this thread) which discusses hearsay exception which I plan to use to rebut if I need to.

I was to able to interject and invoke the Marshall, and Wildwood (as to trustworthiness) cases often. Didn't get to elaborate too much on Cavalry v. Anderson, Danner v. Discover (the 1st one) nor LVNV v. Nardi, but as I noted Judge is already pretty skeptical of their quality of evidence.

Plaintiff made an appeal to my personal responsibility or liability. Judge said he'd take it under advisement.

Judge gives P's attorney two weeks submit anything else he wants to submit. Dammit, no ruling that day, and I am left unsure and a bit off focus. I did verify with Judge I'd have a chance to respond to what he files.

P's attorney asks to be excused, he didn't wait around to chit-chat... so now I am on guard to see what he does but haven't yet taken any offense here... really wish he'd ruled last week and wonder how exactly the ruling will be published (will we have another hearing?)

Didn't embarrass myself but still not sure I'm going to win, was ready to get a ruling that day.

Thoughts/ feedback welcome as always :rolleyes:

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A trial with affidavits and no live witnesses?   That sounds more like a MSJ.   Good for you for standing your ground and not letting them just submit their stupid affidavits.

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2 hours ago, Chalmers Johnson said:

@Jimmy E Yep we had a trial last Tuesday, with the young associate from the LR law firm. I'm pretty sure you weren't there, unless you were the judge, clerk, bailiff or opposing counsel! Place was empty besides us.

Judge was pretty courteous and treated me fairly, listened to my arguments as to hearsay, trustworthiness, etc. Spoke to me about 40% of the time or a bit less talking to me.

Judge made a significant point of noting that Plaintiff had no OC affidavit or other testimony when Plaintiff kept trying to point out the affidavits from PRA as good evidence.

Judge noted the bill of sale was not even notarized, and contained no personally relevant information. Gave P's attorney a speech about an '85 Cadillac and an unverified bill of sale.

We went back and forth as to whether the 2 columns of spreadsheet info provided was an adequate proof or original documentation, I noted that there was no way to identify, link or reference back to the bill of sale.

I continued to assert that in light of this, any purported items form the OC were inadmissible hearsay, including a year of statements which showed no actual purchases (just payments).

Judge wants a signed contract, they produce the poorly photocopied 2010 generic and I object that, by P's own assertions, my account was opened before 2010 and therefore it fails civil rule 10(d) on multiple counts (even if the unsigned generic is acceptable, it's the wrong one).

I brought up the consent order, Plaintiff's counsel argued that it didn't apply to the instant action, said there was no admission. I introduced a copy of the stipulation to the consent order, which the Judge took as an exhibit, and I described the findings made on their debt buying, affidavit and litigation practices.

I really couldn't argue SOL, and admitted that I at one time had a C1 card, denied correctness of balance but didn't say it was zero. Judge denied their further pursuit of my records per their 2nd RPoD.

Judge was indicating he had enough to rule. Plaintiff's attorney said he'd like to submit a letter brief w/ case law (as to why his documentation was sufficient?). There's a good Arkansas thread on here (hyperlinked earlier in this thread) which discusses hearsay exception which I plan to use to rebut if I need to.

I was to able to interject and invoke the Marshall, and Wildwood (as to trustworthiness) cases often. Didn't get to elaborate too much on Cavalry v. Anderson, Danner v. Discover (the 1st one) nor LVNV v. Nardi, but as I noted Judge is already pretty skeptical of their quality of evidence.

Plaintiff made an appeal to my personal responsibility or liability. Judge said he'd take it under advisement.

Judge gives P's attorney two weeks submit anything else he wants to submit. Dammit, no ruling that day, and I am left unsure and a bit off focus. I did verify with Judge I'd have a chance to respond to what he files.

P's attorney asks to be excused, he didn't wait around to chit-chat... so now I am on guard to see what he does but haven't yet taken any offense here... really wish he'd ruled last week and wonder how exactly the ruling will be published (will we have another hearing?)

Didn't embarrass myself but still not sure I'm going to win, was ready to get a ruling that day.

Thoughts/ feedback welcome as always :rolleyes:

I haven't followed up on this thread in a while.  I think you did fine for yourself.   It's not easy to defend yourself before a lawyer who does this for a living and is used to the courtroom.   The judge seemed to be fair and reasonable, which is not always the case for defendants in collection lawsuits.    We'll see what happens, but you did well for yourself.   And you are getting excellent advice from @Jimmy E and others.

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@Chalmers Johnson, I believe whatever Plaintiff submitted is all they have!  I would expect them to file a dismissal without prejudice -- unless the young attorney doesn't want to cede to a pro se litigant.  You did a fine job!

You hit the high points alright.  Just wait to see what else Plaintiff might submit, as they have to send it to you too.  Again, I say they have nothing and will dismiss.

Strange Plaintiff made an appeal to your "personal responsibility or liability" when they can't even prove they own your alleged account.  I would have objected to that comment, and appealed to the judge that PRA has a long history of paying pennies on the dollar on accounts in which they try to collect 100% of the alleged amount owed!  Talk about personal responsibility and liability!

The only way they can tie everything together is if they file the 'Forward-flow agreement' directly between OC and PRA.  Of course, if they do that, the 'small print' from OC admits that they sell records 'as-is' and do not guarantee accuracy or collectability.

Finally, I don't know how deeply you got into "Business Records" being hearsay, but that is exactly what they are.  Tell the judge that PRA taking business records from OC, tossing them into their own filing cabinet and calling them their own, does NOT overcome the business records exemption of hearsay.  Remember, PRA didn't "see the accident first-hand -- they just heard about it." 

Great job!!

Jimmy

PS:  Go ahead and continue doing research as if they ARE going to respond.  Another quick note... IF they produce something new to file, be sure to look at the DATE of whatever document, because Plaintiff cannot 'create' something new for the purposes of litigation.

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Yep, I looked up the personal responsibility bit later on that evening, and would respond as to Lack of Privity and possibly other things if they put this argument in writing... 

Also, if they want to dismiss, it needs to be WITH prejudice, as P's attorney admitted they had filed in a county I formerly lived in last year, and already got their free dismissal without prejudice per the Rules...

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17 hours ago, Chalmers Johnson said:

Plaintiff made an appeal to my personal responsibility or liability.

What about PRA's responsibility to prove it owns the account?   You could hold a news conference and announce that you opened the account and incurred the charges, but it would not negate PRA's burden of proof.

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It seems clear to me that JDB attorney is sending her 'younger, green' staff!  BV80 is 100% correct -- in fact, you could quote that to the judge!

Seriously, though, at this point, I would be careful about posting any kind of strategy in the posts.  I'm confident this JDB attorney browses the CIC Forum.  Plus, it wouldn't be the first time a JDB attorney has copied comments from the forum and presented them at trial.  Of course, you have said absolutely NOTHING against yourself, or anything that could even hint at hurting your case -- so no worries.

IF the young attorney DOES submit a 'brief,' as he told the judge he would, just be ready to counter.  The only thing the attorney could do is write a brief that is 100% JDB-friendly --- meaning, citing any similar case law he can find, where a JDB prevailed in Arkansas.  Just stick to your guns and be ready to counter --- which should be easy.

I'll dig around for filings from this firm that will likely be used as arguments in your case.  Nothing they file is ever 'new' --- just boilerplate stuff.  You caught their attorney off guard, as he did not expect you to be able to argue your case.  He was WRONG!  Just keep it up!

Jimmy

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On 6/6/2016 at 2:43 PM, 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

--i have been advised not to send discovery to PRA. I have a civil case and the court date is set for oct.12. should I send a discovery?

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