Mongosmash

Being sued by PRA in Dallas County, TX

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1. Who is the named plaintiff in the suit? Portfolio Recovery Associates Assignee of Synchrony Bank (Lowes)

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Portfolio Recovery Associates, LLC

3. How much are you being sued for? little over $2,500

4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank (Lowes)

5. How do you know you are being sued? (You were served, right?) I was served

6. How were you served? (Mail, In person, Notice on door) Notice taped to door in a Ziploc bag

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Dallas County, TX, Justice of the Peace Court PR 2 PL 1

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Don't believe to be w/in SOL

11. What is the SOL on the debt? To find out: 4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served, nothing filed by me yet

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

15. How long do you have to respond to the suit? 14 days starting 12/8

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Affidavit, Bill of Sale, and a Credit Card Statement

Plaintiffs_Original_Complaint_redacted.pdf

Defendants Original Answer_redacted.pdf

Motion for Permission to Conduct Discovery_redacted.pdf

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Plaintiff's Original Complaint and Evidence attached to original post.

I have prepared, and attached, my Answer and Motion for Permission to conduct discovery based on @texasrocker 's templates.

I plan to file my Answer and Motion on Monday with the clerk, and I have a few questions for now.

(1) Do I need to file an affidavit with the Answer and/or Motion?  Does it need to be notarized?
(2) Can I file the Answer and Motion at the same time?

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I filed my Answer and Motion for Permission to Conduct Discovery (attached in posts above), last week, based on @texasrocker templates, and today I checked the mail and received the attached Order Setting Hearing Date today.  I guess I was hoping the judge would grant my request to conduct discovery before any hearing took place, so I'm not entirely sure what to expect from this hearing.  This won't be the trial part right?  It's just to address my plea to jurisdiction, special exceptions, and motion to conduct discovery?  I'll need to read up on the cases I cited in my Answer so I can discuss them intelligently, but does anyone have any other advise or opinions on this?

Is it wishful thinking to think the plaintiff's lawyer won't show up or dismiss the case prior to the hearing?

Court Hearing_20170120_redacted.pdf

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9 hours ago, Mongosmash said:

 I guess I was hoping the judge would grant my request to conduct discovery before any hearing took place, so I'm not entirely sure what to expect from this hearing.  This won't be the trial part right?

Some Judges will do that others stick to the format of the pretrial hearing.  This is only a pretrial and nothing will be decided beyond your motions.  Be prepared but it isn't anything to worry about.

9 hours ago, Mongosmash said:

It's just to address my plea to jurisdiction, special exceptions, and motion to conduct discovery?

Yes.  You will get about 60 days to do discovery and a trial date will be set out that far for both sides to come back and actually litigate the case.

9 hours ago, Mongosmash said:

Is it wishful thinking to think the plaintiff's lawyer won't show up or dismiss the case prior to the hearing?

No because it has happened.  One thing to be prepared for is the Judge in Part 1 is kinda creditor friendly.  I really wish it were in Part 4 with Judge Hubener who is VERY objective and common sense.  

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UPDATE...the attorney did show up and I bombed the hearing.  I wasn't nearly prepared as I should have been (honestly didn't know what to expect) and I picked up the Plaintiff's response to the plea and special exceptions on the way to the courthouse that morning, so i certainly hadn't had time to review and prepare for those.  I suspect that was the attorney's plan (mailing it so soon before the hearing).  The judge ruled against my plea to jurisdiction and special exceptions.

Attached is the 14 page response he filed.  He claimed "he had seen a lot of these and finally decided to take some time and prepare a response".  Whether that is true or if this is a canned response they have used in the past, I don't know.

On the same hearing, the opposing attorney got the judge to sign the attached "order granting limited discovery".  I had already filed my motion for permission to conduct discovery, so I expressed my concern that was fine as long as it didn't preclude my discovery items.  The judge requested to see my discovery items before he okay'd them, which I did that same afternoon and got a verbal from the clerk a few days later (although I still don't have a signed order, hopefully I didn't jump the gun) saying the judge approved them.  So I sent my discovery items, and we'll wait and see what they respond with.

A trial date has been set for April.

(1) As far as submitting all the items in TRCP 194.2 w/in 30 days from the date of the signed Motion granting limited discovery, I'm kind of at a loss as to what evidence I could muster at this point since the fact that I owe the money or that PRA owns the debt is still in question.  Does anyone have any advice as to what the Defense typically provides in this scenario?  I don't want to miss anything and then lose the ability to submit it if I figure out a week before trial I need it.  Perhaps the Lowe's/Synchrony cardholder agreement?  Are you supposed to submit only the items you will submit as evidence, or just anything you might?

(2) Assuming the plaintiff replies with all the discovery items requested and this does go to trial, when, or by when, does the objection to their robo-affidavit need to occur?  Is there a TRCP or TRE code governing that?  Do I need to file a motion to strike the affidavit well before the trial, or does that get objected to and hopefully thrown out on the trial date?

Plaintiffs_Response_to_Plea_and_Special_Exceptions_redacted.pdf

Order Granting Limited Discovery_redacted.pdf

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I sent my discovery requests to the Plaintiff as I had a verbal okay from the clerk that the judge approved them.  The case has since been set for trial.  Then today I get an objection from the PRA lawyer to the discovery.  The judge has already verbally agreed to the discovery items I submitted so I hope/expect he'll just deny the objection, but the case has already been set for trial, so I'm not sure the objection is valid (except they state they received it on 1/27 and they requested the trial date on 1/26, so I guess that's a loophole).

Funny part is they claim i'm wasting the court's time but they are the one asking for a hearing.

In any case, do I need to respond to this or just wait and see what the judge responds with?

 

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UPDATE...I received from the plaintiff responses to the generic requests for disclosure under TRCP 194.2.  I also received all the original items attached to petition (affidavit and generic bill of sale), along with a computer print out of the alleged account details and a stack of past credit card statements.

They have not provided any of the interrogatories, requests for production, or requests for admission I submitted to them (with the help of @texasrocker).  I did have verbal approval from the judge before submitting them.  30 days is coming up very soon since I submitted them to the Plaintiff.  

My current plan of action is to send them a letter in the next few days giving them a week to produce the discovery items I requested and advising them that if they do not I will be submitting a motion with the court to compel them to.

I have a question though.  In regards to the stack of documents they provided, do I need to object to any of this evidence in writing with the court (particularly the affidavit), or is that handled at the trial?  In the event this does end up going to trial, I don't want to forgo my right to object to any of it.  If I need to do this in writing, is there a cutoff prior to the trial date on when this needs to be submitted?

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If in the 1 or 2% chance that it actually goes to trial you can then object to it. 

That whole "stack of documents" is their scare tactic to try to make you settle with them.  The only one of any relevance is their bill of sale when its wording can be used against them in discovery to ultimately win your case.

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Calling @texasrocker I sent the PRA lawyer a letter advising them that if I didn't receive the discovery items in 7 days I intended to  file a motion to compel them to.  It's been 10 days and no word.  Can you point me to the motion to compel language I need to file with the court?

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On 3/13/2017 at 11:50 PM, Mongosmash said:

Calling @texasrocker I sent the PRA lawyer a letter advising them that if I didn't receive the discovery items in 7 days I intended to  file a motion to compel them to.  It's been 10 days and no word.  Can you point me to the motion to compel language I need to file with the court?

I knew they would not answer.  Check your Private Message.   They will most likely start sending offers to settle for less if they have not already done so.  Just ignore those and throw them in the trash;  it is their last resort and a sure sign that they know their chance of winning is next to nil.

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So as of right now, I've filed my motion to compel discovery responses with the court.  I still haven't received any response from the PRA lawyer in regards to my meet and confer letter or my motion to compel.  What I did receive was a "Plaintiff's Notice of Filing of Business Records Affidavit", attached.  Included is a generic bill of sale, the standard printout from the PRA computer system with name, amounts, account number, etc..., and 200 or so pages of billing statements from Synchrony Bank.

Speaking with the court clerk, the motion to compel won't be heard until the day of the trial, right beforehand.  So in the unfortunate event the motion to compel doesn't go in my favor, I'll need to be prepared to have a bench trial on the same day.  Not sure if a motion for continuance would be in order if the motion to compel is turned down.  The trial is set for 4/4.

So for the next 7 days I'm going to prepare to defend my motion to compel and work up my trial brief and basic trial strategy.  First and foremost is to have the business records affidavit thrown out which would make the documents attached inadmissible (due to hearsay), and the Plaintiff would have no evidence to prove their case.

Here's some general questions and my thoughts on the affidavit that I would love to get some input on, sorry for the length:

  1. In justice court, is filing a trial brief with the court necessary or even recommended?
  2. Should I file my objections to the evidence as motions prior to the trial, or just object to them the day of?  Would that be a "Motion in Limine"?
  3. Does anyone have a good YouTube video or two of debt collection cases tried in justice court.  Curious how a typical trial plays out.
  4. Regarding the business records affidavit, referencing Simiens v. Unifund, I primarily need to attack the fact that:
    1. The records were not incorporated and kept in the ordinary course of business
      1. This is a tough one, but from what I've researched, the thing to point out is that PRA and Synchrony Bank have no ongoing business relationship, so how could the records be kept or transmitted during the course of an ordinary or regularly conducted business activity. The activity is just a one shot sale, they have no ongoing interest with each other.
    2. There was no reliance by PRA on the accuracy of the documents
      1. This would be easier with the Forward Flow Agreement, which I don't have (yet), which would most likely indicate that the files transmitted with the bill of sale contained errors and that Synchrony offers no warranties, but the Bill of Sale itself states "Seller hereby transfers.....without recourse...".  The fact that no warranties were offered would indicate the documents contained inaccuracies.  Would TRE 106 and 107 (Rule for Optional Completeness) be appropriate for bringing up the Forward Flow Agreement?
      2. The affidavit in no way indicates that the accuracy of the documents were relied upon.
    3. There are circumstances indicating the documents are untrustworthy
      1. This one seems like the easiest to argue.  PRA is in the business of buying debt at steep discounts with the sole purpose of collecting that debt.   PRA doesn't have "customers" with whom it is important to maintain accurate and correct records or their business with suffer and fail.  They are in the business of maximizing the return on their investment by collecting the maximum claim possible with a minimum of overhead.

Being that Simiens v. Unifund, that established the three pronged test for business records affidavit was from the Houston court of appeals, I could bring up Powell v. Vavro from the Dallas court of appeals which would be the same district as this justice court that rules that the "witness signing a business records affidavit must have personal knowledge of the other company's record keeping to support admissibility under Rule 803(6)".  It's from 7 years prior to Simiens, but being from Dallas, not sure if it would have more precedence.

Items specific to each paragraph in the Affidavit:

Paragraph 3: they reference 207 pages but I only count 206.  This speaks to the trustworthiness of the affidavit.  The paragraph is conclusatory as well because there is no evidence attached to back up this statement

Paragraph 4: This has conclusatory statements as well.  There is nothing attached showing the account was issued to defendant or that defendant was obligated to pay it, or that defendant breached the terms of the account.  What terms?

Paragraph 6: How can the PRA custodian of records possibly know that the attached documents were made or near the time of each occurrence?  They state they were transmitted by a "person with knowledge" but don't say who?  I'm not sure if they need to or not.

Should I use TRCP 201 (Judicial Notice of Adjudicative Facts) to bring light to robo-signing, any FTC fines, or class action lawsuits, or buying debt at a steep discount....prior to the trial?  Or is that just going to annoy the judge?

In some of the previous limited discovery items they did submit per TRCP 194.2 they included an "Affidavit of Sale" from the original creditor and several alleged demands for payment from PRA after they were supposedly assigned this debt.  I'm curious why they didn't attach these to this Business Records Affidavit.  They can't submit them at trial because they would be overrules as hearsay with out testimony or a business records affidavit.

Also, the business records affidavit they are submitting as evidence is from a different custodian of records than the one they submitted with the Original Complaint.  That seems odd.  Why not use the same person?

 

Business Records Affidavit_redacted.pdf

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There have been several recent Texas cases here - you can check those to see what to expect. What typically happens in these cases, especially with 200 pages of statements showing your credit activity, is that everyone in the courtroom - from the judge to the cleaning lady - knows that the debt is yours and that PRA owns it. Judges in these cases are increasingly intolerant of defendants coming to court with a litany of "technicalities" (what judges typically refer to as 'legal mumbo jumbo') that in no way "defend" the case. 

Civil cases are not like murder trials - they are decided on "preponderance of evidence." If the judge thinks there is a 51% chance that you defaulted on the account that PRA owns, they will be awarded a judgement at trial.

I should probably put this in a boilerplate signature line, but people need to be honest with themselves (I know - it took me a long time to get here) and admit the truth: Unless it is ID theft, you are being sued on a legitimate debt by the legitimate owner. Once you accept that fact, you have two choices - (1) settle the debt or (2) try to get out of it. Going to court on the wrong side of the facts is not a likely way to achieve option (2).

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1 hour ago, Goody_Ouchless said:

Civil cases are not like murder trials - they are decided on "preponderance of evidence." If the judge thinks there is a 51% chance that you defaulted on the account that PRA owns, they will be awarded a judgement at trial.

It's not even 51%. It's the 'most likely of all scenarios'. If you throw out 10 possibilities, Midland essentially  only has to show an 11% likelihood to win. 

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15 hours ago, Mongosmash said:

The affidavit in no way indicates that the accuracy of the documents were relied upon.

This right here is going to be your best shot, although I don't know if I would say "in no way indicates".  They talk about what they did with the records after they were obtained. I can see a lively argument in which they would claim that it would be impossible for them to use the records as described if they weren't being relied upon.  The affidavit doesn't expressly say the records were "incorporated" either, but I think there's enough verbiage there to bridge that gap that an appellate court would let admission slide.

Your best case scenario is to get a judge that has some issue with JDBs in general, Midland specifically or Midland's attorney more specifically and he's looking for any reason to rule against them. Otherwise, cross your fingers that he's not so biased that he just summarily denies your MTC just so he can give Midland their judgment just to dispose of your case sooner. 

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Your key to winning is the wording on their bill of sale, something like "...according to the terms of the complete purchase agreement" (which has not been provided to you)  You need to bring this up time and time again if it actually proceeds to trial. 

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@Mongosmash

In reference to the affidavits,  you may want to read this case (which reversed CACH, the JDB), and which  has been cited 31 times by TX appeals courts since 2013.  Read esp. Section A, 1, 2, 3, 4.

https://scholar.google.com/scholar_case?case=11656465634822652257&hl=en&as_sdt=5,44&sciodt=4,44

 

 

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19 hours ago, texasrocker said:

Your key to winning is the wording on their bill of sale, something like "...according to the terms of the complete purchase agreement" (which has not been provided to you)  You need to bring this up time and time again if it actually proceeds to trial. 

What is a good response when the judge questions your knowledge of something that wasn't provided to you? 

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5 hours ago, Harry Seaward said:

What is a good response when the judge questions your knowledge of something that wasn't provided to you? 

The fact that the bill of sale is essentially incomplete without it even though it blatantly refers to it.   The typical generic bill of sale they have does absolutely nothing to prove that the defendant's account was included in the bulk purchase of charged-off accounts so a reasonable person would assume that an extension of it may show the defendant's account.

They always say "...according to the terms of the complete purchase agreement" (or words to that effect) and without the defendant or the court having the ability to see said agreement the case is null and void. 

They will indefinitely claim that it is privileged information but then one can ask for it with any personal information of other account holders redacted.  Also Texas rules require a privilege log to be provided designating any items they claim to be privileged information and it is highly unlikely that at this point they have complied.  The JDB's lack of a  privilege log was a crucial contribution to me winning one of my three cases.  If you can convince the judge that you and he/she  needs to see whatever their bill of sale is referring to then you have gained a great upper hand.   

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4 hours ago, texasrocker said:

The fact that the bill of sale is essentially incomplete without it even though it blatantly refers to it.   The typical generic bill of sale they have does absolutely nothing to prove that the defendant's account was included in the bulk purchase of charged-off accounts so a reasonable person would assume that an extension of it may show the defendant's account.

They always say "...according to the terms of the complete purchase agreement" (or words to that effect) and without the defendant or the court having the ability to see said agreement the case is null and void. 

They will indefinitely claim that it is privileged information but then one can ask for it with any personal information of other account holders redacted.  Also Texas rules require a privilege log to be provided designating any items they claim to be privileged information and it is highly unlikely that at this point they have complied.  The JDB's lack of a  privilege log was a crucial contribution to me winning one of my three cases.  If you can convince the judge that you and he/she  needs to see whatever their bill of sale is referring to then you have gained a great upper hand.   

All of the bills of sale I've seen reference a data sheet that shows all of the consumer and account vitals on it.  If the consumer claims that data sheet was fabricated out of thin air, the consumer then has the burden to prove that claim by coming up with something more compelling.

But you hit the nail on the head when you said, "If you can convince the judge that you and he/she  needs to..."  This is the part where most judges start tuning out pro see consumers and start flipping through 200-some pages of account statements and asking themselves, "If this debt isn't legit, how did this plaintiff obtain 200 account statements with the defendant's name and address on them?" Answering that question in a way that makes sense is how a pro se consumer wins a debt collection lawsuit. 

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Keep these questions and comments coming.  This really helps me prepare for a possible trial.  I'm still confident that the judge will grant my motion to compel discovery and this will all be moot.  That being said....

On 3/27/2017 at 3:32 PM, Goody_Ouchless said:

Civil cases are not like murder trials - they are decided on "preponderance of evidence."

Actually, I would argue that the preponderance of evidence submitted is that the OC owns the debt.  They haven't shown anything that proves it was assigned to PRA.

On 3/27/2017 at 9:46 PM, texasrocker said:

Your key to winning is the wording on their bill of sale, something like "...according to the terms of the complete purchase agreement" (which has not been provided to you)  You need to bring this up time and time again if it actually proceeds to trial. 

I intend to wear this one out.  I agree, their whole case is predicated on assignment.  If I can shoot that down, the case falls apart.

9 hours ago, Harry Seaward said:

What is a good response when the judge questions your knowledge of something that wasn't provided to you? 

I would submit to the judge that 200 pages of account statements do not prove that the debt was assigned and that the JDB has standing to sue, which is really the root of the issue.  It only allegedly proves that I had an obligation to pay the OC, and doesn't prove that the documents are accurate.  The statements could have been erroneously transmitted in the bulk sale.  They could have been sent from a completely different sale of debts, than what is referenced in the case.  When 1000s of accounts are sold at pennies on the dollar, there is a good chance that mistakes will be made and speaks to the validity and trustworthiness of the documents.  The "Purchase Agreement" and "Notification Files" the Bill of Sale reference would not only specifically reference the alleged account that was sold to PRA, but would also state any warranties and disclaimers that the OC promised PRA, which I'm confident would be no warranties (sold as is).

Proper objections would be Incomplete and Best Evidence.  Additionally TRE 107 (Rule of Optional Completeness) states that if the the opposing party introduces a partial document that I'm entitled to inquire about the missing information and introduce anything relevant that allows the judge to fully understand the partial document provided (not sure what I could introduce).

Case law surrounding the generic bill of sale (i've found so far):

Kenny v. PORTFOLIO RECOVERY ASSOCIATES, LLC, 464 SW 3d 29 - Tex: Court of Appeals 2015

One of the exhibits offered and admitted into evidence was an "Assignment and Bill of Sale" from HSBC Bank Nevada to Portfolio Recovery. This assignment assigned the rights to certain accounts 34*34 from HSBC Bank Nevada to PortfolioRecovery. The assignment does not identify which accounts were transferred, however. Instead, the assignment identifies another document that contains the information. That document is not a part of the record. Accordingly, the assignment cannot be a basis for finding the evidence legally sufficient to show Kenny's account was assigned to Portfolio Recovery.

3 hours ago, Harry Seaward said:

All of the bills of sale I've seen reference a data sheet that shows all of the consumer and account vitals on it.

Typically those datasheets have nothing on them indicating what they are or where they originated.  Anyone with access to a basic word processor could generate the document solely from the information contained in the 200 pages of alleged account statements.  It still doesn't prove assignment.  There is nothing tying the Bill of Sale to the data sheet.  The fact that they choose to submit an affidavit, rather than live testimony, gives me the upper hand.  You can't ask an affidavit questions, so they can't prove what the document is.  Proper objection would be Lack of Foundation.

On 3/27/2017 at 7:06 PM, Harry Seaward said:

Your best case scenario is to get a judge that has some issue with JDBs in general, Midland specifically or Midland's attorney more specifically and he's looking for any reason to rule against them. Otherwise, cross your fingers that he's not so biased that he just summarily denies your MTC just so he can give Midland their judgment just to dispose of your case sooner. 

That's my fear is that the justice court judge will be biased against me, although so far I've not seen anything to warrant that.  But, even if he is, I've still got trial de novo in Texas justice court.

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1 hour ago, Mongosmash said:

Actually, I would argue that the preponderance of evidence submitted is that the OC owns the debt.  They haven't shown anything that proves it was assigned to PRA.

Except for the bill of sale that identifies your account and the affidavit (sworn testimony under oath) affirming that YOUR account was sold to them.

1 hour ago, Mongosmash said:

The statements could have been erroneously transmitted in the bulk sale.  They could have been sent from a completely different sale of debts, than what is referenced in the case.  When 1000s of accounts are sold at pennies on the dollar, there is a good chance that mistakes will be made and speaks to the validity and trustworthiness of the documents.

There are an infinite number of "could haves".  Most judges concern themselves only with the ones that have proof.  1000's of accounts being sold in a group doesn't equate to a good chance mistakes were made unless you have something to bring to the table that shows a concrete link proving mistakes were made solely because 1000's of accounts were sold in a group.

1 hour ago, Mongosmash said:

Case law surrounding the generic bill of sale (i've found so far):

Kenny v. PORTFOLIO RECOVERY ASSOCIATES, LLC, 464 SW 3d 29 - Tex: Court of Appeals 2015

One of the exhibits offered and admitted into evidence was an "Assignment and Bill of Sale" from HSBC Bank Nevada to Portfolio Recovery. This assignment assigned the rights to certain accounts 34*34 from HSBC Bank Nevada to PortfolioRecovery. The assignment does not identify which accounts were transferred, however. Instead, the assignment identifies another document that contains the information. That document is not a part of the record. Accordingly, the assignment cannot be a basis for finding the evidence legally sufficient to show Kenny's account was assigned to Portfolio Recovery.

I highlighted in red the reason this case was remanded.  In your case, if the document IS part of the record, this caselaw is irrelevant.

1 hour ago, Mongosmash said:

Typically those datasheets have nothing on them indicating what they are or where they originated.  Anyone with access to a basic word processor could generate the document solely from the information contained in the 200 pages of alleged account statements.  It still doesn't prove assignment.  There is nothing tying the Bill of Sale to the data sheet.

Yes there is.  The affidavit is sworn testimony under oath.  It is proof of assignment.  When a party introduces evidence of something, the burden shifts to the opposing party to disprove that evidence.  That's what you're not understanding here.  You have to actively disprove enough of the affidavit to render it useless.

  • Can you disprove the affiant is competent?
  • Can you disprove the affiant is familiar with the records and that those records were integrated?
  • Can you disprove the account is now owned by PRA?
  • Can you disprove the account was issued in your name and that you were obligated to repay it?
  • Can you disprove $xxxx is owning on the account?
  • Can you disprove the documents were kept in the ordinary course of business, that the entries were entered at or near the time of the transactions and that the transactions were entered by someone with knowledge of those transactions?

If you can't disprove those things, your only other shot is to create enough of a question of the trustworthiness of the records themselves that the judge decides not to admit them into evidence, or to not give them any weight.  If I were you, this is where I would focus 90% of my energy.  You may have luck attacking the affidavit on the grounds that it doesn't specifically identify any of the attached records.  The statements would probably be considered self explanatory, but I would argue the computer generated printout would need some explanation and/or description, depending on how it appears on its face.

1 hour ago, Mongosmash said:

The fact that they choose to submit an affidavit, rather than live testimony, gives me the upper hand.  You can't ask an affidavit questions, so they can't prove what the document is.  Proper objection would be Lack of Foundation.

"Foundation" is what the affiant is doing in paragraph 1 of the affidavit.  If the affidavit hits all of the beats, and the judge is satisfied that it lays proper foundation, there's no need to ask any further questions.  Affidavits are accepted ALL THE TIME in court in lieu of live testimony.  If it was really that simple, no one would ever lose.

I haven't seen this recommended yet, but I would look up your court calendar and find debt collection cases that are going to trial.  Hopefully you can find one or two where the defendant is represented by an attorney.  So go down on the day of trial and sit in the courtroom.  Watch the judge.  See how he responds to both sides.  Listen to both attorneys.  Make notes on what they argue about.  Hopefully you get a case that gets tried on the merits and the judge rules against the plaintiff.  At that point you'll know what you need to establish in your own case to sway the judge in your favor.

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