Mongosmash

Being sued by PRA in Dallas County, TX

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5 hours ago, Mongosmash said:

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. 

Exactly.  If you did everything properly in drafting and filing your motion and it is denied then the judge has grossly erred and you have excellent grounds for appeal (assuming you subsequently lose at trial.)  The rules say that discovery must be answered before the deadline so there is no excuse  for the court to side with the party who failed to answer and ignored your meet and confer letter.  The least they could have done is answer with objections instead of "admit" or "deny." 

If this were me I would file a motion for summary judgment based on the plaintiff's failure to answer discovery.  If that were denied it would be even more ammunition for an appeal.  Their refusal to answer shows their sheer arrogance and outright defiance of the rules of civil procedure.

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On 3/29/2017 at 4:14 AM, Harry Seaward said:

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.

"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.

 

Once again I cannot help but wonder whose side you are on.   Why not try to help this guy along to winning instead of discouraging him from using every possible tool against the JDB?  Use your God-given intelligence to devise ways of leading him to victory instead of wasting it on finding reasons to not pursue every option; beat the corrupt and no-ethics JDB's at their own game, you know?   I fully understand your bitterness with the current hopeless and ever so wrong situation in your state but fortunately that does not apply in every other state.  My consensus is if one thing doesn't work as well in this court as it did in others then we should have a handful of other options at our disposal.  Just because you find case law that struck down someone in some court does not mean that the JDB's "rent-a-lawyer" is savvy enough to know about it and if he does not bring it up then it will have no bearing on your case.   If he is smart enough to bring it up then you may lose that battle but have not lost the war.  The more potential "battles" the better chance you have for a positive outcome and defeating them before trial.   Showing the JDB attorney that you know what you are doing and making them actually work speaks volumes.

I have tried to explain to you before that the JDB's "Holy Grail" in Texas concerning the OC's business records being admitted,  Simien v. Unifund CCR Partners, affirms that in order for these records to be introduced as evidence they must first be authenticated.   The sole reason they do not want to answer discovery pertaining to the affiant and how they went about making sure the records were accurate and reliable is because if they answer it then they cannot spring Simien  on you further on down the road.  

If they had answered the discovery then yes,  you could have disproved the affiant is competent,  the affiant is familiar with the records, and that the account is now owned by PRA.   The whole issue here is not that the defendant opened and account with the OC and defaulted on it or what the amount is,  it is the fact that the JDB cannot provide adequate proof that they own the account.  I have said it before and I will say it again that I have yet to see even one case where the JDB can prove they own the account they are suing for.   

Another point regarding striking down the affidavit that helped me in getting their MSJ denied in my first case was the fact that it contained legal conclusions, therefore violating Texas rules.   One thing the lowlife robo-sinners seem to have no clue about as they spend their day blindly signing affidavits is the actual wording on the document they are signing may not be in accordance with TRCP.

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1 hour ago, texasrocker said:

Once again I cannot help but wonder whose side you are on. 

This question always makes me laugh.  If you can't prepare a defendant to overcome the softball questions I'm throwing at him on an internet chat board, how do you think he's going to do head-to-head in real time against a real attorney who prosecutes only debt collection cases and whose livelihood depends on winning these cases?  That's not a rhetorical question.  Feel free to answer.

1 hour ago, texasrocker said:

Why not try to help this guy

I am helping. I told him where to focus his efforts and to go sit in on a trial so he can see how things work in the real world.  I can think of no better way to prepare oneself for what lies ahead.

1 hour ago, texasrocker said:

Simien v. Unifund CCR Partners, affirms that in order for these records to be introduced as evidence they must first be authenticated.

Which is what the affidavit does. Your own rules lay out a safe-harbor format for an affidavit to be considered sufficient.  But it seems you have not read Simien.  What it actually affirms is that an affidavit very similar to the one used by PRA in OP's case is sufficient to prove ownership of a debt.  If you can point out a significant difference that would set the Simien affidavit apart from the one PRA used in OP's case, please do!

1 hour ago, texasrocker said:

The whole issue here is not that the defendant opened and account with the OC and defaulted on it or what the amount is,  it is the fact that the JDB cannot provide adequate proof that they own the account.  I have said it before and I will say it again that I have yet to see even one case where the JDB can prove they own the account they are suing for.

And I'll say it again - an affidavit is proof.  It may not be sufficient to convince you, but that doesn't mean they haven't presented proof.  You might find a judge here or there that is susceptible to the Jedi Mind Trick, but when a reasonable person is staring at the words of a person that declared those words under penalty of perjury, and there is no evidence to support a claim that those words are false but there are records that jive with what the affiant is swearing under oath to be true, what conclusion do you expect the reader to come to?

You know, criminal convictions are upheld all day long where there is no physical evidence and the only "proof" is witness testimony.  And that's on a 'beyond a reasonable doubt' standard of proof.  The bar of 'preponderance of evidence' is so much lower in a civil trial that, even though it does happen ever so rarely, I'm surprised anyone ever wins these cases when there is actual physical evidence of a debt (statements), that the debt was sold by party A to party B (bill of sale) and a witness establishes both were incorporated and relied upon.

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Even if i couldn't successfully attack the affidavit for reliance upon validity and untrustworthiness, unless I'm mistaken, a business records affidavit still does not allow the affiant to provide testimony, it's to authenticate documents solely.  Testimony by affidavit is still considered hearsay.  The evidence attached to the business records affidavit could be self-authenticated under 902(10) and admisable as an exception to hearsay under 803(6). But, the affidavit itself is not evidence nor proof of anything.  Any conclusatory statements in the business records affidavit, beyond what is specified in TRE 902(10), would be inadmissible as hearsay and I should object to them, which is all of paragraphs 3,4,5, possibly even 2.  The submitted  documents still have to prove assignment, and that burden rests on the Plaintiff.  I would need to show the judge they do not.

Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Accordingly, when an ex parte affidavit presents evidence beyond the simple authentication requirements of rule 902, the extraneous portions of the affidavit constitute inadmissible hearsay.

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19 minutes ago, Mongosmash said:

Testimony by affidavit is still considered hearsay.

Not if it conforms to the rules.

Quote

The predicate for admission of the business records may be established "by affidavit that complies with Rule 902(10)." TEX.R. EVID. 803(6). Rule 902(10) provides that records "shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7)." TEX.R. EVID. 902(10)(a).

Rule 902(10) provides a form for the affidavit and states the affidavit "shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice...." TEX.R. EVID. 902(10)(b). The form specified by the rule is as follows:

          My name is ____, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

          I am the custodian of the records of ____. Attached hereto are _____ pages of records from ____. These said _____ pages of records are kept by ____ in the regular course of business, and it was the regular course of business of _____ for an employee or representative of _____, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

Simien v. Unifund CCR Partners, 321 SW 3d 235 - Tex: Court of Appeals 2010

You guys really need to read through that entire case and understand how damning it really is for consumers being sued by a JDB.

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Harry,

  You're making some really good points here and I completely understand where you are coming from.  It IS a dog eat dog arena we all find ourselves in.  We must be prepared for battle.  How would you suggest us newly inducted combatants proceed in our dealings with the JDB's suits?  What has worked for you?  How does David proceed against Goliath?  Thanks.

Coach Mac

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2 hours ago, Harry Seaward said:

You know, criminal convictions are upheld all day long where there is no physical evidence and the only "proof" is witness testimony.  And that's on a 'beyond a reasonable doubt' standard of proof.  The bar of 'preponderance of evidence' is so much lower in a civil trial that, even though it does happen ever so rarely, I'm surprised anyone ever wins these cases when there is actual physical evidence of a debt (statements), that the debt was sold by party A to party B (bill of sale) and a witness establishes both were incorporated and relied upon.

This analogy would likely be accurate if the defendant just sat idle and silently allowed the JDB to present his case.   The whole idea is to discredit the affiant and the accuracy and reliability of the items he has sworn to before the court.  Apparently you must believe that the affiant actually has personal knowledge of this defendant's account and of the record keeping procedure of the OC and is a fine and honest up-standing citizen.   We all know that robo-sinners do not have any personal knowledge of each individual accounts and have no idea of the OC's record keeping procedures so they are committing perjury by signing the affidavits.   

Do you presume that judges have not read the same material that we have been seeing in the last decade about the feds exposing and cracking down on robo-signing?   I can assure you that there are more judges in Texas who are latently biased against JDB's than those like the three recent ones we have seen slamming the defendant.  

1 hour ago, Harry Seaward said:

Simien v. Unifund CCR Partners, 321 SW 3d 235 - Tex: Court of Appeals 2010

You guys really need to read through that entire case and understand how damning it really is for consumers being sued by a JDB.

Yes it certainly could be if the JDB is lucky enough to not have it addressed early in discovery by the defendant or objected to later when they inevitably spring it in an attempt to back up their affidavit.  

What is your perspective then on what the reason may be that they always refuse to answer any discovery items pertaining to authenticating the OC's business records and if any robo-sinners were ever employed by the OC to have observed their record keeping process first hand?

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3 hours ago, Mongosmash said:
 

Even if i couldn't successfully attack the affidavit for reliance upon validity and untrustworthiness, unless I'm mistaken, a business records affidavit still does not allow the affiant to provide testimony, it's to authenticate documents solely.  Testimony by affidavit is still considered hearsay.  The evidence attached to the business records affidavit could be self-authenticated under 902(10) and admisable as an exception to hearsay under 803(6). But, the affidavit itself is not evidence nor proof of anything.  Any conclusatory statements in the business records affidavit, beyond what is specified in TRE 902(10), would be inadmissible as hearsay and I should object to them, which is all of paragraphs 3,4,5, possibly even 2.  The submitted  documents still have to prove assignment, and that burden rests on the Plaintiff.  I would need to show the judge they do not.

Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Accordingly, when an ex parte affidavit presents evidence beyond the simple authentication requirements of rule 902, the extraneous portions of the affidavit constitute inadmissible hearsay.

The affidavit provides no facts as to how plaintiff's reliance on the original creditor's records is reasonable, which is the required standard in Simien v. Unifund CCR Partners, 321 SW 3d 235 - Tex: Court of Appeals 2010 .  In that the court stated, "We hold the second factor in Bell  is satisfied because the evidence shows Unifund reasonably  relied upon the accuracy of the contents of the documents it received from Citibank."   By contrast, in the present case, there is not one iota of evidence showing that their supposed reliance was reasonable.

During the time for discovery the plaintiff never produced any documents or provided any answers to interrogatories inquiring about how the plaintiff's own employees could authenticate or prove up records based upon their supposed "reliance" on the records they supposedly obtained from the original creditor.

The business records exception to the hearsay rule does not include affidavits such as this.  It cannot be admitted as a business records affidavit, even if attached to another business records affidavit, because this affidavit was clearly prepared in anticipation of litigation and is therefore itself not a business record.  Ortega v. Cach  (that you mentioned above) also holds that affidavits created for the purpose of litigation are not business records.

You can also object to the affidavit on the grounds of irrelevance.  As with most robo-signed affidavits, this affidavit does not refer to you or your alleged account so there is no substance to tie this affidavit to this case.  It is therefore irrelevant to this case.

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2 hours ago, texasrocker said:

We all know that robo-sinners do not have any personal knowledge of each individual accounts and have no idea of the OC's record keeping procedures so they are committing perjury by signing the affidavits.   

Show me where PRAs affiant claims to have personal knowledge of the OP's account and the OC's record keeping procedures.

 

2 hours ago, texasrocker said:

What is your perspective then on what the reason may be that they always refuse to answer any discovery items pertaining to authenticating the OC's business records and if any robo-sinners were ever employed by the OC to have observed their record keeping process first hand?

Cavalry responded to my discovery requests asking then to admit they didn't have personal knowledge of BoaA's record keeping procedures. They can freely do this because there is nothing that requires a JDB to have personal knowledge of the origin of the records or the record keeping procedures of the OC. Adoptive Business Records Doctorine does away with this requirement provided the witness for the plaintiff testifies the records were incorporated and relied upon. 

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2 hours ago, texasrocker said:

because this affidavit was clearly prepared in anticipation of litigation and is therefore itself not a business record.

This is a reasonably solid argument. Be prepared to respond to Plaintiff's argument that it was not created in anticipation of litigation. 

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4 hours ago, Coach Mac said:

Harry,

  You're making some really good points here and I completely understand where you are coming from.  It IS a dog eat dog arena we all find ourselves in.  We must be prepared for battle.  How would you suggest us newly inducted combatants proceed in our dealings with the JDB's suits?  What has worked for you?  How does David proceed against Goliath?  Thanks.

Coach Mac

My first, second and third choices would be getting the case out of court and into arbitration. So far I've yet to see a JDB follow a consumer into arbitration.

My last choice would be trying to discredit a JDB's records and witnesses at trial, or even worse, opposition to a motion for summary judgment. 

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2 hours ago, texasrocker said:

  It cannot be admitted as a business records affidavit, even if attached to another business records affidavit, because this affidavit was clearly prepared in anticipation of litigation and is therefore itself not a business record. 

Unless the affidavit is being offered as a business record, the argument fails.   There's nothing that says an affidavit used to authenticate business records must be prepared a certain amount of time before litigation.

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1 hour ago, Harry Seaward said:

Show me where PRAs affiant claims to have personal knowledge of the OP's account and the OC's record keeping procedures.

Paragraph 2 in the linked affidavit that Mongosmash provided earlier in this very thread-

Quote

Cavalry responded to my discovery requests asking then to admit they didn't have personal knowledge of BoaA's record keeping procedures. They can freely do this because there is nothing that requires a JDB to have personal knowledge of the origin of the records or the record keeping procedures of the OC. Adoptive Business Records Doctorine does away with this requirement provided the witness for the plaintiff testifies the records were incorporated and relied upon. 

Of course but this discussion does not apply to Arizona courts.   I see I should have spelled out that they always refuse to answer here in Texas when I am the one sending the discovery.

 

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18 minutes ago, BV80 said:

Unless the affidavit is being offered as a business record, the argument fails.   There's nothing that says an affidavit used to authenticate business records must be prepared a certain amount of time before litigation.

There you are, late for the party! 

True, the amount of time is not defined.  It would be up to the court to decide whose argument is best to determine whether or not it was prepared under the anticipation of litigation.   I would not recommend using this by itself; throw it in with a few other things.  I believe it helped in my last case but I cannot say for sure as there were several other factors, the main one being  the worst of the worst of JDB attorneys who has since been put out of business. 

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5 minutes ago, texasrocker said:

There you are, late for the party! 

True, the amount of time is not defined.  It would be up to the court to decide whose argument is best to determine whether or not it was prepared under the anticipation of litigation.   I would not recommend using it by itself, throw it in with a few other things.  I believe it helped in my last case but I cannot say for sure as there were several other factors, the main one being  the worst of the worst of JDB attorneys who has since been put out of business. 

Affidavits are required under certain circumstances and are usually prepared  for the purpose  of litigation. If affidavits were considered business records  and could not be prepared in anticipation of litigation, then why would courts require them? 

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33 minutes ago, texasrocker said:

There you are, late for the party! 

True, the amount of time is not defined.  It would be up to the court to decide whose argument is best to determine whether or not it was prepared under the anticipation of litigation.   I would not recommend using it by itself, throw it in with a few other things.  I believe it helped in my last case but I cannot say for sure as there were several other factors, the main one being  the worst of the worst of JDB attorneys who has since been put out of business. 

The distinction is a "business record" created in anticipation of litigation is inadmissible. The court in CACH notes that the plaintiff's affidavit was admitted as one of their own "business records".  To my knowledge PRA hasn't claimed the affidavit is a business record. A defendant would have to unilaterally establish that it is in fact a "business record" AND created for litigation purposes.

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44 minutes ago, texasrocker said:

Paragraph 2 in the linked affidavit that Mongosmash provided earlier in this very thread-

It's not there. The affidavit talks about the "assignee's" (PRA) records. She never claims to know how the records were created or kept prior to being obtained by PRA.

44 minutes ago, texasrocker said:

Of course but this discussion does not apply to Arizona courts

Correct. All of the caselaw cited here is right from Texas and none of it says a witness for a JDB has to know how records were created or kept, as long as the witness testifies the records were incorporated and relied upon. That was the discussion we were having. 

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19 minutes ago, Harry Seaward said:

It's not there. The affidavit talks about the "assignee's" (PRA) records. She never claims to know how the records were created or kept prior to being obtained by PRA.

Correct. All of the caselaw cited here is right from Texas and none of it says a witness for a JDB has to know how records were created or kept, as long as the witness testifies the records were incorporated and relied upon. That was the discussion we were having. 

So you sent discovery to Calvary pertaining to a Texas case?

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1 hour ago, Harry Seaward said:

My first, second and third choices would be getting the case out of court and into arbitration. So far I've yet to see a JDB follow a consumer into arbitration.

My last choice would be trying to discredit a JDB's records and witnesses at trial, or even worse, opposition to a motion for summary judgment. 

Thanks for the suggestion.  Would arbitration still be an option on an OC application from 1994? And, I must ask as a newcomer :dunno:, how does one get to arbitration prior to the trial date?

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7 minutes ago, Coach Mac said:

Thanks for the suggestion.  Would arbitration still be an option on an OC application from 1994? And, I must ask as a newcomer :dunno:, how does one get to arbitration prior to the trial date?

It would depend on the OC, but you would have to look at the agreements that governed the account while it was active. On something that old, I'm fairly sure there will be an arbitration clause in at least one of the agreements.

Your best bet is to start your own thread to get the most eyes on it and to keep from mudding up the waters on this case. 

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20 minutes ago, Harry Seaward said:

It would depend on the OC, but you would have to look at the agreements that governed the account while it was active. On something that old, I'm fairly sure there will be an arbitration clause in at least one of the agreements.

Your best bet is to start your own thread to get the most eyes on it and to keep from mudding up the waters on this case. 

OK, thanks.  Bad day in CIC Village I guess...  xWhipMex  Muddy Waters over and out.

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12 hours ago, Harry Seaward said:

Don't be a moron.

It is a legitimate question since you just explained that the discussion we were in the midst of when you claimed to have sent discovery to Calvary pertained to Texas case law.   

I have recently come to suspect you of being somewhat of a troll who likes to argue just for the sake of arguing.   It has now grown from suspicion to being a true fact.  Take your perpetual negative attitude back to Arizona and leave Texas alone, little boy.   We did quite well without you so you surely will not be missed.

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36 minutes ago, texasrocker said:

It is a legitimate question since you just explained that the discussion we were in the midst of when you claimed to have sent discovery to Calvary pertained to Texas case law.

Are you that lost that you can't see that every point I've made is based SOLELY on Texas caselaw? If so, I apologize for confusing things by trying to give a real life example. Just pretend I never gave my example and give whatever responses you have accordingly. 

36 minutes ago, texasrocker said:

I have recently come to suspect you of being somewhat of a troll who likes to argue just for the sake of arguing.   It has now grown from suspicion to being a true fact

First, you are demonstrating to us all that what you consider a "true fact" is really just your opinion. So this is problematic when trying to fight a court case that actually deals in real facts.  Second, it's obvious to anyone paying attention that all you are doing by lobbing insults at people is misdirecting away from things you don't want to respond to. I have posed several relevant and legitimate questions to you that you have just ignored and instead go down some asinine line of questioning about AZ vs. TX.

 

36 minutes ago, texasrocker said:

We did quite well.....

The recent Texas rulings against consumers would raise doubt about this particular statement.

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1 hour ago, Coach Mac said:

OK, thanks.  Bad day in CIC Village I guess...  xWhipMex  Muddy Waters over and out.

No, you are welcomed here.  You just need to start your own thread.

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