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I recieved a motion for summary judgement and am unsure how to reply, I know that the affidavit of  the plaintiff is complete and total heresay, because how could she have any knowledge of how any of the original creditors docs were made. The bill of sale is inconlusive because it does not specifically mention and account in my name, and references some forward flow recieveable agreement I'm a little puzzled on what comments I can make about the validity of the affidavit of sale of account by creditor, other than it doesn't mention any specific accounts and also mentions the forward flow thing.  Exhibit C is a bunch of statements which I did not include here. Any help on how to draft a response here would be greatly appreciated, I only have 19 days left to respond. I included their docs for help.

 

Edited by Bigdizzawg
Needed to fix an error

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Unfortunately you need to figure out how to pay them $9K. Everything they provided is enough to prove their case and win.

Others can chime in on arbitration, but I believe Cap One removed that provision.

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I see that terms and conditions were referenced as one of the exhibits, but I didn't see them in the attached file.

Was arbitration mentioned in those?  Should be in the original paperwork.

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@Goody_Ouchless not exactly ouchless reply but definitely appreciated. Thanks.

And @wernda1234 to the Ts and C's they are part of exhibit C, but I haven't read through them yet. Nor did I attach it.

If what goody says is true then why attempt at arbitration? Isnt it more difficult to win there where the rules for addmitance of evidence is relaxed?

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24 minutes ago, wernda1234 said:

I see that terms and conditions were referenced as one of the exhibits, but I didn't see them in the attached file.

Was arbitration mentioned in those?  Should be in the original paperwork.

Cap1 removed the arbitration provision around 2009.

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36 minutes ago, Bigdizzawg said:

If what goody says is true then why attempt at arbitration? Isnt it more difficult to win there where the rules for addmitance of evidence is relaxed?

Arbitration costs them WAY more than court. You don't expect to win, you expect them to fold rather than spend more than the debt is worth to collect.  Debt buyers have "fixed-fee" agreements with lawyers who sue on their behalf. Everything in court has basically already been paid for, so they fight until they win - which is very easy now that their evidence is accepted as sufficient in virtually every court. Arbitration introduces fees and costs that have not been budgeted  for, so every debt buyer drops cases that are granted arbitration. Note that this does not apply to Original Creditors, who will pursue arbitration simply to make a statement.

Unfortunately, as BV said, no arb in Cap1. 

You can object to MSJ using outdated advice from other threads, but even then your only hope is that plaintiff drops the ball somehow. Not likely for a debt as large as yours.

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Affiants almost never claim to have personal knowledge of the OC's business and record keeping practices. All they need is knowledge of the contents of the records themselves and knowledge of the plaintiff's business and record keeping practices, and to claim that the OC's records were incorporated into the plaintiff's records and were relied upon in the plaintiff's normal course of business.

Of course you are free to challenge the affiants knowledge of these things by way of a deposition, but most defendants don't have the money to pay the debt, let alone money to burn on what amounts to a fishing expedition using a boogie board to try to catch fish in underwater caves.

Even if you manage to convince the court there remains disputed issues of material fact (it could happen - even I did it once), plaintiff gets to shore up any holes in their version of facts and take another crack at you at trial. They will bring a live witness and that person will be coached up on exactly what they need to say to win.

Best to either try to settle or figure out how to make yourself judgment proof. If you decide to go the latter route, you need to know that judgments in Arizona can be renewed an indefinite number of times.

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