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He did say that he keeps the arbitration as a backup plan in all cases, but told me that this particular law firm lets the case go every time he files for discovery. On the other hand, they tend to fight arbitration. They will say that my agreement isn't the right one, and offer a different one and it becomes a back and forth for 12-18 months, if I don't slip up anywhere. 

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12 months just because they oppose arbitration?  No way. That is 30 days at best.  I don't doubt that he can get the other side to dismiss without prejudice.  Just about all attorneys can get that because Midland is in the default/consent judgement business.  So, he will get the result you want.  He just also happens to know nothing about consumer arbitration, which is the usual with attorneys like this.

The bigger question is if he is going to file a counter claim or a suit in federal court against Midland for their FDCPA violations about lying over the phone about arbitration?  I'm guessing no, since he seems clueless about the arbitration issues anyway.

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4 hours ago, fisthardcheese said:

I don't doubt that he can get the other side to dismiss without prejudice.  Just about all attorneys can get that because Midland is in the default/consent judgement business.  So, he will get the result you want.

Maybe I faced particularly competent counsel, but in my last case (which happened to be against Midland), they told my lawyer "how many more account statements do you need see, because we can get them? Otherwise see you at MSJ!" Self-authenticating business records and copies of account statements are more than enough to prove up the elements of these cases today. "Discovery" was effective back when debt buyers were required to provided live witnesses, and when the entire electronic record of the account didn't exist - not so much anymore.

Never say never, of course, as he may have a kick-back arrangement with opposing counsel, etc.

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17 hours ago, TakeMidlandD0wn said:

He did say that he keeps the arbitration as a backup plan in all cases, but told me that this particular law firm lets the case go every time he files for discovery.

I believe it.  The reality is there are good hard statistics out there that in greater than 70% of these suits the Plaintiff folds when the Defendant hires an attorney to represent them in court.  The Plaintiff is not interested in a protracted fight and actually having to prove their case.  The 95% no show rate guaranteeing a default judgment more than offsets the small percentage that fight back pro-se or actually hire a lawyer.

17 hours ago, TakeMidlandD0wn said:

On the other hand, they tend to fight arbitration.

Their client has instructed them to do so.  If they win that argument they get paid.  If they get forced to arbitrate they get nothing because they are not going to the expense of doing it.

17 hours ago, TakeMidlandD0wn said:

They will say that my agreement isn't the right one, and offer a different one and it becomes a back and forth for 12-18 months, if I don't slip up anywhere. 

12-18 months would not be unusual in a very busy court like Los Angeles.  Oklahoma?  Not going to happen.  12-18 months would be possible with two law firms going back and forth but not a pro-se against a law firm.  Best you could hope for would be 3-6 months.  

 

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1 hour ago, Goody_Ouchless said:

Maybe I faced particularly competent counsel, but in my last case (which happened to be against Midland), they told my lawyer "how many more account statements do you need see, because we can get them? Otherwise see you at MSJ!" Self-authenticating business records and copies of account statements are more than enough to prove up the elements of these cases today. "Discovery" was effective back when debt buyers were required to provided live witnesses, and when the entire electronic record of the account didn't exist - not so much anymore.

Never say never, of course, as he may have a kick-back arrangement with opposing counsel, etc.

I think some collections law firms fight harder in some states now because of the flood of new attorneys making it hard to retain those big accounts like Midland, so they go more "all out" to prove their worth.  Other places, like where I am, the collection attorneys fold just by hiring a lawyer to fight them or filing your own counter claim.  It's still just not worth it to them to drag out a fight especially in the unpredictable small claims courts.

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None of my experiences involved this Jodi Arias-esque drawn out, tooth-and-nail legal rumble. Neither against Cavalry or Midland.

"We have self-authenticating business records and a stack of statements - want to settle for 15% discount? No? Expect our MSJ." 

I'm unclear about how a lawyer will magically counter that state of affairs in this case.

Granted, Blatt's exit from the scene may be indicative of a new financial reality where Midland pays 50 bucks per case, so a simple answer results in dismissal. Otherwise, what did I miss since the last slew of cases where business records and statements meant judgement for plaintiff?

 

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41 minutes ago, Goody_Ouchless said:

None of my experiences involved this Jodi Arias-esque drawn out, tooth-and-nail legal rumble. Neither against Cavalry or Midland.

"We have self-authenticating business records and a stack of statements - want to settle for 15% discount? No? Expect our MSJ." 

I'm unclear about how a lawyer will magically counter that state of affairs in this case.

Granted, Blatt's exit from the scene may be indicative of a new financial reality where Midland pays 50 bucks per case, so a simple answer results in dismissal. Otherwise, what did I miss since the last slew of cases where business records and statements meant judgement for plaintiff?

 

Usually the fight is over ownership, which statements won't show.  There is still a legal chain of custody that must be proven.  Granted, Midland and the other largest JDBs may be getting enough documentation to show this as well, but it still does require extra court appearances and digging through documents which can be time consuming.  As far as I know, this is what consumer attorneys are still using to defeat the JDBs (plus counter claims when proper).

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50 minutes ago, Goody_Ouchless said:

Otherwise, what did I miss since the last slew of cases where business records and statements meant judgement for plaintiff?

Not exactly the same but sorta relevant.  I got one of those scam calls a few weeks ago the whole "someone is coming to serve you, case #xxxxxxx blah blah blah" nonsense.  For fun I called them back.  Clearly they had phished my information from somewhere because they did have accurate info on a credit card I defaulted on a decade ago.  LONG out of statute for suit or reporting.  Supposedly I was being sued.  Oh, and allegedly bank fraud LOL.  As I disputed the account being mine the idiot made a very good argument that would have scared a naive consumer by saying that payments had been made on the account and so it must be mine.  I argued back that in court they would have to show that I was the one who actually made payments.  If I am a victim of identity theft I am not legally responsible for the account.  She hung up then.

Midland producing a stack of statements doesn't mean automatically a consumer owes Midland.  I would bet I could buy those kind of accurate copies on the streets easily and start suing too.  The problem they run into is a trained lawyer is very capable of arguing transfer of title and chain of custody more so than the average pro-se.  Their goal is the easy pay off not having to prove anything.  Folding on less than 10% of the cases filed doesn't even put a scratch in the profit margin.

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6 minutes ago, fisthardcheese said:

Usually the fight is over ownership, which statements won't show.  There is still a legal chain of custody that must be proven.  Granted, Midland and the other largest JDBs may be getting enough documentation to show this as well, but it still does require extra court appearances and digging through documents which can be time consuming.  As far as I know, this is what consumer attorneys are still using to defeat the JDBs (plus counter claims when proper).

Unless one's state laws demand more than a bills of sale or state court precedent exists that demands more, the judge is allowed to use his discretion.   In those cases, judges can deem that bills of sale and credit card statements showing a defendant's name, correct address, and payments are enough to prove ownership because those judges don't believe a JDB went through a trash can and found credit card statements.

We also must consider the fact that sometimes an affidavit from the OC will be provided that specifies the defendant's account.

In the event arbitration is not an option, defendants in some states should probably be willing to subpoena and depose witnesses before facing a summary judgment hearing.  Of course, that requires more research to determine the proper questions to ask.  In light of an OC affidavit specifying a defendant's account, the defendant would have an uphill battle.

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I would guess that in most (all?) states that adopt federal rules of evidence, there is case law that establishes exactly what an affidavit needs to say in order to settle the "standing" issue. It happened in AZ with Parker, then in NJ with a similar case that covered same ground about records being incorporated and relied upon in the normal course of business. I can't overstate how these cases changed the landscape - the best consumer lawyers in AZ got together and really tried to change this at the appellate level, because it cut the legs out from under their business. 

(Ironic how it worked out - same Commissioner that upheld Adoptive Business Records and destroyed Consumer Law, as a profession, also smacked down a JP that denied arbitration, making AZ a "get out of debt free" state, if sued by a debt buyer.)

In this case, OK courts required relatively substantial documentation to even be granted uncontested Default Judgement, so it's safe to say they have their ducks in a row before even filing, or the whole thing is a waste of their time and money.

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On 1/16/2018 at 2:50 PM, Goody_Ouchless said:

... Ironic how it worked out - same Commissioner that upheld Adoptive Business Records and destroyed Consumer Law, as a profession, also smacked down a JP that denied arbitration, making AZ a "get out of debt free" state, if sued by a debt buyer.

She will also occasionally go through affidavits with a fine tooth comb, especially if the appeal is from a summary judgment.  Most recent: m8028428.pdf

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Wow - that is astounding. I understand Commissioner Harris retired, or otherwise moved on - I wonder if this is a final "middle finger?" Her previous history was one of affirming adoptive business records per Parker. Any record of how this case turned out, or is it still pending? Seems quite the road map for old-schooler's hellbent on fighting in court. Nice find!

EDIT: Nothing in case record since November - Midland must have moved on.

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3 hours ago, Goody_Ouchless said:

Wow - that is astounding.

Not at all. Here's why:

"They alleged their credit card had been stolen more than five (5) years ago"

I've always said a JDB will never prevail in an AZ court if they testify under oath that they did not incur the charges. Harris knows the rest of it is smoke and mirrors and falls back on Parker if a defendant doesn't deny using the card. 

 

 
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Quote

Not at all. Here's why:

"They alleged their credit card had been stolen more than five (5) years ago"

I've always said a JDB will never prevail in an AZ court if they testify under oath that they did not incur the charges. Harris knows the rest of it is smoke and mirrors and falls back on Parker if a defendant doesn't deny using the card.

Defendants initially answered pro se but eventually were represented.  The initial pro se answer contained;

Quote

Defendants filed an Answer pro se on October 21, 2016, and denied the debt. They alleged their credit card had been stolen more than five (5) years ago and asserted they asked Plaintiff for an itemized accounting of the debt but Plaintiff refused to respond.

Then, more than two months later, an amended answer was filed - probably when the  Defendants retained counsel.  The amended answer contained a lot of extra stuff;

Quote

“Amended Answer to Complaint with Affirmative Defenses” ... denied all of Plaintiff’s allegations with the exception of the allegation about their residency. Defendants requested that the trial court dismiss the action and award them their attorneys’ fees. Defendants also raised a number of affirmative defenses including failure to state a claim on which relief could be granted; statute of limitations; lack of standing; statute of Frauds; failure of consideration; lack of privity; agreements outside of the written contract which violated the parole evidence rule; the lack of a valid assignment; accord and satisfaction; unclean hands; estoppel; laches; failure to name necessary parties; as well as a violation of the Federal Truth-in Lending Act; and unjust enrichment. Defendant included other defenses as well.

The two filings of an answer to the complaint may have been made under penalty of perjury, which is arguably not quite exactly the same as being under oath.

It is not clear if the amended answer repeated the allegation that "their credit card had been stolen more than five (5) years ago".  That sounds more like how a pro se would answer rather than an attorney.  I wonder how the defendants included that allegation within the answer...

So, are you saying that the allegation made about the stolen credit card (in the initial pro se answer) is all that it took for the defendants to defeat the summary judgment motion?  Absent that, they would have lost?

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2 hours ago, Harry Seaward said:

I've always said a JDB will never prevail in an AZ court if they testify under oath that they did not incur the charges. Harris knows the rest of it is smoke and mirrors and falls back on Parker if a defendant doesn't deny using the card. 

Nothing in this case ever hinged on the stolen card angle. They never alleged ID Theft, which would have meant none of the charges were theirs. The "stolen card" thing was most likely window dressing for their demand of a full accounting of charges - something they knew would never be provided. I don't see it in the record, but undisputed payments after the card was allegedly stolen would torpedo that line of defense.

Now there may have been other deficiencies in the evidence provided, but I doubt Bursey makes those mistakes. 

Harry - didn't your appeal touch on this very topic - the idea that MSJ was inappropriate when disputes over issues of material fact remained? 

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This may need it's own thread. Harris' ruling is quite explicit and essentially turns the clock back 10 years in these matters. Evidence that has sufficed in the past is now wholly insufficient - she expects plaintiff to provide complete sales agreement and any electronic data (spreadsheets, etc.) that was included in the sale. Same with affidavit from Midland - unless they somehow messed up and the affidavit didn't comply with Parker (which is unclear from ruling), Harris seems to be saying that much more specific detail is required. Harris' now expects a detailed resume of affiant's qualifications and a specific run down of the events occurring on the day the account in question was reviewed.

Maybe this was a left-over case (2012 was last year of statements) that Bursey threw at the wall, hoping something would stick. Perhaps the documentation was totally out of whack with what is submitted today. If not, this is a road map of how to fight in court - argue (1) that everything included in transaction between OC and debt buyer is required to prove standing, and (2) that Midland's affidavit is a joke unless accompanied by resume of affiant and a detailed accounting of when/where/how and to exactly what extent the affiant reviewed the defendant's account.

Welcome to 2008!

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3 hours ago, Xerxes said:

So, are you saying that the allegation made about the stolen credit card (in the initial pro se answer) is all that it took for the defendants to defeat the summary judgment motion?  Absent that, they would have lost?

Yes.  That has been my observation with her rulings.
http://www.courtminutes.maricopa.gov/docs/Lower Court/122013/m6097285.pdf

2 hours ago, Goody_Ouchless said:

Nothing in this case ever hinged on the stolen card angle.

He asserted it in his answer.  We know that because Harris made a point to comment on it.  She made a point to comment in my appeal that I didn't deny owing the debt.  I'm reading between the lines as I don't expect her to come right out and say it, but I have yet to see her side with the plaintiff when the defendant asserts they did not incur the charges.

2 hours ago, Goody_Ouchless said:

Harry - didn't your appeal touch on this very topic - the idea that MSJ was inappropriate when disputes over issues of material fact remained? 

It did.  But again, I didn't deny incurring the debt.

2 hours ago, Goody_Ouchless said:

(1) that everything included in transaction between OC and debt buyer is required to prove standing, and (2) that Midland's affidavit is a joke unless accompanied by resume of affiant and a detailed accounting of when/where/how and to exactly what extent the affiant reviewed the defendant's account.

(3) Deny incurring the charges.

 

The options here are a.) she viewed the denial as significant or b.) she has stood firm on applying Parker and then launched a parting shot unraveling the last 5 years of her life's work.

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11 hours ago, Harry Seaward said:

The options here are a.) she viewed the denial as significant or b.) she has stood firm on applying Parker and then launched a parting shot unraveling the last 5 years of her life's work.

...or she's getting goofy.

I've found her appellate rulings to be be thorough and clearly presented. If a general denial was ALL that mattered, I would expect her make that the centerpiece of her ruling. 

Maybe I'm getting goofy, too, but this seems more like option (b) - an attempt to destroy debt collection in AZ, than a bunch of boilerplate words to pad support for a denial:

1) Requiring the entire record of a bulk debt purchase could make prosecuting these cases impossible - at what point does redacting other consumer's information cross the line into making that evidence "unreadable" or incomplete?

2) How much background and day-to-day information is now required about an affiant for their affidavit to rise to the level of a self-authenticating business record? "Mr. Plaintiff, I don't see anything saying that Ms. Pickering's eyes weren't dilated, making it difficult to read figures that day, so this affidavit is garbage." (And, speaking of garbage, how about the part where she questioned source of CC Statements - it's like ruling was written by Anon, Seadragon or TR.)

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Sorry for beating a dead horse, but I'm having a hard time getting past this. (Background: Parker, which is mentioned below, was an AZ murder case that had the side effect of creating case law that laid out a series of simple assertions that allowed business records to self-authenticate. It has been used by debt buyers, who provide affidavits that specifically talk about the incorporation of, and reliance upon, business records obtained from another entity, It looks like Midland failed to provide an affidavit that hit those bullet-points, in this case.)

Some details from ruling:

Ruling centered on Standing:

"Defendants maintained there were facts in controversy and claimed Plaintiff
failed to demonstrate it had standing
or was a real party in interest."

So now there is nothing factual about Bill-of-sale, affidavit and CC statements?

"As stated, Plaintiff failed to provide this Purchase and Sale Agreement—dated
March 28, 2016—and its attached Exhibit 1 and “final electronic file”. Thus, the trial court had
no facts supporting Plaintiff’s claim
that Defendant’s credit card file had been transferred and no
ability to determine if the allegedly transferred file met the criteria for the business record
exception to the hearsay rule."

I would say this, rather than stolen card claim, was reason for ruling. It seems clear Midland slipped up and did not provide a Parker-compliant affidavit. As much as Harris has affirmed Parker in the past, she seems more than willing to be a stickler in the other direction:

"A.R.E. Rule 803(6) requires a statement that
the records (1) were made at or near the time or by information transmitted by someone with
knowledge; (2) were kept in the course of a regularly conducted activity of the business; (3)
making the record was a regular practice of that activity; and (4) all of the conditions were
shown by the testimony of the custodian or records of another qualified witness. Plaintiff did not
provide proof that the proffered records met this test. "

Perhaps this is tied to lack of hitting Parker-points, above, but it seems extreme (and new) in terms of expectations for a debt buyer affiant:

"...the Legal Specialist did not indicate the source of her knowledge or what her job tasks entailed."

"... she never defined what “access” meant or which records were the “pertinent account records” in the context of this case."

"She did not explain what her job involved or where she acquired her personal knowledge of relevant account
records." 

"...she did not explain what her review of these records entailed or how reliable the electronic records were."

"...she did not elucidate how the records were acquired or came to be attached to her Affidavit."

"...she never identified the person who made this record or explained how she knew the person making the record had this “requisite knowledge."

"Ms. Pikkaraine failed to say where or when she reviewed MCM’s documentation or indicate which documents she reviewed. She never stated how she knew
(1) the documents had originally been created in the ordinary course of business; or (2) the debt
was included in the March 31, 2016, Bill of Sale and Assignment where the companion March 28,
2016 Purchase and Sale Agreement, was missing and the Asset Schedule was redacted. 

As for the canard (perjury?) about the stolen card, the evidence put that to rest. Either they continued paying balances on a "stolen" card, or the "stolen" card was never used:

The records included a...statement indicating a payment due date of October 26, 2011, with a balance
of $7,566.06 and which reflected a payment was made on August 31, 2011, of $170.00. The
proffered records also included statements for November and December, 2011, with payments of
$170.00 that were made each month. Plaintiff also provided a copy of account statements for
January, 2012; February, 2012; and March, 2012; each showing a monthly payment of $170.00.
The April, 2012 statement reflected two payments of $170.00 each. The May, 2012; June, 2012;
July, 2012; August, 2012; and September, 2012 Account Statements did not reflect any payment
and included interest charges. By July, 2012, the Account statement indicated late fees that had
been added as well as continuing interest charges. All of the Account Statements indicated they
were for an account ending with the final four digits of 1730 and had (Defendant’s)
name and address."

Looking at this again I'm now of the opinion that Harris has struggled with Parker, but felt compelled to rule according to the letter of the law. When presented with this case, which apparently featured an affidavit that didn't hit on the essential elements of Parker, she was more than willing to deliver a smack-down.

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3 hours ago, Goody_Ouchless said:

If a general denial was ALL that mattered, I would expect her make that the centerpiece of her ruling.

Not a general denial. A very specific denial. "I didn't incur the chargers because x." In both 'upset' cases, defendant alleged their cards were stolen. Perhaps that's all she needs to see.

29 minutes ago, Goody_Ouchless said:

It looks like Midland failed to provide an affidavit that hit those bullet-points, in this case.

Very possible this is also a/the key. I find it very compelling that there was a simple pro se claim of stolen credit cards in both cases, yet challenges to standing, including those made by Skiba and Floyd, have not had any repeatable success in 5 years. 

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49 minutes ago, Harry Seaward said:

Very possible this is also a/the key. I find it very compelling that there was a simple pro se claim of stolen credit cards in both cases, yet challenges to standing, including those made by Skiba and Floyd, have not had any repeatable success in 5 years. 

I would think appellate rulings would seek extreme clarity and be "on point," so that lower courts would learn to not make same mistakes. In this case Harris makes repeated reference to the assertions required to meet adoptive business record standard. which tells me this one fell short of Parker. She goes on to lay out a textbook old-school attack on standing in the body of the ruling - again, all about whether Midland owned the debt, nothing about debtor or how the debt was created. (Although she had an interesting take on community property, seemingly asking plaintiff to prove that the debt was, in fact, community. That, alone, could make these cases un-collectible.)

The stolen CC is mentioned once, in context of a pro se answer that was later changed by defense counsel. The detail about the account statements seems out of place with the rest of the ruling and strikes me as a poke-in-the-eye to the defendant. Why so completely discount the rest of the evidence, but provide detail of payments and default that clearly catches defendant in a lie?

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I have no idea how to read her opinion then.  She's had plenty of opportunity to flip the bird to Parker.  Skiba has lost every single appeal on evidence admission.  I even gave her a second shot by re-raising the "as-is" bill of sale language in a motion for rehearing and she wouldn't budge.  If she's just finally admitting she's been wrong, what happens with the dozens of appeals she has been wrong about?

5 hours ago, Goody_Ouchless said:

Although she had an interesting take on community property, seemingly asking plaintiff to prove that the debt was, in fact, community. That, alone, could make these cases un-collectible.

And this is flat out wrong too.

The presumption is that jointly held property by husband and wife is community property. The burden of proof is upon the party seeking to establish that the jointly held property is in fact separate.


Eng v. Stein, 599 P. 2d 796 - Ariz: Supreme Court 1979

"...party seeing to establish..." Could be either party, depending on what horse each side has in the race.

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@Harry Seaward

@Goody_Ouchless

If the plaintiff really wanted to determine whether or not an account belongs to a defendant, it could motion to compel bank records to see if they contain payments to the cc company that match up with the cc statements. 

In regard to the admission of business records, compare the details in the superior court case to the following ruling in the appeals court.

https://scholar.google.com/scholar_case?case=10146697243344564409&q="state+v.+parker"+AND+"credit+card"&hl=en&as_sdt=4,3

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