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50 minutes ago, Harry Seaward said:

This is patently false. If fact you have it backwards. They can and do prove it and authenticate 99.9% of the time. Perhaps what they provide doesn't measure up to your standards, but it doesn't matter. The court is the trier of fact and virtually every court in the land has started seeing the hearsay and foundation objections for the smoke and mirrors that they are. 

Once adoptive business records doctrine became the go-to standard for the courts hearing these cases, people stopped winning their cases in court. How else do you explain the drastic shift here toward arbitration over the last 5-7 years?

Recall that the estimate I gave was an estimate for:

Over a decade

This site, the "other" site, and various unnamed sites that spread some of the information.

There was probably a LOT more money saved by debtors in the few years from 2008 or so than in the past few years.  

That money is included in the total estimate.  So is money saved by people who never posted here for advice, but read up on what others were doing.  Or attorneys learned the techniques and used them for their clients.  

I think my estimate of 10-100 million saved in a period of more than a decade is not far off the mark.  Again, it would only have to be $1 million per year.  

There are reasons why the business models have changed.  Some of that is because they were getting killed by chain-of-custody arguments, by arbitration, by FDCPA and FCRA and state laws, etc.  Looking at over 15 years, I would guess that most of the money was probably money from defaults around 2007-2010.  

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1 hour ago, BackFromTheDebt said:

Again, it would only have to be $1 million per year.  

Most debts are under $5,000, and I think a high estimate average to be $2,000. To get to $1 million, that's having 500 $2,000 debts a year either dismissed or beaten outright. That would be about 1.4 $2,000 'wins' a day. There are a lot more of $300, $400 and $500 debts being sued on, so the reality is more like 3 or 4 wins a day. We're seeing an average of one success a week now, and 2 or 3 a week during the height of the crash. I never spent much time on the other board, but my perception was they had about the same numbers as here.  I realize not everyone that uses the info here or there posts, but to accept $1 million a year would mean only 1 in 20 successes are posting. Seems implausible to me. 

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2 hours ago, Harry Seaward said:

This is patently false. If fact you have it backwards. They can and do prove it and authenticate 99.9% of the time. Perhaps what they provide doesn't measure up to your standards, but it doesn't matter. The court is the trier of fact and virtually every court in the land has started seeing the hearsay and foundation objections for the smoke and mirrors that they are. 

Once adoptive business records doctrine became the go-to standard for the courts hearing these cases, people stopped winning their cases in court. How else do you explain the drastic shift here toward arbitration over the last 5-7 years?

In the cases I have helped with, this is factually true. It has only been about a year since I stopped helping people. Everyone who received a dismissal in these cases, we always used a Lack of Standing as a defense, then after discovery, the JDB did not have the documentation to show they legally acquired the debt and the courts would not even entertain their arguments. My arguments were air tight and as long as the posters followed instructions, their cases were dismissed. Maybe in other states, this may not be true, but in Michigan this is a fact. MI courts never adopted the adoptive business records standard it that standard breaches every rule of evidence in existence.

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20 minutes ago, bmc100 said:

MI courts never adopted the adoptive business records standard

Most other states have, and in those states, the "garbage" is plenty sufficient to win a judgment for the JDB. 

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Back with update but real quick I wanted to say for this case, with such a low amount, I knew they would ask to settle, the lawyer even said the fee to arbitrate is more than what I owe and the client wanted to avoid it. But that is this case and a very very low amount. Should I get sued for 2 Grand for instance, they might not be as willing, and my approach would be different. 

 

Now for the update. The court orders came in two sheets. The trial order states dismissal without prejudice. The second sheet was stating that the case will be closed with LVNV. I still haven’t gotten paperwork from the lawyer stating the amounts and stuff but I’ve attached the two papers I received in court to this post. 

612F9220-FABB-4CE0-87DC-DD6485B944A1.jpeg

07F388A2-2EA5-4B5A-908D-C0B5975377CC.jpeg

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And now that I’m looking at the signature I’m seeing they did not hire a local rent-a-lawyer, he was actually part of the firm. I thought he would be menacing but he was really nice and didn’t even try to BS with me or make me feel stupid or small. He even remarked how I absolutely had the right to use arbitration. It’s as if he was being super careful not to violate FDCPA.

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I don’t understand why you didn’t just call them up, claim financial hardship and try to get the lowest settlement offer you could before doing all this work as you probably gotten a similar settlement. 

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10 hours ago, upcycleliving said:

I don’t understand why you didn’t just call them up, claim financial hardship and try to get the lowest settlement offer you could before doing all this work as you probably gotten a similar settlement. 

Debt collectors hear "financial hardship" all the time.  The OP is happy with the settlement, so leave her alone.

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13 hours ago, upcycleliving said:

I don’t understand why you didn’t just call them up, claim financial hardship and try to get the lowest settlement offer you could before doing all this work as you probably gotten a similar settlement. 

I  don't understand why your panties are in a wad over someone else's choice.  If she is happy what is it to you?

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39 minutes ago, Clydesmom said:

I  don't understand why your panties are in a wad over someone else's choice.  If she is happy what is it to you?

Who's panties were in a wad over someone else's choice in this thread- 

 

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2 hours ago, texasrocker said:

Who's panties were in a wad over someone else's choice in this thread- 

 

That has nothing to do with this thread and is a different situation.  In this case, the OP wanted to settle and is happy with the settlement.  She even explained her reasoning.

It was not necessary for another poster to tell her that it was his opinion that her settlement was not a "win".  When a poster is happy with an outcome, we should be happy for him/her.

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@CandyCLC I want you to know that this thread contains some very helpful information for future Michigan defendants. Various viewpoints about possible strategies were expressed and discussed for you to consider. You asked a lot of questions before taking action and posted your drafts for review. I am appreciative of your willingness to submit your motion to compel and stay in lieu of an answer. While I (a stranger on an Internet forum) felt confident that your motion was properly supported and would have been well-taken by the judge, we can't know that, of course. The fact that you were complimented on your prepared documents and the attorney's eagerness to settle before the hearing lend some weight to my opinion. You were very clear from the beginning that you wanted to settle for a sum you could afford. You achieved your goal. I agree with @BV80: I'm happy for you.  

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On 5/5/2018 at 6:39 PM, Brotherskeeper said:

@CandyCLC I want you to know that this thread contains some very helpful information for future Michigan defendants. Various viewpoints about possible strategies were expressed and discussed for you to consider. You asked a lot of questions before taking action and posted your drafts for review. I am appreciative of your willingness to submit your motion to compel and stay in lieu of an answer. While I (a stranger on an Internet forum) felt confident that your motion was properly supported and would have been well-taken by the judge, we can't know that, of course. The fact that you were complimented on your prepared documents and the attorney's eagerness to settle before the hearing lend some weight to my opinion. You were very clear from the beginning that you wanted to settle for a sum you could afford. You achieved your goal. I agree with @BV80: I'm happy for you.  

Thank you so very much for those kind words, they really do mean a lot. I felt like I needed to ask questions and educate myself on case law of course, but also needed to research Arbitration, because when it came down to it, I wanted to be 1000% sure that I would be confident enough to push for it if I didn't get the settlement amount I wanted. I didn't aim to threaten them with Arb, I aimed to make sure from the start that they knew I would not be an easy target, and I was ready to fight for Arb. You all told me, after I calmed down, that I had to read and learn a LOT about laws and rights in a very short span of time. I don't want to have to go through all of this again but if it does happen, I would do all the same work behind the scenes, file the same motion, and if they don't like my terms, that's when I will fight it and file with JAMS or AAA.

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On 5/2/2018 at 5:51 PM, bmc100 said:

Maybe in other states, this may not be true, but in Michigan this is a fact. MI courts never adopted the adoptive business records standard it that standard breaches every rule of evidence in existence.

Uh, you might want to read Michigan Rules of Evidence - section 11 of Rule 902 (Self Authentication). 

Any of this sound familiar?

Quote

(11) Certified records of regularly conducted activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that (A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) The record was kept in the course of the regularly conducted business activity; and (C) It was the regular practice of the business activity to make the record. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

 

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28 minutes ago, Goody_Ouchless said:

Uh, you might want to read Michigan Rules of Evidence - section 11 of Rule 902 (Self Authentication). 

Any of this sound familiar?

 

Goody, you are indeed correct about R. 902 and many courts have cited it over the years, but in this 2018 case involving Midland and a pro se defendant, the court wanted more proof that Midland could authenticate the particular documents that pertained to the defendant.

https://scholar.google.com/scholar_case?case=3316089820981380489&q=credit+card+debt&hl=en&scisbd=2&as_sdt=4,23

Rather, our issue with the chain of title documents is that they do not prove by a preponderance of the evidence that plaintiff owns defendant's debt. Although the chain of title documents admitted affirmatively show Midland Financial purchased a debt pool from Asset Acceptance, LLC, which was originally owned by FIA Card Services, N.A., the trial court's finding that defendant's individual debt was included in that debt pool is clearly erroneous. Walker testified that none of the chain of title documents contains any information specifically identifying defendant's account as an account included in the debt pool purchased by Midland Funding. To be clear, Walker testified that the bill of sale conveying the debt pool to Midland Funding from Asset Acceptance, LLC, does not specifically convey defendant's account. Rather, it conveys an unidentified pool of charged off accounts and a link to a secure server containing all of the individual account information in that pool. Walker was able to provide a field data report containing defendant's information prepared by Midland Funding after its purchase of the debt pool using the information obtained from the secure server. The field data report is "a redacted version of the electronic sale file that only shows the account information for that particular consumer without risking the privacy of other consumers' information." However, there was no information identifying any individual debtors in any of the chain of sale documents with respect to the sale between FIA Card Services, N.A. and Asset Acceptance, LLC, and likewise, no field data report, or similar document, was produced with respect to that sale. Therefore, there is a break in the chain of title as it relates to the inclusion of defendant's debt in the charged off debt pool.

Based on the foregoing, we conclude that plaintiff failed to affirmatively establish a continuous chain of title to defendant's debt between FIA Card Services, N.A. and Midland Funding. Instead, plaintiff only established a continuous chain of title to a generic debt pool. The trial court's finding to the contrary was clearly erroneous, leaves this Court with a "definite and firm conviction that a mistake has been made." Jackson-Rabon, 266 Mich App at 119-120. Because Midland Funding failed to prove by a preponderance of the evidence that it owned defendant's debt, defendant was entitled to judgment in his favor.

 

 

 

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34 minutes ago, debtzapper said:

Goody, you are indeed correct about R. 902 and many courts have cited it over the years, but in this 2018 case involving Midland and a pro se defendant, the court wanted more proof that Midland could authenticate the particular documents that pertained to the defendant.

Well, that ruling really didn't have anything to do with authenticating documents.   The court said that the documents were properly admitted.

"We first conclude that despite defendant's challenge to the admissibility of chain of title documents, there was no abuse of discretion in the admission of these documents."

"The chain of title documents were properly admitted under one such exception, the records of regularly conducted activity, or business record exception, found in MRE 803(6). The exception provides, in pertinent part, that:

A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodial or other qualified witness[,] shall be admitted as an exception to the rule against hearsay. MRE 803(6).

Here, Walker was a person with knowledge of the business records being admitted. Walker was able to testify to the fact that the chain of title documents were drafted contemporaneously to the sale of the debt pool, and that the documents were regularly made and kept in the course of purchasing debt pools. Therefore, it was not an abuse of discretion for the trial court to admit the chain of title documents under MRE 803(6). "

If the records had not been properly authenticated, they wouldn't have been admissible.  As pointed out in the part you cited, the court's issue was a break in the chain of title.  That had nothing to do with authentication.

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20 hours ago, Goody_Ouchless said:

Uh, you might want to read Michigan Rules of Evidence - section 11 of Rule 902 (Self Authentication). 

Any of this sound familiar?

 

Yes, It does, but you did not read the rule. "if accompanied by a written declaration under oath by its custodian or other qualified person certifying that (A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) The record was kept in the course of the regularly conducted business activity; and (C) It was the regular practice of the business activity to make the record. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them".

A JDB robo-signer does not work for the Original Creditor who created the records that the JDB attorney is trying to submit into evidence. The OC is not supplying the JDB with that affidavit and further that declarant is never made available for cross-examination. Hence, the evidence the JDB has would fall under Hearsay. A 3rd party cannot attest to another party's business records.

Before you speak up, you might want to understand the rules of evidence. I have written extensively on here about this rule.

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2 hours ago, bmc100 said:

A 3rd party cannot attest to another party's business records.

The rule says nothing of the sort. Now, you may want to know how a 3rd party affiant can attest to A, B and C, but if they swear to those things under oath, there is nothing in that rule that prohibits the court from recognizing the affiant as a "qualified person" to allow the evidence in.

And since it's coming in as an affidavit, the only way to question the affiant is via deposition or at trial. If it's an MSJ you're opposing, deposition is all you have, and at your cost to boot. 

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On 5/7/2018 at 10:33 PM, BV80 said:

Well, that ruling really didn't have anything to do with authenticating documents.   The court said that the documents were properly admitted.

"We first conclude that despite defendant's challenge to the admissibility of chain of title documents, there was no abuse of discretion in the admission of these documents."

"The chain of title documents were properly admitted under one such exception, the records of regularly conducted activity, or business record exception, found in MRE 803(6). The exception provides, in pertinent part, that:

A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodial or other qualified witness[,] shall be admitted as an exception to the rule against hearsay. MRE 803(6).

Here, Walker was a person with knowledge of the business records being admitted. Walker was able to testify to the fact that the chain of title documents were drafted contemporaneously to the sale of the debt pool, and that the documents were regularly made and kept in the course of purchasing debt pools. Therefore, it was not an abuse of discretion for the trial court to admit the chain of title documents under MRE 803(6). "

If the records had not been properly authenticated, they wouldn't have been admissible.  As pointed out in the part you cited, the court's issue was a break in the chain of title.  That had nothing to do with authentication.

"Based on the foregoing, we conclude that plaintiff failed to affirmatively establish a continuous chain of title to defendant's debt between FIA Card Services, N.A. and Midland Funding."

You are correct. It was not about authentication. But the court was demanding more proof from Midland that it owned the defendant's particular debt.  Other courts might have not have been so strict in insisting on a continuous chain of title.

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9 hours ago, Harry Seaward said:

The rule says nothing of the sort. Now, you may want to know how a 3rd party affiant can attest to A, B and C, but if they swear to those things under oath, there is nothing in that rule that prohibits the court from recognizing the affiant as a "qualified person" to allow the evidence in.

And since it's coming in as an affidavit, the only way to question the affiant is via deposition or at trial. If it's an MSJ you're opposing, deposition is all you have, and at your cost to boot. 

In Michigan, it has been easy to get the JDB affidavit tossed. The JDB during discovery never will provide the location, address and phone number to the person signing the affidavit. The Plaintiff needs to make that person available for cross-examination, which they never do. I have used the this argument and the argument in my other post and they worked. We are getting really technical. The court will allow anything into evidence, if it is not contested. It is not the responsibility of the judge to deny evidence, rather the opposing party making the proper challenges.

There might of been a reason why I had a 95% plus success rate in getting these cases dismissed.

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2 hours ago, bmc100 said:

It is not the responsibility of the judge to deny evidence, rather the opposing party making the proper challenges.

This is the critical element in my opinion.You can't count on the judge to use her/his discretion. Not understanding what an opposing party is required show and how to make the "proper" challenge to the judge have doomed seemingly solid arguments in summary disposition (judgment). These pro se failures often don't leave a record for a successful appeal like the case @debtzapper posted above. (Thanks for posting that, DZ. Another unpublished Midland decision :( but still full of useful analysis.)

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5 hours ago, bmc100 said:

In Michigan, it has been easy to get the JDB affidavit tossed. The JDB during discovery never will provide the location, address and phone number to the person signing the affidavit. The Plaintiff needs to make that person available for cross-examination, which they never do. I have used the this argument and the argument in my other post and they worked. We are getting really technical. The court will allow anything into evidence, if it is not contested. It is not the responsibility of the judge to deny evidence, rather the opposing party making the proper challenges.

This is not at all the same thing as saying (or implying) that 3rd party authentication is prohibited by the rules of evidence.

This is from the case DZ posted:

"Under MRE 801(c), "hearsay" is a "statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." "Hearsay evidence is inadmissible unless it falls within one of the exceptions listed in the Michigan Rules of Evidence." People v Solloway, 316 Mich App 174, 198-199; 891 NW2d 255 (2016). The chain of title documents were properly admitted under one such exception, the records of regularly conducted activity, or business record exception, found in MRE 803(6). The exception provides, in pertinent part, that:

A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodial or other qualified witness[,] shall be admitted as an exception to the rule against hearsay. MRE 803(6).

Here, Walker was a person with knowledge of the business records being admitted. Walker was able to testify to the fact that the chain of title documents were drafted contemporaneously to the sale of the debt pool, and that the documents were regularly made and kept in the course of purchasing debt pools. Therefore, it was not an abuse of discretion for the trial court to admit the chain of title documents under MRE 803(6)."

That last paragraph makes a very strong case for Adoptive Business Records Doctrine.  It's a very good thing that this case was not published.  Although I suspect it's a matter of time before there is such a ruling on the record.

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6 hours ago, bmc100 said:

In Michigan, it has been easy to get the JDB affidavit tossed. The JDB during discovery never will provide the location, address and phone number to the person signing the affidavit. The Plaintiff needs to make that person available for cross-examination, which they never do. I have used the this argument and the argument in my other post and they worked. We are getting really technical. The court will allow anything into evidence, if it is not contested. It is not the responsibility of the judge to deny evidence, rather the opposing party making the proper challenges.

There might of been a reason why I had a 95% plus success rate in getting these cases dismissed.

I can't wait until next Michigan defendant comes along and we can watch you in action under the Klieg lights. That shtick about live witnesses is exactly what Self Authenticating business records have done away with. 

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On 5/7/2018 at 10:53 PM, debtzapper said:

Rather, our issue with the chain of title documents is that they do not prove by a preponderance of the evidence that plaintiff owns defendant's debt. Although the chain of title documents admitted affirmatively show Midland Financial purchased a debt pool from Asset Acceptance, LLC, which was originally owned by FIA Card Services, N.A., the trial court's finding that defendant's individual debt was included in that debt pool is clearly erroneous. Walker testified that none of the chain of title documents contains any information specifically identifying defendant's account as an account included in the debt pool purchased by Midland Funding. To be clear, Walker testified that the bill of sale conveying the debt pool to Midland Funding from Asset Acceptance, LLC, does not specifically convey defendant's account.

Asset Acceptance sold this FIA debt pool to Midland in 2012. Midland's parent company, Encore, bought Asset Acceptance in June 2013. I wonder if Asset was just sloppy in failing to provide the individual account info to Midland or if there was some internal glitch somewhere that couldn't be cured for this case. 

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7 minutes ago, Brotherskeeper said:

To be clear, Walker testified that the bill of sale conveying the debt pool to Midland Funding from Asset Acceptance, LLC, does not specifically convey defendant's account.

This is the nail in the coffin for using this case against ABRD. The witness herself said the account was not conveyed in the transaction. The lower court ruling was reversed for no other reason than this right here. 

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