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Cavalry I SPV asked by judge for signed contract


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25 minutes ago, Brotherskeeper said:

If I understand you correctly,

1.)  A Cavalry custodian of records prepared the affidavit that the Citibank account statements are attached to and referred to as Exhibit B submitted with the MSJ. 

2.) You have no affidavit from a Citibank custodian of records that any Citibank account statements are referred to and attached to as sworn (true) copies. 

3.) Senior VP Terri Bergman's affidavit does not refer to any attached true copies of account statements, only a transfer of certain electronic records of individual but unnamed accounts.

4.) The MSJ Exhibit B account statements show a Virginia address and show no card use or purchases.

5.)  Only the account statements handed to you by the attorney in court show purchases. Those statements were not part of the evidence submitted as an exhibit in support of the MSJ.  The were filed as discovery responses in the court's case file.

6.) The Citibank account number on some statements has been physically redacted so that no numbers are visible. Other statements redact all but the last 4 digits. If unredacted, the full account number would show. You have no idea if the totally redacted account number matches the account number that shows only the last 4 digits. 

Where is Cavalry's affidavit?

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45 minutes ago, Brotherskeeper said:

If I were in your shoes, I would not be in such haste to put an important document (stakes are $12,000) in the hands of the judge until I understood exactly what my burden to prove was and how to accomplish it, all according to the Ohio summary judgment standards and court rules. You did not answer when your deadline to submit your MSJ opposition response was.

Can you explain what "opposition motion" you plan to submit? (A motion is a request to the judge to take some sort of action.) Did you mean your response in opposition to their motion? 

Yes I meant my response in opposition.

In regards to MSJ opposition, the rules are a response within 28 days of receipt.  

The next pre trial is June 8th, are you saying hold off?  The ONLY reason the judge ordered a second pre-trial was to give Cavalry ample time to come up with a signed contract, showing I am the owner. His words....

Is there a reason Cavalry is attempting to speed things up?

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The way I see it there are a few issues in play.

1. The judge has asked for proof the OP was the owner of the Citi account.

2. Calvary has not proven THEY own this account to collect on.  The affidavit posted here is one of the more generic ones I have ever seen.  It points to a "pool" of accounts, but does not even identify that pool (i.e. pool #1234) and it does not list OP's name anywhere on the affidavit as being one of the people or accounts listed in this pool. 

3. The discrepancies and errors in the statements provided

4. As a last resort, Arbitration may still be in play given that this judge seems to be set against Calvary. It may not be too late.

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  12 hours ago, MikeJones said:

Yes, everything Cavalry has sent me via certified mail has been filed with the court, every document. In this case, discovery and responses. Attachments such as the affidavit  of the custodian of records and credit card statements are labeled as exhibit A, exhibit B, etc.  So, in amateur, pro se lamen terms, I refer to that as “filed with the court”.

Please verify the accuracy of #1-6:

1.)  A Cavalry custodian of records prepared the affidavit that the Citibank account statements are attached to and referred to as Exhibit B submitted with the MSJ. Please post a redacted copy.

2.) You have no affidavit from a Citibank custodian of records that any Citibank account statements are referred to and attached to as sworn (true) copies. 

3.) The MSJ Exhibit B account statements show a Virginia address and show no card use or purchases. No evidence has been submitted with the MSJ showing card use or purchases.

4.) The Citibank account number on some statements has been physically redacted so that no numbers are visible. Other statements redact all but the last 4 digits. If unredacted, the full account number would show. You have no idea if the totally redacted account number matches the account number that shows only the last 4 digits. 

5.) Citibank never reported this account on your credit reports.

6.)  Cavalry never reported this account on your credit reports.

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1. Yes, and I just posted their affidavit.  The affidavit is listed as Exhibit A.  The Statements and Bill of sale are listed as additional documents Exhibit B.

2. Correct, I have nothing from a Citibank custodian of records.

3. Correct

4. All of the statements submitted to the court look like this, a blank account number, nothing there. (I drew the black line to hide my name) . Uploading a statement.

5 and 6. Once I received the original summons, I immediately contacted all three credit bureaus. And received my credit reports. Equifax and Experian were clean, however a month later I did recieve the below from TransUnion.  So yes, Cavalry must have been on my credit report at some time.  The citibank account I have no idea if it was.  (I haven’t checked my reports in years).   I do not have the details of Transunions investigation.  BTW, all 3 credit reports show zero accounts in collection.

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24 minutes ago, fisthardcheese said:

The way I see it there are a few issues in play.

1. The judge has asked for proof the OP was the owner of the Citi account.

2. Calvary has not proven THEY own this account to collect on.  The affidavit posted here is one of the more generic ones I have ever seen.  It points to a "pool" of accounts, but does not even identify that pool (i.e. pool #1234) and it does not list OP's name anywhere on the affidavit as being one of the people or accounts listed in this pool. 

3. The discrepancies and errors in the statements provided

4. As a last resort, Arbitration may still be in play given that this judge seems to be set against Calvary. It may not be too late.

The issue is that the JDB has not provided one single document that proves the account was opened and used by the OP.   While the name on the bank statements may be the same as his, the address shown is one at which he has never lived.  No statement has been provided that shows the address at which he lived during the relevant time period.

In an affidavit, he can deny opening the account, living at the address listed on the statements, and ever living in VA (if that's the case).   If it were me, get copies of my bank statements showing the address at which I lived during the life of the account.  Those bank statements would also show that I did no payments to the credit card bank.  A bank employee could authenticate those copies.

 

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9 minutes ago, fisthardcheese said:

Is the date of this affidavit (4/28) after they already filed this lawsuit against you?  Some courts would look down on this.  Others may recall better than I if there is any case law on that issue.

Yes this affidavit was first produced and filed last week, May 15 as Exhibit A of the MSJ.

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1 hour ago, MikeJones said:

Yes this affidavit was first produced and filed last week, May 15 as Exhibit A of the MSJ.

In discovery did you ask then to produce anything showing they bought your account or that this was your account?  Again, this may be minor compared to your other evidence of showing your correct address during the same dates their statements show a different address, but I would ask for this affidavit to be stricken as untimely because it was not provided during discovery and it is even dated and signed AFTER discovery was completed.

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@MikeJones Here's Ohio notary info on preparing your affidavit for the MSJ. #21 indicates how you can get photocopies notarized of any document you submit as evidence referred to as a true copy in and attached to your affidavit as an exhibit for your MSJ response.

Ohio Notary information

7. Remember, we notarize signatures, not documents, and do so in a completely impartial manner. The notary has no interest in the document content, other than ensuring it is complete. Scan (don’t read) the document to ensure it is complete. If there are any blank spaces, the signer must either complete the spaces or line through them.

11. Failure to adminster the oath/affirmation when required is a serious violation of Ohio notary law, and can result in severe penalties! The words "Affidavit", "Sworn to and subscribed" or "Being duly sworn" in the notary certificate are your indication it is a jurat, and that the oath/affirmation is required.

 

19. The signer should affix his/her signature exactly as shown on the signature line, or, if not preprinted, as it appears on the identification presented. 

20. The public often incorrectly assumes that notarization somehow makes a document "legal". In fact, notarization is only concerned with the document signature, and has no bearing upon its content. Simply, the signer attests to the document's content; the notary then attests that the signer has satisfied the required elements of notarization. You should ensure signers are aware of this.

21. Notaries are often requested to provide copy certifications. While this is permitted for notaries in a number of states, it is not statutorily authorized as a notarial act in Ohio. You cannot certify, or affix your stamp/seal to, a document/copy, photograph, or anything else (that does not bear a signature and a notary certificate), and attest to any information about it.

Signers from states where copy certification is permitted may expect the same from you, and you must tell them that it is not authorized in Ohio. However, there IS an alternative. 

The person presenting the photocopy may make his/her own statement directly upon the copy (or an attached page) attesting that it is a true copy of the original document, and affixing his/her signature to the statement. The signature can then be notarized using an appropriate notary certificate, either directly upon the copy or by attaching a loose certificate .

http://ohionotaries.org/images/documents/copy-certification-tutorial.pdf

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1 hour ago, Brotherskeeper said:

Well, gang, long-time members here have been telling newbies that things have changed, that JDBs have much better documentation to prove up their claims in court. This is like a walk down memory lane. 

They have.  Maybe not in your jurisdiction but in Arizona, Texas, and Georgia the business records rules have been relaxed a lot making it much easier for a junk debt buyer to prevail on these claims now.  They have sharpened their skills based on the arguments that the few consumers who fight present.  EVERYTHING adapts over time except for a few long time members on the forums who swear that tactics from 10 years ago are still guaranteed.  There was NEVER a guarantee that any one method would work 100% of the time.

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1 hour ago, Brotherskeeper said:

Well, gang, long-time members here have been telling newbies that things have changed, that JDBs have much better documentation to prove up their claims in court. This is like a walk down memory lane. 

Just about three long-time members here aggressively pushing that agenda, by no means the majority.  This confirms that JDB's still provide the same run-of-the-mill "evidence" that they have always had and are still as crooked and/or stupid as they have always been as they piss off judges flooding the courts to procure default judgements.

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33 minutes ago, fisthardcheese said:

In discovery did you ask then to produce anything showing they bought your account or that this was your account?  Again, this may be minor compared to your other evidence of showing your correct address during the same dates their statements show a different address, but I would ask for this affidavit to be stricken as untimely because it was not provided during discovery and it is even dated and signed AFTER discovery was completed.

Yes, I asked for production of documents. Contract, records, statements etc.

Discovery is ongoing... but I'm here on this forum because I'm on the cusp of the Judge ruling this case is NOT ripe for trial.

I have reviewed all of the Cavalry cases in my municipality over the last two years. 63 of them have resulted in default judgments, 3 have settled, 2 cases Cavalry has dismissed and none have gone to trial.

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11 minutes ago, texasrocker said:

Just about three long-time members here aggressively pushing that agenda, by no means the majority.  This confirms that JDB's still provide the same run-of-the-mill "evidence" that they have always had and are still as crooked and/or stupid as they have always been as they piss off judges flooding the courts to procure default judgements.

Do not lump all JDBs into the same category.  Midland and Portfolio have upped their game due to being sued by the CFPB.   Those 2 JDBs also file the majority of claims.

Cavalry is still stupid but doesn't quite as often as the other two.  

One must also consider the law firms because they are the ones who actually file the claims.  It appears this particular law firm did not perform its due diligence.   In some states, had the OP been the correct party, the evidence might hold up.

 

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I guess I wasn't as clear as I could have been. When I said this case was like a walk down memory lane, I meant that we haven't seen something this bad from a JDB in quite a while--hence "memory lane." For some time now we've been encouraging new posters to bypass fighting in court and to consider arbitration as the less risky course for a very good reason. 

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Yes, the JDB industry has gotten better at proving their case (or lobbying to get laws passed to make it easier to prove their case). However, it seems as some of the older, sloppy habits have come up in this case. Maybe they thought the name was so unique that they did not need to bother with getting better evidence.

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Circling back to my response in opposition to Cavalrys MSJ..

Should I keep it simple and just answer with wrong address with attached affidavit to defeat the MSJ?

Or do I let it all out of the bag, wrong address, account number not visible, chain of custody of bill of sale is questionable since my name is no where to be found (pool of accounts)?

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3 minutes ago, MikeJones said:

Or do I let it all out of the bag, wrong address, account number not visible, chain of custody of bill of sale is questionable since my name is no where to be found (pool of accounts)?

@MikeJones When is the drop dead deadline to submit your MSJ response? How much time do you have left to do a well-written oppo response? If you're really pressed for time, work on making the lack of standing and the wrong address arguments as strong and persuasive as possible. Properly argued, either of those should defeat the MSJ. (Caveat: I am not a lawyer)

Research the standard of review for the rule under which the plaintiff brought the MSJ. BV80 cited a Ohio case to read. Your goal in the MSJ opposition response memorandum is to convince the judge that there is a genuine dispute as to any material fact and that plaintiff is not entitled to judgment as a matter of law. You must follow the rules that dictate what your burden is and how your evidence that demonstrates the dispute(s), and in what form, is presented to the court. If you do not properly controvert/rebut an assertion of material fact made for which no competent evidence has been presented (or could ever be presented) or plaintiff has failed to meet its burden of proof on, then it remains undisputed. If you do not object to the admissiblity of evidence, your objection may be waived. Experienced members here have offered insight into the strength of your position and the judge has pointed out the threshold weakness he finds with the missing contract. 

Consider if you were to need to file an appeal, the appeals court would be limited to the record of the lower court. If you plan on consulting with a consumer attorney for any possible violations, s/he will likely appreciate a thorough, well-supported case record; removing or damaging the bona fide error defense haven is very good to have done.  Please check your court rules to see if there is a rule that allows you at the end of your oppo response to ask the court to find in your favor on plaintiff's MSJ. If your court rules do have that provision, that is the best reason of all to prepare a "let it all out of the bag" response. Another consideration is filing a cross motion for summary judgment, but you'd have to be very thorough in your preparation and drafting. Have you searched the archives here for a solid MSJ oppo response that covers most of your arguments so you don't have to reinvent the wheel? 

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