Back for another round against Midland!

[tiger12be]

Hey everyone!!

Some of you may remember me from several years ago when I won a case against Midland. I received a great deal of help from many of you (BV80, ColtFan, Bruno...and many others!). This time, my fiancee is being sued by Midland and I'm trying to help her out. I typed up and had her sign and send her Answer. Midland promptly responded with a packet of the usual (Req for Rogs, Req for Prod Docs, Req for Admissions). Some of the wording has changed from what they sent me for my case but for the most part, I'd say 75-80% is identical. One thing they did differently this time is they sent their customary couple of copies of cc statements and other things that they don't normally send until after you've requested them, prior to me requesting them.

I happened to read someone else's post from Missouri about using MTC Arbitration as being the best way to fight Midland now? Why is that? Does the old way not work anymore (attacking standing to sue - CACH vs Askew)??? I'm curious because I need to get her responses sent back to Midland tomorrow as we are up against the 30 day deadline to respond.

The postmark on the envelope they sent was 12/7/18 but the actual documents they sent had November 16th (crossed out and Dec 7 handwritten above it).

 

I'd be happy to supply the normal list of information that is requested of new posters but I am most curious as to why MTC Arbitration is supposedly the best way to go now?

 

 

Thanks!!

Tiger12Be

[BV80]

1 hour ago, tiger12be said:

Hey everyone!!

Some of you may remember me from several years ago when I won a case against Midland. I received a great deal of help from many of you (BV80, ColtFan, Bruno...and many others!). This time, my fiancee is being sued by Midland and I'm trying to help her out. I typed up and had her sign and send her Answer. Midland promptly responded with a packet of the usual (Req for Rogs, Req for Prod Docs, Req for Admissions). Some of the wording has changed from what they sent me for my case but for the most part, I'd say 75-80% is identical. One thing they did differently this time is they sent their customary couple of copies of cc statements and other things that they don't normally send until after you've requested them, prior to me requesting them.

I happened to read someone else's post from Missouri about using MTC Arbitration as being the best way to fight Midland now? Why is that? Does the old way not work anymore (attacking standing to sue - CACH vs Askew)??? I'm curious because I need to get her responses sent back to Midland tomorrow as we are up against the 30 day deadline to respond.

The postmark on the envelope they sent was 12/7/18 but the actual documents they sent had November 16th (crossed out and Dec 7 handwritten above it).

 

I'd be happy to supply the normal list of information that is requested of new posters but I am most curious as to why MTC Arbitration is supposedly the best way to go now?

 

 

Thanks!!

Tiger12Be

Welcome back!  Sorry it’s under these circumstances, though.  

JDBs don’t like arbitration because it’s expensive, and their business model is to take in the most money with the least amount of output.  Who is the OC?

 

[tiger12be]

It's Comenity Bank.

[BV80]

44 minutes ago, tiger12be said:

It's Comenity Bank.

Here’s an arbitration thread to read. 

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

You gf will need a copy of the cardmember agreement.    She’ll need the one dated the last year that the account was still in good standing right before default occurred.   It should be in the archives of the CFPB database.

https://www.google.com/search?client=safari&channel=ipad_bm&source=hp&ei=9RMtXI2tN-aD_QbosIagBg&q=consumer+financial+protection+bureau+credit+card+database&oq=con&gs_l=mobile-gws-wiz-hp.1.1.35i39l3j0l2.2295.2713..3795...1.0..0.344.660.0j1j1j1......0....1.......5..46i131j0i131.5nYhJrJ4BfU

[tiger12be]

So am I hearing that MTC is the way to go then? Not simply attacking the lack of foundation and standing to sue? Is there a reason that is not effective anymore? The problem is, I don't know that I have enough time to do all the reading/research that I need to do on Arbitration.  :(

[tiger12be]

Also, I should mention that I already had her send her Answer to Petition to the JDB attorney. That was done right after we got the notice that they were suing. I broke out the paperwork from my previous lawsuit and used it to submit her answer.

 

 

 

[Goody_Ouchless]

1 hour ago, tiger12be said:

Not simply attacking the lack of foundation and standing to sue? Is there a reason that is not effective anymore?

That stuff used to work because they either couldn't provide sufficient documentation, or the documentation they could provide needed to be authenticated by a live witness. Those conditions are no longer true. Debt buyers are now provided with more than enough documentary evidence to prove their case, and virtually every state has adopted the Federal rules of evidence with it comes to adoptive business records. What that means is that a properly-worded affidavit allows the rest of the evidence to "speak for itself," so there is no need for live witnesses. Since these things have come to pass, these cases can rarely be won in court. Sometimes there's a goofy case where the original billing address was to a decommissioned submarine, or it's in some county where filing at the wrong clerk's window is perceived as an FDCPA violation, but in most cases what they have provided you is already enough for them to be granted summary judgement.

Read the arbitration thread. It sounds too good to be true, and it really is as simple as described. It's also proved to be 100% effective against debt buyers.

 

[tiger12be]

33 minutes ago, Goody_Ouchless said:

That stuff used to work because they either couldn't provide sufficient documentation, or the documentation they could provide needed to be authenticated by a live witness. Those conditions are no longer true. Debt buyers are now provided with more than enough documentary evidence to prove their case, and virtually every state has adopted the Federal rules of evidence with it comes to adoptive business records. What that means is that a properly-worded affidavit allows the rest of the evidence to "speak for itself," so there is no need for live witnesses. Since these things have come to pass, these cases can rarely be won in court. Sometimes there's a goofy case where the original billing address was to a decommissioned submarine, or it's in some county where filing at the wrong clerk's window is perceived as an FDCPA violation, but in most cases what they have provided you is already enough for them to be granted summary judgement.

Read the arbitration thread. It sounds too good to be true, and it really is as simple as described. It's also proved to be 100% effective against debt buyers.

 

Very interesting. I appreciate the input! As I stated, it's been 5 or so years since I kicked Midland's a$$ in court. :D    

You brought up some great points and I think may be worth mentioning that I live in Missouri. CACH vs Askew is a great Missouri Supreme Court case that essentially made it a requirement that the JDB attorneys have a live witness at trial. Business record hearsay exceptions are next to impossible without a live witness. I'd be very curious to know if anyone in Missouri has had any problems with using lack of foundation recently (in the past couple of years). I only have a couple of days to respond to the JDB attorney, as they sent their discovery requests back on 12/7. I'm kind of torn as to what to do now! 

Going to go read some more on arbitration. Are MTC pretty standard or is that something that I'll need to read the MO rules for civil procedure on?

 

 

[tiger12be]

Since we have already sent the answer to the petition, are we too late? I haven't sent the responses to their requests for discovery yet, although I am ready to. Should I hold off and go ahead with the MTC Arb now instead?? I would really appreciate some guidance on this since we are so short on time!! 

 

 

[Brotherskeeper]

15 hours ago, tiger12be said:

Since we have already sent the answer to the petition, are we too late?

In my state the existence of an agreement to arbitrate is an affirmative defense, which must be pleaded in an answer or motion in lieu of an answer. Some states consider arbitration as an affirmative defense to be waived if it isn't asserted at the first opportunity for a response. You would need to check how Missouri courts view affirmative defenses, specifically arbitration. Check your rules of civil procedure on amending an answer. 

15 hours ago, tiger12be said:

I haven't sent the responses to their requests for discovery yet, although I am ready to.

If you plan on asserting arbitration as an affirmative defense in an amended answer, you probably would not want to be seen as participating too far into court process. Some posters in your situation have answered discovery requests by including an objection to each request. You need to know how your courts view waiver of your right to arbtirate. 

[tiger12be]

1 hour ago, Brotherskeeper said:

In my state the existence of an agreement to arbitrate is an affirmative defense, which must be pleaded in an answer or motion in lieu of an answer. Some states consider arbitration as an affirmative defense to be waived if it isn't asserted at the first opportunity for a response. You would need to check how Missouri courts view affirmative defenses, specifically arbitration. Check your rules of civil procedure on amending an answer. 

If you plan on asserting arbitration as an affirmative defense in an amended answer, you probably would not want to be seen as participating too far into court process. Some posters in your situation have answered discovery requests by including an objection to each request. You need to know how your courts view waiver of your right to arbtirate. 

So, based on this......we're screwed. Unless I'm reading it wrong?

 

RULE 55.08 AFFIRMATIVE DEFENSES

---

 

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including but not limited to accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, comparative fault, state of the art as provided by statute, seller in the stream of commerce as provided by statute, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in defamation, waiver, and any other matter constituting an avoidance or affirmative defense. A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleadings as if there had been a proper designation.

[Brotherskeeper]

@tiger12be (I am not a lawyer.) I suggested you research your court rules on affirmative defenses and how your state courts consider waiver of arbitration in order for you to be able to make an informed decision whether or not to pursue arbitration. Arb has been working out very well for posters here recently. I am aware of the 2012 Askew ruling, but has Midland figured a way around it?   Your court rules allow an amended answer to be filed as indicated below: 

55.33. Amended and Supplemental Pleadings

(a) A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at any time within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would cause prejudice in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against the party and serving notice of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party's defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit service of a supplemental pleading setting forth transactions or occurrences or events that have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

[tiger12be]

I just realized something. While she did send the Answer to the JDB attorney, she never filed it with the court. I'm hoping that doesn't somehow come back to bite her in the backside.....but in the meantime, I need to find some kind of template for the MTC arb. I want to get that in ASAP. 

[tiger12be]

I. Arbitration and jury trial waiver
A. Jury trial waiver
TO THE EXTENT PERMITTED BY LAW, YOU AND WE WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF A LAWSUIT ARISING OUT OF OR RELATED TO THIS AGREEMENT. THIS JURY TRIAL WAIVER SHALL NOT AFFECT THE ARBITRATION PROVISION BELOW (INCLUDING THE JURY TRIAL WAIVER CONTAINED THEREIN). YOU AND WE EACH REPRESENT THAT THIS WAIVER IS GIVEN KNOWINGLY, WILLINGLY AND VOLUNTARILY.
B. Notice and cure
Prior to bringing a lawsuit or initiating an arbitration that asserts a claim arising out of or related to this Agreement (as further defined below, a "Claim"), the party asserting the Claim (the "Claimant") shall give the other party (the "Defendant") written notice of the Claim (a "Claim Notice") and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent in writing to the address we have in our records (or any updated address you subsequently provide to us). Any Claim Notice to us shall be sent by mail to Comenity Bank, PO Box 182436, Columbus, Ohio 43218-2436 (or any updated address we subsequently provide). Any Claim Notice you send must provide your name, address and Account number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. No third party, other than a lawyer you have personally retained, may submit a Claim Notice on your behalf. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests.
C. Arbitration provision
READ THIS ARBITRATION PROVISION CAREFULLY. IF YOU DO NOT REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH PARAGRAPH C.1. BELOW, IT WILL BE PART OF THIS AGREEMENT AND WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM WHICH YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE.
1. Your Right to Reject: If you don’t want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives the name of each Cardholder and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at Comenity Bank, PO Box 182422, Columbus, Ohio 43218-2422. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within thirty (30) calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit.
2. Parties Subject to Arbitration: Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.
3. Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 (the "Class Action Waiver"), the last sentence of Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
4. Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.
5. Choosing the Administrator: "Administrator" means the American Arbitration Association ("AAA"), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver.
6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
7. Prohibition Against Certain Proceedings: IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.
9. Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.
10. Right to Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.
11. Arbitration Result and Right of Appeal: Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the Claim exceeds $50,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $50,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. The panel shall reconsider anew any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote. Reference in this Arbitration Provision to "the arbitrator" shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with Paragraph C.8. above.

12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision, on the one hand, and the applicable arbitration rules or the other provisions of this Agreement, on the other hand, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement.
13. Severability: If any portion of this Arbitration Provision, other than the Class Action Waiver, is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. If a determination is made that the Class Action Waiver is unenforceable, only this sentence of the Arbitration Agreement will remain in force and the remaining provisions shall be null and void, provided that the determination concerning the Class Action Waiver shall be subject to appeal.
14. Special Payment: If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled).

[tiger12be]

This came from the cc agreement in question. I do have a question though. Are you basically admitting that "Yes, this was my card/account." by going to arbitration? Is this argued any differently than if you went to court to argue standing to sue or lack of foundation?

I'm still reading up on this. It's a lot to take in in such a short amount of time!

[nobk4me]

1 hour ago, tiger12be said:

I just realized something. While she did send the Answer to the JDB attorney, she never filed it with the court. I'm hoping that doesn't somehow come back to bite her in the backside.....but in the meantime, I need to find some kind of template for the MTC arb. I want to get that in ASAP. 

Then file the answer with the court NOW.

[tiger12be]

Just got back from court. My fiancée had a bench trial scheduled for 3 PM today. Got to the courthouse, only to find out that the slime ball JDB attorney filed a motion to dismiss w/o prejudice earlier today. Obviously this was great (and very expected) news but Midland is nothing short of pathetic. Anyway, another win under my belt!! If I didn't have a full time job, I'd LOVE to help people defend themselves against these JDBs.  

To recap this case, we basically filed an answer to their petition and answered their discovery requests. I didn't even bother sending any discovery requests to them this time. I already know how they answer discovery, so it wasn't really worth it. That's it. After our initial appearance in court, this bench trial was scheduled. In my 2013 case, I had to appear 5 times before I got my dismissal. These jokers know they can't win against people that know what they're doing and can defend these cases!!

 

 

[Goody_Ouchless]

Congratulations, but it sounds like you got lucky. So you were going in with no defense and hoping for the best?

[Goody_Ouchless]

On 1/2/2019 at 5:15 PM, tiger12be said:

CACH vs Askew is a great Missouri Supreme Court case that essentially made it a requirement that the JDB attorneys have a live witness at trial. Business record hearsay exceptions are next to impossible without a live witness.

Sorry, I didn't see this. Perhaps Missouri is one of the exceptions where simply getting a trial granted leads to automatic dismissal. In other places the live witness requirement has been eliminated when the court realized that modern business is conducted using computerized records, so when the buyer and seller sign-off that the records are accurate and have been integrated into the buyer's system, it's an unnecessary waste of time to bring in a live witness to state the obvious.

 

[tiger12be]

7 minutes ago, Goody_Ouchless said:

Congratulations, but it sounds like you got lucky. So you were going in with no defense and hoping for the best?

I went in knowing that it's VERY tough for JDBs to win these cases in Missouri. CACH vs Askew was a landmark case that makes it almost impossible for JDBs to win in court. Obviously if you don't defend the case properly (i.e. make some type of procedural error) you can still lose. My defense was basically lack of standing due to no proof of valid assignment. Without a live witness, JDBs are fighting a losing battle more times than not. 

[tiger12be]

2 minutes ago, Goody_Ouchless said:

Sorry, I didn't see this. Perhaps Missouri is one of the exceptions where simply getting a trial granted leads to automatic dismissal. In other places the live witness requirement has been eliminated when the court realized that modern business is conducted using computerized records, so when the buyer and seller sign-off that the records are accurate and have been integrated into the buyer's system, it's an unnecessary waste of time to bring in a live witness to state the obvious.

 

No problem.   It's been over 6 years since I defended my case in court against Midland. I was helping my fiancée with this one. I didn't really change anything in how I defended it though. I didn't submit any discovery because I know what this JDB attorney replies to discovery with. Probably better to have it documented than not, but I really didn't have as much time as I would have liked to work on that. 

[Goody_Ouchless]

It was about then that they started collecting case law that let business records stand on their own, compliant with Federal rules of evidence. Most places have that baked into the statutes, but if you have a ruling that supersedes, or carves out an exception in these cases then it's a different story. 

[tiger12be]

7 minutes ago, Goody_Ouchless said:

 

It was about then that they started collecting case law that let business records stand on their own, compliant with Federal rules of evidence. Most places have that baked into the statutes, but if you have a ruling that supersedes, or carves out an exception in these cases then it's a different story. 

Honestly, I haven't had a need to keep up with new case law or what may or may not have changed with regard to the CACH vs Askew ruling. Since my fiancée was getting sued by the same bunch of d-bags that I got sued by, I just figured I would use the same defense.