Recommended Posts

I am going to Trial on Monday and wonder what I should do to prepare that I haven't already done.  I'm being sued by Absolute Resolutions Investments who purchased my loan from Best Egg.  They filed a Motion for Summary Judgment but the court denied it so my trial date goes on as planned.  I was helped on here to get the Motion for Summary Judgment denied and I am very grateful.  I appreciate any help I can get.

Share this post


Link to post
Share on other sites

What did they send in discovery? (They don't have to file that with the court before the trial. They will show up with it and it will get introduced unless you have some good reason it shouldn't.)

Share this post


Link to post
Share on other sites

They have:

Bill of sale
Certificate of Loan Sale
Certificate of Conformity
3 copies of a statement the statement dated September 15, 2017
Final Statement
Loan agreement

Share this post


Link to post
Share on other sites

I would attack the fact that the affiant doesn't identify any specific records that were reviewed, and doesn't say the records were incorporated and relied upon. Those are they key points that are usually required for a record to be introduced as an adoptive business record. 

Do a search on Google scholar for "adoptive business records" under your state and see what cases you can use. 

Share this post


Link to post
Share on other sites

After reading though that case, these are the key points i would attack. 

"Records need not actually be prepared by the business to constitute business records, so long as they are received, maintained and relied upon in the ordinary course of business"); United States v. Jakobetz (C.A.2, 1992), 955 F.2d 786, 801 ("Even if the document is originally created by another entity, its creator need not testify when the document has been incorporated into the business records of the testifying entity"); Saks Internatl. Inc. v. M/V Export Champion (C.A.2, 1987), 817 F.2d 1011, 1013-14 (documents may properly be admitted as business records even though they are the records of an entity other than one of the parties, and even though the foundation for their receipt is laid by a witness who is not an employee of the entity that owned and prepared them, provided that there are sufficient indicia of the records' reliability and trustworthiness."

I would argue they failed to lay proper (or any, really) foundation for how the records were created and kept by the OC, or received, incorporated and maintained by ARI. In other words, how do they know the records were reliable? There's nothing in that affidavit to help us know that. The parts I highlighted in bold are where they dropped the ball. 

Share this post


Link to post
Share on other sites

They will argue that affidavit says the records "are kept in the ordinary course of business," and by reviewing the defendant's records for accuracy in this case, the implication is that they are relied upon. Although Harry is right - we've seen cases where court insists on the exact verbiage that establishes case law.

Other affidavits were mentioned. Perhaps all, in total, cover the required bases. Biggest hurdle is that, in most cases, judge will look at the statements and ask "is this you?" At that point it's either game over, or try going all Beavis and Butthead and say "uh, no. It was some other kid."

I guess a small bit of good news is that we saw someone with a case in that area and the judge demanded way more than usual from the plaintiff. If that's the way they roll, there, then maybe hammering on the lack of the explicit "received, maintained and relied upon" verbiage will be compelling.

 

 

Share this post


Link to post
Share on other sites

Does the fact that their Motion for Summary Judgement was denied after I filed my Response to Summary Judgment help me at all or is that very insignificant to the case?

Share this post


Link to post
Share on other sites

It's a positive sign that the judge isn't prone to summarily give judgment to JDBs, but it could also mean he has a practice of not awarding SJ any time a party files an objection to SJ. Sometimes they just want to get everyone's version in person or they want to hear it from your mouth that this is in fact your debt before awarding judgment for the JDB.

Share this post


Link to post
Share on other sites

Best Egg is a lending platform created by Marlette Funding LLC, so these two are connected.  Cross River Bank is a commercial banking company that funds the loans. 

According to the Complaint, Cross River Bank sold the account to Absolute Resolutions.  The Bill of Sale, however, is between Marlette and Absolute Resolutions, signed by Marlette's COO on behalf of an entire list of sellers that includes Cross River.  There's no document and no affidavit that gives Marlette the authorization to transfer ownership on Cross River's behalf.

Did the Bill of Sale include an attachment that listed your name and account number?  This would have been for the purpose of showing your account was among the group of accounts that were sold.

Under section 16 of your agreement, Assignment of Your Loan, Marlette is responsible for keeping a record of assignments and the name and address of the holder of your loan.  Nothing here appears to give Marlette the power to transfer ownership.  Their role is described as a keeper of the records.

Share this post


Link to post
Share on other sites
29 minutes ago, LaneBlane said:

Best Egg is a lending platform created by Marlette Funding LLC, so these two are connected.  Cross River Bank is a commercial banking company that funds the loans. 

According to the Complaint, Cross River Bank sold the account to Absolute Resolutions.  The Bill of Sale, however, is between Marlette and Absolute Resolutions, signed by Marlette's COO on behalf of an entire list of sellers that includes Cross River.  There's no document and no affidavit that gives Marlette the authorization to transfer ownership on Cross River's behalf.

Did the Bill of Sale include an attachment that listed your name and account number?  This would have been for the purpose of showing your account was among the group of accounts that were sold.

Under section 16 of your agreement, Assignment of Your Loan, Marlette is responsible for keeping a record of assignments and the name and address of the holder of your loan.  Nothing here appears to give Marlette the power to transfer ownership.  Their role is described as a keeper of the records.

This is what they attached as the Bill of sale.

Bill of Sale.pdf

Share this post


Link to post
Share on other sites

Can't recall when, or where, but I think there was a case where an appeals court had a problem with them listing things like "attachments" that aren't included in their evidence. Not sure how asking for that at trial would work, though. I suspect a lawyer would have sought, in discovery,  everything mentioned in that b-o-s that wasn't already provided and argue that the record is woefully incomplete, as is?

Would take some serious skills, but would it be possible to act all serious, thumb through through the evidence, and say things like "can you help me here, I can't seem to find the 'forward flow' agreement that's mentioned in bill-of-sale."

 

 

Share this post


Link to post
Share on other sites
56 minutes ago, Ihatelawsuits said:

This is what they attached as the Bill of sale.

Bill of Sale.pdf

The first page of the Bill of Sale refers to accounts listed on the attachment and identified in the attached loan file(s).  This attachment is missing, so they haven't provided you with any documentation to show your account was part of the group of accounts included in the sale.

I still think there may be an argument concerning the fact that the Bill of Sale is between Marlette Funding LLC and the JDB.  Cross River Bank is the original creditor, not Marlette.  What document gave Marlette the power to step into the role of Cross River and transfer ownership on their behalf?  You'd have to see the Forward Flow Purchase and Sale Agreement.

 

Share this post


Link to post
Share on other sites
11 minutes ago, LaneBlane said:

You'd have to see the Forward Flow Purchase and Sale Agreement.

How do you figure? The bill of sale identifies Cross River as a seller, and Marlette as a servicer of Cross River. 

Share this post


Link to post
Share on other sites
47 minutes ago, Harry Seaward said:

How do you figure? The bill of sale identifies Cross River as a seller, and Marlette as a servicer of Cross River. 

It's my understanding that loan servicers are responsible for sending statements, collecting payments, and maintaining records.  It all depends on the agreement between the owner and the servicer. 

I believe it's reasonable to question whether Marlette, as a servicer, can legally enter into a Bill of Sale to transfer ownership of a group of accounts, worth a significant amount of money, owned by a different company.  In my opinion, there should be an affidavit confirming Marlette and their COO was authorized to enter into the Bill of Sale on behalf of Cross River

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.