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40 minutes ago, LaneBlane said:

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

The bill of sale is signed "attorney in fact", and the affidavit certifies that this is correct. One could make the argument that I did which is that the affidavit doesn't identify specific documents that were reviewed.

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20 hours ago, Harry Seaward said:

The bill of sale is signed "attorney in fact", and the affidavit certifies that this is correct.

I didn't see anything that appeared to be an affidavit.  I must have overlooked it.

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6 hours ago, LaneBlane said:

I didn't see anything that appeared to be an affidavit.  I must have overlooked it.

 

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On 2/8/2019 at 9:29 PM, Harry Seaward said:

 

Thanks for pointing me to the affidavit.

You had mentioned the Bill of Sale is signed "Attorney in Fact," and the Affidavit certifies this is correct.  I don't see this on the Affidavit.  Under #2, it says the Affiant is authorized to make an oath for the Plaintiff.  The Affiant is with the JDB, not the loan servicer.  In fact, the Affidavit doesn't mention the Bill of Sale at all.

In my opinion, the OP could attack the Bill of Sale because there's no Power of Attorney document to show the loan servicer was authorized to act as the "Attorney in Fact."  I also didn't see an attachment to the Bill of Sale that identifies the OP's account as being among the accounts sold.

The argument you recommended is a strong one.  The Affidavit seems wholly inadequate when it comes to identifying specific records. 

 

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2 hours ago, LaneBlane said:

You had mentioned the Bill of Sale is signed "Attorney in Fact," and the Affidavit certifies this is correct.  I don't see this on the Affidavit.

The affiant testified under oath that she had reviewed the books and records of the plaintiff. I'm sure the court will recognize the bill of sale as part of plaintiffs records. 

 

2 hours ago, LaneBlane said:

In fact, the Affidavit doesn't mention the Bill of Sale at all.

Yes, this is a problem for them, assuming the court is looking for having every i dotted and t crossed. Not all of them do, and then, because evidence admission is highly discretionary, it's anyone's guess as to how it would turn out on appeal. 

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This Colorado case explains the true relationship of Marlette dba Best Egg and Cross River Bank:

MEADE v. MARLETTE FUNDING LLC

Plaintiff is the Colorado state official charged by law with enforcing Colorado's Uniform Consumer Credit Code ("UCCC"). Colo. Rev. Stat. § 5-6-104(1)(g). In her official capacity, plaintiff can bring civil actions against creditors to enforce the UCCC's provisions. Colo. Rev. Stat. § 5-6-114.

Defendant, which does business under the name "Best Egg," is a Delaware limited liability company that is licensed by plaintiff as a Colorado supervised lender. Docket No. 5 at 2, ¶¶ 2-3. Defendant markets loans to Colorado consumers through a website and by mailings. Id. at 2-3, ¶¶ 7, 14. The loans are made in partnership with Cross River Bank, a New Jersey state-chartered bank. Id. at 4, ¶ 24. The loan agreements identify Cross River Bank as the entity making the loans, but approximately 90% of the loans are sold to defendant and defendant's designees within two days of when the loans are made. Id., ¶¶ 25-26. Plaintiff further alleges that "Cross River Bank does not bear the predominant economic interest in such loans" because defendant pays the costs associated with the lending partnership and "Cross River Bank bears no risk that it will lose its principal in the event that consumers default." Id. at 5, ¶ 32. Therefore, plaintiff argues, defendant and the other loan purchasers are the "true lender." Id. at 6, ¶ 33. Plaintiff alleges that a "primary purpose of Cross River Bank's involvement is to allow Marlette and other non-banks to circumvent state laws, including Colorado laws, that limit the interest rates and other finance charges that may be assessed." Id. at 4, ¶ 27."

[snip]

". . . As in Avant, plaintiff sufficiently alleges that defendant is the "true lender" because defendant "provides the website through which customers apply for the [Cross River Bank] Loans, [defendant] develops the criteria for making loans, [defendant] decides which applicants will receive the loans, and [defendant] (or its affiliates) purchases the loans within two days after they are made." Avant, 2018 WL 1101672, at *10; see also Docket No. 5 at 2, ¶ 7 ("Consumers can apply for and obtain Best Egg Loans via a website that is owned and operated by Marlette.") and at 5-6, ¶¶ 32-33."

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Went to court on Monday and it was Dismissed Without Prejudice.  So I assume it will be coming back around again sometime but glad it is over for now.  I went to the courthouse and the Opposing Attorney, of course not the same lawyer on all the documents, arrived and tried to get me to settle.  Slight discount at a lump sum or full amount over time.  I told him no, we are going to trial and he left me along while we waited.  I pretended to read my notes and wrote down a few things so he wouldn't try to talk to me again.  I like to think I scared him by looking all prepared. LOL  We went into the court room and he stated they were dismissing the case without prejudice and that was that.

Thanks for all the help, there is a lot of really good information in this thread!

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45 minutes ago, Ihatelawsuits said:

No explanation at all.  Was very strange.  Guess they were hoping I would be scared and would settle.  Does this happen a lot?

I just found your previous thread on their MSJ, denied by your judge due to issues of material fact. IIRC, one of those material facts may have been that plaintiff, as @BV80 astutely noticed, never alleged in the complaint, affidavit, or MSJ that it purchased the account in question. Was this ever cured by trial date? If not, lack of standing to bring the suit would likely have been fatal at trial. Congratulations on the dismissal! 

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56 minutes ago, Ihatelawsuits said:

Does this happen a lot?

No. Especially on a debt of this amount. I'm guessing they knew that the affidavit was insufficient, and they didn't spend the money for a live witness. It's strange that they didn't spend another 15 or 20 minutes to go ahead and take a stab at a trial since they bothered to show up for court in the first place.

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1 hour ago, Ihatelawsuits said:

No explanation at all.  Was very strange.  Guess they were hoping I would be scared and would settle.  Does this happen a lot?

Something seems to have changed - I can't recall the last time we saw an actual trial. Even the names of the law firms look different. A few years ago it was reported that there was a glut of lawyers and that those without jobs were taking $20 gigs off Craigslist. Perhaps this has led to another change in the model - competent lawyers have left the market, because there's no money, and debt buyers have adjusted to paying bare minimum on a "Default Judgment -> Settlement -> Dismiss" model. It's like they have all the evidence they need, but rock bottom legal fees don't allow any time for the plaintiff's lawyer to even review that evidence.

Anyway - you won and they won't come after you again. They have hundreds more default judgments to process. Congrats!

EDIT: I agree with Harry on being mystified why they wouldn't just take a shot, unless it really is a case where they are unable to put any time into the actual case and maybe have been warned about showing up in court totally unprepared.

 

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11 minutes ago, Brotherskeeper said:

I just found your previous thread on their MSJ, denied by your judge due to issues of material fact. IIRC, one of those material facts may have been that plaintiff, as @BV80 astutely noticed, never alleged in the complaint, affidavit, or MSJ that it purchased the account in question. Was this ever cured by trial date? If not, lack of standing to bring the suit would likely have been fatal at trial. Congratulations on the dismissal! 

Nope, never cured.  Thanks for the congrats, I am really relieved!!  I thought for sure I was going to lose.

 

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1 minute ago, Ihatelawsuits said:

I thought for sure I was going to lose.

Better this than what we usually see, which is defendants that are way overconfident and then get slaughtered in court.

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6 minutes ago, Goody_Ouchless said:

Something seems to have changed - I can't recall the last time we saw an actual trial. Even the names of the law firms look different. A few years ago it was reported that there was a glut of lawyers and that those without jobs were taking $20 gigs off Craigslist. Perhaps this has led to another change in the model - competent lawyers have left the market, because there's no money, and debt buyers have adjusted to paying bare minimum on a "Default Judgment -> Settlement -> Dismiss" model. It's like they have all the evidence they need, but rock bottom legal fees don't allow any time for the plaintiff's lawyer to even review that evidence.

Anyway - you won and they won't come after you again. They have hundreds more default judgments to process. Congrats!

The guy that showed up did not look like a real attorney.  Sloppy dress and scuffed shoes.  The original attorney is from West Virginia and that is 4 hours away.

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5 minutes ago, Harry Seaward said:

Better this than what we usually see, which is defendants that are way overconfident and then get slaughtered in court.

I was expecting the slaughter but I was going to go down fighting after meeting the guy who showed up to oppose the case. 

 

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2 minutes ago, Ihatelawsuits said:

The guy that showed up did not look like a real attorney.

He was their Hail Mary guy. His orders were to get a settlement or forget about getting paid.

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8 minutes ago, Goody_Ouchless said:

A few years ago it was reported that there was a glut of lawyers and that those without jobs were taking $20 gigs off Craigslist.

While that was true to a small extent most of that was merely speculation on the former DB board to explain why consumers could win a case.  The reality is much more basic and we recognize it now.  Used to be they could send in a rent-a-lawyer to handle the cases because 98% were a default judgment.  No legal maneuvering or evidendce required.  For the small percentage that DID fight the attorney was not given anything to actually try the case and therefore let it go or did not fight hard.  Currently large collection firms will typically send the newest associate with little trial experience straight out of law school vs. a higher priced senior partner.  It does not mean the newbie won't be a good attorney it is that they are not experienced YET.  Are some lawyers who show up dumb as rocks?  Sure.  That happens in EVERY profession and the law is no different but to assume all lawyers who try debt collection cases are stupid is a big mistake.  Never underestimate your opponent. The best way to win is to plan as though they are the most skilled then steam roll them.  

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18 minutes ago, Goody_Ouchless said:

EDIT: I agree with Harry on being mystified why they wouldn't just take a shot, unless it really is a case where they are unable to put any time into the actual case and maybe have been warned about showing up in court totally unprepared.

Since a dismissal without prejudice isn't a decision on the merits, aren't they allowed to still report this debt to the CRA's? If  Ihatelawsuits needs to clean up the reports in the future, it at least allows the possibility for a settlement down the road.

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4 minutes ago, Brotherskeeper said:

Since a dismissal without prejudice isn't a decision on the merits, aren't they allowed to still report this debt to the CRA's?

Yup.  It is their best weapon outside the courts.  They count on the consumer wanting or needing credit and having to deal with them.

 

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5 minutes ago, Clydesmom said:

It does not mean the newbie won't be a good attorney it is that they are not experienced YET. 

I'm not buying this argument. They certainly don't get any experience dismissing the case at the first sign of resistance. If the goal is to make them good, make them try the losers so they know what it takes to win. 

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1 hour ago, Harry Seaward said:
 

I'm not buying this argument. They certainly don't get any experience dismissing the case at the first sign of resistance. If the goal is to make them good, make them try the losers so they know what it takes to win. 

I have to agree with Harry here. If indeed this is a case of a law firm sending their newest associate, then you would think they would at least allow them to fight and get that experience. I don't think that is the case here. I think it is about money. The JDB pays the lawfirm a set amount per case regardless of the outcome. If the hourly amount is $200 and the JDB pays $1500/case, that is not even enough for the law firm to send an attorney for a 4 hour drive. More likely, this is a case of the law firm renting an attorney in the area for as cheap as possible and giving the attorney enough information to either get a settlement or dismiss. There is still a glut of lawyers and law schools that needs to be weeded out. All the law office has to do is tell the JDB that they were not given enough evidence to win. Would be their word vs. the JDBs on that and the law office will still collect the $1500 fee.

Also, unless the case is a 5-figure case, most JDBs are not going to want to spend too much money on a 4-figure debt unless it will be a slam dunk win. In this case, they JDB probably spent between $300 - $700 for the debt and with the attorneys fees, are at $1500. That puts them $2000 in on a $8000 debt. Too much more and it will eat into their profit. Besides, the will collect on the other 98 - 99 debtors who did not fight which will more than make up for the $2000 they spent on this debt. They will also probably sell this debt for about $200.

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4 hours ago, Harry Seaward said:

They certainly don't get any experience dismissing the case at the first sign of resistance.

You are assuming those are the only cases they do.  While there are some law firms that specialize only in debt collection most law firms are multi-faceted and assign associate attorneys to a variety of cases to get them up to speed on all areas the practice focuses on.  The associate has no more power to force it to trial against the orders of their boss than you do in defying your employer.  They are sent with clear instructions on what actions they can and cannot take.  If they come back with 15 trials they held against orders to dismiss under certain circumstances there is going to be fall out.  

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20 minutes ago, Clydesmom said:

If they come back with 15 trials they held against orders to dismiss under certain circumstances there is going to be fall out.

I wasn't suggesting the guys should go rogue. I was responding to your comment that the booter lawyer is chosen to represent the losing team in a forfeit because he has the least experience. That makes no sense.  They would tell him to have a crack at it to get some time behind the wheel since he's already driven 4 hours to get there. And he might win it. 

It's far more likely the guy that showed up has zero affiliation with the law firm of record, and since they have no vested interest in his career, he's got orders to settle and get 5%, or dismiss and get $20. 

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I would bet my bottom dollar that the lawyer did not have a witness.  Without a witness, they would only have you to call to the stand.  And while they might do a searing cross exam on you sufficient to establish the debt and non-payment, there is absolutely nothing you can say about assignment.  That is why plaintiff dismissed without even trying.

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