Miss Abbie

Cavalry is Suing Me, Free Attorney Not Much Help

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On 2/23/2019 at 11:59 PM, Harry Seaward said:

There is no requirement for an affidavit to be cross examined to be admitted as a business record. 

Even without the Citi affidavit, Cavalry's witness can introduce Citi's business records as their own.

"While we agree that the mere filing of papers received from other entities is insufficient to qualify the documents as business records, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures,
or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business"

State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD 3d 1293 - NY: Appellate Div., 3rd Dept. 2012

Your reliance on this case law is misplaced, and it actually supports OP's position..

First, affidavits themselves are not business records. Business records are tangible business documents like receipts, check books, intake forms, etc., An affidavit will be needed by someone with personal knowledge to authenticate that record. Could they use the Citi affidavit to support a summary judgment motion? Yes, could they use that affidavit at trial, no. That Citibank person would have to fly up from Missouri. 

Thus, at trial, Cavalry will need a live in person witness from Citibank to testify as to authentication of the statements because as you noted "the mere filing of papers received from other entities is insufficient to qualify the documents as business records." So Calvary needs (i) a witness from Citibank at trial, or a witness at Calvary who has personal knowledge of Citibank's practices (which they clearly will not have) or (ii) that the records are incorporated in their owns records or routinely relied upon.

As to incorporation, the type of records those would be are say like explanations of benefits provided by health insurers to medical providers. The EOB is not a business record of the healthcare provider, but many healthcare providers adopt those records as proof as what the patient owes them and as proof of what the insurer paid on the claim. That's the type of record meant to be incorporated. Not statements from a credit card purchaser to a JDB. 

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On 2/23/2019 at 5:51 PM, Miss Abbie said:

Thank you all for bearing with me. I have attached the files you requested in PDF form (let me know if you want the individual images). The light blue marks is stuff I scribbled out for privacy. Please excuse the writing you see on the documents, that was me taking notes and pointing out flaws I was told to look for. Other than that, what you see is everything Cavalry submitted.

By the way, Harry Seaward, I no zero desire to fight. None at all. I am unknowledgeable and afraid of losing. I have to fight only because I cannot afford to lose. I’m sure you’ve heard it all in your years here, but I am truly fighting for what few crumbs me and my daughter have left. As I said, at 17 she was diagnosed with a rare form of leukemia (AML Type 6) and with that went her health, my job… our livelihood. I started a business last year to try and climb out of poverty and made a whopping $10,000. My rent is $968 month, so you do the math. LOL. I simply can’t afford not to fight or worse, have a judgement issued against me. 
 

A-1-converted.pdf

Also Citi's affidavit you attached here does not qualify the records they provided.

"Although plaintiff's agent averred that the spreadsheet was kept in the regular course of business and that the entries therein were made in the regular course of business, the agent did not establish that he was familiar with plaintiff's business practices or procedures, and he further failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made" (see CPLR 4518[a]; West Val. Fire Dist. No. 1, 294 A.D.2d at 950)

I do not see any facts in Citi's affidavit that establish when, how, or by whom the electronic spreadsheet submitted in paper form was made.

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23 minutes ago, usctrojanalum said:

Also Citi's affidavit you attached here does not qualify the records they provided.

"Although plaintiff's agent averred that the spreadsheet was kept in the regular course of business and that the entries therein were made in the regular course of business, the agent did not establish that he was familiar with plaintiff's business practices or procedures, and he further failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made" (see CPLR 4518[a]; West Val. Fire Dist. No. 1, 294 A.D.2d at 950)

I do not see any facts in Citi's affidavit that establish when, how, or by whom the electronic spreadsheet submitted in paper form was made.

I see a difference in the OP’s lawsuit and the cited rulings.  The affidavits in West Valley and Palisades were testimonies of those other than agents of the businesses that had created the records.  

From West Valley:

“Here, the invoice was admitted during the testimony of a fire commissioner who received the invoice in his capacity as a fire commissioner for plaintiff; he was not an employee of the repair company that issued the invoice.”

From Palisades:

“Although plaintiff's agent...”

The plaintiff was a debt buyer.

In the OP’s case the affidavit is from an employee of Citibank, the original creditor.   

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1 hour ago, usctrojanalum said:

Could they use the Citi affidavit to support a summary judgment motion? Yes

Judgment for the Plaintiff. 

Quote

An affidavit will be needed by someone with personal knowledge to authenticate that record.

No, it won't. Otherwise the entire banking industry would screech to a halt. See my "Walmart" example above. And the part of the caselaw I quoted, and that you re-quoted but ignored despite my emphasis to draw your attention to it, that says Citi's records can be admitted by Cavalry provided Cavalry can show the records were incorporated into their own or relied upon. Not a very difficult bar to huddle. 

I'm curious why you would advocate for sending a consumer down a path of uncertainty, at best, before taking a shot at arbitration which thus far has been 100% effective against JDBs.

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Okay, somehow, my post from about an hour ago seems to have vanished or maybe I posted it wrong. Either way, here it is again, and thank you all for the continued conversation. I’m reading it all.

I’ve ran into a roadblock. As I had intended to go down to CLARO today and have them look over the MTC, I wrote, I remembered they only work on Thursdays from 3-6. Now, because I don’t want to spend the next few days doing nothing, do I forget CLARO and take a chance with the MTC I have written up, which is almost identical to the sample posted here, sans the obvious changing of dates, names, and one paragraph I altered. Do I submit my MTC to the court today and risk it being rejected because of bad structuring or silly errors?

Also, the Sample MTC says I’ve already sent a copy of the MTC to the Plaintiff via certified mail, which I haven’t. Do I do that today as well? Do I send a possibly faulty looking MTC to the opposing side, tipping my hand and possibly exposing my own foolishness?

Also, shouldn’t my MTC have my court info at top, for example Cavalry vs My Name and my Docket Number?  And further down the document, should I replace the words “Plaintiff” with Cavalry and Defendant with My Name?

Oh yeah, my court date is this week, not the 6th. Didn't want to give away too much info here, never know who is gawking.

:)

Edited by Miss Abbie
Added more info

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1 hour ago, BV80 said:

I see a difference in the OP’s lawsuit and the cited rulings.  The affidavits in West Valley and Palisades were testimonies of those other than agents of the businesses that had created the records.  

 

It is a difference, but not one that matters here. The affidavit from OC's employee still needs to say who what when where why and how. It does not. 

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13 minutes ago, Miss Abbie said:

Okay, somehow, my post from about an hour ago seems to have vanished or maybe I posted it wrong.

You posted it Fisthardcheese's  Arbitration Overview and Strategy thread. Harry Seaward has responded that you should post your draft MTC arb here for comments and then file.

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1 hour ago, Harry Seaward said:
Judgment for the Plaintiff. 

No, it won't. Otherwise the entire banking industry would screech to a halt. See my "Walmart" example above. And the part of the caselaw I quoted, and that you re-quoted but ignored despite my emphasis to draw your attention to it, that says Citi's records can be admitted by Cavalry provided Cavalry can show the records were incorporated into their own or relied upon. Not a very difficult bar to huddle. 

I'm curious why you would advocate for sending a consumer down a path of uncertainty, at best, before taking a shot at arbitration which thus far has been 100% effective against JDBs.

Judgment not guaranteed for plaintiff - Citi's affidavit is conclusory with no supporting facts.

I read the case law you cited (which is not binding on the trial court where the defendant is being sued anyway), I understand it, you are misapplying it. 

There needs to be a back up plan quite honestly. The fact that it's not in her answer and there have already been court dates likely means arbitration has been waived. OP's plan really should be to file a motion to amend her answer to add the defense.

Lastly, I've also handled these cases as an extern and the attorney who I worked under never lost. Going through the NYC Civil Court system is easier and will likely lead to a better result.

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55 minutes ago, Brotherskeeper said:

You posted it Fisthardcheese's  Arbitration Overview and Strategy thread. Harry Seaward has responded that you should post your draft MTC arb here for comments and then file.

Okay, I don't know how on Earth I've made that mistake twice. But here is my Motion to Compel attached below and what I originally said.

Please excuse my clumsiness, I'm getting ready to leave and go to the post office and courthouse.

 

-------------------------

I’ve ran into a roadblock. As I had intended to go down to CLARO today and have them look over the MTC, I wrote, I remembered they only work on Thursdays from 3-6. Now, because I don’t want to spend the next few days doing nothing, do I forget CLARO and take a chance with the MTC I have written up, which is almost identical to the sample posted here, sans the obvious changing of dates, names, and one paragraph I altered. Do I submit my MTC to the court today and risk it being rejected because of bad structuring or silly errors?

Also, the Sample MTC says I’ve already sent a copy of the MTC to the Plaintiff via certified mail, which I haven’t. Do I do that today as well? Do I send a possibly faulty looking MTC to the opposing side, tipping my hand and possibly exposing my own foolishness?

Also, shouldn’t my MTC have my court info at top, for example Cavalry vs My Name and my Docket Number?  And further down the document, should I replace the words “Plaintiff” with Cavalry and Defendant with My Name?

----------------------------------------

MOTION TO COMPEL.docx

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On 2/23/2019 at 4:44 PM, Miss Abbie said:

How can I defend myself against a debt I agreed was mine? I’m defenseless.

Sorry for being late to the party, but this is the reality that you need to start with. Instead of worrying about "standing" and "redacted" documents, you need to start fro the position that Cavalry bought and paid for a debt that you incurred. All of the facts are already on their side.

 

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22 hours ago, usctrojanalum said:

Lastly, I've also handled these cases as an extern and the attorney who I worked under never lost.

So he's going to represent OP?

Quote

you are misapplying it.

It seems plain as day to me, but if you have some more recent caselaw that contradicts my interpretation,  I'll be glad to read through it. 

Quote

here needs to be a back up plan quite honestly.

I completely agree and yours is as good as it gets in terms of backup plans, but that's not how you started out in this discussion.

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2 hours ago, Miss Abbie said:

Okay, I don't know how on Earth I've made that mistake twice. But here is my Motion to Compel attached below and what I originally said.

Please excuse my clumsiness, I'm getting ready to leave and go to the post office and courthouse.

 

-------------------------

I’ve ran into a roadblock. As I had intended to go down to CLARO today and have them look over the MTC, I wrote, I remembered they only work on Thursdays from 3-6. Now, because I don’t want to spend the next few days doing nothing, do I forget CLARO and take a chance with the MTC I have written up, which is almost identical to the sample posted here, sans the obvious changing of dates, names, and one paragraph I altered. Do I submit my MTC to the court today and risk it being rejected because of bad structuring or silly errors?

Also, the Sample MTC says I’ve already sent a copy of the MTC to the Plaintiff via certified mail, which I haven’t. Do I do that today as well? Do I send a possibly faulty looking MTC to the opposing side, tipping my hand and possibly exposing my own foolishness?

Also, shouldn’t my MTC have my court info at top, for example Cavalry vs My Name and my Docket Number?  And further down the document, should I replace the words “Plaintiff” with Cavalry and Defendant with My Name?

----------------------------------------

MOTION TO COMPEL.docx

The content of your MTC is good. You do need to send a letter to opposing counsel either before you file the MTC or at the same time (same day is fine).

As far as formatting, it should be laid out just like the complaint.

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Just a quick update on my case.

First let me start by saying that what happened in this thread is exactly what happens to ppl who don’t have lawyers in real life. There are competing opinions with everyone you come across and it can be a strain knowing where to go and what to do.

But, I eventually filed a motion to amend my answer to include Arbitration as a possibility.

That won’t be heard until later this week.

My on-going case has also been pushed back until that same date.

As for Arbitration, AAA has refused to arbitrate with Cavalry until there is a court order.

By the way, I have thought of another plan of action similar to Arbitration. It came to me while listening to a lawyer try and bully a woman into $35 a month, rather than the $25 she was offering. She refused and said she wanted a trial, at which point the opposing lawyer nearly had a fit. It dawned on me that much like Arbitration, a trial will cost a debt buyer goo-gobs of money.

I followed that lady into the hallway and she told me she’d been sued before and went for her trial date, but the lawyer never showed and her case was dismissed. So, I’m thinking, whether Arbitration or Trial, both I’ll be prepared for, I’m really not in that much of a pickle, as both are costly to the debt buyer and they’ll most likely quit or settle for an amount of money I’m fine with, which includes the stipulation of removing the debt from my credit report.

Thoughts?

Also, this forum is throwing off this error message for me while logged in on Chrome/Windows computer. It kept me from being able to log in for weeks. Just on a hunch I tried again today and was able to post.

[[Template forums/front/topics/topic is throwing an error. This theme may be out of date. Run the support tool in the AdminCP to restore the default theme.]]

 

Capture.PNG

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3 hours ago, Miss Abbie said:

It dawned on me that much like Arbitration, a trial will cost a debt buyer goo-gobs of money.

No it won't.  First Cavalry likely hired this law firm on an annual fee for a specified number of cases.  It costs them nothing extra if you go to trial.  Second:  their business model is built on the 95% default judgment rate.  The minute amount of money they might spend on your case is more than offset by the profit margin in the default judgments.  Third:  if they prevail in court the costs for the court and attorney are included with the judgment so YOU pay it.

It will not cost them "goo gobs" of money to sue you in court.   Common misconception that gets many consumers in trouble defending themselves in court.

4 hours ago, Miss Abbie said:

I’m really not in that much of a pickle, as both are costly to the debt buyer and they’ll most likely quit or settle for an amount of money I’m fine with, which includes the stipulation of removing the debt from my credit report.

DO NOT get your hopes up that they will simply quit because you defended.  You could get lucky and they do but it won't be based on costs that is for sure.  A granted MTC for arbitration will get them to back down because that forum IS more expensive for them and in AAA they cannot pass the expense on to you in the award.

DO NOT compare your situation to someone else in court.  You are only getting their version which is tainted and there is no way you can verify your situation is absolutely identical to theirs.  You are letting this distract you instead of doing the work to be prepared.  BIG mistake.

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Thank you for the eye-opener, Clydesmom.

 

I've still got my eye on the Arbitration prize. I'm not distracted, was just feeling hopeful that if Arbitration wasn't granted the plaintiff would back down because of the cost of a trial.

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46 minutes ago, Miss Abbie said:

I'm not distracted, was just feeling hopeful that if Arbitration wasn't granted the plaintiff would back down because of the cost of a trial.

WHAT cost?  They already paid to file. The law firm has already been hired and you have been served. There are no other costs of going to trial.  

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Because I could not reach this site for sometime, due to an error message I see quite a few other people had as well, I haven't been able to seek assistance since I was last in court, which was a month ago.

A few days before I returned for my last court date I filed a motion to amend my answer to include Arbitration. That motion will be heard this week.

I have yet to file the  actual Motion to Compel Arbitration believing I needed to first have the Amended Answer Motion heard first.
My question is, was this the right course of action?  Should I file the Motion to Compel before my next court date?

Thank you :)

6 minutes ago, Clydesmom said:

WHAT cost?  They already paid to file. The law firm has already been hired and you have been served. There are no other costs of going to trial.  

I did not know this. I've always heard debt buyers don't like to go to trial and often don't show up for petty sums of money.

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12 hours ago, Clydesmom said:

WHAT cost?  They already paid to file. The law firm has already been hired and you have been served. There are no other costs of going to trial.  

Witnesses having to come to court and miss work time to testify is a cost. Even if it's not a direct financial one. 

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19 hours ago, Miss Abbie said:

By the way, I have thought of another plan of action similar to Arbitration. It came to me while listening to a lawyer try and bully a woman into $35 a month, rather than the $25 she was offering. She refused and said she wanted a trial, at which point the opposing lawyer nearly had a fit. It dawned on me that much like Arbitration, a trial will cost a debt buyer goo-gobs of money.

I followed that lady into the hallway and she told me she’d been sued before and went for her trial date, but the lawyer never showed and her case was dismissed. So, I’m thinking, whether Arbitration or Trial, both I’ll be prepared for, I’m really not in that much of a pickle, as both are costly to the debt buyer and they’ll most likely quit or settle for an amount of money I’m fine with, which includes the stipulation of removing the debt from my credit report.

Thoughts?

[[Template forums/front/topics/topic is throwing an error. This theme may be out of date. Run the support tool in the AdminCP to restore the default theme.]]

This is because a JDB likely can't win at trial. 

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2 hours ago, usctrojanalum said:

Witnesses having to come to court and miss work time to testify is a cost. Even if it's not a direct financial one. 

It isn't "goo gobs" of money and most Plaintiffs don't schedule a witness for one trial. They book several for one day or load several trial days into one week to maximize the financial damage of the costs.  Even so if they are awarded costs in a verdict they get that expense back. It is not an automatic deterrent to going to trial.

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File your MTC right now!  Do not wait on this.

I am pretty sure the amended answer was not even needed, from page 1, @Brotherskeeper cited a law or ruling from NY that showed arbitration is not waived just because it is not mentioned in an answer.

In my opinion, you have really bogged yourself down with so many extra, incidental and unnecessary things that have taken you way from the ONE and ONLY thing you need to do here and that is a file an MTC.

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3 hours ago, fisthardcheese said:

I am pretty sure the amended answer was not even needed, from page 1, @Brotherskeeper cited a law or ruling from NY that showed arbitration is not waived just because it is not mentioned in an answer.

Actually, the amazing @BV80 posted the case cites. 

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Went to court today and my CLARO attorney tried to get my case dismissed because my income can't be garnished. The opposing attorney declined to dismiss but did not oppose my Motion to Amend my answer. I now have to return to court again next month for my MTC to be heard. Is there anything in particular I should do in between now and then? Also how should I "argue" my MTC before a judge because I get the feeling a CLARO attorney might decline to represent me on my next court date?

My CLARO attorney for the today rallied hard against my decision to seek Arbitration. She laughed, told me it made no sense and attempted to talk me out of it and set a Trial date instead. The attorney also told me to submit proof of my income to the opposing side, but I did that already. I sent it certified mail. Should I just do it again?

 

Thank you everyone for your continued help with my case. :)
 

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6 minutes ago, Miss Abbie said:

My CLARO attorney for the today rallied hard against my decision to seek Arbitration. She laughed, told me it made no sense and attempted to talk me out of it and set a Trial date instead. The attorney also told me to submit proof of my income to the opposing side, but I did that already. I sent it certified mail. Should I just do it again?

Should you do it again?  This attorney has been wrong about everything so far, while the people helping in this thread have been correct so far.  If this were me, I would not follow anything else this attorney says (again).  Why would proof of your income matter if the other side already said they would not entertain a dismissal based on your inability to be garnished?  Judgements are good for a very, very long time.  These companies know this and they don't care about your current income.  They will make sure to get a judgement so they can grab anything you may end up with in the future.

As a side note, after you file the MTC and get it granted and then Cavalry dismisses your case, you can call this attorney back up and laugh at HER and tell her she better study up better on consumer debt cases.

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