Cavalry SPV1 summary judgement motion denied

[Adam1973]

Hi,

 

Cavalry SPV1 sued me in Circuit court for a debt I allegedly owed Citibank.  I raised Lack of Standing as my primary Affirmative Defense in my response to the complaint. Discovery back and forth with boilerplate responses from Cavalry.  They recently submitted motion for summary judgement. I responded to the motion with emphasis on Cavalry's failure to connect my specific account to a bill of sale they offer as assignment proof.  In their motion, Cavalry SPV trotted out an affidavit signed by a Cavalry Portfolio Services employee claiming to confirm debt attached to me, knowledge of Citi record keeping, etc.  The other affidavit was signed by an employee of OC, but failed to make any specific mention of my account. In a nutshell, I  objected that a CPS employee couldn't possibly attest to Citi record keeping or be used as a reliable affiant to confirm accuracy of my former account with Citi.  The Court agreed that a Cavalry employee couldn't testify that Citi business records were maintained pursuant to KRE 803(6).  The motion was denied.

I have a pre trial meeting soon regarding this case.  I'm not sure what to do next.  Should I submit a motion to dismiss, motion to compel discovery, motion for summary judgement or other???  I'd rather not attach documents since the case is currently in litigation. 

Any help or advice is greatly appreciated!!!! fyi...I asked for proof of assignment in Discovery and response was something like, 'discovery still ongoing see attached file' or some other useless response. I'm hoping it makes sense to push for some conclusion since Court concurred that proof of assignment has not been validated and Cavalry has danced around this for months. I don't think Cavalry will be able to pull in a Citi employee to testify that the 2016 account is accurate, but you never know....

Thanks a lot!   

[Harry Seaward]

10 minutes ago, Adam1973 said:

The Court agreed that a Cavalry employee couldn't testify that Citi business records were maintained pursuant to KRE 803(6).

Did you have a hearing where the court actually verbalized this specifically, or was it just one of your arguments and you're assuming the court agreed with this because the motion was denied?

[Adam1973]

We have not had a hearing.  A 3 page order signed by the judge was sent to plaintiff and I regarding the Court's findings.  It basically summarizes that Cavalry motioned for summary judgement, I objected due to reasons mentioned, plaintiff countered my response, and Court concluded Motion for Summary Judgement denied.  

The order in part states "the Rule requires a foundation be established for the documents by the custodian of records or other qualified witness who can competently testify that the documents satisfy all elements of KRE 803(6).  The Court agrees with Defendant that an employee of Cavalry , who was never an employee of Citibank, is not qualified to testify whether or not Citibanks records were created and maintained pursuant to KRE 803(6).  Consequently, Plaintiff's Motion is not well taken. Therefore, it is herby ordered and adjudged that Plaintiff's Motion for Summary Judgement is DENIED"

Thanks for asking!

[Adam1973]

Oh, I should mention that we never had an in person meeting regarding this.  If i understand correctly, the Court can and will consider some motions without bringing parties together.  Or I missed the motion hearing which seems unlikely since I'm constantly checking for court hearing updates. Anyway, this is from a signed Court order denying motion.  I just don't know if it should prompt me to take some action? 

[Harry Seaward]

You've won.  They aren't going to bring a Citi witness to trial.  They'll probably take the case to day of trial and try to scare you into a settlement the day of, but if you reject it, I'm sure they'll ask the judge to dismiss once you get into court.

Just FYI, you happen to have a very consumer friendly judge.  Most of the country is leaning toward "adoptive business records", which says that and employee of Business A can introduce records of Business B, provided the employee testifies the records were incorporated and relied upon (your affidavit probably says this).  For whatever reason your court isn't going along for the ride.

Congrats!

[Adam1973]

Thank you sir!  I hope this is true.  I'll update after in court appearance or trial. 

If this does end in my favor, it is especially unusual in Kentucky. Based on everything I've read, Kentucky courts are notoriously anti consumer.  I guess this makes sense as a strangely hardcore and super conservative Republican state.   

[Harry Seaward]

Yeah, politics are definitely a factor. It's almost impossible for a JDB to win in California. 

Texas seems to be an oddball. The courts there prefer trial over MSJ, and then have laws that prohibit wage garnishment on judgments.

Anyway, well done, and don't be surprised if they decide to dismiss even before your trial. 

[Goody_Ouchless]

803(6) is the standard adoptive business record verbiage we see everywhere, so either their affidavits were really shoddy or the judge dropped the ball.

"A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

Perhaps Italics (mine) gave judge an "out."

[Harry Seaward]

@Goody_Ouchless the judge's finding was that a Cavalry employee could not provide 806(3) testimony regarding Citi's records. Kentucky doesn't seem to have moved into the 21st century with regards to 3rd party business records. I couldn't find any Parker equivalent caselaw there. 

[NormInGeorgia]

2 hours ago, Harry Seaward said:

@Goody_Ouchless the judge's finding was that a Cavalry employee could not provide 806(3) testimony regarding Citi's records. Kentucky doesn't seem to have moved into the 21st century with regards to 3rd party business records. I couldn't find any Parker equivalent caselaw there. 

 

In other words, the Junk Debt Collectors have not yet paid off enough Kentucky politicians to change the state laws about 3rd party records.   LOL  !

[Harry Seaward]

2 minutes ago, NormInGeorgia said:

 

In other words, the Junk Debt Collectors have not yet paid off enough Kentucky politicians to change the state laws about 3rd party records.   LOL  !

There aren't too many states that I'm aware of that have statutes devoted to 3rd party records admission. It's mostly courts applying common sense in an era driven by technology. 

[Adam1973]

A follow up question.  I have another case in litigation that is very similar.  It is a suit brought by the same jdb -Cavalry Spv1, in same Circuit Court, same OC (but different credit card account).  The Complaints were submitted a couple weeks apart but the plaintiff's evidence is nearly identical to that which was just deemed insufficient (at least for Summary Judgement).  The accounts were allegedly purchased in the same batch of junk debt.  As such, the same bill of sale was attached to the separate complaints. 

This suit is in Discovery and is dragging some weeks behind the one discussed above.  Both suits were originally submitted in early 2018 with much inactivity between small flurries of ineffective Discovery.  Then at the end of 2018, plaintiff pushed motions for summary judgement on both accounts.  As soon as I submitted my response/objection discussed above, Cavalry fired off a motion for summary judgement on this other account.  About 5 days after submitting motion for summary judgement on the 2nd account, Cavalry withdrew the motion.  I was honestly relieved despite already spending hours tapping away at another motion response. Cavalry would not have known that the Court would rule in my favor when they pulled the plug on the motion.  I'm guessing their strategy has been to overwhelm me to some extent.  The Complaints, Discovery requests, and motions were staggered to ensure I always had a responsive deadline hanging over my head. 

Assuming I win the case discussed earlier, shouldn't this mean that the same argument regarding insufficient records foundation should squash the 2nd case?  Would it make sense to ride this wave of unexpected court support and push for summary judgement on the 2nd suit?  

Thanks for commenting!

  

[FUCavalry]

@Adam1973 @Harry Seaward

Good luck!

[Clydesmom]

7 hours ago, FUCavalry said:

@Adam1973 @Harry Seaward

Hello, I am in a similiar scenario in california as I look over the documents sent to me as alleged proof of debt. There is an affidavit of sale signed by alleged OC stating that a pool of accounts were purchased. There is also a bill of sale attached signed by OC that identifies the purchase of a coded electronic file with no mention of who the file is attached too. Also attached is a page that references the coded electronic file with info identifying me as the person the debt allegedly belongs to including specific account info but I think this was generated by cavalry. Im answering request for admissions and request for production of docs and expect the next move to be similiar to what is described in this thread. Any suggestions on what I need to do?

You need to start your own thread. The laws in California are VERY different than Kentucky where the OP in this thread is from. You also do not want to hijack his thread or confuse anyone who might think that the laws are the same in both states.

[FUCavalry]

13 minutes ago, Clydesmom said:

You need to start your own thread. The laws in California are VERY different than Kentucky where the OP in this thread is from. You also do not want to hijack his thread or confuse anyone who might think that the laws are the same in both states.

I did make a thread last month but unfortunately nobody responded. I have been able to get some great help thanks to this site and some of its wonderful members. I will edit my response and appreciate the heads up. 

[Goody_Ouchless]

On 3/14/2019 at 9:00 AM, Goody_Ouchless said:

A ... record, or data compilation, in any form, ... made at or near the time ... from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the ... record... as shown by the testimony of the custodian.

Chopping out extraneous verbiage and the plaintiff's custodian can clearly speak to the OC's records. I wonder if the word "testimony" is where things got hung up - like the judge is fine hearing from this person, but will not grant MSJ on an affidavit. Or perhaps the affidavit was lacking in that it didn't quote the statute. Or they really are just behind the times.

 

[Harry Seaward]

31 minutes ago, Goody_Ouchless said:

plaintiff's custodian can clearly speak to the OC's records.

Yes, they can, but trial courts aren't obligated to do so. 

Evidence admission is nearly 100% discretionary. We've seen JDBs appeal these kinds of rulings with appellate courts finding that just because the judge in courtroom A admitted such and such evidence doesn't mean the judge in courtroom B must admit identical evidence.

[Harry Seaward]

...Although, it would have been better if the judge had found some "thing" about the records themselves that he found to be untrustworthy.

[Adam1973]

Thanks for the feedback and support with this.  If all goes well, I'm happy to share all the case documents.  My response was crafted (err...mostly copied) from someone who was able to get their case dismissed in a different state.  The guy skillfully dismantled what i assume is Cavalry's template for summary judgement motion.  Sued in a different state with different law firm representing Cavalry, yet the documentation and wording of plaintiff's motion, affidavits, etc. are nearly identical.   All I had to do was exchange his state's court citations with similar rulings in Ky.  I wouldn't consider attaching my response without linking to and crediting the guy who actually wrote it.  Maybe a decent tool for others to use against Cavalry.

As Goody_Ouchless mentioned, I do think some specific wording or words were key to justify denial of the motion.  With more info, I'm sure Harry Seaward and Goody could quickly identify these elements.  At best, the argument against summary judgement could be legally sufficient for an empathetic judge to deny summary judgement.   

If screwing consumers in favor of creditors was considered progressive and innovative, then Kentucky would be the Elon Musk of states.  Kentucky is one of the worst states for debt collection defendants.  I assume this is because a relatively poor state will gladly sacrifice its residents to please and attract corporate interests.