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Adam1973

Cavalry motion denied, trial date set, Cavalry intends to call witness

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Hi,

I posted previously regarding Circuit Court's denial of Cavalry SPV 1's Motion for Summary Judgement.  The Circuit Judge ruled that Cavalry records were inadmissible without a qualified witness from Citibank to validate records and assignment of the account.  Today we had the pre trial conference with the Judge.  The Judge asked if we're ready for and/or how long do we need before trial. Plaintiff's attorney didn't attempt to seek a settlement discussion.  She stated that Plaintiff was ready to proceed, 'since they only planned to call one witness'. 

This was a kick in the gut.  Trial date is set for July.  Do you think the witness is a bluff or will Plaintiff roll out someone qualified to testify on the assignment and account records? The claim is for roughly $12,000, so it seems like cost to produce a witness would be worthwhile.  On the other hand, this would be a shrewd tactic to scare me into thinking they have the upper hand. If so, it worked but I didn't react.  Given the specificity of the Judge's earlier ruling, a qualified witness is Plaintiff's only recourse to win the case. I just don't know if this is a bluff that will be followed by settlement offers, or if Cavalry can cut me down by producing a witness.  For what it's worth, the credit card account was active for 10 years prior to its closing.

Any thoughts or suggestions are much appreciated!  

   

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37 minutes ago, Adam1973 said:

Do you think the witness is a bluff or will Plaintiff roll out someone qualified to testify on the assignment and account records? The claim is for roughly $12,000, so it seems like cost to produce a witness would be worthwhile.

For $12k, court costs and post judgment interest in Kentucky where judgments are for 20 years and can be renewed:  my guess is they have a witness.  If they do not produce a satisfactory one then the Judge should shut it down but you are going to have to object to the witness testimony and have a legal basis along with case law as to why they are not adequate to validate CITI documents.

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55 minutes ago, Adam1973 said:

The Circuit Judge ruled that Cavalry records were inadmissible without a qualified witness from Citibank...

Did he? His ruling could be read as meaning that Cavalry's custodian's affidavit didn't rise to the level of "testimony," but that person appearing via phone or video link would suffice. I don't recall anything requiring a Citi employee. They wouldn't even appear - just affirm that they sold the account in question to Cavalry.

So interesting how different states work. Here they appear to be producing a witness, in Georgia they go to court to argue against arbitration, yet in Texas they fold before the crayon is dry on the general denial.

 

 

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Thanks.  I poorly summarized in stating that a Citi official was required.  Judge just ruled that Cavalry's affiant wouldn't suffice to speak to Citi record keeping, sine they didn't have first hand knowledge. 

I argued that Cavalry didn't prove ownership in my Complaint Response.  I also asked for this proof in Discovery and was stonewalled.  After this, Cavalry presented the unqualified affiant for Summary Judgement.  Any legal argument for them not providing this proof with their Complaint?  It seems they get many opportunities to verify something that should have been provided as evidence for their lawsuit?  I'm grasping at straws.  Maybe I can submit a motion to dismiss or other inexpensive last ditch effort to end in my favor before trial?  I'll consult with an attorney but it's tough to find one that's not disinterested.  In my experience, they seem to have predetermined plan to seek the path of least resistance; settle or declare bankruptcy. 

I'll also dig for a legal basis to thwart witness testimony.  I'm guessing the Court already feels generous for inconveniencing the debt buyer by denying Summary Judgement.  

I appreciate the feedback. Thanks

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The bottom line is they won't produce a witness from Citi. If that was indeed the bar set by the judge, you will win at trial. If the judge was merely saying that the affidavit in lieu of a live witness (be they from Cavalry or Citi) was not sufficient to prevail on SJ, it has yet to be seen whether a live Cavalry witness will win it for them at trial. 

My advice is to hammer on what you believed the judge was saying about Cavalry's employee not having proper knowledge to lay foundation for the introduction of Citi's records, in hopes that you are right. It's about your only shot at this point. I would guess arbitration is of the table at this stage of the game. 

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Thank you sir. Correct, I don't want to settle. I'm quite sure Cavalry would settle but it's not worth it at this point. 

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