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Need Help: Out-of-State Affidavit from the Original Creditor in California Unlimited Civil Case

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Today, I have received below affidavit from the JDB (3rd owner) The Affiant is a person from Pentagon Federal Credit Union who is the original credit card issuer.

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<Page 1>

AFFIDAVIT OF FACTS AND SALE OF ACCOUNT BY ORIGINAL CREDITOR
(Debt Buyer Actions)

 

I am a/a Richard HXXXX of Pentagon Federal Credit Union ("Original Creditor"), and I have personal knowledge of and access to Original Creditor's books and records ("Business Records"), including electronic records, relating to a pool of charged-off consumer credit accounts sold or assigned by Pentagon Federal Credit Union to UHG I LLC ("Debt Buyer" on 12/28/2018 (the "Sale"), which included the account ("Account") of the consumer ("Consumer") identified in the exhibits attached hereto and incorporated herein.  As part of the Sale, Original Creditor assigned all of its interest in the Account, including the right to any proceeds from the Accounts, to Debt Buyer, and it transferred Business Records relating to the Account to Debt Buyer.  A true and correct copy of the bill of sale, Lot 1219, is attached as an exhibit to this affidavit.

1. In my position, I also have personal knowledge of Original Creditor's procedures for creating and maintaining its Business Records, including its procedures relating to the sale and assignment of consumer credit accounts.  Original Credit's Business Records were made in the regular course of business and it was the regular course of such business to make the Business Records.  The Business records were made at or near the time of the events recorded.  Based on my knowledge of Original Creditor's Business Records, I have personal knowledge of the facts set forth in this affidavit.

2. Original Creditor and Consumer were parties to a credit agreement ("Agreement").  Consumer agreed to pay Original Creditor for all goods, services and cash advances provided pursuant to the Agreement.  The date and the amount of the last payment, if any, made by Consumer are set forth in an exhibit attached hereto and made a part thereof.  Consumer defaulted and demand for payment was made by Original Creditor.  A true and correct copy of the Agreement is attached as an exhibit to this affidavit.

3. At the time of Sale, Consumer owed the amount set forth in the exhibits attached hereto and made a part hereof, which also set forth the name of the Consumer; the last four digits of the Account number; the date and amount of the charge-off balance; the date and amount of the last payment, if any; the total amounts, if applicable, of any post-charge-off interest and post-charge-off fees and charges; any post charge-off credits or payments made by or on behalf of the Consumer; and the balance due at the time of the Sale.

The above statements are true and correct to the best of my personal knowledge.

Dated: 4/8/2021                                         By: (signature)

                                                                      Print Name: Richard HXXXX

 

Sworn to before me this 8th day of April, 2021.


(signature of the Notary Public)
Notary Public

BOUTROS NABIL SALIB AWADALLA
Notary Public, COMMONWEATH OF VIRGINIA
Reg. No. 7090432
My Commission Expires 01/31/2023

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

<Page 2>

CERTIFICATE OF CONFORMITY

I, Kristen J. MXXXXX, an attorney-at-law of the Commonwealth of Virginia who resides in the Commonweath of Virginia do hereby certify that I am duly qualified to make this certificate of conformity and hereby certify that the acknowledgement or proof upon the foregoing document was taken by Peter Awadalla, a notary public in the Commonwealth of Virginia, in the manner prescribed by the laws of the Commonwealth of Virginia and conforms to the laws thereof in all respects.

 

IN WITNESS WHEREOF, I have hereunto set my signature, this 8th day of April, 2021.

 

(signature)
Kristen J. MXXXXX, Esq.

----------------------------End of the document------------------------------

 

I am planning to file Motion in Limine for the following reasons (please let me know if you have any advice or comments):

  1. Plaintiff did not produce this affidavit before end of discovery (30 days before trial).  The trial is 5/3/2021 and this document is dated 4/8/2021 so maybe I can object to the timing?
  2. The Affiant who is from out-of-state did not sworn "under penalty of perjury under the laws of the State of California that the foregoing is true and correct” as outlined in https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=2015.5.
  3. Stamp on page 1 shows Notary Public's first name to be different than what is on the 2nd page.  1st page stamp is BOUTROS NABIL SALIB AWADALLA and 2nd page refers to the Notary Public as PETER AWADALLA.
  4. Can I also object this affidavit as hearsay?
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@ticklemore

Correct, affidavits #1 - need to conform to the CA penalty of perjury language if they are to be used. #2 - You have a right to cross examine the author of any affidavit, they cannot simply submit an affidavit as evidence without giving you a chance to question the affiant... SO LONG AS YOU OBJECT. CA doesn't allow trials by affidavit, the case to cite would be  Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007)

And of course you have the inconsistencies with the notary's name(s).

 

Did you send them a CCP 96 request (demand for list of evidence and witnesses)?

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15 minutes ago, RyanEX said:

@ticklemore

Correct, affidavits #1 - need to conform to the CA penalty of perjury language if they are to be used. #2 - You have a right to cross examine the author of any affidavit, they cannot simply submit a affidavit as evidence without giving you a chance to question the affient - SO LONG AS YOU OBJECT. CA doesn't allow trials by affidavit, the case to cite would be  Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007)

And of course you have the inconsistencies with the notary's name(s).

 

Did you send them a CCP 96 request (demand for list of evidence and witnesses)?

Thank you so much for your feedback, @RyanEX!  I really appreciate it.  No, I have not sent them the CCP 96 request because that would only apply for limited civil cases, correct?  Mine is unlimited, unfortunately.  =(

This week, they gave me the list of of their exhibits:

  • Bill of sale from OC to 1st JDB
  • Bill of Sale from 1st JDB to 2nd JDB (Plaintiff)
  • Statement showing the date and amount of the last payment
  • Cardmember's Agreement
  • Charge-off statement
  • 2 year period worth of monthly statements prior to charge-off
  • Affidavit (this original post)

and list of their witness:

  • Yvette JXXXXX (or some other designated custodian of records for Plaintiff)
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@RyanEX, now I am debating if I should submit my Motions in Limine (to object OC's affidavit, cardmember agreement, monthly statements, and bill of sale) or hold them off and prepare to object to them during the trial.  I would have filed my MIL's if it was normal circumstances, but due to COVID-19, my court trial will done over Zoom, remotely.  I am afraid that when Plaintiff sees my MIL's, they will have 3-4 days to respond to my MIL's and more importantly, they may also add the Affiant(Original Creditor) to the Witness List because it's so easy to do that in a remote trial (just forward the Zoom invitation email), compared to paying to fly the Affiant from Virginia to California to testify as their witness in normal circumstances.

Their current Exhibit List is pretty much crap, with their Affidavit having weak spots as you've pointed out, and both of their Bill of Sale documents are missing attachments/exhibits that lists the account numbers in the sale.  So I think I have a pretty good chance without filing the MIL's.  What do you think?

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@ticklemore

Judgement call I suppose. One of the strengths to filing/serving a written objection is that it communicates to the plaintiff that you are fully aware of the specific codes in CA law that are most detrimental to their case; many CA members have gotten their dismissals after serving an objection (and trial brief). Of course Covid protocols and remote witnesses are something to take into account as they can make it easier for a distant witness to appear.

However I don't know if your typical JDB has much of a chance of getting an original creditor to 'green-light' an employee appearing in a trial - as I have understood it, OCs sell these account to JDBs with the understanding that JDB is own their own, OCs don't want the liability. They don't 'guarantee' the accuracy of information contained in the account files. I don't know this 100% for sure, but that has been my understanding.

If plaintiff decides to take it into trial, I think knowing your objectikns well is key, as you should be able to successfully object to JDBs attempts to have their own employees authenticate OC records and you should be able to successfully object to JDB trying to submit affidavits as evidence in lieu of live testimony.

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Thank you, @RyanEX for your feedback!  I've decided to file the MIL to object to their affidavit just two business days prior to the trial, not giving them much time to respond to my MIL.  My trial is on Monday so I will keep you posted on the outcome.  I will be prepared to object to their evidence and witness.  Thanks again.  I really appreciate it!

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On 4/29/2021 at 10:07 PM, ticklemore said:

Thank you, @RyanEX for your feedback!  I've decided to file the MIL to object to their affidavit just two business days prior to the trial, not giving them much time to respond to my MIL.  My trial is on Monday so I will keep you posted on the outcome.  I will be prepared to object to their evidence and witness.  Thanks again.  I really appreciate it!

This important to have handy as well, in case they attempt to ask for a continuance of trial. You can object citing Rule of Court 3.1332

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

Quote

 

Rule 3.1332. Motion or application for continuance of trial

(a) Trial dates are firm

To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.

(b) Motion or application

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.

 

 

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