TrudyL66

Questions about Plaintiffs Affidavit

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By dismiss you mean thrown out then maybe,  you need to object to the affidavit as hearsay.  They will then try to enter it under Business Records Exception to Hearsay that why they have the statements they do on the affidavit. (but they are missing an important one)

The following must be establish in order to admit records under the Business Records Exception:

 The record was made at or near the time of the event. 
The record was made by or from information transmitted by a person with knowledge
The record was kept in the ordinary course of a regularly conducted business activity
It was a regular practice of that business to make such a record

The witness must qualify as a custodian of the records, or “another qualified witness” as described in both the Federal Rules of Evidence and the state statutes. To be an “other qualified witness,” United States v. Wables says that it is not necessary that the person laying the foundation for the introduction of the business records have personal knowledge of their preparation, only familiarity with the record-keeping procedures of the organization

Glarum v. LaSalle Bank holds the affidavit of the loan servicer’s employee inadmissible as a business record where the employee did not know who entered the data he relied on, whether the computer entries were accurate when made, or how incorporated data from prior loan servicer was derived. 

On the other hand, WAMCO XXVIII, Ltd. v. Integrated Elec. Envs., Inc. found that the Business Records Exception satisfied where a loan servicer’s records incorporated data from a previous servicer, and the officer of the current servicer testified he had worked on the loans at issue and verified the payment data, and described his company’s verification process. (e.g. personal knowledge)

An additional level of complexity is added when relying on a prior servicer’s (you case that's Citibank's business records).

In Hunter v. Aurora Loan Services, the servicer relied on employee testimony (your case CPS employee sign affidavit) at trial regarding records necessary to establish standing. These records were generated by a prior servicer (your case Citibank) for whom the witness had never worked (just like in your case). The trial court found all of the records admissible under the Business Records Exception.

The first District Court Of Appeals (DCA) reversed and rendered on appeal, concluding that the trial witness for the servicer could not provide a foundation to support admitting the prior servicer’s records under the Business Records Exception:

…Mr. Martin was neither a current nor former employee (in cross examination you ask if witness ever worked for Citibank) of …[the prior servicer]…, and otherwise lacked particular knowledge of the (you ask if they were ever trained by Citibank record keeping procedures)…[prior servicer’s]… record keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, whether …[the prior servicer]… regularly made such records, or, indeed, whether the records belonged to …[the prior servicer]… in the first place…

Because the current servicer brought no other witnesses to trial capable of laying proper foundation, the servicer lost the case. 

In your case who ever sign the affidavit works for CPS "may or may not have knowledge on how Calvary SPV keeps records.  The person swearing never swore to have personal knowledge of how Citibank made, update, and keep it's records. 

Alaska Rule 803.6

(6) Business Records. 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 acquired of a regularly conducted business activity, and if it was the regular practice of that business activity to make and keep 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. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

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Thank you for responding so quickly, I hate being in a time crunch.  I’ve requested the Purchase Agreement so I can see the terms and conditions, also an addendum that is mentioned on the “generic” Bill of Sale.   They have sent me the Bill of Sale twice, once with the complaint and again with the MSJ.   Alaska courts do not like to sign those off unless they have to.  For the Pro se, they allow extra time to respond to just about everything.

I’m working on the Interrogatory questions now.   I already have my Opposition to MSJ done I haven’t turned that in yet, I have until 6/8.  Do I submit my objection to the Affidavit with the OMSJ or do I first send the Interrogatory questions for the answers and use the objection at the pre-trial?

The timelines are a little vague as to what needs to be done in order.  

This is my second case this year (2021).   I didn’t fight Discover because they have enough balls to take their clients to court and not sale to JDBs.  I don’t really believe a debt should be sold,  the CC company’s should be responsible for recouping their own debts.  I got them to agree to $100/mo. and they get my PFD every year until paid off. (This will be the first time my PFD has been garnisheed 😢. They also want any money I may get from my house if I sell or refi.  Jokes on them,  I’ve been in forbearance since 8/2019.  Okay that’s not nice. 

And what is it with the double space lines and 13 and above size font for these legal papers.    The paper they have online to print from the court website isn’t double spaced and the font for sure isn’t a 13.   Are they really that critical?   I had my stuff all nicely typed up and then I had to change it because it was in the rules.  Ugh. what a mess that was.  

Thanks for helping.  I have more to cases to come I’m sure. 

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8 hours ago, TrudyL66 said:

i noticed that the Affaints date of reviewing Account Holder records with CPS is months before the affidavit was ever signed.  Can this be a cause to dismiss?  

Scan May 27, 2021 at 6_20 PM.pdf 245.51 kB · 2 downloads

That is not a problem.  An affidavit does not have to be signed the same day a record is reviewed.  For instance, if you read and signed a contract 02/01/2021,  you can then sign an affidavit a few months later on 05/05/2021 stating that you read and signed the contract on the February date.  You’re simply stating that you read and signed a contract on a particular date.  
 

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8 hours ago, Bulldoger said:

By dismiss you mean thrown out then maybe,  you need to object to the affidavit as hearsay.  They will then try to enter it under Business Records Exception to Hearsay that why they have the statements they do on the affidavit. (but they are missing an important one)

The following must be establish in order to admit records under the Business Records Exception:

 The record was made at or near the time of the event. 
The record was made by or from information transmitted by a person with knowledge
The record was kept in the ordinary course of a regularly conducted business activity
It was a regular practice of that business to make such a record

The witness must qualify as a custodian of the records, or “another qualified witness” as described in both the Federal Rules of Evidence and the state statutes. To be an “other qualified witness,” United States v. Wables says that it is not necessary that the person laying the foundation for the introduction of the business records have personal knowledge of their preparation, only familiarity with the record-keeping procedures of the organization

Glarum v. LaSalle Bank holds the affidavit of the loan servicer’s employee inadmissible as a business record where the employee did not know who entered the data he relied on, whether the computer entries were accurate when made, or how incorporated data from prior loan servicer was derived. 

On the other hand, WAMCO XXVIII, Ltd. v. Integrated Elec. Envs., Inc. found that the Business Records Exception satisfied where a loan servicer’s records incorporated data from a previous servicer, and the officer of the current servicer testified he had worked on the loans at issue and verified the payment data, and described his company’s verification process. (e.g. personal knowledge)

An additional level of complexity is added when relying on a prior servicer’s (you case that's Citibank's business records).

In Hunter v. Aurora Loan Services, the servicer relied on employee testimony (your case CPS employee sign affidavit) at trial regarding records necessary to establish standing. These records were generated by a prior servicer (your case Citibank) for whom the witness had never worked (just like in your case). The trial court found all of the records admissible under the Business Records Exception.

The first District Court Of Appeals (DCA) reversed and rendered on appeal, concluding that the trial witness for the servicer could not provide a foundation to support admitting the prior servicer’s records under the Business Records Exception:

…Mr. Martin was neither a current nor former employee (in cross examination you ask if witness ever worked for Citibank) of …[the prior servicer]…, and otherwise lacked particular knowledge of the (you ask if they were ever trained by Citibank record keeping procedures)…[prior servicer’s]… record keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, whether …[the prior servicer]… regularly made such records, or, indeed, whether the records belonged to …[the prior servicer]… in the first place…

Because the current servicer brought no other witnesses to trial capable of laying proper foundation, the servicer lost the case. 

In your case who ever sign the affidavit works for CPS "may or may not have knowledge on how Calvary SPV keeps records.  The person swearing never swore to have personal knowledge of how Citibank made, update, and keep it's records. 

Alaska Rule 803.6

(6) Business Records. 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 acquired of a regularly conducted business activity, and if it was the regular practice of that business activity to make and keep 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. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The affidavit is not a business record.  It is testimony used to lay the foundation for the admission of business records such as credit card statements, etc.

In Bailey v. City and Borough of Juneau (2013), the Court of Appeals of Alaska stated “Evidence Rule 803(6) allows litigants to introduce business records without having to present testimony from each person who made entries in the records or who personally observed the events or condition described in the records.  Business records are generally considered reliable because they are created, and relied on, in the course of regular business. Evidence Rule 803(6) requires authentication of the business records through the testimony of a records custodian "’or other qualified witness.’”

The OP would have to challenge the affiant as an “other qualified witness”.  He would have to cast doubt that she is qualified to lay the foundation for the admission of the records.

If I were a defendant, I would challenge the affiant’s qualifications based upon the language in the affidavit.  She states that she is employed by Cavalry Portfolio Services, LLC (CPS) and is “familiar with the method by which CPS , on behalf of Cavalry SPV I, LLC, creates and maintains business records pertaining to the Account as defined below”.

CPS did not create credit card statements for the Account.  It was not in any way involved in the creation and maintenance of those statements.  It allegedly purchased and received the statements from Citibank.  It is Citibank that allegedly created the credit card statements.  _____________ (affiant) states only that she is familiar the method by which CPS creates and maintains records.  She did NOT state that she is familiar with the method by which Citibank creates and maintains records.

_______________ (Affiant) is not employed by Citibank.  She did not not attest that she is familiar with the method by which Citibank creates and maintains business records.  Since CPS was not involved in the creation of the credit card statements, and _______________ (Affiant) did not attest that she is familiar with Citibank’s record creation and maintenance practices, she cannot be familiar with who or how those records were created and maintained before they came into the possession of CPS.  She did not and cannot attest that the business records were created by any “person with knowledge” at Citibank.  In fact, in her affidavit, she made no reference at all to Citibank’s business record practices.  Therefore, she cannot be “an other qualified witness” who can lay a proper foundation for the admission of business records as required by Alaska Rule of Evidence 803(6).

Note that is not an argument that she did not personally prepare or observe the preparation of the statements.  It is an argument that she did not and cannot testify that a qualified person (“person with knowledge”) at Citibank prepared those records.  

Hopefully, Alaska does not subscribe to “adoptive business records”.  If it does, the records will more than likely be admissible because, as the Court of Appeals stated, business records are considered reliable.

 

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@BV80 is correct. 
 

I beat Crap 1 by challenging the qualifications of their affiant.  Their affiant was a “legal support specialist “.   The judge agreed that such a person would not have first hand knowledge.  

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okay. i am going to get busy finishing the interrogatory questions.  You have all given me great advise as to what I need to ask but most importantly, how to respond to the answer afterwards in order to disqualify this affiant.   I’m still going to send in the OMSJ to dispute the facts.  

I’m uploading the OMSJ, let me know what you all think of it.  Anything I should add or remove?  This is a basic Junk Debt Buyers case.  

Thanks everyone.  and to think I gave that “justanswer.com” a smidgin of my time.   

Scan May 28, 2021 at 6_56 AM.pdf

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3 hours ago, TrudyL66 said:

okay. i am going to get busy finishing the interrogatory questions.  You have all given me great advise as to what I need to ask but most importantly, how to respond to the answer afterwards in order to disqualify this affiant.   I’m still going to send in the OMSJ to dispute the facts.  

I’m uploading the OMSJ, let me know what you all think of it.  Anything I should add or remove?  This is a basic Junk Debt Buyers case.  

Thanks everyone.  and to think I gave that “justanswer.com” a smidgin of my time.   

Scan May 28, 2021 at 6_56 AM.pdf 1.52 MB · 3 downloads

When did the plaintiff file a motion for summary judgment?

 

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I was given an extra 20 days to respond, twice now.  First on the complaint and now this.   The court is lenient on Pro se.   But this is it for getting it turned.   even if I loose, at least I’m  trying and learning.

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23 hours ago, TrudyL66 said:

okay. i am going to get busy finishing the interrogatory questions.  You have all given me great advise as to what I need to ask but most importantly, how to respond to the answer afterwards in order to disqualify this affiant.   I’m still going to send in the OMSJ to dispute the facts.  

I’m uploading the OMSJ, let me know what you all think of it.  Anything I should add or remove?  This is a basic Junk Debt Buyers case.  

Thanks everyone.  and to think I gave that “justanswer.com” a smidgin of my time.   

Scan May 28, 2021 at 6_56 AM.pdf 1.52 MB · 5 downloads

 You're on the right track as you definitely need to respond the the MSJ.  Since this is in a district court you can expect to be held to a higher standard than a county or city court so make your wording look professional and learn your state's rules of civil procedure and the district court's rules "to the T" or anything you file could be tossed out at any given moment. 

You need to delete "but no contract with the terms and conditions" under 1 (b).  That is erroneous information that has been floating around the internet for years and just shows the court and the plaintiff that you don't know what you are doing. You can change it to "no cardmember agreement explaining the terms and conditions" which actually should have been addressed in discovery snaring them into admitting that it is governed by such but then not having it.  That very likely would have prevented them from filing the MSJ.  Also in 1(f) delete "I don't believe mine is included in this batch of bad debt that this debt buyer says they bought" and in 1(g) change "bought my debt" to "bought this alleged debt."  Remember to send a copy of your response and anything else you file with the court to the attorney's office that filed the law suit.

What you need to focus on now is convincing the court that Cavalry must produce the complete forward flow agreement that pertains to their bulk debt purchase to prove chain of title.  This is their Holy Grail that again should have been taken care of in discovery and you need to fight tooth and nail as they will drop the suit before letting anyone see it.    

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Thank you for the correct wording, i made those changes

Unfortunately I received a letter in the mail today from the court.  I had sent a request to the plaintiff for discovery but I did not attach an order with it so now I have to deal with that.  My question would be since I need an order, should I have Named it “Motion to Compel”.  I thought I had to request and wait for no response first.  And am I allow to change what I requested?   I would like to add what you suggested above even though I requested the Purchase agreement, my words may not be as powerful as that.  What next?

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4 hours ago, TrudyL66 said:

Thank you for the correct wording, i made those changes

Unfortunately I received a letter in the mail today from the court.  I had sent a request to the plaintiff for discovery but I did not attach an order with it so now I have to deal with that.  My question would be since I need an order, should I have Named it “Motion to Compel”.  I thought I had to request and wait for no response first.  And am I allow to change what I requested?   I would like to add what you suggested above even though I requested the Purchase agreement, my words may not be as powerful as that.  What next?

New to reading your situation and haven't read it in full, yet, but to answer this particular question, yes you want to file it titled Motion to Compel Discovery. With ANY filing in a court case, you ALWAYS want to file a copy with the court FIRST, and then send it to the plaintiff or respondent. I am not sure about where you are, but here in Texas, so long as the person receiving the document provides consent you could serve them by email with their copy after it is stamped filed with the Court. I am not an attorney and this is not legal advice.

 

EDIT** My personal fave, is when it comes to filing these motions there are usually stipulations on when the respondent has to answer. I strategically will wait until "last minute" to file and send it, when the chances of the respondent actually being able to properly answer and provide anything needed is very fast approaching. I am not an attorney, however, and do not take this as "legal advice".

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12 hours ago, TrudyL66 said:

Thank you for the correct wording, i made those changes

Unfortunately I received a letter in the mail today from the court.  I had sent a request to the plaintiff for discovery but I did not attach an order with it so now I have to deal with that.  My question would be since I need an order, should I have Named it “Motion to Compel”.  I thought I had to request and wait for no response first.  And am I allow to change what I requested?   I would like to add what you suggested above even though I requested the Purchase agreement, my words may not be as powerful as that.  What next?

This is a classic example of the results of failing to learn the rules and follow them explicitly.   I don't know your state's or court's rules so I don't know what order was supposed to be included when sending discovery which is normally sent only to the plaintiff's attorney and not filed with the court.                                                                                           

In most courts they have 30 days to answer discovery.  If you don't receive the answers within a week or so after that then you send a them "meet and confir" letter giving them seven days to answer.  If they still do not respond or only provide erratic objections that is when you file the motion to compel the answers and include a proposed order for the judge to sign if/when he grants your motion.

If they filed the MSJ in lieu of answering discovery then you should include in your response that discovery has not yet been completed and state when you sent the discovery attaching a photocopy of the certified mail receipt from your post office.  

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This came to the top of the list on Bing Search-

 Self-Help Services: Debt Collection Cases: Discovery – Getting Information for the Case (alaska.gov)

Also, a few thoughts... Most of the time, Discovery is not filed with the court. (until you need it for the argument) But if they are lacking key document, per this article, you can file your own MSJ pointing that out (as they would have no contract and no standing and no case). You would only file such with your MSJ and point out that they did not produce the requested data. (as an exhibit or admission) One other point, is that my attorney also includes "admissions" with her interrogatories. Title the page "Request for Admissions" You would include this request for admissions at the end. Then number them. IE Admit that the Account xxx is not included on the attached document. Admit that Calvary does not have the cardholder agreement. (just pick 2 or 3 important Qs.) If they don't respond to your discovery and answer/deny the admissions, the admissions can then be "admitted as evidence" and in your favor. So... it is in your favor that they don't answer, but you DO want a receipt that the discovery was mailed/received. 

I title this document, "request for discovery", once denied and you still want info, you file the "motion to compel discovery" with the court. (discovery contains interrogatories, requests for production, and admissions - any, all, or some as needed)

Also, not an attorney and not in Alaska. Not sure what the letter from the court is in reference too. Maybe the court wants to schedule a hearing on the motion to compel or maybe you should be sending discovery request directly to opposing counsel. Usually there is a format to be used for interrogatories with a few items of law/rules of court on discovery being quoted as an introduction. FYI your MSJ opposition looked good, so not sure exactly where you're at.

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