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Virginia § 8.01-390.3 Requires Objection within 5 Days to use of business records


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Thanks to @Bulldogger, I know about this law.

Basically, it says that business records with an affidavit from the custodian of the data or qualified witnesses are self-authenticating and that you must object within 5 days of notice if you'd like live witnesses.

"B. The proponent of a business record shall (i) give written notice to all other parties if a certification under this section will be relied upon in whole or in part in authenticating and laying the foundation for admission of such record and (ii) provide a copy of the record and the certification to all other parties, so that all parties have a fair opportunity to challenge the record and certification. The notice and copy of the record and certification shall be provided no later than 15 days in advance of the trial or hearing, unless an order of the court specifies a different time. Objections shall be made within five days thereafter, unless an order of the court specifies a different time. If any party timely objects to reliance upon the certification, the authentication and foundation required by subdivision (6) of Rule 2:803 of the Rules of Supreme Court of Virginia shall be made by witness testimony unless the objection is withdrawn."

 

This is my big outstanding debt - for around 15K.  I plan to arbitrate - it's worked well for me twice, although I think this one might not be for a $0 settlement. 

I may have them on a couple FDCPA violations.  And, they definitely had a 3rd-party collector calling my cell phone numerous times after I asked them to only use my land-line, so those are TPCA? violations - maybe.

My questions:

1. Does anyone have a format for a written objection?  In Virgina would be great.  If not, I'll copy one of the objections to my MTC from a different case.   I'm assuming I have to file it with the court and not just send it to the Plaintiff then present it on the court date.  In Virginia, I don't have to file an answer, etc.  I could just show up at the initial hearing with my MTC in hand with no advance filing at the court as long as I've mailed it to the plaintiff's attorney.

2. Does objecting mean I'm engaging in litigation and waiving my right to arbitration?  I only have 5 days - it doesn't even say business days. I'd like to reserve my right to insist on live witnesses in arbitration - or in court in the event that my MTC does not go through.

3. I'll probably start a new thread under arbitration for this one because I think it'll get interesting, but what's my chances that they'll walk away for $15K?  I'll file with JAMS, so $1500 to start, $1750 for a counterclaim since I'll file for violations on my end, then I saw where JAMS arbitrators charge anywhere from $400/hour & up - so for a day, that's $3200.  Then JAMS charges a percentage of everything after the filing fees to administer - that would be $384 for a $3200 arbitrator.  I read on this thread by Percy B that someone followed him into arbitration paying $17K, but I don't understand how the fees got that high. What am I missing?

 

 

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I think I have more time than I thought.

The documents weren't with the court document they sent me - just for the dispute.

I should have 5 days after I get served.  The 5 days scares me a little.

Interesting tidbits after looking at the documents more closely.

They contain

1. An affidavit from the JDB's account administrator - signature is not legible, there's no printed name, it's not notarized or anything, and says I owe 6% from the data of judgment - which they don't yet have. No affidavit from the OC, but there is a bill of sale for a bulk purchase of debts, then what looks like a single line printed from a spreadsheet.

2. The bulk of the documentation is just printed around the time the account was opened from the OC's website - nothing filled in except for a truth in lending disclosure.

3. There is a contract - which I have a copy of - with an electronic signature - but they don't seem to have it.  Instead of their affidavit, it says the original credit agreement is lost, destroyed, in electronic form or otherwise converted to digital format and/or is otherwise unavailable.  Whatever that means. Does that mean it could be argued that the 3-year SOL in VA for unsigned debt applies vs. the longer one for signed?

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