Order and Judgement, now what?

I lost my case as a defendant against (JDB) collection agency for a credit card debt in court. (Colorado Court, Pro se defendant, within SOL, complaint answered along with affirmative defenses...) Although I lost my battle in court I feel better having tried my best. Here is a portion of the "ORDER" served to me by the judge after my trial. It could be informative and potentially helpful for someone else.

The burden of proof is upon the Plaintiff by a preponderance of the evidence, a standard if proof often described as meaning that the facts and allegations must be proven "more likely than not"

....Defendant questioned the series of sales and assignments of the account based on apparent lack of apecificity as to her particular account having been part of the subject matter of each sale and assignment. Plaintiff's Testimony (owner of CA/custodian of the records) constitutes a complete "chain of title" for the account from the original creditor to the plaintiff. The court must consider all of the evidence presented as a whole and having done that finds that the Exhibits of the Plaintiff were properly admitted at trial and do establish the account of the Defendant and the ownership of the debt by the Plaintiff. The defenses of statute of fraud, lack of privity and lack of legal standing do not apply under the facts presented in this action.

Defendant's position that she is not subject to the terms of the card holder agreement is not well taken.

ORDER AND JUDGEMENT

Plaintiff is awared judgement in the amount of $xxx, interest to the date of ... in the amount of...., with interest to continue to accrue at *% per annum until paid. Plaintiff is also awarded their reasonable attorney fees together with applicable court costs.

The parties are advised they do have a right to appeal any final order or ruling of the court.


My arguements and objections to Plaintiff's well manufactured (also inaccurate) and hearsay exhibits were not well taken in court so my personal intuition tells me that filing an appeal will not be well taken either. The Plaintiff presented his case much better than I did my arguements in court. Proof of use of account, receipts, signed agreements or contracts, any testimony other than from JDB owner...not necessary in my county court room. Just Perponderance of Evidence

Anyway it has been almost a month now since I recieved this order and was wondering why Plaintiff has not tried to contact me to try and collect. Do they send me a seperate bill for the "reasonable attorney fees together with applicable court costs?"

well, what you need to do is file that appeal--seriously. it would be heard in a court of appeals, and not the same court. In an appeal, you can make points such as these examples:

"Plaintiff brought forth ______ information as evidence of their claims. However, this falls under the legal description of hearsay and therefore should not have been admitted as evidence in this case. Since the plaintiff was allowed to enter hearsay as evidence, the defendant was not permitted her full right to due process."

Plaintiff, as a debt collector, is subject to certain federal laws, one of which is the Fair Debt Collection Practices Act(FDCPA). This law requires a debt collector to provide proof of their claims concerning a debt when such proof is asked for. Defendant did request this proof on more than one occasion, yet the plaintiff never provided it. A verdict in favor of the plaintiff, without them even proving that this debt legtiimately existed, goes completely against both the wording and the intent of the FDCPA. Defendant further contends that plaintiff brought forth no evidence to adaquately prove that the amount they claim to be owed is actually correct.

If you ever requested validation before they filed thelawsuit, and you can prove it, you may have a shot at getting this vacated. But you NEED to file the appeal--because the appelate court is the one that handles appeals, it wont be the same judge and it also wont be the same standard. "preponderance of the evidence" means a judge must make assumptions when full evidence is not presented. The appelate court looks more to matters of law and not simply to preponderance of the evidence.

Interesting, this could explain why the judge overrulled my objections on the grounds of hearsay and lack of foundation. I will research and look into appelate court.

yeah, I would definitely look into that. If the plaintiff didnt produce a signed contract or any evidence that you even used this account, or payment evidence to prove the amount they sued you for, I would definitely fight it. If the plaintiff didnt provide proof of those things to the court, then to me it isnt preponderance of the evidence, it is a total lack of evidence. I am guessing that when you objected to something due to hearsay, it was one of those BS affidavits, am I right? The ones where so-and-so, a duly employed agent of the plaintiff, affirms to have personal knowledge of this debt? If that was admitted into evidence by that judge, I would fight it tooth and nail.

Refresh our memory, please--I remember some of your posts but I know you posted several threads on this one. Did you ever send them a DV letter before the lawsuit was filed? Did they ever send anything for validation if you did? If you can show the appelate court that you requested in writing for validation, and they filed the suit without giving it to you, then you can argue section 809 of the FDCPA--that once they get a written validation request, they are to stop all collection efforts until they provide it. And suing you is most definitely a collection effort!

This was in your district court too--sad to say, but a lot of district court judges are not as much up to speed on the FDCPA because it is a federal law and they are not in a federal district court. But that does not in any way change the law's meaning, nor does it diminish the jurisdiction of that law in this case. Regardless of what court they sue you in, they ARE bound by federal law in all of their actions. I would absolutely argue that point in an appeal.

I never received anything about this debt in the mail from plaintiff untill I was given the summons and complaint. I brought that up in court as well as a copy of a post summons DV letter that I sent to the plaintiff that states that I never received anything -- fact is, plaintiff just has to testify that it is a regular practice in the course of the way they do business. Plaintiff filed the complaint with the court just before recieving (signing for cert) my DV request letter. In response to my DV request all they sent me was a copy of a card holder agreement. I had to request a pretrial conference in order to request discovery. My discovery request as well as my DV requests were never produced. The plaintiff just told the judge that they were unable to.

One concern I have for filing an appeal would be that If I do lose my appeal I have no idea what the plaintiff and the court constitute as "reasonable costs and attorney fees". I really am the lamb in the lions den trying to defend my self in a court room.

so what exactly did they produce as evidence against you? You moved for discovery, they did not produce ANY of the things you requested to prove their case, and the judge found for THEM based on "prepnderance of the evidence"????

I would ABSOLUTELY fight this one....think about it:

1--they sue you and make accusations of you.
2--you go to the pretrial conference, request discovery and say "prove the allegations with evidence".
3--they reply with "we cannot produce the evidence of these claims".
4--the court rules for them

what doesnt add up here? What exactly did they produce? Something sounds WAY off to me

Pretty much that appears to be what took place.

Exhibit A - Series of sales of the subject account from BOA to FIA Card Services, then from FIA Card Services to Worldwide Asset purchasing II.....West Asset Management to Liberty...and finally, Liberty Acquisitions sold the account to the Plantiff. (There is no account number that connects me to the account shown in this so called complete chain of title, just testimony from plaintiff saying that the account number was mine)

Plaintiff Exhibit "B" - Statement of Account from BOA. This is jsut a very generic statement said to be from BOA. (I argued this as exhibit as there is no one from BOA to testify to its validity and it also contained inaccurate personal identifiable information as to my date of birth)

Exhibit C - BOA card holder agreement. (I argured that this copy of an agreement did not apply to me because the plaintiff had stated that the account was opened with BOA in 2001 and yet the card holder agreement had a copyrite date of 2003)

Exhibit D - A copy of my TU credit Report showing that the account was in my name. (I argued that this was also hearsay because there isn't anyone from the Credit reporting agency to testify as to the accuracy of the report and that the information in that report was inaccurate as can be any and all credit reports.)

I still find it hard to believe that the judge overruled everyone of my objections to the plaintiffs exhibits and admitted all of them, said to be "properly".

I am wondering where to file appeal for this case. File it with the same county court that tried the case and then it may be heard by a state court somewhere else?

Usually the process is set up such that you can appeal a lower court's decision to a higher panel, a court of appeals - it depends on your state's law. If you don't like the outcome at the court of appeals level, you can appeal to the state's supreme court.

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