Winning in Court

I haven't had a situation that would help you, but just wanted to say good luck and not to worry!

I can only imagine a case could be won if you were sued after the expiration date of the SoL, you requested validation and didn't receive it before they sued, yet they still sued anyway, if you weren't properly served, or if it isn't your debt.

There might be other ways but these are the only ones I can think of.

i was sued by a cc from years ago..it went to court claimed affimative defense of sol and it was dismissed w/prejudice!! good luck!

Sol, sol, sol....Although I cannot prove out of sol, (because I don't recognize the debt enough to do so) I believe my case shows enough doubt about my relation to the debt that it should be a dismissed case. (Perponderance of evidence is what the judge bases his decision on) I was hoping to find some examples of cases won other than by sol or improper service. Are their any I can find or any that can be shared? (I am the lamb getting ready to face the lions...lol) I am prepared but nervous about facing lions.

probably the most common scenario I have heard is that the plaintiff cannot actually prove their case properly. They file suit knowing this, but they count on the fact that most people dont know the laws or their rights, so when they show up in court with the bogus affidavits, the consumer doesnt know better and thinks they have lost.

Your best bet is to challenge EVERYTHING that doesnt definitely prove its your debt--if they cannot provide a contract with your signature on it, then they havent proven its your debt in my mind and thats how I would present my argument. If they can only produce a few monthly statements, they have not proven that there is still an amount outstanding, or what exactly that amount truly is. You are faced with the fact that the judge must rule on preponderance of the evidence, but you must remember that preponderance means the judge looks at everything presented and tries his/her best to put the puzzle together. That does not in any way change the fact that the plaintiff still holds the burden of proof. If they only bring flimsy evidence such as an affidavit, and you shoot it down the proper way, the judge will have to consider not only the fact that they presented that "evidence", but also what that "evidence" was lacking. That is a key point that most defendants never get to realize. Dont make that same mistake in your case.

I won my case for a defaullted credit card last year by invoking the Doctrine of Unclean Hands. I was able to show that the plaintiff acted in a dishonest and fradulent manner in regards with respect of his claim. I showed that he ignored my request for DV and Cease/Desits violating the FDCPA (I had return receipts showing delivery and cel phone statements showing he had called numerous times after delivery) . I showed that his "affidavit of debt" from the OC was phoney because the signer was fictional (no one by that name ever worked for the CA and he couldnt produce her as a witness). And I showed that the "signed application" he had was forged because the application form was dated "Version 02/2008" and I had opened the account in back 10/2002. Needless to say, the judge got very irritated with the lawyer and dismissed the case. The judge even went as far as suggesting that I follow up with the state bar association and file a complaint.

Thank you for the info. I am brushing up on flimsy evidence and my local county court objection/hearsay rules. (Regulary course of doing buisness...xxxbs) I am finding it all very interesting but am concerned about my ability to shoot down their evidence, (object to) the proper way. I'm still trying to perfect my short term skills.

check out these cases, they may help:
Asset Acceptance Corp. v. Proctor, and Spears v. Brennan. They are related to lack of material evidence, and violations of the FDCPA. I am doing alot of research to prepare for my own case, so I am reading everything I can find. Hope this helps.

so how did it go? i hope you preveiled..

The judge is going to make a decision in 5 days he said. From what I hear that is a pretty fast decision. I do not feel that I presented my case as well as the plaintiff. The judge overruled every objection I made to every one of the plaintiff's exhibits. The judge told both of us at the end of the trial that we could submit case law and statutes to the court with in 5 days. Plaintiff will most likely prevail unless I can case law cram and find what I'm looking for.

good luck..i hope it works out for you..

Just curious, what evidence did they have against you?

Just curious, what evidence did they have against you?

Exhibit A - Assignment and Bill of Sale
Exhibit B - Account Data from BOA
Exhibit C - BOA Cardholder Agreement
Exhibit D - Interest and Principal Calculation
Exhibit E - TU Credit Report
Exhibit F - Account Statement

I objected to most of this evidence on the gounds of either hearsay, irrelivance or lack of foundation. I was amazed at how ALL of this evidence was allowed to be admitted anyway. NONE of the evidence came directly from the original creditor. It was all created, copied, printed and/or prepared by another company other than the OC.

It seems ridiculous that that is all they had for evidence. Was there anything with your signature on it? Just curious, did you have a case management meeting before the trial? What about discovery? Best of luck with the judges decision.

i've never been to a court hearing (currently being sued for the 1st time now), but that sounds like some solid evidence? am I wrong? even thought it was computer generated, was it accurate, principal & interest?

yes, i'd like to know too...did they show you all of this during discovery?

something seems fishy...rarely do jdc win if challenged, even pro se. the reason they get to buy the debt so cheaply is that it comes with zero information. when a jdc buys your debt you are just a name on a spread sheet with minimal information.

the only reason i could see where they would win is if the original creditor still held the debt and was paying a ca a fee for collecting.

I had to request a pre-trial conference which is where you can request discovery. I requested that the plaintiff produce a signed contract or agreement between me and the oc. I also requested that the plaintiff produce a billing statment with my name and account number on it from the oc. Plaintiff could not come up with those documents, instead he added Exhibit F.

that still does not sound right...discovery can be requested via mail right up to trial date.

No, the information was not right...personally identifiable info (my dob) was incorrect, the account number was incorrect, c/o amount and date is incorrect...blah I made all of my arguement to the validity and accuracy for all of plaintiffs exhibits but that apparently doesn't mean that they won't get admitted into evidence.

Every state county courts have their own court room rules. I read mine and followed the procedure for requesting discovery.

i just wanted to say good for you not just laying down and taking it-you know where! Even if they fo win, atleast you tried..please let us know how this turns out when its all said and done..we could all benefit from your story..ty ipoured-best of luck...fyi:alot of people would have cracked by now and just paid/settled it(myself included) you've gut guts to gothis far with em..best of luck..

Good luck. Mine is a bit over a month from now. Will file for motion for discovery next week. Pretty much asking them to produce the same evidence as you did. I may even add that FDCPA regulations require all the statement from the OC. The difference in my case is that my judgment was 2 years ago but thrown out because the plaintiff lied about how the summon was served. I am hoping that would put me in my favor.

How can something with inaccurate identifying information be admissible as evidence against you? If anything, it is evidence that the JDB has no leg to stand on.

The Discovery process is pretty tight. It even requires the JDB to state how much they paid for the debt.

I wish I knew the answer to that. It would appear to me that the plaintiff has manufactured Exhibited evidence (Account data from BOA) to try and match the other exhibited evidence of the credit report entry. I can only hope that just because it gets admitted into evidence that it doesn't mean the judge will accept it for it's intent.
FYI - I did cross-examine thier witness (owner of the CA/Lawfirm) and asked how much they purchased the debt for. The judge over-rulled their objection to the question and they had to answer. 4 cents on the dollar is what they paid!

I can't seem to find any Colorado case law that requires (FDCPA 809) verification of debt has to come from the original creditor.

You want the original creditor to verify the debt because they will have accurate information including dates, payment schedule (if you request it), etc. so you can calculate the SOL to extreme accuracy. It will also include your original contract which states specifically what you have agreed to add (CAs cannot add anything to your debt that is not agreed to in the original contract, or is against the law for your particular state).

So, the agency suing you is the one who actually has to prove that 1) you owe the debt and 2) they can collect it.

The judge has given both parties the opportunity to submit case law and statutes before he makes his decision. I must submit by Friday. I have learned alot from this trial. It doesn't appear to me that the plaintiff needs to show how the principal amount came to be what it is or prove have to prove that debtor opened, agreed to or used the account. Original signatures are certainly not requred to validate cc debt in court. Validation of debt does not need to be verified from the original creditor. Requesting discovery does not mean that the plaintiff will or has to produce it in order for the claim to be valid. A perponderance of manufactured evidence by the plaintiff could be enough for a judge to side with the plaintiff.

In local court possibly, sometimes judges appear to be in the pockets of debt collectors. However, if you get a judgment against you, then you can appeal it where it will go to the State Supreme Court and get the proper hearing it deserves.

I have read many appeals cases, so I would say that the information you were given is incorrect. They *do* have to prove it is yours. I stated that you may *want* the info from the original creditor if you require more accuracy and detail. But, the plaintiff is the one who has to *prove* it.

Manufactured evidence does sometimes work, but it will get thrown out in appeals court because it is not acceptable.

My validation request was for an origianl signed contract or agreement between me and the oc and my discovery request was for them to produce a signed contract or agreement between oc and myself showing that I ageed to the terms as well as production of a billing statment showing that I used the account. I never received any of this from the plaintiff. The plaintiffs witness just testified to the accuracy of documents prepared by other companies and that seem to satisfy the judge.

Some of these bottom feeders directly LIE in court with false affidavits, etc., that's why sometimes you *need* the Appeals Court. See "http://budhibbs.com/davis.html" for an example of egregious lies.

Which agency is this that is suing you?

I sent in a request for a copy of what the collection company actually paid for the account and the lawyer objected on the grounds that wasnt important to the case.

FDCPA 809 (probably all state statutes as well?) do not requre or specify that CA must provide the amount purchased for the account. It could be up to the judge in your court. It certainly never hurts to request that information either through DV or discovery. Unfortunatly the FDCPA 809 - Debt validation section does not seem to specify where verification must come from or require to show when and how it was verified.

The CA suing me is a Law firm out of Denver that claims to be the assignee/owner of the account. Incidently they do not report to the credit bureaus. They are not listed on my credit report.

Who is the attorney? You could search for cases he represented to see what he has submitted in the past and what the defendant submitted in response.

Is there a website that you can go to where you can search for cases by attorney? He looked to be fresh outta law school. The Collection agency name (Law firm) has only been licenced here in colorado for less than 2 years. I couldn't find any information about them.

I submitted my case law and statutes today in the case. the judge is supposed to make his decision tommorrow. I also received a copy of the case law filed by the plaintiff. The plaintiff's case law is much stronger than mine thats for sure. It is a very informative case (favorable to plaintiff) that has to do collection agencies using flimsy evidence (collection agencies like to call the flimsy evidence business records) The Case Law is named Teac Corporation of America v. Martin A. Bauer if any one is interested. Case No. 82CA1215 It is a very old case dated 1984. You would think that the laws have changed some since then.

Check yourcounty court websites. I know Dallas County allows you to pull up by Attorney

well, just remember that the appellate court is the best thing for this case, because the circuit courts rely on preponderance of the evidence, while appellate courts rely more on matter of law. If you lose, file an appeal and we can help you put it together

Just make sure you are absolutely careful to only state this alleged debt as "alleged" and try as much as possible to refer to it as not yours, regardless of allegations.

In Turner vs Harvest Credit Management, the alleged debtor, Turner, sued Harvest for FDCPA violations. Harvest had won a summary judgment against the alleged debtor, believing that since the debt was not his, the courts would find in his favor.

Harvest lost this case and had to pay damages and court costs. So even if you get a judgment, sue them (this case isn't even an appeal as Turner had run out of SOL for Appeals).
I hope this can help you, or at least inspire you!

How did it go? Did you get a decision back from the judge?

any news?

IPoured,

Yes, I am curious for an update, too.

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