CACH, LLC Lawsuit-How to-Opposition to Motion for Summary Judgment

I'm no expert by any means, but can you challenge the affadavit attached to the motion for summary judgement, as hearsay or require them to appear in court so you can cross examine them. Did you say that you ask for Discovery or did they ask for discovery? If you asked for discovery, can you file a motion to compel ? I'm definately not sure on that one. Just try to give some ideas. maybe someone with more knowledge will come along. good luck

Submit your own affidavit, in your response to their SJ motion, saying that this is not your account, you never made the purchase with the online music company, you never had an account with Metris, you never had a contractual relationship with CACH.

Hiya Jen--

I did send you an email reply on 1 February. Not sure if you didnt get it, but I just checked my email sent box and its there. I never heard back from you after that, so I wasnt sure if anything new had happened.

OK, first things first. The "affidavit" is useless. It's hearsay, and as such, it is inadmissable in court. I would object to that affidavit on the grounds that it is hearsay, and that if the affidavit were allowed to be entered as evidence it would deny you your right to due process. I would request of the court that the plaintiff make the person who wrote and signed this affidavit available so that you may have the consitutionally-protected right to question anyone that brings forth claims of evidence against you. You see, this affidavit trick is a common tactic, and it works for CACH and others because people do not know their rights. So, when CACH produces this affidavit, the average defendant stops questioning it and loses their case.

My answer to their motion for summary judgment would state that I oppose this motion completely. Simply put, they have the burden of proof upon them, and they have completely failed to live up to the burden of proof here. They have not produced anything that proves:

1--that this is even a real, valid debt.
2--that you are the person who originated this debt and is therefore obligated to pay it.
3--that they have the legal right to collect on said debt.
4--that the amount they claim as being owed is legitimate.

Those things are the bare-bones requirements in a case like this. The CACH affidavit is a known bogus scam. Likewise, there isnt anything on the statements they produced that proves anything, and anyone with a computer can falsify those easily enough. What you need to do is investigate CACH's other legal cases in your area--specifically, you want to research the ones where CACH was sued by a consumer for debt collection law violations. Doing some basic searchng, I found literally a ton of cases from many different states that show that this affidavit is not admissable, is hearsay, and is totally incompetent and insufficient as evidence. The business records themselves are the only competent evidence, not the testimony of someone who claims to have read them. On that note, I would definitely object to the affidavit on the grounds of hearsay, and object to the statements because they do not in any way identify anything--those statements could just as easily have been prepared specifically for this trial, to appear to be genuine statements. I may have found a good resource for you, please tell me which jurisdiction this case is in. What county is the case in? Or, if you have a copy of any specific form that is needed to file the opposition motion, feel free to email it to me and we will put it together for you.

Jon

Hi Jon! Good to hear from you! A lot has happened since February. I don't live in Douglas County anymore for one thing,..I'm in Vegas. And while that was happening CACH filed their motion. First let me respond to the other postings. In Nevada you can't just file a motion for discovery in a civil case or small claims case such as this. You have to ask the court's permission to do discovery. And the plaintiff has to be the one to request it first. And if the court deems it necessary the judge grants it. It is totally up to the judge whether he allows discovery in these kinds of cases. In this case the attorney for CACH did not include a order for the judge to sign with his request, so it sat there for almost 80 days. So I filed a motion to dismiss when nothing was happening, included an order for the judge to sign (duh). The judge denied my motion. I thought CACH would file some motion again for discovery,..but instead they went straight to a motion for summary judgment, skipping discovery all together. And I can't ask for it. Although I certainly can point out the fact that no discovery was done in my opposition to their motion. I have already denied any knowledge of this company (Metris),...and I will also deny the purchase of the music (I really don't buy music on line thank you very miuch).

Jon, I will send you a copy of the format used,..there isn't a form on the court's site (Douglas County, East Fork Justice Court, NV),...but they use the same formats as Southern Nevada. I look forward to hearing about the resource you may have found for me. Thanks again Jon,..I'm taking a deep breathe again! :-)
Later!
Jen

Oh and one other strange thing,...they attached to their motion along with affidavit and the two statements a copy of a request to the defense department about my military status. What is up with that? I have never been in the military. Makes you wonder whose debt this really is.....

hey, can you scan and email me the documents they sent to the court as well? it would help if I could see what exactly they stated in them

Well without discovery then you should simply do what was suggested above...also you should research some cases where the plantiff lost (likely because of no proof) and see how they did that....I would think you have the right to demand proof. Also use that request for your military status as further proof this may be a case of mistaken identity or even worse, identity theft. Matter of fact, you should go file a police report about this account as identity theft and take a copy of that report to court with you....submit your own affidavit (get it notarized) that you have never had this card, have never had any type of dealings with that company and have never had a military background. THEY can't object to the affidavit as it is from you and they can question you about it.

DEFINITELY put in an objection to that affidavit as hearsay!!!

Hey Jon!
I sent you the form and also a link to a site that had a step by step case that included a response to a motion for summary judgment to get your feedback. As for scanning the docs and emailing them,..let me see what I can do,..will work on it tonight.
Goldenbast,..thanks,..I think that the military status check does lend itselt to a big question about who this debt really belongs to,...unless you have heard that this is standard procedure to do this kind of search on people,..just can't figure out why that would even apply to me. Has anyone else had this happen that you have heard of?
Thanks Guys!
Jen

Hiya Jen,

Yeah, I did get your email. I am going to work on that this evening for you. Please do send the others when you get the chance, it will help with this motion in a big way. As for the military thing, I have never heard of a CA doing this, unless they have sufficient reason to believe that you are in the service. You need to think about it like this--a typical debt collector will not do things unless they think it's a good use of time, resources and money.....because after all, they are in it for the money, so they dont want to waste time paying employees to get information that cannot help them. In your case, they will send off that request and get an answer that you are not military, so it wont provide them with any sort of help that I can see.

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I dunno...I never heard of this....why would a CA just assume one is military? Just doesn't sound right to me.

Hey Jon!
I didn't hear back from you yesterday (sent you two emails also), nor have I gotten that motion to strike you mentioned. As you know I have to file my opposition by tomorrow. Getting really worried. Are you going to be able to help,..or do I need to go it alone? Waiting to hear back.....Jen

Goldenblast,...what I have been able to determine is that this is typically used when doing home foreclosures and there is some exemption in the law regarding people in the military and serving over seas. What that has to do with this case is beyond me. I think if anything it clearly demonstrates that CACH uses a cookie cutter approach to every single case and mass produces lawsuits out the ole whazoo using the same templates over and over. I will be mentioning it though. Probably won't help,..but it can't hurt either.
Thanks!

hiya Jen--

yeah, I got pretty busy with everything thats been going on here. I am going to help you get the rest of this sorted out later tonight. I already have that one motion for you, I just need to send it to you which I will do when I get back in.

Jon

yeah but this wasn't a home foreclosure...so just weird. Anyway just fight it as was mentioned above.

Jon,

I was wondering if you can assist myself. I am in a situation similar to Jen. American Express has sued my in the state of NJ. They say I owe them $28K. I have requested discovery and the they have not provided me any. The Judge has ordered Amex to provide me my discovery by 4/30. Today 4/16, I rec'd in the mail a motion for summary judgment that has an affidavit of some guy who claims to be the records custodian, he says he has knowledge of the facts regarding american express account holders who are involved in active litigation with Amex. He says I am a gold card holder and attaches an agreement without any dates or my signature. Further states that pursuit to the gold card agreement I am liable for the charges. Amex also attaches my statements that shows the balance of $28K. How can I file my opposition. Also again amex hasn't yet answered my discovery. Hearing date is 5/14

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Yeah I'll say! The OC attaches a blank agreement??? Hey remember to object to the motion! They are trying to circumvent the discovery!

Jon,

I just sent you an email with my particulars.

G.

Am I subject to the blanket agreement attached to the motion. Also Can Amex rely on the affividat of their records custodian?

Object to it as hearsay. You have the right to call this person as witness and question them about this knowledge they claim to have.

And object to that blank document. It proves nothing.

golden....you should have seen the "opposition to motion for summary judgment" that the OP sent off on this one!!!! WOW.....the stuff of legend! It even included case law with the plaintiff in THIS case getting a previous case thrown out of court in similar jurisdiction for pulling all the same tricks they are trying against her....talk about funny! I cannot wait to hear the outcome on this one.....

Wow I want to see....I hope you make them cry!

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Hey Jon!
Well I got the response from CACH, LLC. Now they are claiming they are not a collection agency!! WHAT???? And for that reason many of the laws and case history I cited in my oppositon doesn't apply. They said these key things:

1.Summary judgment is not premature because of lack of discovery. Basically saying I "can't dictate when they file a dispositive motion"--although they conveniently forget that they submitted a request for discovery and then did nothing about it when the judge didn't respond--as they forgot to attach an order. And they are citing the fact that I supposedly got statements from the original creditor which were supposedly mailed to me. The address they used by the way is a house I lived in almost 5 years ago. And no where on these computer generated statements is there a name of a company or creditor. Nor did they include documentation/accounting history from the beginning so you can see how this amount of money they are claiming due was reached or calculated.Their justification to skip discovery is based solely on these statements.
2. They are saying they "are the real party in Interest, the Plaintiff is not a collection agency" They attached a copy of a supposed assignment from the company that bought METRIS in 2005. But nothing from METRIS who they claim is the company that issued this credit card. And (I love this line) " The Defendant cannot show another party is pursuing her for funds associated with this account/obligation". Excuse me? When did it bcome my job to prove anything like this? When you don't produce a signed original contract and a complete record of account,...

Then they say "regardless of whether the Plaintiff is the real party in interest, the issue here is the liability of the Defendant for this debt". Then they try to say my citing a section of Illiniose code and case law is not relevant (I'm in Nevada),...I cited a gazillion case laws as precedent from all over the country,..including Nevada.

3. They are trying to claim that this is appropriate cause of action as they say they have stated: " The existence of a contract between DEfendant and the original Creditor is Confirmed." Really how? They have not produced a signed contract. Again they claim it is based on these statements they say were mailed to me. Here they say it was opened in 2007 and charged off in 2009. And yet Jon you will recall that their original complaint included different dates all together. And that by using this alleged account I was ratifying the existence of this contract.

4. The Defendant received statements each month. And then say "The defendant can not produce evidence that she contested the contents of the invoices and thereby by ratified their veracity by failing to object upon their receipt". Well first of all I believe the law provides that failure to contest is not an admission. Am I wrong here about this? And again? When was it my job to produce evidence,..they are the one that filed the lawsuit,..isn't it their job to show evidence that this is legit?

5. Then they say that METRIS sold the account to Plaintiff, validation of the debt under FDCPA must occur within 30 days. Then they attach the Affidavit of Sale which is basically a sheet completely blackened out with the exception of one line with my name a bunch of XXXXX's and a date. Then say I didn't contest within 30 days therefore it is valid. But still the company they claim is the assingee is METRIS. But the assignment is from the company that bought METRIS in 2005 which is the Hong Kong Shainghi Banking Corporation. So what is wrong with this picture. Shouldn't the assingment be from METRIS,..and not the company that bought them if METRIS is the company I opened and had this alleged account with in 2007???? Does anyone else see something very wrong here??? How can METRIS have my account in 2007 but they were bought and became this HSBC company in 2005. Shouldn't their assignee in this suit be HSBC if that is who they bought the account from in 2009???? What am I missing???

And that is it. That is their response. They didn't even argue on my Motion to Strike the CACH's employee affadavit. Which seems very odd,..don't you think? Anyway,..will be calling the court tomorrow to find out what happens next. As I am not sure at this point. Last time I spoke to them they said the judge may ask for a pretrial hearing,...but I don't know. Thoughts anyone? I will wait to hear from you Jon.
Thanks!

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wow....thats it? They claim that because they bought the alleged debt, that it somehow means they arent a collection agency? Thats rather funny....

First, if you get the chance, you can object to EVERYTHING that claims that you received any statements or notification from the original creditor--I would object to all of those on the grounds that they all assume facts that are not in evidence. It is simple--they have not proven anything about any such claim that you received any statement from anyone. They have only stated that you received statements in their response. That is nowhere near enough proof.

Second, you can object to everything that they said claiming that you have any contractural obligation, because once again, it assumes facts not in evidence. It isnt enough for them to claim that, they would have to actually prove that such a contract exists and they have not. I would then address the statements they did provide--and state that these photocopied statements could have legtimately come from anywhere, that there is no identifying information anywhere on them that would show that such a contractural relationship existed. They also do not show anything about the complete balance history or payment history, so the plaintiff has nowhere near met the burden of proof as to the amount they claim you owe.

Third, I would object to anything that states METRIS is the OC. As you mentioned, HSBC bought them out in 2005, and yet they claim you did business with METRIS in 2007. I recall seeing another case in Nevada, in your county of current residence, where CACH sued someone over the same OC, and their suit actually stated "the entity formerly known as METRIS" as the OC, but they didnt try to make such a claim in your case. That case, by the way, was just filed earlier this year.

Your #5 above is very interesting--because THEY claimed that "the FDCPA provides that validation must be requested within the first 30 days". THEY ARE USING THIS TO DEFEND THEIR POSITION--you see, they are claiming in this that they no longer have to prove their case to you because you didnt request validation within the first 30 days that they owned the debt. BUT WAIT--didnt they claim that they are not a debt collector? SO WHY WOULD THEY CITE THE FDCPA IN THEIR DEFENSE? The FDCPA ONLY applies to third party debt collectors! Additionally, they left out the most important part of section 809 of the FDCPA--it states that you have 30 days FROM INITIAL COMMUNICATION to dispute, it does NOT say that you have 30 days from when they buy the alleged debt. They did not notify you back then, so you had no reasonable way to know that there was anything to dispute at that time. I think that the judge will find it quite ironic that they say "we're not a debt collector" in one breath, and then cite the FDCPA to try to defend themselves in the next. That alone proves how backwards they are.

Now, keep in mind, you may not need to use these objections, but if you do, I would fire away big time with them. youve already shot holes in the one and only thing they provided that could have been used to back their claims--the affidavit. If the judge sends to hearing on this matter, I would definitely object to those things on the grounds I mentioned. WOW...talk about a mess! I cannot believe that these clowns actually are trying to win a case like this! It would be one thing if you didnt put up any defense, but MAN....talk about ignorant!

I will know more tomorrow when I call the court,...I will scan the docs and email them to you Jon,..if you can let's see if we can chat sometime over the weekend if you are available and the great wife of yours is willing to share a little of your time,...I'll send you an email after I talk to the court. Did you get my email about CACH being licensed in Colorado (which is the address they give for their corporate office),..and ready for this,..they have had action taken against them by the State Attorney General! I made copies and will be contacting them to find out more details since this is listed on the AG's site as public information. They flat out lied in their response to the court by claiming they are not a collection agency. There must be some law or precedence for that isn't there?

Also,..don't you find it odd that they didn't respond or protest to the motion to strike that affidavit????

I dont find it odd that they didnt respond to your objection because the only way they get to use that worthless affidavit is if the defendant doesnt object to it. They knew going in to this that it was wrong to use it, so I'm really not surprised that they now have nothing to say. After all, the person who signs these affidavits is often not even a real person, so it isnt like they would want to would produce that person in court to have to testify that they couldnt possibly have witnessed anything.

Don't forget this little gem:

? 809. Validation of debts
(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

Remember #5 and they said:
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Hi Everyone!
I just had the wind taken out of my sails. The court clerk called me this morning and let me know the judge ruled for the summary judgement. No phone conference, no discovery, no trial. I was stunned. As I thought the next step was a conference and it was going to trial. I am beside myself. I don't have a job, don't own a house, don't have a savings account,...and in two months the little settlement money I am living on and supporting my family with that I got from my previous employer runs out and I will literally be forced to move,..and don't know what I am going to do. The judge made this decision yesterday. I don' know what happens next. My first thought is to pull what ever little money I have in my account out as soon as possible so I can pay my rent and live,...how soon can they go into my account does anyone know? I was told that I could file an appeal. But that costs $137.00 plus I have to pay a bond which she said could be the entire judgement of $2616.00. I don't have that money, and can't get legal aid here to return my messages. I asked her what happened. She said he decided based ont eh documents that CACH submitted. I told her that the last document submitted may have been fabricated,...and I had hoped to present that challenge at trial. She asked why I didn't include that in my response. I explained to her because this was submitted with CACH's last response opposing my opposition to summary sudgement and I didn't know I had the option to make another response,..as she had indicated in our last conversation that it looked like a phone hearing and trial was next, and that she had told me to check back about the judge's decision as to which way to go next. She said I should write a letter to the judge about this. But what good will that do at this point? I have 20 days to file an appeal. Or wait for CACH to notify me of them taking money from my account or whatever method they intend to use to collect the judgement. What do I do,..I am feeling so totally overwhelmed and at my whits end,..and in shock. I can't believe I went through all this for nothing! I want to cry,..but can't as I am so stunned. Jon if you see this,..give me a call later,...thanks!
Jen

First, don't give up. If the clerk suggested writing a letter to the judge, then do so. It can't hurt. Or you can file a motion for reconsideration. Explain that you are pro se and should be granted leniency as to procedural issues, and that the court did not have all the facts.

Second, protect your bank account. Yes, pull money out. Don't keep more money in a bank account than you can afford to lose. If you have any direct deposit, stop it if possible and get paid by check. Or look into the prepaid debit cards like Green Dot. If you have any income that is exempt (such as Social Security), be prepared to assert that exemption.

Also check out some other Internet forums, such as Debtorboards and Credit Info Center - they have extensive info on protecting yourself after a judgment.

I just wanted to let you all know that at this point, my fight is over. I don't have the financial resources nor the strenth to file an appeal. Here in Nevada in order to take this to the next step I would not only have to pay $135 filing fee, but they require a bond be paid,..the judge decides what percentage up to 100% of the awarded summary judgement must be paid up front. If I had the money to do any of this...I would have hired a lawyer to begin with,..as I sure as heck didn't go through this hell for fun! These people won their case without ever going to discovery, without ever producing a signed contract, without showing records going back to the opening of this alleged account,..nothing but two statements with no company name or logo on it that already had a $2,000 balance on it with no indication at all of how that amount was reached. They had an affidavit with a stamped signature which was drafted not by the supposed original creditor,.but one of CACH's own employees claiming to have "knowledge of this account". I believe these statements were fabriated on their own computers. No case law, nothing I brought forward,..did a damn bit of good. It didn't even matter when I let the court know that I thought that this might have been an old account I had 6 years ago as part of a bankruptcy. Nothing mattered. The court awarded them $2,500 plus interest,...no court,..no hearings,..no nothing,...no questions asked. I have to believe that either this judge was overwhelmed with cases and just wanted this off his desk,..or someone was taking a bribe. There is no other reasonable explanation for this decision. The truth was irrelevant. Obviously justice can be bought. I feel so very discouraged and disgusted by this experience. If I had known the outcome,..I would have settled,..even though I know without a doubt this account didn't belong to me,..or if it did,...it was a very old one that had been written off in bankruptcy under a different name years ago. But I will never know now. This was a hard lesson to learn.

Anyway,..I wanted to thank skydiver and the others who have been a great support and sounding board for me throughout this year long battle. Thanks guys!
Jen

What if there's a way for you to fight this without having to spend money?? There may be a way....drop me an email! I'm gonna check a couple things...

I'll email you,...but I think that the 20 days may have passed,..I got an email yesterday telling me I had mail,..and the only one I get mail from at that address is the court or that a**hole Attorney for CACH. Of course I think the law actually says I have 20 days from the time I receive it,..I'm not sure...when I found out how much it would cost,...I stopped doing my homework. Sigh. It sucks being unemployed and broke,...don't you love it when courts kick dogs when they're down???

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I am in a similar situation as the OP

I received a suumons to court for 09/23/2010, attached is this same affidavit

It is being brought forth on behalf of cach ll by Dominion law associates here in Virginia, city of Virginia Beach

i would appreciate any assistance in dealing with this, I honestly forgot aout this court date i place to docs somewhere i wouldnt lose thenm but eventually forgot about them

Do debt collectors have to be licensed in Virginia? how do i find out if cachllc is if it is required, or is the fact that an atty from VA persuing sufficient for licensing purposes

I had a judgment against me today by the court. Cach LLC at first said i owe Metris so i denied the summons and requested Validation, (no responds). So today in court, they provided account of HSBC which i used to owe about 3 years ago. They claimed, since the case was already filed, the validation period has past. The judge quickly granted them judgment $3402.00 because i acknowledge HSBC.
So now how to i negotiate before $hi+ hit the fan.

im in the same boat, except i live in a state with no wage garnishment, and do not own any property, except my car which is exempt, also I was told they CANT go after bank accounts unless it is tied somehow tied to the credit card. this was told by an attorny i sought after i was served, she stated just let it go to judgement they cant get anything from you, of course now for 10 years i cant own anything, but thats ok just have the hubby put the house in his name lol. there idiots who try to scare you.

have been served on 2 boa that cache "?combined?" into one. (think because they wanted to go to higher court by combining)

let's start with can they do this?
can I ask to be separated?
do you have to reply in 20 days?
court date is less than month away; illinois

have been served on 2 boa that Cach "?combined?" into one. (think because they wanted to go to higher court by combining; which is mandatory arbitration after discovery phase)

let's start with can they do this (combine) ?
can I ask to be separated?
do you have to reply in 20 days?
court date is less than month away; illinois
(sorry to repeat)...had to make additions, changes