Trial 3 days away

First of all, when you get to court and the collection attorney pulls out the statements and affidavits to make his case, you must make an objection to his evidence as hearsay. Unless the collection attorney and the OC are willing to bring in an employee of the OC that has first hand knowledge of your account and can verify the statements and affidavits in court, his evidence is useless once you object to it. This is where most collection attorneys will pack it in and file for a dismissal. Most OCs will not commit the time or expense to fly an employee to your city for trail, it's not worth it to them.

They just called my house trying to settle before trial on friday

there claiming there witness at trial is someone who works for the Plaintiff and is keeper of there books and records

OK, here's the thing....

The plaintiff is claiming that you opened an account with the original creditor. A witness who works for the plaintiff cannot possibly have any knowledge as to how the ORIGINAL CREDITOR kept their records, or even if you entered into such an agreement with original creditor at all in the first place. Thats the way to handle this witness.

Plaintiff will ask the witness about the PLAINTIFF'S records, but this case is not about you entering into a business relationship with the PLAINTIFF. It is about their claim that you did so with the OC. In order to prove that there is any indebtedness on your part for this account, you must first make them prove that there is even an account to begin with. I would cross examine this "witness" basically like this:

ME: Is it fair to say that you would have personal detailed knowledge about the plaintiff's records in this matter?

WITNESS: Yes, I do.

ME: So then, I guess that you would be familiar with this document--submitted by the plaintiff, and showing that the alleged account originated in 1995, with BOA as the original creditor?

WITNESS: Yes, I am familiar with that.

ME: Is it your testimony here today that the information contained in this document is true and accurate to the best of your knowledge?

WITNESS: Yes, thats correct.

ME: Then perhaps you would care to explain this document, also submitted by the plaintiff, which claims that this same alleged account was in existence in 1994? The plaintiff has submitted both of these documents to this court as evidence against me. Please tell the court how it is possible that the same alleged account could have originated both in 1994 with Fleet Bank, and then originated again in 1995 with Bank of America?

When the witness has no answer for that one, I would move on....

ME: You have come before this court today as an employee of the plaintiff, is that correct?

WITNESS: yes.

ME: Were you employed by Fleet Bank in 1994, so that you would have been privy to records with that company that would have showed the creation of this alleged account?

WITNESS: No.

ME: Were you employed in 1995 with Bank of America, so that you would have been privy to such records of any alleged account with that company?

WITNESS: No.

ME: So, being that you have never worked for either of the alleged original creditors, wouldnt that mean that you do not have ANY actual knowledge regarding the creation of this account, other than the records of the plaintiff?

If the witness says that the plaintiff's records are his source of knowledge, then I have himi right where I want him, because their records show two dates of origination for the account. CLearly there would have to be an error in their records, and being able to prove that there is obviously something wrong with their records could cast a lot of doubt on the rest of their records too. Even without that, the fact that the witness has no personal knowledge of how the supposed original creditor(s) kept their records, there is no actual proof against you that I can see.

Also, records that are transferred from an OC to a plaintiff like this, you must object to them all on the grounds that they have not been properly autbenticated by the originator. Those statements that they sent as "proof" could easily fall into that category. I have to go back to work, but I will do some more looking for you between tonight and tomorrow, there is a thread on this very forum where someone posted a lot of good info on this exact topic. lets see if I can find it...here it is, look at post #9.....

http://www.debtconsolidationcare.com/members-only/thread52322.html

Compare the info in that post to the documents that they submitted to the court as "proof" of this account. I will check back with you between tonight and tomorrow to see what else we can find...

thanks diver.. I will use this info if they take the stand... Can I object to them taking the stand as hersay???... they called me today and try to settle before the trial date friday... do you think they will dismiss before the trial

There isnt any point in objecting to the person taking the stand....if the plaintiff tries to pass off an affidavit of that person's testimony instead of producing the person himself to testify, then I would object. But the hearsay rule does not apply when the person in question shows up to testify. Then again, the cross exam example that I posted earlier is a portion of what I would ask in court, and the whole cross that I would use is designed to basically shut this person up anyways, because they really do not have anything to offer in the way of solid testimony against you. I would actually be surprised if the plaintiff even produces this witness. This is just an observation, but if they actually had a solid case against you, they wouldnt be trying to settle just a couple days before court. If it were me as the plaintiff, and I could solidly prove that you owed me, for example, $4000, there is NO WAY that I would call you up three days before trial and say "hey, I would take $2400 if youre willing to settle". If I could prove $4000, why would I take less? There is simply no upside to them trying to settle now if they could really prove their case--think about it....they have already incurred legal expenses by hiring an attorney and filing suit against you. And, if they can prove their case, they would no doubt be asking for(and getting) their attorney's fees from you as well. Simply put, if they could really prove their case, they would have nothing to lose and everything to gain by going to trial.

the person taking the stand is not the signer of the Affidavit from the OC... they are the keeper of books for the plaintiff.. Just incase I did not say


I am not settling... I have gone to far and put to much work into this to settle now... I dont want to go to trial and hopefully they dismiss before friday... But if I have to I will go and fight... I have read some Local caselaw and they dont have vaild proof they own this debt.. and I have been putting together my arguments for friday... if this is dismissed I am fine with that.. if they have not filed for a summary judgement and are calling me to settle before trial.. they know they have no case

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how did you hear about the witness? And was it the plaintiff or their attorney that said they had this witness?

Here's the thing--the FDCPA says that ANY deceptive practice used in the course of attempting to collect a debt is illegal. So, at this point, if they dont actually have this witness, they just violated the FDCPA! That means YOU could sue THEM and they would have to pay you up to $1000 plus court costs and attorneys fees if you win!

they stated it on the Pre-trial memorandum.. it states the following Plaintiff intends to call Magic West or Alternative to be name prior to trial keeper and custodain of the records and books of the plaintiff who will authenticate the records of the plaintiff and testify as to how plaintiff has arrived at its damages

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Maybe I should call the Courthouse the day before to make sure the Trial is still on????

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Tommorrow is the Big day... I am going to call the Courthouse today just to make sure the trial is still on... does anyone know about what time Court clerks offices close????

I Called the Courthouse... Trial still set for tomorrow at 9am

Well, how did it go?

both the lawyer and the wittiness was there ... the trial happened. I objected to all there Evidence. Objected to the hearsay rule on the Affidavit of debt... but it was still allowed in. I objected that at no time was the Affidavit signer there for any acts between me or Bank of America...I objected to there Credit card statements as not Authenticated... they still allowed some of the statements in because of there witness.. the Fleet bank ones was not allowed it... I think he did say something about the Affidavit having no other docs with it or refering to any...the Bill of sale was not allowed in as Evidence but the judge said he would take it under advisement....I gave him some case law NORFOLK FINANCIAL CORPORATION vs. NADINE MAZARD... to support my claim that they don't have valid proof they own the account. the JDB Lawyer said that was no good.. The Judge said he knows mostly contract laws and not JDB Ones. he said there was no credit card agreement included and on the statements that were allowed in there was no payments made shown.. he did not rule on the case and said you will get a ruling within 30 days in the mail

I am not sure what to think.. I thought by the bill of sale not being allowed in it looked good

I Have still not gotten a answer from the court as of yet on the ruling of my case... but the JDB Laywer called me today and left a message on my Machine... why would they be calling me?????? I wonder if I lost my case???