pre-trial Memorandum

Hopefully you have the same pre-trial notice as I do. If you read it, does number 6 say sanctions? If so that is your answer. Failing to comply with the notice could result in entry of default, dismissal or assessment of costs.

What I would try to go for is a default judgment in favor of the defendant for the plaintiff's failure to follow the rules of cilvil procedure and the pretrial order.

The problem with getting it dismissed is for the first time it is usually without prejudice, so then they can refile again, but they have to start all over. The second time a case is dismissed is always with prejudice.....you could file a dismissal with prejudice too.

It should say on the pretrial notice what needs to happen with the memorandum. They must send it to you 3 weeks before the pretrial.

Hey Pat, yes correct thats is what number 6 sanctions say, Yes it says must have it 3 weeks before Pre-trial thats next Wed, I was just wondering what to do, if they end up not sending me one, Maybe nothing, my court date is less then a month away, They are a JDB and in discovery I asked for a Chain of Custody / Assignment, They had yet to provide me with this, To show That they Legally own this debt and have the right to collect on it, I dont see how they can win at Trial without this

If you do not have a biased judge, they cannot win. Some judges love debt collectors and side with them with limited information....others play by the rules. It is up to you though to know what rules are being broken and at trial know when to object, such as for hearsay, inadmissible evidence.....If you don't object to the plaintiffs claims at the right time at trial, then it will go for consideration in the end, but if you object and the judge allows it, it is removed for what he decision.

For chain of custody/assignment, you can file a motion to compel. you will get a court date, usually 2 weeks after it is sent to the plaintiffs attorney, and the judge ORDERS them to produce if he feels they need to. If they fail to comply you can win by default...they could also tell the judge they don't have it, which is even better, cause you can then ask for the case to be dismissed right there, or you will most likely win at or before it goes to trial.

If at 1 week before the pre trial they do not send the memorandum, you should go to the court house and file a motion to dismiss stating the facts. Outline every reason why, including the fact they have not sent the memorandum as required by court order. You could also throw in how they have no documents showing they have the right to collect on it.

Debt collectors are dumb, the attorneys that only do debt collection lawsuits are even stupider.....They don't care how much it costs to make a few thousand. They will spend $4,000 to make $2,000. Most of the time, the attorney can get their fees paid by the consumer. They figure you will get scared at trial and they will win, that's why they keep pushing.

I said it before and I will say it again. Most likely it will not go to trial and if it does either they will not show up or they will not be prepared.

ok, I'll wait for a week before, then go to the Courthouse and get the paperwork, to file a motion to Dismiss, I dont really know what Facts to state other then, they have not giving my the Correct Douments to show they have the right to collect on this Debt and they have not sent a memorandum ordered by the Court

Would I also say, they have not provided Detailed info about the 3 account Numbers in Question and a bill of sale with no Detailed info of my or the account in Question They have not provided any signed Docs as well

You can try that but I am not positive it will work. They have up until before the trial to submit their evidence. At the day of the trial I am pretty sure they cannot just say "hey, here is a contract" You could strike it from the record as they had plent of time to send it.....they probably already said it was destroyed or not available so to say they have it now is not allowed.

once you send them your motion to dismiss. they will come back with their opposition to dismis

stating why it shouldn't be.....then you will know what thier defense is to it.

ok, why it shouldn't be is they have not supplied any sign docs with my Signature on the Account and they claim to own the debt yet they have not provided a chain of Custody to show Legal proof they own the Account and have the right to Collect on it

Once I get the Papers from the Court to Dismiss, I'll file with this answer, along with they failed to follow court rule order about the memorandum

Quote:

ok thanks, yes I sent them Interrgatories and they answered with round about answers and they did not send me any other info besides what they already sent me, like I asked for a chain of Custody they said they already did with the bill of sale, yea they have to travel about an hour and 30 mins and thats with no Traffic coming from Boston there coming from Peabody and the Courthouse is in Attleboro

ALmost 2 weeks till Pre-trial, still no Memorandum

You will probably not see it till then either, or they will not give one at all. What will happen is a neutral party will be at the pre trial, ask if you have everything that you need, ask if you have come to an agreement, if not a trial date will be set.

I really don't see this going to trial, I will be shocked if they actually show up for trial. I will be even more shocked if they win. Theya re playing it right till the last second, hoping they can get something to use against you,90& of the time they won't....Hopefully my gut is right as I see this getting dismissed right before trial, most likely they will try to get you to settle a few weeks before, don't fall for it.

if I dont have a memorandum by next wed, I will file a motion to Dismiss, Pokertramp is there a certain way to begin and ending on the Motion to Dismiss???

It is 2 forms, the first one has some reasons why, usually you check off the one you want or check off other and write motion to dismiss,,,been a while I forget. The second page you write every reason why you want it to be dismissed...doesn't have to be a huge paragraph, just a basic outline......you then write on the bottom, who what where when and how you served the papers, you will mail it CM RRR to the attorney. They will then serve you with an opposition to why it shouldn't be dismissed and then you go to court, both explain their sides, and the judge decides.

thanks Poker, these are my reason for dismissal

1-Plaintiff has received request for discovery, but has failed to produce any documentation in response.

2 - Plaintiff has not provided a Chain of Custody/ Assignment to show they have legal proof they own this Debt and have the Legal right to Collect on it,

3--Plaintiff has violated the rules of civil procedure for the State of Massachetts , because they never provided Defendant with a memorandum as ordered by the Court 3 Weeks before Pre-trial

4--the only documentation plaintiff provided was a blank credit card Agreement, which is dated four years after the date that plaintiff claims the defendant opened the account. Since the agreement is from such a later date, it is not relevant to this case, because any stipulations and conditions that appear on it may not have been in effect four years prior, when the debt in question was allegedly opened

Let us know how this turns out, I'd love to know. My understand is that if they can't validate the debt a motion to dismiss based on the fact that they didn't validate the debt should be enough.

I have been told that the Affidavit of debt and 5 copies of old credit card statements, they gave me is enough for validate of the debt, But they need to show a chain of custody / Assignment to show they legally own the debt and that they have the legal right to collect on it

Who is the affidavit from?? Was it the OC or the debt collector??? The thing with the affidavit is, how long has this person been an employee? where they there when this alleged debt was opened or where they hired after that? There is a lot to it and I don't know it all myself, if a lawyer really wanted to fight it, they could have it thrown out.

Just a question but who told you that that is enough for them to sue you on?

The affidavit is from the OC and it said the Affidavit was done by a bank employee and the info gathered was from there hard books, it says my name and #ss Number and when account was opened , charged off and sold to Cach LLC,

No one told me, I requested Debt Vaildation from them back in jan, they sent me that Affidavit and 5 old statements and sued me off that a few months Later

The bank employee is in a different state than you I take it? How would they know it is yours? Did they see you sign a contract, make payments???? These are things that the plaintiff would have to prove. Someone could have opened it in your name so that doesn't mean it's yours. The person on the affidavit has to be at trial for cross examination...who is to say the affidavit is not made up by the debt collector???

Yea the Affidavit came from BOA located in NC, They said they have no signed contract or Docs everything has been destroyed, only proof is this affidavit and 6 old copies of bank statements from 2 to 10 years ago, True how do I know this Affidavit is Real, I am sure they have these things made up, I am sure easy to Fake

I am going to go file my motion to Dismiss Next wed

these are my reason for dismissal

1-Plaintiff has received request for discovery, but has failed to produce any documentation in response.

2 - Plaintiff has not provided a Chain of Custody/ Assignment to show they have legal proof they own this Debt and have the Legal right to Collect on it,

3--Plaintiff has violated the rules of civil procedure for the State of Massachetts , because they never provided Defendant with a memorandum as ordered by the Court 3 Weeks before Pre-trial

4--the only documentation plaintiff provided was a blank credit card Agreement, which is dated four years after the date that plaintiff claims the defendant opened the account. Since the agreement is from such a later date, it is not relevant to this case, because any stipulations and conditions that appear on it may not have been in effect four years prior, when the debt in question was allegedly opened

I read up on some info, and the copies of statements are no good unless they are authenticated by the OC Required by the FDCPA, Should I include this on the Motion to Dissmiss????

ok I updated my Motion to dismiss

1-Plaintiff has received request for discovery, but has failed to produce any documentation in response.

2 - Plaintiff has not provided a sufficient Chain of Custody/ Assignment to show they have legal proof they own this Debt and have the Legal right to Collect on it,

3--Plaintiff has violated the "rules of civil procedure for the State of Massachusetts" , because they never provided Defendant with a memorandum as ordered by the Court 3 Weeks before Pre-trial

4--the plaintiff provided a blank credit card Agreement, which is dated four years after the date that plaintiff claims the defendant opened the account. Since the agreement is from such a later date, it is not relevant to this case, because any stipulations and conditions that appear on it may not have been in effect four years prior, when the debt in question was allegedly opened

5 -- the Plaintiff has provided a Blank bill of sale, That is not relevant because it does not contains any detailed information about the Account in Question or the Defendant

6--- the Plaintiff has provided Photocopies of Credit card statements that are not relevant, Because they have not Been authenticated by the original creditor and "FDCPA Rules requires that documentation come from the original creditor"

looks good to me.i would PM skydiver though.i'm sure he will find it sufficient,but he is the legal eagle.

Thanks, I did PM Sky, I would like to shoot down there Affidvit of debt as well, but not sure how to word it, maybe they give false and fraudulent information and name some Case were that happened

If I remember correctly, you stated that the Affidavit is from the Original Creditor, has been notarized....Is the notary in the same state as the Original creditor?

The one good thing about affidavits in the US are that they can be thrown out of court even if it has been notarized. It does not prove a defendant guilty just because the OC said so. You have rights to object to it as hearsay. You also have the right to cross examine the Affiant, the person who swore under oath that the affidavit is accurate. You want to be able to ask them how long they have been employed, how they know for a fact you had an agreement with the OC, have they ever seen the original signed contract, what state was the original contract signed on. ....Another good one is the exact date the contract was signed on, not the date the account was opened......was there a witness that also signed the contract.

You could go on and on to cross examine the Affiant, without having that person at trial it takes your rights away and the affidavit should be construed to as hearsay.

If I where you I would research as much as you could about hearsay and affidavits so when you do go to the date of you motion to dismiss you could bring up some facts. Try not to look too smart but present simple facts.

Lastly please do not feel disapointed if you get denied on your motion to dismiss. You still have the pre trial and then the trial which they could not show up for either and you will win also they could fold their cards at the end and file a stipulation of dismissal.

the affidavit is from NC and so is the Notary Stamp, it says a account number and the date account was open, But they wont have a signed contract, because I never opened a BOA Account, I did have A fleet back account and at Guess at some point they was purchase by BOA

I found some cases were affidavits are false and fraudulent, I could use them, I guess, not sure how to word it tho

ok how does this sound

The Plaintiff has provided a Affidavit of Debt, At no time was the creator of the Affidavit , or any of Plaintiffs employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and Bank of America, Defendant Objects to the Affidavit of debt as Hearsay and not relevant to the case, Because the defendant believe the Affidavit to be Inaccurate Based on these Facts

1 Credit card statement Marked A from Plaintiff and Affidavit of Debt show different account numbers

2 Affidavit of debt states account was open 03/3/95. Yet a credit card statement from Plaintiff marked A Shows a month and year of April 1994

3 Affidavit of debt states account was charged off on 10/23/07. yet both in the Complaint and in Interrogatories Plaintiff claims account was charged off Sept 2005

Good eye, that sounds pretty good, hopefully it is convincing to the judge. Sometimes it is not good to site cases, it is almost like telling a judge how to do their job as if they don't have a brain to think on their own.

ok so this is my final Motion to dismiss, I have shot down all of there so called proof , I will file the motion this wed


1-Plaintiff has received request for discovery, but has failed to produce any documentation in response.

2 - Plaintiff has not provided a sufficient Chain of Custody/ Assignment to show they have legal proof they own this Debt and have the Legal right to Collect on it,

3--Plaintiff has violated the "rules of civil procedure for the State of Massachusetts" , because they never provided Defendant with a memorandum as ordered by the Court 3 Weeks before Pre-trial

4--the plaintiff provided a blank credit card Agreement, which is dated four years after the date that plaintiff claims the defendant opened the account. Since the agreement is from such a later date, it is not relevant to this case, because any stipulations and conditions that appear on it may not have been in effect four years prior, when the debt in question was allegedly opened

5 -- the Plaintiff has provided a Blank bill of sale, That is not relevant to the case because it does not contains any detailed information about the Account in Question or the Defendant

6-- the plaintiff has provided a Affidavit of claim and certification of debt, That is not relevant because it does not contains any detailed information about the Account Numbers in Question or the Defendant

7--- the Plaintiff has provided Photocopies of Credit card statements that are not relevant, Because they have not Been authenticated by the original creditor and "FDCPA Rules requires that documentation be authenticated and come from the original creditor"

8-- The Plaintiff has provided a Affidavit of Debt, At no time was the creator of the Affidavit , or any of Plaintiffs employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and Bank of America, Defendant Objects to the Affidavit of debt as Hearsay and not relevant to the case, Because the defendant believe the Affidavit to be Inaccurate Based on these Facts

1 Credit card statement Marked A from Plaintiff and Affidavit of Debt show different account numbers

2 Affidavit of debt states account was open 03/3/95. Yet a credit card statement from Plaintiff marked A Shows a month and year of April 1994

3 Affidavit of debt states account was charged off on 10/23/07. yet both in the Complaint and in Interrogatories Plaintiff claims account was charged off Sept 2005

looks pretty good. I can't wait to see what their opposition to dismiss will be. Best of luck!!!

thanks, I am sure they will think of something, in my discovery they said I already was sent the items I requested and use round about answers, I am wondering if they will even show to the Pre-trial, its an hour and 15 min drive for them and thats with no Traffic coming from Boston, when I was last in Court, they looked like in a hurry and a rush and was just looking for the easy Money, calling peoples name, they dont Answer boom Judgement, I figured they showed for that date because they was there for about 10 other people besides me, if there coming just for me, I dont see them showing up

do you think I can just type my cites for the montion up and bring it with me and fill out the motion to dismiss paper work at the court house and just include my cites it???

I posted a comment and for some reason it is not showing......

It depends on the law firm size and if they have any other cases the same day. I also think that they cannot just send a different attorney for them. It must be the attorney of record. I forget the exact wording for it but they must file something before the court dates showing they have a different attorney filling in for them. Pay attention to who goes and if you have to, try to object to it. They are always in a rush and are pretty dumb too, the only thing they can do in court is site a few laws, if they have someone who has done their research, these debt collection attorneys have no defense.

Remember that when you go for this motion, it is like on judge Judy, don't talk over the judge, wait your turn and if you want to ask the attorney a question, check with the judge first.

You can type them up, the court has 2 forms, one for the motion, multiple choice, and the second page is for the reasons. Make sure at the bottom or a seperate page, you put who you sent it to, what you sent, where you sent it, when you sent it and how you sent it. Something like this:

On March 3rd 2010 I served a true copy of the attached forms for motion to dismiss to plaintiffs attorney(name) at (address) by certified mail return receipt requested using tracking number ####-####-####-####

Then put your name address and pro se at the bottom of that.....when you sign these forms I wouldn't sign them as you usually sign your name, you could just initial them if you want.....I don't think they are stupid enough to forge a signature but there is a first time for everything. Make 3 copies, one for you, the court and 3rd to mail to the attorney.

Also look up attorney of record on wikipedia. It gives a brief explanation of how things work and how an attorney failing to show and sending one not on record can get a case dismissed.


Hopefully this is what I put in my last post,lol.

ok thanks, Do I file the motion with the court first, Because I need the forms from there, then go to post office and mail one to the JDB Lawyer????, If I remember right, when I filed my answer with the court for the summons, I had to mail a copy to the JDB Lawyer and had to sign a paper of service with the court saying that I mailed a copy to the JDB Lawyer

Yes first go to the post office and get the green card and the slip so you can send it CM RRR, you want to put the tracking number on the paper for the dismissal, this way the court has a record of it too. This way they can't say they didn't get it, plus you have the green card and if that gets lost, you can look up the tracking number online.

then print everything up for you motion to dismiss. Then go to the courthouse and fill out the form, you will not need the second page for it. The clerk will date stamp it and set a date for you. The go to the post office and mail it..

You probably will not have to sign a paper of service is all that will be outlined on the bottom of your last page for the motion to dismiss.

Post didn't show again grrrr..

Go to the post office first and get the green card and certified mail slip, this way you can print the tracking number on the bottom of your motion letter like I mentioned earlier. Then do the decleration of the who what where when and how for mailing including the tracking number like I mentioned above..Is it overboard??Probably but better safe than sorry....plus the court now knows the tracking number and if you do not get the green card back you can look it up online to prove they got it. I had a debt collector say they never got something, the green card got lost but I had the proof of mailing,,lol I ended up winning anyway.


Then go to the courthouse...make sure you have enough copies of everything.

Then off to the post office.

ok thanks, i'll go on Wed afternoon, the courthouse is only 10 mins from my house, I am wondering if they will try and file a summary Judgement, funny how they now broke a court order with no Memorandum, but I am sure they will get around it,

They will probably send it the same day they get your motion to dismiss, that is what happened with me anyway. They tried to make it look good but I knew they where lying.....it took 14 days to get from Boston to me,lol about 70 miles. but had the letter dated the same day as they signed for my Motion. I think that was for the interrogatories I served.

you mean send the Memorandum, yea I am sure they will send it as soon as they get the Motion or have it for me at the pre-trial, yea If I was late with my answer to the summons, I would get a default judgement, How does the Motion to dismiss work, the Judge will read it over and wait for there reply?????

Once they get the motion and why you are requesting the motion they will send an opposition to dismiss, stating why your reasons for dismissal are wrong. You will then go to court, usually the plaintiff will speak first, then you, then them, then you.....just like on judge Judy. Either the judge will decide right then and there or he or she will tell you that they will mail their decision in the mail.

Make sure you don't talk over them and if you do not agree to what they are saying then wait for them to finish talking and then tell the judge why you disagree.

wow really you have to do that, I thought the judge would just read my moiton and there response and file a answer off that, I might be really nervious and not know what to say and how to answer there questions or the Judge, I am sure there is a slim chance they will just agree and dismiss it

It's all pretty basic, you are repeating pretty much what you put in your motion, sometimes more detailed....one thing this does is for the judge to see if you are lying,,,,by going off of what you wrote and what you said...You are there to convince the judge that the lawsuit is sloppy,not in order and a waste of the courts time...not actually saying that but that is what you want them to think when you are done.

One thing you do not do like I did once. If you denied it 100% in your answer to the summons, keep it that way. If the judge asks you if it's yours, you say absoulutely not.....never say you don't recall when you stated in your answer to a summons that you said it was not yours...

If you neither confirmed nor denied the debt the you can't fully deny it now and you would say pretty much the same thing,,neither confirm nor deny..

I filed with can not confirmed nor denied and I paid a lawyer $150 just to answer that, wow what a waste of money could of did it myself, Some one told me if the judge asks me is this your debt, answer with, your honor I stand by my answer submitted to the Court,

Ouch $150....

Yes you are standing by your answer....as long as she or he doesn't test you and ask you what your answer was,lol

I made the mistake of saying I didn't recall after I had said in the answer that I denied it....the judge was not happy on that one.

Okay I am out for the night, good luck with everything as I might not get around for a few days.

ok thanks, if I am lucky the JDB Lawyer will just agree to dismiss

My wife thinks I should not file the motion to Dismiss yet, till at the pre-trial or after, she thinks maybe they wont even show up to the Pre-trial

well, if they dont show up, the case will be dismissed without prejudice. This means that the case will be over, but they will still have the option later on of suing again. Also, another junk debt collector can buy it from them and they can sue you for it. If you get a case dismissed with prejudice, even if someone else tried to sue you for it later, the dismissal itself would be enough to end any other attempt by any debt collector trying to sue you on the same debt.

That being said, a dismissal is a dismissal, and even without prejudice it is still a good thing! you may consider checking with your court clerk's office to see if it is permissible under the court rules to file that motion at the pretrial, and if it is, then I would tend to agree with your wife. That way, if they show up, you slap them with the motion, and if they dont, case closed.

My court day is wed, I'll go monday to file the Motion and mail them the paper work, that way they wont have the Motion paper in the Mail till the day of or after the court Date, So they wont have a heads up on the court date incase they forgot and a heads up of the Court rule they broke, by not send a memorandum 3 weeks before the Pre-trial, also this debt is a little over a year from the SOL

Sky, I sent you a message with my Motion does it sound ok????