Certified Business Records (urgent opinions needed)

[dystopia]

Hey guys, I need your opinion on something quite urgently as I'm going to court tomorrow.

I was at the library today reading the annotated codes for my state.

The attorney entered certified business records into the record. These are the complete history of credit card transactions. Basically all the monthly statements printed out. No contract, no copy of a contract just these business records supported by affidavit.

No here's the problem: in Maryland, the annotated code says I have 5 days to dispute the introduction of certified business records into evidence.

I did not do this because it never occurred to me that I had to.

Well I was feeling pretty good until I read this. Now I feel that I have given up SMJ and in personam. May also be considered proof that a contract exists.

If this testimony from this bogus affidavit remains unchallenged I'm thinking I cannot win.

And yet, I don't think I can challenge it at this point. Therefore, I can't win.

The only thing that makes me wonder is - are these certified business records proof of a contract.

Can they really win a judgment without even a copy of the contract?

This is Maryland btw, I was not able to find it in the annotated code.

If you have .02 feel free to jump in, I'm seriously thinking about trying to make some kind of deal for accelerated payment in exchange for a break on some of the legal fees and no judgement.

What do you think?

[BOBT12]

Originally Posted by dystopia

Hey guys, I need your opinion on something quite urgently as I'm going to court tomorrow.

I was at the library today reading the annotated codes for my state.

The attorney entered certified business records into the record. These are the complete history of credit card transactions. Basically all the monthly statements printed out. No contract, no copy of a contract just these business records supported by affidavit.

No here's the problem: in Maryland, the annotated code says I have 5 days to dispute the introduction of certified business records into evidence.

Well this does seems to limit the Objections you could have raised to keep the information out of the record altogether. However, you may still be able to raise an issue regarding the accuracy of the information. Warning, if you dispute the issue under oath, and you know it is not true, there could be a problem. It would help, if you could show that it is inaccurate, perhaps it was addressed to the wrong address, as the other document was, for instance.

Originally Posted by dystopia

I did not do this because it never occurred to me that I had to.

Well I was feeling pretty good until I read this. Now I feel that I have given up SMJ and in personam. May also be considered proof that a contract exists.

If this testimony from this bogus affidavit remains unchallenged I'm thinking I cannot win.

You can dispute the affidavit in court. I mean what are the reasons that the person giving the affidavit had personal knowledge of the events at issue? Are they present for cross-examination? Perhaps you can show that these document are not related to you. You will be under oath, so proceed with caution.

Originally Posted by dystopia

And yet, I don't think I can challenge it at this point. Therefore, I can't win.

The only thing that makes me wonder is - are these certified business records proof of a contract.

No. They are records that you allowed into evidence, without dispute.

Originally Posted by dystopia

Can they really win a judgment without even a copy of the contract?

Possibly, due to the testimony presented.

Originally Posted by dystopia

This is Maryland btw, I was not able to find it in the annotated code.

If you have .02 feel free to jump in, I'm seriously thinking about trying to make some kind of deal for accelerated payment in exchange for a break on some of the legal fees and no judgement.

It is up to you to make an offer, and up them the Plaintiff to accept. Otherwise, the courts will give a verdict. However, you may choose to appeal this verdict, check your rules, so that you are prepared when, or if, the time comes.

What do you think?

I hope this helps.

[Shoonra]

You didn't mention if any of the credit card charges are false. If they're not, there's no point to objecting to their introduction.

You can ask the CC company to produce the credit card contract as part of the discovery process. I am not sure if this would be necessary or useful, since the credit card contract should be pretty standard -- you pay for all the charges and the credit card company (or bank) can assign your accounts receivable to someone else to collect.

[gldskr]

Certified Business Records (statements) are nothing more than the DC's attempt at validation. But validation stands on three legs. The contract to establish that there was an agreement; the terms of the agreement to know how they calculated what they claim you owe; and with the identifying information to show that you are the right person.

Originally Posted by Spears v. Brennan an Indiana case 2001

The contract in no way provides sufficient verification of the debt. A review of the document reveals that it identifies only the terms of Spears loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59. The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount. Therefore, Brennan violated 15 U.S.C. � 1692g( when he failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt but before Brennan had mailed verification of the debt to Spears. See footnote We reverse the trial court�s entry of summary judgment in favor of Brennan on this issue.

Additionally in this FTC opinion letter;

FTC Staff Opinion letter, Wollman: http://www.ftc.gov/os/statutes/fdcpa...rs/wollman.htm

March 10, 1993

Jeffrey S. Wollman
Vice President and Controller
Retrieval Masters Creditors Bureau, Inc.
1261 Broadway
New York, New York 10001

Dear Mr. Wollman:

This is in response to your letter of February 9, 1993 to David Medine regarding the type of verification required by Section 809( of the Fair Debt Collection Practices Act. You ask whether a collection agency for a medical provider will fulfill the requirements of that Section if it produces "an itemized statement of services rendered to a patient on its own computer from information provided by the medical institution . . .� in response to a request for verification of the debt. You also ask who is responsible for mailing the verification to the consumer.

The statute requires that the debt collector obtain verification of the debt and mail it to the consumer (emphasis mine). Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. Mere itemization of what the debt collector already has does not accomplish this purpose. As stated above, the statute requires the debt collector, not the creditor, to mail the verification to the consumer.

Your interest in writing is appreciated. Please be aware that since this is only the opinion of Commission staff, the Commission itself is not bound by it.

Sincerely,

John F. LeFevre
Attorney
Division of Credit Practices

So, while leg 2 may be present (the statements), legs 1 and 3 are conspicuously absent, not to mention that it is the contract which verifies the statements.

Beyond the matter of verification, who actually has the standing to bring the suit? In the recent Deutche Bank v. ? (help me on this one) case, regarding a mortgage pooled into an MBS, where the owner of the debt could not be determined, the signed contract was the cornerstone. It is the same with CC debt only better.

Have you ever noticed why you get a little pamphlet each month with your statement describing changes to your cardmember agreement? Your account is pooled with thousands of others into a trust so that the trust can issue a bond. A new trust is created every month to facilitate the new changes in your cardmember agreement.

Every month there is a new owner to that portion of your alleged debt. Can you see the accounting nightmare that this envisions if your account could be personally acruable to you? And if such a nightmare could be sorted out they would be required to issue you a 1099 C, which they never do.

Your remedy lies with a SMJ challenge.

1. Only the real party in interest can sue; the trust, the OC is now relegated to the position of DC.

2. DC's are bound by the FDCPA, they can call you, write you, investigate you, in an attempt to persuade you to pay, but they cannot sue you; their rights are limited to collection only.

Originally Posted by US 15 Chapter 41 Subchapter V Sec. 1692i

(b) Authorization of actions
Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors.

DC's are not authorized to bring suit but they are also not denied. Any suit must specifically relate to their collection actions. But the suit they always bring relate to the foundational elements of the alleged debt. Once the judgment is obtained they may go after it, but they have no authority to obtain the judgment.

Even the OC has no authority to obtain a judgment unless he reacquires your account and issues you a 1099 C.

Demand that the true owner be identified so that the standing of the plaintiff can be determined. Inform the judge that the DC is usurping the rights of the real party in interest, which is also a violation of the FDCPA. Request sanctions as well.

gldskr

[dystopia]

Originally Posted by Shoonra

You didn't mention if any of the credit card charges are false. If they're not, there's no point to objecting to their introduction.

You can ask the CC company to produce the credit card contract as part of the discovery process. I am not sure if this would be necessary or useful, since the credit card contract should be pretty standard -- you pay for all the charges and the credit card company (or bank) can assign your accounts receivable to someone else to collect.

They did not have the contract, however I was denied discovery by missing deadlines I didn't know existed because I'm new to this. They did everything they could to avoid producing anything and argued mostly technicalities based on local rules. I know they didn't want to answer those questions and produce those documents because they simply couldn't.

I received a freaking dunning letter from this guy saying that the debt was "assigned" to our office. And he files a suit as Capital One Bank, plaintiff.

If this happens again with another company I think they are in deep doo doo because you can be sure I won't miss a deadline again. They will end up going to trial with not much to go on and I will be citing local rules and statutes in my sleep to keep their stuff out.

I'm not sure all those things about the contract are relevant since they couldn't produce even a certified copy of said contract.

Even if it were, they still need SMJ and IPJ to proceed at all. Burden of proof is always on them if I challenge it, read it in the annotated statutes.

And if I can show the fact witness is not competent it all falls apart, they have to have maintained the account ledger themselves, prove up damages, etc.

However I settled in this case today, I probably could have won but I made too many mistakes in the early innings, was not well prepared and the risk of judgment was too high because of all the legal fees they generated.

I settled for paying half what they were seeking in the judgement, which was about the amount that I actually charged on the card. I have no problem with that since it was fair and I will have proof of settlement to the OC.

The amount they were seeking before was simply unreasonable for what I got out of the deal.

The best part is I made the check out to capital one and there is no judgment on my credit report.

Was he really legit? I think they have some weird sort of arrangement deal going on. Because if he was their lawyer, you'd think he would have access to more than those xerox copies of statements.

Maybe he was their lawyer and maybe I did owe, but he still needs to have his crap together.

[dystopia]

Let me tell you guys something..

They had this weird arbitration thing.

The judge announced that there was a lawyer there who worked for free to offer "mediation" to help the parties reach a settlement before trial.

So I went into this little room with the attorney and this other guy and they asked me what my beef was.

I said that there was no proof that we had a contract, plaintiff had not proved SMJ and that I was challenging plaintiffs standing to sue.

He said that the mere fact that cap1 brought a claim against me proved that we had a contract. I was like wow, they might as well close down the law library.

I started talking about SMJ and the fact that plaintiff did not have a copy of the note or anything.

He looked at me like I was from outer space.

I don't think he know what SMJ was, he seemed flabberghasted that anything could be disputed.

Honestly I was glad because I couldn't risk it and I intended to settle anyway but it was really dumb that guy.

[dystopia]

Originally Posted by BOBT12

You can dispute the affidavit in court. I mean what are the reasons that the person giving the affidavit had personal knowledge of the events at issue? Are they present for cross-examination?
.

Thanks BOBT12,

The problem is under local rules I'm pretty sure I needed to dispute earlier to subpeona the witness otherwise the hearsay becomes evidence.

At least that was my reading of the section of the rules on hearsay.

I'm not sure what would happen if a judgment was entered against me and I filed a petition to vacate.

They'd probably look at me like a martian and say "what's that a permission slip to go to disney world?"

[dystopia]

Originally Posted by gldskr

Certified Business Records (statements) are nothing more than the DC's attempt at validation. But validation stands on three legs. The contract to establish that there was an agreement; the terms of the agreement to know how they calculated what they claim you owe; and with the identifying information to show that you are the right person.


Additionally in this FTC opinion letter;


So, while leg 2 may be present (the statements), legs 1 and 3 are conspicuously absent, not to mention that it is the contract which verifies the statements.

Beyond the matter of verification, who actually has the standing to bring the suit? In the recent Deutche Bank v. ? (help me on this one) case, regarding a mortgage pooled into an MBS, where the owner of the debt could not be determined, the signed contract was the cornerstone. It is the same with CC debt only better.

Have you ever noticed why you get a little pamphlet each month with your statement describing changes to your cardmember agreement? Your account is pooled with thousands of others into a trust so that the trust can issue a bond. A new trust is created every month to facilitate the new changes in your cardmember agreement.

Every month there is a new owner to that portion of your alleged debt. Can you see the accounting nightmare that this envisions if your account could be personally acruable to you? And if such a nightmare could be sorted out they would be required to issue you a 1099 C, which they never do.

Your remedy lies with a SMJ challenge.

1. Only the real party in interest can sue; the trust, the OC is now relegated to the position of DC.

2. DC's are bound by the FDCPA, they can call you, write you, investigate you, in an attempt to persuade you to pay, but they cannot sue you; their rights are limited to collection only.


DC's are not authorized to bring suit but they are also not denied. Any suit must specifically relate to their collection actions. But the suit they always bring relate to the foundational elements of the alleged debt. Once the judgment is obtained they may go after it, but they have no authority to obtain the judgment.

Even the OC has no authority to obtain a judgment unless he reacquires your account and issues you a 1099 C.

Demand that the true owner be identified so that the standing of the plaintiff can be determined. Inform the judge that the DC is usurping the rights of the real party in interest, which is also a violation of the FDCPA. Request sanctions as well.

gldskr

Thanks gldskr. I'll save that for next time. Got another dunning letter yesterday, I'm actually looking forward to this one.

[valahian]

Gldskr, you sure got your stuff! I learnt from you a lot, thanks so much for your posts. Standing to sue is the most important challenge. I would have never settled - use that money to declare bankrupcy rather than settle.

[BOBT12]

Originally Posted by dystopia

Let me tell you guys something..

They had this weird arbitration thing....

Honestly I was glad because I couldn't risk it and I intended to settle anyway but it was really dumb that guy.

I am glad that things works out for you.