Pollack & Rosen submitted xerox of application

[MADDOG]

Hello everyone,

With one case stalled in the water (a relief) ... today we just received a response from one of the other banks, Capitol One, to which we had sent a Verification of Debt request. They've sent back a xerox of the original application, with both of our signatures on it, SSNs, DOB, Mother's maiden name, etc. Plus the whole stack of xeroxed monthly statements of the account.

We do have an Arbitration Award from Century Arbitration Associates of Ocala Florida in our favor from last year, but naturally they are omitting all mention of that.

I recall some discussion here on suijuris about the best way to counteract their production of a xerox copy of the application. I assume we should not accept this xerox copy, but demand an authenticated copy, correct? We did ask for an authenticated copy of the original contract or application, and this xerox copy is not sworn to by anyone - not authenticated. As I recall, it should be authenticated by someone with first-hand knowledge, (it should be sworn to and notarized, right?)

Should I re-assert our request for an authenticated copy now?

I assume we should never admit to recognizing this copy of the application, or admit to recognizing our own signatures... it is important to insist that they prove it, right?

Also, it occurs to me that there is no data on the application that actually corresponds to the account number on the monthly statements. How do we know that application actually pertains to that particular account?

[seeker]

How many other copies may be out there? By not proving the original, they have not 'proved their claim" -- look up proof of holder -- also, check there is a court case from Illinois that says copies are not evidence -- something the court needs to be reminded of ALL the time. This is Illinois Code of Civil Procedure, but I bet you have something similar!

(735 ILCS 5/2-606) (from Ch. 110, par. 2-606)
Sec. 2-606. Exhibits. If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.
(Source: P.A. 82-280.)

If they do attach an affidavit saying the original is not available -- ask WHY? Was there a fire? Did the dog eat it? If the original was destroyed, provide documented proof (records from the fire dept, new story, etc) If they just don't have it, WHY? And go back to the orginal premise ... how do you know they are the holder in due course and that there are not a myriad of others holding similar copies lurking about?

Seeker

[iamfreeru2]

Originally Posted by MADDOG

Hello everyone,

With one case stalled in the water (a relief) ... today we just received a response from one of the other banks, Capitol One, to which we had sent a Verification of Debt request. They've sent back a xerox of the original application, with both of our signatures on it, SSNs, DOB, Mother's maiden name, etc. Plus the whole stack of xeroxed monthly statements of the account.

We do have an Arbitration Award from Century Arbitration Associates of Ocala Florida in our favor from last year, but naturally they are omitting all mention of that.

I recall some discussion here on suijuris about the best way to counteract their production of a xerox copy of the application. I assume we should not accept this xerox copy, but demand an authenticated copy, correct? We did ask for an authenticated copy of the original contract or application, and this xerox copy is not sworn to by anyone - not authenticated. As I recall, it should be authenticated by someone with first-hand knowledge, (it should be sworn to and notarized, right?)

Should I re-assert our request for an authenticated copy now?

I assume we should never admit to recognizing this copy of the application, or admit to recognizing our own signatures... it is important to insist that they prove it, right?

Also, it occurs to me that there is no data on the application that actually corresponds to the account number on the monthly statements. How do we know that application actually pertains to that particular account?

MADDOG,

Not only deny that the copy is your signature, but use Florida Best Evidence Rule to require the original.

Florida's best evidence rule "requires that when the contents of a writing … are being proved, an original must be offered unless a statutory excuse for the lack of an original exists." C. Ehrhardt, Fla. Evid. § 952.1 (2004).1 Specifically, Florida Statutes § 90.952 provides that:
Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording or photograph.

The requirement of an "original" ensures that the evidence presented is an accurate transmittal of the critical facts contained within it. See McKeehan v. State, 838 So. 2d 1257, 1260 (Fla. 5th DCA 2003). In short, the "original writing is required because oral testimony may be inaccurate [or] fraud may result." C. Ehrhardt, Fla. Evid. § 952.1. See also U.S. v. Howard, 953 F.2d 610, 613 (11th Cir. 1992).
Florida Statutes § 90.953, however does permit the introduction of duplicates under certain circumstances:
A duplicate is admissible to the same extent as an original, unless:
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

Thus, for copies to be admissible (a) the copies must be "duplicates," (b) no genuine question can exist regarding authenticity; and (c) it must be fair to admit the paper in lieu of the original. None of these three tests are satisfied in this case.
Florida Statutes § 90.951 defines duplicate to include:
A counterpart produced by the same impression as the original, from the same matrix; by means of photography, including enlargements and miniatures; by mechanical or electronic recording; by chemical reproduction; or by other equivalent technique that accurately reproduces the original.

Defendant has seen no document that purports to be a duplicate or an original of an agreement that defendant allegedly entered into with Plaintiff.

Also you will want to request admission that Capitol One's charter does not allow them to bring suit in foreclosure of consumer debts as well as others mentioned in Cornforth's "Beating up on debt collectors" that you have. There are many things you can do to make them prove their claim, which they cannot. There are many discovery requests that can be made to show the court lacks jurisdiction due to the fact Capitol One lacks standing to sue.

I will send you the latest winning docs that someone sent me that you will need to have. You will just need to edit for use here in Florida.

[MADDOG]

I'm going to sleep much better now after reading your answers, Seeker and Iamfreeru2. THANKS. I look forward to mounting a good defense with your help.

This is a great think tank here on suijuris.

SYNERGYSTIC!!! GREATER than the sum of its parts!

[masterduke]

Also if they sent you any notarized affidavits, or documents were the attorney is speaking/answering for his client that is a big no-no (thanks Seeker)
Court rules forbide this. What exactly did the debt attny buy? an empty charged off credit card account it was emptied the moment they arranged the debt/loan
from the discount window of the "FED" and then charged you interest on top of that. Their trust investment prospectus' says so "All receivables that came in,
(your "loan" from the "fed") and all receivables that are to come in(payments) are the property of the trust" and are treated as a "sale" to the trust by the credit card bank who is only the servicer of the trust period. It is the
"substance" not the "procedure" that is to be looked at (new case law in Mich regarding a Debt, Duer v ?? michigan applette court has set a new presedence here)Card issuing banks in delaware have stated that for a bank to extend credit they must first obtain your debt so the card has to pay the merchants you do buisness with to obtain your "debt" so what applicable laws are there to show a debt attny has any right to file a claim did they pay for the merchant services did they obtain your "debt"? No, they purchased a charged off credit card account

[Judge Roy Bean]

Originally Posted by MADDOG

We do have an Arbitration Award from Century Arbitration Associates of Ocala Florida in our favor from last year, but naturally they are omitting all mention of that.

I would suggest you not raise that issue; bogus arbitration awards carry with them the smell of unlcean hands on your part.

Originally Posted by MADDOG

I recall some discussion here on suijuris about the best way to counteract their production of a xerox copy of the application. I assume we should not accept this xerox copy, but demand an authenticated copy, correct? We did ask for an authenticated copy of the original contract or application, and this xerox copy is not sworn to by anyone - not authenticated. As I recall, it should be authenticated by someone with first-hand knowledge, (it should be sworn to and notarized, right?)

Should I re-assert our request for an authenticated copy now?

I assume we should never admit to recognizing this copy of the application, or admit to recognizing our own signatures... it is important to insist that they prove it, right?

Not neccessarily. In the first place, if the copy is legible chances are it will be admitted. If you demand that they prove those are your signatures, and they offer into evidence other documents (i.e., checks, your driver's license, other public documents, etc.,) then the evidentiary challenge may hinge on having expert testimony, but chances are the judge will look at them and may satisfy himself that they are the same or not. I have heard of judges rejecting them for purely visual (legibility) reasons, but not for lack of an affidavit of "authenticity" - that level of scrutiny is usually applied to secured debt issues, i.e., mortgages.

I've said this again and again - what you're really up against is a preponderance of evidence, as in, if you bought and still own things you acquired through the use of the card. It is really hard to get around those facts with other maneuvers.

Originally Posted by MADDOG

Also, it occurs to me that there is no data on the application that actually corresponds to the account number on the monthly statements. How do we know that application actually pertains to that particular account?

Well, there's the fact that your name and address is on there. Also, unless it was one of the old "card in the mail" things that you activate over the phone, the account numbers aren't assigned until the account is approved and established. They learned a hard lesson about those - the hacker/scammers used the account number styles to try and replicate usable account numbers, then they'd set up computers to hammer away at web sites to find one that would accept $0.02 "purchases." Bingo - working account! (Clever these scammers, eh?).

[seeker]

JRB;

While I certainly appreciate your coments and observations, I think the courts are going to have to return to 'original contracts' in light of the hackers, scammers and indentity thieves that are honing their skills daily. Reproducing a signature is not that difficult, and if done mechanically (copy machines, etc) it can be flawless on a reproduction. Trust me, I know. Producing a copy of a doc is just not true evidence in that any number of those copies may exist. Even you cannot claim that the alleged account was only sold once; that it was bootlegged by an unethical employee (sound familiar?);was not sold be the DA who originally bought it (Was it Kitchie who addressed this very issue within?); or that someone did not take out a card in your name and perfect your signature and go merrily on a shopping spree.
Courts must do that which they purport to do -- protect the consumer from the sharks who feed on fraud.
It will only take a handful of these cases in the hands of an "avenging" press, to make the courts wish they had paid closer attention to their own rules.
I can't wait for that day, and would love to be one of the few.

Seeker

[truth4all]

Originally Posted by MADDOG

Hello everyone,

With one case stalled in the water (a relief) ... today we just received a response from one of the other banks, Capitol One, to which we had sent a Verification of Debt request. They've sent back a xerox of the original application, with both of our signatures on it, SSNs, DOB, Mother's maiden name, etc. Plus the whole stack of xeroxed monthly statements of the account.

We do have an Arbitration Award from Century Arbitration Associates of Ocala Florida in our favor from last year, but naturally they are omitting all mention of that.

I recall some discussion here on suijuris about the best way to counteract their production of a xerox copy of the application. I assume we should not accept this xerox copy, but demand an authenticated copy, correct? We did ask for an authenticated copy of the original contract or application, and this xerox copy is not sworn to by anyone - not authenticated. As I recall, it should be authenticated by someone with first-hand knowledge, (it should be sworn to and notarized, right?)

Should I re-assert our request for an authenticated copy now?

I assume we should never admit to recognizing this copy of the application, or admit to recognizing our own signatures... it is important to insist that they prove it, right?

Also, it occurs to me that there is no data on the application that actually corresponds to the account number on the monthly statements. How do we know that application actually pertains to that particular account?

Sure MADDOG. Tell then you want that "agent" for Capital One Bank that works at OSI Collection Agencies.
I can provide you with the fax number to OSI Collection Agency that was across the top of the "Declaration" (sworn to under penalty of perjury) of the witness with first hand knowledge of the "original contract" that was not even placed into evidence.
Duh !
How stupid do they think we are?

Actually what you are up against is not, as JRB says, a preponderance of evidence.

What you are up against is whether or not the judge is corrupt. In which case you are probably done for.

Unless, that is, you take your own court reporter.

Henry Franklin

[masterduke]

You must know what issues to raise in court, period. In the correct order, because no matter how corrupt the black robed "wonder" may be.
Mr. & Mrs. Lunchbucket get "worked" because they:1) Do not know how to raise the various issues for their defense, because they do not know how or why of court rules (wolpoffs brethren live for this!) and fatso can only "rule" (sure) on what issues are raised and presented to the court! 2) They are too emotionally close to the case i.e. the ones being sued. (thats why "bar members" always hire fellow "bar members" when engaging in their own personal legal battles) when its you or family members being sued it can be near impossible to mount any real defense against the claim ( wolpoffs brethern live for this as well) 3) Usually by this time there is no money left to hire an aaattttorneyy so they (wolpoffs brethren) know "its in the bag" don't they?????
As Judicus R did share the article concerning the debt attorney who is facing 25 years in the slam (yeah like thats gonna happen) for filing false claims, getting garnishments, judgements, property, etc. all from people who were too ill equiped to battle him in court. They, the "Lunchbuckets" got "worked" and
"worked" hard!!!! It shows the true nature of these beasts and their trade.
They profit handsomly off of peoples misery.
Seeker raises great points concerning identity issues and false accusations
Look at the case mentioned above. That is just the tip of the iceberg of misery;
Endless Debt. Debtors prison will be reintroduced in this "country"
The "bar" will welcome it and help to initiate its return