Author Topic: Chain of Custody - the JDB's Achilles Heel in Court  (Read 55366 times)

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Butterfacr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #15 on: March 05, 2008 09:07:59 PM »
Quote
[This is a Chain of Custody. Notice the following:

1. The invoice is the evidence in question.
2. It takes a Human Being to testify as to the authenticity of that invoice.
3. The human being must have first-hand knowledge as to what is being testified to about that invoice.
4. That there are people there to testify as to the ownership and conduct around that invoice from its creation to the time of the trial. The "Chain of Custody" is unbroken.

  Ok this is what happened to me a few weeks ago. I got to the pre-trial fact finding hearing. The Plaintiff showed up to testify. I was completely unprepared for this but did the best I could.
  Through my request for production I requested the entire chain of custody which they did not produce. I made a Motion to Compel for these documents which was denied after Plaintiff filed an Objection stating "Defendant has all the documents available".

  So in the pre-trial hearing guess what the Plaintiff brought in? A copy of a bill of Sale from A-B and from B-C and from C-D.
  They wanted to enter that into evidence and I objected stating that it was hearsay and there is not a competent fact witness here to testify to the validity of the document as well as the documents are not even sworn to.
  The non-judge sitting in on the hearing I think over-ruled me but told me that he is entering the documents in as "Subordinate Evidence", or facts im not sure of the wording.

  So I got the Decission and Fact finder and they gave the Plaintif a summary Judgment.

  What did I do wrong?
« Last Edit: March 05, 2008 09:22:44 PM by Butterfacr »

Flyingifr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #16 on: March 05, 2008 09:25:46 PM »
You

(a) didn't object and file an Appeal based on this Judge's misapplication of the law and
(b) didn't transfer the case to a court where the Judges are actually lawyers
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Butterfacr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #17 on: March 05, 2008 10:28:46 PM »
You

(a) didn't object and file an Appeal based on this Judge's misapplication of the law and
(b) didn't transfer the case to a court where the Judges are actually lawyers

  Ya know I got the flu right after this hearing. But do I appeal the verdict of summary judgement or do I appeal the wanna be Judge's mistake at the hearing?
  According to the Court Rules the Judge appoints an administrator to appear at these pretrial hearings. Should I have requested him to recuse himself?

  Its funny because at the end he stated "Now I am expecting that you are going to appeal this, do you know the time frame on which you have that option?" and I said no I dont, well he didnt know either and I asked just tell me where it is in the rules and he didnt know that either.

Bronco

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #18 on: March 05, 2008 11:05:47 PM »
File the appeal. This in itself is leverage.

Butterfacr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #19 on: March 05, 2008 11:18:16 PM »
File the appeal. This in itself is leverage.

  Do I need a transcript of the hearing for the appeal?

Butterfacr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #20 on: March 05, 2008 11:34:16 PM »
  Here is the "Decision of Fact Finder"
FINDING OF FACTS
The Following facts were found
1. Sometimes prior to Febuary 2005 XXXX Issued a mastercard to the Defendant.
2. As of April 15, 2005 there is an outstanding debt owed by the Defendant on account of such credit card to XXXX of $XX,XXX.XX
3. Through succession of assignments of the Plaintiff, XXX purchased the right, title and interest in said account on April 24,2006
4. The Defendant has failed to make any payments on account of said account and there is due and owing to the Plaintiff the sum of XX,XXX.XX

SUBORDINATE FACTS
  Because the Fact Finder believes Defendant will contest the "chain of title" of this debt the following Subordinate Facts are found:
1 XXX Card Services assigned the Defendants debt account to Atlanta Credit and Finance special Finance unit LLC on or about April 26, 2005.
2 Atlanta Credit and Finance Special Finance Unit LLC Assigned the Defendnant's debt, with many others to America Debt Sales LLC on April 24, 2006.
3 American Debt Sales, LLC assigned the Defendant's debt, with many others, to Plaintiff XXXX on April 24, 2006.

DISCUSSION
Although the complaint seeks attorneys fees and "conatractual interest" no evidence was offered concerning these items of damage.

CONCLUSION
 I recommend that judgement be entered in favor of Plaintiff against Defendant in the amount of $XX,XXX.XX

Flyingifr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #21 on: March 05, 2008 11:36:21 PM »
  Ya know I got the flu right after this hearing. But do I appeal the verdict of summary judgement or do I appeal the wanna be Judge's mistake at the hearing?
  According to the Court Rules the Judge appoints an administrator to appear at these pretrial hearings. Should I have requested him to recuse himself?

  Its funny because at the end he stated "Now I am expecting that you are going to appeal this, do you know the time frame on which you have that option?" and I said no I dont, well he didnt know either and I asked just tell me where it is in the rules and he didnt know that either.

Appeals are made because the Judge either misapplied the law (as in your case), made errors in rulings (as in your case) or showed obvious bias (maybe....). Appeals are not allowed because you don't like the results. You will need a transcript to show that you objected to the ruling that led to the Appeal.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Bronco

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #22 on: March 16, 2008 02:59:50 PM »
I feel very uncomfortable relying on one defense, that of business records exception to the hearsay rule, but you've got to throw it in among your defenses.

Here is what I have before me:

Unsecured signature consumer installment loan. Default May 2004, dv'd first atty/collector '04-came back with copy of bank check and copy of endorsement. Nothing after that until early 2007...new atty/collector claim letter states their client abc company purchased the debt. I dv them and the same copies of the '04 documents come back. Quiet for months until complaint served last week, only the complaint is captioned bank v me. first line of complaint states that plaintiff has "...purchased a certain monetary obligation..." This is very ambiguous to me. Bank recently merged with another. Claim is within SOL, no restrictive arbitration clause, and I have have nothing.

Would a bank really buy back an almost 4-yr old obligation?

Shouldn't the caption(if the bank no longer owns it) read abc company, as assignee of bank...?

Would they really sue in the bank's name to look more serious and threatening?

Should I counterclaim FDCPA violations? Perhaps a misrepresentation of the legal status and character of the debt?

If the bank buys an obligation back are they still considered an OC or third party? Do I file an FCBA dispute with the bank to see where that goes? Create more work for them?

If the bank doesn't own the obligation at the time the complaint was filed, do I have an action against the atty? Fraud on the court? Abuse of Process? Lack of standing stands out in my mind.

It doesn't make sense to me that a bank would buy or a JDB would sell an obligation back to the bank almost for years after default.

I'm trying to build as much leverage as I can. Amount claimed is 19k plus accrued interest of 5k, etc. I believe, based on what I've detailed, I should have them spending a few bucks and resources on this.

Bronco

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #23 on: March 16, 2008 03:01:46 PM »
...and if the bank is indeed not the real party in interest and the atty is reporting that they are on the CR, we could also have FCRA counterclaims, yes?

Flyingifr

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #24 on: March 16, 2008 04:00:06 PM »
You will find out who the real Plaintiff is in Discovery.

I would schedule a deposition of the Bank's officers and see who shows up. If they aren't from the bank then the bank sold the debt and the attorney misrepresented the real party in interest and you can have the suit dismissed for that.

Here's an analogy: You own a car. You sell the car. The new owner of the car gets into an accident and the person he hit tries to sue you over it. You were neither the driver nor the owner of the car, so you are not a party at interest in the suit.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Tmann

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #25 on: March 16, 2009 03:21:23 PM »
So, I have heard alot about attacking the affidavit-chain of custody.  Has anyone here fought this in court?  How many people have won based on this urgement and how many have people here have been defeated using this urgement?

Bronco

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #26 on: March 16, 2009 07:18:10 PM »
I didn't prevail using this argument, even though the law was on my side. You must use the argument as leverage, along with our arguments to make them work harder(more expensive) for their judgment. Chain of custody arguments should be more popular these days given the mess we're all in.

coltfan1972

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #27 on: June 17, 2009 01:13:20 AM »
I have to admit just to be a <Removed> I told the Judge.    "Your honor I owe this bill and I owe it 100%).    The Judge then said how much do you owe.   I said oh how much every they claim.    The other side got all excited.    Right at the end I said "your honor I don't owe this defendant".     It was priceless.    The Judge said who do you owe and I said well i'm not real sure but for sure not this ...... company.   The judge said do you show Mr. Defendant owes you and they showed a bunch of stuff.   I said "your honor I would like to cross examine each and every person that signed those documents".    It was so great.    This was the 2nd day before trial and the other side had to admit they could not get any witnesses there.   I then collected my check.    My friends say I should have stuck with the I don't owe it but it was so fun seeing the eyes on the other side when I hung my head and said "yes your honor I owe this debt"   THEN saying NOT TO THEM.   

Here is the great part the other side tried to use the "business records" and the Judge said "look I know your playing the hand delt you but come on"      I loved cashing that JDB check!!!!!!!!!!
« Last Edit: May 20, 2010 06:35:02 PM by Admin0248 »
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

viciouz2000

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #28 on: May 20, 2010 04:34:32 AM »
Just a quick question, when taking this to court, do you have a lawyer with you? or are you representing yourself in court?  Isn't that a bad idea to have no lawyer with you?  I mean if they let anyone defend themselves, whats the point of law school and law degrees and bar exams?

KFMAN

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Re: Chain of Custody - the JDB's Achilles Heel in Court
« Reply #29 on: May 20, 2010 01:56:14 PM »
If you have good evidence and can show the Judge the Statute(VERY IMPORTANT) that supports your claim, and can communicate with another human being(Judge) in a civil way, then you can do fine in a court of law without going to law school.  Very few debt collection cases go to trial, so it's not like lawyers collecting for those cases are court hardened.  Judges will listen if you back what you say with Statutes because without statutes there wouldn't be any laws.

 

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