Author Topic: Has anyone ever beaten an OC at trial?  (Read 2088 times)

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siskelsghost

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Has anyone ever beaten an OC at trial?
« on: April 07, 2012 03:25:17 AM »
Has anyone ever beaten (dismissed with prejudice) an OC after going to actual trial? Successful appeals? If so, please give details.

Please only share insight if case went to an actual trial or was DWP'd before trial. I'm fully aware of MTC Arb and other settlement strategies.


daryl1689

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Re: Has anyone ever beaten an OC at trial?
« Reply #1 on: April 07, 2012 10:50:05 AM »
There are a few on here that have beaten JDB's.  OC's are a little more difficult as they likely have the documentation needed to back up their claims. 

Courts tend to favor the Plaintiff and look down upon Pro Se Defendants. 

JDB's are often vulnerable in arbitration as they likely do not have proper documentation and lose the favoritism that the courts usually offer them.

This coupled with the added costs, create a winnable situation that would not be found by merely trying to defend oneself in court. 

siskelsghost

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Re: Has anyone ever beaten an OC at trial?
« Reply #2 on: April 07, 2012 03:10:13 PM »
I'm familiar with JDB strategy. I'm just curious if anyone has taken on an OC with success. Do they really have the goods?

I've had 3 cases so far - all with the OC. Successfully settled all three for significant discounts after initiating ARB.

In hindsight, it seems like their attorney wasn't as organized as he should be and I've been wondering if I could have defeated him in court.




nobk4me

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Re: Has anyone ever beaten an OC at trial?
« Reply #3 on: April 07, 2012 08:03:26 PM »
I didn't go to actual trial, but I had an OC dismiss without prejudice, after I hit them hard with discovery.

The relatively small amount of the debt (under $2K) may have been a factor.  And maybe the fact that the last statement they provided me in discovery showed a zero balance.  No, not because I paid it, but because of their accounting practices. Gee, their paperwork can't be wrong, right?

You never know when they are going to hand you a gift like that.  Some posters here have also mentioned that the last statement from OCs have a zero balance.

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survivor23

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Re: Has anyone ever beaten an OC at trial?
« Reply #4 on: April 08, 2012 12:29:32 AM »
The original creditor can be beaten, especially if the bank was acquired, and your credit card agreement was before the bank acquisition. Its not full proof, as you just dont know what the original creditor has. That was the case with me, against two business bank accounts with Bank of America, and PNC Bank. They did not have the original contract anymore, and when faced with discovery, they did not answer, and ultimately the case got dismissed. I think this is because these accounts were business accounts, and they were literaly opened 15 years ago. I think consumer credit, is more difficult.

So try your hand. You wont know until you get to trial. What will happen is that they will more than likely not bother to answer discovery if they cant come up with anything.

I agree with what another poster said, however, pro se litigants, we have our cards stacked against us, even when we are right. From the stories I hear, pro se can win on appeal, and in a higher court where the judges or more competent, (where they read motions,etc, )

DebtVet

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Re: Has anyone ever beaten an OC at trial?
« Reply #5 on: April 08, 2012 02:02:38 AM »
You might find some light with this case: Ky Court of Appeals Case No: 2011-CA-000197-MR (Jan 20, 2012) Kenneth Bruner Vs Discover Bank, C/O DFS Services.

This case I won on appeals due to lack of standing. 

Justices also questioned why DFS Services sued using a 2008 agreement when alleged account was opened in 2004.

I haven't checked if the briefs have been published yet, but this is a published case and they will be shortly as they have requested the opinion to be sent to publisher via court documentation.



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siskelsghost

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Re: Has anyone ever beaten an OC at trial?
« Reply #6 on: April 08, 2012 04:45:27 AM »
Thanks Debtvet. Congratulations!

Seemed like they concentrated on standing to sue - a quazi JDB if you will.

DFS couldn't  come up with any sort of chain of amended contracts to show foundation to use the 2008 agreement?

I might be up against a Discover Card 2011 Jamsless agreement (defaulted in 2011) but opened account in 2009.

I wonder how thorough they are going to be laying the foundation for the 2011 amended agreement.

WardOfTheCourt

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Re: Has anyone ever beaten an OC at trial?
« Reply #7 on: April 11, 2012 09:48:52 PM »
I'm familiar with JDB strategy. I'm just curious if anyone has taken on an OC with success. Do they really have the goods?

I've had 3 cases so far - all with the OC. Successfully settled all three for significant discounts after initiating ARB.

In hindsight, it seems like their attorney wasn't as organized as he should be and I've been wondering if I could have defeated him in court.

Been there done that. I can attest to it being possible, although I am not currently at liberty to discuss details. YMMV. Way too many variables to state with any confidence. In court you can have a SJ granted when the OC has submitted self-contradicting documents into the court record. Wonderful, now you get to fight an appeal for a trial court error and ONLY if you made a good record in the trial court. Then you must know or learn quickly how to navigate your appeal$ process (appeal bond anyone?).

Not advisable to rest on the success of someone else prevailing against an OC in court as an indication of your ability to get the same result. Not a negative comment about your skills, but unless you & they were in the same court with the same judge, the same OC at the same date (new case law, etc.) with the same level of evidence on the accounts, and going up against the same lawyers - it is apples to oranges and is anecdotal evidence at best. IMHO.

Believe it or not, it has been implied that I am overly optimistic on fighting an OC in court. The reality is that I believe if you are not a glutton for punishment with nothing to lose (me), try to find a better alternative. Reference: http://www.debtorboards.com/index.php?topic=20305.msg165078#msg165078

As mentioned in that prior post, during litigation I have seen an offer to settle at 100% of pre-litigation/original debt. It is my speculation that that is not considered a "significant discount" as was achieved in your 3 arb settlements.
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KFMAN

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Re: Has anyone ever beaten an OC at trial?
« Reply #8 on: April 12, 2012 11:07:26 PM »
OC received a judgment against me for about $5,000  in a 2nd case, after I had the 1st case dismissed by the judge, because the rent a lawyer wasn't doing their job. 

1 year later, the OC, CA called me, violating a C & D order, and we settled the judgment and FDCPA issue for about 4%.  Now 1 year later I have OC for violating FCRA and Breach of settlement.  This is going to end fun and with a nice check.

Skippy1960

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Re: Has anyone ever beaten an OC at trial?
« Reply #9 on: April 13, 2012 12:09:37 AM »
I had a large balance case go to trial, was represented by an attorney.  Attorney won the case, based on OC presented cardagreement from Bank One, which was purchased by Chase.  Chase was the Plaintiff of Record. 

Objections were filed pre-trial to Chase employee's affidavit testimony.

Chase employee was then asked on the stand if she ever worked for Bank One, answer no.

Court agreed in the end result no way to authenticate the original contract submitted by Chase with Bank One's name on it, judgement for defendant.

I would tell you though I think without representation, a Pro Se has a very hard time making this arguement.  Being represented by an attorney they never forced that I be at the trial.  My attorney was very happy, because I couldn't be called as a witness.  When you are pro se, you can be asked to take the stand.

howucantoo

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Re: Has anyone ever beaten an OC at trial?
« Reply #10 on: April 13, 2012 01:01:07 AM »
I had a large balance case go to trial, was represented by an attorney.  Attorney won the case, based on OC presented cardagreement from Bank One, which was purchased by Chase.  Chase was the Plaintiff of Record. 

Objections were filed pre-trial to Chase employee's affidavit testimony.

Chase employee was then asked on the stand if she ever worked for Bank One, answer no.

Court agreed in the end result no way to authenticate the original contract submitted by Chase with Bank One's name on it, judgement for defendant.


Thanks for posting this.
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siskelsghost

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Re: Has anyone ever beaten an OC at trial?
« Reply #11 on: April 13, 2012 01:14:49 AM »
I had a large balance case go to trial, was represented by an attorney.  Attorney won the case, based on OC presented cardagreement from Bank One, which was purchased by Chase.  Chase was the Plaintiff of Record. 

Objections were filed pre-trial to Chase employee's affidavit testimony.

Chase employee was then asked on the stand if she ever worked for Bank One, answer no.

Court agreed in the end result no way to authenticate the original contract submitted by Chase with Bank One's name on it, judgement for defendant.

I would tell you though I think without representation, a Pro Se has a very hard time making this arguement.  Being represented by an attorney they never forced that I be at the trial.  My attorney was very happy, because I couldn't be called as a witness.  When you are pro se, you can be asked to take the stand.

This would probably work for all the FIA/BOA cases. I would suspect it could work as well in arbitration if they go through to hearing.

Skippy, approximately how much did you pay your lawyer for your case start to finish, if I may ask?

trueq

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Re: Has anyone ever beaten an OC at trial?
« Reply #12 on: April 13, 2012 03:38:47 AM »
OC's can be beaten, but you imporve your chances with a lawyer.

I never made it to trial with any OC, mostly blowing them out of water before we got there, but,

I just finished 2 hours of unmolested direct testimony of my mental anguish and emotional distress damages against a debt collector I got a default judgment on.   I had my attorney ask me the questions.   I would not have been able to do the direct as effectively myself.   I hired lawyer just for this hearing and to maximize damages on the default judgment i had already gotten myself.

It's not impossible for pro se' to beat OC at trial, but you better have your stuff together if you expect to win.

Whether you win is largely contingent if other side has their act together with paperwork and witness.   That does not happen many times.   If that happens, your chances can be good.

If other side has its act together, unless you are a gifted and educated pro se', your chances are a lot less likely.   Even with a lawyer, it can be 50/50 in this type scenario and may rest on judge you drew.

So few civil cases go to actual trial its hard to judge.

If you plan on doing this, attend a similar civil trial, (more than one is preferable) if you can find one at a local courthouse.   Take notes, gleen tips from consumer defense counsel.
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Skippy1960

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Re: Has anyone ever beaten an OC at trial?
« Reply #13 on: April 13, 2012 04:46:38 AM »
This would probably work for all the FIA/BOA cases. I would suspect it could work as well in arbitration if they go through to hearing.

Skippy, approximately how much did you pay your lawyer for your case start to finish, if I may ask?

I sent you a PM with the information.

siskelsghost

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Re: Has anyone ever beaten an OC at trial?
« Reply #14 on: April 13, 2012 06:51:08 AM »
OC's can be beaten, but you imporve your chances with a lawyer.

I never made it to trial with any OC, mostly blowing them out of water before we got there, but,

I just finished 2 hours of unmolested direct testimony of my mental anguish and emotional distress damages against a debt collector I got a default judgment on.   I had my attorney ask me the questions.   I would not have been able to do the direct as effectively myself.   I hired lawyer just for this hearing and to maximize damages on the default judgment i had already gotten myself.

It's not impossible for pro se' to beat OC at trial, but you better have your stuff together if you expect to win.

Whether you win is largely contingent if other side has their act together with paperwork and witness.   That does not happen many times.   If that happens, your chances can be good.

If other side has its act together, unless you are a gifted and educated pro se', your chances are a lot less likely.   Even with a lawyer, it can be 50/50 in this type scenario and may rest on judge you drew.

So few civil cases go to actual trial its hard to judge.

If you plan on doing this, attend a similar civil trial, (more than one is preferable) if you can find one at a local courthouse.   Take notes, gleen tips from consumer defense counsel.

Thanks TrueQ!

So from what you're saying, I'm assuming you can just do all the work behind the scenes and hire an attorney just for the hearing or trial?

Can you do this as a way of not having to take the stand at trial? Or does attorney have to be on board from the beginning?

 

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