Topic: How hard is it for an OC to prove a credit card case?

[debtcat]

On average how easy or hard of a time does an original creditor have in proving credit card lawsuits?  What are some types of ADMISSIBLE evidence can they come up with?  Are there any things to look out for to make them prove their case with admissible evidence?

[GRINGO]

Quite easy. They still own the debt.

It would be best to read the agreement to see what or how you may respond.

[Belle2004]

I agree with gringo. I had a magistrate tell me that they pretty much award judgments to all OC's unless the person can prove it really was not their account...which he intimated he hasn't seen happen.

He said they have the goods...they get the judgments.

I took the information and promptly filed for private arbitration.

[GRINGO]

And this exactly how you handle all issues regarding an OC who still owns the account. Always read the agreement, it is very user friendly.

When it has been sold off to someone else, the same thing applies again!

[debtcat]

What do they need to prove the account?  Wonder if there is not signed contract? 

[howucantoo]

What do they need to prove the account?  Wonder if there is not signed contract?

Here is what it comes down to:

"A statement is not proof that you agreed to pay what they say you owe. Nor is it proof that you ever received any of those statements that they produce. They must prove the obligation first based on a writing, not a writing as a basis for proving a contract that the terms of which the court is left to guess."

[Belle2004]

I guess it just depends where you are. I am in Ohio which is very creditor friendly and the magistrate told me they do not need to provide a signed credit card agreement to win . My OC brings a witness, they have all the statements, and he said , if it is your debt, unless you perjure yourself, they are going to get the judgment.

He said they do not give much if any weight to the robosigning, or no signed agreement as many cards are issued from over the internet applications, and they rely HEAVILY on the fact that they ( OC )  produce the statements which they KNOW were sent to you in the mail.

I know him outside of the courtroom and he was trying to tell me that if this went all the way in court I was going to lose, even if I lied in court as to if I had received the statements, or denied the debt. He knew I would not perjure myself and was trying to help me see the big picture.

[kevinmanheim]

As Belle pointed out, judges can ignore rules of civil procedure in favor of a speedy resolution.

If I were sued by an OC, I would get down to the courthouse asap and sit in on a few hearings. See how the judge treats other debtor defendants.

If it is an experience similar to what Belle describes, file a MTC arb asap. Get it out of court.

Some OCs will fly in a witness to testify. If that's the case, you will not win even in front of the fairest judge. If they have the goods on you, your goose is cooked.

Arb is the best way to let an OC know that you will not go down without a fight. Even then, some OCs will make you put up that fight.

Fortunately, the OCs who love to fight in arb are the same OCs who have consumer friendly arb clauses. Use them to your advantage.

[Dylan150]

After reading all of the comments on this site, here is my question?  If  the original creditor wins most cases then why do they sell the debt for pennies on the dollar to Junk Debt Buyers or issue 1099-C's? Could it because most bank's are known for having lousy record keeping?

[kickinanscreamin]

OCs will look at your credit history, i.e. the amount of total debt, ability to pay, declared assets, etc. and make a judgment call regarding  whether or not it is worth going after you in court. 

In other words, what good would winning a judgment be, if you have no money, no assets, and it appears you will not have assets for a long time to come.  If you declare BK, they not only do not get anything from you but have racked up considerable legal costs.

It is more advantageous for them to cut the losses and sell to a JDB.  Let the JDB worry about it.

[WardOfTheCourt]

An OC proving a case with admissible evidence probably happens - but not to me.

An OC winning a judgment based on other than proving their case and having admissible evidence, yep, that is what I see.

The OC affidavits I saw submitted to court were simply personalized generic templates and while judges can accept and do rely on them they are typically so general as not to be of use in a court following the law and rules of evidence. Such affidavits don't even reference or properly bind themselves to the exhibits that the OC is relying on as "evidence". A blather-davit, if you will.

To an OC the definition of the hearsay exception for evidence is anything and everything they allege against the defendant. It is doubtful they will be so generous in viewing your counterclaim hearsay evidence as being an exception, even if it is.

These affidavits are so bad (sure they look good) one was instrumental in my award of judgement against a sue-happy OC.

In my experience OCs sue instead of sell when they know or should know there is no money to be had on a judgment. I originally supposed it was either punitive, the attorney really owned they debt yet sued in the OC name, and/or they planned on getting an easy judgment as they figured it would net more post-judgment (either holding or selling the judgment). Now I believe they are not engaged in their business. When they run up against someone demanding the law and facts not be ignored they seem genuinely shocked and keep running their same game plan which has been very effective for the majority of their cases. With a creditor biased judge this will still work. That is why I would not want to engage in a trial court battle without making a record for an appeal.

From the Instructions for the Debtor associated with IRS form 1099-C, "You received this form because a Federal Government agency or an applicable financial entity (a lender) has discharged (canceled or forgiven) a debt you owed..."  It would seem improbable to have a non-IRS entity be able to legally pursue collecting a 1099-C reported amount forgiven and likely being treated as income to the debtor.

[Skippy1960]

I agree with Kevin, if you can get out of court via Arb this is your best bet in dealing with OC related cases.

I was repersented by an attorney in an OC case and we won.  They supplied a witness that testified in the case along with all the evidence. 

Here are some insights.  Case was filed by in house attorney for the bank that just lost $2b dollars.  I filed answer pro se.  Upon recieving answer OC turned case over to a CA to handle the case.  Started down the arb route via MTC, but prior to hearing I finally found an attorney that would take the case.  Obviously, he didn't want arb.  He beat them via decision of judgement for defendant.

Learnings are court is about civil procedure and preserving your rights via use of those procedures.  For a Pro Se this makes it very difficult to win against a decent CA.  Generally, you are out gunned on understanding what civil procedure or the timing of how the civil statute benfits you to box in your oppostion.  In most instances you can't learn the rules fast enough, even with the slow pace of most courts.

While as Pro Se we generally can pickup and understand the larger issues of the case, getting it in the correct format based on the evidence can cause a loss.  The case I had was won based on witness not being able to authenticate the cardmember agreement/contract, because they worked for the OC and not the bank the account was opened with.

So you see win was based on a very technical piece of law.  I doubt I would have been able to get this point made had I needed to go it alone, even if I would have noticed the agreement that was submitted for evidence.

I have learned you need to read every thing the othersides submits carefully and slowly, to make sure it fits.

Forcing arb is a much easier legal transaction if possible......

[chester474]

I throw pre-trial discovery at the attorneys for the credit card companies requesting everything to do with the account - including the original agreement signed by me, all documents authorizing charges to the account, a statement of all charges made to the account, a statement of all payments made to the account.

When I get their response back, if it doesn't have a copy of the original agreement signed by me I send them Requests for Admission to the effect they do not have the original contract signed by me and then request their basis for charging interest and other charges on the account.

I also contest the method of arithmetic used for computing interest.

If the case has actually been filed with the court sometimes this results in their agreeing to a dismissal wthout prejudice, which is better than nothing.

The attorneys for the charge card companies expect most cases to be won by default. If you make them burn up attorney responding to pre-trial discovery time they just might walk away from it.

[nobk4me]

^ +1

Yes, especially if they are suing for a relatively small sum, drowning them in discovery can drive them away.

I was able to do this for an OC account somewhat less than $2K.

It also helps that, in my state, the collection attorneys can't get attorney fees from the defendant, so they have to eat the cost of responding to voluminous discovery.

Attorneys don't like to lose money, so they dismissed the case, without prejudice, and the account was sold to a JDB.

[chester474]

It depends on how hard you fight back.

If you do nothing they win by default.

If you can drag out the battle long enough the credit card company just may go away. Especially when the attorney time equals the amount of the debt.

Learn how to fight back.

I like to bury them in pre-trial discovery - Interrogatories, Demands for Production and Requests for Admission.

The word processor has leveled the playing field a lot.

It used to be the "little guy" had a manual typewriter, couldn't afford a copy machine and had to use carbon paper - make one mistake in the middle of the page and you had to start from the top again.

Now you can bury the other side in paperwork that eats up attorney time and it's perfectly ethical and legal. Attorneys do it all the time.

You don't need "para-legals" or "litigation experts."

"Para-legal" is really a fancy word for "legal secretary" - there are no certification standards for "para-legal" and the title "litigation expert" is laughable. How can you be a "litigation expert" if you can't appear in court?

If you have the talent for this kind of thing you can become quite an expert yourself.

I knew one person with no formal legal training - and no college at all - who made quite a good living finding mistakes in mortgage documents, buying the position and taking advantage of the errors the big law firms had made. Judges would bend over backwards to prevent the big law firms from being embarrased by a non-lawyer - and he had a hard time of it, but he made money - and legally, too.