Author Topic: how to attack chain of custody  (Read 3531 times)

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tedlee

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how to attack chain of custody
« on: April 11, 2009 02:30:22 AM »

helping /friend/ sued by JDB in Superior Ct, GA

Discovery underway.  Plaintiff Atty has presented the following:

Quote
State of Ohio
County of Hamilton   AFFIDAVIT AND ASSIGNMENT

name name being sworn, deposes and says that she is an authorized representative of Unifund CCR Partners herein called assignor, which is doing business at address and that the statements and representations herein are within her personal knowledge.

There is due and payable from /friends name/, Acct. 123456789, SSN: xxx-xx-1234, as of 08/31/2004, the amount of $123etc.  By the terms of the agreement between defendant and the original creditor, interest is accruing at the rate of 24.49 percent per anum.

This account was originated with FIRST USA BANK NA.  Unifund CCR Partners states the account was hereby assigned, transferred and set over unto THE LYRIC CO., LLC on 06/19/2008 with full power and authority to do and perform all acts necessary for the collection, settlement, adjustment, compromise or satisfactions of the account.

The affiant states that within her personal knowledge, information and belief there are no uncredited payments, just counterclaims or offsets against the said debt.  Further, the undersigned acknowledges that in making this assignment, the assignor has made a complete assignment of said debt and that THE LYRIC CO., LLC is now the owner thereof, and they have complete authority to settle, adjust, compromise and satisfy the same and that the assignor has no further interest in said debt for any purpose.
dated, signed
By: name name  Title: Authorized Representative
Address

Quote
BILL OF SALE
Chase Bank USA, N.A. (as successor through merger with Bank One, Deleware, N.A.) ("Seller"), for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated November 22, 2005 between Seller and Unifund Portfolio A, LLC ("Purchaser"), its successors and assigns ("Credit Card Account Purchase Agreement"), hereby assigns effective as of the Cut-off Date of December 19, 2005 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in Exhibit 1 attached hereto and made a part hereof for all purposes.

Chase Bank USA, N.A
signed, dated, Title Vice President

Univund Portfolio A, LLC
signed, dated, Title: hand written "mumbr"

Quote
AFFIDAVIT OF SALE
STATE OF: MARYLAND
COUNTY OF: FREDERICK
1. I am authorized on behalf of Chase Bank USA, T.A. to make this affidavit
2. /friends name/, had a credit card account with Chase Bank USA, N.A., account number 123etc..  The account was sold and transferred to UNIFUND PORTFOLIO A, LLC on or about 12/20/05.  At the time of the sale to UNIFUND PORTFOLIO A, LLC, the amount due on the account pursuant to the terms of the cardholder agreement between Chase Bank USA, N.A. and /friends name/ was $123etc.  Your deponent states that to the best of deponent's knowledge, information and belief that there was no unaccredited payment, just counterclaims or offsets against the account when it was sold.
3. Your deponent acknowledges that in making this affidavit that UNIFUND PORTFOLIO A, LLC is now the owner of said account, and authorized to collect, settle, adjust, compromise and satisfy the same and that Chase Bank USA, N.A. has no further interest in said account for any purpose.

Chase Bank USA, N.A.
By: signed
typed name
Team Leader

Notarized 2/25/2009
Quote
CERTIFICATION OF CORPORATE SECRETARY OF CHASE BANK USA, N.A.
This one page describes the various changes of ownership of Chase Bank for the last 12 years

Quote
AFFIDAVIT

I, name name, as Director of Sales and Marketing, for the Unifund Group, being duly sworn, deposes, and says:
1. Unifund CCR Partners is a New York General Partnership, and is the operating company for the Unifund Groupl
2. Unifund Portfolio a, LLC is an Ohio limited liability company.
3. Unifund CCR Partners and Unifund Portfolio a, LLC share 100% common ownership.
4. Unifund Portfolio a, LLC purchased various portfolios of accounts from multiple sellers.
5. Unifund CCR Partners manages and services the portfolios of accounts owned by Unifund Portfolio LLC, and Unifund CCR Partners sold a portfolio of 321 accounts to the Lyric Co., LLC via a Sales Agreement and Bill of Sale dated June 19, 2008 as agenf for Unifund Portfolio A, LLC.

Further Affiant Sayeth Not.

signed
typed name
Director of Sales and Marketing
Unifund CCR Partners

notarized 20th Feb 2009

Quote
Unifund
Unifund CCR Partners
BILL OF SALE

Unifund CCR Partners, for value received and in accordance with the terms of the Accounts Receivable Purchase Agreement by and among Unifund CCR Partners and The Lyric Co. ("Purchaser"), dated as of June 19, 2008 (the "Agreement"), does hereby sell, assign, and transfer to Purchaser all of its good and marketable title, free and clear of all liens, claims and encumbrances in and to the Accounts listed in the Account Schedule attached as Appendix A to the Agreement, without recourse and without representation or warranty of collectibility, or otherwise, except tothe extent stated in the Agreement.

Executed on June 19, 2008.

UNIFUND CCR PARTNERS
By signed
typed name
Director, Sales and Marketing

Quote
four lines of print, separate cut-and-paste, highly redacted, all are line 51,
first one shows account number, dollar amount, several dates;
second one shows FIRST USA BANK NA
third one shows /friends name/ and address
fourth one shows numbers and a date and a nearby city

Thats all they have produced so far, and this was from supplement to first response to def. discovery.  They previously attached a generic credit card agreement to the discovery response.

No copy of signed agreement, signed by /friend/
No copies of billing statements.
Nothing but the above.

How do we attack?  TIA



Rottweiler

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Re: how to attack chain of custody
« Reply #1 on: April 11, 2009 07:29:53 AM »
Hmmm...

The first affiant claims that Lyric bought the account from First USA Bank in its entirety.

Yet, the balance is attributed to Chase in one affidavit but First USA in another??

A later affidavit then indicates that Unifund Portfolio, subsidiary of Unifund CCR Partners (which is located in Ohio) bought the account in 2005 from Chase, selling it to Lyric in 2008 through their Ohio subsidiary (Unifund Portfolio A)?  That sale, in turn, makes no mention of First USA Bank, but only Bank One?

The Director of Sales and Marketing is a NEW YORK corporation while the entity that allegedly sold AN account (one of a number that one might assume came from Chase, but such is not specified) to Lyric is an OH one?  Not unusual, but that does raise the question of WHERE this officer actually works out of.  Yet, the only indicator this account MIGHT have been one of the lot sold to Lyric is a highly redacted entry from who-knows-where?  How would anyone know for sure from this stuff that this account was indeed one of them?

Besides, affidavits cannot testify, only people can.  So guess what your friend should demand the Plaintiff do?


« Last Edit: April 11, 2009 07:32:46 AM by Rottweiler »
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

Rottweiler

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Re: how to attack chain of custody
« Reply #2 on: April 11, 2009 10:18:02 PM »
And which Team, exactly, is the "Team Leader" from Chase a leader of?  That has not been stated.  Heck, it could be the Janitorial Team for all we know!

And where exactly did this come from in that affidavit?

Quote
2. /friends name/, had a credit card account with Chase Bank USA, N.A., account number 123etc..  The account was sold and transferred to UNIFUND PORTFOLIO A, LLC on or about 12/20/05.  At the time of the sale to UNIFUND PORTFOLIO A, LLC, the amount due on the account pursuant to the terms of the cardholder agreement between Chase Bank USA, N.A. and /friends name/ was $123etc.  Your deponent states that to the best of deponent's knowledge, information and belief that there was no unaccredited payment, just counterclaims or offsets against the account when it was sold.

3. Your deponent acknowledges that in making this affidavit that UNIFUND PORTFOLIO A, LLC is now the owner of said account, and authorized to collect, settle, adjust, compromise and satisfy the same and that Chase Bank USA, N.A. has no further interest in said account for any purpose.

Uh, someone who affirms a statement in an affidavit is an affiant ("one who affirms").  A deponent is "one who has been or is being deposed".

Therefore, in plain English, a deponent is the person who has been summonsed to a deposition to answer questions (such as their involvement in the dispute during the discovery phase of a court case).  There would be no need to depose an affiant since all an affiant needs to do is swear to the authenticity of a document or statement (the affidavit here).

Yet this document is clearly meant to be an affidavit.  If this affidavit is really intended to act as additional validation to information acquired during Discovery?  Where is a copy of the applicable sections of the deposition transcription in support? After all, an affidavit should be attached to a copy of the relevant document, shouldn't it?

Also, do check out the Notaries: 

If they are not listed as having a Notary commission in the state they claim they do?  The affidavit is invalid since a non-Notary cannot attest to anyone's signature (attesting that the signator to a document is the right person and has the authorization to affirm such document is all they really do).  It also constitutes perjury and fraud on the part of the alleged Notary AND, if it's shown the affiant knew this, the affiant is also guilty of fraud and perjury.

Come to think of it, do all these documents look exactly alike?  The documents allegedly from different sources should be on different letterhead, shouldn't they?  They also may well have watermarks, time stamps, file URLs, etc; those would likely not ALL look the same.

If any of the documents look as if they came from the same source?  They better really have the same origin entity (as judged by what one can see on their face) or someone is in BIG trouble and it ain't you.  :)
« Last Edit: April 11, 2009 10:24:45 PM by Rottweiler »
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

Rottweiler

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Re: how to attack chain of custody
« Reply #3 on: April 11, 2009 10:26:58 PM »
If, upon investigation, ANY of the documents appear to be not what they claim to be?  File a Motion to Preclude the "evidence".

But do investigate first.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

tedlee

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Re: how to attack chain of custody
« Reply #4 on: April 11, 2009 11:32:40 PM »
If, upon investigation, ANY of the documents appear to be not what they claim to be?  File a Motion to Preclude the "evidence".

But do investigate first.

Thanks.  doubly.

I think we will depose each affiant, using third party discovery.  GA, btw, allows trial without appearance by any party, in the form of Motion for Summary Judgement, where the affidavits speak for themselves--hence, our need to attack each affidavit.

Regards.

 

credit