Certificate of Assignment or just some trick?

Also if CACH,LLC bought this debt how can they become the assignor of the original debtor?
That is how it is listed in the complaint, The Plaintiff is assignor of WAMU/Providian Bank
I am really confussed? Help please ASAP!!!!

Hi there, I just wanted to acknowledge your post, keep checking back for replies, it's usually a little slow on the weekends.

Thank you Shazzers, I am doing alot of reading on other post! What a wonderful service this site is! Great people willing to help! By the end of my ordeal I will be able to maybe help someone out!

Here's another lil' bump, hopefully someone will be along to reply.

they are saying that this person is a credible witness to the fact that you do indeed owe what they say.file to dismiss the affidavit as heresay,or motion to have the person actually appear.chances are they can't or won't.then he judge will not allow that as evidence.

Would this motion work? Is this certificate of assignment what they consider to be the certificate of debt? Are they one in the same?

I found this also, my question is what is my next step? What motion do I file with this?
When a Debt Buyer hands you over documentation in regards to the Assignment they must show that YOUR DEBT was Assigned to them not give you a copy showing that on such and such date they purchased a ACCOUNTS.


For example let’s say the Debt Buyer per their assignment has given you a copy like this one:


SALE AND ASSIGNMENT -


“Washington Mutual” on such and such date has sold blah blah blah all rights, to Junk Debt Buyer for ACCOUNTS LISTED.


“Let’s say it is then signed by the ORIGINAL CREDITOR”


Most people would go into panic mode right here saying CRAP! The original creditor signed the Assignment now I’m screwed. WELL NO YOU ARE NOT.


Did the bank actually say they sold YOUR ACCOUNT over to the Junk Debt Buyer listing YOUR NAME and then signed it? NO.


All this proves is that the Junk Debt Buyer on such and such date bought some accounts from Washington Mutual. WHOOPIE! Good for them!


Well, where’s my account at? Where’s my name? Where’s my account Number? Where’s the proof that my old credit card debt was within that sale???? It proves nothing.


The Debt Collector cannot submit an affidavit stating that the account was assigned, it has to PROVE the assignment of Debt and then have that Assignment Authenticated with an Affidavit from the Original Creditor.


One of their tricks is to evidence an assignment “bill of sale” showing that they have a relationship with the Original Creditor but that document 95% of the time shows that they purchased ACCOUNTS LOTS of them and that right there does not identify YOUR ACCOUNT. Not identifying YOUR ACCOUNT in the assignment cannot possibly prove that YOUR ACCOUNT was sold with the rest of the accounts they bought.


Please keep in mind that the Junk Debt Buyer cannot submit an Affidavit from the Employee of the Junk Debt buyer stating that there is an assignment that exists between the Junk Debt Buyer and Yourself! That’s B.S.

PM skydiver.he will know exactly what to do in this case.he is my unofficail souce for things like this.

hiya--ok, now that I found this thread...

Mary, you have some good info here. Let me ask you--exactly what does it say on the affidavit that they sent you? The exact wording of that document could make the difference between hearsay and evidence. If you like, you can scan it and email it to me--my email is the same as my screen name here, at yahoo. Depending on how they worded it, I would take this in two different directions...first, it is hearsay, and second, it may not even prove that you had an account to begin with. Either way will help you, but both together will be even better. Please get back to me about exactly what their affidavit says and I would be happy to see what help I can offer.

Thank you Skydivr
I sent everything to your email. Thank you so much for your help!

check your email, Mary, reply sent

Bill of Sale
Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (purchaser) dated as of December 20,2006 (the Agreement) does hereby sell, assign and transfer to Purchaser, its successors and assigns, all tight, title and interest in and to the Accounts listed in the Account Schedule attached (as my be amended in accordance with the Agreement) as Appendix A to the Agreement, without recourse and without representation or warranty of collectibility, or otherwise, except to the extent started in the Agreement.
Executed on May 23, 2008
Washington Mutual Bank
By some guys signature (I can't read it)
Print Name Can't read that part either
Title FVP something else I can't read
Coll Am CCCS lite Bill of Sale 05_08.doc
This is on a plain sheet of paper with no letter head no address or phone numbers.
The next page is another no names, no letter head just two wide blacked out spaces then my name, with two account numbers, placement date and amount they are suing for.

Also can someone tell me what does as of Dec 20, 2006 mean? Does it mean that all account are covered by this bill of sale up to that date or from that date on? Is this legal or can I file a motion to strike it?
It was executed on May 23, 2008 and they show my account purchased by them on June, 2008 I need help asap because I have a court date comming up real soon and I need to get this done if I can.

The account they purchased from Wamu is showing on my credit report but it is listed under Chase bank, not Wamu. The original creditor was Providian. I know Chase took over Wamu but chase shows that the last payment made on the account was 05/2008, CACH shows that they were assigned the account on 06/2008. I was never contacted by CACH until I received a summons for court this past August from their attorney here in Arkansas. I have requested for them to send me validation but all they have sent was a Certifficate of Assignment(I have filed a motion to strike on hearsay rule), Certificate of Merger of Providian and Wamu (Providian was the original creditor)and now it is Chase that is on my credit report, and a Business Records Affidavit. They said they have ordered a copy of my contract and other proof but I have not yet received it. I did file yesterday a Sworn Denial. From the way I understand how it works it makes all of these documents useless without a witness. Is that right? Again I am in Arkansas and they seem to do everything backwards to everyone else. What will be my nest step? How can I get rid of this bill of sale, just file a good old strike?

This is the original complaint.
Complaint
Comes the plaintiff by its Attorneys, The McHughes Law Firm, LLC and for its cause of action against the Defendant states and alleges:
1. Plaintiff is a foreign entity authorized to do business in the State of Arkansas for the purpose of collecting a debt pursant to Arkansas Code Annotated 4-27-1501(b)(8). The Plaintiff is assignor of WAMU/PROVIDIAN BANK N.A, a national banking asociation. ( The plaintiff is CACH,LLC and they are NOT licensed in Arkansas)(the attorney is but under a different name2. Venue of this action is proper in the county named above because defendant is an individual believed to be residing in the said county at the time of commencement of suit.
3. Wamu/Providian Bank issued a credit card in Defendants name under it account number XXXX> Defendant received and used the card and thereby became obligated to pay for the charges incurred with the card.
4. Defendant defaulted on the obligation to make monthly payments on the credit card account, and the card was subsequently canceled. The entire balance on the credit card account is presently due and payable in full.
5. By using and or authorizing the use of the credit card Defendant accepted the contract with the issuer and became bound to pay for all charges incurred with the creedit card. Defendant also became subject to all of the terma and conditions of the Issuer's cardholder agreement.
6. The isser sent to Defendant monthly bills reflection, inter alia, all charged incurred with the credit card, the monthly payment due, and the total charges incurred with the credit card, the monthly payment due, and the total balance due. To the best of the plaintiffs knowledge and belief defendant did not ever send to the Issuer any disputes of the monthly bills or the charges reflected thereon. Each monthly statements informed the Defendant of the duty to submit any disputes of the charges set forth in such statements, in writing within sixty days from the date of the statement. Defendants failure to submit such disputes constitutes admission of the account balance.
7. Defendant defaulted in the payment obligation on the credit card. Such breach of contract proximately caused the Issuer damages in the amount of the balance due on the credit card account. That obligation has been assigned to plaintiff, who is the party entitled to enforce the contract and receive payment of the credit card balance.
8. Defendant received and used the card knowing that the Issuer expected to be repaid for all charges incurred with the card, together with interest thereon. With each use of the credit card the issuer paid money on Defendants behalf to the merchant with whom credit was used.
9. Plaintiff is the assignee of the issuer's right to be repaid by Defendant the sum of $2040.95, prejudgment interset in the amount of $0.00 for a total balance of $2,040.95, as is shown by the Affidavit of Account attached hereto.
10. Through its undersigned attorney, Plaintiff has demanded payment from Defendant, but Defendant has not satisfied such demand. Plaintiff has performed all conditions precedent to the filing of the action, or all such conditions precedent have occurred.
WHEREFORE, premises considered, Plaintiff prays that Defendant be sunnoned to appear and answer, that upon final hearing, Plaintiff have Judgment against the Defendant for;
a) $2,040.95 which is the balance due in the credit card.
post judgment interest at the maximum rate allowed by law.
c) attorney's fees in the amount to be determined by the court,
d) all cost of court, and
e) all such other just and proper relief to which Plaintiff may be entitled.
Respectfully Submitted
A PAIN IN MY BUTTOX! (LOL Sorry had to laugh to keep from crying)

This was my answer!
I. ANSWER
Defendant answers the complaint as follows:
1. Defendant denies the allegations contained in Paragraph 1 of the Complaint, as
Defendant is without information or knowledge sufficient to form an opinion as to
the truth and accuracy of alleged assignments and entitlements.

2. Defendant specifically admits to the allegations contained in Paragraph 2, filed here against her, with the knowledge that the defendant lives within the county of the proper Venue.

3. Defendant lacks knowledge about the truth and therefore denies allegations contained in Paragraph 3,4,5,6 Plaintiff has failed to provide Defendant with any kind of account numbers or documentation for alleged credit card debt.

4. Defendant denies the allegations contained in Paragraph 7, as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant. Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements

5. Defendant specifically denies the allegations contained in paragraph 8, it may be of the Complaint filed herein against him/her and puts the Plaintiff to its strictest proof thereof.

6. Defendant denies the allegations contained in Paragraph 9, of the Complaint, as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

7. Defendant denies any alleged obligation to Plaintiff in Paragraph 10, as there is not, nor has there ever been any contact, by phone, mail, or any agreement, written, oral or implied between the Plaintiff and Defendant.

II. AFFIRMATIVE DEFENSES
Defendants other defenses are:
1. The Plaintiff failed to name the real party in interest.

2. The Plaintiff failed to state a claim upon which relief can be granted.

3. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

5. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

6. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

7. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. ?? 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

8. Defendant claims According and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff.

9. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference an account number in their Complaint.

10. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.
WHEREFORE, Defendant prays that the court take nothing of Plaintiff's Complaint by virtue and dismisses the complaint.

This is what was attached to the complaint.
The Certificate of Assignment
I, Tesha Tarvin, hereby depose and state that
I am an Authorized Agent for the Plaintiff CACH, LLC
gives my name, original creditor and account number then it says
This account was issued by the original creditor Wamu/Providian
CACH, LLC is the current owner of the account and purchased the account for good & valuable consideration.
This accont shows charge-off date of 04/30/2008
This account was purchased with a past due balance showing of 2,040.95
The current balance is 2040.95 plus any interest.
Signed by Tarvin Dated 5/12/09
Marked Exibit A

Also attached to the Complaint was,

The Business Records Affidavit
Before me, the undersigned authority, on this day personally appeared TESHA TARVIN, who swore on oath the following facts are true:
My name is TESHA TARVIN. I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated.
"I am a custodian of records of CACH, LLC Attached hereto are records from CACH,LLC These records are kept by CACH,LLC in the regular course of business, and it was the regular course of business of CACH,LLC for an employee or representative of CACH, LLC with knowledge of the act, event, condition, opion, or diagnosis recorded to make the record to transmit information thereof to be included in the record, and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original."
Signed and notorized by another pain in the BUTTOX! LOL ( one more laugh)

what court are you in?
I am in the District Court of Clinton, Arkansas

So then I filed a motion to strike.

Defendants motion to Strike Plaintiffs Certificate of Assignment

Now comes the Defendant ME, PRO SE, who request this Honorable Court to Strike the Plaintiff's Certificate of Assignment for the following reasons.

1. The Plaintiff CACH, LLC has filed Exhibit A Certificate of Assignment.
2. The plaintiff would be denied full right to due process unless the cort compels the plaintiff to produce Tesha Tarvin so that the Defendant may have the opportunity to question the witness.
3. As such said affidavit falls under the hearsay rule and is inadmissible as evidence. With reference to the affidavit of proof provided by the plaintiff in support of it's claim for damages, then please let the court note the affidavit is prepared by the employee of the plaintiff, not WAMU/Providian Bank.
4 Defendant further states that the affidavit is not subject to the hearsay business records exemption because it was not made at or near the time of the alleged acts or events, and;
5 The information contained in the document is merely an accumulation of hearsay, and;
6 The plaintiff fails to show the original contract of Assignment fron the original creditor WAMU/Providian Bank
7 Upon Information and belief, the creator of the document in plaintiff's Exhibit A is not currently and has never been employed with Wamu/providian bank and therefore cannot have personal knowledge of how Wamu/Providian Bank records were prepared and maintained and;
8 Is unqualidied to testify as to the truth of the information contained in Plaintiff's Exhibit A.
WHEREFORE, the Defendant prays that the Plaintiffs Exhibit A be stricken from the evidence in the above action and this case be dismissed with prejudice.
Respectfully Submitted
The Lady that is going crazy because of this, (OOPS another laugh)


Then they responed with this

Plaintiff Response to Motion to strike

1. Plaintiff does not dispute paragraph one of Defendants Motion.
2,3,4,5,6,7,8, Plaintiff denies all allegations set forth in these paragraphs of the Defendants Motion.
9. That the attached Certificate of Merger, Bill of Sale, Certificate of Assignment, and Business Record Affidavit clearly establishes Plaintiff's standing in this action and set forth the chain of ownership of the account in question.
WHEREFORE premise considered, the Plaintiff prays the Court deny the Defendant's Motion to strike, for Plaintiff's attorney's fees in having to respond to this motin, and grant all other just and proper relief as the Court deems appropriate.

This is when they attached the Bill of sale Bill of Sale
Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (purchaser) dated as of December 20,2006 (the Agreement) does hereby sell, assign and transfer to Purchaser, its successors and assigns, all tight, title and interest in and to the Accounts listed in the Account Schedule attached (as my be amended in accordance with the Agreement) as Appendix A to the Agreement, without recourse and without representation or warranty of collectibility, or otherwise, except to the extent started in the Agreement.
Executed on May 23, 2008
Washington Mutual Bank
By some guys signature (I can't read it)
Print Name Can't read that part either
Title FVP something else I can't read
Coll Am CCCS lite Bill of Sale 05_08.doc
This is on a plain sheet of paper with no letter head no address or phone numbers.
The next page is another no names, no letter head just two wide blacked out spaces then my name, with two account numbers, placement date and amount they are suing for.

They also attached a certificate of merger of Providian and Wamu, I guess to show that Wamu took over providian, but we all know how long that lasted. Would Wamu have to show a certificate of Assignment from Providian, if Providian was my original creditor?
Wouldn't they have to show that Wamu is the owner of my account now? I am talking out loud here so if I am not making sense please disregard. If my original creditor was Providian Bank wouldn't all of these affidavits be no good because they have not shown that Wamu has the assignment from Providian Bank? Yes I know they showed that Wamu bought Providian Bank but they do not show assignment of my account from providian. Or is that just suspose to be assumed? Every one knows what happens when you Assume? Am I grasping here or does this make sense?
Please help! As you can tell I am getting really worried. I hate feeling like this. Like I am at a dead end. Someone please some advice on what they think I should do, besides give up, no way, will not happen!!!!;)

A couple things--

first, please tell me that this was just a typo that you committed here:

[QUOTE]Now comes the Defendant ME, PRO SE, who request this Honorable Court to Strike the Plaintiff's Certificate of Assignment for the following reasons.

1. The Plaintiff CACH, LLC has filed Exhibit A Certificate of Assignment.
2. The plaintiff would be denied full right to due process unless the cort compels the plaintiff to produce Tesha Tarvin so that the Defendant may have the opportunity to question the witness.[/QUOTE]

It should read "The defendant would be denied...."

Second, your answer covers everything quite well. Good job there!

Third, they have claimed that this account was charged off in April 2008. I cannot understand, if that is the case, why they would have written the sales agreement between WAMU/Providian and CACH way back in December 2006. Creditors simply do not write an agreement to sell a debt to a JDB two years before that account is charged off. It would have had to already be in bad standing for some months before an OC will offer it for sale to a debt buyer.

I do not believe that they would have to show any assignment to WAMU, because they can show that WAMU acquired Providian, so without any specific agreement on this specific account, it is generally accepted that WAMU would take over all of Providians accounts. If there were a specific agreement between Providian and someone else on this account, then it would be a different story, because at that point WAMU wouldnt have anything to do with that account.

When you file for discovery, I would include a request for the chain of custody for any records that they claim to be from original creditor. You are dealing with storage of data by several parties, and it is essential that the chain of custody be preserved. otherwise, anyone could come along, change any info they wanted to, and pass it off as the original. And CACH is good for trying to do such things. Youre off to a good start up to this point, please keep us updated! As always, feel free to drop me a line with any questions.

Jon

Ok skydivr7673 here is what I want to do, What do you think! Oh yeah before I get started I have already sent discovery a while ago all they have sent me was the Certificate of Assignment,& Business Records Affidavit. I have filed the motion to strike Certificate of Assignment already. Then they come back with this bill of sale, with a page attached showing my name and account number on it, it doesn't say Account Schedule on it anywhere. It just says 1 of 1. Now you will see the dates in the Bill of sale of As of December 20, 2006 and then the
Excuted date of May 23, 2008. On the next page that list my name and account number it show a placement date of June 2, 2008. Now if I am understanding this right my account would not be covered under this bill of sale. If it is that means all accounts they get from Dec 20, 2006 until whenever will be covered under this bill of sale. Thats crap! Now please tell me that I am right. Since they attached this to their response to my motion to strike the Certificate of Assignment is it considered new evidence and can I file a motion to strike it? Below is the bill of sale. Thanks for being here for people like me!

Bill of Sale
Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (purchaser) dated as of December 20,2006 (the Agreement) does hereby sell, assign and transfer to Purchaser, its successors and assigns, all tight, title and interest in and to the Accounts listed in the Account Schedule attached (as my be amended in accordance with the Agreement) as Appendix A to the Agreement, without recourse and without representation or warranty of collectibility, or otherwise, except to the extent started in the Agreement.
Executed on May 23, 2008
Washington Mutual Bank
By some guys signature (I can't read it)
Print Name Can't read that part either
Title FVP something else I can't read
Coll Am CCCS lite Bill of Sale 05_08.doc

The next page is another no names, no letter head just two wide blacked out spaces then my name, with two account numbers, placement date and amount they are suing for.

I would object to this document as well, as you said earlier, because it states this:

[QUOTE]
Bill of Sale
Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (purchaser) dated as of December 20,2006 (the Agreement) does hereby sell, assign and transfer to Purchaser, its successors and assigns, all tight, title and interest in and to the Accounts listed in the Account Schedule attached (as my be amended in accordance with the Agreement) as Appendix A to the Agreement,
[/QUOTE]

Just as you posted back on 9/19 in this same thread, they did not prove at any time that this one specific account was a part of this sale. So, yes, I would move to strike, and I would definitely state in that motion that this bill of sale does not at any place mention the account in question, but in fact by its wording is very clearly a bill of sale for many accounts. At no time does this identify the specific account that they are suing you over. The next page that they sent you, the "1 of 1" page, does not in any manner identify the information as being from the original creditor--it is a blank piece of paper with some typed info on it that could have come from anywhere. As you posted earlier, the plaintiff must prove that this specific debt was assigned to them, and then it also must provide a sworn affidavit from the original creditor to prove authentication. They MUST be made to prove their case--and those two documents are what would prove that. If you allow them to get away with less, then they will.

I would move to strike, because the "evidence" does not in any way prove even that they purchased the specific account in question. If I were the defendant in this case, I would force them to prove:

1--first that they even own the debt in order to sue me over it.
2--second, that it is even my debt to begin with.
3--if it is my debt, then I would ensure that the amount they claimed is legitimately owed.

As long as the judge allowed me to question those three points, I would keep up the pressure. If they had real evidence, they would not be holding back--this is the time in the trial when they are supposed to bring it forth and they dont gain anything by holding back when the defendant has already attacked the evidence that they have brought forth thus far.

Here we go again. I filed the motion to strike the bill of sale just as you said, then I received today their request for admission propounded to the defendant, interrogatories and request for production propunded to the defendant. Also included was copies of credit card statements, and emails from the attorney to an employee at collect america asking them for information on the account. Why would they send these emails to me? Now I have done some research and found this. I would like your advice if this is true or not PLEASE.

Is Copies of Credit Card Statements Enough Proof for Collection Agency to Win in Court?
Browsing online like I normally do to blog about things to help others I ran into a question asked by a consumer with an answer provided by an Attorney.

The Consumer was telling the attorney that when he asked the Collection Agency for proof of his debt (validation) they sent him photocopies of Credit Card Statements from the Original Creditor. He went on to say that the Collection Agency told him that he needed to pay up the entire amount now plus fees to avoid them submitting these to the court.
The Consumer asked the Attorney if the Photo Copied Statements were enough to prevail.
The Attorney replied with this answer:
When a collection agency/debt buyer does submit a series of monthly statements, either at trial or accompanying a summary judgment motion, those statements must be properly authenticated. The statements can not be the basis for a collector???s summary judgment motion or to make their claim in court if they are unaccompanied by any affidavit swearing to or certifying the records.
As in your case, a debt buyer can not merely file documents received from the original credit card company, even if they are retained in the collection agency???s regular course of business. The records must have been kept in the original creditor???s regular course of business, and an affidavit must authenticate that fact. So therefore, the answer is no.

One of the emails states to the attorney "I emailed you the docs that we have on file. I will let you know when we receive the rest."
Since these did not come from the OC but from collect america and with no affidavit is with them are they any good for them to use in court?:confused:

[QUOTE=Mary Smith;490952]Here we go again. I filed the motion to strike the bill of sale just as you said, then I received today their request for admission propounded to the defendant, interrogatories and request for production propunded to the defendant. Also included was copies of credit card statements, and emails from the attorney to an employee at collect america asking them for information on the account. Why would they send these emails to me? Now I have done some research and found this. I would like your advice if this is true or not PLEASE.

Is Copies of Credit Card Statements Enough Proof for Collection Agency to Win in Court?
Browsing online like I normally do to blog about things to help others I ran into a question asked by a consumer with an answer provided by an Attorney.

The Consumer was telling the attorney that when he asked the Collection Agency for proof of his debt (validation) they sent him photocopies of Credit Card Statements from the Original Creditor. He went on to say that the Collection Agency told him that he needed to pay up the entire amount now plus fees to avoid them submitting these to the court.
The Consumer asked the Attorney if the Photo Copied Statements were enough to prevail.
The Attorney replied with this answer:
When a collection agency/debt buyer does submit a series of monthly statements, either at trial or accompanying a summary judgment motion, those statements must be properly authenticated. The statements can not be the basis for a collector???s summary judgment motion or to make their claim in court if they are unaccompanied by any affidavit swearing to or certifying the records.
As in your case, a debt buyer can not merely file documents received from the original credit card company, even if they are retained in the collection agency???s regular course of business. The records must have been kept in the original creditor???s regular course of business, and an affidavit must authenticate that fact. So therefore, the answer is no.

One of the emails states to the attorney "I emailed you the docs that we have on file. I will let you know when we receive the rest."
Since these did not come from the OC but from collect america and with no affidavit is with them are they any good for them to use in court?:confused:[/QUOTE]

Hiya Mary--

Court is a funny place, as there often is not a solid "true" or "false" answer in situations like these. The real answer is that they have enough to win as long as you stop challenging what they have with solid legal responses. People lose in court every day to debt collectors that dont have even the most basic shred of proof--because they do not challenge what has been presented. Court is often thought of as the place where truth prevails--it is not. Instead, it is the place where the victor makes the most sense with the evidence that they presented.

That said, I would agree with the info you posted, as ANYTHING from CACH itself does not in any way prove that you did business with the original creditor, or that you owe XXX amount of dollars to anyone. Even credit card statements can be handled, because they do not show anything about the plaintiff's right to collect, or any activity on the account after the date on the statement. The emails, in my mind, are useless to the plaintiff as evidence, because they do not substantiate even one detail of the claims brought against you. This case is not to prove that CACH employees talked to a lawyer.....they are supposed to be proving that you owe them money.

I would challenge the photocopies, because they have not been authenticated. you could even argue that the FDCPA requires that documentation come from the original creditor, and not "in-house" from a debt collector. Since there is no way to prove where those photocopies came from, I would definitely object to them--they need to be authenticated by the original keeper of those records--the original creditor. Otherwise, a debt collector could print up anything they wanted and claim you owed them $99,999,999.00 if they felt like it.

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Thank you for all of your help! I received a mail request for admissions and request for production of documents. I know they put a lot of trick questions can you help me answer these.

This is what they are requesting.

Requests for admissions

1. Admit the defendant me applied for and was issued a credit card from providian bank.

2. " " received a credit card from providian bank

3. " " make purchases with said credit card.

4. " " defaulted on the terms of said contact.

5. " " failed to pay the installments as contracted.

6. " " used the credit card to make purchases or obtain extension of credit.

7. " " the issue made cash advances to the defendant, either as actual cash or in payment for purchases defendant made from third parties by using the credit card.

8. " " accepted each such advances on the account.

9. " " by accepting each such advance under the terms of the agreement applicable to the account, defendant became bound to pay that the amounts of such advances, plus any additional charges provided for is such agreement.

10. " " within 60 days of the debt of any billing statement on the account did not seen to issue a written dispute of the billing statement.

11. " " defendant is indebted to the plaintiff as assignee of providian bank.

12. " " the Plaintiff's book and record show the defendant with the balance due of $2040.95.

13. " " defendant owes the plaintiff the sum of the $2040.95

Interrogatories and requests for production

1. Please state defendant's current address, telephone number, social security number, a place of employment, and banking affiliations. Please include the addresses and telephone number of employer and banking affiliations.

2. In the event defendant denies any of the submitted request for admissions, please state specifically the reason for said denial.

3. Please state specifically the dispute you have with the information contained in the complaint.

4. In the event this calls should be tried, please state the name, addresses, telephone numbers and expected testimony of each person defendant plans to call as a witness.

5. Please list and describe all tangible evidence defendant expects to introduce at trial of this cause.

Request for production number 1. In reference to interrogatories number five, please provide plain up with a copy of all documents, tapes, transcripts, receipts and any other evidence defendantt will introduce at a trial of this cause.

6. Please state the correct balance that, if any, defendant believes is a owed to the plaintiff.

7. If defendant is claiming at payment, credit or offset that plaintiff is not giving the defendant credit for, please state the amount, date, and mode of such.

Requests for production number 2. In reference to interrogatories number seven, please provide plaintiff with a copy of the receipt, canceled check, or any other proof of such payment.

8. Please state the date an amount of your last payment on said account.

9. Please state the balance due on said account after your last payment.

10. If the defendant denies having received the card identify any person whom defendant believes may have received the card.

11. If the defendant denies having used the card identifying any person whom defendant believes may have used the card and state whether each such person was authorized by defendant to use the card.

Request for production number 3. Please produce all billing statements from the issuer to defendant.

Request for production number 4. Please produce a copy of the front and back of the credit card issued to defendant from issuer.

Requests for production number 5. Please provide true copies of all correspondence from defendant to issuer,disputing any billing statement on the account together with proof of sending and receipt of such correspondence.

12. If the defendant contends or believes that the debt that is the subject of this suit it the obligation of any a person or entity other than the defendant, identify such other persons or entities and state the facts on which that contention or believe is based.

Request for production number 6. If the defendant contends or believes that the debt that is the subject of this suit is the obligation of any person or entity other than the defendant, Please produce the documents on which any such contention or believe is based.

13. Identify all persons whom you may call as expert witnesses at trial and state the subject matter of each such person's anticipated testimony and the opinion of each such person concerning the subject matter of this litigation.

14. If you are disputing only A portion of the account please identify which portions of the account are disputed and which are not and state of the reasons for any such disputes.

15. Please to treat these interrogatories as continuing and supplement your answers with additional information as it becomes available to you. Will you do so?

I will get to work on these and post what I have come up with so maybe you can give me a thumbs up or down. Thanks! Mary:rolleyes:
I really hope that by me posting every step I take in this mess helps someone else with their problem of this nature.

You have some good stuff there....a couple thoughts:

on #8, you stated:

[FONT=Arial][QUOTE]Response: [SIZE=3]This is objected by the Defendant on the grounds that it is overly broad, unduly burdensome, cumulative and/or duplicative to the extent it seeks documents or records that are not within the current knowledge, possession, custody or control of the Defendant. Plaintiff???s request should be accessible to Plaintiff from Plaintiff's own files, from documents or information already in Plaintiff's possession. The Plaintiff did not attach a copy of the Alleged Contract to the Complaint, thus the probity of the requested information is speculative. The Defendant has sought the Contract Alleged through Discovery and demands strict proof thereof.[/SIZE][/QUOTE][/FONT]
[SIZE=3][FONT=Arial][SIZE=3][/SIZE][/FONT][/SIZE]
[SIZE=3]I would change that to indicate something like the following:[/SIZE]
[SIZE=3][FONT=Arial][SIZE=3][/SIZE][/FONT][/SIZE]
[SIZE=3]Plaintiff has made allegations against defendant strongly enough to bring legal action against said defendant, and has claimed to have already furnished proof of their allegations. As such, if this information actually existed, plaintiff would already have it in their own files. Defendant has denied knowledge of this entire incident and therefore does not possess any such knowledge or documentation. Plaintiff holds the burden of proof in this case, and if plaintiff needs to ask defendant for such information, then plaintiff lacks sufficient knowledge or evidence to bring forth this action in the first place.[/SIZE]
[SIZE=3][FONT=Arial][SIZE=3][/SIZE][/FONT][/SIZE]
[SIZE=3]I dunno, I tend to tell em how I really feel....:D[/SIZE]
[SIZE=3][FONT=Arial][SIZE=3][/SIZE][/FONT][/SIZE]
[SIZE=3]On #3, I would put something along these lines:[/SIZE]
[SIZE=3][FONT=Arial][SIZE=3][/SIZE][/FONT][/SIZE]
[SIZE=3]Defendant has denied the whole scope of plaintiff's allegations set forth in the complaint. Defendant was never given the opportunity to request validation of the alleged debt because plaintiff never contacted defendant regarding this account until the summons for this case was served. Despite that fact, plaintiff inidcated in the complaint that they had made several attempts to come to terms with defendant, to no avail. Defendant has requested through discovery documentation to prove plaintiff's claims. Plaintiff has, thus far, not provided that documentation. Due to this fact, defendant cannot even address several of plaintiff's interrogatories properly because plaintiff has not supplied the requested documentation. Plaintiff has therefore failed to meet the required burden of proof with regards to their allegations against defendant.[/SIZE]
[SIZE=3][FONT=Arial][SIZE=3][/SIZE][/FONT][/SIZE]
[SIZE=3]For #14, I would state:[/SIZE]
[FONT=Arial][SIZE=3][/SIZE][/FONT]
Defendant did not at any time dispute only a portion of the alleged debt, but instead disputed the entire alleged debt.
[FONT=Arial][SIZE=3][/SIZE][/FONT]

Thank you Skydivr, You are the greatest! Now I will get to work on the Request for admissions. I will post them as soon as I can to get your thumbs up or down!

[QUOTE=Mary Smith;494091]I really hope that by me posting every step I take in this mess helps someone else with their problem of this nature.
[/QUOTE]


I'd like to thank you for posting your step-by-step here. It will be a tremendous help to folks in similar circumstances. I'm following this thread. And I've bookmarked it as a great example for folks I'm working with.

Ok Skydiver now what do I do next? The judge denied my request to strike the affidaviate and bill of sale that they summitted. He was good enough to say that I might have some objections during the hearing. Which just got recheduled again from the 18th to Jan,13. What's up with that? Just kidding, I know there is no way to tell what the judge feels like doing he just does it. Any way I have started working on my admissions they asked for, not finished yet. I also sent the a second request for production of Documents that that said they had to order and would send them. Here is the letter I sent them.

[FONT=Arial][SIZE=2]November 12, 2009
[SIZE=2]???[/SIZE]
[SIZE=2]CACH, LLC[/SIZE]
[SIZE=2]Attention: Attorney for Plaintiff, The McHughes Law Firm, LLC[/SIZE]
[SIZE=2]P.O. Box 2180[/SIZE]
[SIZE=2]Little Rock, AR 72203[/SIZE]
[SIZE=2]Ref: Case No. CV-09-89[/SIZE]
[SIZE=2]In the District Court of Clinton Arkansas[/SIZE]

[SIZE=2]On September 8, 2009 you were in receipt of Request for Admissions, Interrogatories and Request for Production of Documents. You responded to these request on September 23, 2009. [/SIZE]
[SIZE=2]In the Request for Documents you were asked to supply the following;[/SIZE]
[SIZE=2]1. Please provide the actual credit card contract upon which your complaint is based[/SIZE]

[SIZE=2]2. Please provide a contract, agreement, assignment, or other means of demonstrating that the Plaintiff has the authority and was legally entitled to collect on the alleged debt.[/SIZE]

[SIZE=2]3. Please furnish reasonable proof, such as an original, or copies of the assignment agreement or assignment agreements, transferring the alleged contract and/or account in question from Wamu/Providian Bank over to CACH, LLC to show an Assignment has been made and that CACH, LLC are the real party in interest.[/SIZE]

[SIZE=2]4. Please provide a copy of the Assignment for the account in question between CACH, LLC and Wamu/Providian Bank.[/SIZE]

[SIZE=2]5. Please evidence proof of the Defendant???s alleged debt to Plaintiff, including specifically the alleged contract, between Plaintiff and Defendant or any other instrument constructed solely for the purpose of creating a load agreement between the Plaintiff and Defendant bearing Defendants signature and/or Please produce the contract that legally requires the Defendant to pay the amount entered into the complaint.[/SIZE]

[SIZE=2]6. Please provide the original or copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts.[/SIZE]

[SIZE=2]7. Please provide copies of the amount paid and/or the consideration due for the alleged contract/account.[/SIZE]
[SIZE=2]???[/SIZE]
[SIZE=2]13. Please provide a document or documents that proves you did send the defendant a notification of assignment of the account or assignment of rights.[/SIZE]

[SIZE=2]Your Responses to all the above request was;[/SIZE]

[SIZE=2]Plaintiff has ordered requested documents and will provide upon receipt.[/SIZE]

[SIZE=2]All other requested documents were objected to.[/SIZE]
[SIZE=2]???[/SIZE]
[SIZE=2]According to the Arkansas Rules of Civil Procedure Rule No. 37 (A) 1,2 &3 [/SIZE]
[SIZE=2]I am required to make an attempt to obtain this information requested during the Discovery Process by contacting you before filing a Motion to Compel with the Courts.[/SIZE]
[SIZE=2]I am now asking you to answer the Request for Documents that I have attached, and to attach all documents that I have requested and return to me the Defendant within 10 days of your signed receipt of this letter. I will be filing this letter with the court to show that I have done what the Court requires of me the Defendant to request these documents that you have stated would be provided.[/SIZE]
[SIZE=2]Sincerely,[/SIZE]
[SIZE=2]Mary *************[/SIZE]
[SIZE=2]*********************[/SIZE]
[SIZE=2]*********************[/SIZE][SIZE=2]???[/SIZE]
[SIZE=2]??????[/SIZE]

Ok here is my answers to the Admissions. They have sent me copies of old credit card statements. So I can not deny the credit card account, but I have not denied that part any, I am only saying that CACH, LLC does not have the right to collect on it. PERIOD! So please let me know if I have answered these right or not. Also they just sent me today a second set of this mess to answer. I will do it and post it so for any imput I am greatful for!

I have been reading, and everyone says DO NOT ADMIT TO ANYTHING!
So I know in the State of Arkansas CRP's state that you can not put lack of information, so I have come up with this what do you think?

I can neither admit nor deny anything until I the Defendant has received documents from the Original Creditor verifying this debt. ie. Original Contract between Defendant and Original Creditor Providian National Bank, Terms and Agreement from Original Creditor Providian National Bank, Terms of Sale Contract between Original Creditor Providian National Bank and CACH,LLC. Defendant has requested these proper documents from the Plaintiff who has not provided them as of today. If I the Defendant was to admit to this request without proper verifacation of this debt in question would result in the disclosure of information where such disclosure would violate the privacy rights of the Defendant.

Thanks for keep up with me on this! As always LUV you guys!;)

Any sugestions, My time is running out to send this first set of admission back! Thanks! Mary

Mary--

at this point, saying that could appear to be the same to the court as "I dont have enough info to confirm or deny". I would simply deny everything regarding the debt itself. At the end of the day, the plaintiff has to prove their case against you and if they cannot, then there must be some reason why. It isnt like the world is just figuring out how to conduct business--legit businesses each and every day have to document EVERYTHING....so if these guys are really legitimate, there is no reason why they couldnt provide the documentation to prove it. Thats my thought, anyways. No documentation means no money. Thats how I have always recommended that people handle collectors. I would deny all of their claims with regard to this debt and force them to either prove it or take a walk.

Hey I'm back! I think I have them finished. This is for the second set of interr, and admissions. Would you mind looking them over and telling me what you think. Thanks!

Mary,

In response #1, I believe it should read "Defendant has seen no proof of assignment, and cannot admit to knowledge of any relationship between Providian Bank, N.A. ,Washington Mutual and defendant". You have "plaintiff" there. Also, when you state this:
[FONT=Arial][/FONT]
Admitting this fact would result in the disclosure of information where such disclosure would violate the privacy rights of the Defendant because Plaintiff has not proven they have assignment of this account. Therefore Defendant Denies Request for Admission NO. 1.

--I dont think this will work for you. For one thing, you called it a "fact" in there, which implies that their statement is true. For another, it reads that youre denying it solely because if you admit to it, then it violates your privacy. The only way that admitting to something infringes upon your privacy is if that statement is true. Wherever you have used that quote I would change it or remove it altogether. The only exception is if you found that quote in a place within your research that shows it is a good idea to use it. But I would be careful about that one. Other than that, you sure did some homework on this one! I especially liked how youre shutting them down cold when they try to ask about other accounts that have nothing to do with this one.

Hi Skydivr,
I hope you and your family had a WONDERFUL Thanksgiving. Ours was great, it is always great to see family! I just felt like the Stuffed turkey rest of the day by the time all the food was put away!

Now got to get back to real life here! Yuck!

So you are saying I need to take it out of all of them or just number one? Is there something else you would sugest to put in there? Thanks, Mary

Hi--

You need to take it out of all of the places where you put it in. Aside from that, your response looks like you mean business.

If you look back in this thread you can read how I answered the Request for Production, Interrogatories, and admissions. I receive a second set of these also with old credit card statements attached, I did the same with these I did not admit anything. Now I get a court order telling me that I had until the 15 of Feb to reanswer them all, like they didn't like my answers. I need help in answering these things, is there anyone that would spend some time helping me out? Thanks

i would PM skydiver on this.my advice would be to answer as you have done before.if those were your answers then they are showing they have no real case.but PM skydiver to clarify that point.

Can a collection company use the FDIC Title 12 Federal Reserve laws to state that they are not required to have the original contract between me and the oc? The exact one they used was
12 CFR 226.25
Thanks!

Quote:

hiya ozzie--

at this point in the game, a debt validation letter will not help anything, because this one has already gone to court. Our OP here has, as I recall, already requested proof of the debt through discovery, which is the proper process once a lawsuit is filed.

How does this end??? I've just been served by a legal firm representing Cach just in a different State.

Please start your own thread and give us more details....locking this thread.