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Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27687
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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Dave, I need one final bit of help before my motion hearing

Resolved Question:

Dave, I need one final bit of help before my motion hearing in the morning. I thought I had credit card statements that go all the way back to 1989, but I do not. I have proof that They sent a letter to me on February 7, I responded on February 9, asserting FDCPA rights and disputing the debt. I also demanded strict proof. They responded with a notice telling me the balance and if I wanted such proof, I should contact the creditor. I responded that this is not validation. I then found that they filed suit on February 18, a violation of FDCPA Section 809 in the 30-day rule. That's my first step. The next step is that they're relying on account statements that contain erroneous information, incorrect interest calculations and rates. They have not sent a copy of the applicaton or receipts so I could evaluate them. The account statements are from CCSI, with an affidavit. To me, this is hearsay unless they bring someone with them, at which point I'll note the errors and assert the need for arbitration. Does this sound like a good plan? I've never tried to get out of what I owe, but when I tried to ascertain that, their attorney literally took off on a mad dash to the courthouse. Thanks again for your help! Joe
Submitted: 2 years ago.
Category: Legal
Expert:  Dave Kennett replied 2 years ago.
You should object to the introduction of any statements as exhibits unless there is someone to testify as to the authenticity otherwise, as you say, it is hearsay. You should also object based on the fact that this was requested in discovery and that the plaintiff failed to provide the copies that they are now attempting to introduce as exhibits. So you have two separate reasons to object and I would state both of them. If you are overruled you will have this as a basis for a possible appeal in the future.
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27687
Experience: 25 years experience in general law, including real estate, criminal, traffic, and domestic relations
Dave Kennett and 8 other Legal Specialists are ready to help you
Customer: replied 2 years ago.

Dave,

I appeared in court today. Thanks for your help! I had Care One help me with the initial filings, and the attorney Smith-Debman hired here in town argued that any evidence I didn't put in my answer was inadmissable. I didn't know that the SOL was not up until later, and told the judge this. I also pointed out that the affidavit swore to incorrect information, as they said this card was opened in April, 2003, when it was actually opened in June, 1989. They produced no contract and no receipts. Their attorney argued anything I brought up now as a defense should not be admissable, as it was after the answer. I explained this was the first shot I had had with the information and this firm did not respond to my request for strict proof until September, and I have not had enough time to have my CPA go over it for accuracy. I added that I didn't object to incorrect charges and interest rates, for I was devoting 20 of every 24 hours to care for my mom. The only question she had that was an issue was she asked for any notes I had of conversations with Citibank, and I didn't have those. She then asked me when the last charge I made on that card was, and I pointed out a charge in 2005. She took the information and said she'd issue a ruling in writing. I thought this was just a motion hearing, but she treated it as my 'day in court'. In all honesty, if she does rule the intitial answer should have contained this stuff, I suppose the lesson for me is to do everything next time. Do you see areas of appeal should she rule against me? I called Citibank on Sunday, and they again said they'd try to work with me. Also, they didn't ask for any attorney's fees, which is strange. I also pointed out the Cardmember Agreement that specifies JAMS arbitration and had a motion filed for that, which seemed to catch their attorney off-guard and he brought up some case about a used car dealer and evidence at a late time, blah, blah.....I pointed out that federal law requires these cases to be conducted with the broadest protection of the consumer in mind. Thanks again for all of your help and any thoughts, etc. would again be appreciated.

Expert:  Dave Kennett replied 2 years ago.
It is true that all affirmative defenses must be raised in the answer. There are probably more cases won or lost because of all the civil rules than on the facts of the case and it is virtually impossible for any attorney to guide a pro se litigant on a step by step basis of all the possible issues that may come up. Hopefully the judge will recognize that you are not well versed in all the technical details of the civil rule of procedure and will give you the benefit of the doubt. Some judges bend a little on the rules for pro se litigants and others do not. It is simply very difficult going to court against an attorney who can use all of the technicalities when the facts are not in their favor. Generally whenever I file an answer I use the approach of naming a laundry list of defenses whether they are relevant or not just to be safe. Of course you have to know what all of those defenses are and that's not something the general public knows in most cases.
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27687
Experience: 25 years experience in general law, including real estate, criminal, traffic, and domestic relations
Dave Kennett and 8 other Legal Specialists are ready to help you

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