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Showing content with the highest reputation on 08/24/2014 in all areas

  1. 2 points
    Judgments are vacated for legal reasons and not pursuing the defendant collect is not one. One reason is lack of proper service. If the Plaintiff used "sewer service" and the defendant never knew about the case despite claiming proper service to the court by Plaintiff the judgment could be set aside. Your situation is that you had a trial and lost. There were some issues that could have resulted in the judgment being over turned but you only have 30 days to file an appeal and once that lapses you are forever time barred from appealing. Based on what you posted this is over. You either settle it or hope that they don't ever try to collect and that they do not renew the judgment if your state allows it.
  2. 1 point
    http://www.nakedcapitalism.com/2012/08/judge-90-of-credit-card-lawsuits-cant-prove-borrower-owes-money.html Make sure to read the end of the article about Discover card
  3. 1 point
    The affidavit is also inadmissible. In CA affidavits are not admissible at trial except by statute or act of Congress. Unless you do not object, of course.
  4. 1 point
    You won't need it. You discredit and attack their evidence by using the rules of evidence, authentication and foundation.
  5. 1 point
    I would: - send out ccp 96 request right away: http://www.courts.ca.gov/documents/disc015.pdf - get a subpoena signed/stamped by the court clerk, find a registered process server in San Diego, and 20 days before trial serve the declarant at the address where they say they'll be available. (San Diego sheriff won't do it UNLESS you have a fee waiver.) http://www.courts.ca.gov/documents/subp001.pdf - prepare to disqualify the witness, just in case she shows up. - work up objections to evidence, get trial brief and written objections going Make sure you're up to speed on codes, cases (including Target), hearsay, etc. Take a look at Seadragon's 60-day timeline.
  6. 1 point
    What you say is true...BUT...it is seldom that simple.
  7. 1 point
    I agree 100% with the judge and this sentiment, however, the judge's primary responsibility is to the court and the canons of the law, not necessarily to justice. As Oliver Wendell Holmes, Jr., is famously quoted as saying, "This is a court of law, young man, not a court of justice." Who looks for justice, not the plaintiff, not the judge and certainly not the pro se defendant. And the bare fact is that there are not enough pro bono lawyers, non-profits or defense lawyers that would be able to outweigh in the long run the "impartial" judges and the plaintiff's bar. The defense bar is hardly present at all. "The problem, according to judges, is that credit card companies are not always following the proper legal procedures, even when they have the right to collect money. Certain cases hinge on mass-produced documents because the lenders do not provide proof of the outstanding debts, like the original contract or payment history." Yes, 90% of Credit Card Lawsuits Can’t Prove Borrower Owes Money and it more than coincidential that the court system is tilted the way it is, and 90% or more of Credit Card Lawsuits result in Default Judgments, despite the fact that they can not prove that the borrower legally owes the money sued for.
  8. 1 point
    @debtzapper @BV80 @Anon Amos @browniebrownie141 @credit2011 @GinnyCoonrod It would be most helpful to have an outline of the proof issues encountered by the plaintiff in account stated causes of action and the strongest defenses that can be mobilized against the "proofs." My strategy is focused on (A) ownership of the debt and chain of title as a proxy for standing or real party in interest, and ( countering the faux affidavits and Affidavit in Lieu of Testimony (CCP 98 subpoena argument) as a two-pronged attack on the JDB case. My attention is also devoted to account stated, however, if A is dismantled, then an adverse judgment is much less likely. Likewise with the B component. However, it does depend a great deal on the unique attributes of your case. If there are 2-3-4 "owners" of the debt with cascading assignments and some parts of the assignments unraveled, the Court is much less likely to let it stand in the final analysis. If there are 1 or 2 "owners" (including the OC), court is more likely to let those docs in as admissible hearsay evidence. As for the affidavits, as the Court correctly observed in Rocha, "Section 98 is a noted departure from the hearsay rule as declarations are generally not admissible at trial." (See Evid. Code 1200). Notwithstanding this assertion, trial courts exercise their "broad discretion" to allow them into evidence with amazing regularity. This may be because the court has taken an accurate reading of the pro per defendants and have a pretty good idea that they are tiring after nearly a year trying to figure out how to defend their cases, learning a new, complex language along with a new complex, often disjointed and contradictory set of rules, and they are fairly certain that these pro per's will not appeal their decisions. Rocha separates the playing field somewhat, if it is used correctly in conjunction with an agressive defense strategy. Most of the cases on CIC have been won using this two-pronged strategy. If you can defeat any one of the essential elements of the account stated triangle, it only adds strength to a pro-active, aggressive litigation strategy as has been described above. That said I would nevertheless like to hear more on ways and means to defeat account stated. [i'm not conceding any points to the opposition!.]
  9. 1 point
    It does not appear likely that a motion to vacate would be sustainable ? What State is this action filed in ? Please complete the Case Profile below. If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible): 1. Who is the named plaintiff in the suit? 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 3. How much are you being sued for? 4. Who is the original creditor? (if not the Plaintiff) 5. How do you know you are being sued? (You were served, right?) 6. How were you served? (Mail, In person, Notice on door) 7. Was the service legal as required by your state? Please identify your state also ? Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? 9. What state and county do you live in? 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 11. What is the SOL on the debt? To find out: Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits 17. Any additional facts that you believe are helpful regarding your case.
  10. 1 point
    Note - This bill was introduced in the US Senate. Not sure if there is a companion bill in the House of Representatives as yet. It is a commendable effort, but at the rate both are approaching the infinity of dysfunction, no action to pass the bill is contemplated before the END of the century. If we are reading the bill correctly, it provides injunctive relief to plaintiffs as well as ATTORNEYS FEES!!! If someone could give me a quick sanity check [text of the bill is below], that would be much appreciated. Amendment to Fair Credit Reporting Act to Impact Debt Collection Bill focuses on preventing errors in consumers' credit reports and calls for the CFPB to develop accuracy procedures for credit reporting agencies to follow. New legislation from Sens. Sherrod Brown (D-Ohio), and Brian Schatz, (D-Hawaii), seeks to amend the Fair Credit Reporting Act (FCRA) to protect consumers from inaccurate credit reports and credit scores. The “Stop Errors in Credit Use and Reporting Act” would make it easier for consumers to correct, dispute, and access their credit reports and builds on a proposal from Sen. Bernie Sanders (I-Vt.), to provide consumers with free credit scores, according to a statement from Brown and Schatz. Under the FCRA, credit reporting agencies are required to, “follow reasonable procedures to assure maximum possible accuracy” of information contained in credit reports, but reports still contain far too many preventable errors, according to a summary of the legislation. “In today’s economy, it is critical that consumers have access to a safe and reliable way of checking their credit reports and scores,” Brown said. “This legislation ensures consumers have the resources they need to correct credit report errors that could potentially impact future employment opportunities, credit applications, and other transactions that require a good credit score. Consumers would also have access to a free annual credit score and report.” Of relevance to debt collection agencies, the bill amends responsibilities of consumer data furnishers to provide “free disclosure after notice of adverse action or offer of credit on materially less favorable terms.” (1) In general.--Not later than 14 days after the date on which a consumer reporting agency receives a notification under subsection (a)(2) or (h)(6) of section 615, or from a debt collection agency affiliated with the consumer reporting agency, the consumer reporting agency shall make, without charge to the consumer, all disclosures required in accordance with the rules prescribed by the Bureau under section 609(h). Other specific components the legislation would: Require the Consumer Financial Protection Bureau (CFPB) to develop procedures for credit reporting agencies to follow as a means to improve accuracy.Ensure that agencies send consumers’ disputes and supporting documents to the creditor when there is an error on a report, so that they can thoroughly review the consumer’s claim.Make it easier for consumers to spot errors in their credit reports by requiring that consumers receive a free copy of their credit report if anyone makes an unfavorable decision based on the report.Give consumers the ability to request a free credit score along with their annual free credit report to see what credit they might be eligible for.Give courts the ability to stop a credit reporting agency from reporting inaccurate information and provide the Federal Trade Commission with new authority to stop sloppy practices. The legislation is cosponsored by Sanders, Sen. Elizabeth Warren, (D-Mass.), and Sen. Richard Blumenthal (D-Conn.). It is under review by the Committee on Banking, Housing and Urban Affairs Senate: S.2224 - SECURE Act INJUNCTIVE RELIEF AND ATTORNEYS FEES!!! Injunctive Relief.--In addition to any other remedy set forth in this section, a court may award injunctive relief to require compliance with the requirements imposed under this title with respect to any consumer. In the event of any successful action for injunctive relief under this subsection, the court may award to the prevailing party costs and reasonable attorney fees (as determined by the court) incurred during the action by such party.
  11. 1 point
    @debt_warrior Thank you for this information! I definitely believe that the FCRA, along with the FDCPA, needs an overhaul. In my opinion, the Act is not specific enough and is too lenient in some of its requirements. For instance, it does not determine what is necessary for a furnisher or CRA to conduct an investigation into a consumer dispute. That needs to be defined. Another issue is the reporting of the date of first delinquency. It states that if a furnisher doesn't have the date of first delinquency (which is what determines the date the entry will fall off your CR), they can follow reasonable procedures to get that information from the original creditor. If the OC didn't report that date to a CRA, then the furnisher can establish and follow reasonable procedures to ensure that the DOFD is earlier than the unknown DOFD. What if the OC no longer has any records of the account? We're supposed to just trust the DOFD provided by a CA or JDB when the OC is not reporting? "Reasonable procedures" is not defined within the Act. How do we know that a furnisher is establishing procedures that are, in fact, reasonable? Those are just a couple of the problems that I have with the FCRA. Considering the impact that credit reporting has on so many consumers, furnishers should be required to have proof of what is being reported and be ready to provide that proof to a consumer after receiving a notice of dispute. If the furnisher doesn't have that proof, they shouldn't be reporting at all. In regard to the injunctive relief, that could get sticky. Notice that it said "successful action" and "prevailing party". There are people who will dispute and sue for every little thing including accurate information. There may need to be a penalty for frivolous actions.
  12. 1 point
    Account stated is not a cause of action, it's a common count. So if they can sue under the same causes of action as you say; that leaves them with open book, breach of contract, unjust enrichment etc. That is why I said it's an abuse of the system when they can use account stated. Also, they are claiming the alleged debt has been defaulted on, so it's difficult to believe the account is still open, and so, if it's not an open account, then you would have to assume the account has been closed in order for them to be able to sue on it. This is from attorney Clinton Rooney in a LexisNexis article: "The debt buyer first claims that every account statement ever sent to the consumer is an account stated. This is nonsense. First an account stated requires a final balance struck, which requires a closed account. Second, an account stated is a contract, which means it must have a single date of execution". There's a lot of argument as to the differences in those cases you cite compared to the jdb's as well. And you first need the jdb to identify which docs are the account stated. It's not always the statements they claim is the account stated. There is also arguments as to whether or not the statements are contracts, new contracts or accounts, let alone admissible. The case law is from OC's and many differences can be shown from the jdb cases. Courts rule the jdbs stand in their shoes and courts rule otherwise. Some people can argue against them well and some people can't. I'm sure our arguments will be the exact opposite of each other regardless, I was just asked to elaborate a bit on my opinion on it.
  13. 1 point
    An account doesn't have to be closed to become an account stated. Each new billing statement that is not disputed becomes an account stated. ILSHIN INVESTMENT CO., LTD. v. BUENA VISTA HOME ENTERTAINMENT, INC., Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2011. An "account stated" is an agreement that an account, and the items in it, are correct. It is a new contract that supersedes the underlying account, and into which the items in the underlying account are merged. (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753.) In an action on the account stated, "`nquiry may not be had into [the original items of the account] at all'" except for fraud or mistake in the making of the account. (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787; see 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 972, p. 1062.) An account stated ordinarily comes into existence when an account is rendered, and its recipient either acknowledges that it is correct or fails to object to it within a reasonable time. From that, the law implies an agreement that the account is correct as rendered. (Maggio, Inc. v. Neal, supra, 196 Cal.App.3d at pp. 752-753; see also Zinn v. Fred R. Bright Co., supra, 271 Cal.App.2d at p. 600; Levy v. Prinzmetal (1955) 134 Cal.App.2d Supp. 919, 922 [creditor's acceptance of account and payment without objection constitutes account stated].) Unfortunately, courts have ruled that JDBs can stand in the shoes of the creditor which means that they can sue for the same causes of action as the OC. If you show that the JDB hasn't proven ownership of the account and doesn't have standing to sue, it doesn't matter the cause of action. If the billing statements are inadmissible, they have no proof of an account stated. If those billing statements don't show charges and/or payments, you argue there's no evidence of transactions between the parties.
  14. 1 point
    Thank you all for all your help, I will be reviewing all of these posts, to begin building my defense. I guess I should go to the courthouse to file my counter claim? I wrote about the violation on my answer that I filed, but I didn't enter a counter claim? By the way, like I had mentioned in my first post, I've changed my number multiple times (3)to be exact, to avoid these guys. The number associated with the credit card account originally was my very first, I was reading about "skip tracing" the other day, is that something I can utilize as well? Just wondering... Every day I'm feeling a little more confident about this whole situation, but I won't feel perfect until this is all locked away and done!
  15. 1 point
    Cerulean, Welcome...well you can do 1 of 2 things...you can hold off filing a MTC BOP and move to start the RFP process. In which case, once you start that JDB will assume you are no longer interested in the BOP request since you started the discovery process. Once you start the discovery process the clock starts ticking for the JDB because they have 35 days in which to answer (that includes mailing). Soon after you send the RFP request send a meet and confer letter with regards to an insufficient response to your BOP request. Remember they think you have stopped pursuing the BOP process because you began the RFP process. At the end of the RFP process and hopefully you have timed your meet and confer letter you can state in the meet and confer you will file a MTC BOP and make sure you get a MTC BOP calendared at least 20 days out from the date you give the JDB to respond to your BOP. Do you see the strategy here...you will keep them so busy they will lose track and will miss a deadline. I did that with my case that they dismissed within 4 mos. It was against Midland. Anon did the same thing...so strategize and put everything on a big calendar so you can see the WHOLE picture.