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Showing content with the highest reputation since 12/03/2018 in all areas

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    Thanks, @BV80! As an added note, I will be working for a few hours this afternoon. However, I should be home by 8PM my time if long/more complicated follow-ups are needed from me.
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    In moving for summary judgment, the "moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280. A motion for summary judgment forces the plaintiff to produce probative evidence on all essential elements of his case for which he has the burden of production at trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330. [T]he failure to prove itself as the real party in interest creates a genuine issue of material fact that precludes summary judgment. First Union Natl. Bank v. Hufford, 146 Ohio App.3d 673, 679-680, 767 N.E.2d 1206 (3d Dist.2001). "Lack of standing is certainly a fundamental flaw that would require a court to dismiss the action, and any judgment on the merits would be subject to reversal on appeal." Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23, citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 40. Portfolio asserts that it has proven the standing requirement of its action through the attachment to the complaint that references the sale of assets from the original creditor, U.S. Bank, to Portfolio. However, Portfolio fails to acknowledge that the documents it attached to the complaint do not establish that VanLeeuwen's account was part of an asset sale from U.S. Bank to Portfolio. The document attached to Portfolio's complaint only refers to "assets identified in the Asset Schedule," with no further documentation to show what specific assets are included in the schedule. Portfolio Recovery Assocs., LLC v. VanLeeuwen, 2d Dist. Montgomery No. 26692, 2016-Ohio-2962, 2016 WL 2840930, ¶ 17.
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    Can you post all of the evidence they filed with the court please?
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    DEFENDANT'S ORIGINAL ANSWER Comes now, (your name), the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following: I. GENERAL DENIAL Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence. II. PRAYER Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that he is justly entitled to. (Your name, address and phone number) File it with the court and send a copy to the attorney's office that filed the lawsuit.
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    @RobinR As you pointed out, the debt validation letter in the article in the link you posted is inaccurate. There are too many other mistakes and misrepresentations to list in that article, so I’m only going to address a few. 1. Brian Gray tells consumers that plaintiff’s are required “by law” to produce a contract with their signature. Which state has such a law? He doesn’t bother to tell consumers to look up their state laws. What happens when a consumer stands in front of judge and tells that judge that the law requires a signed contract be produced? The judge is going to ask him to cite the law. Thanks to Mr. Gray’s mistake, the consumer has just made a fool of himself if he can’t cite it. 2. Brian Gray says “You have also requested that they produce all of the receipts for every transaction that you engaged in during the entire life of the use of that credit card. You have requested that they show what you purchased in each of those transactions, and you have requested that they produce your payment record. All of this is legal, and all of it is required in order for them to properly enter the court.” What a crock! Notice he says that the plaintiff “is required” to produce those receipts. However, Gray offers no court rulings or one single law from one state to support his claims. Yet, we could show him opinion after opnion where courts have ruled none of the above is required. 3. Most of his listed defenses fare no better. I have been unable to locate one ruling supporting “scienti non fit injuria”, “subrogation”, or “repudiation” as defenses to credit card debt collection lawsuits. 3. Here is how he describes “accord and satisfaction”. “As I stated earlier, quite often, the credit card company has made an insurance claim, or taken a tax deduction, and this is known as accord and satisfaction. This renders the debt satisfied, and, legally, no one should be able to attempt any further to collect this debt.” Wow! As usual, h offers no law or ruling to support his claim. Here’s what some courts say about “accord and satisfaction”. “An accord and satisfaction is a completed compromise of a disputed claim." Wickman v. Kane, 136 Md. App. 554, 561, cert. denied, 364 Md. 462 (2001). It is "a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the `accord' being the agreement, and the `satisfaction' its execution or performance." Weston Builders & Developers, Inc. v. McBerry, LLC, 167 Md. App. 24, 54 (quoting Jacobs v. Atlantco Ltd. P'ship, 36 Md. App. 335, 340-41 (1977)), cert. denied, 392 Md. 726 (2006). A valid accord and satisfaction requires a meeting of the minds of the parties. Id. at 56-58. Accord and satisfaction is an affirmative defense, and the burden of proof is on the party asserting the defense. Id. at 55. It is a generally accepted principle of law that when a debtor owes a fixed, certain, due, sum of money, commonly called a liquidated debt, the offer of a less sum to the creditor, with a statement or notice that it is in full payment of the obligation, and its acceptance and retention by the creditor do not bar him from collecting the balance of the debt, in the absence of any new or additional consideration. The reason being that the debtor is already under legal obligation to pay the full amount, and there is no consideration for a release or waiver by the creditor of the unpaid part of the debt. Where the debtor merely does what he is already bound to do, or that which the creditor was already entitled to, there is no consideration to support an accord and satisfaction. The reason back of the rule is that there is no benefit to the creditor, or detriment to the debtor, and the transaction is not a contract, with respect to the unpaid portion of the debt. DuTrac Cmty. Credit Union v. Hefel, 893 N.W.2d 282, 290 (Iowa 2017)(citing Gibson v. Deuth, 220 N.W.2d 893, 896 (Iowa 1974)). "An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract." Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993). An accord and satisfaction requires a clear manifestation that both the debtor and the creditor intend the payment to be in full satisfaction of the entire indebtedness. Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997). Notice the courts refer to “the parties” or the “debtor” and “creditor”. Accord and satisfaction occurs between the creditor and debtor. A tax write off is between the creditor and the IRS. It is not an agreement between the creditor and the debtor. As previously stated, subrogation (insurance claim) is not a proven defense. It took very little time and effort to locate those rulings. This shows that Mr. Gray has done very little research. It tells me that he has copied and pasted information he found on the internet but did not bother to determine its accuracy. An accord and satisfaction requires a clear manifestation that both the debtor and the creditor intend the payment to be in full satisfaction of the entire indebtedness. Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997). It did not take long to locate those court rulings. This tells me that Mr. Gray has done very little research. It seems more likely that he fcopied and pasted information he found on the internet but did not bother to determine its accuracy. Again, I addressed only a few of the inaccuracies in his article. There are many more mistakes and misrepresentations. It’s a shame the man doesn’t come here to discuss these issues, but I can be fairly sure he wouldn’t do so even if he knew we were discussing his article. People who write those types of articles and offer no supporting authority for their claims are not interested in accuracy and are certainly not interested in discussing it. They know their attempts to defend their positions would fail miserably because they have nothing to back them up.
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    1681s-2(a)(5) 5) Duty to provide notice of delinquency of accounts (A) In general A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the date of delinquency on the account, which shall be the month and year of the commencement of the delinquency on the account that immediately preceded the action. There is no private right of action under 1681s-2(a), however, we do have a private right of action under 1681s-2(b). b) Duties of furnishers of information upon notice of dispute (1) In general After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall- “When a furnisher provides information to a CRA regarding an account placed for collection or charged to profit or loss, the furnisher then has 90 days in which to notify the CRA of the account's ‘date of delinquency,’ which is defined as "the month and year of the commencement of the delinquency on the account that immediately preceded the action." Id. § 1681s-2(a)(5)(A). The date of delinquency enables the CRA to calculate the seven-year window for ‘aging-off’purposes — without it, the CRA would be unable to determine when the account had been placed for collection, rendering the ‘aging-off’ date impossible to calculate.” Seamans v. Temple Univ., 744 F.3d 853, 860 (3d Cir. 2014). “We conclude that furnishers of consumer credit data remain obligated to report fully and accurately under FCRA regarding the collection history and date of delinquency for even an HEA-qualifying education loan.” Seamans, 744 F.3d at 863.
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    Well, all I can say is good luck, and try to be Very Respectful. My theory on fighting creditors is, forget the credit report. If you default, you get 7 years of credit "purgatory." Which I think is fair. I wish that was the only thing the creditors could do. The fact is, you just escaped a judgment. Which, in addition to damaging your credit score, could have resulted in garnished wages and levied bank accounts, and liens on real property, if you own any. One of the unwritten rules of court is don't piss off a judge. Now, the judge just did you a huge favor by dismissing the case, even if maybe they didn't cut square corners legally, and didn't give you the 'with prejudice' you wanted. And 99.999% of defendants in your position would have been thrilled by this. But not you. THAT'S the kind of thing that can piss off a judge. Also realize that courts want to cut their workload. I suspect the judge will not be happy to see the defendant making more work for the court by challenging a ruling in the defendant's favor. The judge has power. You don't. Never forget that. You say you are willing to take the risk. You are willing to take a judgment??? Which, worst case scenario, could happen, if the judge was really petty and spiteful. Yes, they could be overturned on appeal, but are you willing to incur the costs and work of a pro se appeal? I would be happy with the dismissal, and not take the risk. I don't kick sleeping dogs or poke the bear or the hornet's nest. But that's me. Again, good luck.
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    Fighting with Biff over here while Marty is taking your girl to the Fish Under The Sea dance. Sometimes fighting for the sake of fighting makes people blind to who or what they are actually fighting.
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    Yes. I would point out every flaw and problem this Plaintiff has has up to this point. The Plaintiff clearly caused a delay and is now attempting further delay and court's time to deal with their improper MSJ. That ship has sailed. Get the MTC Granted and the dismissal will come soon enough.
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    Try out for the UFC.
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    In your response to summary judgement, I would point out that a hearing was held regarding Defendant's Motion to Compel Arbitration in which the Plaintiff failed to show up for causing this Court to reschedule said hearing and that if Plaintiff had no objection to arbitration, they could have responded to the AAA, the Defendant or This Court, but they failed to do so. I would point out that the arbitration case can be reopened at any time and it was only closed due to the Plaintiff failing to show up for a scheduled hearing and causing additional delay on this matter. I would point out that now that Plaintiff has made it clear that they do not object to arbitration, that we need not use up the Court's time and cancel the upcoming hearing and ask that The Court grant Defendant's MTC and Deny Plaintiff's Summary Judgement as irrelevant due to the subject being a matter for arbitration only. Who cares. He probably gets more frustrated at having to reschedule hearings because someone is too timid to assert their rights. This is not the judge's case to defend. YOU must do the work. This judge did everything he could possibly do to get you to ask for a dismissal or for a directed verdict and you were worried about hurting his feelings? This is his job.
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    What FDCPA violations have you found?
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    I don't know what good contacting either JAMS or the Court is in this situation. Nothing has happened. What are you going to say to the judge? "Hello, Your Honor. How are you? How about this weather, that is something, huh? Anyway, you know that arbitration thing? It's still pending. Nothing has happened yet. Sincerely, An overly eager consumer". Again:
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    @Mloske Here's some general info on communicating with the judge via the court rules: http://www.co.warren.oh.us/commonpleas/GenInfo/communication.pdf Here's a fill-in form for Notice to the Court that you might modify for your purposes: http://www.loraincounty.us/platform/cms/clerk-of-courts/2015/Civil/Notice-of-change-of-address.pdf
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    Then the account has not been sold and Cap One’s standing to sue is not an issue. I’ll be honest, it’s more difficult to defend oneself against on original creditors (OC). You need to consider settling. The balance could have increased due to late fees and the default rate of interest.
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    Alternatively, just saying "I refuse to pay the alleged debt" also works the same as saying "do not contact me" per the FDCPA.
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    Send the attorney an email stating that you are willing to withdraw your claims in Arbitration in exchange for a full release. Give them an expiration of this settlement offer being the same date the JAMS payment is due. They may ignore it. They may actually agree to the settlement. Who knows. It costs and hurts nothing to try. A signed release of liability is as good as a dismissal with prejudice. If they ignore it, then let the JAMS case get closed for non payment and be done with it.
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    I’ll offer some opinions on that seriously flawed article later on. However, I’ll offer this much right now. That article is full of so many inaccuracies and misrepresentations that it makes me madder than a mosquito in a mannequin factory.
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    The truth stings sometimes. ... except the fact that you still haven't sent them a dime. You've proven that your head is too thick to hear anything we have to say to you. I'm guessing you'll end up getting charged with felony conversion. It'll get plead down to some mid-level misdemeanor and you'll end up on probation for 3 or 4 years. Hopefully you eventually learn to listen to people that know a whole lot more about what's going on than you do because you'll have a rough time on probation otherwise. Good luck to you, buddy.
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    Send a cease and desist to both Resurgent and LVNV. Did the collection letter include that they can’t sue you because of the age of the debt?
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    I won against Midland Funding yesterday! WITH Prejudice! I couldn't have done this w/out the help of these boards & CALAWYER & SEADRAGON!! xbeer2)