debt_warrior

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debt_warrior last won the day on August 24 2014

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About debt_warrior

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  1. debt_warrior

    Legal Specialist Practicing Law

    Hello Anon Amos, I do have to thank you especially and that other masked Man, calawyer, for all of the valuable guidance in defeating these scumbags, but I am not looking for revenge at this point. I feel rather pumped up that I took them down and won the battle and the war too. Right now I am wanting to get my court costs paid back and I understand that there needs to be a notice of entry of dismissal entered before that can happen, so I am still collating information and we are not quite finished as yet. If a notice is not filed in the next few days, I am proceeding with the MC. [Minute order entered last week.] My Best Regards, Debt_Warrior
  2. Won my case against Midland Funding and waiting for the notice of entry of dismissal. Meanwhile I wanted to get feedback from this group on legal declarations. One of Midland ' legal Specialist sent Declaration in Lieu of Testimony averring [falsely and fraudulently] personal knowledge of the acts and events contained therein. Attorneys are listed on the cover page, however, only the legal Specialist signed the un-notarized document. Some wags have interpreted the legal specialists preparing the Declarations as an unlawful practice of law. I would be interested in getting the opinion from the Credit info board. Debt Warrior
  3. Square Two Financial organizational and ownership structure. This org chart is from Securities and Exchange Commission filings. It is 2010 filing so it may be outdated. SQ2 has about 15-16 shells that they utilize, only recognize CACH and CACV as JDBs. This is FYI only. SquareTwo-Financial-Corporation-Organizational-Structure-12-31-2010.pdf
  4. debt_warrior

    Sue FDCPA in Small Claims Court

    Sure, no problem. I will reference the quoted material today.
  5. debt_warrior

    Sue FDCPA in Small Claims Court

    It is a MINOR flaw, if any at all. And if you give it enough thought, there is recourse to a removal to Federal court. Read on for a real life experience, not just a textbook exposition... Small claims court is a special court where disputes are resolved quickly and inexpensively. In small claims court, the rules are simplified and the hearing is informal. Attorneys are generally not allowed. [check with your local court.] If your court, does not allow attorneys, then a suing plaintiff, gains an advantage when you debt collector or JDB defendant can not send in their hired gun attorneys. The playing field is leveled somewhat, especially if you are well prepared. You may indeed get removed to federal court...but for $1K...a debt collector would have to be crazy to start racking huge legal bills to avoid mice nuts. Now, they are in the position where you are forcing them to settle or fold. Texas Hold’em! The consumer may bring a lawsuit against the debt collector in state court. Small claims courts is a better option for consumers who do not want to hire an attorney or spend the time required for a full-blown state court lawsuit. Small claims courts allow individuals to argue their case without an attorney and through an expedited process. These courts typically offer the consumer one shortened hearing in order to argue the case to a judge. Relation to State Law-The FDCPA preempts state law only to the extent that a state law is inconsistent with the FDCPA. A state law that is more protective of the consumer is not considered inconsistent with the FDCPA. Here’s a real life example from someone who actually sued in Small Claims court SUCCESSFULLY several times: “These suits happen all the time in small claims court. I sure could have used to do more research. But you know, you live and learn. But just for those who think I am totally unprepared - I wanted to go pro se, and that's the only one I thought I'd get traction on. Inhindsight, I should have used Texas law which is stricter than federal. This is also not my first go-around in the small claims courts using federal law. This is my 6th suit, and the first time I've had a case "removed." My first small claims case ended up being settled within minutes of them being served. I sat and watched the constable serve them - and they called my phone to discuss settlement within minutes. I no sooner got 1 mile away in my car when someone at home office in San Francisco called and told me they were paying me 140 dollars more than I asked in my suit. The second small claims suit I filed was FDCPA based. They called to settle within a week. The third one was based on FCRA and was againt one of the big three CRAs. It resulted in the defendant filing an answer, and asking to set a trial. Within one week, they are settling with me now - and the check is waiting for me. I will be dismissing it next week. The fourth one seems to be resulting in the defendant not even filing an answer in time. The clerk set a hearing to show the judge and default judgement was rendered. I can file a writ of execution to effect collection now, and probably will so I can watch the constable go down there and take some stuff of theirs to sell." Would it not be great to see that happen.
  6. 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.
  7. Great point on the billing statements. Typically, you will see one or two monthly statements. It would be rare that you see, say, 9 months or 10, 11, 12 months of statements. And more often than not it is only one month, along with the electronic data printout. If you can dismantle the affidavit supporting the statement(s), then it follows they are inadmissible. One case I have seen (and I think they may be others on this board) where only the front of page 1 is offered as evidence and in 6-point print it reads, "See Reverse Side for Important Information." Based on the exemplars that I have seen, that Reverse Side references a credit cardmember agreement and a cardmember agreement obviates account stated. How to keep this "reverse side" monthly statement out of evidence ? I am still collating information on this point.
  8. @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. debt_warrior

    Beat Midland this morning

    @BV80 Georgia is on my mind.....
  10. You also have the right to sue a collector in a state or federal court within one year from the date the law was violated (some state laws allow more time). Many states have their own debt collection laws that are different from the federal Fair Debt Collection Practices Act. The FDCPA 15 U.S.C. § 1692k(a)(2) explicitly gives you the right to sue a debt collector, or to be precise, to sue a debt collection agency that violates provisions of the FDCPA. For each and every violation of FDCPA. Using an attorney is hassle free for you, but you can also sue in Small Claims court with a simple, usually one-page form and a small free. Remember, as a plaintiff you have the prima facie presumption in your favor right out of the gate. Have at least one cause of action, and 2 or 3 would be even stronger. No frivolous actions please!
  11. You also have the right to sue a collector in a state or federal court within one year from the date the law was violated (some state laws allow more time). Many states have their own debt collection laws that are different from the federal Fair Debt Collection Practices Act. The FDCPA 15 U.S.C. § 1692k(a)(2) explicitly gives you the right to sue a debt collector, or to be precise, to sue a debt collection agency that violates provisions of the FDCPA. For each and every violation of FDCPA. The attached file has a list of Small Claims Court limits for the 50 States. (Check your state's website for any special rules or exclusions.) Remember, no frivolous lawsuits. If you win a couple of hundred bucks or $1K, go to Las Vegas and celebrate for the weekend. Sue FDCPA in Small Claims Court.docx
  12. 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.
  13. 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.
  14. debt_warrior

    Beat Midland this morning

    @debtzapper @willingtocope Thanks for all the great info on lawyers, lawyering, law schools, etc., but I think we may be encroaching on the Midland thread. Perhaps we can ask the admin to move this to a separate thread. Willingtocope: Hon, can you move this law school conversation to a separate thread. I was already yelled at for asking a question! Best Regards.