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outtadebt

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outtadebt last won the day on April 26 2019

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  1. OK. So you got a couple things going on here that need to be sorted out. A couple initial items I think you need to check and share if you have the records. 1. Your mortgage servicer is required to send you an escrow statement and analysis every year. That is where you need to start and see what they are charging and what is driving your payments either up or down. They have to disclose any changes to the escrow and why. Do you have any statements from them in the past 3 years? 2. Did you ever let your homeowners policy expire? It sounds like they did Forced/Lenders Placed Insurance on you. That is the worst type of insurance, really expensive, profitable to the servicer and insurer and provides the bare minimum in coverage to protect the lender/investor in your loan. You get screwed on these policies. Chase and many other companies got in real trouble back about 3-4 years ago for running scams with these insurers where they were taking kickbacks for driving accounts into these policies. If they did LPI on you, that would explain the 2 coverages. Chances are they sent letters to you at specific times asking for proof of coverage. If you did not respond, they will automatically place the coverage and not rescind it until you provide proof of coverage. Check for those letters if you are saving documents. 3. Do you have an ARM? As asked, this loan can and will change over time. Again, the servicer must provide a statement annually about any rate changes. And no, the rate can not change at any time, only once per year in a window specified by your mortgage note. If your servicer is not providing any of this information in writing, annually then they may have some serious problems. I would find that hard they would not as this would be way to easy to haul the into court over a boatload of RESPA violations. As stated before, right now your fight is with Chase and the servicer who collects your payments. I think Chase sold most of their servicing rights to avoid these exact legal traps. And yes, as stated by a previous poster, they settled for significant dollars based on lots of bad behavior. I had the same problem for a long time with my mortgage servicer (Nationstar, now Mr. Cooper). This company is a real joke. At first I tried to deal with them and literally had multiple RESPA violations. But this is a very tricky area of the law. Not something to play around in for amateurs. Nationstar continued to blow off and lie to me about everything. It was eventually resolved and settled with legal assistance. There are no ethical mortgage servicers out there. RESPA violations have a 2 year SOL. But, if they are still not correcting legitimate errors, your window may still be open, even though this goes back many years. If you have any of the above I would suggest a summary timeline of what happened. In the end, if you have a legitimate issue, your best bet is a consumer attorney.
  2. How about the claimed debt is less than the small claims carve out in the cardholder CC agreement. Do you even know the small claims limit here in Illinois without looking it up. Your option goes poof when the limit is not reached if the right OC was in play. What would you do then.....
  3. You are out of your league.

    1. outtadebt

      outtadebt

      Whatever you guys say.  Hope you are a lawyer.  Most of you have never stood in court in this state and been in front of our judges.  So keep that closed mind.  I  have plenty of PM's for things that worked out here in Illinois.  I am sure you have lots also, not.  Don't respond, not worth my time

       

    2. BV80

      BV80

      Outadebt, pay no attention to play maker.  He just shows up every once in a while with useless comments. 

  4. Again. Not sure the reason why. I live about 65 miles outside Chicago, so I am not going to Cook County to pull the documents unless I ever need to. I would like to know how they missed. B&G is a JDB lawsuit mill and they use the same docs out in the country here. Maybe someone finally had enough of their antics. I think we would really need to see the actual affidavit that was challenged and what wording they used. All in the detail. Maybe B&G actually could not get what they needed. All I am saying is this does give an opening to find a hole and possibly exploit it in our State. But since the OP has not been back to state who the OC is and the amount of the claimed debt, I am not sure arb is an option that others always parrot as a singular solution. For any case subject to the small claims carve out, at least you can try and fight with this. I would think some of our better consumer lawyers (and we have 3 really good ones in the Chicago area) may pick up on this and be able to help. The other option is to lose on default or lose at trial. As I have said, times change, so do strategies. Even if a door seems closed, maybe there is another door somewhere.
  5. Goody. I agree, that appeared to bet he main thing missing that has allowed them to proceed in the past. Why they did not cure the defect and present it I can not find anywhere. But, Illinois is such a creditor friendly state, I am very surprised that it even received consideration at the appellate level considering other rulings are not consistent with this. In any case, they parties went back and forth for another year or so and the case was abandoned by Portfolio in March 2018. They dismissed without prejudice. So my guess is that they could not get the documents to overcome the appeals court. This case was in Cook County also, That makes it very interesting to win at the Civil and Appellate level on a debt case. Especially since the defendant was pro se and the appellate court cut him a wide path for not following procedure essentially helping him win to some effect. In any case, it does provide an opportunity for case law to use against these guys when they have an issue with documents. In my county they are still following the same routine they have followed for years. They never bring all the docs to court. Just the same generic junk and wait for the default. Anyone who actually challenges the this garbage usually gets a quick dismissal (depending on the amount). In the end, this guy decided to fight. He used the old method of challenging the evidence and actually was able to win in a very unfavorable environment. We should take that lesson and see when it can continue to be applied successfully in the future. This was a $15K case, putting that on a collection account for 7 years is death from a financial perspective. PRA may have even dipped into the arb water here for that amount, knowing they would still make money when they won. And they would have won in arb had they gone through with it. We all know that.
  6. Without knowing anything about who PRA actually claims to have purchased the account from and the amount, it is hard to predict what will happen. Arbitration may be a good route, but not always the best and potentially not an option depending on the OC and amount in question. So what county are you in? Illinois has some basic requirements that must be included with any JDB filing that I am sure Portfolio conveniently omitted. They always do, at least 100% of the time in my county. If you can pursue arbitration and the amount is small, I would offer this to consider. You may/will be successful in getting them to dismiss without prejudice and leave you alone. But there are consequences. They will report an open collection on your CR's for the next 7 years. If you need a mortgage, you will have to deal with them, Want to rent an apartment, you will need to deal with them, If you want a car loan in the next three years or so, if approved you pay a higher rate due to active collections. You will pay more for home and auto insurance for at least 3 years with an active collection. Effectively, if the debt is a couple thousand, you may beat them from pursuing the case, but will pay at least the same or more in daily life costs as the claimed value. If you choose to fight and they have provided the normal garbage to support the claim (generic bill of sale, PRA employee affidavit, one or more statements from the OC and using account stated or something like that, read the attached case. You may have a chance in court. This case was lost at the appellate level here, appealed by PRA to the Illinois Supreme Court and they refused to hear it. Game over, it appears they never pursued it further and lost. Portfoliio Case Law - Affadavits.pdf
  7. Agreed, does not matter when they dismiss based on Arbitration. Other than if they wait till you prove you are serious and pay the filing fee, you either eat the fee or go after them to get it back. In my case, I just ate the fees and called it a win. Too much work to get that back and no guarantee at all of winning. Matter of fact since I asked for the arbitration, most likely would have lost badly. What does matter is that debt buyers are starting, slowly, to figure out a way to handle people who threaten arbitration just to get a dismissal. Sites and conversations like this educate them as well as the people intended to really benefit. Tactics are changing slowly and everyone needs to recognize that. Overall, if you get it to arbitration with a JDB, that is always a win so far. No argument there. This OP may not even understand how to file a proper answer and MTC to ask for arbitration. He/she will waste his time on something Cavalry will put in front of the judge to prove it can not be used. But arbitration is not an option here. Not even on the table based on the CC agreement from 2014. So why waste time discussing or pursing it. Use the SOL and be done. After all, you never know what life will throw at you. He is protected in MO. Say he moves to IL or another state with a longer SOL period in the near future. Then he is back open to getting sued. He may be able to kill this thing right now while protected by a borrowing statute and should try to go for that,
  8. Could not resist just so you do not drive the OP into a ditch. Based on estimated default date, Citibank has a small claims carve out. Arbitration is not an option. But go ahead and keep pushing that Mr. Facts. Great strategy. Can't wait to see how that one works. Cavalry will have his lunch and a default judgment served for a snack. People lose when they push a bad position, as you are now doing. SOL defense wins 100% when presented. No way around it. Plaintiff snoozes, he loses. Oh and on this board and others, if you decide to read you will see several posters noting that the JDB did in fact not dismiss until after the defendant actually filed for the arbitration. They bailed after receiving the notice of acceptance from the Arbitration entity and now realized they have to pay up. But hey, why let a few facts stand in the way of a good story you want to push. Peace out.
  9. Throwing insults for bad decisions does not make you smarter or a better strategist. I think you need to find the same rock and get shelter from the storm you are putting the OP into. Think about what you are saying. If the OP (who it appears has never been in court defending himself) actually prepares his answer, properly prepares the motion, argues it correctly (assuming SC exclusion does not apply) and gets it approved he still has to file with JAMS or AAA and pay the fee. So then he needs to actually file the paper work and show the court he followed through on the order. All that does not just happen without time and effort. Been there, done that. Do you honestly think Cavalry will just dismiss once the MTC is granted. In the past this was 100% correct. But as with other strategies, I see the JBD's in my area getting a little savier and waiting till you actually file. Kind of like the bankruptcy bluff. Tactics evolve. Otherwise they flip the tables, go back to court and force litigation for the OP not following the court order. In any case, the OP must file an answer. You are telling someone to blatantly exclude a potentially very solid affirmative defense in their answer. A dismissal without prejudice is far different than one with prejudice and both the Law Firm and JDB knowing they might have trouble. If I was inexperienced in court and had an opportunity to get legal counsel (probably for free) with little to no effort on my part, I would be running for that help. I think the OP needs that in this case, not your arbitration option. I am sorry, how big is your rock shelter. Quote: 55 minutes ago, outtadebt said: I do not agree that Cavalry would win any argument saying "Well your Honor, we think the defendant is lying and made up the records.  Have you been living under a rock? It happens every day in courtrooms across the country. Except when you can back it up with facts. And I guess you have been in court in all the jurisdictions in the country. Not arguing this with you anymore, we are not going to agree. The OP needs to decide what to do.
  10. Harry, take a step back. I agree, you can and should use both an affidavit and sworn testimony to verify the banking records (your records) are accurate. To do other wise is perjury. I do not agree that Cavalry would win any argument saying "Well your Honor, we think the defendant is lying and made up the records. He has a secret account that was used to make this payment" Come on. Kind of like saying as the defendant "I have no recollection of the account so therefore it must not be mine" when the JBD produces the garbage bill of sale and affidavit still used in almost every case to win without any additional shred of proof. And yes, everyone will say you can't fight that. But I disagree as there are still several cases in my state where the JDB's have lost on defendant appeal using old tactics that everyone here says can not be defended anymore. This is not about revenge of any kind and the OP should not look at it that way. Why would anyone want to arbitrate a case where the SOL defense is clearly in play? If SOL is a true affirmative defense, this case should be over at the first hearing. Done, Kaput and finished with a proper judge. If you arbitrate, then you get the 18 month hobby and an arbitrator who can ignore the SOL defense, award and judgment and send you to court for affirmation of the same. You lose what can be easily won. Bad strategy. In this case, I would use arbitration as a second affirmative defense only if the judge really goes off the reservation and denies a SOL defense ( I am assuming the OP can prove the payment information is correct). But if you do not raise the SOL defense at the answer to the summons, it is gone. It is so rare we see a JDB or OC screw up SOL dates. Right now, Cavalry thinks they got the OP just in the nick of time. If the OP can prove otherwise, it would be foolish not to do so. All arbitrating does is cost the OP a couple hundred bucks (not recoverable) filing fees and lots of headache to run his own case.
  11. I would not waste time with the OC. They have sold the account. It is dead to them. They will just pass you back to Cavalry who will pass you back to the Law Firm. You will be right back where you started and just wasted several valuable days. Use your bank statements to prove no payment was made. You can verify those records yourself, and you will get verification from your bank far faster than a Credit card company. That should be the case even if you closed the bank account when you moved. If you are absolutely confident on the dates and this is truly out of SOL, my first and only call would be to a Consumer Attorney. If you have been sued out of SOL, they will probably gladly take the case, file a timely answer for you start the process of going after Cavalry and the Law Firm. You can sit back and enjoy the show. When is your answer due to the court. The clock is ticking....
  12. A quick check of Missouri statutes appears you are on the right track with the borrowing statute. Here is the Missouri Civil code reference - 2009 Missouri Revised Statutes, Title XXXV CIVIL PROCEDURE AND LIMITATIONS, Chapter 516 Statutes of Limitation, 516.190. Limitations on actions originating in other states. It appears you can raise the SOL defense as time barred due to California SOL if your dates are correct and MO would have to support based on the plain language of the code. I would suggest contacting a consumer attorney on this one. You can have one or more violations that would get them very interested. You would also need to start getting bank records to prove a payment was not made. Make sure they did not wait to credit a payment that was made which will throw off the SOL date. Now a days, not smart to fabricate a payment for purposes of initiating a lawsuit.
  13. What I find interesting in this, if reading correctly, that LVNV has claimed to hold this for almost 3 years. If the claimed balance is in excess of $13K and they are not suing, what is stopping them? That is a large balance. Definitely a tasty bite to pursue. It makes sense to try and lay low as you get closer to SOL, but in my opinion since they are dunning you, your account is on the radar. You just sent the dispute so no taking that back. They will send you the standard verification and say "yes it stays". They have 30 days to respond after receiving the dispute. So you may be 5 weeks or so before hearing anything. See what happens after that. If they do not sue or take any action, my guess is for some reason they are having problems that only LVNV knows stopping them from coming after you. Remember, LVNV and a few others are under that consent agreement with CFPB. Based ont he age of the alleged account, it looks like the may have possibly acquired it prior to the agreement being signed. You may be in a position that if they come after your account and it violates that agreement, they could have an issue. Of course that is only the case if you understand the agreement and can point out any issues.
  14. This is a somewhat confusing post. Mortgage servicers are required to send monthly statements. They can not get out of that. What you did not mention is whether this is the original servicer or if the servicing rights of the loan were transferred/sold. Did this happen? If so, were you provided notifications regarding the transfer and payments. Servicers make many mistakes and violations of RESPA when rights are transferred or sold. They just never get called out because it is really hard to get an attorney who knows what they are doing and willing to go after them involved. You have also mentioned you were denied assistance based on what appears as the servicer not reporting the payments. Is that correct? May have an issue there if you were denied help because they did not report positive payment history but only lates. You claimed to have sent a QWR letter, but these have to be very specific to the issue in order to give you any shot at a legal advantage. Even then, servicers can answer with almost anything and dodge the liability. I went through a long battle with my servicer over escrow and insurance issues, Many QWR's were fired off. Took a while to learn how to write one so it nailed the dispute right and pinned them to an answer they had to provide without wiggle room. I agree with Harry. You do know the note has to be paid. If they stopped accepting payments and returned them, it means you were at least 90 days delinquent or they considered the payments you made as a partial payment after one was less than the full amount. It is very interesting what one payment for less than the full amount can do to all subsequent payments. Paying something/the amount you believed correct each month gives you better position to take action. That would have been helpful to draft a proper QWR around. It can show the servicer failed to follow their obligations. The QWR could have been directed at how they specifically failed to provide statements and that led to what is now happening. So lots of gaps in the information here to really understand your problem. Call you provide more? Can you name the servicer. Some are notorious for bad behavior. Also, you are in the RESPA area here. This is very tricky and usually really needs an attorney to sort it out.
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