Robespierre

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About Robespierre

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  1. I'm guessing that your warning is at least partially directed at me, for my post here in which I stated, not the subject of your topic, but rather "are you angling for a job with a debt buyer?" which was immediately followed by "I don't necessarily disagree with anything you've stated above". My remarks were in response to this; Goody's warnings should absolutely be heeded by every defendant. But then what? It is easy to give warnings, but they are hollow in the absence of any suggestion of what positive steps to take. I presume that the message that he intended to convey is a warning that contesting a debt buyer lawsuit has risks that could ultimately add to the defendant's costs in a judgment or summary judgment. That is true for sure, but what is the alternative? Even answering a complaint will increase the costs for the other side, and not answering means a default judgment, so what does he suggest a defendant do? The implication of his warning is that a defendant should try to settle upon receipt of the complaint. Does empirical data or even anecdotal reports indicate that the best settlements are secured at the pre-answer stage of litigation? A warning is only informative about the cold hard facts of what one is up against. It doesn't solve the problem at all of how to address the lawsuit. Consider Goody's hypothetical individually; So, what if? Is the answer to that question at all instructive on how to defend the lawsuit, other than to give up? In my opinion, advice of this sort starts to cross the boundary from a warning to the defendant into plaintiffs advocacy. These are exactly the sort of hypotheticals that a debt buyer (or a debt buyer's attorney) wants a defendant to ponder in order that a defenseless mindset overwhelms a defendant. No defense attorney in an adversarial legal system would embrace this sort of thinking in developing his defense strategy for his client. A lawyer has the duty to act zealously and faithfully for his client. Zealous, faithful advocacy means the obligation to search out all favorable evidence, to seek, neutralize or destroy all unfavorable evidence, and to press the most favorable interpretation of the law for his client. Even if that client is him/herself. This forum is chock full of nothing but procedural defense strategy. And rightly so, because that is the only kind of defense strategy there is. In an adversarial legal system, substantive justice is not merely subservient to procedural justice, substantive justice is entirely eclipsed by procedural justice. Procedural justice is the only kind of justice there is in an adversarial legal system. This is even the case in small claims court where the burden of proof is a preponderance of the evidence. The environment that has made every debt buyer lawsuit a foregone victory for any debt buyer in Arizona has been the result of the debt buyers slowly chipping away at procedural rules. But a defendant shouldn't try to do the same? If every defendant were to honestly confront Goody's hypothetical; taking a minute to think: "What if the account is mine, the amount is accurate, the account was legally sold by the original creditor and the legal owner of that debt is now suing to collect?", then this forum should abandon procedural defense strategy and embrace settlement or bankruptcy strategy. Maybe that is the way to go now in today's environment, or maybe it is the "right" thing to do from a position informed on ethics, aesthetics, or some other value system other than an adversarial legal system. Just to be clear. The warnings of Goody and Harry are valuable advice. In some jurisdictions, a defendant's chances of somehow escaping a debt buyer lawsuit are slim to none. Choosing to defend a debt buyer lawsuit has substantial risks of increasing your costs. It is to your great advantage to consider their warnings, and generally to be as informed as you possibly can. After considering their warnings, only you can decide if you should try to defend your case. Not necessary. This post concludes my participation on this forum. Thanks to everyone.
  2. My reply to Goody had nothing at all really to do with adoptive business records doctrine. But it is true that so far I'm not a huge fan of adoptive business records doctrine. I do agree that it will eventually become universal, both for the sake of efficiency and because the corporate powers that influence government will insist upon it. Hopefully some safeguards can be added as the law evolves. One problem I have with ABR doctrine, at least in the case of debts, is that no consideration whatsoever is given to the legitimacy and reliability of the record keeping practices of all prior owners of the debt. The mere process of adoption by a new owner is what makes the records good enough for evidence, not the records themselves, or anything at all about the former parties that held the debt. Another problem is that it increases the chances of a debtor having more than one entity trying to collect against him or her on the same debt. If it is because technology (and whatever else) has increased and improved so much that we absolutely must give up the hearsay rule and embrace adoptive business records doctrine, then technology should be able to provide for some sort of title mechanism (for not too must cost) that demonstrates for sure "who has it now" and "who has had it". Some person(s) from the prior holder of the instrument should sign off about the quality of the records at the time of transfer. Instead of what happens now, an attached disclaimer that they may not be any good for any particular purpose at all. Adoptive business records should be subservient to direct evidence if it is available, or should have been available because it was produced within some reasonable time of recent history. I've recently watched a bunch of seminars, webinars, and powerpoint demonstrations produced by (or for) those in the debt buying industry. The better authenticated records are available, but they cost more and the debt buyers don't want to pay for them. What they do now is buy the better records later if they need them for trial or settlement, or they try to change the laws so they only need to produce the weaker records that cost less. If we have to give up the hearsay rule, shouldn't the evidence be required to be as good as it can be, rather than just as cheap as it can be?
  3. Goody, are you angling for a job with a debt buyer? I don't necessarily disagree with anything you've stated above, but in an adversarial legal system, pushback is what keeps the system fair - not only for the overwhelming majority, but also for the minority or odd individual. But it can't just be the minority or odd individual that does the pushback, or it won't work (in keeping the system fair).
  4. Thank you for your answer. It is a good answer. I hope that it was obvious that I asked the question in the spirit of genuinely wanting to understand how dominant ABR doctrine is at present, and what pushback there is, at present. I had turned up some of the information in your answer, but not all or most. That was a question that I had also asked (and tried to answer; "The only state that I've turned up in my research that has much split is Ohio") in my last post. I suppose that Ohio is the extent of any pushback towards ABR doctrine.
  5. Two of the nation’s biggest banks will finally put to rest the zombies of consumer debt — bills that are still alive on credit reports although legally eliminated in bankruptcy — potentially providing relief to more than a million Americans. Banks Agree to Take Canceled Debts Off Credit Reports (NY Times)
  6. What are some of the many cozying states so far this century? Are there many states with significant splits among their districts? The only state that I've turned up in my research that has much split is Ohio, in its 2nd and 6th districts; "Ohio Receivables LLC vs. Williams" and "Wright-Patt Credit Union vs. Byington". These cases have already been discussed numerous times on the forum here. Are there any other major ones? I was surprised, given the split, that the Ohio Supreme Court passed on Ohio Receivables. The Jurisdictional Memoranda by both parties was quite well done.
  7. I'd definitely echo all of that. That does seem like the best advice for the OP, Harry. I hope you can turn up that Justice Court appeal. In my brief hour of research, I've found rulings all over the map, very few of which are in Arizona. It does seems that cost can be considered, more or less. It is Rule #1. Although I've found a lot of articles by lawyers claiming that they are completely puzzled by Rule 1. The conjunction in Rule 1 includes "just" along with "inexpensive", these two are bound to conflict. Unless it means that you are entitled to the best Justice you can have for cheap. I did find one unpublished case in AZ District Court where the Judge denied a motion to appear by telephone; So, it probably all boils down to what is "a good reason" for your particular Judge on that particular day. The Judge will probably keep that good reason to him/herself. Some other cases from other jurisdictions where they've toiled about the meaning of "orally in open court" and its relation to telephonic testimony; 1 2 3 4
  8. AZ JCRCP 137 seems to cover this, at least a little bit; The textual questions would likely be about these excerpts: "in person" "or as the judge allows for a good reason" I'd argue that "in person" does not include telephonic testimony. I'd argue that "a good reason" should not include cost, distance, or time of travel. Especially when such arguments are made for hundreds or thousands of cases across a mass litigation enterprise. And especially (even more) when all of the cases in such mass llitigation enterprise share a nearly identical set of possible procedural avenues. Unless I've missed some complementary or trumping rule(s). I do realize that the JCRCP are based on, or interpreted from, the ARCP. Supposedly with the idea of being made easier to understand or more dumbed-down for the masses. But the text is still the text, or maybe even the JCRCP interpretation gives more insight to the meaning intended in the ARCP.
  9. It gives them greater scalability. Even more cases can be handled largely by the filing of documents rather court appearances. They can buy poorer quality paper. A single charge off statement is easier to produce and scale across a mass litigation enterprise. Trials will be even more rare. More SJs in contested cases. On the down side for the debt buyers, the cost of paper may go up. Small time debt buyers may enter the litigation market. OCs may realize that the system is streamlined enough for them to do more direct litigation, bypassing the buyers and increasing the prices for the remaining paper.
  10. I'm looking for some bankruptcy form-filling software. I've done searches. I haven't liked what I've seen so far. I do like some software shown in a youtube video, but the website mentioned at the end of the video is just a referral ad for services. ----- Edit: I found some software which I'm currently reviewing and no longer need any recommendations.
  11. Another interesting exchange about NC SB 511 has been the back and forth between Steve Rhode (the get out of debt guy) and insideARM (the collection agency/debt buyer trade publication). Rhode posted this to huffingtonpost, then insideARM posted this, to which Rhode responded with this. Partisan politics aside (as much as possible), this will probably get messy. But my best guess is that passage of SB 511 and HB 541 will sail right through largely unchanged from their current form.
  12. Right, I'm sorry. I do realize that two years ago was a different universe in terms of JDB cases in AZ. I hope things work out for you. Thanks for all of the information that you have shared over the past two years.
  13. Did you make or receive any settlement offer(s) anytime along the history of your case? The AZ attorneys I've spoken with, who currently are all very pro-settlement, claim that they routinely settle for 33% or less - if the settlement can be paid in a lump sum. This is an impossible option for me, notwithstanding any issues about the validity of the debt. The same is the case for even raising the BK fees. If my economic outlook was as sunny as yours seems, I would have been tempted to settle early, even if the JDB's claim was somehow bogus.
  14. Yeah, that sounds right. It even seems that way in Parker itself. There seems to be a not so subtle "shadow" behind the legal reasoning. Hey, we have this murderer here, we can't let him off on business records evidence malarkey, after all, he is a murderer! So, here is some legal reasoning that won't help the murderers' case. Maybe some sort of justice is served by weighting "facts" over rules. But what is the law about if not rules?