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stick&rudder last won the day on December 31 2015

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  1. It should. And I think the OP said he already sent them a letter invoking arbitration. It's hard to remember what really happened on topic thanks to hyper-witch and the case of the over-loaded ego. Seems that any response from the OP would not involve the court, since the court clerk said they cannot accept an answer until a complaint is filed. As long as the OP sent sufficient notice to the plaintiff that arbitration was being invoked, what do you think about the OP sending that demand notice? Might paint the plaintiff into a corner where they are forced to make a decision and either step into arbitration or dump it altogether. I am pretty sure that ND likes arbitration. Wheels up, Stick
  2. Well, yeah, if you choose(as you obviously did) to ignore everything else I said in that post and take one sentence all by itself, completely out of context. But the thing is, you cannot just do that and then pretend that the one sentence alone shows everything that was meant in the whole post. I said that the federal law trumps state law, but I was MUCH more specific than that in the post and you know it. Do you really have this much trouble with arrogance that you cannot even just state truth about what that post said? Never mind, I guess you do. Everything I said in that post makes it clear that I was not talking about "federal law" in general, and you know better. Well golly gee, isnt that the same thing I already posted? It's so nice to know that this forum can count on you to tell someone how wrong they are by repeating the same things that the "wrong" person already pointed out multiple times. If I'm so wrong here, why are you saying the same thing I already did? Wouldnt that make you wrong too? How's about you go for a little more common sense and a little less chest thumping already? Simple, I explain it by saying what I've said all along! WHERE THERE IS CONFLICT, FEDERAL LAW PREVAILS. Look, m'am, you have serious denial issues. It's time for you to stop parading yourself and your ego around and get back to the purpose of this place. There's no way you could possibly be this ignorant. That's not meant as an insult. There's just no way you could possibly think that posting the same thing I already said makes you right and me wrong. Seriously. Still lying, I see? First, I have never been banned from this forum. Second, the other guy you're talking about has ALSO never been banned from this forum. Truth holds a certain value to it, I'm sorry that you seem to be unaware of that. But I could not help but take note, you have been banned from forums yourself far and wide. Must be your charming personality. Seems like everywhere you go, you leave a banned account in your wake. That must be my fault too, that you get banned from other debt forums, right? Grow up, lady. This is the internet, it's not the clydesmom show. The truth on this should be simple. Unless a complaint is filed with any court, how can that court have jurisdiction in the matter? The reason why there is no case law on that probably is that it's a given and no one tries to take action in the court, while not ever filing a complaint, and then tries to get a judgment without that complaint. If it were to happen, the court's lack of jurisdiction should be immediately noted. I do not see how there would be case law on something that is automatically a legal nullity. A court cannot have jurisdiction if no complaint has ever been filed. The start of an action does not give a court jurisdiction. Think about that, lots of cases get filed in courts every day. Do they all have jurisdiction? Nope. And in the right circumstances, if we challenge that case and state that the court has no jurisdiction over the matter, the act of filing the action alone is not enough. In the case of arbitration, the court lacks jurisdiction to render a judgment on the merits. You said before that the action was considered filed as soon as the summons gets served. But again, the mere filing of an action is not what gives the court jurisdiction to rule for either party. That only means that the ACTION has commenced. I already showed you. The rule states different conditions that MUST occur for the case to move forward. In EVERY example within that law, the complaint must be filed for that to happen. First, the plaintiff can file it right away. But if they do not, then the defendant can demand that the plaintiff do so. THEN, if they do not, the case dies. OR, the defendant can file it himself. If the law had a provision that allowed for disposition of a case without anyone having to file the complaint, why does that law state those conditions of how someone either must file it or else the case is dead? Why else would the defendant be required to either file it himself, or to demand that the plaintiff do it? At that point, if it did not have to be filed, there would be ZERO reason to require the defendant to take any of those actions, would there? It would just move to default. The law might not use the language you would prefer, but think about what it does say. What possible reason would there be to have a law that permits a defendant to file the plaintiff's case for them, or to demand that the plaintiff follow through? Why wouldnt the law at that point just state that if defendant does not respond, a default will occur? The fact that those are included in the law shows that a default cannot just happen like that when no complaint has been filed. You think this would be the first time that a state law conflicted with a federal one? Come, now, you cannot be serious. There are many laws that have caused conflict. This would not be the first, and no doubt it would not be the last, where that exists. You also need to remember that political climate does not change the writing of the laws nearly so often as it changes the way that the courts interpret them. Look at the whole foreclosure mess for proof of this. This country had 200+ years of laws that were the way things were done regarding mortgages. Proper documentation. Original notes, not photocopies, allowed. The list goes on for a country mile. But in the last decade or so, we have really seen how political winds have completely changed the landscape on how those laws have been used and interpreted. Millions of American homeowners have been given the short end of the stick where the law itself actually showed them to be correct. Those judges and courts did not rewrite the law, but they DID change how the law is interpreted. Just because that appears on the NDSC website that does not mean that the NDSC writes the laws, correct? Wheels up, Stick
  3. I'm referring to the FDCPA, I showed you what the FDCPA says. So, you get up on your high and mighty horse, and go COMPLETELY away from the FDCPA to show something that I was not even talking about???? And THIS is how far you feel you need to go to try to show that I am wrong about something? Wow, you don't get out much, do you? I suppose I could do you the favor of pointing out your error. It should have been obvious, but it is what it is as they say. Here's a snap shot of what I told you earlier: Clearly I was talking about when there IS a conflict between state and federal law. You come back with "BLATANTLY wrong", and then tell us this: I am talking about when there IS a conflict. You quote the Constitution about when there ISN'T a conflict. And with that brilliant attempt, you claimed I was "BLATANTLY wrong". Did you catch it yet? You obviously have some deep anger issues. Do me the favor, if you please, of not responding to my posting anymore in this forum. Unlike you, I came here to help people who need it and to learn things myself that I did not already know. Wheels up, Stick
  4. Why would the OP contact a MA consumer attorney when he's in North Dakota? Just wondering. Please indicate to me where the law states that NO complaint needs to be filed before default can occur? If you claim that the law allows it, then CERTAINLY it would have to say so in there. So, you're content to pick out one sentence and pretend that it does not need to be taken in context with the rest of the post? Thanks, good to know. NO, it is NOT. The Supreme Court does NOT create those laws that create the standards for procedure. The LAWMAKERS do. And if you need any further proof that the courts do not get to pick and choose these things, consider how the NJ Supreme Court had to "hold its nose" and rule in favor of a homeowner in a fairly well known foreclosure case because the SOL had run out. The court HAD to follow the laws that the lawmakers put in place. They did NOT "approve" it. But they DID have to listen to it. Why should case law be more important to you than the actual statute itself? Case law changes depending on the political climate. The law itself does not change nearly so easily. With all the experience that you have here, why should someone who just learned that he is "way over his head"(lol) have to tell you these things? FEDERAL LAW TRUMPS STATE LAW. Do you not already know this? Not to mention, case law does not have to be created yet if an issue has not been litigated yet. Doesnt change what the LAW says. Wheels up, Stick
  5. Does it now? Please, then, with your infinite expertise, show us where the law in question does NOT say just what I posted that it does. Don't worry, we'll wait. Aren't you the one who tries to have her cake and eat it to as they say in here? criticizing people because they do the same thing you think you are entitled to do here? Why do you choose to get so offended at people? It's a forum, clydesmom. We are not all going to have the same answer. So far, I have posted about the law, quoted the law, spoken my opinion about the law. All you have done is try to insult me. Whatever the problem you have is, perhaps you should busy yourself with fixing it instead of coming into threads here and attacking people who were not even speaking to you. This is a forum about debt concerns, not your personal playground. Go be that bully somewhere else. yeah, I've heard that before. I know the guy youre talking about, fixed me up with some nice flooring and tile work in my house. Meantime, as is in this case here too, you should try a little less fire and brimstone and a little more facts. The guy you are talking about is not even banned. Last time I talked with him, I asked him why some certain people here are so bitter and angry all the time. He mentioned you by name. Said that thats why he stopped coming here. He's the one who even told me about this place, now thanks to your latest post I can fix on exactly what he meant. Rather than just spit hate for no good reason other than the aforementioned bullying, why dont you provide some kind of truth? If I am wrong about it, WHERE? HELP people, instead of just complaining and trying to chop them down for your own personal benefit. Why else are you here, if all you're going to do is act like that? WHERE did I say something that that law does not actually say? Show us. Sadly, you have a problem that extends beyond what this forum is here to discuss. Whatever it was that took that colossal dump in your corn flakes this morning, I assure you, I did not have anything to do with it. Please direct your hate and untruthful claims elsewhere. I was not even posting to you to start with. Now, if it's all fine and giggles with you, I'm going to get back to discussing the actual topics here. Please take your bullying attitude somewhere else.
  6. The reasoning is because debt collectors had their hand in some laws being written. It's a way to get the state to help debt collectors file lawsuits without having to spend all sorts of money to ever file complaints. Here's how they use it: First, they send this "summons" to the consumer. They wait to see if the consumer responds at all. If the consumer never responds, then they file their complaint and get the default judgment. If the consumer DOES respond, they look at the response. If the consumer's response has any merit to it at all, the JDB can avoid losing money on the cost of filing a lawsuit that they either will not win or will end up settling for less. If the consumer's answer has no valid defenses, they can move ahead. It provides the JDBs with an extra level of protection against spending useless money. Try reading the rules instead of asking me to do it for you. The rules clearly state that if pressed to do so, and they still do not file a complaint, the summons is void. Notice how NOTHING in the rules permits ANY case to move forward unless the complaint actually gets filed? The plaintiff can do it. IF HE DOES NOT, the defendant can demand that he does. If he STILL does not, the case is DEAD. Or, the defendant can do it himself instead. But there is ZERO provision there for ANY case to move to disposition without the complaint ever being filed first. The law you are pointing to makes it clear that one way or the other, the complaint MUST be filed, or the case dies. There is no other option within that text. Where do you think that you see one? You should remember that NO court has subject matter jurisdiction UNTIL there is a complaint before it, and even then that jurisdiction can be questioned. Without a complaint, the court has NOTHING to rule upon. You forget, apparently, that just because someone can write something in a complaint, doesnt make that automatically actionable. And NO court is designed to blindly hand out verdicts without even knowing what the verdict is supposed to be for or if the verdict would even be allowed by law. First, it's not a court approved form. The court does not make the laws, remember? The conditions for that form are contained within a state law, not the court. Second, it's a STATE law we are talking about. Here's what the FDCPA has to say about conflict with state laws: “This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter.” Simply stated, BV80, that means that a state law in conflict with FDCPA loses. Does not matter if its a state law. No state is permitted to overrule federal law with its own like that. And you know it already, so what's with the attitude? Not like I'm saying anything you have not already heard, generally speaking. Wheels up, Stick
  7. Does not matter. How can there be a default judgment when no complaint has ever been filed and the court has no jurisdiction? You're swinging away at the nearest tree, but missing the entire forest in the process. If the plaintiff never actually files the complaint, and the defendant never "Serves" an answer, how can there ever be a default judgment in the court? You are still missing the fact that there MUST be a complaint filed before there could EVER be a default judgment. That's why this could potentially be misleading, and in violation of FDCPA. It fails to inform the least sophisticated consumer that there MUST actually be a real lawsuit first. Taken exactly as written, the least sophisticated consumer can look at that and think that no matter what, a default is coming unless he "Serves" an answer upon the plaintiff. Telling a consumer that a default WILL occur, as opposed to the truth that it MIGHT occur depending on other circumstances, violates FDCPA. Wheels up, Stick
  8. You do have another option, I think. You could file the arbitration now. There is nothing that requires you to wait to use arbitration until this ends up in a court. So, you could file the arbitration now. They will most likely refuse to go into arbitration with you. So, you will have paperwork showing that they refused to arbitrate the dispute with you. Then, if they do try to sue you, you can present a copy of the arbitration paperwork to the court and explain that this plaintiff already had the opportunity to address their dispute, but refused to abide by the terms of the agreement they claim to be seeking to enforce. While that is not an automatic slam dunk in the courts, it does show that the plaintiff debt collector has refused to take reasonable, and even required, action under the agreement to address their claim. Wheels up, Stick
  9. You misread my post. I am talking about FDCPA, not state rules of procedure. It's not permitted in FDCPA for a JDB to state that something WILL happen simply because it CAN happen. Since the defendant's act of filing an answer REQUIRES the plaintiff to not only serve the summons, but actually file the complaint in ND, then there is no possible way for the defendant in ND to do what that summons says. it states that you WILL get a default judgment against you if you do not file. Courts have held that this constitutes a threat of an action taking place, as opposed to saying that you "MAY" end up with a default against you, which the courts differentiate as merely advising on possible repercussions. I am not talking about "commencement of a civil action", I am talking about "you WILL get default judgment against you". A debt collector who has no intention of actually doing anything can use this to scare a consumer into paying because it makes the consumer think that they are about to get hammered if they do not act. Remember, least sophisticated consumer? I did earlier state that the chance of having a violation regarding their intention to actually take legal action would rest upon being able to prove that they never had any intention of following through. This is no longer about that point. We are now discussing the use of wording that states that something DEFINITELY will happen, as opposed to the more truthful concept that something MAY happen, which has been addressed in various courts around the country before. Several courts have distinguished between a mere advising of possible consequences(You may end up with a default judgment against you if you do not respond, etc), and a threat of action that WILL take place(you WILL have default entered against you). These courts have said that the former is acceptable, while the latter may not be, depending on the circumstances. This is a potential FDCPA violation for threatening to take action that cannot legally be taken. The debt collector cannot end up winning a default judgment unless they first actually file the complaint. FDCPA's least sophisticated consumer standard makes this possible. Wheels up, Stick
  10. Is there anything in the court filings that would show that they were aware of the more recent address? Sometimes, they will actually list out an address in their complaint, stating that you live at such and such, and therefore venue is proper. Or, do you have any correspondence between you and the debt collector(or their attorney in this case) that shows they knew you no longer lived at that old address? If they ever sent you a collection letter, or the law firm ever sent you notice that they represent the JDB? I can see them claiming that it was a bona fide error because that address is listed as your address on one of the debts. But it's still sloppy at the very least on their part and probably intentional, though you would need to show that it was intentional. And that's the rub on this one. I'd fix it as they did this on purpose to get a default judgment. But that is just my guess and I am not a lawyer. Should it weigh in court? Probably not. The FTC could take forever and at the end of the day still come back with no legit response either way. Also, often times, you won't be told of whatever findings or action those agencies take. Probably would have been better if you filed a counter claim alleging FDCPA violation, but again, you need to make sure you are ironclad in your proof on that. The articles are not going to cut it, the law is. If you think you can prove that they knew this was a wrong address for you, then that would be the thing to do. Just comes down to how you can prove that they knew. You do have three documents from the hospital, two of which show a different address, and are later than the first. That may be enough right there. Or, it may not. Depends on how the court chooses to interpret the law. Is it a violation? Yes. But proving it is the deciding factor. The common term is bona fide error, and it gets JDBs out of hot water all the time. To overcome it, you need to show that it was not error at all, but intentional. Sometimes that is easy. Others, difficult. Depends on what else has happened regarding addresses. A JDB will have a hard time claiming bona fide error in a situation like this if they had been sending you letters to your most recent address for 6 months, then sued you, and had you served at an address from 10 years ago. That's why I asked if you have had any correspodence with them at a more recent address, especially by mail. Coupla things. First, speedy trial is for criminal cases, not for civil cases. Each state does have its own laws concerning cases that have gone on too long. My state carries a 3 year time limit. That means that either party in the case must have taken some legitimate action to further the case within 3 years. of the most recent action. If neither side has done this, then the court MUST consider the case abandoned and dismiss it. Your state laws should show you what that limit is for you. You have two defenses that I can see right now. First is improper service, because they falsely claimed to have personally served you. Second is that you said these debts do not even exist, that this was some billing error. Understand though, if you raise improper service, the court will likely not throw their case out completely, but instead courts often will simply hit the reset button, and the plaintiff will have to have you properly served. But your second defense should take care of all of that, depending on what you have as proof. First, what exactly happened? What makes this an error? And what do you have that proves it? I'm only asking because sometimes "proof" does not actually prove what we think it does. Second, you can request that their case be dismissed, though it's probably unlikely. You can request sanctions against the attorney for the false service, but the attorney is probably not the best target in this. A process server would have filled out the proof of service, and that is your likely target in this. If you can show that there's no possible way that you could have been personally served at that address and time, then you can go after the process server in many states. Some states require a process server to keep a bond on file with that state, and you can pursue a money judgment by going after the process server. Some states seem to care more about this than others, so your mileage may vary. Can you go after the lawyer and the JDB? Sure. Does it mean that you should? Not necessarily. The attorney is bound by rules of professional conduct in each state. But that attorney would have had to KNOWINGLY use the wrong address. That points you back to what you can prove about the use of that address. Look at the original complaint. There is often a page showing what addresses should be used to effect service. What do they have listed there? Wheels up, Stick
  11. This is incorrect information. You cannot answer when no lawsuit has ever been filed. How can he answer if the courts do not accept an answer when no complaint was filed? OP, read the rule that CommoSGT posted. If they do not file the complaint, you can send them notice demanding that they do. From that point, if they never do file it within 20 days, then the summons is void. The defendant's notice demanding that they file the suit must contain the statement that if they do not file the lawsuit within 20 days of receipt, then the summons is void. You might consider sending them that demand notice, and see what happens. If they do file it, they would already know that you are electing arbitration, so they will not want to follow you into arbitration for a $1300 debt. It would cost them a lot more than that, and would not be worth their time or money. There is another possible option too. JDBs are not allowed to tell you ANYTHING in definite terms that they cannot actually do. But this one has. Look at the "summons" that they sent the OP, it says this: "You are hereby summoned and required to appear and defend against this action, which is herewith served upon you, by serving upon the undersigned an Answer or some other proper response within twenty-one (21) days after service of this Summons upon you, exclusive the date of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint." (emphasis mine) If they say that something WILL happen, as opposed to saying that it MAY happen, then its a certainty. But since they never filed the complaint, this statement becomes false. And since they KNEW they did not file the complaint, it becomes a statement that was known to be false when they made it. A JDB is not permitted to falsify anything about the amount, character, or status of a debt. A JDB is also not permitted to state that it will do something that it cannot legally do. There's no possible way for a JDB to obtain a default judgment against you when they never even filed the lawsuit. The least sophisticated consumer concept comes into play on this one, but it could be enough. I know that some courts have agreed with my reasoning on this one, when a JDB says that something WILL happen, they are no longer advising you of the potential consequences, but telling you what they WILL do. Wheels up, Stick
  12. Well, when you have more than 200 calls, recorded, when you've constantly been telling them that you revoked their consent to call and their response has always been, "we can call you anyways, we dont need your consent, and these calls will continue until you pay up, no matter what you think or say", I'm pushing for that judge's discretion. If it is supposed to be reserved for the most willful, intentional cases, well, then, I think that this one certainly qualifies. This JDB has no doubt been very deliberate in its choice to continue harassing me all this time, even though there is no debt for them to collect. And even when I have repeatedly said they do not have my permission or consent to continue this, they flaunt it in my face that they WILL continue regardless of what I think. If ever there was a case that was appropriate for $1500, I'd say this is it. Wheels up, Stick
  13. You can disagree all you like, clydesmom, but that does not change the letter of the law. Claiming that a debt has gone undisputed when it HAS been disputed is mischaracterizing the status of the debt. You dont have to like it for it to be the truth. Can you provide case law examples where a similar situation happened and the court sided with the JDB, who ignored a legit dispute that was timely? Please let us know when you can. In the meantime, I'll rely on what the law actually says in lieu of what you do not like, thanks. Simply telling me you dont agree does not change the status of what I posted. Another thought, the wording of the LAW makes it a violation, NOT THE COURT. The court ONLY INTERPRETS that law. If the LAW says it is a violation, then it IS one. The court's only job at that point is to make sure that you have sufficient evidence to prove your claim. If the COURT had the say that you pretend they did, there would be no need for appeals courts that address solely matters of law when the trial courts get it wrong. If you go to court, as example, and you can show that the JDB violated FDCPA, the court HAS NO LEGAL AUTHORITY to overrule the law. Again, the appeals level is the check to make sure that if the court does overstep that authority, that justice still gets served. NO COURT has the ability to MAKE law, clydesmom. Remember that next time you want to get all caps with someone and try to tell them how everything works, please. It's something, we have seen you tell people before that something is a violation, but now that someone else says something you don't like, you claim that ONLY A COURT can call something a violation. I was not aware that you were a court of law. They could, but then they would have committed a different violation--flat out lying. They already told the OP in writing that he never responded to their demand letter. If they now try to claim that he DID but that there was some extenuating circumstance that permits them to proceed while ignoring it, then they would have made two contradicting claims on the matter. They already played this one way, they would not look too bright trying to play it the opposite way now. COULD they do what you said? Sure. Would not look very good for them if they tried to claim both that he NEVER responded, and then that he DID respond, all at the same time, and to the same demand letter. Wheels up, Stick
  14. As I recall there are two general violations for cell phone calls. First is autodialers. Second would be using prerecorded messages. They need express consent to call a cell phone using either. In my most recent situation, I just record the calls(legal in my state so I do it every time lol) and I got the reps on the phone to admit that they use autodialer systems. Got it on the digital recording. Brought it to an attorney, he laughed at it. He thought it was funny that it seemed so casual that these violations were happening, and the reps were so willing to discuss it. But be careful, express consent for a debt collector is very different than for a telemarketer. If you gave the company your number, it appears to be enough to show express consent. One way to protect yourself in that situation is that you can revoke consent at any time, and you do not even need to do it in writing. I recorded one call where I stated to the JDB, "I hereby revoke any and all consent that your company may have ever had at any time to call my cell phone using auto-dialing systems or prerecorded messages." Attorney said this was sufficient to show that I revoked consent. The JDB did not care, and continued calling me for over 1 year, every couple days, sometimes multiple times per day. At last count, we are approaching 200 phone calls after I revoked any consent they may have had. And all for a debt that does not even exist anymore, lol, how funny is that? This one will most likely end in settlement, but it should still be a nice one. Wheels up, Stick
  15. I thought it was $500 per call unless you can show that their calls were intentional. then, it jumps to $1500 per violation. Wheels up, Stick