I'm new to posting on this board, though I've read a lot of the issues that have been cited on here, and it has helped me a great deal. So I hope I can get some guidance from here.
I had a strong case against Unifund CCR, LLC, in that they are not a licensed debt collector in my state, and such, should not legally be allowed to sue me. They convinced the judge in a summary judgment hearing that none of the debt collection definitions within our state's statutes pertain to them. They said that they "own the right to collect the debt" so they are not collecting for another; they are collecting for themselves. They compared themselves to the way a mortgage is created. The example they used was if a person takes out a mortgage loan from US Bank, the paperwork they receive will likely come from Centurion Mortgage or the like. I tried to rebut, but the judge kept cutting me off and asking their opinion on why they are not a collector. All of their documentation that they have provided, in letters to me and in the Assignment they produced, they list the debt being owed to Distressed Asset Portfolio III, LLC, and they were assigned the account for "collection purposes only." The judge also waived off my defense that the attorney is also acting as a debt collector. He stated that they are licensed to practice law in the state and such have a right to commence the lawsuit.
I live in a very small population state, and there are not any cases within the state that I can find to help me. I also offered an objection to their affidavit, as it was produced by someone from Unifund and not the original creditor, so they cannot have personal knowledge of the account. The judge said that the records fall under the hearsay exception, and my objection was overruled. I objected to the balance, as the last 2 years of accounting were missing in the statements (as the account was in charge-off, and I was still making payments, and the documents don't clarify if other fees were added in that 2 year period). He said that I needed to prove that the balance was different than what they have listed whether that's through statements or my records of payments made on the account. Isn't it the Plaintiff's responsibility to prove the amount due? I've spent around 20 hours or more a week finding case law and compiling documents with the caselaw to submit in my defense. The opposing counsel submitted basic statements and their opinions in their documents, and no supporting laws, but yet win. I want to file an appeal, but I'm not sure how to get the appellate court to see that Unifund CCR, LLC is a debt collector. I also filed a motion for summary judgment. The judge didn't rule on it at the hearing for their motion, and the date my reply for my motion was the date of their hearing. (I didn't request a hearing on mine.) I still submitted my reply to the Plaintiff's opposition after the judge ruled, as I didn't want to waive that right. I know this is complex...and I'm just hoping someone can give me some direction.
-How can I prove Unifund CCR, LLC is a debt collector or acting as a collection agency to the appellate board? If anyone has cases that they know of similar to mine that the court found that a company assigned debt for "collection purposes only" was a debt collector, I would greatly appreciate any citations to use in an appeal.
-We didn't have a court reporter, but I am looking at filing a Statement of the Evidence from the hearing on their motion for summary judgment on appeal. How do I go about this? Do I only include what my arguments were, file that, and request that the other party and judge do the same? Or do I file a complete recollection and then they offer amendments?
-Can the judge make a ruling on their motion for summary judgment before mine was completely filed?
-Can I file an FDCPA claim after the ruling on a summary judgment? The judge stated in the hearing that this would have needed to be filed within this case, but this court doesn't have the jurisdiction to hear federal cases...and I put in my documents that I reserved the right to file a complaint for FDCPA violations in a federal court at a later date. Will this suffice? Or will I not be able to seek relief if it wasn't filed as a counterclaim in this suit?
There is a lot of information that I have for this case, so I hope this snip-bit of information isn't too vague for answers. My judge said it was one of the thickest files he had ever seen for a debt collection case. Any help is greatly appreciated. I've sought the help of attorneys through this whole process, but none seem to be taking new cases...I will continue to look for one for the appeal process, but since time is of the essence, I'd like to get as much information as I can, especially if I have to go at this alone.