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YoRocky

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YoRocky last won the day on August 1

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  1. A lot of fatalism expressed which is easily tossed aside by educating the mind and exercising consumer legal rights and civil procedures. Getting a discovery battle plan is essential! We need to find the enemies weak points in their case and hold them to account. This is a fairly good article about the current state of debtor vs creditor. https://www.americanbar.org/groups/state_local_government/publications/urban_lawyer/2016/48-2/debt-default/ Seems hopeless at first read but it is recommended to mine it to find out how we can direct our discovery weapons. With diligence comes rewards the first of which is wisdom and knowledge. "When life gives you lemons, sell lemonade" 49 Reaching into his bag and taking out a stone, he slung it and struck the Philistine on the forehead. The stone sank into his forehead, and he fell facedown on the ground. 50 So David triumphed over the Philistine with a sling and a stone; without a sword in his hand he struck down the Philistine and killed him.
  2. Im headed to the law library later this week, and i will explore this argument. Lot of strong points for sure. Thank you for helping sharpen the saw.
  3. (Notice: These are study notes and not legal advice. Stand firm with confident diligence. ) To battle and win the war against the Lawsuit Mill Collector and Big Bad Bank, the poor-me consumer must assert their constitutional right to face and question their accuser. In particular, demand the collector to 'show me the evidence' The collector tries to do this with sleight of hand. They come to court with a billing statement. There it is for the judge and world to see. "This billing statement shows consumer owes $4123, and there is their name and address. Case closed judge. P.S we have 1000's more cases on your docket. Love you!" Is it? NEVER! On its 'face' it appears this way. We can defeat the 'sacred cow billing statement' and 'account stated' theories by investigating them to their core using discovery. The defendant must employ the powerful discovery tool of Interrogatories. This is how you tell them 'show me the evidence'. It sounds like 'interrogate', which is exactly what it is. Consumer sends the collector a series of questions to do some fact finding about the premise of the law suit against them. So let's look at a practical example We want collector to have to demonstrate facts that consumer defaulted on the alleged debt. After all, if they didnt default, then there would be no reason for a lawsuit right? So our interrogatory must begin with their implied premise of default, and then a demand for supporting evidence. With this ONE interrogatory (actually there are two; can you find it?), you demand they support their bullshit claim that consumer defaulted on payment. They have to show specific people and documents. Not a made up claim. We demand, they show the actual facts from specific people and specific documents to which they base their contentions. If not, geddafucout Slimy Collector! Whatever they answer with, you now have a new lead to send off an investigative question. You keep a good discover log that tracks what questions you sent out, when, properly served, and if you got a reply or not. You track number of days they have (typically 30). And if they don't comply you motion to compel. And you now are in the game, making them work and sweat to win their case. Whatever the response, you follow up with more investigation. Now the reality is you do not have infinity time. There is a limit to discovery. That is why it is crucial, you have a strong discover plan as close to the start of the case, and execute it like an annoying mosquito looking for blood. But collector's do not have the time, budget, or manpower for a meticulous and demanding discovery. They got 1000's of cases and they have to pay for staff to litigate it. Every discovery request is an obligation on their part to answer with bullshit or actual documents. And documents need actual people to back them up. So this means more surface area for you to mosquito your way into their billing hours. You want to bury them with specific, devastating discovery requests that exposes them having NO VERIFIABLE EVIDENCE to back up their claims. And at a certain point they will capitulate (and dismiss) or come to trial with garbage. Bury them with discovery, win the case, set precedent and raise the standard of evidence to stop this junk industry of collections. If everyone did this, it would turn the tide against the systemic abuse.
  4. The Truth in Lending Act is highly relevant to assert the rights of the consumer and do not need to be introduced only if a 'counter suit' is made. But to entertain this false premise, we can just say the affirmative defenses in the initial answer give 'grounds' to argue the abuse of the creditor. If anything, if you DONT argue abuses in the trail court, you wont have any record to base a case against the creditor. To put another way, if the consumer disputes the amount (as is their right) and the collection agency continues collections activities during trial, that is the evidence consumer will need to later file a counter suit against creditors.
  5. THEY have to establish that it HAS been sent. And not that 'statements are sent out' but that the SPECIFIC statement with the SPECIFIC account number and SPECIFIC BALANCE DUE was sent out to the SPECIFIC consumer. Why? Because thats the only way, by law, to get an amount and tie it to a consumer/alleged debtor. These are things THEY have to prove. They have to prove the amount is accurate - they cant because its in dispute. They have to prove the consumer received statement - they cant ever prove that. They can only try to say they 'send out statements in the regular course and practices of business' But thats not good enough. Because it would give them leway to just about send any bogus claim to people, and then 'waive magical hands' and say 'the statement you seek in there somewhere'. Oh wait, thats EXACTLY what is going on with these debt collectors. Allege a debt, an amount, stick it to joe consumer. hope they default (98% do) and screw the paperwork and 'evidence'. The house of cards can easily fall if you just start picking at the foundations.
  6. As you can plainly read, this concerns the SENDING of the statement. The other side of the coin is the RECEIVING to the consumer. The consumer has to have actually receiving the last statement. Again, read the text of what right the consumer has. They can allege (via a declaration) that they did not RECEIVE the statement. This is irrespective of the sending. If the consumer alleges a failure to send a periodic statement under § 226.13(a)(7), the disputed amount is the entire balance owing. " So, one side one you have creditor saying 'we sent the statement. Consumer did not dispute in time. Thus, the amount is not in dispute' And on the other side, you have the consumer saying 'i did not receive any. I have no knowledge if you did send it. Thus I have a right to dispute the entire amount. ' My entire point is based on the context of 'surviving' summary judgement and in fact winning the case, by directly attacking the amount owed. If Plaintiff can not prove amount owed in Account Stated, they loose in 1 of its 4 criteria. If they lose by any 1, the entire cause of action is invalid and case must be dismissed. There is ample cases to cite that have won by this...just think this Account stated stuff has been around for more than 100 years now.
  7. This is my point. If the consumer alleges no statement with alleged amount was received, then they can dispute the entire amount. No statement with alleged amount received = grounds to dispute entire amount. I cited that in particular above. "If the consumer alleges a failure to send a periodic statement under § 226.13(a)(7), the disputed amount is the entire balance owing. " I appreciate the time you put into documenting your argument. Its rare to see others on here actually back up their arguments with law. Probably because many on here do not actually read law or manuals further than the sentence they want to jump and disagree with.
  8. I agree adding anything to cover the loopholes in 'implied' admissions is important. The ultimate response is the constitutional right to not witness against yourself. Alas, that is not respected in civil matters so these word games have to be used.
  9. If you could cite the law by which you came to this conclusion? In particular the 'only applies if' I cited specifically where it says one can alleged not receiving a final statement and thus demand an accounting. You need to raise an affirmative defense of fraud,error. You also would need to get it on the record by filing a declaration. If you did not receive a statement, how can you possibly know what makes up the alleged amount? They need to send you one right away. Then you can dispute it. You have a right to dispute the entire amount if statement not received. Effectually putting a 'stay' on the collection action in court. On their end, not on consumers.
  10. Its not advice. Its an opinion based on the advice offered in this book Im presently going through book https://store.ceb.com/california-summary-judgment . The best way to attack a summary judgement is to dispute the entire amount in question. I do not mean by just saying 'i dont owe that'. There are specific ways one can organize the discovery to demand accounting, etc. The consumer is entitled by law to an investigation as a matter of fact finding. Note you can do this past to so called '30 day debt validation period' or '60 day after last billing statement'. Did you even receive the last billing statement? From the Truth in Lending Act https://ecfr.federalregister.gov/current/title-12/chapter-II/subchapter-A/part-226#p-226.13(a)(7) 13(d) Rules pending resolution. 1. Disputed amount. Disputed amount is the dollar amount alleged by the consumer to be in error. When the allegation concerns the description or identification of the transaction (such as the date or the seller's name) rather than a dollar amount, the disputed amount is the amount of the transaction or charge that corresponds to the disputed transaction identification. If the consumer alleges a failure to send a periodic statement under § 226.13(a)(7), the disputed amount is the entire balance owing. 13(d)(1) Consumer's right to withhold disputed amount; collection action prohibited. 1. Prohibited collection actions. During the error resolution period, the creditor is prohibited from trying to collect the disputed amount from the consumer. Prohibited collection actions include, for example, instituting court action, taking a lien, or instituting attachment proceedings. The collection activity must stop until a reasonable investigation is undertaken. If they send you back a form letter that says 'we did a reasonable investigation and found this to be correct' etc, you have a crack you rip open. Who did the investigation? What was the process? What are the documents? Who is the custodian? ect. You investigate the investigation. This is the point of discovery, you want to investigate the investigation that is leading them to introduce these 'facts' into record. The more you demand evidence, and challenge it, the weaker their case becomes.
  11. good point. in addition, there can be a preamble that covers all general objections and is subject to change based on new information received in the future. lawyers are great at adding all kind of wiggle room
  12. Actually the better mantra is 'can not admit nor deny'. This is the safest legal answer outside of no answer at all (right to remain silent) if someone claims you owe them $100, and show you no evidence, you can not admit nor deny due to insufficient evidence. If they show you the evidence, then you have something you can attack. a statement with an amount and your name on it is not the end all. its just the beginning. you can ask for an accounting to reveal errors. while any part (or all) of an amount is in dispute, the case can not move forward. it is a material fact that must be discovered and proven. if they can not prove one part of their claim the entire cause of action will fail. and that means you win make them prove it every step of the way. then attack the evidence and the affidavidts. remember they have to prove their case. you have to assert your constitutional right to demand the evidence and cross examine it. thats the point of due process and discovery.
  13. Offer them a $1. This is known as the '$1 settlement deal'. How it goes is like this: You type up a settlement offer. I mean a legit offer. I am half joking about offering $1. (That woudl be legendary) On your offer you name your terms. Something along the lines of , In acceptance of my $1 offer, you agree to dismiss without prejudice, leave me the f* alone. You provide a place for yourself, them, and the mediator (witness) to sign. Now say the meeting comes and then you meet Big Bad Bank renta-lawyer. He will no doubt mock you for this ridiculous offer and tell the mediator its impossible to deal with this. I ask for help to be 'more reasonable'. If the mediator starts to 'pressure' you, well straight up thats a conflict of interest. But just refer back to your offer in writing. Be stubborn about it cause this is YOUR LIFE and money they are trying to influence And remember something very important: The mediator is a witness to your case. The old 'anything you say can be used against you in a court of law' applies here. In other words, everything you say, behave, and submit in writing (like your offer) is witnessed by the mediator. So take care what you say (admit/deny) and your approach. Your opponent can solicit them as a witness (as can you) and so it can be framed to use against you. In short, when in court defending yourself, your walking in minefields! As your offer and their 'more reasonable' counter is talked about it, you SHORTCIRCUIT the discussion by refering back to your MTC. You simply say, as we cant reach agreement today in this venue, I am confident we will do much better in arbitration. Then you reiterate the legal points that you submitted to you. Neither one has bother to study your last paper, so you are in control again. In fact id probably give them a copy of it. And always redirect the topic to THAT paper. Always control the meeting with paper, and more paper. Its what this kabuki theater is all about. Then you close the whole thing with telling them you look forward to hearing about the judge has to say at xyz date in the future. I think thats all you need to do really. Appear reasonable, but stand strong and firm in your rights. And also get angry with these clowns have wasted SO MUCH TIME AND EMOTIONAL ENERGY. I know first hand the life sucking power of this trail. And they expect to get paid for it?? They should be paying me! So, STAND UP FOR YOURSELF, FACE THE MEANIES, AND GET BACK TO THE PARTY!
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