• Content Count

  • Joined

  • Last visited

  • Days Won


Everything posted by uwackme

  1. Seems this would be a violation of your constitutional right to face your accuser. You cannot cross-examine an affidavit.
  2. Remember, if they reported to the CRA, having admitted in court no proof of the debt and agreeing to a dismissal WITH predjudice.... then the report on your credit record is: Common Law Defamation, which is grounds alone for suing them. How much? What is your reputation worth? Make it $10,000. Do as suggested, only do a mortgage application. Find a nice house you'd like to own, pick the mot hardass bank in the area, and apply for a pre-approved mortgage. When they turn you down, and cite the credit report and the item on it from Midland... wammo... add actual damage claim equal to the value of
  3. It would be the Date of First Default DOFD (that remained uncorrected). So generally the date they first reported you 30 day late to the credit reporting agency(s) beyond which yoou never cleared the default back to good standing. So you can analyze the account history on your credit report so YOU know, and if they don't admit in thier complaint when the default occured (perhaps trying to hide the fact it is SOL) you can always get a subpoena from a district court judge for the communications of the OC to the CRA for your credit file. This would be thier own words meeting thier legal requireme
  4. You are stuck waiting untilt he 7 yrs is up. Ive never heard of Cap1 removing a TL, even if you agreed to pay it off in full, with thier insane gorilla numbers. The live to poison your credit report, seems to be a corporate charter to damage as many consumer's credit ratings as possible.... as they live in the sub-prime lending world, the more disadvantaged you are, the more likely they can screw you harder. The only leverage from here is to analyze thier reporting with a magnifying glass. Make sure they are 100% accurate and truthful. Anything that is not 100% correct, gives you a chance to u
  5. This is your collective advice? First, the COLLECTION AGENCY (CA) that Capital One sent after you, sent you a DUNNING letter, dated May 27th. You need to IMMEDIATELY write up a "Debt Validation" (DV) request and mail this CMRRR (Certified Mail Return Reciept Requested) so you have proof you mailed it. This request is to have the collection agency DEBT COLLECTOR obtain from the Original Creditor (OC) a copy of the documentation informing you about the debt, what it is for, how much the alleged balance is, etc. The CA will then mail a copy of this to you. The importance of doing this right, is t
  6. No insult taken. I agree with you 100% on the accounting lesson. My point is for a consumer faced with a lawsuit, to use every weapon in the arsenal. One of those weapons is the common law "Payment and Tender" defense. Legitimately (aka NON-FRIVOLOUSLY) arguing the Payment and Tender affirmative defense in court is the motivation behind this thought process. At this point you HAVE BEEN SUED. As a consumer advocate I'm just trying to highlight potential fronts in the war on collection. Say I allegedly owe BoA $10,000. They charge it off, and then they write it off their taxes. Thier income is
  7. I'm not gonna waste my breath on the argument beyond this... The Clark court DID NOT rule: "that the return call from the CA was not violative." They found the exact opposite, that the Collection Agency employee Brumley VIOLATED 805c. The court found that Mrs Clark had WAIVED the communications prohibition for the Collection Attorney ONLY, not for the other parties... OC Doctor or Collection Agency Capital (and thier employee Brumley). The court sent the case back to the district court to deal with discovery issues they wrongly ignored originally AND to adjudicate the FDCPA claims.... 805c as
  8. Well, Ive tried to help. The OP wanted to stop the calls. Without getting nasty, lets cut the crap, 99% of collectors "phone calls" are not nice pleasent Hi how are you, they are instead deliberate confrontations to evoke a response from the alleged debtor...ie: PAY UP. With the hundreds nay thousands of consumers who have come to this site seeking help dealing with collection, we've all read the perpetual story of abusive calls, abusive language, hey deadbeat why dont you pay your bills, etc, etc. Telephone calls from collectors are a TOOL of collection, manned by personel trained professiona
  9. "I have a little trouble with you telling people that if they inform a CA to only communicate in writing gives them explicit permission to record them." CDL, I dont know where that comes from. Im sure if you search for my comments on recording Ive been clear. Federal law and rules of evidence allow you to record, regardless of what state law says. BUT, since we live in states no reason not to obey when needed. So in 2 party states TELL THE COLLECTOR they are being recorded (unless they already told YOU they were recording YOU, which many do.) as this covers your butt legally ON TAPE. It usuall
  10. Thats not how I read it. Yes the court isn't RULING on the specifics of using the "inconvenient" term, but they also make it clear the consumer is in the drivers seat over WHAT and WHEN is "inconvenient". And the ramifications if the KNOWN prohibition is violated. So stating in a DV that "it is inconvenient to contact me by TELEPHONE at any time or place" tells the collector PRECISELY when they are forbidden and not forbidden from communicating. It clearly tells the collector they are free to WRITE and sending dunnings, and settlement offers, and validation, etc. Just not call. The specific
  11. Sorry Admin, it was posted in response to post #30.... though the Clark case actually includes some excellent FDCPA information and how the court deals with these issues. It is also a very recent case... this year... and includes some issues handled by the court for the first time ever.
  12. Clark v. Capital Credit Oregon, 9th Cir Court of Appeals in which the 9th circuit clearly agrees with my assertion as to the manner in which section 805 works. This is a very recent decision and one of the few concentrating on the "communications" issue. The subject of the case involves a consumer WAIVER of thier clear RIGHT to have debt collectors NOT contact them by telephone once informed that this is "inconvenient". They wouldn't be discussing the legal issues around the waiver of something IF you didn't have the thing to be waivered in the first place. The court discussion.... THREE JUDGE
  13. I'm working on getting you caselaw examples: Very interesting one, Clark v. Capital Credit Oregon, 9th Cir Court of Appeals in which the 9th circuit clearly agrees with my assertion, and further discusses how later contacting the collector may constitute a waiver of the restriction. The case includes some other very interesting FDCPA issues. As a response to your concern over what a CA might do... regard this as a cease and desist. Well, that's on the collector. Clearly WRITTEN communication is not prohibited, and if the collector wants a shot at getting a settlement, they should pursue same.
  14. For the record, I believe in the constitutionality of income tax.... and double so for the very wealthy. So let me get this striaght, according to you: I'm Capital One Bank, I have $100 million in gross revenues for the year. So I pay my corporate income tax of (dunno, 20%?) on the $100 million.... or $20 million. At no point do I write off and deduct the $10 million in defaults for the same year, yeilding a mere $90 million in gross revenues, with a corporate tax bill of $18 million. At no point do I pay $2 million LESS in taxes because I wrote off the defaults, and in no way do I therefore r
  15. Section 6050P of the Internal Revenue Code (Code) for discharges of indebtedness is the place to start looking into how writing a debt off you taxes plays out with the IRS.
  16. The FDCPA is a plain language statute.... the words mean exactly what they say. Congressional interpretation is irrelevent, the ultimate INTENT of congress is seen in the language of the LAW they wrote. A Debt collector MAY NOT contact by telephone a consumer when they KNOW it is inconvenient, and the consumer can inform the debt collector WHEN that is. "It is inconvenient to contact me by telephone at any time and any place." Now the debt collector KNOWS. I dont care what YOU choose to call it, cease and whatever, the LETTER of the LAW says in plain english precisely what the requirements are
  17. The changes that need to be made... and it is CONGRESS that must make them...are the following: Change FDCPA to be $1,000 PER VIOLATION, period. Change FCRA to provide a clear private right of action for consumers to sue data furnishers and CRA's. Change "validation" to specify an accounting of the debt with a complete breakdown of the charges/fees/interest/atty fees/etc sought. Identification of WHO the original creditor was and who owns the debt now. Create a NATIONAL USURY limit of 10% above prime maximum. The critical flaw in the National Bank Act overiding state usury limits was not provi
  18. It helps to READ the statute.... FDCPA section 805: § 805. Communication in connection with debt collection (a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt— (1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shal
  19. In this world of selling "debt" for fractions of a %, one isue seems to get lost in the shuffle. The OC did NOT sell the debt for $.004/$1, no, instead the OC wrote the debt off it's TAXES for ~ 28%. Legally that debt ceases to exist, the debtor is on the hook for imputed income (Debt written off x % debtor tax rate). IRS rules state writing off the debt DISCHARGES the debt. You don't get to claim it, take the 28% tax break off your corporate tax burden and then turn around a SELL the very same debt as if it hadn't been written off. I know the industry is doing this, but that doesn't make it l
  20. Get a phone recorder at Radioshack. Answer the next call while recording. Tell them you dont discuss such things on the phone and to send you something in writing. Confirm only your name and address NOTHING ELSE. "I dont give out financial information over the phone". I'm assuming they have NOT sent you anything in writing...and you know its NCO from the caller ID. Then DV them when the letter comes... "I dispute this alleged debt and demand strict proof thereof. I hereby exercise my right to require debt validation be provided me. It is inconvenient to contact me by telephone at anytime and
  21. The SOL start date will start when your STATE LAW defines it to have started. In MA it is the moment you are "in default" that it starts. An example of where to document that date would be when the OC reports you 30 days late on your credit report. The "credit history" section of any active TL would list this, and the 60, 90, 180 COff as well. The reason I say this is that the 30 day report to the CRA's is where the OC speaks in its own words under penalty of Federal law as to the truthfulness of the statement.... the FCRA REQUIRES them to tell the truth in thier reporting. If the OC lied, the
  22. I dont think DebtGuy understands the full extent of how a DV works and why to bother. The law requires the collector receiving the DV to obtain FROM THE OC (or debt owner) an accounting to some reasonable extent what the debt is for and how much it is. And further requires the collector to pass this OC response on to YOU the alleged debtor. This sets up a marvelous opportunity for the collector to FK UP. As they rarely comply with the letter of the law. If they do not comply with the law, further collection actions may end up constituting FDCPA/FCRA violations. But if you do not TIMELY send yo
  23. It would depend on NY law. If NY law includes a TOLLING provision that tolls the SOL once suit is filed, then it becomes important to get the case dismissed for the improper service (though that may be impossible now, you needed to fight hard for that at the hearing). In MA, only leaving the state (taking up residence elsewhere) tolls the SOL. In my specific case, the suit was filed within SOL, they finally gave up recently POST SOL expiring. So now if they or anyone else attempts to pursue this again, the SOL has expired.... it did not TOLL during the years the suit was ongoing. If they had c
  24. Solutions R us.... move to Indiana or Wisconsin and commute. Or at least move residence, and register in the other state and still live in IL but with a IN drivers license and plates. Or ... pay the tickets. But stuff like that, any kind of TAX or government debt cannot be BK'd. That goes for medical debts incurred at a public hospital as well. So if you are about to incur huge uninsured medical costs, either go to a private hospital in an acute state forcing them to treat you OR claim your name is Jesus DeJesus and you no speaka da anglaise, then get deported after treatment.
  25. The first thing the OP needs to do is go to the court, clerks office and get a copy of the summons/complaint that the plaintiff filed.... thereby confirming that a suit has actually been filed. It wouldn't be the first time a collector used a "fake" summons to scare the alleged debtor. Next, if this is the 1st communication, by all means DV the lawfirm. Not that it's a big deal, but the key to combating collections is to use every tool available. This includes establishing the predicates for collector violations. The DV requires a specific response, which is to obtain debt validation FROM the