nascar

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nascar last won the day on October 15 2016

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About nascar

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    Retired

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    Consumer Law Attorney

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    Tennessee

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  1. sparkymocha

    Hi!  -been following CIC for some time, but actually need help this time ASAP concerning Davidson Co, TN. General Sessions.   1) I read & reread multiple threads,  but is just filing a  Sworn Denial usually accepted to get bumped up to a trial, or does it just depend on the Judge, the weather, etc?  The docket my day is huge, BTW.  2) Does a summons in a sealed envelope taped to my door when no one is home constitute legal service?  3)  Does a Summons have to have anything else attached to it, like a complaint, affidavit (of debt.) or ANYTHING?  Also, in the service box section of my summons, it only has a stamp that says "copy." Thanks!!

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  3. Flappy

    Hello: Nascar I am being sued in Tennessee by Synchrony Bank who alleges they acquired my Debt from GE Capitol who somehow bought or financed a Amazon account. I've been to General Sessions Court twice first I denied Alleged Debt. Second time I asked for more evidence from a Javitch Block Lawyer because the statements from Amazon did not start with a Zero Balance and I also wanted to know why Synchrony Bank had standing to sue me. Now comes round three in Court in June. Synchrony's Lawyer sent me a letter saying GE Capitol became Synchrony but it doesn't say how my Account came to be owned by Synchrony.  Is this hearsay if my account from Amazon is not specifically stated as purchased by anyone besides Amazon? All I received was what appears to be a blanket purchase or name change of Giant Banks. Oh, PS:  I'm filing Chapter 7 in August of this year what's your thoughts on my June Court Date?  I know they could be Granted a Judgement against me and I could Appeal if needed. I only need this 2 or 3 month window before filing BK how quickly can or do these Law firms try and recover anything I'm self -employed. MY assets should fall under the Wildcard Range and I will list what I have as Exempt. My home is Tenancy by Entirety so as I understand the law it's off limits as well. Your thoughts?

  4. nascar
    Simply put, a contract is an agreement between two or more persons which creates an obligation to do or not do a particular thing.
  5. nascar
    Maybe a bit late, but for what it's worth, just be prepared to prove to the court why you're entitled to the relief you're requesting. If you think there's a valid agreement to arbitrate, make sure you have it with you and can tell the court why this is the actual agreement and not some other one that doesn't apply to you.
  6. nascar
    First, check your court file to make sure nothing has happened with your case you don't know about.
  7. nascar
    I doubt they even know how many judgment liens are floating around out there. Although I don't think it is good (or even proper) to suggest that consumers contact Midland directly, KCC is just the settlement administrator. It is their job to locate class members, provide notice, maintain the website, and cut checks. They really don't have any information about anything other than that. My suggestion would be to contact class counsel, rather than Midland, and go from there.
  8. nascar
    It is not either. It was a bankruptcy case where the issues were completely different. If you insist on being condescending and argumentative about a topic you clearly do not know anything about, I'm going to have to pull your plug. I thought you understood that.
  9. nascar
    Not "binding authority" any means. These reporters almost never accurately portray the facts. In any case, your article cites what I just pointed out, "... because a Form 1099-C can be corrected or amended, it cannot constitute an admission by a creditor that a debt has, in fact, been discharged or cancelled and that the debtor is no longer indebted thereon."
  10. nascar
    This is an important issue. Aside from being convinced that it is "patently wrong" to resume collection activity after cancelling a debt, can you cite to any binding authority that supports your position that the issuance of a 1099-C precludes subsequent collection activity?
  11. nascar
    That is the issue. Courts generally hold that the issuance of a 1099C does not extinguish the debt for purposes of collection. "[The] conclusion that a debt is no longer collectible following the issuance of a 1099-C appears to be in conflict with the Internal Revenue Service's interpretation of its own rules. See IRS Info XXXX-XXXX, 2005 WL 3561135 ("The Internal Revenue Service does not view a Form 1099-C as an admission by the creditor that it has discharged the debt and can no longer pursue collection."); IRS Info XXXX-XXXX, 2005 WL 3561136 ("Section 6050P and the regulations do not prohibit collection activity after a creditor reports by filing a Form 1099-C."). " Woltring v. Specialized Loan Servicing, LLC, No. 14-CV-222 (E.D. Wis. June 16, 2014).
  12. nascar
    I have my own opinion on this but, to be sure, it is not consistent with the majority. I am not a tax guy, so maybe I just don't get it. In the case of the tax implications of a cancelled debt that has subsequently been reduced to a judgment, does anyone know whether there is a mechanism in the tax code that exempts payments made in satisfaction of a judgment when the debt has earlier been cancelled and the taxpayer has already paid tax on the debt once?
  13. nascar
    You must use someone authorized to record depositions in the state where it is being taken.
  14. nascar
    "[A]lthough a debt collector may choose to file suit without initially communicating with the debtor, the law is clear that once an initial communication is made and the debtor requests verification, the debt collector must provide the verification before resuming collection efforts." Anderson v. Frederick J. Hanna & Associates, 361 F. Supp. 2d 1379 (N.D. Ga. 2005). This is an interesting passage, especially since it was made before the 2006 addition of 1692g(d). In any case, it indicates to me that an "initial communication," along with the obligations triggered under 1692g(a) can in fact occur after the filing of a complaint. That appears to be the case here. Now, no violation may have occurred yet; the debt collector has 5 days to comply with 1692g(a). But, I would look at the letter to see if it contains the required language in 1692e(11). Section 1692e(11) requires a debt collector to state that it is a debt collector in all communications with consumers. If it doesn't say that, then, yes, there's already been a violation.
  15. nascar
    We all know a summons and complaint is not an initial pleaded that triggers the debt collectors obligations under 1692g(a). See 1692g(d). However, in the absence of an earlier communication, the next communication after the summons and complaint is arguably the "initial communication" that does trigger the 1692g(a) obligations. Therefore, I would suggest that within 5 days of the communication from law firm, instructing you to write to Portfolio if you want proof of the debt, the law firm is obligated to send you a g-notice explaining your rights under the FDCPA. After all, 1692g(d) does not remove the obligation to comply with 1692g(a) altogether; it just makes some other communication the "initial communication for purposes of 1692g(a). If you have time, you might consider speaking with Jerry Jarzombek in Ft. Worth. Jerry is a member of NACA and, in my opinion, one of the most dedicated consumer advocates in Texas.
  16. nascar
    This is interesting. Why do you think they sent you this letter? Was this by any chance in response to a separate FDCPA validation request sent to the law firm, or simply in response to your Answer to the Complaint? Have you ever received anything that looks like a "g-notice" from the law firm? You're near Ft. Worth, right?