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Everything posted by nascar

  1. Simply put, a contract is an agreement between two or more persons which creates an obligation to do or not do a particular thing.
  2. 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.
  3. First, check your court file to make sure nothing has happened with your case you don't know about.
  4. 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.
  5. 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.
  6. 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."
  7. 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?
  8. 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).
  9. 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?
  10. You must use someone authorized to record depositions in the state where it is being taken.
  11. "[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.
  12. 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.
  13. 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?
  14. That's a good point, and you're right; it sure doesn't sound right. But here, with respect to an account stated claim, you're kinda comparing apples to oranges. "An account stated is an agreement between parties transacting business, and keeping accounts of their transactions, that a certain amount is the final balance due from one to the other." 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, ยง 972, p. 1062. Of course, there were no "transactions" between you and a debt buyer. The "transactions" are those that allegedly took place between you and the original creditor. So what the debt buyer is really claiming, in order to establish account stated, is that you struck an agreement with the "original creditor" on the balance owed, prior to the debt being sold. You'll find that most debt buyers try to show evidence of "account stated" by attaching a monthly statement to a complaint, often one that was rendered before the account was charged off or even closed. Many times, the statements they provide will actually show an "amount due now" that is considerably less than the account "balance." In any case, the statement rarely, if ever, purports to be a "final balance" on the account. There is no way this kind of statement should be allowed to suffice as a "final balance" agreed to between the parties. See, Northern California Collection Service, Inc. v. Salazar, F057350 (Cal. Ct. App. Mar. 19, 2010). "It is clear that a statement rendered cannot be said to be an account stated unless it is intended to be such and expressly or impliedly is assented to as such by the party to whom it is rendered. There is in the case before us no element of finality, as the parties were still transacting business. These statements were sent periodically and business was continued between them as before. There is no ground whatever for the contention that the account was rendered and intended to be an account stated, or that [the charged party], either expressly or impliedly, considered that it was such." (quoting American Fruit Growers, Inc. v. Jackson (1928) 203 Cal. 748, 751-752).
  15. Call on Monday and ask them. You have nothing to lose.
  16. Does the amount due on the statement match the amount sued for. Does the statement request payment of an amount less than the balance due?
  17. Are you saying that the response to the validation request was a summons?
  18. @smitty009, out of curiousity, do you have any way of posting the requests for admission?
  19. What exactly do you mean by, "I took the right protocol to get off the lease?" Was your lease under both names- yours and your roommates? Doe it include a provision for early termination of one of the parties? If the lease was in her name, what did it say about subletting? Was she even permitted to have a roommate? Was it in your name only and perhaps she was the sublet? Without reading the lease terms, I can't specifically identity your rights and obligations thereunder. If you were party to the lease, you would be obligated to end your tenancy under the terms stated in the lease, if any, and pay any fees or monies associated with that. If there was simply an informal agreement between you and your roommate, that would tend to make things a more difficult for her to recover, but not entirely impossible. It could still be shown that the two of you entered into an agreement upon which she relied to her detriment. There are some other contractual technicalities that may affect your liability under a contract as well, but no need to address that now. Finally, assuming for sake of argument that you were obligated under a binding agreement, breaching that agreement because she was "crazy" is a highly subjective reason and, frankly, not something you want to just blurt out as a defense tot he lawsuit. "Your honor, I had to get out because she is crazy!" Is she mentally unstable, maybe an out of control drug addict ... or is she an angry girlfriend who likes to throw things at you? You get the idea. Let's work on your legal obligations under the lease first. Can you provide answers to the questions above?
  20. First, you have to determine whether the affiants are represented by plaintiff's counsel. If so, then all you need to do is arrange a date, time and place convenient to the parties and send notice of deposition to plaintiff's counsel. If, after conferring (or attempting to confer) with plaintiff's counsel, you learn that he/she does not represent the affiants, then you would need to have them served with a subpoena. Since they are probably employees of Midland, I suspect you'll find that Plaintiff's counsel does in fact represent them in this matter. In any case, be prepared for them to oppose or stonewall any attempt to depose these folks.
  21. In that case, I would suggest that you do so before the motion is filed. Waiting until after the motion is filed may give the appearance that your request is simply intended to delay.
  22. If the court has issued a discovery deadline, simply issuing deposition subpoenas would not necessarily extend discovery. If there's a deadline, all discovery must be complete by that deadline, absent an extension. However, if you're attempting to depose certain witnesses regarding the veracity of their affidavits, you should be able to use that to delay any motion for summary judgment. I am by no means an expert on the application of Louisiana Civil Code, but I think Art. 966(3) would apply in the same manner as similar rules apply in other states: "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." The way this works is that, if you're trying to obtain discovery necessary to your defense of a summary judgment motion, and the other side is stonewalling you or you have not otherwise had an opportunity to conduct discovery, you can move the court to deny or continue (or whatever they call it in your area) the summary judgment motion until you've had "an opportunity for adequate discovery," setting forth in your motion or response the subject matter of the discovery you are seeking and what you believe discovery will reveal. Since a 1997 amendment to Article 966, Louisiana's standard for summary judgment has been closely aligned with the federal standard under Fed. Rule Civ. Proc. 56(c). When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties equally, without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation. Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610, quoting Hayes v. Autin, 96-287 (La. App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. If Louisiana courts track the federal standard, such a motion should work. In federal court, it is referred to as a Rule 56(d) motion and, as long as you can adequately support the relief requested in the motion, it should be granted. Keep in mind though, that if you're granted such relief and don't follow up on it, judge is not going to be happy camper.
  23. Understood. The tone of discourse in this thread has become unacceptable. Please, lets all be considerate of others in our comments/responses. If anyone truly has something to contribute, we need be able do so without the ad hominem.
  24. Sound advice. Sounds like a smart lady.
  25. You sound like a debt collector. Sue me and see how quickly the debt disappears.
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