LUEser

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LUEser last won the day on December 12 2009

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About LUEser

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    Hoopy Frood with a Towel
  • Birthday 12/13/1985

core_pfieldgroups_99

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    I'm a Credit Ninja, a Freelance Writer, and a Jack of All Trades. Our rights- "If not us, then who?"
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    Credit Litigation, Technology, Ninjitsu, Linguistics, Archeyping, Poetics, and Texas Hold 'Em
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    Freelance Writer; Collection Agency "Consultant"; Jack of All Trades, and Private Attorney General

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  1. If I may, Was the account paid? Was it actually withdrawin from the CA? If not, there's a good chance that the OP can set up a settlement agreement with the CA and simply bind them witn an NDA. Then he pays, disputes, and they can't respond to the request because of the NDA. Just an idea.
  2. Welcome to General Sessions court Stewperr. You will find a very creditor biased judiciary here, especially in Gen Sessions where the evidence doesn't mean as much as the mood the judge is in that day. Since it's not a court of record (as in there are not requirements for the orders or filings to be prepared formally), there is a higher chance of the judge distributing justice as he or she sees fit whether or not it falls in line with the actual legal requirements for civil cases. That's why there's a process of de novo appeal to Circuit court regarding any General Sessions judgment within 10 days of the judgment. But, you got a nonsuit, which is a win either way for you
  3. What kind of ARB was this where you had to pay $500 for it? Was it ADR per the court, or at your request per the contract for private arbitration?
  4. Just about all of it. Any particular section you were looking into for clarification? The UCC is a rather large body of law.
  5. That's partly incorrect. While TN General Sessions court doesn't require a formal complaint or answer, that doesn't mean you can submit one (Unless of course your local district rules prohibit it). Mine in the 9th state circuit doesn't prohibit it. Anyway. Some statutes you'll want to hang on to can be found here: LexisNexis® Custom Solution: Tennessee Code Research Tool (unfortunately Michie's has shut down their personal hosting and is now using lexis nexis. A little harder to navigate but still free!) T.C.A. 62-20-127(d)(2) Regarding Assignment of Accounts. Yep, you got it, file the sworn denial. But there's more. 47-3-203 allows you to question the transfer and endorsement of the instrument (contract) And if you have the contract, and ARB is available, I'd go there first. My plan of action would be to file two motions. One as a motion to compel arbitration since it's immediately appeal-able if the judge isn't going to abide by the FAA. But if he refuses to compel and stay the case for arb, the MTD based on the sworn denial and lack of compliance of showing holder in due course, which means basically lack of staning under 47-3-203. If you get into the UCC, which is pretty much all of what Title 47 of TN Code is, you may find a few more goodies you can throw at them. Hope that helps.
  6. So if I'm understanding this correctly, and I may not be. If we're saying the OC is securitizing to a subsidiary company of itself, then selling to investors. Why is the OC not considered a debt collector under the purview of the FDCPA? Bank of America has sent me several letters from 07-2010 with no miranda wording. This month, i got one with the full 1692g miranda, and have since requested validation. I know BoA in my context is also tangled with MERS and the mortgage side of securitization, which from my reading of this thread is in the higher tranches of pooled accounts. But here's the kicker. They actually named the current creditor as a Freddie Mac 3-day trust, and admitted to their debt collector status. Does this not also ring true for all credit card securitization processes, or is the process so fundamentally different that they are both still able to be servicer and part owner? I'd love some clarification on this.
  7. It's being talked about on InsideArm: http://www.insidearm.com/daily/debt-collection-news/debt-collection/collection-letterhead-can-be-an-fdcpa-violation-judge-rules/ The lawfirm letterhead issue is really dependent on whether or not the attorney performed a meaningful review of the case. See the whole ruling here: http://docs.justia.com/cases/federal/district-courts/pennsylvania/pamdce/1:2009cv00578/75676/66/ The violation revolved around 15 U.S.C. 1692e "False or Misleading Representations" Remember though, this case came out of Pennsylvania, in the Third Circuit, so it's only binding in that Circuit, can be used as persuasive argumentation in other circuits. There are a lot of other case cites in the ruling though, so you may find something applicable.
  8. No one seems to be saying to "tip-toe" through this. The advice is more to not make an issue out of something highly irrelevant to the litigation. Why get into a battle of opinions with the court about the court when simple clarification will get the issue dropped and allow for more focus on the meaningful litigation?
  9. Flacorps nailed it. Short, to the point, keeps the emotion and personal opinion out of it, and simply clarifies the situation for the judge. Your pleadings were obviously good enough to merit the eyebrows raising. Take the backhanded compliment, clarify the issue, and move on--keeping it strictly business and focusing on the litigation situation at hand. Even if the judge does have a disposition set against pro se litigants (which unfortunately exists in some judges), no need to give him more reason to undermine your efforts and reinforce his personal bias (if it exists, I'm working on assumption here).
  10. From what anecdotal cases we have about Arb, it doesn't seem that the case ever gets far enough to need to make such an argument, but I agree with you Linda, it would be nice to have as ammo if it came to that point.
  11. Two types of law that don't generally get talked about on here, and the concept itself is so gray area that most judges have a hard time with it. Substantive v. Procedural. I can give you an example from my own state regarding choice of law, and maybe you guys can extrapolate. Let's talk Statute of Limitations. Credit Card in TN, it's 6 years. Delaware, 3 years. Now, the contract says Delaware will be the state law used. Well Tennessee only agrees half-way. Substantively, any law that Delaware has that offer me protection (some sort of legal substance), Delaware will be used. Let's say they have an interest rate cap of 29% and TN's is 49% (hypothetical). This is a substantial law, as it has nothing to do with court procedure, pleadings, etc. So, if they've got me at 39% interest on my loan, and DE considers this Usury, I have a case in TN under the choice of law because of DE's substantive protection and statutory interest rate. New scenario, I'm not over the DE 29% cap, but I haven't paid in 4 years. Under Deleware law, I should be past the Statute of Limitations, send them an FOAD right? Well no, not here in TN. Our judges have ruled that the Statute of Limitations is a court related action, it governs court procedure. Their reasoning is that the court grants you the right to bring the suit within 6 years. There's no protection like there would be for usury, only a time frame in which the court will recognize the case as valid. IN this case, TN uses the forum (it's own) SoL, so It's still six years before the statute is up because our judges have ruled it a procedural issue rather than a substantive one. Logic doesn't make sense to me. To me, A 3 year SoL is more protective than a longer 6 year one, seems substantive. But no, our courts ruled otherwise and SoL is a procedural issue in TN. So to the OP, it's gonna take a lot of research to see how your state has employed Choice of law in the past, and how they will trend in applying it in your case.
  12. Even if it doesn't specifically spell it out in the FDCPA as false legal status, which is probably an unfruitful argument, albeit a time wasting one if that's what you're looking for, 1692f generally, not a certain letter, but just the introduction to the section says: So, they key here, to move forward with a rock solid FDCPA claim, would be to make a parallel to and 1692f case that was successfully argued and created positive consumer case law or two things. 1.) What, other than is listed, constitutes unfair (i.e. what other things have collectors been busted on with (f) as unfair or unconsciable. 2.) We know improper venue works. You can't sue me in Hawaii over a debt i I live in TN. Does improper venue work in relation to Arb? I can't answer that, but it makes logical sense. You used a court, you were supposed to use a forum named in your contract. Improper venue equates to breaking your own contract equates to unfair and unconscionable means. We just need the dots and it'll be easy enough to connect them.
  13. If you choose to go the arbitration route, I would certify a letter electing it, but be sure to read the contract/cardmember agreement so you know exactly what you have to specify when you're electing the arbitration. Remember electing and initiation are two different things. So if you elect as the contract states, then when it comes down to initiation, they have no way of saying you didn't follow the contract and give them notice of the type of dispute you're wishing to arbitrate. However, your arbitration claim should have some merit so they don't just dismiss it as another internet ploy. If you have a legitimate dispute to arbitrate, it makes your arbitration case that much stronger and you don't run the risk of them pulling the whole "Well you didn't notify us of arbitration in time," even though the FAA trumps their flowery contract language of notification.
  14. Yes it can. Fannie and Freddie never service loans. And usually the number swapping, if it occurs, is done by the servicer. That would be people such as BAC home loans, Chase's mortgage servicing department, EMC or example and others. So you can send this letter to whoever is sending you the bill on the mortgage.
  15. I think sev was actually trying to be helpful here, but the link is most definitely a referral link that gives a bonus of some sort to whoever the heck Wayner is. It could be the OP, it may not be; I'm not one to jump to conclusions. Thanks for the heads up that it doesn't report to the big 3. Is your experience firsthand here, superbness?