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befranktome's Achievements

CIC Member

CIC Member (4/6)



  1. So I guess Wang is the only one considered a plaintiff? 6.2 states plaintiff, not Wang specifically, but the definition of plaintiff states him specifically and as representative of the whole class. Man, why can't it just be plain and simple. Why not state Wangs debt is removed but no other class members.
  2. Even 6.5 says except as provided in 6.2. I would have read that to cover any debts outside of the parameters of the suit. Why would they stipulate Wang by name in 6.2 personally AND as representative of the class, as defines as "plaintiff" in 2.28.
  3. In the stipulated agreement section 6.2 posted above it also included removal of the debt forever. I didn't fill out the form for the money because they didn't notify me before the deadline. They automatically included me as a member though. The way that I read it, the accounts for the class members should have been deleted, not just Wangs personal ones. That is why I'm asking, as plaintiff acting for the class, does the account deletion and cessation of collection apply to all of the class members?
  4. I have a question. I am a member of the Wang vs. Asset class settlement. I received my 6 months credit monitoring. I went to the site wangclassactionsettlement.com to read the settlement agreement and it has a section in it that appears to me says that the account should be eliminated... 6.2 Release of Plaintiff From Debt Allegedly Owed To Asset. As of the Effective Date of the Settlement, Asset shall be deemed to have fully, finally and forever released Plaintiff from all Released Claims described in Section 2.31 above, including any action to collect any debt owed or allegedly owed by Plaintiff to Asset that is the subject of the Action. Without limiting the foregoing, such Released Claims specifically extend to all claims and potential Case3:09-cv-04797-SI Document147-2 Filed11/03/11 Page15 of 63Page 15 of 31 claims that Asset does not know or suspect to exist in its favor as of or prior to the Effective Date. Plaintiff and Asset agree that this paragraph constitutes a waiver of California Civil Code section 1542 and any similar or comparable provisions, rights and benefits conferred by the law of any state or territory of the United States or any jurisdiction, and any principle of common law. California Civil Code section 1542 provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Asset understands and acknowledges the significance of these waivers of California Civil Code Section 1542 and/or of any other applicable law relating to limitations on releases. In connection with such waivers and relinquishment, Asset acknowledges that it is aware that it may hereafter discover facts in addition to, or different from, those facts which it now knows or believes to be true with respect to the subject matter of the Settlement, but that it releases fully, finally and forever all Released Claims, and in furtherance of such intention, the release will remain in effect notwithstanding the discovery or existence of any such additional or different facts. Plaintiff and Asset acknowledge that the release of unknown Released Claims as set forth herein was separately bargained for and was a key element of the Settlement. Then I looked at the definition of Plaintiff.... 2.28 “Plaintiff” means named plaintiff Johnny Wang, individually and as proposed representative of the Settlement Class. My question is as follows.....Does this mean that they should have stopped reporting and collection efforts on the account that qualified me as a class member? Or did it only pertain to the individual Johnny Wang who was the class representative? I only have one Asset collection account. I've only ever had one. Due to this settlement, should they have removed it?
  5. If it were me, I would file a counter claim so that they couldn't just dismiss the lawsuit. Actually at this point, I believe it is a blessing in disguise. You have the opportunity to leverage them for violations and a chance to get the suit dismissed with prejudice. I would even try to negotiate a deletion from my credit as well. If you are going to have to do all of this work because of their fraudulent tactics, when you acted in good faith, then you need compensation for it. I know if I were on the jury hearing this case, I would be sticking it to them. Good luck and good vibes going your way.
  6. I have a different opinion, I'm not sure that I would claim fraud with the bank. At least I wouldn't claim it as an unauthorized withdrawal. I suspect that could come back and bite you. What I would do is file a response asap. I would also file a counterclaim as soon as I possibly could for false and deceptive practices. I know there was no written agreement. But there was a verbal agreement and money changed hands based on that agreement. Though hard to prove without it being in writing, it is still not impossible. Phone records and the withdrawal provides some credence. Not to mention, if the husband is not comfortable with the whole process, it would be better to keep things simple and truthful. How would he claim fraud with his bank and still claim there was an agreement to settle in full in front of a judge? I know, I know. They will probably lie and claim it was just a payment. At this point though I don't think there is a snowballs chance of the OP getting the money back from the bank, so I would file the complaint with the bank, but I would be truthful about what happened. Oral agreements can be defended, it is just a little bit harder. Alright, a lot harder. But like your husband, I may be a bit naive to believe that a judge will see through their lies. Answer the summons, file a counter claim as soon as you can. Just my two cents worth.
  7. Florida Rules of Civil Procedure RULE 1.540 RELIEF FROM JUDGMENT, DECREES, OR ORDERS (a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. ( Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding as entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action. Don't know it this helps or not, I would think a dismissal would be considered and Order. My interpretation would be they had 1 year. But then, I am only guessing. (-:
  8. gigi - Check the case online. If it was truly dismissed without prejudice, you can actually pull that up and print the actual filing. Official records of _______ county. I have the link for Lake County if you need it, not sure which county you are in. If it was dismissed then I have a theory of what may be going on. I've watched hundreds of cases in Florida. There seems to be a trend going that when someone answers the suit, the Plaintiff just lets the case sit and does nothing. Sometimes those cases end up dismissed for lack of prosecution. Some eventually get voluntary dismissal. But I have seen some that were dismissed and months later the plaintiff tries to file motions of default in error. It is like they are so disorganized that the "new" attorney has no clue the case was dismissed. The court usually returns those motions with a letter informing the attorney that the case is closed. Most of those cases though that were not dismissed are just left idle and then months or in one case over a year later, out of the blue a motion for judgement pops up. I think they hope the defendant has forgotten about it or assume that it was closed, so they ignore it and voila, judgement. So it is very important that you actually have the dismissal in hand and find out the true status of the case. That determines how you proceed.
  9. See, this is a fine example of why it is so scary doing this. I know just enough to get myself in trouble. One little word can make the difference. This would seem like a simple case. Just go file for a violation right? But then, I never would have known about the VOIP situation. If I hadn't been reading these boards since 2009, I wouldn't have understood that Sprint the OC, didn't violate. Even attorneys that I've spoke to, don't understand it. Or only understand about as much as I do. Our legal system is nothing more than a game of chess. Though I personally love chess, the rules should be simple and clear. They aren't. At least not in the game of lawsuits. The playing field needs to be evened out so that the laws can be understood and used by the common person. Instead they are created by attorneys for attorneys. They are designed to make it near impossible for anyone to do anything without forking out money to a "professional". The same professionals that have no interest in chump change, they only want the big dollar cases. Urgggg. Stepping down from the soap box now, I think I'll go play court room instead of barbies with my 4 year old grand baby. Maybe I should start teaching her the laws, right along side her ABC's and 123's so that she might stand a chance when she grows up. Thank you CIC for trying to help people learn the game of lawsuits.
  10. 1) BBB complaint filed against Sprint. 2) Communication back and fourth through the BBB with Sprint 3) Phone calls start from Pentagroup (CA for Sprint) disclosing Sons debt to third party. 4) Continued communication with Sprint through BBB 5) Received communication from Sprint through BBB that they would make the calls stop. 6) Started looking for an attorney to represent son and go after the CA Pentagroup for the third party disclosure of debt through the calls and voice mail.
  11. Sprints CA Pentagroup was making the calls. The complaint was filed against Sprint with the BBB. The communication through the BBB was with Sprint. That is why I was only asking about the third party disclosure violation made by the CA representing Sprint. My son wouldn't have a violation against Sprint for continued calls, because they weren't made to him and they were the OC.
  12. The Ninth Circuit further noted that oral notification of a dispute triggers § 1692c(a)(1 ) "which bars communication with a debtor 'at a time or place known or which should be known to be inconvenient to the consumer ."' Id . (quoting 15 U.S .C . § 1692c(a)(1)). This is on the bottom of page 5 and top of page 6 Baez v. Wagner & Hunt, P.A., 442 F.Supp.2d 1273, 1274 (S.D. Fla. 2006) I'll post the link to the site I got it from if you want. I actually got it through an attorneys site that defends the debt collector. It is a PDF file through his site. Didn't want to post something that maybe I shouldn't. It is my understanding that notification does not have to be in any set form, you just have to be able to prove that they were notified. I'll give you a little bit more info, it may make a difference. Son, signed up for a sprint phone with a two year contract. Approximately 2 months before that contract expired, he contacted them and requested that it not be renewed. He inquired as to how much would he need to pre-pay the remaining amout. That he wanted the contract (and phone) to end on the completion of the contract. They gave him an amount, which he paid. His last statement that he received actually showed a credit. Contract satisfied. A year later a debt collection shows up on his credit. $150 even. When he contested it, Sprint claimed that they had not actually cancelled the phone until 2 months later and that he could have used it if he had chose to. Refused to correct the account or remove the trade line. When he filed the BBB report, Sprint responded acknowledging the receipt of that complaint as well as acknowledging the no contact. They actually requested if they could communicate with him via E-mail because of the notice not to contact me (relatives) or him except in writing. Instead, two weeks later the phone calls start. Even after being notified that the phone number was not his. And providing them with the information in which to contact him with. He does not live with me. He has his own place. After they responded to the BBB complaint, Son rejected their response and added additional claims in reference to the continued phone harassment of his mom and the disclosure of his debt to a third party. The response back from Sprint was that they would stop calling. But held their position that the charges would stand. Granted, it is the poor persons way of documenting that they were notified. And Sprint even acknowledged that notification. I would contend that as long as you can prove that they knew, weather in writing, verbally, through a credit dispute consumer statement, BBB complaint, or by any means, that they are in violation by ignoring it.
  13. It depends, is the account linked to your bank account in some way? Does your bank maybe own the company that the account is with? Some banks have an offset clause in their fine print when you open the account. Then down the road, they may merge with or buy out another lender. If any monies are past due, I believe they have the right to just take it from your account because of the offset clause. Either way, do as the others have advised, close the account, contest it and find a nice credit union.
  14. So essentially you are saying that any voip phone service or computer recording device would make authentication of a phone violation almost impossible? Short of having a physical answering machine record the call. Or finding an expert witness to testify on how Vonage works. Not only that, how would they explain calling a relative 3 times + within days of each other. (actually they called more than that, the three times are based on the recorded calls that I didn't answer). So what would be the solution? Should I answer the phone and turn on a hand held recorder to record their recorded message? Would there be standing then? I appreciate your detailed reply. The attorneys statement that the same laws do not apply really was inaccurate, a more appropriate answer would have been to state that because of the Vonage recording it would be difficult to prove the messages were authentic. I do get it, based on how you explained it. It isn't different laws, it is a question of proof. It is actually useful to know that they can call and say anything they want, but if you are recording through VOIP it is useless as evidence. I never would have known that. Would my testimony as the person who answered the other calls that were not recorded be admissible?
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