tempteroffate

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tempteroffate last won the day on April 9 2010

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About tempteroffate

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  1. I have taken care of pretty much all of the debt collectors for debts that are actually mine, but I have recently been subjected to "scary" calls from purported debt collectors, mediators, or process servers attempting to get me to pay on debts that are either extremely old (well beyond SOL), have previously been resolved, or don't actually exist. The callers leave automated voicemail messages that indicate they have a "pending complaint" in their office that they want to give me an opportunity to resolve with them before they "file a case against" me (or my SSN) at my county courthouse. They threaten to contact my employer, family, friends, etc and to have me arrested or served if I don't respond and clear up the debt. It's a huge pain in the a$$ because they're obvious frauds and totally disregard the FDCPA so it's virtually impossible to get them to go away. It can also be pretty embarrassing when they contact family members or friends. Sound familiar? I don't typically answer calls from numbers I don't recognize and usually just disregard the voicemail messages (I always save and archive them though). If I get a repeat offender, I will sometimes do some basic Google searches on the number to confirm my suspicions that it is a scammer and then block the number (they usually use VOIP lines and spoof the caller-ID which makes it extremely difficult to track them down to make them stop ), but today I think I got lucky. A little digging showed the number they called from actually belongs to CLEC phone provider that offers "network-based voice & messaging" (aka VOIP services) and the number that showed on my caller-ID wasn't spoofed and resolved to a LANDLINE not too far from my home. This provides me the unique opportunity to be able to get actual contact information for the "company" using the number to make these fraudulent debt collection calls. I contacted the provider and informed them they are providing phone service to scammers and requested the contact information behind the number. My initial thought and intent is to go after the scammers in court as if they were valid debt collectors and have made egregious violations of the FDCPA. I figure it's likely an easy payday because they're not going to want to go into open court with their scams, but I'm wondering if I should also get law enforcement involved. I'm plotting my next move and am looking for suggestions and a little of the collected knowledge here at CIC. What do you think? Should I go after them in court? Should I just turn their info over to the FTC? Local cops? FBI? Secret Service?
  2. Hey Ryan, Improper venue is one of my favorite arguments to throw at creditors when they sue, but be aware that it's not a slam dunk argument. 15 U.S. Code § 1692i(a) is used for the determination of proper venue: Because you said this is for a credit card debt, (a)(1) would not be applicable and you would need to refer to (a)(2) for your case. Which county were you living in when you originally applied for and received the credit card? Which county are you currently living in? If neither of these are Weld county, you can file your answer to the court using the following language: Obviously, you would need to replace everything in [] with the correct information. If you have any other affirmative defenses you want to use, they should be included in your original response in case the judge determines that the venue is proper. Also, note that I recommend using Dismissal Without Prejudice that would permit the plaintiff to refile in the correct county as opposed to With Prejudice that would preclude them from refiling in the proper county. You are welcome to change it to With Prejudice and using the argument that they had one shot at the apple and blew it and shouldn't be allowed to correct their mistake and refile in the correct county, but be aware that most judges are willing to make the plaintiffs actually do their homework and put forth some effort in these cases, but are unlikely to really slap the plaintiff with a with prejudice dismissal unless the plaintiff has a history of making the same mistakes repeatedly. Totally your call. Good luck!
  3. Sheesh.... I am way behind in updating this thread.... My sincerest apologies to anyone that was waiting with bated breath for the outcome of this one. It has been a pretty hectic and busy few months and for most of it almost nothing happened.... And then.... Following the mediation session, I got another letter from the plaintiff's attorneys (M&J) offering to settle and/or to be included in setting the trial date, but nothing else. I decided that my best bet was to bide my time until three weeks before the scheduled trial date (was scheduled for Aug 8) and then I was going to hit them up with the mess of Motions in Liminie and objections to prevent them from using affidavits from the OC, the first assignee, and then the plaintiff to verify that my individual account was part of the sales transactions they had provided affidavits for, and to object to the potential signors of those affidavits from appearing telephonically in order to rack up the expenses to make it not worth the payoff. Weeks and months went by and I just waited for them to send me anything else as part of discovery because despite shellieh's impression that the only thing they were missing was a witness, I felt pretty confident that they were still missing key identifying documents because while they provided an affidavit that said Santander had sold a bunch of accounts to Cascade and another that said Cascade had sold a bunch of accounts to Velocity, they did not have anything that proved that my account was included in those two bulk sales. And then.... three and a half weeks prior to trial, we received a letter from M&J that said their client had decided that the expense of a trial wasn't worth it and they would like to dismiss WITH prejudice and included a "Stipulated Motion to Dismiss With Prejudice and Mutual Release" for us to sign and return for them to file with the court. The letter even kindly explained that with prejudice meant that the account would be effectively dead and could never be brought to court again. After reading through the motion extremely carefully looking for any "gotchas" we obviously agreed, signed the motion, and sent it back to the plaintiff's attorneys as requested. That was on July 15 and we never heard back from them, either to confirm they had received the signed motion, that it had been filed, or that the judge had dismissed the case. Given that the trial date is a week from today, I tried looking up the case through the court's website and couldn't find our case on the docket, nor could I find any information about it, so I called the courthouse directly to find out the status of the case. After going rounds with the courthouse's automated phone system, I got a nice young woman that was able to confirm that the motion had been filed and the case was indeed dismissed!! We held our ground, they blinked and we won! Granted, it cost me about $200 that I didn't get compensated for, but compared to the $3200+ they would have gotten if I had done absolutely nothing, I will take it! As always, I appreciate everyone here that offered advice or that has been through similar cases and posted their information. It was very helpful and I wouldn't have had the confidence to stand our ground without it. On to the next case....
  4. Thanks, Shellieh. I will havet to scan everything in the packet and post it here (after redacting my personal info, of course) and make sure I'm objecting to everything necessary correctly. I have copies of the CRS and CRCPs, so I'll have to look up the dates, but I seem to recall it's pretty much up to two weeks out I think. I'll look it up tonight too. I'm debating letting this move forward to court now or if I should file the motion to dismiss based on improper venue still. If the judge grants that motion it would almost definitely be without prejudice and I would likely have to go through almost all of this again and probably wouldn't get my filing fees and the mediator fees reimbursed.
  5. I wish I had some really exciting news like mediation went fantastic and they agreed to drop the case, reimburse us for the expenses associated with defending ourselves, and to never resell or attempt to collect it again, but, sadly, the only news I have is that mediation is finished and they're getting ready to set the trial date. Mediation went about as I expected. I managed to get the opposing counsel and the mediator to allow me to appear by phone so I didn't have to make the drive from Northern Colorado to Littleton to spend two hours telling them that they didn't have sufficient evidence to prove the debt was owed to them and I was not settling for any amount. It cost me $100, but we've passed that hurdle and are now wrapping up disclosure and preparing for trial. Since I wasn't there at the mediation session, we had to describe the various documents that they brought to mediation, but based upon the mediator's description, it sounded like they only brought the documents they had previously sent me in the packet of info I described earlier. Unfortunately, this meant that I never did get a confirmation that that doc I scanned and posted here (see above) came from either the plaintiff's internal system or the attorney's internal system. I think the best course of action for that document is to motion to get it stricken or precluded from being submitted as evidence since there is no identifying information that identifies its source and/or there is no witness or affidavit or anything else to verify its authenticity and as the link between Santander and either Cascade or Velocity. All in all, I still think I have a pretty decent/solid case. I don't think anything they've sent clearly shows that Santander sold our account to Cascade Capital or that Cascade Capital sold it to Velocity Investments. Even if that one weird document were admissible as evidence that the account was originally owed to Santander and is now in Velocity Investment's possesion, there still isn't a clear chain of custody from Santander to Cascade AND from Cascade to Velocity. One thing I did learn from the mediator though was that the judge in our case tends to give pro se defendants a bit more leeway and be stricter with the collection attorneys. It sounds like if I carefully and clearly lay out the case that they haven't proven standing, I should be able to get it dismissed. Thoughts? Suggestions? Direction?
  6. M&J are bottom feeders. This just gets uglier and uglier. They identified a mediator and set the mediation session time and place without consulting me. I've spent the better part of the past week searching through the Colorado Rules of Civil Procedure and Revised Statutes looking for ways to flip the situation on them since they didn't give us any input on the mediator or the session's time and place. The best I have come up with so far is to file a Motion to Set Aside the Mandatory Mediation Order based on the following: We were excluded from the selection of the mediator. We were not consulted on time and place of the session. We cannot enter into the mediation session in good faith because we do not recognize the plaintiff's right to the debt and it will be an unproductive two hours and $200 ($50/hour from each plaintiff & defendant with a two hour minimum). I also need to file a separate Motion to Dismiss for Improper Venue because my Answer was likely not even read by the case judge because filing our answer triggered the automatic mandatory mediation order. I could also file a Motion to Dismiss based on Lack of Standing (our sole Affirmative Defense in our Answer). I haven't decided if I should try this one now or after my other motions if they should fail. In the meantime, M&J has sent two letters requesting that we call them to discuss a settlement outside of the mediation and trial. One of them was part of a packet of information that looked like Disclosure documents. They included copies of the Right To Cure letters sent by Santander, the Notice of Intent to Sell from Santander (which according to the form versions available in UCC § 9-614(3) is for a Consumer Goods Transaction), the Explanation of Calculation of Surplus or Deficiency (which had been included with the original summons), a number of documents related to our original purchase from the dealer including the original Retail Installment Sale Contract, the original application for credit to the dealer, what appears to be a copy of Santander's copy of the sales receipt (from an auction and not the private sale they told us they were going to sell the car in), our offer "letter" to buy the car from the dealership, the dealer's copy of the blue book information at the time of the sale to us, our application for title/registration, and the original bill of sale from the dealer. It was a lot of effort to prove that we indeed bought the car, that Santander loaned us the money for the car, and that Santander followed the UCC in terms of the repossession and disposition of the car/colatteral, but very little to prove that Velocity Investments has any right to pursue us for the deficiency following the sale of the car (I am curious if I can use the fact that it appears to have been sold at auction and not in a private sale as they initially indicated). To prove that, they included two Bills of Sale and Assignment (they're very generic and do not include anything specifically referencing us by name, account number, location, or anything other than "those certain receivables, judgments or evidences of debt described in the Financial Asset Schedule ... attached hereto" but there is no attachment) and what appears to be the associated Power of Attorney Affidavits. They also included an "Affidavit if Sale of Account by Original Creditor & Certificate of Conformity" that indicates "On July 25, 2014, Santander Consumer USA Inc. closed the sale of a pool of accounts by a Financial Assets Sale Agreement and a Bill of Sale and Assignment to Cascade Capital, LLC" (based on this and one of the Bill of Sale documents, Santander sold our account to Cascade Capital and Cascade Capital sold it to Velocity Investments), but again the "Financial Assets Sale Agreement" is not included that may have had our specific account information. There is one document they included that seems very odd and I can't determine if maybe this is supposed to be the piece of identifying information that ties our specific account to those sales from Santander to Cascade and then to Velocity. I think it's from an internal program of M&J's, but I think it is intended to muddy the waters and make us think they have everything. I have redacted any identifying information. What I can tell you is it is terribly out of date despite the date in the upper right hand corner being after I received the first and only letter from M&J on Velocity's behalf (it was a dunning letter that we received last Sept that I ignored because I had never heard of Velocity Investments, it wasn't listed on any of my credit reports, and the balance they claimed was owed didn't match anything that was on my credit reports either - I know should have DV'd them, but at the time all of my focus and energy was on a project I was involved with at work and I just didn't take the time to DV them). I think I would need a Motion In Limine to prevent them from using the Bills of Sale and Power of Attorney because they aren't specific enough and the Financial Assets Sale Agreement isn't included, but are we sunk? Will a judge find this weird document is good enough to link our OC account to Velocity? Hardly seems that way to me, but I'm also not a lawyer and have been burned in the past by their sneaky tactics.
  7. Dig long enough and eventually you may come up with the answer on your own. Or such was the case with me. I found what I was looking for... sort of.... The right to dispute the debt with the OC directly is FCRA § 623(a)(8) and not a part of the FDCPA at all and given this particular collection isn't appearing on my CR yet, it is irrelevant to my FOAD letter to NCA. I would suggest that the Admins may feel free to delete this topic entirely, but hopefully the next person looking for this information won't have as far to search before coming upon it.
  8. I got a settlement offer letter from NCA for a debt I, ironically, have a letter from the OC that states the account was paid in full (I thought it was an email, but now I can't find it in any of my email accounts which means it's a physical letter somewhere I may need to dig up). Anyway, I am planning to send them a FOAD letter in response and wanted to cite the FDCPA that says I have the right to deal with the OC directly, but I have been through the statutes a couple of times and just can't seem to find the correct one. Can someone point me in the right direction?
  9. Thank you both for your responses. It's been a few years since I last fought the good fight so I am a little rusty on my civil procedure and appreciate the pointers. I think I get what you're suggesting in regards to bringing in the validity of the debt at all into question. Since they've already produced a copy of the deficit notice, I don't think it will look good for me to deny ever having received it, but the notice of the auction date and time or the right to cure, those I'm not sure if they did send them and I don't remember receiving them specifically either. I really like your suggestion to check out the NADA Guide for the year the vehicle was sold. If they can't prove that Santander didn't screw up and not send me the necessary notifications, that would at least minimize what they are able to collect if nothing else goes my way. It looks like my next moves are to look into my best options for mediation, get ahold of the UCC codes regarding repos, and wait for them to provide disclosure, prove their standing to collect, and validity of the debt? Sounds like a fun weekend ahead of me. ?
  10. It is unlikely that I have the original loan documents anymore. We have moved a half dozen times since then. We have bought and lost a coffee shop where for a time lots of our personal and business things intermingled so we lost a lot of personal items when our friendship with our former business partners went south and we had been storing some of the inventory at their home when the sheriff's department took it as part of a judgment against my wife (one of the previous times I tangled with M&J). I most certainly don't still have a right to cure letter nor the notice for the auction. Just as I didn't still have the original contract that assigned the debt to Santander nor the letter outlining the deficiency post auction. And the latterI kind of recall seeing so I wouldn't be surprised if Santander doesn't also have; however, none of that really matters if they can't prove their right to collect the debt in the first place, right? I'm wondering if I shouldn't file an amended answer to include they provide proof that Santander followed the UCC and sent me the proper notices bringing into question the legitimacy of the debt at all? Or maybe, I will have to wait and see if I lose the case initially and then use that as grounds for an appeal or to have the judgment vacated? At the moment, however, it is merely academic because apparently in Arapahoe County the filing of my answer immediately and aitomatically triggered an order for "mandatory mediation." We are required to attend a two hour minimum session with a mediator (that A, we both have to agree to, and B, we're going to have to pay for). In a case like this it's going to be about as effective as trying to nail jello to a wall or, even more accurately, make the sun rise in the west. I suspect this is why they filed in Arapahoe County. If they can't outright beat us through our absence by not showing up or responding like so many do, then they'll bleed us with fees to make us weak and want to settle just to make it stop. Ah well.... It is what it is. I'm not giving in to these yahoos so I better go read up on mediation and see what I can come up with to either make them pay the entire session fee for me to sit in the room like a spoiled child demanding they provide proper proof or find a way to beat them in mediation....
  11. Hey gang, it's been a while since I was a more active member here. I have been lax about cleaning up my wife and my credit and only casually monitoring our credit reports through CreditKarma.com. So, it was no real surprise when we were served papers for a lawsuit in early to mid-December (2015). Although the summons did not have a case number printed on it, I knew that in Colorado the case number isn't assigned until the Defendants have been served, so I didn't hurry to check the docket since the answer wasn't due until January 22nd. The plaintiff in the case is Velocity Invesments, LLC, who until I received the papers had never heard of (they are being represented by Machol & Johannes who I have tangled with in the past semi-successfully). The Complaint claims that Velocity Investments, LLC is an assignee of Santander Consumer USA who we had a car loan through starting in November 2010. In June 2011 I started hearing rumors that my entire department was going to be laid off in September, so we turned in the vehicle voluntarily to avoid an involuntary repossession from appearing on our credit reports. We knew that being less than a year into the loan we would be upside-down and would have a deficiency balance, but decided to worry about that when it happened. As evidence attached to the complaint, they included our initial "Retail Installment Sale Contract" from the dealership that assigned the loan to Santander and the letter of "Explanation of Calculation of Surplus or Deficiency" dated 8/31/2011 that Santander sent after the vehicle had been sold at auction and showed a deficiency of $4646.23 (the unpaid balance of our loan was $15174.73 and they got $10900 for it - the $371.50 difference between the sale and what we owed was for costs associated with putting the car up for sale). I vaguely remember getting the letter for the deficiency, but again, figured I would deal with it at a later date. At the time, we were fast approaching the expected layoff date and I was more worried about keeping a roof over my family's head. Since receiving the "Explanation of Calculation of Surplus or Deficiency" letter, I had received a handful of calls from Santander reminding me about the debt (none of which I answered or returned), but nothing else and when I started using CreditKarma about a year and a half ago, the entry for Santander showed the account was charged off, the debt had been sold to another company (no name mentioned), and the balance was $0. I never saw another listing on my credit reports for the deficiency and thought maybe I'd get lucky and be able to wait out the SOL on it (obviously, no such luck). December passed and I didn't do anything with the summons, including mounting a full-on defense. From my past dealings with M&J I didn't want to tip my hand too early and both work and home life were pretty busy with the holidays and I didn't have the time or energy to really get into it. I can say that my past experiences calmed my nerves and I wasn't panicked or worried about the answer because I knew I had time to answer and that they didn't really have a case as long as I didn't capitulate to anything. Unfortunately, I should have put everything together sooner because the week before the court date on the summons, my wife's father fell ill and she had to travel out of town to be with him and it left me as a sinngle parent for the week of the court date and I was finishing a huge project at work at the same time. I didn't put my answer together until the day before the court date when I had to make the drive from Loveland to Littleton to file my answer in person because I was not going to be able to attend court the following morning. As a result, my answer was short, but hopefully enough to keep them from an MSJ and a default judgment. My answer used two affirmative defenses: Improper Venue and Lack of Standing. Although the contract was entered into in Arapahoe County, I currently live in Larimer County. Article 15 Section 1692i(a)(2) prescribes that court actions must occur where the contract took place or where the defendant(s) live and recommends to Plaintiffs that unless they want the Defendant to object, they should file where the Defendant Lives and not where the contract was signed. I figured it was a longshot and not being there in person to defend it would make it difficult to persuade the judge, but I figured it was worth trying. For lack of standing, although the Complaint identified Velocity Investments, LLC as the assignee of Santander, there was absolutely no supporting evidence included with the summons and complaint. Additionally, they are not listed on my credit reports and I do not recall ever receiving any notice from them that they had been assigned the debt or other attempts to collect it. Unfortunately, case dispositions are not available online for Arapahoe County and I have not received a response to my documents request from the court yet, so I don't know how it played out. I'm posting here because I would like your opinion on how I responded to the complaint and what you think my next steps should be. I think I have answered all of the usual 16 questions for new case posts, but will look over them tonight and post the questions and answers tomorrow. Thanks!
  12. kab - you have a PM from me. You'll need to make some additional posts to see it/respond to it, but I'm here when you are.
  13. Believe it or not, LegalEagle, I actually am pretty up to speed on the Rules of Procedure for Colorado County Civil Courts. I've been through this before and have managed to get the other side to back down in that case and walked away with my expenses paid (as a pro se). A Motion In Limine should be presented at the threshhold of trial. In our case, we had received a Notice of TRIAL for October 19th. Although I had expected there would be a PRETRIAL conference where we would be given the opportunity to request leave of the court to do discovery (rfa's, rogs & rfp's), we assumed because it was a small county court that the case had been fasttracked and the "Disclosure" Statement sent to us by the Plaintiff constituted Discovery and we were going to go into court for our Trail on the 19th. After submitting our Motion In Limine to Exclude the Evidence they presented with their "Disclosure Statement" the Plaintiff's Attorneys Amended not only their Disclosure Statement, but their Notice of Trial to be a Notice of Pretrial. At that point I debated withdrawing my Motion In Limine, but decided to let it stand to get a sense of how the judge managed his courtroom. Once we're in Trial, a Motion In Limine would be improper, so whenever the Plaintiff attempts to introduce any of the evidence from their "Disclosure Statement" we will object on the grounds we initially stated in our Motion In Limine (hearsay, unauthenticated, lacking personal knowledge, irrelevant, etc) and if necessary, Motion to Strike their evidence and affidavits. Also, as both 1stStep and KentWA have pointed out, a) settlement negotiations are not admissible in court and are not necessarily an admission of the debt. In fact, our settlement negotiations have always included the statement, "This is NOT and admission of the debt, but an attempt to unburden the court system and save each party the time and expense of further litigation."
  14. I went to the pretrial last week on behalf of my wife (full account here: http://www.creditinfocenter.com/forums/1126899-post15.html) and the judge said he'd be holding off on the motion hearing until after our court-ordered mediation in December. By my count there were only two motions on the table to be ruled upon: The Plaintiff's Motion to Dismiss the Defendant's Counterclaim With Prejudice and the Defendant's Motion In Limine to Exclude Plaintiff's Evidentiary Documents. I expected, once the Plaintiff Amended their Notice of Trial to be a Notice of Pretrial that our Motion In Limine could be denied as it suddenly became premature with Discovery being incomplete, but I didn't expect a ruling on it until after the court-ordered mediation in December. Turns out I would be WRONG! We received a denial notice in the mail yesterday with the comment "Motion is Denied - Evidentiary Objections to Plaintiff's exhibits will be addressed at trial." What's even odder is that it's dated for 2 days before our pretrial hearing, but we're just now receiving it. Essentially, it just means we need to wait until trial to make the objection to the Plaintiff's documents, and then we'll need to make them a Motion to Strike instead of a Motion In Limine. Of course that also is a) assuming we don't reject their documents during the discovery process following the court-ordered mediation and assuming we don't settle and vacate the trial before then. Anyway, just an update. We're going to send them another settlement offer. I've tried to word it so it doesn't sound as heavily biased in our favor, but it still is. I'd much prefer to see this all just go away, but I'll be damned if they're getting out without paying at least our expenses in defending this.
  15. I'm pretty sure gym memberships fall under written contracts because the total amount due is known in advance; however, don't quote me on that as I'm not a lawyer and don't even live in NY.