BV80

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BV80 last won the day on June 3

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  1. Courts accept that the listed plaintiff is indeed the correct party. A defendant who challenges it has to do more than offer observations. Have you checked your credit report as I previously suggested? We don’t know the formula (or whatever it would be called) that banks use for selling or retaining accounts. Perhaps it’s based upon percentages. They sell a certain percentage and keep the rest. It could also be based upon individual states such as those that allow wage garnishment. Judges don’t care about the opinions of defendants. They want proof in the form of law, court precedent, or physical evidence. It doesn’t matter to a judge if an affiant has been signing affidavits for 10 years. That’s not evidence of anything other than the fact that she’s been signing affidavits for 10 years. I’m not sure what you mean by “sloppy.” You may not believe that an employee of Cap1 created the affidavit, but you’re going to have to do more than suggest that sloppiness and 10 years of signing affidavits is evidence that Cap1 doesn’t own the account. In regard to shady law firms, I’m not claiming that what you’re suggesting has never or would not ever occur, but it would not be common. The reason is because attorneys really don’t need to lie about the identity of a plaintiff due to the fact that the vast majority of defendants do not defend and default judgments are awarded to plaintiffs. It doesn’t matter if the plaintiff is an original creditor or a debt buyer. Most defendants believe just don’t fight back. In addition, any attorney who cares about his license to practice law is not going to risk losing his license along with a hefty fine. Again, please check your credit report.
  2. That anecdote really doesn’t mean a thing. All it means that the attorney tried to comply with her request. If he had objected and said it wasn’t relevant, it would have been your mom’s burden to show the relevance. Unless your mom could prove that relevance, the judge would not have required that documentation. Are you thinking that the bank charter (articles of association) must specifically state that the bank has the right to sue and be sued?
  3. Again, where is your case law that says a bank’s standing to sue ONLY comes from the charter? Do you not realize that basic contract law gives an injured party a right to sue? That is based on state law. You cited Osborn, but that ruling was based upon whether or not a bank’s charter conferred jurisdiction on federal court. It did not say that banks are required to provide the charter in order to prove standing. You keep skirting the issue. Show the case law in which courts have ruled that a bank must present its charter to show that it has standing to sue. Show the case law in which courts have ruled that an attorney hired by a JDB must receive his authority from the OC.
  4. It’s already known that a corporation has to appear by attorney. Where is the case law that says a debt buyer must reference the charter of the bank from which it bought the debt? Where is the case law that says the attorney hired by the JDB must have his authority delegated by the OC that no longer owns the account?
  5. Yes, I read it. The ruling was in regard to conferring jurisdiction on federal courts. No one knows about the delegation of authority but you?
  6. The OP is being sued by Cap1, not a JDB. However, in the event one is sued by a JDB, please show me which court has ruled that a bank charter must be present before the court. Also show where a JDB can only hire an attorney that has been delegated authority from the OC.
  7. @Theorist First, check your credit report to see if Cap1is reporting. If it is, and if the bank sold the account, Cap1’s entry will state “sold” or “transferred”. It will also show a -0- balance. If the account has merely been charged off and still shows a balance, Cap1 still owns the account. In regard to the law firm, most law firms do not purchase debts. They merely represent their clients. If the person making the statements in the affidavit claims to work for Cap1, it would be your burden of proof to show that he or she is not an employee of Cap1.
  8. The court will not dismiss right now because the plaintiff is not required to prove its claims right when it files the lawsuit.
  9. It’s not a conflict of interest. Notaries have nothing to do with the content of an affidavit. Their only duty is to confirm that the person who made the statements contained in the affidavit and the person who signs it are one and the same.
  10. I’m not from your state, so I’m not familiar with OH Rules of civil procedure. @MikeB35is from your state. Hopefully, he will show up. In the meantime, research your rules. Also, here’s some OH rulings for you to read. Perhaps the details and any similarities to the claims and evidence I your case will help you. “{¶ 21} We agree with Coleman that the trial court erred in granting summary judgment to Midland Funding. It failed to establish that Coleman's account was validly assigned to it, and it failed to establish the elements necessary to an action on an account.” https://scholar.google.com/scholar_case?case=5677334065293687189&q=“credit+card”+AND+“debt”+AND+“assignee”&hl=en&scisbd=2&as_sdt=4,36 ”We conclude that Portfolio Recovery's pleadings did not sufficiently establish that it was the assignee of the contract, or the amount due on the contract.” https://scholar.google.com/scholar_case?case=4838073542014658421&q=“credit+card”+AND+“debt”+AND+“assignee”&hl=en&scisbd=2&as_sdt=4,36 In the following ruling, the appeals court agreed with the debt buyer. The details as to why the court reached that decision are also important. https://scholar.google.com/scholar_case?case=12991935745589629245&q=“credit+card”+AND+“debt”+AND+“assignee”&hl=en&scisbd=2&as_sdt=4,36
  11. The count to which you are referring is not a count of the number of readers who have read your article. It is based upon “page views.” That is the number of times your article has been accessed and viewed. For instance, 10 people can access and view your article 10 times apiece. There will be 100 views but only 10 readers. In addition, each time you access your own article can be counted as a “view.”
  12. @rc123 Welcome to CIC! I’m sorry it’s under these circumstances. Unfortunately, arbitration is not available in your case because Cap1 removed the arbitration provision about 10 years ago. I take it that you copied the defenses from some site on the internet. They have been floating around the internet for years, but most of them are not applicable In your case. In fact, some of the defenses are incorrectly described. Unfortunately, some individuals still tout them as viable because they have done little to no research. They also fail to inform readers that that any defense you raise, you must prove. 2. Credit card agreements contain a statement that accounts can be sold/assigned They also state that your use of the card indicates your consent to the terms of the agreement. By using the card, you consented to the assignment of the account 3. Incorrect description. The description provided states that an agreement occurred between the original creditor (OC) and the debt buyer (JDB), and the OC received compensation for the debt. While that is true, it does not result in a defense of accord and satisfaction for you. The reason is because you were not a party to the sale of the debt and compensation to the OC. The only way you could claim that defense is if you had compensated the OC or the JDB via a settlement. In that case, you would be a party to the settlement. "An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract." Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993). 4. This is similar to the SOL. If the complaint was timely filed, this defense does not apply. 8. Statutes of Frauds requires the signature of the party who is to be charged. Credit card agreements do not require a signature. As the credit card statements reflect, defendant used the credit card and thus subjected himself to the cardmember agreement. Ohio Receivables, L.L.C. v. Dallariva,10th Dist. Franklin No. 11AP-951, 2012-Ohio-3165, ¶ 36. See, e.g., Calvary SPV I, L.L.C. v. Furtado, 10th Dist. No. 05AP-361, 2005-Ohio-6884, ¶ 18 (concluding that although the "cardholder agreement [did] not bear defendant's signature, the bank's issuance of the card and defendant's use of the card create[d] a binding contract"). 9. Scienti et volenti non fit injuria is an insurance claim. To date, none of the proponents of this defense have been able to provide any court precedent that shows it applies to the sale of a debt to a debt buyer. 10. Unclean hands means the plaintiff acted unfairly or unlawfully in some way, and it prevents it from bringing a claim against you. Well, it would be your burden to prove (not just claim) they committed unfair or unlawful acts. 11. The amount the JDB paid for the debt is irrelevant. Courts have ruled that assignees stand in the shoes of creditors and can claim the full amount owed on a debt. Under Ohio law, however, an assignee "stands in the shoes of the assignor and can obtain no greater rights against another than the assignor had." W. Broad Chiropractic v. Am. Family Ins., 10th Dist. No. 07AP-721, 2008-Ohio-2647, 2008 WL 2246653, ¶ 15, citing Citizens Fed. Bank, F.S.B. v. Brickler, 114 Ohio App.3d 401, 683 N.E.2d 358 (2d Dist.1996). 12. As previously stated, assignees stand in the shoes of creditors. You agreed to the sale of the account when you used the card. As a result, if the JDB can prove it purchased your account, there is an agreement between you and the JDB. 14. This defense means the other party did not fulfill its obligations. Since debt buyers stand in the shoes of the OCs, you would have to prove the OC failed to live up to its part of the credit card agreement. 15. Again, you agreed to the assignment of the account when you used the card. If the JDB proves it owns your account, you can “repudiate” the existence of a contract between you and the JDB. When arbitration is not available and a complaint has been timely filed, the best defense against a JDB is lack of standing to sue. If a JDB cannot prove it owns your account, it doesn’t have the right to sue you.
  13. If a defendant does not raise the SOL as a defense, it is considered waived. As a result, even if the debt is outside the SOL, the court can render a judgment against the defendant, and the judgment can be enforced.