daybyday

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daybyday last won the day on December 7 2010

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About daybyday

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  1. It almost seems to me that this is a new collection strategy to get an admission of debt. I have received 3 of these 1099c this week. They are from creditors with known inability to collect in court. 1 that I received was from an account that was dismissed by plaintiff in court (they have no signed application or agreement). Secondly, if these alleged debts contain late fees and hiked interest rate, unless there is a singed agreement, are normally excluded by the court in my State as excessive. At least in court you would be able to challenge these items and make the Plaintiff prove they are viable. Certainly, there is a mechanism within the tax code to challenge a 1099c? If not, I will begin to issue 1099c on each of these collectors for debt written off and take the bad debt write off on my 1040. To my knowledge, anyone can issue a 1099. If I have a contractor do repair work on the plumbing in one of my investment properties that amounts to over $600, i must issue a 1099.
  2. excellent point. We were served in Aug '10 finalized Jun '11
  3. Apparently you borrowed Linda's STICK Nice job, keep us posted! *
  4. Plaintiff's MSJ or Defendant's MSJ? Have you called the court clerk for clarification? *
  5. 22K alleged debt…….Plaintiff failed to prosecute……case DISSMISSED! I’ve read the court documents, nice job Massive! *
  6. Cali appears to have a little different rules than my state, so hopefully some of the more knowledgable from Cali will chime in. >1K is pretty small for the JDB to pursue, although it is not small to you and I. My proposal would be to bury them in paper work and see if they don't go away. First, don't grasp at straws to hope in defeating them. Second, set in you mind and then answer the court that you have no recollection or record of the alleged debt, therefore you deny the alleged debt is yours. (the burden of proof is upon the Plaintiff, don't give them anything to defeat you) Deny, Deny, Deny, if you admit the debt, you lose. Third, search through ADSOFT's threads. He appears to have a good handle on Cali statues. *
  7. I concur. It bites that they can charge off the account, take tax break on loss, take bailout money to cover their losses, borrow money from the Fed Reserve at 0.25% and still sue you to recover the alleged balance including late fee and attorney fees. And if they recover anything, its considered income that boosts their bottom line for the annual period reported, increasing their profit percentage, which increases their stock price, which increases their paycheck. The system is corrupt to the core and the common person is stuck with higher taxes, less services from the govt and the inability to play the credit game for 5 to 10 years. *
  8. My understanding is that Suit on Account was developed long before credit cards came into existence. Let’s say you have an open account with the local plumbing supply store for a couple of houses you are building. Your foreman orders up some toilets. They are delivered and installed. 30 days later you get the bill. You see that you were charged what seems to be an unusually high amount for the toilets. You pay the bill, less the amount charged for the toilets. You and the plumbing supply house are unable to resolve the difference on the price of the toilets. The plumbing supply house brings suit upon you for the balance due on the toilets, not the entire account. Thus, the Suit on Account and the lower burden of proof upon the Plaintiff when it comes to establishing the existence of a contract. But a CC company is not bringing a cause of action upon an individual portion of an account. They are bringing suit upon the entire account for the lower burden of proof. The CC company still has to establish fair and reasonable criteria to prevail in the cause of action. My question is how are they doing this? On the other hand, you have raised a point of contention for a defense that I had not considered. If you state usury interest rate is 9% and the CC company is charging 25% (because the state they are incorporated in has no maximum usury). Would the CC company need to prove that its interest and/or late fees for that matter, are fair and reasonable under Suit on Account theory of recovery? *
  9. Have been unable to locate a statue, thus the question. Caselaw that has challenged "fair and reasonable" end in favor of Defendant, as the fair and reasonable criteria is ruled silent in the case by the appealant court. *
  10. No, not account stated. Different criteria for submissible case. Account on Suit or Suit on Account requires that the alleged charges are "fair and reasonable". What proof would be legally suficient to meet the need for the Plaintiff to prove fair and reasonable? *
  11. So here is where you need to focus. You need to show there is a genuine issue as to the material facts presented by the Plaintiff. I would propose 2 affidavits to begin with. 1) Sworn Denial of Alleged debt - notorized. 2) Sworn Denial of being served documents by Plaintiff. Include in statement, no motion to compel by Plaintiff as prescribed by state statue and record of court appearance listed - notorized. *
  12. Lack Foundation. No legally sufficent proof they were produced at or near the time they are dated. Whether the documents supplied are copies of the original or computer generated printouts. Where the originals currently reside. While the seriatim recitals of the prerequisites encompassed in the state statue recognizing a business record as an exception to the hearsay rule may appear at first blush to be but talismanic formulas whose mere recitations at trial bring about a magical acceptance of a document into evidence, each statutory requirement, nevertheless, is grounded upon reason, verity and efficiency. It has been observed that simply because a record is in writing and part of a financial transaction, it is not automatically qualified as a business record under the Uniform Business Records as Evidence Law. The reason for recognizing a business record as an exception to the hearsay rules the presumptive verity of routine recording of business transactions done on a regular basis at times close to the transactions recorded. The foundation which warrants the presumption of verity must be laid to qualify the records for admission. -Discover Bank vs Kenneth Smith, MO SD30117 Furthermore, the affiant has provided no proof that they are an employee of the Plaintiff, when he/she became custodian of records, what their quailfications are to be a custodian of records, or whether they receive certified, sufficient ongoing training to maintain the position of being an expert witness for the Plaintiff. So again, even if the statements are recognized as sufficent by the court, where do they show "fair and reasonable charges"? *
  13. No, the charges the Plaintiff alleges were made. I have no recollection or record of the account alleged by the Plaintiff, therefore I deny this is my debt. *