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Posts posted by Coltfan1972

  1. Probably not a violation and if it was it would take a pretty creative argument, which I course we could pull off around here because we are the best at what we do.   However, what I would do is concentrate on just kicking Midland's a$$ in court, something that is done around here about as often as taking out the trash.   Plus the good news is it's Midland, there is a ton of time left for them to violate your rights on something that is a lot more slam dunk.   In other words an easier violation. 


    You did the right thing by basically telling that attorney to shove it where the sun does not shine.   The reason they said nothing in reply was because they know you were right.   I would start looking toward the discovery process and making this a lot of trouble for Midland (formally known as being a nightmare).   However, make sure you stay within the bounds of the rules of procedure and you don't try to show up the court or the judge.   Midland can usually make fools of themselves with very little assistance.   Just give them the rope and they will hang themselves, guaranteed. 


    Here is a good thread about demolishing Midland.  I'd start here and then come back with answers.   We pretty much know it all and are the best there is so really you can't ask us anything that we won't know the answer or at least be able to get the answer for you.   Plus we enjoy watching Midland going down to defeat at the hands of an unsophisicated credit info center consumer.  S





  2. You're basically on the right path about summary judgement.   Summary judgement is where the moving party (in this case them, the Plaintiff) basically says, Judge here are the undisputed facts where reasonable minds would not differ and this is so clear cut that a trial is not needed.  


    Where most people get tripped up is they try to win their case in their summary judgement reply.   If you have a strong defense that can be fine.   Generally speaking, in cases like this, that is not the case.   So what you want to do is argue there are material facts in question and a trial is needed.   You don't have to say I would win at trial, you just have to show there is a need for a trial. 


    You want to argue the facts are not so clear cut and a more formal and full blown trial is needed to get to the bottom of this.  Pick at their case and raise legit disputes, don't concede anything and dispute and fight every step of the way, but you can't just say I dispute and leave it at that.   You have to explain why, and I would recommend part of that explanation would require live witness testimony and/or some evidence that needs a trier of the facts (judge  or jury ) to hear all sides and get more details. 


    You basically have to show the court this is not a slam dunk and let's have a trail.   And again, that does not require that you show the court you can win your case.   You simply need to show the court there needs to be a trial and if 10 people looked at the evidence as it's presented in the motion for SJ that there would be several different conclusions drawn after examining that evidence, and those conclusions need a follow up, a trial. 

  3. Looks good as a start you probably need to brief the court on your position and list you authorities which you base your appeal.   For example, what rule of procedure you are relying on for your appeal and any other authority that supports the appeal.  I'm not talking about arguing your whole case, just an outline of the issues for the appeal and why you are entitled to what you are asking for. 


    Another example would be something like, per Oregon rule of procedure 555.5555 the Defendant is appealing from whatever court to this court.   You have it in your appeal where it says, if applicable.   Show the court why it's applicable what you're asking for.  

  4. The first thing you need to do is make sure you attack their motion for summary judgement against you.   I hate a$$ Acceptance but I can see where your request could be overly broad.   I know what you meant and they know what you meant but you did just make a pretty broad request.  Again, I know where you are going with this but you have to spoon feed those requests to the other side, especially if you are not limited in the amount of requests you can make.


    You need to be very specific about what you are asking for and if possible narrow down dates.   Just like we do, if there is any defect with your requests at all you are opening the door for them to play dumb and act confused.  


    I would recommend that you get down to business with finding material facts in dispute where a trier of the facts should order a trial to take place and where reasonable minds would differ as to those material facts which are in dispute.   It's almost a 100% guarantee if you beat their motion for summary judgement you have just beat them.   They don't have the evidence, generally speaking, and even if they can get it they don't want to spend the time and money to get it when they paid three cents on the dollar. 


    You knock them out on the MSJ and you most likely win this thing going away.   Concentrate on your MSJ right now. 

  5. I read yesterday where it was posted I was banned.   I'm not sure if it was a cooling off period and I am not banned or if there is a glitch.   If it's a glitch and I am banned then I apologize as I do not want to disrupt the board.  


    Not sure how long this post  will remain but I want to say a big THANK YOU to all of my friends on this board.   My personal email that many friends on this board have was packed shortly after it was reported that I was banned.   It was actually and onslaught of support and many shared stories of how I had helped them win.  One poster even said they are heading out of town to Disney Land and it's because of a JDB FDCPA settlement check on a case I helped him.


    Again, thank you.  I mean that.  If I am not banned then let's get down to business as I will be winning against the other sides motion and I've got the law and precedent on my side, and I want to continue to help others and make friends.  


    Thanks everybody and special thanks to:






    Debt Zapper


    That provided me support with legal references and tips on continuing to win.


    Thank You


    ::BigGun:: ::BigGun::

    • Like 5
  6. The bottom line is you need to make them prove their case.   Yes, if you have a true affirmative defense then of course you raise, if not, you sued me, I don't think you can meet your burden on each element of proof required.   That's a legit defense.   It's saying, prove your case without any help from me.  


    When somebody sues you there are certain elements of proof they must prove.  That's just the way it is on any case and it goes without saying and it also does not require the other party to point out the elements pre-trial and how they will attack them.   Any party suing has elements of proof they must meet and they are unspoken.   For example, if they sue you for 5K then one of the elements of proof is proving 5K is the balance due.   You don't have to tell the other side, I don't think you can prove I owe 5K as the balance.   It's unspoken, it's just what they have to do.   Let's say they prove 5K is the amount owed.   They have met that element of proof. 


    Then they have to prove standing (you owe it to the party suing you).  If they do that they have met another element of  proof.  If they can't, then their element they did prove, 5K owed, is now useless because they lose because they could not met the standing element of proof.    Again, it's unspoken that the party suing you has to prove they are the party that should be awarded the judgement.   


    Works that same in criminal court.   If you're charged with DWI, well an element of proof is proving you were driving.   If the state can't prove you were driving, then you blowing triple the legal limit is useless.  Yes, that proves the intoxication element but without the driving element there can be no DWI.   This is all unspoken also.  


    So don't get carried away with trying to be fancy with what you tell them.   There are only certain defenses they are entitled to know prior to trial.   All the other stuff are common elements of proof they have to meet and if they can't meet those elements of proof, they don't somehow get a free pass because you did not tell them you were going to dispute and fight them when they argued those elements.   They have to prove those elements because they are the Plaintiff.  

  7. Heather,


    I successfully argued a shorter statute of limitations for a credit card by arguing the open account via written contract.   It was in Arkansas.   It's a pretty technical argument that I made with a little set up in the discovery stage to set them up with some answers that I knew would help me with my argument. 


    Also, I argued it as a motion for summary judgement and not a motion to dismiss as I did not want to tip my hand with a motion to dismiss and I needed some of their discovery responses that I obviously did not have at the time.  


    Just FYI, it can be done. 

  8. Just say your defense is that you are not legally liable to the Plaintiff.   In other words you plead not guilty, not innocent, but not guilty as in they can meet their burden of proof.   You are not saying you do owe the money or not and to whom, you're saying that your position is the Plaintiff can't meet their burden with admissible evidence.   It's premature to speculate on what that evidence might be that you have to attack but it's not pre-mature to state that any evidence won't meet their burden of proof.


    It's like if the U.S.A. tells a country, go to war with us and you will lose because our military is the best in the world.  The U.S.A. is not going to describe all the ways we are going to annhiliate you if you go to war with us because it's irrelevant because any strategy you use will lose because we are more powerful.  


    In this case, you need to only get across that whatever the evidence or strategy you don't see any way the other side can meet their legal burden so you don't care what strategy they use.  


    It's like a told a collection attorney once when they approached me an offer to settle.  I said  not interested.  They said, but you have not even heard what we have to say.   I said, it's irrelevant because I'm going to win no matter what so whatever your offer is, even if it's one cent is rejected because I'm going to win.   


    I'm not saying you need to be that arrorgant but I'd just get it across to them that you don't have some fancy defense, you're just going to be the old fashioned way, making them actually meet their legal burden of proof, something you're betting they can't do no matter what strategy they try. 

  9. Or they can come over here and we will educate them for free including full case precedent cites, links to the cases where we have destroyed them when they did not think the law applied to them, and will generally provide one hundred times better information and all for free.   


    It's just what we do and we do it for free. 

    • Like 1
  10. they are deliberately misunderstanding it. Amazing.


    This is basically it.   Although not all conduct is judged as the LSC, most, espically what we talk about most on this board is.   


    For example, if you claim emotional distress, that's an actual damage and you have to show your emotional distress, not that the LSC would have emotional distress.   Basically most of the elements that trigger liability are judged using the LSC, much to the disappointment of the other side.   However, they love getting a LSC on the phone and driving them to the brink of suscide to squeeze out a payment, but the second the tables are turned they talk about how unfair it is.


    Look at the collectors board.  They love to talk about friviolus suits, yet they file thousands with the only hope of winning being a default.  They use the courts as an extension of their collection agency but when a consumer uses the courts they cry about how unfair it is the consumer is using the courts.  You throw on top a pro se litigant that does not have to worry about attorney fees for themselves and it turns into a full blown screaming and hollering tandrum.   


    Now don't get me wrong, I've run into attorney's that had no clue how the FDCPA worked.  They were just plain dumb, and not pretending not to know better, they really were just that plain dumb.  I went up against one lady that broke a heel stomping out of the courtroom she was so mad at losing a motion to compel.


    I was doing some research on court decisions and found this statement interesting. It was written by a Federal Judge that denied a debt collectors motion to dismiss.


    Finally, Defendant’s argument that there can be no violation because Plaintiff himself was

    not misled is of no consequence, as the Court has already stated that it must review these

    allegations pursuant to the “least sophisticated consumer” standard – not based on what
    Plaintiff knew or believed.
    Maybe you can use it!


    This is pretty much across the board, but can you cite the case if you have it.   I'm building an aersonal because that is what the other side is arguing against me, that I'm not unsophisicated and I baited them.


    It's a loser no doubt, but as you know, I don't like to win,  I want to annhiliate the other side.

  12. You guys and gals are truly awesome. I've never been a forum where I get this much help and advice.

    That's because this is the forum where the winners hang out and help each other.   We are simply the best there is and nobody is even a close second.   We're just better than the rest, we know it, and we are not afraid to let you know.   Just ask us if you don't believe us or try to beat us in court and see how it turns out for ya.  ::USA::

  13. This is a 100% complete do over.   There is not even a court reporter in the courtroom Jimmy was in.  The judge will just make a note like the trial started and the judgement.   The appeal paperwork will be one page and about five or six lines with the most basic of information there is.   In fact, Jimmy could have not even shown up for the trial and been awarded a default and he could appeal to circuit court from the court he just lost.   


    In fact, the judge will even tell the parties prior to trial (seen this many times while waiting on other stuff) :"please don't say to me, the other judge said this or they said this at the first trial, this is a brand new trial and nothing in the first trial matters"  


    Jimmy was in small claims (we call it district) and gets an appeal, with no appeal bond, to circuit and then the full rules of procedure along with discovery kick in.   The only requirement to be granted the appeal is if it's done within 30 days.  The appeal transcript (which is really just a piece of paper with the judgement on it) is only $5.00 and then the cost to appeal (I believe) is $165.00.  


    This is a true do over.  Now if he loses here and appeals, then it's the old fashioned appeal and all matters must have been preserved for appeal and you must have an appealable issue, etc..........     That appeal would go to the Arkansas Court of Appeals and the only court above that is the State Supreme.   




    With that said, that also means that their attorney fees ARE NOT capped and this is a true do over for them so if they win and attorney are able to be awarded it will be for actual reasonable hours.   That's why you can't lose when you use the strategy myself and others use.   It's high risk (well I don't think it is) high reward.  Generally you win it all or lose it, the only way I'd ever have it. 

  14. Art paged me at the Waffle House and said we had somebody with something about Midland and a judgement. 


    The others are right, this is just a scare tactic.   You filed your answer in time and now the process (game) has started.   You have to decide if you want to fight or cave.  You won't get anybody on this board telling you to give in to Midland, but you have to make your own decision on what's best for you.   However, Midland can be beat and it sounded like you wanted to fight them in your other thread.


    If so, then you need to get familiar with the rules of procedure.  In your other thread I told you after you filed your answer you had just bought yourself some time so you could start studying up, which you said you were going to do.  I hope you have been.  


    Now is the time to decide if you want to sign that judgement, which would make me barf my waffles, or fight.  If for some reason, personally, getting this over with and signing is for you then I guess do it, if not, then you need to start looking at discovery and continuing to read and study the board.


    The good thing about what they sent you is that there is no time frame on it.   I would not ignore it, but at least there is nothing that is going to happen if you do ignore it.   They are fishing for an easy win and this is the easiest of easiest if you sign.   This is just one small step harder work on them than a default but barely.   In fact this is actually better than a default because you can't come back later and say you never were served, so you would be making it easier on them than if you had not even spent all that stressful time answering the suit.

    • Like 1
  15. To coltfan, I can't afford a lawyer at all. Would Jams be a better option for that case?


    You have the same case it both forums.   Arbitration strategy is mostly based on costs to the other side.    It's not uncommon for the initial fees to start the arbitration being more than the debt itself.   With arbitration you're putting the creditor in a position to be throwing good money at bad (same for court in discovery). 


    Look at it this way.   JAMS is college football and Court is professional football (or the other way around, makes no difference).


    You don't play the football game exactly the same way with the exact same rules but it's pretty darn close.   Either way you'll have to learn a lot about football to know what's going on at either a pro or college game.  There are some differences with some plays and rules are allowed in college and not in pro and the other way around.    Same thing with Arb and Court.   Not exactly the same but you're going to have to have a good understanding of the big picture to be successful in either forum.  


    For example, if you want arbitration there are usually strict steps you have to take to get arbitration going.   They are laid out in the contract and the courts have also ruled on the issue.     With court there are rules of procedure to get the court process rolling and they differ from arbitration but you have to follow them (answering the lawsuit) to get the process going.  

  16. You ask me and I say don't do arbitration because you waive too many rights and you can beat a junk debt buyer easily in court, plus you have strict rules of procedure that have to be followed along with an appeals process.   I can direct you to numerous success stories using court and arbitration.  


    You ask Linda7 (she posts a ton on arb) and she will tell you all the advantages to taking them to JAMS and can direct you to numerous success stories using arbitration and not court.


    And guess who is right?  We both are.   I'm 100% with what I'd tell you and so is she.   So you have to make that decision for yourself.  


    You could not pay me to go the arb route and keep me out of a courtroom and those that go arb will tell you how wonderful it is not dealing with the courts or going to court.    Again, we are both 100% right.  


    Read carefully about both and then decide what is best for you.    A ton of the time they drop a case when arb is filed but they also do the same when an answer to a lawsuit is filed.   Then sometimes you run into ones that fight you tooth and nail and don't care if it's arb or court.  


    Only you can decide.   Ask ten on this board and most likely five will tell you arb and five will tell you stay in court.   For the amount they are suing you for, generally speaking, any type of aggressive defense in any forum usually has them tucking tail and running.  

    • Like 1
  17. I know some pro se TCPA litigants who have filed many suits against telemarketers.  Sometimes the telemarketers will say that they were enticed into making the telemarketing calls by "professional plaintiffs."  They never get far with that argument.


    The collection attorney, at my deposition, looked at me with anger and said, "You're a professional at this it"


    I said, yep, thanks for the compliment.  


    I mean is there defense really, well if we would have know this person was smart and not unsophisicated we would have never violated the law.   That's like telling a cop that if you would have known they were hiding behind that tree with the radar gun I would have never been dumb enough to drive 25 MPH over the limit right by you.  


    What the heck kind of logic are they trying to prove with this argument anyway?   I hope they use this at trial.  I can't wait to turn to the jury and ask the lawyer if what they are saying is there client only violates the rights of those they know they can get away with it against and are just mad because they got caught?

    • Like 1
  18. Thoughts?


    Just a few-


    “Courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” See, Connecticut Nat'l Bank v. Germain. 112 S. Ct. 1146, 1149 (1992).”


    The FDCPA is a strict liability statute and is to be liberally construed in favor of consumers to effect its purpose, See, Picht v. Jon R. Hawks, Ltd, 236 F.3d 446, 451 (8th Cir. 2001).


    The FDCPA enlists the efforts of sophisticated consumers to act as “private attorneys general” to aid their less sophisticated counterparts, who are unlikely themselves to bring suit nder the Act, but who are assumed by the Act to benefit from the deterrent effect of civil actions brought by others."  2nd Circuit Court of Appeals, Jacabson (Pro-se) V Healthcare Financial Services, 06-3147, 2007.


    "The purpose of the FDCPA is to `eliminate abusive debt collection practices by debt collectors,' and debt collectors are liable for failure to comply with `any provision' of the Act." See, Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006).


    Under the FDCPA, district courts are to employ and use the “unsophisticated-consumer” standard when analyzing FDCPA claims and whether conduct violates the FDCPA is to be determined by analyzing the conduct from the perspective of the least sophisticated consumer. See, Duffy v. Landberg, 215 F.3d 871, 873 (8th Cir. 2000); Peters v. General Service Bureau, Inc., 277 F. 3d 1051, 1055 (8th Cir. 2002); Freyermuth v. Credit Bureau Servs.,Inc., 248 F.3d 767, 771 (8th Cir. 2001) (quoting Duffy v. Landberg, 215 F.3d 871, 873 (8th Cir.2000); and Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317-318 (8th Cir.2004).


    “Impermissible practices include harassing, oppressive or abusive conduct; false, deceptive or misleading representations; and unfair or unconscionable collection methods, the case law on this issue focuses on the “debt collector's actions,” and whether an unsophisticated consumer would be harassed, misled or deceived by them.” See, Freyermuth v. Credit Bureau Services, Inc., 248 F3d 767, 771 (8th Cir. 2001).


    “No section of the FDCPA requires an inquiry into the worthiness of the debtor or purports to protect only deserving debtors. The FDCPA protects all consumers, from the gullible to the shrewd.” See, Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir. 1997).


    The focus is on the debt collector's conduct, not the consumer's. See, Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998).


    “It does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” See, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 393, 85 S. Ct. 1035, 13 L.Ed. 2D 904 (1965).


    Under the FDCPA, if the offending conduct is not unreasonable is not a defense. See, Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994).



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