mincog

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About mincog

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  1. Suppose I'm being sued by a jdb. All they have provided is a affidavit of business records, a generic cardholder agreement, a generic bill of sale and assignment, and part of ca redit card statement from the oc (which is missing the defendants address). With these documents alone I don't think they can possibly establish standing. Instead of asking them for all statements, and specific bill of sale info, etc and anything else they may have, would it be better to maybe simply create an admission that says "they have no other documents that support their petition other than what has been provided in the original petition". And then if they deny, request that they produce the docs. (They have in affect asked this same question of me.) The reason for this would be because I don't want them to provide anything else, as I think they will not be able to prove breach of contract or account stated (let alone standing) with the evidence they have provided thus far. If they try to add documents at trial, I can object to them because they were not provided in discovery.
  2. BV80: Here's the Texas Statute where there is no requirement that you DV them within 30 days (subchapter C): http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm I don't think you are being difficult. I posted on this board because I want folks to try and shoot holes in my idea, so I will have an idea if it is plausible. I appreciate the feedback; the tougher the better. Regarding getting slammed in court: even if I don't prevail, it is still worth it to me because perhaps they will simply settle by removing the account from my credit reports. As long as the court doesn't think my argument is ridiculous I should avoid being charged attorneys fees, right? So I don't think I have anything to lose.
  3. BV80: I did not send a dv. But in Texas I can send one at any time, and they have to respond or stop collecting. I plan to request info from them proving they owe the debt before I would file a suit and see what their response is. If they don't respond, or don't respond with adequate proof I go to court. The proof that they don't own the debt would be an affidavit from me stating that they didn't respond to my request for proof and that I do not owe them any money. I think once we got into court the burden would be on them to show that I owe them money, since they are the ones trying to collect and claiming I owe them money. It's sound like you are saying that the burden of proof regarding their ownership of the debt still falls on me because I would be the plaintiff. In this case, that seems strange. Assuming they really do not own the debt, either because their records are wrong or they are lying, and assuming I never even had any dealings with the OC, how would I go about proving that I don't owe them anything? There would be no paperwork in existence for me to produce as evidence. Bruno: Usury applies to credit cards in Texas (but unless they are based in Texas the law is trumped by federal law.)
  4. I don't think that acting like a punk deserves 30 days in a cage. I also don't think a judge should have the power to cage someone for 30 days because he unilaterally decided she was a punk. At the least a jury of her peers should be able to review the evidence and decide if she acted like a punk. Even if she was a punk, and even if she did deserve it, the bigger issue here is that a judge can wield that much power. What if you were behaving like a perfectly mature grown up and some corrupt judge unilaterallly decided you should be caged for 30 days? Think it couldn't happen? Maybe not in the courts you've been in, but some USA courts are so corrupt you would think you were in a third world country (not all courts have cameras).
  5. What I am trying to do here, is to be the plaintiff, yet successfully put the burden of proof on them to prove that the money is owed. The JDB is claiming I owe them money. Since the jdb is not a bank, and is not headquatered in Delaware, they can't just say "state usury law doesn't apply to us". They would need to prove that they are now the owners of a debt that still retains those characteristics, I would think.
  6. A generic agreement is readily available I'm sure. But would that and proving what state the OC is in be enough? Let's say they provided a generic agreement and a statement that the OC is in such and such state and so ususry does't apply due to federal law and made a motion to dismiss or summary judgment or whatever. Couldn't I then challenge them to prove I agreed to that contract with the OC and that they even validly own the debt? And then they'd have to cough up more paperwork or face a trial. The unfair part falls under item number 2 in the statute. They are attempting to collect interest that is "not legally chargeable to the consumer" It's prima facie not legally chargeable in Texas. They have to rebut that, don't they?
  7. She was laughing a little bit, probably nervous. She even apologized to him at one point for laughing when he thought it was inappropriate. He says bye. She says bye back to him in Spanish. He calls her back and doubles her bond. A judge shouldn't be doubling bond because he doesn't like a person mannerisms or demeanor. She was kind of strange and not too bright. But the judge doesn't need to be doubling her bond for that. He was on a power trip. This ticked her off and she spoke inappropriately. But that's no reason to cage someone for 30 days. The judge does need to maintain the decorum of his courtroom, but that starts with him. He shouldn't be changing bonds and such because he doesn't like someone's attitude.
  8. The interest rate is higher than the Texas maximum which would make it usury. Now I understand that the federal law for credit cards preempts this. But Prima facie they are breaking the Texas usury law. So when I sue them, wouldn't the burden of proof of a valid credit card contract based in another state with appopriate chain of title, etc. now fall on them? (which they probably can't prove, since they are a dumb JDB and especially since the sol is up).
  9. Texas, under it's state version of the debt collection act allows as a remedy for violations of it's rules the ability to sue for "actual damages". What could one claim as "actual damages" when the jdb violates the law by "attempting to collect interest" that is not "expressly authorized by the agreement? I have proof from multiple mailings that the JDB is adding about 21% interest per year to the balance of the alleged debt. I would like to sue them for this, but I don't know what actual damages would arise from them jacking up the amount allegedly owed. Any ideas? Here is the law they borke: Texas Fair Debt Collection Practices Act § 392.303. UNFAIR OR UNCONSCIONABLE MEANS. (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices: (2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest or incidental charge, fee, or expense is expressly authorized by the agreement creating the obligation or legally chargeable to the consumer; or
  10. Ask for a confdentiality agreement. Then if the tradeline shows up on your credit report dispute it, and if they confirm it to the credit bureau they either are reporting false info or they just broke the agreement. Either way you can then sue them again.
  11. In the small claims court I was in, in a pro se case, the judge would take anything the defendant said and if there was even a hint of an intent to make a proper argument, he would allow it regardless of whether it followed the technicalities. If one were to generally deny the requests for admission, the judge would assume you meant to specifically deny each one, and act accordingly. He did not throw the defendant under the bus because he didn't follow every jot and tittle of the procedure. That being said, I would still follow the rules of your jurisdiction (which is why I prefaced my comment with "If your state allows"). And don't blindly rely on adivce from anyone, even if they are a poster with such vast experience as 26 posts. Every court and every judge is different. I've seen cases where everything is "right" and you still lose. Many courts (even the appeals courts) in the USA are corrupt. If you are in a corrupt court, following much of the (otherwise good) advice here could cost you dearly. I recommend observing the actual court you are going to be in, with the acutal judge you'll be seeing, and if possible watch some contested credit card cases (both pro se and those with an attorney). That way you can get some idea of what you are actually dealing with.
  12. If your state allows general denials, just give a general denial. Forget about answering each and every stupid request for admission.
  13. Check out this Texas case law regarding challenging 3rd party business records: http://scholar.google.com/scholar_case?case=10612691797526674821&q=dodeka++campos&hl=en&as_sdt=4,44&as_ylo=2012 Here is the relevant excerpt: "Finally, Campos [debtor] contends the [OC] records themselves are untrustworthy. However, we note that the creator of the documents, Chase, must keep careful records of its customer's accounts, otherwise its "business would greatly suffer or even fail." Id. at 244 (quoting Harris v. State, 846 S.W.2d 960, 964 (Tex.App.-Houston [1st Dist.] 1993, writ ref'd)). Furthermore, if Chase failed to keep accurate records, it could face criminal or civil penalties. Id.; see also TEX. FIN.CODE ANN. § 392.304(a)(8) (West 2006) (prohibiting consumer debt misrepresentation); TEX. FIN.CODE § 392.402 (providing criminal penalties for violations of Chapter 392 of the Texas Finance Code). We believe these circumstances lend support to Dodeka's [JDB] claim that the Chase documents are trustworthy." Am I reading this wrong, or is this court basically saying that a JDB doesn't need to establish the reliabiltiy of the original records; they are simply assumed to be reliable (and somehow magically not hearsay) because the OC wants to make money and can get in trouble if they lie? Here was the argument the debtor made: "Campos contends Chaffin did not have sufficient personal knowledge to attest to Chase's business records because Dodeka is a third party who purchased the account and was not the original author of the documents. Further, Campos argues that Chaffin is not qualified to testify about Chase's documents because she did not indicate that she or anyone from Dodeka knew of the events or conditions recorded in Chase's records or had knowledge of the manner in which Chase prepared the documents" Apparently, according to this court it doesn't matter that there was no personal knowlegde of the records when they were created; Chase's records are assumed to be trustworthy becasue they could "face penalties" otherwise. (This is especially ironic that this is Chase who is assumed to be trustworthy; see the affidavit to the government given by former Chase employee Linda Almonte.) What's especially galling about this is that they overturned the trial courts ruling. Since it was an apeal, they said "We will uphold the trial court's ruling on the exclusion of evidence if there is any legitimate basis for the ruling". So basically they are saying that the fact that there is no one that can attest to the veracity of the oc's documents is not a legitamate basis to exclude evidence. This new interpreation of the business records hearsay exception seems insane to me. The JDB afiidavit I received in my lawsuit includes almost the exact language from this case as to why the OC's records are reliable ("reliable because OC is required to keep good records by law and/or suffer busines loss"). I hope I am missing something, because this ruling seems to make it harder to exclude OC docs in Texas.
  14. Well I have been sued, (thankfully by a jdb) so the question is moot. But since I have not been served yet, I think I will DV them (so I can add something else to my counterclaims.) (Texas DV doesn't have a 30 day restriction.) I'll start a new thread with some questions.
  15. I have about a dozen alleged defaulted cc accounts, ranging from $1000 - $20,000 each. They will all be outside of the SOL in December and January. None have sued yet (I verified this by calling the different courthouses.) All of them are JDBs except Discover. I am ready to fight any of the jdb's if they sue, and if they don't I will collect violations on them and sue them myself (after sol). (Discover is the only one that gives me pause; I really hope they don't sue before SOL.) In all of this time; I have only answered one of them (I called them back and recorded the conversation, collecting violations). The only way they even know I am alive is that I have a timely mortgage payment on my credit report. I (obviously) would really like the SOL to run out before they sue me. My question is this: Should I keep ignoring them for the last month or two waiting for SOL to run out? Or should I call them up and start talking settlement with them (never admitting to any debt of course) in order to string them along until after the SOL? How close has it been to the SOL when any of you folks in Texas have been sued?