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grantjeffries

**A Question for the Lawyers**

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Cybercrusader referred to these links in another post regarding what creditors use to constitute "proof" of an alleged debt in court. Here is the part that I am wondering about:

Credit Card Grantors - Use the Truth In Lending Act To Your Advantage.

Drafting the complaint

When drafting the complaint, most attorneys plead a theory of breach of contract. By choosing this course, a debtor can defeat a motion for summary judgment by alleging that no signed agreement has been provided by the creditor. An alternative method is to argue that the plaintiff agreed to permit the defendant to make purchases on credit or obtain cash advances by using its credit card, to be repaid in installments. In short, the plaintiff advanced monies to the defendant and the defendant defaulted by failing to repay said moneys.

Here is the entire article:

http://www.narca.org/Newsletter/2003/1stquarter/grantors.asp

As a question of law, isn't a credit card account different than an installment loan? I am sure that as a layperson I am missing something but from what I have read it appears that they are trying to call a credit card agreement something that it is not due to their lack of proof. If this is so please set the record straight and let us know if is there a defense that can point this out.

The first article seemed to be specifically for credit card grantors which I am assuming means the OC. Here is another article in the same newsletter that points out the challenges of collecting on purchased debt. Is there a way to reconcile these two seemingly conflicting views?

Challenges for Collecting Purchased Debt

Alternatively, if the debtor refuses to sign such a statement, the purchaser could send monthly statements which, if not objected to by the debtor, might be introduced by way of the purchasing plaintiff's affidavit, indicating that no objection had been made to the statements of account. Therefore, the debtors are estopped from denying the existence of the balance.

Absent a willingness by debt sellers to sign a business records affidavit as to the origination and sale of the account, or a novation by the purchasing plaintiff of the original debt, lawyers will be increasingly hard pressed to obtain judgments for legitimate debts purchased by debt buyers. If purchasing plaintiffs wish to continue to be able to use the court system to enforce their purchased debt, it is going to be increasingly necessary for documentation to be readily available for their counsel and the courts.

http://www.narca.org/Newsletter/2003/1stquarter/challenges.asp

Should this be considered a warning to dispute the validity of a debt should monthly statements being to arrive from debt collectors?

Thanks,

Grant

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In my opinion they are trying any means to get judgement or payment of alleged debt. The TILA clearly spells out the definition of open end credit and credit cards. In the second article, they give us the answer. Dispute the account cmrrr and keep paper trail. They are counting on you to ignore their letters and hope they go away, and they will use this against you. Calawyer posted a great tip on affidavits used in court. The law allows you to ask questions of witnesses, and this could be considered hearsay evidence (I hope I interpreted his post correctly).

They are doing the same thing we do here. If they don't respond to DV, we use that against them. We study the FDCPA and FCRA to gain leverage over them. When we go to court, sometimes we have to educate the judge on these laws. They are attempting the same things, hoping they get a judge to agree, or a consumer who does not know the law. This is their way of trying to collect without validation.

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Just for the record, those articles were posted by bingo. I simply had them bookmarked.

I think the articles are proof positive that CA's as well as OC's are having a difficult time trying to get judgments against debtors without legitimate proof. The affidavits they talk about are attempts to circumvent the real evidence they need to win. Affidavits merely ask the court to make assumptions. As we all know you need a preponderance of evidence to win.

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Bump

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This is what we were discussing in the thread Pale Rider mentioned. When a CA sues on debt that it purchsed, it is sometimes very difficult for it to prove many of the basic facts surrounding the debt for the very simple reason that it wasn't a party to the transaction. Often the OC won't cooperate by providing witnesses or necessary documents. What they really hope is that the debtor ignores the lawsuit and a default judgment is entered.

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