HELP Texaslawyer and Calawyer: ASSIGNMENT

[ADSOFT]

I found this on another board, and I wanted to post this in the COLLECTIONS and DEBT VALIDATION sections for new members and those DVing CA'S:

Can you guys critique this excerpt. I agree with everthing expect where it says that.

I was under the impression as long as there is an assigment clause the CREDITOR can sell the debt and or transfer the rights to another party.

"Case law tells us that even though a creditor can legally assign an account to a collector, it is not enforceable unless the debtor agrees to the assignment.".... (That is the only sentence I disagree with???)

Here is some information that I got from another site.

With regards to assignments: "Case law tells us that even though a creditor can legally assign an account to a collector, it is not enforceable unless the debtor agrees to the assignment. The collector has no standing to collect without your consent. The agreement can be established by making a payment to the collector. This is called "consideration."

In order for you to be obligated to any assignee, you must have derived some benefit from the assignee, or paid a bill to them, or signed a new written agreement (a novation). You must agree to the assignment or it is not enforceable.

The affirmative defenses include "accord and satisfaction," "statute of frauds (no contract in writing)," and "failure of consideration," for most of these types of cases. These defenses are to be used when the "debtor" is sued by one of the assignees (it doesn't matter if the original creditor ends up as one of the assignees).

The first is "failure of consideration" which means, there is no evidence that an agreement was made, no payment, no exchange of any benefit or detriment to any party.

The second is "statute of frauds" which means there is no contract in writing between the parties. Because the original creditor never actually named the new collector as an assignee in the credit agreement, the assignee can never be a party to that agreement unless permitted by both the debtor and creditor.

The third used is "accord and satisfaction" which means the debt has been satisfied in full. The analogy is if you owed your neighbor $100 and a friend paid the debt for you and your neighbor accepted $75 in satisfaction of the debt, neither your friend nor your neighbor can sue you for the $25 because they accepted another amount in lieu of the original debt. It can also be called a "novation." This also happens because of an assignment. If a debt is assigned to a third party collector, it is no longer legally enforceable because the creditor has waived his standing or rights to collect. The same applies to the third party collector. No one can put himself in harms way (incur a debt knowingly and voluntarily) and then expect to be awarded damages for his losses.

In any case, these defenses don't need to be spelled out when addressing a collector (not the creditor) with a request for validation. The statute takes care of all that for you. Keep it simple. Most of these cases are won, in my opinion, because of the collector's poor record keeping and the incompetence of collector employees. I always recommend that you don't discuss a collection with anyone over the phone, but request that all correspondence about the dispute be done in writing. Always get the name, phone number and company name from the caller and tell them not to call you anymore. If they do,they can be fined by the FTC.

The credit history is another project. You can legally force the collectors and bureaus to remove those items, for the same reasons an assignee collector cannot enforce any collection. You may not be able to do the same with the orginal creditors unless you can prove they repudiated the debts or that there was some accord and satisfaction in the form of an insurance claim or write-off, as a consequence of the assignment."

I think everything above is true if there is NO assignability clause. Is that true???

[Guest]

I was told by the lawyer who has been helping me that a contract can be assigned or bought from someone else at any time and I dont get much say at all in the matter.

Im in Indiana so maybe it goes by state?

[ADSOFT]

I was told by the lawyer who has been helping me that a contract can be assigned or bought from someone else at any time and I dont get much say at all in the matter.

Im in Indiana so maybe it goes by state?

It can but it doesn't mean they have the right to collect on it; Enforce it.

[calawyer]

If I really cared to know the answer, I would not rely on generalizations about assignment but I would look up my state's law.

[admin]

calawyer - you're too funny!

[ghacorp]

That passage of law is probably correct with respect to most states, however when lawsuits are initiated on behalf of the OC, the OC usually has an employee in the court room with validation of the debt. Debt purchasers on the other hand, cannot usually validate, nor produce a representative of the OC in court. Debtors often lose in any situation because they fail to contest or show up in court.

[calawyer]

calawyer - you're too funny!

I hope is was taken that way. I didn't mean to offend, it is just that this is a somewhat complicated area of law and there are lots of cases interpreting the rules of each state. While some generalizations are possible (such as the law generally favors assignment), it would be a mistake to rely on generalizations if, for example, you were about to address the Court on this issue or even the opposing party.

[chingasaholo]

forgot to thank you some time ago for advice on a judgement on wifes CR. We did eventually get it off completely, funny thing though...when the attorney that I "hired" (he worked for free, friend of family) contacted the creditor in Virginia. The collection arm of the store called themselves "the legal dept", so my attorney asked for head legal counsel. Of course they didnt havent any so he gave them the riot act about impersonating attorneys, etc....so eventually they put on a supervisor who was only too happy to settle with my attorney......for less than 1/3 the amount of the original judgement!! the original amount: 2600.00, what we paid: 565.00...what a bargain!! and they were so nice to my attorney that they ran down to the court the next day and had the judgement dismissed and the paper work faxed to my attorney. it's like it never happened. I wanted to pay the attorney, but he wouldnt let me since he said it only too a few minutes of his time......I faxed those papers to equifax and the judgment came off my wifes report in about a week.

btw.....the online law school i'm going to (concord law) had it's first students pass the CA bar a few months ago (you might have heard of it) I'm in my first year now and I still like it, It's alot of reading and studying. I figured a computer guy could use some legal training

[calawyer]

Ching:

Haven't heard from you in a while. Congrats on the judgment and super congrats on law school. It is a lot of work but I think you will fing it very useful no matter what you end up doing.

Pound those books!