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cybercrusader

Response from Collection Agent

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The CA responded to my request for validation with the following:

1) a copy of my credit report highlighting the debt in question

2) an Affidavit of Lost Instrument executed by the CA. (It says there is no signed contract but the debt is mine because I made payments on it and that I requested the account. It's not dated.

In addition, the letter says that courts will accept the Affidavit in lieu of a signed contract to be accepted as VERIFICATION of the debt (the letter I sent was clearly a VALIDATION letter).

The letter goes on with the usual settlement request and if I don't accept the settlement they'll continue with the same course of action (they've already filed suit). Blah, blah, if I appeal they'll sue for much, much, much more.

Obviously, they haven't validated a thing. No signature and no balance.

Your thoughts as in what's next?

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They've already filed suit and have, so far, failed to produce proper validation. If you get to court and they still haven't produced proper validation or don't have it with them, then you may still be able to beat them. You would need to be armed in court with the FTC opinion letters, applicable case law and the FDCPA sections to have any hope of fighting them. Small claims judges rarely know much about all this, WE have to educate them.

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<blockquote>Originally posted by LadynRed

They've already filed suit and have, so far, failed to produce proper validation. If you get to court and they still haven't produced proper validation or don't have it with them, then you may still be able to beat them. You would need to be armed in court with the FTC opinion letters, applicable case law and the FDCPA sections to have any hope of fighting them. Small claims judges rarely know much about all this, WE have to educate them.

</blockquote>

Thanks to the posts on this board, I'll be more than prepared. It's just that I have no idea about the Affidavit and what it can do. I never heard of it and couldn't find anything about it.

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<blockquote>Originally posted by cybercrusader

Thanks to the posts on this board, I'll be more than prepared. It's just that I have no idea about the Affidavit and what it can do. I never heard of it and couldn't find anything about it.

</blockquote>

Personally, I would consult a lawyer at this point. You need someone to advise you as to the legality of this. If you do this, it would be nice to have you post the response on this forum.

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I finally found some very interesting information regarding an Affidavit of Lost instrument. Those of you who are interested, you can find the case here:

http://www.courts.state.pa.us/opposting/superior/out/a01004_00.pdf

From what I read, apparently in some circumstances a CA doesn't have to provide a signed contract to proove or enforce a debt (at least in PA).

It appears that in order to use the affidavit, a CA must satisfy three requirements. Read the case and let me know what you think (it's short, about 6 pages).

C>

[Edit by cybercrusader on Tuesday, February 4, 2003 @ 03:32 PM]

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Affidavit of Lost Instrument, big deal. Doesn't mean squat.

Unless they have material evidence that ties you to the debt, they can blow. They're trying to satisfy their burden with the Affidavit and intimidate you. Now all you need to do is arm yourself with your knowledge, grasshopper.

They're trying to do a good job of reaching. This is what 95% of the CA's try to do. They try to posture and flex on you. Don't fall for it.

If they sued you, you MUST have been properly served. If not, attack the service and motion to dismiss will be granted if you can show that you were never properly served and you found out about this by surprise, mistake or inadvertence. Sounds like they never did. Might be a good idea to run down to the courthouse and get some copies of the court file if you have a court number on that Affidavit. If the court stamp ain't on it, it's not official. Another trick.

2nd you need to find out if they (CA) have standing by themselves in the court. Generally, most states have limitations on Joinder of Parties. A CA is an assignee and not the real party in interest, unless there's some instrument or provision of law that makes it so. Assignees have no cause of action alone in most states.

Here is an authority to argue for standing:

"The owner of a claim (debt) assigns part of the claim to another, the assignee cannot enforce the claim by himself because to do so would split the cause of action and subject the debtor to the possiblity of multiple acitons on a signle obligation." (Purcell v. Colonial Ins Co. 20 Cal. App. 3d 807, 814, 97 Cal. Rptr. 874, 878 0 1971). There are others but this one I cited in my case last year. Didn't really need it since State Law said they didn't have standing anyway. But the more the better. Makes the burden heavier for them and gets the judge on your side.

I doubt they have standing. These jerkoffs will probably try to file anyway since most courts don't ever look at the validity of the parties. It'll be up to you to raise the point. The CA should have filed an "Assignee of Record" form of some sort if they are planning to do anything in the courts.

3rd Arm yourself with the specific laws that they violated. You have the return receipts, fax transmittals, etc to show that your letters were delivered? You darn well have their response. Save the envelopes your are sent! The postmarks are a necessity to show time!

4th prepare your own civil suit merits for FDCPA violations. These are strict liability statutes which means that even though they didn't mean to violate them, they are automatically guilty of the violation by committing the violation. Sorta like a speeding ticket. If they do try to sue you (doubtful), then answer with a counter-suit in the same action stating your merits and what reliefs (money, etc) you want. If you don't ask, the court will not grant on their own unless law states so.

5th Write a follow-up letter stating their shortcomings. You can also throw in a little contract law. If you didn't tender any goods and they have no record (signed document) of you tendering any goods, then they got nada. What's the loss? Can the preponderance of the evidence show your liability in this matter? I'm sure it'll show their liability for violation the FDCPA. This can be used as an affirmative defense and argued at trial.

GET THE HINT?? This stuff's chess not checkers! No phone calls! No Settlements. Only deletion is acceptable and contigent on them signing an agreement that they will not sell the alleged debt or cause it to reappear on any of your credit reports in the future. If they refuse, sue their a&#036;&#036;.

GIVE EM' HELL!

Good Luck!

[Edit by IronMan on Friday, February 7, 2003 @ 02:36 AM]

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<blockquote>Originally posted by IronMan

Affidavit of Lost Instrument, big deal. Doesn't mean squat.

Unless they have material evidence that ties you to the debt, they can blow. They're trying to satisfy their burden with the Affidavit and intimidate you. Now all you need to do is arm yourself with your knowledge, grasshopper.

They're trying to do a good job of reaching. This is what 95% of the CA's try to do. They try to posture and flex on you. Don't fall for it.

GET THE HINT?? This stuff's chess not checkers! No phone calls! No Settlements. Only deletion is acceptable and contigent on them signing an agreement that they will not sell the alleged debt or cause it to reappear on any of your credit reports in the future. If they refuse, sue their a&#036;&#036;.

GIVE EM' HELL!

Good Luck!

</blockquote>

Thank you for your very informative post. That was excellent advice.

My day in court already happened. I am now waiting for the judge to render the verdict. Let me tell you that it was an absolute battle. The CA (plaintiff) did not expect such a vigorous defense from little ol' defendent me. The whole episode lasted for a nearly 2 hours!

I used alot of the information you alluded to in your post. I refuted (with case law and opinion letters) the affidavit (as hearsay) and the credit report (as highly inaccurate). As luck would have it, my credit report had a debt from the same OC that was absolutely not mine. According to the report, the debt was opened when I was 7 years old!

Anyway, to make a long story short, the affidavit was the basis of their entire case. If you read the case I quoted earlier, the Affidavit can only be executed by the party who actually had possession of the contract when it was lost (usually the OC or an assignee AFTER they take possession of it). THESE CLOWNS NEVER HAD THE CONTRACT SO HOW COULD THEY LOSE IT????? Additionally, the affidavit was on CA stationery and it was only signed by owners/employees of the CA. Highly suspect if you ask me.

Anyway, I will gladly offer more information once this whole thing is over because there are ALOT of issues here that EVERYBODY on this board needs to know. Like you suggested, these CA use intimidation tactics to try and manipulate you. Most people would have folded needlessly under these circumstances.

And just so you know, Monday morning I have an appointment with a consumer protection attorney. I am absolutely filing suit against these bozos for numerous FDCPA and state collection violations. It was suggested that I file suit outside of small claims court in a higher court. That's what's happening.....

And one more thing, the CA attorney made an angry statement in court that I am making a career out of filing validation letters with other CA for other debts. The intended reference was that I'm using validation to get out of paying my debts. I responded to the judge that Mr. So and So is clearly upset because, 1) they've finally encountered someone who knows their rights and 2) their whole case is based on hearsay and conjecture.

C>

[Edit by cybercrusader on Friday, February 7, 2003 @ 09:38 AM]

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Good work. I hope it goes your way. That affidavit thing always seemed shakey to me plus, being able to show an inaccuracy on the credit report ought to place the entire document in doubt.

You're wise to file in a higher court. I think small claims really lets 'em off the hook. There is a cap on the amount of money you can file for, they can likely be represented by a office manager. Filing in a higher court really will increase their cost. A lawyer will likely charge $200 plus/hour and the damages awarded can be much higher. You'll be able to sue for pain and suffering in addition to actual damages and statutory damages. Good move.

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<blockquote>Originally posted by bingo

Good work. I hope it goes your way. That affidavit thing always seemed shakey to me plus, being able to show an inaccuracy on the credit report ought to place the entire document in doubt.

You're wise to file in a higher court. I think small claims really lets 'em off the hook. There is a cap on the amount of money you can file for, they can likely be represented by a office manager. Filing in a higher court really will increase their cost. A lawyer will likely charge $200 plus/hour and the damages awarded can be much higher. You'll be able to sue for pain and suffering in addition to actual damages and statutory damages. Good move.

</blockquote>

Thanks for the kind words of support, but it's still in the hands of a non-attorney magistrate. However, if I lose, I will appeal it no doubt.

Also, a while back you led me in the direction of the Sprouse case. That was excellent because in court I showed how even the complaint itself violated 809 because it didn't contain the proper validation language.

Incidentally, my credit report contained a total of 14 inaccuracies including 4 accounts that belong to someone else. I inadvertantly admitted an excerpt of it as evidence and the attorney objected because it was an incomplete document. However, the snake was more than happy to provide the full credit report to the judge.

Of course, I was then cross-examined regarding the other derogetory info on the report, but my defense to that was either I never heard of the creditor or that the item was currently in dispute.

Thanks again.

C>

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Just curious but, did the magistrate get involved by asking their own questions or, did they just let you 2 go at it? 2 hours! I'll bet it's been a long time since anybody saw a 2 hour small claims case!

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<blockquote>Originally posted by bingo

Just curious but, did the magistrate get involved by asking their own questions or, did they just let you 2 go at it? 2 hours! I'll bet it's been a long time since anybody saw a 2 hour small claims case!

</blockquote>

The magistrate really asked no questions and pretty much just sat there listening taking notes and answering my procedural questions. The time was consumed by me reading excerpts from the case law I brought and the attorney cross examining me on virtually everything I said. I also asked for a few moments to read over the evidence the CA brought to court (which by the way, is FABULOUS findings for my upcoming suit).

The attorney also gave a windbag of a closing argument.

You should have seen how mad the folks waiting in the lobby were. Some said they never had to wait this long for the magistrate.

[Edit by cybercrusader on Friday, February 7, 2003 @ 11:57 AM]

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FAWESOME!!!!! That's what I'm talkin' about!

GOOD JOB!

=================

Sounds like the judge took the case under submission. Probably so he can have the authorities and your merits researched for him to make a ruling. Be advised, if there's anything else you can discover, submit it directly to the judge's clerk to have it delivered to the judge.

Nice work! About 90% of the time, these comissioners will let decisions stand or dismiss because they are afraid to decide. I hate that. That's OK, go to appeal or file in Superior as a limited civil case.

==================

For those of the newbies....

One thing about going to court in those instances where you are 'Pro-Per' or 'Pro-Se' (representing yourself, no atty):

As you can see from the above scenario, attorneys will argue BS points, and will try to distract the judge/jury from the main focus. It's up to you to remain focused on the issues and object to irrevlance, assumptions or conjecture. If you're lucky enough the judge will help you out in those types of instances. You can always ask to have the question rephrased because you don't understand either (you're not an attorney after all!). You can always answer matter-of-factly. Always keep your answers as short as possible. The less you elaborate, the better. Pisses them off!

Usually, your sheister attorneys will get get obviously emotional as you don't answer the way they expect. If they try to tie you down to a simple "YES" or "NO" and you need to elaborate your answer, say so! This will raise curiosity and opposing idiot will get frustrated enough to let you quantify your answer. The pros will always maintain their body language and be neutral in emotion--they're tougher, but no worries as long as you've got it clear in your head.

Never be afraid to refer to any of your notes or documents. If they complain or ask why, tell them that you want to answer accurately. There's no rule that says you can't use notes to answer accurately (you are undre Oath!) in court.

Their job is to tie you down to a specific and use it against you. Basically, jab your creditbility to make you look stupid.

I'd advise those of you who are able to, to sit in on some civil court proceedings if possible and see how and what goes on. This will give you an idea of what goes on and you won't be so damn nervous the first time. I sure as heck was, but wasn't so back cause I knew what to expect. Lemme tell ya, once you go through it and win, nothing will make you feel better.

A tip to save time --> When you go to court, I advise that you create and submit a simple "Opening Brief" to the court prior to your court day. I'll post a simple format to use on the Case section of the boards for everyone to refer to. You can serve sheister attorney with it on the day of court. The brief will organize all the facts and authorities for the judge and everyone else and becomes part of the record. If you need to appeal a ruling, use an "Appellants Brief"

HAPPY FILING!

[Edit by IronMan on Friday, February 7, 2003 @ 06:58 PM]

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Mr. IronMan...awesome insight and information.

I can't tell you how eager I am to file suit against this CA. In fact, I would pay to see the owner's face the day the papers get served. I know that it might sound arrogant, but you have no idea how pissed off I am that somebody would sue me in court with no evidence and without any prior contact whatsoever. I really believe that they tried to slip this one in.

Unfortunately for them, they just stepped on a rattlesnake's nest. Stay tuned......

ssssssssss

C>

[Edit by cybercrusader on Friday, February 7, 2003 @ 08:17 PM]

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No problem, glad to help.

You'd be surprised as to how much this goes on. They bank on people's ignorance of the laws and itimidation.

It's been said that a well-educated society is harder to control than a poorly educated one. Well, such is the way with consumers!

Cheers!

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FYI

I posted an example brief format in the Small Claims Results forum in case you don't know where to start on the road to litigation.

Cheers!

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Yes, great info again. I only wish I had it prior to my court appearance.

And the verdict is in: Judgement in favor of Plaintiff (CA)!

After all the caselaw and opinions I cited and the shadow of doubt I cast on the credit report and Affidavit, the traffic judge ruled against me. Of course I am immediately appealing the verdict and filing a seperate action.

I suppose this is why my attorney mentioned to me that I shouldn't even waste my time in small claims. They may have won this battle, but certainly not the war.

C>

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Sorry to hear of your misfortune. Did the magistrate give a reason or a one line letter with the verdict?

I believe you're wise to have shown up if you intend to appeal. I know state laws differ but I'd imagine an appeal is less time consuming than fighting to overturn a default then trying to get to a higher court. Good luck!

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<blockquote>Originally posted by bingo

Sorry to hear of your misfortune. Did the magistrate give a reason or a one line letter with the verdict?

I believe you're wise to have shown up if you intend to appeal. I know state laws differ but I'd imagine an appeal is less time consuming than fighting to overturn a default then trying to get to a higher court. Good luck!

</blockquote>

It was a one line letter stating that based on the evidence presented today, CLEARLY the plaintiff is entitled to recover.

Clearly? Go figure.

I am glad I went because by showing up I got more findings for my seperate suit. Trust me, I have doubts about the attorney. Monday is an appointment with a different cat.

C>

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SHHHHEEEEEEEOOOOOOTTTTTTT!!!!!! Sorry to hear that bro. What'd I tell ya.

Those panzy, no-neck, chisel-chested, twinkle-toed, asses must all come from the same school of dumb*hits.

You might have missed raising some key points for the judge to consider.

Well, the news is no surprise at least. Now you have to dig-in and muster your ammo to fight this on appeal. I think you have 10 days to appeal, so go ahead and file it.

My gut tells me now you'll have a different gameplan so you should win the day.

What to do now:

1- File appeal and attach a declaration that kinda summarizes your appeal in plain-english. I would make a statement sounding like, "....The Honorable Judge R. Dumass ignored the fact that Plaintiff was precluded from bringing forth this action under Nevada Civil Law Section xx.x(a)......"

Filing the declaration is less time consuming and supportive enough to your appeal on the calendar. This will buy you time to prep your brief and keep Joe Schmucko from enforcing collection. Doing your first one is so time-consuming. An attorney could cut the time down some.

Nevertheless, you should receive a notice of Appeal Trail De Novo. More work is definitely involved here because the decision for this is one is FINAL. Got to do it right.

Cheers!

[Edit by IronMan on Sunday, February 9, 2003 @ 12:09 AM]

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The decision against may be further ammo for the seperate action I'm beginning this week.

I don't think I left out any points. It's my opinion that the credit report sunk my ship that day. In retrospect I believe that I may have been tricked into admitting the credit report as evidence. While the report was their response to my request for validation (and stated in the accompanying letter) they never brought it up at the hearing. I should have just hammered the fact that they gave me NOTHING. Instead I pointed out the innacuracies in an excerpt of the report and they cross examined the entire report (and also gave the entire report to the judge). This may have tainted the judges opinion.

Anyway, I have 30 days to appeal. It's a done deal. I'm letting the attorneys handle it this time around. As I mentioned, I'm also filing a seperate action for FDCPA violations. This thing is far from over.

As you mentioned, I have no doubt that this was a little beyond the scope of the magistrate's comprehension. Think about this: Nothing in the documents submitted by CA to the court contained any identifying information to tie me to the debt. ABSOLUTELY NOTHING. No signature, no agreement, no charges, no copies of checks, nada, zip, zilch. Even their bill of sale (3 of them?) mentions nothing about me specifically (it only says that they purchased several accounts from OC). The only references to me were on CA stationery. As far as I'm concerned, they made the whole thing up.

It's clear that the judge used personal conviction and opinion instead of the facts to render the decision.

C>

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You're correct about the credit report. There is an FTC opinion letter that says pulling a credit report to prepare for a lawsuit is not a permissible purpose. So, they couldn't enter it as evidence but once you did, it was fair game.

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<blockquote>Originally posted by bingo

You're correct about the credit report. There is an FTC opinion letter that says pulling a credit report to prepare for a lawsuit is not a permissible purpose. So, they couldn't enter it as evidence but once you did, it was fair game.

</blockquote>

I suppose more reason to consult with an attorney if you're serious about winning. Do you have any idea how the report will affect the appeal?

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Got no idea. They have a PP to access your report in order to collect a debt. If they introduced it, I'd say they may well have a FCRA violation but since you did then, they had a right to use it in their case. Hopefully, the lawyer will have some ideas.

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Technically, I didn't introduce it. What I introduced was an excerpt (2 of 6 pages) and the attorney objected saying that it was an incomplete document. He offered the complete report to the judge. As far as I'm concerned my excerpt should have been dismissed.

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The attorney did a good job of diverting the judge. As much as I hate to say it, the bastard did a slick tactic.

But.....

You could have objected to the fact that your credit report is inadmissable as evidence on it's face. The facts being argued are not all the items in your credit report, just what they are reporting.

You could have backed it up by objecting, "Your honor, really, if I were to submit a copy of a statute relating to this case instead of the the entire chapter it was contain within, would that be an incomplete document as well? My credit report is my personal and private information and I do not wish the entire document becoming a part of the record unnecessarily. I wish to only submit this/these pages for the record."

It's their merits for bringing forth the MFSJ that are being argued. All the attorney did was point out all the derogs to bust your creditibility down.

Well, at least now you have legal help. You should be able to go forth and kick some butt.

Well, you've got your first appearance down. Welcome to the club!!! You've earned your CreditWar stripes. Now it's time for you to win and get your medal.

Good Luck and keep us posted.

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