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Does this seem suspicious? Please help!!


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Does this seem suspicious?

I have discovered that the Law Firm filing a suit on behalf of Creditor (listed as Plaintiff in Complaint) and as stated in the attached AFFIDAVIT that <Company Name> has agreed to collect debt owed for <Plaintiff>. I discovered that <Company Name> has the same address as the lawfirm who filed the law suit in my state, which seems suspicious. I checked my states website for registered businesses and that's how I discovered it.

I also noticed that on the Complaint the address listed for the Plaintiff <Creditor> is actually the address for <Company Name> in another state other than mine who has agreed to collect debt owed as per the AFFIDAVIT, which is strange, please help. I sense something is wrong here.

Please help!

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nothing wrong with a lawyer also being a JDB. Of, teh JDB has a lawyer on staff to collect for it. happens all the time.

Doesn't this constitute 'misrepresentation'? See below...

A CA can NOT be BOTH purchaser and 'assignee', its one or the other. I have found recently that misrepresenting their status as 'assignee' is actionable and there IS case law. In Gearing v. Check Brokerage Corp, the 7th Circuit found the following:

Quote:

A false and unintentional representation to collect a debt that was not owed to a party claiming subrogee status with respect to claims against a consumer violates the Fair Debt Collection Practices Act under 15 USC 1692e(2) and (10).

Per Daniel Edelman:

Quote:

A debt collector’s misrepresentation that it is an assignee is

actionable. Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000).

B.

C. Gearing also holds that misrepresentations are actionable regardless

of intent. 233 F.3d at 473. The "FDCPA is a strict liability statute," and "proof of

one violation is sufficient to support summary judgment for the plaintiff." Cacace

v. Lucas, 775 F. Supp. 502, 505 (D. Conn. 1990).

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nothing wrong with a lawyer also being a JDB. Of, teh JDB has a lawyer on staff to collect for it. happens all the time.

Doesn't this constitute 'misrepresentation'? See below...

A CA can NOT be BOTH purchaser and 'assignee', its one or the other. I have found recently that misrepresenting their status as 'assignee' is actionable and there IS case law. In Gearing v. Check Brokerage Corp, the 7th Circuit found the following:

Quote:

A false and unintentional representation to collect a debt that was not owed to a party claiming subrogee status with respect to claims against a consumer violates the Fair Debt Collection Practices Act under 15 USC 1692e(2) and (10).

Per Daniel Edelman:

Quote:

A debt collector’s misrepresentation that it is an assignee is

actionable. Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000).

B.

C. Gearing also holds that misrepresentations are actionable regardless

of intent. 233 F.3d at 473. The "FDCPA is a strict liability statute," and "proof of

one violation is sufficient to support summary judgment for the plaintiff." Cacace

v. Lucas, 775 F. Supp. 502, 505 (D. Conn. 1990).

That's good stuff! I agree - you can't be both.

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I thought the concern was that the CA and the lawyer were the same or related in some way. I do not think it is a violation for a lawyer to sue on behalf of a CA or JDB he owns. There is no deceit there.

If the problem is the ability of the CA to sue for an out of state creditor or JDB, then we have an issue. If the real party in interest isn't authorized to do business in your state and is using the in-state CA to pursue the lawsuit, I would vigorously defend. You do have a right to know its status and it may be an illegal arrangement.

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If the problem is the ability of the CA to sue for an out of state creditor or JDB, then we have an issue.

Yes, this is an issue where the CA is suing for an out of state creditor.

If the real party in interest isn't authorized to do business in your state and is using the in-state CA to pursue the lawsuit, I would vigorously defend.

Clarify “real party interest”? By that do you mean the Plaintiff identified in the Summons/Complaint? If not, how do you determine the “real party in interest”?

You do have a right to know its status and it may be an illegal arrangement.

Who are you referring to when you say “its status” in the above statement?

Lastly, how do you go about confirming the status to determine whether it is an illegal arrangement?

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I do not think it is a violation for a lawyer to sue on behalf of a CA or JDB he owns.

True. But the FDCPA specifically prohibits use of false names or the implication of false names.

In reality a lawyer who owns a JDB company and acts seperately from the JDB company to file suits is in fact acting as an individual debt collector according to the definition of the law. The lawyer becomes an assign of the JDB. Such a situation would require the lawyer to follow all the provisions of the FDCPA independantly of the JDB...so he would have to send notices and the mini-miranda and give the consumer 30 days to validate, etc. or be in violation of the law himself (or herself).

If the lawyer owns the JDB as a sole proprietorship and files suits as a seperate entity then he would be exposing himself to personal liability...an unlikely possibility. I don't see any lawyer debt collector owning a JDB/CA as a sole proprietorship because of that risk.

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  • 2 weeks later...

1. With regards to the Attorney and the CA having the same address, that is not at all uncommon. The attorney may serve as the registered agent of the CA. That is commonplace and there is nothing illegal about it. It just provides a registered address within the state.

2. Your original post is a bit unclear as to what is going on. Are we dealing with three entities here? Is the Plaintiff the OC or JDB? As I read your post, I gather this is the scenario, please correct me if I am misreading:

A. Plaintiff = OC or JDB

B. the CA filed an affidavit in support of the Complaint or as an exhibit to the Complaint.

C. If A & B are both true, there is no issue. There is nothing stopping the OC or JDB from suing in another state. Even if they did not have a registered agent in the state, all they would need to do is register after the fact and the suit goes forward.

If you are trying to make hay that the OC and the CA have the same address in another state you would need to prove that they are the same organization. You would have to show common ownership, common employees, common management and possibly a commingling of assets. If you don't show that, then you have nothing because they are different entities under the law.

As an example. You and I could own a CA and be assigned to collect the debt. Once we don't collect, a company owned solely by me or solely by you could buy the debt and sue as the successor in right to the OC. Unless the companies share employees or commingle funds or assets, basic corporate law says these are two different entities and they are.

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After reviewing a representation of the Affidavit, there is no JDB involved. The Plaintiff is an OC and a very well known bank. The CA in the affidavit is a company affiliated with the Bank as they are both owned by the same holding company.

The CA, in the affidavit alleges a contractual relationship with the OC to collect the debt.

Without reviewing the Complaint, I don't see any misrepresentation on the face of the Affidavit.

Sorry :(

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After reviewing a representation of the Affidavit, there is no JDB involved. The Plaintiff is an OC and a very well known bank. The CA in the affidavit is a company affiliated with the Bank as they are both owned by the same holding company.

The CA, in the affidavit alleges a contractual relationship with the OC to collect the debt.

Without reviewing the Complaint, I don't see any misrepresentation on the face of the Affidavit.

Sorry :(

Thanks BigLaw

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  • 2 months later...

A CA can NOT be BOTH purchaser and 'assignee', its one or the other. I have found recently that misrepresenting their status as 'assignee' is actionable and there IS case law. In Gearing v. Check Brokerage Corp, the 7th Circuit found the following:

Quote:

A false and unintentional representation to collect a debt that was not owed to a party claiming subrogee status with respect to claims against a consumer violates the Fair Debt Collection Practices Act under 15 USC 1692e(2) and (10).

Per Daniel Edelman:

Quote:

A debt collector’s misrepresentation that it is an assignee is

actionable. Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir. 2000).

B.

C. Gearing also holds that misrepresentations are actionable regardless

of intent. 233 F.3d at 473. The "FDCPA is a strict liability statute," and "proof of

one violation is sufficient to support summary judgment for the plaintiff." Cacace

v. Lucas, 775 F. Supp. 502, 505 (D. Conn. 1990).

an 'assignee' is a purchaser! if the CA was simply contracted to collect the debt, then they are not an 'assignee'. in legalease, they become an 'asignee' when they purchase the debt!

see here: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=257534

assign

1) v. to transfer to another person any asset such as real property or a valuable right such as a contract or promissory note. 2) n. the person (assignee) who receives a piece of property by purchase, gift or by will. The word often shows up in contracts and wills.

assignee

n. a person to whom property is transferred by sale or gift, particularly real property.

assignment

n. the act of transferring an interest in property or some right (such as contract benefits) to another. It is used commonly by lawyers, accountants, business people, title companies and others dealing with property.

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