statute of frauds question

[Strawberry Bird]

Can someone explain to me (in simpleton terms ) how you would prove or Why the Statute of Frauds is an Affirmative Defense suit that is brought by a JDB who bought a CC bad debt.? . Thanks much..

ALSO, -- I am amending my answer, affirm defense -- is it necessary to list:

Failure to state a claim, insufficiency of process, insufficiency of service, and no personal jurisdiction, or can I just reserve the right on these?

Thanks

[IHateCAs]

Statute of Frauds is irrelevant on a suit for a credit card debt.

Statute of Frauds governs the following types of transactions.

1) Purchase of real estate

2) Agreement to pay someone else's debt

3) Contracts which don't go into effect for over a year

4) Contract for sale of goods over a certain price

What the statute of Frauds says, is that if you are entering a contract with one of the above conditions, it MUST be in writing. You cannot have an oral contract to assume responsibility for someone else's debt for instance.

It has nothing to do with suits to recover balances on credit cards 99.99999999999999% of the time.

I have no idea where the idea started that SoF was a relevant AD to a collection suit.

[IHateCAs]

The only time Statute of Frauds ever needs to be discussed on consumer credit boards like these would be in two scenarios.

1) Someone is trying to hold you liable on a CC that you were only an AU for.

2) Someone is trying to hold you liable for business debts (assuming an actual incorporation. You ARE responsible for business debts formed under a sole propietorship or partnership).

In all my years of being on consumer credit boards, I've seen maybe one person who had a problem with the former and a handful for the latter.

It's not something that will apply in the vast majority of cases. If you are being sued by a JDB, you need to work the assignment and evidentiary defense strategy.

[Strawberry Bird]

okay thank. when you see the stuff on these boards regarding Affirm Defenses, they seem to all list that, so I was wondering how you would prove it. So it is't something I would worry about, I guess.

Thanks for the response.

SB

[IHateCAs]

okay thank. when you see the stuff on these boards regarding Affirm Defenses, they seem to all list that, so I was wondering how you would prove it. So it is't something I would worry about, I guess.

Thanks for the response.

SB

Like I said earlier, you need to concentrate on proper assignment and evidence. IIRC you're being sued by a JDB. They cannot introduce another businesses records and testify to their accuracy. They also must show a proper chain of title from the OC to themselves. If the debt was assigned to from OC to JDB to JDB to them, they must show a proper link between them all. They can't say they are the assignee of Citibank, for instance, and produce an assignment agreement that assigned the debt from JDB1 to JDB2. It must be proven that OC properly assigned the debt to JDB1 and JDB1 properly assigned it to JDB2, etc.

[Strawberry Bird]

Thank you so much. I have read that in a couple of places but it finally just snapped in my brain. I have been looking thru the AZ Statutes for what constitutes a proper assignment, and perhaps I am just haven't found it yet, or could be I am reading right over it.. any idea what area of the Statutes I should look at?

And how do I know if they are showing a proper chain or not.. Here is what I do know about this particular debt...

It was owned by OC and Metris (I think they were one in the same), then purchased after charge off -- w/i days -- by { Worldwi de Purc hasing a$$ ets }, within a couple of weeks they were purchased by the JDB I am dealing with Ca Cv of Coldarado.. During the last 3 years they have passed it to at least 4 of their hired gun lawyers.

Your insight is much appreciated and helpful. Oh, what is IIRC mean?

SB

[buffalomike]

Hello and how is everyone, My screen name is Buffalorocks05@aol and I have a good ? for you all and I am wondering what I should do step by step and if someone can please help me.

Ok here it goes, I had a old bank account and it went overdrawn alittle over a year and a half ago maybe 2 years now, well NCO of course of all companies bought the debt from another CA and now NCO has been calling my grandparents and harassing them, My grandparents are a 3rd party because I do not live with them and I also have a different address as well.

My grandparents ask them kindly to stop calling there home and they have continued to call and harass them for me to pay a debt, they have told NCO on several phone convo's i no longer live there and to stop calling.

I have learned that also the person from NCO that made the phone call to my grandparents also stated that they were from NCO and that they were calling in regards to a old debt i have placed with them and that its due immediately to avoid any other actions and they left a name and number for me to return there phone call, well even though i called the guy back and let him know that he has violated the fdcpa they didnt care and all they wanted was there money.

Well so know i need to know what steps to take to get the ball rolling and get them off my back, I am not sure exactly what steps to following but have an idea but would like some feedback and some help if possible.

I was told to do a VOD as well as a Intent to sue for violations of the FDCPA and was wondering what to do and what type of letters, if someone can forward me some letters to redo on my own i would greatly appreaciate that as well and thanks again.

[Strawberry Bird]

You should post this as a new thread to get better response.. but search these boards for "DV letter" or "VOD letter" add a limited communcation clause also. .. Do not put a hand signature on the letter, just typed.

Then search for ITS letters. You will need to study the FDCPA to find the violations.

Make sure you do them separately. Send the VOD and then send the ITS

[nascar]

Statute of Frauds governs the following types of transactions.

1) Purchase of real estate

2) Agreement to pay someone else's debt

3) Contracts which don't go into effect for over a year.

4) Contract for sale of goods over a certain price.

1)Contracts to pay the debt of another.

2)Contracts for the sale of land.

3)Contract for sale of goods exceeding $500.00

4)Contract for sale of stocks/bonds.

5)Prenuptual/Antenuptual agreements

6)Contracts based upon testamentary transactions.

7)Contracts that cannot be perfomed within one year from creation of contract.

[nascar]

Statute of Frauds scenario for collection of debt.

Go to your local hometown appliance store and buy a washer and dryer for $1500.00. You pay over time, say 24 months using their in-house financing program. For whatever reason, you never finish paying off the debt. A couple of years roll by, the applicance store used a factoring company to cut its losses; the account has been tossed around to CAs two or three times; finally, some JDB gets hold of it.

Does Statute of Frauds apply here? Yes, it does. Why?

[IHateCAs]

Statute of Frauds scenario for collection of debt.

Go to your local hometown appliance store and buy a washer and dryer for $1500.00. You pay over time, say 24 months using their in-house financing program. For whatever reason, you never finish paying off the debt. A couple of years roll by, the applicance store used a factoring company to cut its losses; the account has been tossed around to CAs two or three times; finally, some JDB gets hold of it.

Does Statute of Frauds apply here? Yes, it does. Why?

One thing I should have mentioned and didn't... Statute of Frauds varies a bit from state to state. Georgia has no contract for sale of goods over $x provision. Although it does have a "commitment to lend money" provision.

To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him:

(1) A promise by an executor, administrator, guardian, or trustee to answer damages out of his own estate;

(2) A promise to answer for the debt, default, or miscarriage of another;

(3) Any agreement made upon consideration of marriage, except marriage articles as provided in Article 3 of Chapter 3 of Title 19;

(4) Any contract for sale of lands, or any interest in, or concerning lands;

(5) Any agreement that is not to be performed within one year from the making thereof;

(6) Any promise to revive a debt barred by a statute of limitation; and

(7) Any commitment to lend money.

[Strawberry Bird]

Statute of Frauds scenario for collection of debt.

Go to your local hometown appliance store and buy a washer and dryer for $1500.00. You pay over time, say 24 months using their in-house financing program. For whatever reason, you never finish paying off the debt. A couple of years roll by, the applicance store used a factoring company to cut its losses; the account has been tossed around to CAs two or three times; finally, some JDB gets hold of it.

Does Statute of Frauds apply here? Yes, it does. Why?

Because of 3,6 and 7 in your SoF?

But SoF doesn't apply if it is a CC that is defaulted then charged off and sold to a couple of JDB's right?

Thanks

[nascar]

But SoF doesn't apply if it is a CC that is defaulted then charged off and sold to a couple of JDB's right?

Well, yes and no. The fact that it's a credit card agreement doesn't necessarily exempt that contract from having to comply with Statue of Frauds, but use of the card amounts to a "confirming memorandum" which effectively places the agreement into per se compliance with the SOF, so non conformance is no longer a viable defense. Performance under the terms of the contract also precludes you from using SOF as a defense.

[Big Time]

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=266157&highlight=%22statute+frauds%22

per this thread and from what I've seen online, some Lawyers do use SOF as affirmative defenses with JDB's.

[nascar]

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=266157&highlight=%22statute+frauds%22

per this thread and from what I've seen online, some Lawyers do use SOF as affirmative defenses with JDB's.

That's a typo. Pretty sure he meant Statute of Limitations.