MadinKS

If DV fails....

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Thought I might share a possible, and different, approach to the DV process.

In KS, the consumer protection statute provides for notification of assignment when a consumer's account is no longer w/OC. Granted, all they need to do is provide notification, but if they ignore that written request, you are covered when it comes to lawsuit. If the OC refuses to take payment, you simply sit on the debt until you get what you want; the proper notification of assignment. If you can prove you made an effort to find out about assignment of the debt, and they didn't respond, that's a slap across the face of the JDB/CA in court. I think this would throw a wrench in the gears for a JDB/CA that purchases old debt. If DV fails, fall back to CP statute if your state has one. I'm thinking that, if Kansas has this provision, then surely other states may have some form of it. This is just and effort to get people to explore all their options and not get stuck on the narrow mindset that DV is the only way. If you can find a different angle to keep your money, why not?

Chapter 16a.--CONSUMER CREDIT CODE

Part 2 DISCLOSURES

Article 3.--REGULATION OF AGREEMENTS AND PRACTICES

16a-3-203. (UCCC) Notice of assignment. The consumer is authorized to pay the original creditor until he receives notification of assignment of rights to payment pursuant to a consumer credit transaction and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the consumer, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless he does so the consumer may pay the original creditor.

History: L. 1973, ch. 85, § 43; Jan. 1, 1974.

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I found this Illinois CP statute for Drew and it gave me an idea. I think I want to start a consumer protection statutes "Assignment of account" by state list. Maybe this could qualify as a sticky in Collection-due to the DV thing.

ILLINOIS (EDITED FOR BREVITY, SEE LINK FOR FULL STATUTE)

http://www.ilga.gov/legislation/ilcs/documents/081000050K9-406.htm

(810 ILCS 5/9‑406) (from Ch. 26, par. 9‑406)

Sec. 9‑406. Discharge of account debtor; notification of assignment; identification and proof of assignment; restrictions on assignment of accounts, chattel paper, payment intangibles, and promissory notes ineffective.

(a) Discharge of account debtor; effect of notification. Subject to subsections (B) through (i), an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

© Proof of assignment. Subject to subsection (h), if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (a).

I'm tired now, but I will resume my search tomorrow. If anyone wants to add their state's statute, please do. I will comply a list when time permits and put it all in one post later. If anyone thinks it's nuts, please tell me. I take constructive criticism well. Thanks.

MadinKS

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Heres Florida's CP statute.

FLORIDA:

http://www.flsenate.gov/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=assignee&URL=CH0679/Sec4061.HTM

1679.4061 Discharge of account debtor; notification of assignment; identification and proof of assignment; restrictions on assignment of accounts, chattel paper, payment intangibles, and promissory notes ineffective.--

(1) Subject to subsections (2) through (9), an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

(3) Subject to subsection (8), if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (1).

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here is minnesotas..

336.9-406 MS 1998 [Repealed, 2000 c 399 art 1 s 140]

336.9-406 DISCHARGE OF ACCOUNT DEBTOR; NOTIFICATION OF ASSIGNMENT;

IDENTIFICATION AND PROOF OF ASSIGNMENT; RESTRICTIONS ON

ASSIGNMENT OF ACCOUNTS, CHATTEL PAPER, PAYMENT INTANGIBLES, AND

PROMISSORY NOTES INEFFECTIVE.

(a) Discharge of account debtor; effect of notification. Subject to subsections (B) through

(i), an account debtor on an account, chattel paper, or a payment intangible may discharge its

obligation by paying the assignor until, but not after, the account debtor receives a notification,

authenticated by the assignor or the assignee, that the amount due or to become due has been

assigned and that payment is to be made to the assignee. After receipt of the notification, the

account debtor may discharge its obligation by paying the assignee and may not discharge the

obligation by paying the assignor.

(B) When notification ineffective. Subject to subsection (h), notification is ineffective

under subsection (a):

(1) if it does not reasonably identify the rights assigned;

(2) to the extent that an agreement between an account debtor and a seller of a payment

intangible limits the account debtor's duty to pay a person other than the seller and the limitation

is effective under law other than this article; or

(3) at the option of an account debtor, if the notification notifies the account debtor to make

less than the full amount of any installment or other periodic payment to the assignee, even if:

(A) only a portion of the account, chattel paper, or payment intangible has been assigned

to that assignee;

(B) a portion has been assigned to another assignee; or

© the account debtor knows that the assignment to that assignee is limited.

© Proof of assignment. Subject to subsection (h), if requested by the account debtor, an

assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the

assignee complies, the account debtor may discharge its obligation by paying the assignor, even if

the account debtor has received a notification under subsection (a).

(d) Term restricting assignment generally ineffective. Except as otherwise provided in

subsection (e) and sections 336.2A-303 and 336.9-407, and subject to subsection (h), a term in

an agreement between an account debtor and an assignor or in a promissory note is ineffective

to the extent that it:

(1) prohibits, restricts, or requires the consent of the account debtor or person obligated on

the promissory note to the assignment or transfer of, or the creation, attachment, perfection,

or enforcement of a security interest in, the account, chattel paper, payment intangible, or

promissory note; or

(2) provides that the assignment or transfer or the creation, attachment, perfection, or

enforcement of the security interest may give rise to a default, breach, right of recoupment, claim,

defense, termination, right of termination, or remedy under the account, chattel paper, payment

intangible, or promissory note.

(e) Inapplicability of subsection (d) to certain sales. Subsection (d) does not apply to the

sale of a payment intangible or promissory note.

(f) Legal restrictions on assignment generally ineffective. Except as otherwise provided in

sections 336.2A-303 and 336.9-407, and subject to subsections (h) and (i), a rule of law, statute,

or regulation, that prohibits, restricts, or requires the consent of a government, governmental body

or official, or account debtor to the assignment or transfer of, or creation of a security interest in,

an account or chattel paper is ineffective to the extent that the rule of law, statute, or regulation:

(1) prohibits, restricts, or requires the consent of the government, governmental body or

official, or account debtor to the assignment or transfer of, or the creation, attachment, perfection,

or enforcement of a security interest in, the account or chattel paper; or

(2) provides that the assignment or transfer or the creation, attachment, perfection, or

enforcement of the security interest may give rise to a default, breach, right of recoupment, claim,

defense, termination, right of termination, or remedy under the account or chattel paper.

(g) Subsection (B)(3) not waivable. Subject to subsection (h), an account debtor may not

waive or vary its option under subsection (B)(3).

(h) Rule for individual under other law. This section is subject to law other than this article

which establishes a different rule for an account debtor who is an individual and who incurred the

obligation primarily for personal, family, or household purposes.

(i) Inapplicability to health-care-insurance receivable. This section does not apply to an

assignment of a health-care-insurance receivable.

History: 2000 c 399 art 1 s 68

Would ya look at that, I don't hafta pay a JDB if they can't prove I owe them :)

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I'm not trying to say this is a "get out of jail free" card, but it's just another tool in our belt. I'm also wondering if they consider a dunning letter as "reasonable" proof of assignment. I would think "reasonable" would be a contract or bill of sale. A dunning letter is not "reasonable" in my mind. Anyone with a computer could sit at home and print out dunning letters, so I'm interested to see if these statutes have been challenged in case law. Anyone ever use this and do you have case law supporting it?

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Georgia General Assembly

Unannotated Code

http://www.legis.state.ga.us/legis/2003_04/gacode/11-9-406.html

11-9-406. Discharge of account debtor; notification of assignment; identification and proof of assignment; restrictions on assignment of accounts, chattel paper, payment intangibles, and promissory notes ineffective.

(a) Discharge of account debtor; effect of notification. Subject to subsections (B) through (i) of this Code section, an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

(B) When notification ineffective. Subject to subsection (h) of this Code section, notification is ineffective under subsection (a) of this Code section:

(1) If it does not reasonably identify the rights assigned;

(2) To the extent that an agreement between an account debtor and a seller of a payment intangible limits the account debtor´s duty to pay a person other than the seller and the limitation is effective under law other than this article; or

(3) At the option of an account debtor, if the notification notifies the account debtor to make less than the full amount of any installment or other periodic payment to the assignee, even if:

(A) Only a portion of the account, chattel paper, or payment intangible has been assigned to that assignee;

(B) A portion has been assigned to another assignee; or

© The account debtor knows that the assignment to that assignee is limited.

© Proof of assignment. Subject to subsection (h) of this Code section, if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (a) of this Code section.

(d) Term restricting assignment generally ineffective. Except as otherwise provided in subsection (e) of this Code section and Code Sections 11-2A-303, 11-9-407, and 53-12-28 and subject to subsection (h) of this Code section, a term in an agreement between an account debtor and an assignor or in a promissory note is ineffective to the extent that it:

(1) Prohibits, restricts, or requires the consent of the account debtor or person obligated on the promissory note to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, the account, chattel paper, payment intangible, or promissory note; or

(2) Provides that the assignment, transfer, creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account, chattel paper, payment intangible, or promissory note.

(e) Inapplicability of subsection (d) of this Code section to certain sales. Subsection (d) of this Code section does not apply to the sale of a payment intangible or promissory note.

(f) Legal restrictions on assignment generally ineffective. Except as otherwise provided in Code Sections 11-2A-303 and 11-9-407 and subject to subsections (h) and (i) of this Code section, a rule of law, statute, or regulation that prohibits, restricts, or requires the consent of a government, governmental body or official, or account debtor to the assignment or transfer of, or creation of a security interest in, an account or chattel paper is ineffective to the extent that the rule of law, statute, or regulation:

(1) Prohibits, restricts, or requires the consent of the government, governmental body or official, or account debtor to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest, in the account or chattel paper; or

(2) Provides that the assignment, transfer, creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account or chattel paper.

(g) Paragraph (3) of subsection (B) not waivable. Subject to subsection (h) of this Code section, an account debtor may not waive or vary its option under paragraph (3) of subsection (B) of this Code section.

(h) Rule for individual under other law. This Code section is subject to law other than this article which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.

(i) Inapplicability to health care insurance receivable. This Code section does not apply to an assignment of a health care insurance receivable.

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I might fire off a letter quoting the minnesota law to JDB buyer 1 next month. It'll be past SOL then. So throwing paperwork at them will drive them nuts and there won't be much they can do about it.

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Here is what I found for NJ :)

12A:9-406. Discharge of Account Debtor; Notification of Assignment; Identification and Proof of Assignment; Restrictions on Assignment of Accounts, Chattel Paper, Payment Intangibles, and Promissory Notes Ineffective.

(a) Discharge of account debtor; effect of notification. Subject to subsections (B) through (i), an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

(B) When notification ineffective. Subject to subsection (h), notification is ineffective under subsection (a):

(1) if it does not reasonably identify the rights assigned;

(2) to the extent that an agreement between an account debtor and a seller of a payment intangible limits the account debtor's duty to pay a person other than the seller and the limitation is effective under law other than this chapter; or

(3) at the option of an account debtor, if the notification notifies the account debtor to make less than the full amount of any installment or other periodic payment to the assignee, even if:

(A) only a portion of the account, chattel paper, or payment intangible has been assigned to that assignee;

(B) a portion has been assigned to another assignee; or

© the account debtor knows that the assignment to that assignee is limited.

© Proof of assignment: Subject to subsection (h), if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made.[/B] Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (a).

(d) Term restricting assignment generally ineffective. Except as otherwise provided in subsection (e), 12A:2A-303 and 12A:9-407, and subject to subsection (h), a term in an agreement between an account debtor and an assignor or in a promissory note is ineffective to the extent that it:

(1) prohibits, restricts, or requires the consent of the account debtor or person obligated on the promissory note to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, the account, chattel paper, payment intangible, or promissory note; or

(2) provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account, chattel paper, payment intangible, or promissory note.

(e) Inapplicability of subsection (d) to certain sales. Subsection (d) does not apply to the sale of a payment intangible or promissory note.

(f) Legal restrictions on assignment generally ineffective. Except as otherwise provided in 12A:2A-303 and 12A:9-407 and subject to subsections (h), (i) and ( j), a rule of law, statute, or regulation that prohibits, restricts, or requires the consent of a government, governmental body or official, or account debtor to the assignment or transfer of, or creation of a security interest in, an account or chattel paper is ineffective to the extent that the rule of law, statute, or regulation:

(1) prohibits, restricts, or requires the consent of the government, governmental body or official, or account debtor to the assignment or transfer of,or the creation, attachment, perfection, or enforcement of a security interest in the account or chattel paper; or

(2) provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account or chattel paper.

(g) Subsection (B) (3) not waivable. Subject to subsection (h), an account debtor may not waive or vary its option under subsection (B) (3).

(h) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.

(i) Inapplicability. This section does not apply to an assignment of a health-care-insurance receivable. Subsection (f) does not apply to an assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, a right the transfer of which is prohibited or restricted by any of the following statutes to the extent that the statute is inconsistent with subsection (f): R.S.34:15-29 (workers' compensation claims); section 13 of P.L.1970, c.13 (C.5:9-13) (State lottery winnings); and P.L.2001, c.139 (C.2A:16-63 et seq.) (structured settlement agreements).

(j) Section prevails over specified inconsistent law. Except to the extent otherwise provided in subsection (i), this section prevails over any inconsistent provision of an existing or future statute, rule or regulation of this State, unless the provision is contained in a statute of this State, refers expressly to this section and states that the provision prevails over this section.

L.2001, c.117, s.1; amended 2001, c.386, s.62.

12A:9-407 Restrictions on creation or enforcement of security interest in leasehold interest or in lessor's residual interest.

12A:9-407. Restrictions on Creation or Enforcement of Security Interest in Leasehold Interest or in Lessor's Residual Interest.

(a) Term restricting assignment generally ineffective. Except as otherwise provided in subsection (B), a term in a lease agreement is ineffective to the extent that it:

(1) prohibits, restricts, or requires the consent of a party to the lease to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, an interest of a party under the lease contract or in the lessor's residual interest in the goods; or

(2) provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the lease.

(B) Effectiveness of certain terms. Except as otherwise provided in 12A:2A-303 (7), a term described in subsection (a) (2) is effective to the extent that there is:

(1) a transfer by the lessee of the lessee's right of possession or use of the goods in violation of the term; or

(2) a delegation of a material performance of either party to the lease contract in violation of the term.

© Security interest not material impairment. The creation, attachment, perfection, or enforcement of a security interest in the lessor's interest under the lease contract or the lessor's residual interest in the goods is not a transfer that materially impairs the lessee's prospect of obtaining return performance or materially changes the duty of or materially increases the burden or risk imposed on the lessee within the purview of 12A:2A-303 (4) unless, and then only to the extent that, enforcement actually results in a delegation of material performance of the lessor.

L.2001, c.117, s.1; amended 2001, c.386, s.63

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I was gonna say, they all sure look the same. :) Now, can we use a JDB's own state laws aginst them? If they are IA for example, and IA has a law we could use to beat them over the head with, it would apply to the JDB because it's their home state correct?

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