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Being Sued by Citibank


malinrott
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Lost my job two years ago, stopped paying all bills except mtg and utilities while trying to live on $240/wk the max UI benefit you can get in Phoenix.

They filed a claim for the CC debt. I sent in an answer with counterclaim. Just received today, a copy of a motion to dismiss counterclaim.

about the counterclaim.

being sued by citibank or original creditor so they are not subject to FDCPA laws. A year ago, a debt collector who said they were authorized by citibank started calling. They called everybody, family members and their work places, they gave details about the debt to everybody and even got my mother in law to authorize a check for the full amount of the debt to settle. These are all clear violations of the FDCPA right?

I alleged this debt collector was authorized by citibank (I have a letter that state such) and since they are a third party they ARE subject to FDPCA. If OL authorizes a 3rd party, then the 3rd party acts on the behalf of citibank or as an agent for?

The attorney's claim for dismissal is the 3rd party is separate from Citibank and therefore I can't claim a counter claim.

what happens now? Can I argue the motion to dismiss?

I think the 3rd party collector and the OL are one in the same as in employee and employer. Am I wrong?

I don't believe this debt was assigned to anybody so wouldn't the other collector be "part" of citibank?

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Read this. (Written by a top consumer attorney in WI) Feel free to print these articles for judge in your response brief.

http://www.familyandconsumerlaw.com/2009/09/creditors-becoming-debt-collectors-dogs.html

http://www.familyandconsumerlaw.com/2009/09/names-uh-bond-friday-someone-else.html

Case law is mentioned in article.

Also, citibank has an arbitration clause with DEFUNCT ARBITRATION CHOICES!

(NAF and AAA only both out of business!)

Read my extensive thread on this issue:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297619

I have 2 citibank cases that have been dead for 12 months on arbitration exercise. court stayed. since arbitration choices are defunct...THERE HAVE BEEN NO DISCUSSIONS BETWEEN ME AND CITIBANK ABOUT AGREEING TO ALTERNATE ARBITRATION FORUM!

(Remember defunct arbitration forum choices, DOES NOT, restore litigation rights unless one side petitions to get arbitration clause struck! Since you will NOT do that, Citibank is in awkward position to have to petition the court to strike its own arb. clause to restore litigation rights on claim! Unilateral contract drafters are treated unkindly by courts to strike unilateral language it drafted!)

Judge is threatening to dismiss in one case now, so the "alternate forum" discussion may heat up a little...but sign is now...dismissal from atrophy.

Just some helpful tips. Citibank is one of those where arbitration clause should be exercised every time! Citibank screwed themselves with its specific arbitration clause language.

Serves them right!

Edited by trueq
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Whether you win or lose this motion, please let us know the results because that is actually very interesting. I happen to agree, I do not think you can counter claim for FDCPA violations when the law is not applicable to OC's. But I can definitely see how it can be argued that the CA and OC are one in the same entity.

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You miss the subtle point....

OC's can become debt collectors under FDCPA in several possible ways...including hiring non-in-house counsel to collect the debt.

If lawyer says they are a "debt collector", they are under latest case law (albeit bad case law)

Lawyers say they are debt collectors in reflective fear they will violate FDCPA by not informing they are debt collectors when they are.

However, if they are not debt collectors in the situation and lawyer says they are, they may subject themselves to FDCPA by saying they are "debt collectors"!

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You miss the subtle point....

OC's can become debt collectors under FDCPA in several possible ways...including hiring non-in-house counsel to collect the debt.

Oh that is interesting. Can you give me a link of something? Never heard of that provision before and would like to read it.

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http://www.familyandconsumerlaw.com/2009/05/if-it-looks-like-duck-and-quacks-like.html

EVERY SINGLE LEGAL LAW FIRM COLLECTING FOR OC, IN MY EXPERIENCE, LABELS THEMSELVES A "DEBT COLLECTOR", THEREBY UNDER Schlosser v. Fairbanks Capital Corporation, SUBJECTING THEMSELVES AND OC TO FDCPA!!!!!

Would this make you a "duck"?

Maybe you should consider throwing off your debt collector bondage, and become a consumer lawyer....

With guys like me running around, you could be sued at any time!

Edited by trueq
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That link you provided me with says nothing about the OC becomming governed by the FDCPA when it hires a debt collection agency. In the case you cited it states that Fairbanks Capital bought the mortgages from ContiMortgage. I would agree, that entities that buy debts are not OC's, and should be governed by FDCPA. The court even wrote in it's opinion that

"If the mistake in this case went the other way and Fairbanks purchased the loan for the purpose of servicing and treated it as such... it would be classified as a creditor and therefore outside the scope of the [FDCPA]."

So now even moreso, I stand by my assertion that you can't countersue Citibank for FDCPA violations OP. You would have to bring that action against the collection agency.

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C. CREDITORS AS DEBT COLLECTORS:

Creditors may become "debt collectors" by using names in collecting their debts which falsely suggest the involvement of third party debt collectors or attorneys. The simplest situation covered by the "other name" exception of §1692a(6) is that where creditor ABC sends its debtors letters which demand payment in the name of XYZ Collection Agency, XYZ either being a totally fictitious entity or a real entity which has no significant involvement in the actual collection of ABC's debts. On its face, such conduct makes ABC a "debt collector" under §1692a(6) and simultaneously violates the prohibition against deceptive collection practices, §1692e. Numerous pre-FDCPA cases held that this practice violated §5 of the FTC Act. Wm. 6 M. Wise Co. v. FTC., 246 F.2d 702 (D.C. Cir. 1957); In re Teitelbaum, 49 FTC 745 (1953); In re Bureau of Engraving, Inc., 39 FTC 192 (1944); In re National Remedy Co., 8 FTC 437 (1925); In re B.W. Cooke, 9 FTC 283 (1925); In re U.S. Pencil Co., 49 FTC 734 (1953); In re Perpetual Encyclopedia Corp. 16 FTC 443 (1932).

The FTC has stated that a creditor is using a name "other than [the creditor's] own" if the creditor is using a name which on its face it "would indicate that a third person is collecting or attempting to collect [the creditor's] debts" and no disclosure is made of the relationship between the name used in dealing with the consumer prior to default and the name used in attempting to collect after default, even if the creditor lawfully owns the name used to make collection. Sept. 19, 1985 opinion letter. The FTC commentary on the FDCPA states:

Creditors are generally excluded from the definition of "debt collector" to the

extent that they collect their own debts in their own name. However the term

specifically applies to "any creditor who, in the process of collecting his own

debts, uses any name other than his own which would indicate that a third person is" involved in the collection.

A creditor is a debt collector for purposes of this act if:

o He uses a name other than his own to collect his debts, including a

fictitious name.

o His salaried attorney employees who collect debts use stationery that

indicated that attorneys are employed by someone other than the creditor

or are independent or separate from the creditor [the same should apply to

salaried nonattorney employees, as herein]. . . .

o The creditor's collection division or related corporate collector is not

clearly designated as being affiliated with the creditor; however, the

creditor is not a debt collector if the creditor's correspondence is clearly

labeled as being from the "collection unit of the (creditor's name)," since

the creditor is not using a "name other than his own" in that instance.

(Emphasis added.)

In Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232 (2nd Cir. 1998), the

Second Circuit reversed a summary judgment for the defendant in a case where Citicorp Retail Services sent out letters under the letterhead of "Debtor Assistance" to collect private label credit card debts.

To the same effect is Catencamp v. Cendant Timeshare Resort Group -- Consumer Finance, Inc., 471 F.3d 780 (7th Cir. 2006) (“Resort Financial Services” used by CTRG). "[T]he scope of creditor liability under §1692a(6) goes beyond the creditor's use of aliases or pseudonyms to instances where the creditor merely implies that a third party is collecting a debt when in fact it is the creditor that is attempting to do so." Larson v. Evanston Northwestern Healthcare Corp. , 98 C 5, 1999 WL 518901, 1999 U.S. Dist. LEXIS 11380 (N.D. Ill. July 20, 1999).

A creditor collects its own debts by using a different name, implying that a third party was the debt collector, either (a) when the creditor uses an alias, or (B) when the creditor controls all aspects of the collection effort. E.g., Sokolski v. Trans Union Corp., 53 F.Supp. 2d 307, 312 (E.D.N.Y. 1999); Flamm v. Sarner & Associates, P.C., 02-4302, 2002 WL 31618443

(E.D.Pa., Nov. 6, 2002).

______________

Maestro? If we are going to get all complimentry, it will take all fun out of the vilification part of the debt collection war I enjoy.

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so it seems citibank has become a debt collector in my case.

"Citibank is one of those where arbitration clause should be exercised every time! Citibank screwed themselves with its specific arbitration clause language."

How do I exercise this and is it something I can do Pro Se?

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can somebody please explain this...

Along with the summons and complaint there was a Certificate of Compulsory Arbitration

The text says:

The undersigned certifies that the largest award sought by the Complainant, including punitive damages, but excluding interest, attorney's fee and cost is that according to the Local Rule for compulsory arbitration, this case IS subject to the Uniform Rules of Procedure for Arbitration.

signed by attorney for citibank.

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I would NOT sign it. Never agree to court system arbitration.

The arbitration I'm talking about is the private arbitration forum in the Citibank cardholder agreement.

There is a difference.

You do not want to agree to your state's public arbitration option. This option usually (but not always) cannot be forced unless both parties agree.

When you exercise arbitration, make sure you only agree to the private arbitration forum specified in the contract! The citibank agreement makes no provision for public court system ADR.

Your exercise of the Citibank arbitration clause in the contract would waive the public arbitration option available in your local court system. Citibanks provision is for designated private arbitration forum, not the public ADR and arbitration in the court system.

Edited by trueq
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I still do not see anything you posted as being relevant to creditors being governed by the FDCPA if they hire a collection agency. QUOTE]

Nearly al these debt lawyers and debt collection agencies say they are "debt collectors", which under Fairbanks makes them a debt collector.

Creditors can become debt collector by assigning it to a debt collectors.

What don't you understand?

I say sue first, include deceptive trade practices claim, and if FDCPA claim gets thrown out on "debt collector obfuscation", deceptive practice includes almost everyone, including organizations, OC's and lawyers.

Sue! Sue! Sue!

God bless America.

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Fairbanks went the exact opposite.

THE POINT IS: Case law is conflicting.

One should go ahead and sue over it. 80% of the time these things settle out before conflicting case law goes head to head.

If you include State Deceptive Practice Claim, lawsuit is still good even if FDCPA claim gets kicked on conflicting case law.

The point is: if offended debtor doesn't sue, they are guaranteed to get nothing.

Sue! SUE! SUE!

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You realize in that case you cited, Citibank won right? And proves my point against what trueq is saying.

Yes, that's what I said right?

I'm not sure I can win that one and I'm not sure it's worth trying at the moment. I appreciate all of the advice that everybody has been giving me. As you can see, I don't accept the advice blindly but rather use it as a lead point for further information.

I'm more interested in what trueq is saying about the arbitration. How do I get that ball rolling? or more importantly, DO I want to get that ball rolling?

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oh you said the defendants claim was dismissed and there were like 4 defendants in that case, I'm sorry I just misinterpreted.

Some people on this forum believe you should wait until you know there is a good chance you are going to lose to exersize arbitration. I think this is a risky strategy just because you never know if you are waiving your arbitration rights by letting a case get to a certain point.

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If you wait to long to pull arbitration exercise, you can waive your right to arbitrate!

However, if the agreement has not been coughed up by other side, I don't think its possible to waive if debt lawyer is fraudulently hiding right to arbitrate.

If agreement has been coughed up, the longer you "sit on it" the more possibility there is to waive your right to arbitrate.

Fortunately, 85% of debt lawyers are too incompetent to produce the actual agreement. Which leaves them open for debt collection violations by misrepresenting nature of debt by concealing your right to arbitrate. could also be Deceptive trade practice claim too!

This is the part of the war I love!!!!!!

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If you wait to long to pull arbitration exercise, you can waive your right to arbitrate!

However, if the agreement has not been coughed up by other side, I don't think its possible to waive if debt lawyer is fraudulently hiding right to arbitrate.

If agreement has been coughed up, the longer you "sit on it" the more possibility there is to waive your right to arbitrate.

Fortunately, 85% of debt lawyers are too incompetent to produce the actual agreement. Which leaves them open for debt collection violations by misrepresenting nature of debt by concealing your right to arbitrate. could also be Deceptive trade practice claim too!

This is the part of the war I love!!!!!!

I just have to ask...how is concealing your right to arbitrate equate to misrepresenting the nature of a debt, which could result in a debt collection violation? Trueq, I've seen you state this many times, but I need to know, in layman's terms, how this really is true, and how someone could state this in terms of a defense. Do you have case law to back this up? I would really love to know...:)

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Debt lawyer is asserting claim and contractual agreement by suing you, correct?

If you demand the agreement prior to suit, in your answer, and in your discovery demand, and they fail to produce it, you cannot possibly be fully informed about your contractual right to waive their right to litigation through exercise of arbitration.

Hiding this important contractual information is misrepresenting the nature of the debt. FDCPA violation,(assuming subject to FDCPA) state debt collection violation in many states, discovery violation, deceptive trade practice violation (especially if you ask to admit/deny existence of arbitration clause, they deny, and later you prove there is one!).

Lets say someone sued you over a 10 page contract for 100,000 footballs. You get footballs and 10,000 are defective. You fail to pay 10% of the contract, but pay for other 90%. Football manufacturer sues for other 10%. but on page 8 it says they will "guarantee footballs for 5 years for any reason". football manufacturer produces a copy of the contract, as you request, except for page #8....Is this deceptive?

Absolutely! FDCPA prohibits deceptive practices.

In the past this was never an issue because consumers wanted to escape arbitration. however, thanks to the destruction of NAF and AAA being out of credit card arbitration business, arbitration is vey good for consumer now, relative to where the state of arbitration was and, as of today, most railroad court systems!

THIS IS AN ENTIRELY NEW ISSUE UNDER DECEPTIVE TRADE PRACTICES ACT, FDCPA AND STATE CONSUMER LAWS!

In fact, if consumer lawyers are not staying up to date on arbitration forum events this past summer, they may look at you funny and ask you to take a drug test.

So don't feel bad...I just thought of it 3 weeks ago!

Edited by trueq
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