USE THIS AS AN AFFIRMATIVE DEFENSE AND/OR MOTION TO DISMISS

[Prosay]

DOES THE CREDIT CARD COMPANY ACTUALLY OWN YOUR"ALLEGED" ACCOUNT...

..or has it been sold or transferred to a HOLDING COMPANY, and subsequently transferred to an asset backed securities fund, and from there SOLD as SECURITIES TO INVESTORS. The Credit card company is usually paid from the securities to service the account, and at this point ARE NOT OWNERS OR HOLDERS IN DUE COURSE.

Has the portfolio including your"ALLEGED" credit card account ever been transferred back to the CREDIT CARD COMPANY FOR ANY REASON( DEFAULT, ETC) AND DOES THE CREDIT CARD COMPANY NOW CLAIM ( AND PROVE)TITLE TO YOUR" ALLEGED" ACCOUNT AS OWNERS OR HOLDERS IN DUE COURSE ?...OR IS YOUR"ALLEGED" ACCOUNT STILL WITH THE ASSET BACKED SECURITIES FUND OR HOLDING COMPANY. (Always demand that the Plaintiff's attorney or Collection agency send you complete and truthful, verifiable CHAIN OF TITLE.

Always ask these questions when you reply to the very FIRST LETTER you receive from the Collection Agency or Attorney, along with your request for VALIDATION and VERIFICATION....don't wait until you have been SUED !

It's been my experience that if you DEMAND answers to all the right questions, and cite all the laws which apply to matters such as this, EARLY ON...NOT LATER...THEN THE CHANCES OF A LAWSUIT ARE GREATLY DIMINISHED...usually because they don't have the answers to your questions and/or cannot support their claims. Heck, when I reply to these guys I submit a "book".....a letter consisting of about 18 or 19 pages, and for no other reason than to send a message that I will NOT BE AN EASY TARGET....AND I HAVE NEVER BEEN SUED,,,and DEMAND compliance with my request...that they answer my letter within 30 days of receipt,(as evidenced by the signature and time stamp on the green card returned to me by the US POST OFFICE or their silence will be their tactic agreement and admission that they have no claim upon which relief should be granted, and further state that I will invoke the doctrine of " ACQUIESCENCE, and the doctrine of "ACQUIESCENCE ESTOPPEL" which mean that they cannot assert any claim contrary to their previous act"( failure to provide validation AND SUPPORTING INFORMATION) in the event you find litigation is necessary.

****************************************************

YOU CAN CHECK OUT THE ABOVE STATUS OF ANY CREDIT CARD COMPANY BY GOING TO :

www.sec.gov, and search for your credit card.

Then go to ASSET BACKED SECURITIES.

Once you find the asset backed security offering for your card company, look for the time frame when you had the card...scroll thru the securities form files until you find 'PROSPECTUS" ... every asset backed security has one and it is quite long, but search for "DELINQUENT" AND/OR DEFAULT to find out how the fund transfers the receivables back to the card company. in the event an account becomes delinquent or in default. MANY TIMES, THE PROSPECTUS DO NOT SHOW THAT A DELINQUENT OR DEFAULTED ACCOUNT IS TRANSFERRED BACK TO THE OWNERSHIP OF THE CREDIT CARD COMPANY, THEREFORE THE ORIGINAL CREDITOR(CREDIT CARD COMPANY) CANNOT BRING SUIT ON AN ACCOUNT ON WHICH LEGAL OWNERSHIP IS NOT PROVEN !!!

If you use the above as an affirmative defense and/or motion to dismiss, the PLAINTIFF'S ATTORNEY MUST SHOW AND PROVE WHO THE LEGAL OWNER IS.

( 1)THE CREDIT CARD COMPANY....OR

(2) THE HOLDING COMPANY....OR

(3) THE ASSET BACKED SECURITIES FUND

(AND AS AN AFTERTHOUGHT, if you get a letter from a JDB alleging that they have purchased a debt or otherwise attempting to collect for "XYZ" CREDIT CARD COMPANY....

THEN DEMAND PROOF OF TITLE, BILL OF SALE, ETC. PROVING THEY HAVE LEGALLY PURCHASED THIS ALLEGED DEBT FROM THE LEGAL OWNER IN DUE COURSE....either of the above the three, OR FROM ANOTHER JDB WHO HAS PURCHASED THIS ''ALLEGED DEBT" who in turn purchased this "alleged" debt from the legal owner. AGAIN, DEMAND PROOF OF LEGAL OWNERSHIP BY ALL INVOLVED IN THE CHAIN OF TITLE.

I got this info from "ALLEN HARKLEROAD"...he has written a book " STICKING IT TO SUE-HAPPY DEBT COLLECTORS" (BASED ON HIS AND OTHERS' EXPERIENCE) I suggest that you look at his BLOG...just google ''Allen Harkleroad"...lots of good info there.

Edited August 4, 2010 by Prosay
addendum

[BoscoMama]

I had seen a web site stating a FL lawyer had won a case for his client based upon this angle. The OC was Discover. I wish I could find that again but it eludes me.

One thing I noticed when looking at the article I found on the book mentioned above was a document that was supposed to be the affirmative defense motion filed by someone using this method. I noticed a part that states the defendant's husband has been studying and will act as her attorney. That is not allowed in the real world, is it?

Has anyone used this defense yet?

[Prosay]

It is my understanding that as long as you notify the court that you will be represented by whomever, then "whomever" can represent you.

The case you mentioned was an actual case.

I might add that the book mentioned also suggest filing a

"SWORN DENIAL"....THIS MOTION HAS A LOT OF CLOUT" in Tennessee, because TENNESSEE STATE LAW mandates that a court/judge MUST DISMISS ANY CASE 'without prejudice" when a defendent files a 'SWORN DENIAL"

Check your specific state laws in this regard, and remember many states have similiar rulings or so I understand, or at least may reciprocate.

Edited August 4, 2010 by Prosay

[LUEser]

It is my understanding that as long as you notify the court that you will be represented by whomever, then "whomever" can represent you.

The case you mentioned was an actual case.

I might add that the book mentioned also suggest filing a

"SWORN DENIAL"....THIS MOTION HAS A LOT OF CLOUT" in Tennessee, because TENNESSEE STATE LAW mandates that a court/judge MUST DISMISS ANY CASE 'without prejudice" when a defendent files a 'SWORN DENIAL"

Check your specific state laws in this regard, and remember many states have similiar rulings or so I understand, or at least may reciprocate.

Two things here. I would be very careful to the "whomever" language. Most states, if not all of them, have Unauthorized Practice of Law statues. This basically prevents non-lawyers from representing anyone other than themselves in court.

There are some exceptions such as for minors or the incompetent, but for the most part you only represent yourself.

In terms of the husband and wife acting on behalf of one another, Trueq had some ideas about this. I'm not sure if it was a motion to intervene or what, but the state was a community property state and the husband had a fiduciary interest in the outcome of the case. So it was the exception rather than the rule.

The TN statue for dismissal isn't that simple, either. It works for assignees such as JDBs, and possibly OCs if you can prove there was assignment (such as securitization). But if OC hasn't assigned, and you haven't brought up the issue of assignment, then the Sworn Denial doesn't mandate dismissal.