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THIS DEFENSE JUST MIGHT HAVE MERIT !


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I'm putting this together based on Tenn Law, your state may have similar language !

OPINION OF "THE HONORABLE JUDGE, FRANK G. CLEMENT, IN THE COURT OF APPEALS AT NASHVILLE, TENN , JANUARY 7, 2009.

In which He states:

" UNDER TENN LAW, a claimant must show three elements to establish "STANDING"..

(1) A DISTINCT and PALABLE INJURY as opposed to a CONJECTURAL OR HYPOTHETICAL INJURY.

(2)) A CASUAL CONNECTION BETWEEN THE CLAIMED INJURY AND THE CHALLENGED CONDUCT.

(3) THE ALLEGED INJURY IS CAPABLE OF BEING REDRESSED BY A FAVORABLE DECISION OF THE COURT."

END QUOTE

NOW COMES PROOF OF "STANDING"

( SEE #1 ...ABOVE)Has the JDB provided proof of a VALID BILL OF SALE or a purchase agreement, PROPERLY EXECUTED AND SIGNED BY ALL PARTIES , WHICH MIGHT SHOW STANDING , has he merely sent you a dunning letter or file suit which says "Yep...you owe us this amount " ?

HAS THE JDB SHOWN PROOF OF THE AMOUNT THEY ACTUALLY PAID( VALUABLE CONSIDERATION) FOR THE ALLEGED ACCOUNT, VERSUS MAKING A CONJECTURAL OR HYPOTHETICAL STATEMENT . DEMAND PROOF OF VALUABLE CONSIDERATION PAID...DON'T LET THEM TAKE ADVANTAGE OF INSISTING ON AN UNJUST AMOUNT ( UNJUST ENRICHMENT)

HAS THE JDB PROVIDED THE COMPLETE CHAIN OF TITLE IN THIS REGARD, and did the chain show EACH ENTITIES proof of "legal standing" at the time of assignment?

IT IS COMMON KNOWLEDGE THAT A JDB PAYS ONLY "PENNIES ON THE DOLLAR" FOR A PURCHASED ACCOUNT, THEREFORE...

IT WOULD SEEM THAT THE ONLY "INJURY CAPABLE OF BEING REDRESSED BY THE COURT"( SEE ABOVE) IS THE ACTUAL AMOUNT PAID (VALID CONSIDERATION)...and the actual amount is the only amount cable of being redressed by the court....NOT THE AMOUNT ASK FOR IN THE SUIT !

(SEE #2, ABOVE) Has the JDB PROVEN EVEN A CASUAL CONNECTION ( A VALID ASSIGNMENT OR PROOF OF PURCHASE...properly prepared and executed by all parties involved ) HAVE THE DOCUMENTS BEEN AUTHENTICATED OR NOTARIZED BY ANYONE WHO "HAS PERSONAL AND FIRST HAND KNOWLEDGE OF THE MATTER IN QUESTION " ( NO ONE EMPLOYED BY A JDB OR CA CAN HAVE FIRST HAND KNOWLEDGE " THEY WERE NOT INVOLVED IN THE ORIGINAL APPLICATION, TERMS OF AGREEMENT OR WITNESS TO ANY EVENT IN QUESTION) ( SEE "BLACK'S LAW DICTIONARY ..."PERSONAL KNOWLEDGE" )

SO WHERE IS THE ''CASUAL CONNECTION"...WHERE IS THE VALID ASSIGNMENT, AND PROOF OF AMOUNT PAID ?

Also stated by Judge Clement.." THE DOCTRINE OF STANDING PRECLUDES COURTS FROM ADJUCATING AN ACTION AT THE INSTANCE OF ONE "WHOSE RIGHTS HAVE NOT BEEN INVADED OR INFRINGED"

REGARDING ITEM (2) Above "A CASUAL CONNECTION BETWEEN THE CLAIMED INJURY AND THE CHALLENGED CONDUCT."

Where is the "connection" ? You can claim "LACK OF PRIVITY" BECAUSE THERE IS "NO CONNECTION" BETWEEN YOU AND THE JDB AS YOU HAVE NEVER HAD ANY BUSINESS DEALINGS WITH THEM.

ALSO, REVIEW YOUR STATE CODE " PERTAINING TO A "VALID AFFIDAVIT"

TENN CODE (TCRP 56.06 STATES THAT: "affidavits must be made on PERSONAL KNOWLEDGE AND SHALL SET FORTH SUCH FACTS AS WOULD BE ADMISSIBLE IN EVIDENCE AND SHOW AFFIRMATIVELY THAT THE AFFIIANT IS COMPETENT TO TESTIFY TO THE MATTERS STATED THEREIN"

TENN CODE ANNOTATED 30-2 -712 (E)(1) further states, " THE BURDEN OF PROOF TO SHOW THE TRUTHFULNESS OF STATEMENTS " SHALL REST UPON THE AFFIANT"

( MAKING FALSE STATEMENTS IN COLLECTION EFFORTS IS A VIOLATION OF THE FAIR DEBT COLLECTION PRACTICE ACT, and submitting false statements by US Mail may also constitute violation of US MAIL LAWS .. "US CODE TITLE 18, CHAPTER 63 ( COLLECTIONS...FRAUD AND SWINDLES) which is a felony and provides up to 10 years in prison and up to $1000,000.00 fine. PRESENT YOUR SITUATION TO YOUR LOCAL US POSTAL INSPECTOR, and he will further advise.

END

(Just my thoughts folks...and I have used the above in some of my replies to CA'S and JDBS !)

( It seems to make their" LIVER QUIVER" ...CAUSE IT SEEMS TO PUT THEM TO SLEEP !)...or at least give them a bad case of indigestion !

NOTE: If you elect to consider similiar language, make sure it conforms to your state code ! AND BE SURE TO CITE YOUR STATE CODES AS WELL.

Edited by Prosay
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Has anyone ever been able to get a judge to make the distinction between the amount paid for a debt and the amount claimed as damages?

I don't disagree with you, the law allows a JDB to step into the shoes of the OC the difference between the two is that the OC can actually claim the full amount due and owing as an injury. The JDB buys the rights to collect a 3,000.00 debt for 60.00 but the rights to collect and the valuable consideration that they would lose (their injury) strike me as two separate issues.

Would you admit that the JDB purchased the right to collect and then contest their injury. Separate the issues, I would think that when they state in the complaint that they purchased the debt for valuable consideration that the JDB opens the door to discovery of what that valuable consideration was regardless of whether or not the State laws address the issue of disclosure, THEY brought it up.

So they have to tell the Judge, we paid 60.00 for this debt and we want 3,000.00 plus attorney fees for damages. If you can separate the two issues and they have to request damages equal to 97% of their claim I would think a judge if he had any wiggle room within the law would not want to award such an obscene amount.

They buy the debt and have the right to pursue collection of the debt but do any State laws give the judge room to change the amount awarded to the plaintiff? If they have to sue for 60.00 which is the actual injury doesn't that put you in small claims court? Aren't damages regulated there? SO would you challenge the jurisdiction of the court to hear the case if they want to go in District or Higher Court?

I'm just speculating here

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Has anyone ever been able to get a judge to make the distinction between the amount paid for a debt and the amount claimed as damages?

Maybe not, as I doubt many defendants have ever raised issuethat as an 'affirmative defense"

I don't disagree with you, the law allows a JDB to step into the shoes of the OC the difference between the two is that the OC can actually claim the full amount due and owing as an injury. The JDB buys the rights to collect a 3,000.00 debt for 60.00 but the rights to collect and the valuable consideration that they would lose (their injury) strike me as two separate issues.

Would you admit that the JDB purchased the right to collect and then contest their injury. Separate the issues, I would think that when they state in the complaint that they purchased the debt for valuable consideration that the JDB opens the door to discovery of what that valuable consideration was regardless of whether or not the State laws address the issue of disclosure, THEY brought it up.

So they have to tell the Judge, we paid 60.00 for this debt and we want 3,000.00 plus attorney fees for damages. If you can separate the two issues and they have to request damages equal to 97% of their claim I would think a judge if he had any wiggle room within the law would not want to award such an obscene amount.

They buy the debt and have the right to pursue collection of the debt but do any State laws give the judge room to change the amount awarded to the plaintiff? If they have to sue for 60.00 which is the actual injury doesn't that put you in small claims court? Aren't damages regulated there? SO would you challenge the jurisdiction of the court to hear the case if they want to go in District or Higher Court?

I'm just speculating here

Good point ! Perhaps one could claim that the suit has been filed in the wrong court of jurisdiction , and of course claim " UNJUST ENRICHMENT" regardless of the court in which the suit has been filed !

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Guest usctrojanalum

Unjust enrichment does not fit as an affirmative defense in any JDB claim, I don't know why this has become so popular. Unjust enrichment is when someone has already been enriched and they should pay restitution back to the person they have aggrieved.

From legaldictionary.com

"a benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. If the money or property received rightly should have been delivered or belonged to another, then the party enriched must make restitution to the rightful owner."

This is no way fits as a real defense against a JDB claim.

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Unjust enrichment does not fit as an affirmative defense in any JDB claim, I don't know why this has become so popular. Unjust enrichment is when someone has already been enriched and they should pay restitution back to the person they have aggrieved.

From legaldictionary.com

"a benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. If the money or property received rightly should have been delivered or belonged to another, then the party enriched must make restitution to the rightful owner."

This is no way fits as a real defense against a JDB claim.

So it would be a point used in an effort to have the judgment set aside?

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Consider this: (LVNV is used as an example, but the scenario applies to ALL JDB'S)

Volenti non fit injuria and Contributory Negligence or Comparative Negligence and Unjust Enrichment

If you raise these as a defense to a lawsuit by them it will have their attorney scratching their head. Most collection agencies and Junk Debt Buyers use the cheapest attorney they can find to attempt to get a default judgments. A default judgment is hard to get over turned unless they blow service.

If you are properly served by them, they deliver the notice of suit to you through a service agent or mail, then you must raise a defense less suffer a default judgment. Besides the fact that they will attempt to use false affidavits to prove the debt that they claim you owe they are not entitled to recover damaged they inflicted upon themselves.

Volenti non fit injuria basically states that" a willing participant to an act cannot recover damages for an act that they volunteered for". A good example is a boxer cannot sue his opponent because his nose was broken in the match. He was a willing participant. Just as LVNV Funding purchases a non performing asset without you inducing them to do so, you have not caused them any harm they willingly purchased the defaulted account. Which is a perfect lead in for.

(Contributory Negligence or Comparative Negligence.) Contributory Negligence is an absolute defense and only applies in certain jurisdictions where as Comparative Negligence limits the scope of recovery based on how much the plaintiff is responsible for the damage. These defenses basically do not allow a plaintiff to recover when they caused their own harm. So if LVNV Funding purchased an account that was defaulted and deemed non collectible by the original creditor then they have caused their own damage. If they pay $20 for a $2000 dollar charged off account the only real loss that they may have claim to is $20 which leads us to.

Unjust Enrichment says that if you receive more than what is entitled then you must make restitution. It is not commonly a defense but used to recover money when a mistake is made on part of the part of the plaintiff. As a defense you could use it as a DENIAL such as the plaintiff is not entitled to Unjust Enrichment. Meaning that they cannot claim a loss greater than their actual “real” cost. So in the example above for them to claim a loss of $2000 when they only paid $20 would be Unjust Enrichment for LVNV Funding.

There are so many roads that this leads down and if you do some due diligence you should be able to get any rent a lawyer that LVNV Funding hires to throw his hands in the air and dismiss the case. Just make sure you ask that it is "DISMISSED WITH PREJUDICE "which means that they cannot try to reassert the claim, nor can any other future Junk Debt Buyer.

NOTE: YOU CAN USE "UNJUST ENRICHMENT" IN YOUR REPLY TO A JDB, simply state that you 'DENY THE ALLEGATIONS SO STATED IN THE AMOUNT CLAIMED', as it is common knowledge that JDB's purchase accounts for "mere pennies on the dollar. Therefore, demanding other relief for any injury not confirmed ( by proving valuable consideration paid) will be challenged as "UNJUST ENRICHMENT" ...REMEMBER THIS " ANY AMOUNT CLAIMED, NOT SUPPORTED BY VERIFICATION AND AUTHENTICATION OF VALUABLE CONSIDERATION PAID, OR OTHER DOCUMENTS IDENTIFYING THE NATURE OF THAT AMOUNT AND THE MANNER IN WHICH THE "ALLEDGED AMOUNT(INJURY) WAS ACCRUED (OR DETERMINED) IN ACCORDANCE WITH THE 'TRUTH IN LENDING ACT, REGULATION Z, is considered " MERE CONJECTURE AND HYPOTHETICAL" and is not "CAPABLE OF BEING RE-DRESSED IN COURT"...AT LEAST NOT IN THE STATE OF TENNESSEE ( per THE HONORABLE JUDGE FRANK G CLEMENT ...COURT OF APPEALS AT NASHVILLE, TENN)

And you are correct, "unjust enrichment" occurs AFTER THE FACT (judgment awarded)...but why not use some "PRE-EMPTIVE LANGUAGE, BEFORE A LAWSUIT OCCURS ?

IMHO, this is where many of us drop the ball...our initial replies and DV LETTERS to CA's and JDB's do not contain enough STRONG language which will put the opposition on notice...and give them pause ! This approach has served me very well !

Just remember folks, in the eyes of JDB's and CA's...ALL "CONSUMERS" ARE A BUNCH OF IGNORANT DUMB a$$ , LEAST SOPHISTICATED CONSUMERS"...be tough...prove them wrong !

Edited by Prosay
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