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How to know if OC is the true Plantiff in a case?


MamaCaldo
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:)++ Hello Everyone!

I'm doing some "proactive" learning and reading, and I'm loving the mental challenge of all of this.

My first question is something I read somewhere else that sometimes JDB will sue a debtor under the name of the OC. Now from what I read, they were saying that if the JDB does this they are suing under false pretences, and perjured themselves in court, among other things.

Now I'm wondering, if they are doing this how do you get them to admit this? I mean, if they are smart (which apparently most are not), they are not going to admit this in court. Will the OC tell you that they sold the debt to them? How do you find out in a timely manner who owns the debt so you could prove in court that the JDB is the ones who should be named in the suit? And if you somehow get this proof, when is a good time to bring it to the attention of the court??

I'm just starting to read and learn, so please be gentle! :wink::-)

Grazie Molte!

Mama Caldo

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1) Check your credit report and see if it lists the debt as sold/transferred.

2) Call the OC.

3) Ask for the retainer in discovery if you have gotten to that point. If you want to prove it using this, you need to be able to argue that it will lead to admissible and relevant evidence. You also will want to have a counter claim so that they can't just drop the suit when you file a MTC.

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1) Check your credit report and see if it lists the debt as sold/transferred.

2) Call the OC.

3) Ask for the retainer in discovery if you have gotten to that point. If you want to prove it using this, you need to be able to argue that it will lead to admissible and relevant evidence. You also will want to have a counter claim so that they can't just drop the suit when you file a MTC.

Thanks for the reply usagi!

Questions:

1) If it is or is not on the credit report, what difference will that make with a case? If you check your own credit, and it is there, could the court consider you "sufficently notified"? Do most JDB/Collectors report to the credit agencies that they own the debt and are trying to collect? What if they don't report it?

2) Is calling like waving a red flag, saying "here I am!"? Same with a letter sent-- won't the OC be like "oh yea... you owe us money! we almost forgot about you!" Or will the OC be like "eh, whateva.. yea we own it/we sold it"

3) Could you explain a bit on what "asking for retainer in discovery" is? (sorry! I'm not a lawyer, just trying to learn this stuff...) The "counter claim"-- what kind of "counter claim" can be brought (just as an example, just "spit balling")? And am I to understand if there was no counter claim filed, they could back out and basically regroup and try to hit you again?

Like I said, I'm just starting out. I've been reading till my eyes are on fire! I'm just prepping my knowledge base for "just in case". There is so much to learn and I'm finding the "devil is in the details"!!! :twisted:

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You need to check on your credit report. Look for the OC listing and see if it says that the debt is "closed"/transferred or purchased by another lender, etc.

If it is closed/transferred or purchased by another lender, then the OC does not own it anymore and it will be in the hands of a JDB.

Edited by Linda7
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You need to check on your credit report. Look for the OC listing and see if it says that the debt is "closed"/transferred or purchased by another lender, etc.

If it is closed/transferred or purchased by another lender, then the OC does not own it anymore and it will be in the hands of a JDB.

But check more than one. It is very possible that one is listing it as still with the OC and another is listing it as sold/transferred.

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You need to check on your credit report. Look for the OC listing and see if it says that the debt is "closed"/transferred or purchased by another lender, etc.

If it is closed/transferred or purchased by another lender, then the OC does not own it anymore and it will be in the hands of a JDB.

Thanks for the reply Linda7!

I do understand about the credit report showing who might own it. But is this admissable in court as proof to say to the judge "hey! the JDB owns this! The Plaintiff is not the OC anymore!"? Or do I need a letter directly from the OC saying "we sold it to XXX"?

But check more than one. It is very possible that one is listing it as still with the OC and another is listing it as sold/transferred.

Hi usagi! See, this kind of inconsistancy in proof (one CR says one thing, one says another...) in my mind would make a judge say "prove it! where's verification from the OC that XXX owns it?"

Can anyone shed any light on the questions from my post??? Like I said, I'm just "hypotheisizing" some "what if's" to increase my knowledge of various things that I have questions about. As of right now, I'm proactively learning.... but in the future I might have more pointed questions for all of you learned people :wink::-)

Thanks for the reply usagi!

Questions:

1) If it is or is not on the credit report, what difference will that make with a case? If you check your own credit, and it is there, could the court consider you "sufficently notified"? Do most JDB/Collectors report to the credit agencies that they own the debt and are trying to collect? What if they don't report it?

2) Is calling like waving a red flag, saying "here I am!"? Same with a letter sent-- won't the OC be like "oh yea... you owe us money! we almost forgot about you!" Or will the OC be like "eh, whateva.. yea we own it/we sold it"

3) Could you explain a bit on what "asking for retainer in discovery" is? (sorry! I'm not a lawyer, just trying to learn this stuff...) The "counter claim"-- what kind of "counter claim" can be brought (just as an example, just "spit balling")? And am I to understand if there was no counter claim filed, they could back out and basically regroup and try to hit you again?

Like I said, I'm just starting out. I've been reading till my eyes are on fire! I'm just prepping my knowledge base for "just in case". There is so much to learn and I'm finding the "devil is in the details"!!! :twisted:

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Thanks for the reply Linda7!

I do understand about the credit report showing who might own it. But is this admissable in court as proof to say to the judge "hey! the JDB owns this! The Plaintiff is not the OC anymore!"? Or do I need a letter directly from the OC saying "we sold it to XXX"?

Hi usagi! See, this kind of inconsistancy in proof (one CR says one thing, one says another...) in my mind would make a judge say "prove it! where's verification from the OC that XXX owns it?"

Can anyone shed any light on the questions from my post??? Like I said, I'm just "hypotheisizing" some "what if's" to increase my knowledge of various things that I have questions about. As of right now, I'm proactively learning.... but in the future I might have more pointed questions for all of you learned people :wink::-)

1. It's not clear to me how admissible the credit report would be in court. It is not a record made by the OC, though it is made by information transmitted by the OC. Unless the issue you are going after is the accuracy of the report, what you may find is that the credit report becomes hearsay. While they are legally required to be accurate, they are notoriously inaccurate. I have an account on my report that isn't mine, for example. However, it is closed and it is listed as not having ever had a late payment, so I haven't made a stink about it.

2. I wouldn't call them about this unless I had more than a "hunch" that it had been sold, but that's just me. Check your credit reports before you do something like this.

3. This is really getting waaaay ahead of things as it sounds like you haven't even had a suit filed against you yet. Discovery is a process where the parties in a law suit ask each other to provide documents, answer interrogatories (questions) and admit or deny certain factual issues. There are rules and deadlines governing how this can be done and how the parties have to respond. How discovery is handled will be defined in your state's civil rules of procedure.

Yes, if there is no counter claim it will be much easier for them to just dismiss without prejudice. Note that FDCPA violations will not count against an OC, so you can't use those as counter claim. You may be able to use them as a third party claim against the OC's attorneys though.

Edited by usagi555
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And remember too, if a JDB has bought it, you are probably going to be having correspondence from them in regard to the debt and/or phone calls from the JDB.

Just look carefully at your credit reports "and" when it is time for some serious thinking, make sure to get hard copies of your reports as they are more accurate. :)++

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Questions:

1) If it is or is not on the credit report, what difference will that make with a case? If you check your own credit, and it is there, could the court consider you "sufficently notified"? Do most JDB/Collectors report to the credit agencies that they own the debt and are trying to collect? What if they don't report it?

2) Is calling like waving a red flag, saying "here I am!"? Same with a letter sent-- won't the OC be like "oh yea... you owe us money! we almost forgot about you!" Or will the OC be like "eh, whateva.. yea we own it/we sold it"

3) Could you explain a bit on what "asking for retainer in discovery" is? (sorry! I'm not a lawyer, just trying to learn this stuff...) The "counter claim"-- what kind of "counter claim" can be brought (just as an example, just "spit balling")? And am I to understand if there was no counter claim filed, they could back out and basically regroup and try to hit you again?

Like I said, I'm just starting out. I've been reading till my eyes are on fire! I'm just prepping my knowledge base for "just in case". There is so much to learn and I'm finding the "devil is in the details"!!!

1. If there's no entry on your CR, it makes no difference to the case. Not all creditors report to the CRAs. Not all CAs or JDBs report either. I don't know that requesting a copy of your credit report could be considered sufficient notice unless there's case law in your state that says otherwise. People get copies of their credit reports all the time.

However, if you dispute an entry on your CR, that's a different story. The creditor (OC, CA, JDB) will receive a notice from the credit reporting agency that the account has been disputed. That gives them proof you are aware of the account. We know that JDBs don't keep the best records, but one must assume they would keep a record of that dispute.

In their discovery requests, some OCs and JDBs will request documentation evidencing that you disputed an account on your CR. If you disputed, you have to provide it. If you don't, and they have the records, you've got a problem.

Remember, the word here is "disputed". If you merely got a copy of your CR, that doesn't mean you disputed an account.

BUT, if the OC is reporting, and the entry shows the account was sold, you could check with the OC. If it was sold, you have evidence that the JDB is lying. If you want to authenticate the credit report, submit an affidavit that you got the report directly from the credit reporting agency.

2. Calling the OC for what? To see if they still own the account? If they sold it, they're really not worried about it anymore. If they own it, yes it could be a red flag. Is the OC reporting on your CR? If so, what are they reporting?

3. A retainer is the attorney's agreement with the Plaintiff. It's proof the attorney has been retained by the Plaintiff to represent them in court. You haven't been sued, so don't worry about it. Even if you are eventually sued, asking for proof of the retainer would be pretty much useless. I don't know that an attorney would be required to provide such information.

Hope this helps.

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1) Check your credit report and see if it lists the debt as sold/transferred.

2) Call the OC.

3) Ask for the retainer in discovery if you have gotten to that point. If you want to prove it using this, you need to be able to argue that it will lead to admissible and relevant evidence. You also will want to have a counter claim so that they can't just drop the suit when you file a MTC.

Usagi,

I disagree with #3. An attorney can easily claim that a retainer is privileged information. Also, whether we like it or not, a judge is going to assume the attorney is being truthful when naming the Plaintiff. Unless there is a specific statute or case law to back up your request, you would have to provide evidence that the attorney is untrustworthy. A judge is not going to compel an attorney to provide privileged information just based on your assumption that the attorney might be a liar.

Like you, I don't trust JDBs or their attorneys. I think they're all slime. BUT, absent evidence, case law, or statutes, our opinions don't matter to a judge.

I'm not being disrespectful or judgmental. Please don't think that. Some courts limit the amount of discovery requests made by a party. I believe the requests we make should be those that we know can be required.

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Grazie everyone for "spit-balling" for me! It's very interesting learning all the intimate details of each step!

BV80, I quoted you to ask a question:

Usagi,

I disagree with #3. An attorney can easily claim that a retainer is privileged information. Also, whether we like it or not, a judge is going to assume the attorney is being truthful when naming the Plaintiff. Unless there is a specific statute or case law to back up your request, you would have to provide evidence that the attorney is untrustworthy. A judge is not going to compel an attorney to provide privileged information just based on your assumption that the attorney might be a liar.

Like you, I don't trust JDBs or their attorneys. I think they're all slime. BUT, absent evidence, case law, or statutes, our opinions don't matter to a judge.

I'm not being disrespectful or judgmental. Please don't think that. Some courts limit the amount of discovery requests made by a party. I believe the requests we make should be those that we know can be required.

So, if you did include this in your discovery would the court/judge look at you like you were crazy to ask such a thing? I mean, would you get raked over the coals for essentially calling the Plaintiff's lawyer a liar? I would hate to have the judge be p.o.ed from the get go!

If a person were able to get a letter from the CO, and have copies of their CR that show that XXX owned the debt now, what would be the document to file, and when would be a good time to present it? Has anyone actually dealt with this situation and how did it turn out??? (I did some searches on here, but it didn't turn up much... :( )

Edited by MamaCaldo
annoying spelling error!
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Usagi,

I disagree with #3. An attorney can easily claim that a retainer is privileged information. Also, whether we like it or not, a judge is going to assume the attorney is being truthful when naming the Plaintiff. Unless there is a specific statute or case law to back up your request, you would have to provide evidence that the attorney is untrustworthy. A judge is not going to compel an attorney to provide privileged information just based on your assumption that the attorney might be a liar.

Like you, I don't trust JDBs or their attorneys. I think they're all slime. BUT, absent evidence, case law, or statutes, our opinions don't matter to a judge.

I'm not being disrespectful or judgmental. Please don't think that. Some courts limit the amount of discovery requests made by a party. I believe the requests we make should be those that we know can be required.

Retainers are NOT privileged information. There was a recent case in my district where the judge told the attorneys to cough up the retainer and cited case law as to why they had to cough it up.

Yazzie v Farrell & Seldin:

Target identifies the relationship between it and Farrell & Seldin as an attorney-client relationship. It objects to identifying all of the documents that define the relationship, and refuses to produce the fee agreement. However, a fee agreement, unlike a confidential communication, is a fact and not governed by the attorney-client privilege. In re Grand Jury Subpoenas (Anderson), 906 F.2d 1485, 1492 (10th Cir. 1990). Therefore, Target should produce its retainer agreement with Farrell & Seldin, but it is not required to provide any other document defining the relationship.

I don't take any offense. This board is here for us to deal with serious issues that can have a profound impact on people's lives. If you think something is wrong, you need to speak up. If the other person provides a good reason, evidence, etc... that's excellent. If not, it's something that others should shy away from unless they are able to find something to support it. We're all here for similar reasons.

Edited by usagi555
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Retainers are NOT privileged information. There was a recent case in my district where the judge told the attorneys to cough up the retainer and cited case law as to why they had to cough it up.

Yazzie v Farrell & Seldin:

Target identifies the relationship between it and Farrell & Seldin as an attorney-client relationship. It objects to identifying all of the documents that define the relationship, and refuses to produce the fee agreement. However, a fee agreement, unlike a confidential communication, is a fact and not governed by the attorney-client privilege. In re Grand Jury Subpoenas (Anderson), 906 F.2d 1485, 1492 (10th Cir. 1990). Therefore, Target should produce its retainer agreement with Farrell & Seldin, but it is not required to provide any other document defining the relationship.

I don't take any offense. This board is here for us to deal with serious issues that can have a profound impact on people's lives. If you think something is wrong, you need to speak up. If the other person provides a good reason, evidence, etc... that's excellent. If not, it's something that others should shy away from unless they are able to find something to support it. We're all here for similar reasons.

That's good case law. That works. :)

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Retainers are NOT privileged information. There was a recent case in my district where the judge told the attorneys to cough up the retainer and cited case law as to why they had to cough it up.

*snipped*

I don't take any offense. This board is here for us to deal with serious issues that can have a profound impact on people's lives. If you think something is wrong, you need to speak up. If the other person provides a good reason, evidence, etc... that's excellent. If not, it's something that others should shy away from unless they are able to find something to support it. We're all here for similar reasons.

That's good case law. That works. :)

And I agree!! That is fantastico! Thank you both for this wonderful discussion!! :D

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Yeah, it's especially applicable to me, if you know what I mean;) If a debt collection law firm knows what is going on and isn't sure whether or not they can defeat an MTC, that's the kind of document request that will give them heartburn.

okay, I'm going to ask a n00b question.... I've checked in the abbrevations thread, I've searched and searched.... what does "MTC" stand for? :oops::oops::oops:

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MTC = Motion To Compel

If you asked for something in discovery and they either refused or failed to provide it, you can ask the courts to compel them to provide it.

You can find a lot of the acronyms here:

http://www.creditinfocenter.com/forums/please-read-before-posting-board-announcements/247970-commonly-used-abbreviations.html

When I said earlier that you need to be able to argue that it will lead to admissible and relevant evidence, this is why. You need to be able to tell the court why it isn't just some random piece of trivia that you are looking for. In Yazzie v Farrell & Seldin, it was because Target National Bank (TNB) was claiming that its relationship with Farrell & Seldin (F&S) was an attorney-client relationship. Part of the case required determining the extent of the relationship between the two entities. The Plaintiff was claiming that TNB should be liable for F&S's actions under NM Consumer Laws and NM Common Law. A proper defense for TNB would have been that F&S exceeded its authority. Showing the retainer could prove or disprove this. Unfortunately, the retainer in this case is under a protection order. There is somewhat of a consolation prize, however. One of the briefs submitted by the plaintiff discusses the retainer.

Basically, if you argue that you should see the retainer just because, you're not going to see it. If you argue that it is so that the courts can really determine what reasonable attorney fees are, you still will probably lose without further argument as to why, but it is far better than "just because." If you live in a state where debt collectors need to be licensed unless they are attorneys engaged in "purely legal" activities, and they've sent you dunning letters prior to filing suit, you are probably going to be able to construct a much stronger argument.

If you take the privilege objection away, they may still be able to object on the grounds that the retainer is irrelevant. I expect that a lot of judges are going to be unfamiliar with the ins and outs of retainers and privilege because it is going to be rare for somebody to ask for it. They're going to think what BV80 thought and for good reason. You are going to have to provide a strong argument to overcome a potential bias.

Edited by usagi555
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This occurs extremely rarely, although I have seen a couple of case rulings concerning it. It is not somehting that you need to conduct discovery on, or spend hours researching. The facts are that when conducting normal discovery you are going to find out. If you are being sued by Big Bank 1 and in discovery response you get an affidavit from Midland, then you need to dig into that subject.

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The only way to TRULY know if the OC is the party of interest is through discovery. In discovery you ask the other party for answers, admissions and documentation.

There are very few cases where someone blatantly pretends to be the OC, but it does happen. What is more likely is an attorney is pursuing the claim without the involvement of the OC. While it is a matter of semantics, you need to prepare yourself to defend as though you are defending against an OC.

Once a lawsuit is filed, the game is Chess, not Checkers. You are not going to have a Perry-Mason moment where you instantly defeat the case before it gets started.

Read the threads on how to defeat an OC. If you later discover it is a JDB through discovery, you job gets a whole lot easier.

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The only way to TRULY know if the OC is the party of interest is through discovery. In discovery you ask the other party for answers, admissions and documentation.

There are very few cases where someone blatantly pretends to be the OC, but it does happen. What is more likely is an attorney is pursuing the claim without the involvement of the OC. While it is a matter of semantics, you need to prepare yourself to defend as though you are defending against an OC.

Once a lawsuit is filed, the game is Chess, not Checkers. You are not going to have a Perry-Mason moment where you instantly defeat the case before it gets started.

Read the threads on how to defeat an OC. If you later discover it is a JDB through discovery, you job gets a whole lot easier.

Mine has turned into a game of chicken rather than chess.

If you discover it's a JDB after they were claiming to be an OC, I'd expect it gets very easy to defeat them. Much easier than if the JDB had filed in their own name to begin with.

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