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"This is Not An Admission, But Can We Settle"


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The only way to even begin to trust what a CA says is if they put it in writing. And 20 to 30% is hard to negotiate.

If you want to negotiate see if they have violated any of the fcra or fdcpa laws and then if they have then you have some ammo to use against them to get a settlement.

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So I request calculation of the deficiency with the OC directly correct? Is there a formal letter that can give some teeth to the request?

Something that says if they didn't follow x process or provide evidence of deficiency then they need to make the balance $0...

I ask because if I simply request calculation of the deficiency then if they don't provide it then what am I demanding?

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  • 2 weeks later...

If a consumer debtor requests a calculation of surplus or deficiency pursuant to his state's UCC, the "creditor" must provide a response containing the statutory information within 14 days.

If the creditor fails to provide the calculation, he must, in the alternative provide you with notice that the deficiency is waived.

The net effect of failure to provide the calculation is waiver of the deficiency.

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If a consumer debtor requests a calculation of surplus or deficiency pursuant to his state's UCC, the "creditor" must provide a response containing the statutory information within 14 days.

If the creditor fails to provide the calculation, he must, in the alternative provide you with notice that the deficiency is waived.

The net effect of failure to provide the calculation is waiver of the deficiency.

Within the meaning of the State UCC, in this particular situation, what is the definition of the "deficiency"?

Is it the amount that is delinquent, as in a number of missed minimum payments, interest and penalty fees or the entire alleged amount in question?

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You may not have a strong hold or a great chance to winning over a settlement from OC, especially if you have limited access or limited knowledge about settlement and everything about credit. Perhaps, you can seek consult and advice, and see if they have committed certain misconduct or anything that goes beyond their jurisdiction already. However, be careful, they can also sue you for any misinformation you may impose on them.

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Texas Laws - Business and Commerce Code

TITLE 1. UNIFORM COMMERCIAL CODE

CHAPTER 9. SECURED TRANSACTIONS

Sec. 9.616. EXPLANATION OF CALCULATION OF SURPLUS OR DEFICIENCY.

(a) In this section:

(1) "Explanation" means a writing that:

(A) states the amount of the surplus or deficiency;

(B) provides an explanation in accordance with Subsection © of how the secured party calculated the surplus or deficiency;

© states, if applicable, that future debits, credits, charges, including additional credit service charges or interest, rebates, and expenses may affect the amount of the surplus or deficiency; and

(D) provides a telephone number or mailing address from which additional information concerning the transaction is available.

(2) "Request" means a record:

(A) authenticated by a debtor or consumer obligor;

(B) requesting that the recipient provide an explanation; and

© sent after disposition of the collateral under Section 9.610.

(B) In a consumer-goods transaction in which the debtor is entitled to a surplus or a consumer obligor is liable for a deficiency under Section 9.615, the secured party shall:

(1) send an explanation to the debtor or consumer obligor, as applicable, after the disposition and:

(A) before or when the secured party accounts to the debtor and pays any surplus or first makes written demand on the consumer obligor after the disposition for payment of the deficiency; and

(B) within 14 days after receipt of a request; or

(2) in the case of a consumer obligor who is liable for a deficiency, within 14 days after receipt of a request, send to the consumer obligor a record waiving the secured party's right to a deficiency.

© To comply with Subsection (a)(1)(B), a writing must provide the following information in the following order:

(1) the aggregate amount of obligations secured by the security interest under which the disposition was made and, if the amount reflects a rebate of unearned interest or credit service charge, an indication of that fact, calculated as of a specified date:

(A) if the secured party takes or receives possession of the collateral after default, not more than 35 days before the secured party takes or receives possession; or

(B) if the secured party takes or receives possession of the collateral before default or does not take possession of the collateral, not more than 35 days before the disposition;

(2) the amount of proceeds of the disposition;

(3) the aggregate amount of the obligations after deducting the amount of proceeds;

(4) the amount, in the aggregate or by type, and types of expenses, including expenses of retaking, holding, preparing for disposition, processing, and disposing of the collateral, and attorney's fees secured by the collateral which are known to the secured party and relate to the current disposition;

(5) the amount, in the aggregate or by type, and types of credits, including rebates of interest or credit service charges, to which the obligor is known to be entitled and which are not reflected in the amount in Subdivision (1); and

(6) the amount of the surplus or deficiency.

(d) A particular phrasing of the explanation is not required. An explanation complying substantially with the requirements of Subsection (a) is sufficient, even if it includes minor errors that are not seriously misleading.

(e) A debtor or consumer obligor is entitled without charge to one response to a request under this section during any six-month period in which the secured party did not send to the debtor or consumer obligor an explanation pursuant to Subsection (B)(1). The secured party may require payment of a charge not exceeding $25 for each additional response.

Added by Acts 1999, 76th Leg., ch. 414, Sec. 1.01, eff. July 1, 2001.

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