Jump to content

OPINION OF THE US SUPREME COURT


Informed
 Share

Recommended Posts

"THE US SUPREME COURT in the DOCTRINE of "ejusdem generis"

"n interpreting a statute, a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that "a LEGISLATION says in a statute what it means and means in a statute what it says there.", .....and further states that" We( THE US SUPREME COURT)presume that "CONGRESS 'says in a statute what it means and means in a statute what it says there.", We contend this US SUPREME COURT RULING in the DOCTRINE of "ejusdem generis" applies to ALL STATUTES, FEDERAL as well as STATE, including the statutes in TENNESSEE LAW. Therefore, when you review the statutes which we indicate in this letter, it is to be "presumed that they mean what they say and say what they mean as written there", as stated by Congress and upheld by the US SUPREME COURT. ( Court Citations/case law) follow.

THE FEDERAL FAIR DEBT COLLECTION PRACTICES ACT and THE TENNESSEE FAIR DEBT COLLECTION PRACTICES ACT were passed into law by our elected officials in Washington, Dc and the state of Tennessee. We therefore apply the Doctrine of "ejusdem generis" as noted above to the following statutes, and contend that each statute 'says what it means, and means what it says as written there" ( I cite statutes here)

As far as Debt collectors go...

Quoting the above...seems to make these guys scratch their head, as if to say "What the &%^$%^& !

Link to comment
Share on other sites

Connecticut Nat. Bank v. Germain, 503 US 249 - Supreme Court 1992

"We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there."

Edited by BV80
Link to comment
Share on other sites

Informed, I think this is pretty clear, but you use the many canons of construction in order to argue that a statute applies or not. Ejusdem generis is but one of many canons- many of them "pair up" and can argue for or against inclusion/exclusion into the statute.

The canons have no meaning really until being used as a tool to argue that a staute applies to the factual situation or not. And to be clear, ejusdem generis is typically applied to EXCLUDE a defendant's behavior from the statutory prohibition.

Link to comment
Share on other sites

Informed, I think this is pretty clear, but you use the many canons of construction in order to argue that a statute applies or not. Ejusdem generis is but one of many canons- many of them "pair up" and can argue for or against inclusion/exclusion into the statute.

The canons have no meaning really until being used as a tool to argue that a staute applies to the factual situation or not. And to be clear, ejusdem generis is typically applied to EXCLUDE a defendant's behavior from the statutory prohibition.

I reference the Supreme Courts Decision re:"ejusdem generis" as a prelude to my citing the legislation in the FDCPA, and the Tenn FDCPA. I then point to those statutes which are unambiguous..(ie "Clear and Precise'')....and I leave it to the Debt Collector to explain why they are or are not in compliance with those regulations., and especially those Debt Collectors who purport to be licensed, are in fact not licensed in the State of Tennessee. The State of Tennessee language as far as license requirements is "unambiguous" in that the code states that "No Collection Service shall commence or conduct collection in this state unless they are licensed and bonded, and maintain a licensed and bonded location manager at each location The FDCPA language states that it is misleading to state or imply that a Debt Collector is vouched for, or bonded by any Government or State. The Tenn code further states that a Debt Collector's solicitors , who solicit accounts for collection must have in their possession, a "solicitor's identification card" which has been issued in their name by the State of Tennessee.

I also state the Doctrine's of "Vicarious Liability aka "Respondeat Superior" holding that "a company is liable for their actions and the actions of their employees,, while holding those employees personally liable for their actions"

I remind Debt Collectors that anyone who violates any Federal or State law, is subject to Civil prosecution by the Tennessee Collection Service Board and can be prosecuted under Criminal Law by the State of Tennessee.

I also remind Debt collectors that the language as stated in the US Supreme Court Decision made no reference to any exclusion as far as to any State or Federal legislation( FDCPA or TFDCPA)

The language as written in these statutes are "unambiguous"....clear and precise. "They mean what they say and say what they mean as written there"

Please note this is my interpretation, if I am off base, please explain why !

Thanks

Edited by Informed
Link to comment
Share on other sites

Ejusdem generis specifically has to do with whther a party or action by that party fits within a list given within a statute of (typically prohibitive actions) or not.

Sometimes there are specific and general descriptors given within the same list. Ejusdem generis limits the scope of the general descriptors by the mere fact that more specific descriptors are present. Ejusdem generis quite literally means "of the same kind", so it refers to whether or not an action is "of the same kind" of a given list or not- and just how to interpret exactly where the legislature was trying to set the boundaries for that statute.

Sounds like a pretty stupid rule, but its useful because legislatures can't prospectively think of every possible situation, so they typically give examples as part of the statute to clarify. And this canon helps draw the line. Ejusdem generis legal definition of Ejusdem generis. Ejusdem generis synonyms by the Free Online Law Dictionary.

To me, it seems your use of ejusdem generis is out of context. Was an ambiguous list of prohibitive behaviora provided by statute and there is somehow a question of whether or not a debt collector can avoid the statute? If not, using ejusdem generis doesn't really apply and would likely be met with head scratching by any debt collector attorney or judge.

Cite the statute requiring licensure. Cite that fact the debt collector is not licensed to practice. The other stuff is extraneous and a bit distracting really. The fact is, theyare breaking an unambiguous law. You know it and they know it. So my suggestion is not to muddy the waters.

Link to comment
Share on other sites

Ejusdem generis specifically has to do with whther a party or action by that party fits within a list given within a statute of (typically prohibitive actions) or not.

Sometimes there are specific and general descriptors given within the same list. Ejusdem generis limits the scope of the general descriptors by the mere fact that more specific descriptors are present. Ejusdem generis quite literally means "of the same kind", so it refers to whether or not an action is "of the same kind" of a given list or not- and just how to interpret exactly where the legislature was trying to set the boundaries for that statute.

Sounds like a pretty stupid rule, but its useful because legislatures can't prospectively think of every possible situation, so they typically give examples as part of the statute to clarify. And this canon helps draw the line. Ejusdem generis legal definition of Ejusdem generis. Ejusdem generis synonyms by the Free Online Law Dictionary.

To me, it seems your use of ejusdem generis is out of context. Was an ambiguous list of prohibitive behaviora provided by statute and there is somehow a question of whether or not a debt collector can avoid the statute? If not, using ejusdem generis doesn't really apply and would likely be met with head scratching by any debt collector attorney or judge.

Cite the statute requiring licensure. Cite that fact the debt collector is not licensed to practice. The other stuff is extraneous and a bit distracting really. The fact is, they are breaking an unambiguous law. You know it and they know it. So my suggestion is not to muddy the waters.

If a debt collector is not licensed in Tenn...I always cite that fact, as the language in Tenn is "unambiguous"

If an attorney states in their letter that 'this communication is from a Debt Collector"...I always cite code which states " any person who represents themselves a Debt Collector is subject to the Tennessee Fair Debt Collection Practices Act which requires Debt Collectors to be licensed"

Thank you for your input !

Link to comment
Share on other sites

Your probably, especially if dealing with a JDB, get them to fold using those long letters and quoting statutes along with making demands they have zero obligation to meet or explain to you.

However, if one ever calls your bluff, you need to be prepared with more than fancy sounding legal terms and case law that sounds good. Also, you don't want to go into court and argue they did not explain or provide you something they are not obligated, by law, to do.

Link to comment
Share on other sites

Your probably, especially if dealing with a JDB, get them to fold using those long letters and quoting statutes along with making demands they have zero obligation to meet or explain to you.

However, if one ever calls your bluff, you need to be prepared with more than fancy sounding legal terms and case law that sounds good. Also, you don't want to go into court and argue they did not explain or provide you something they are not obligated, by law, to do.

Perhaps you are correct, but I'm of the opinion that they will be required to "produce" and "explain" in order to show "legal standing"

I'm basing my opinion on Tenn Rule of Evidence @501, Court Rules @106 and Federal Rules @26 and 26(B). And the info requested has been cited in various court jurisdictions as being "non privileged'.

...and the fact that they know they can be compelled to ''explain" and "produce'' material facts they can't explain or produce is why they always back down...not because someone is bluffing. A defendant should cite laws and case precedent/s..it is the adversary's responsibility to cite laws and overruling case precedent/s which negate those laws the opposition has cited....hardly "bluffing"

And as KentWa posted " I would say that § 807 says it all in the opening sentence.

Quote:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.

For even the reasonable sophisticated debtor the thought that comes to mind is "Who do I have to pay?".

Edited by Informed
Link to comment
Share on other sites

Your 100% correct on what they will have to produce. However, not in then response to your debt validation letter. They will have to, 100%, during discovery and/or at trial.

Your hitting them with legit demands, just at the wrong time. That's fine if you know that and don't try to get a violation out of it. The down side is they might, unlikely, see you as somebody that is just copying and pasting from the internet and sue you.

Your demands and what they have to prove are right on. Just keep in mind your giving them a ton of needless info and making a ton of demands, right out of the gate that are unnecessary and/or have no legal authority backing them.

However, once again, you probably won't have to deal with it. A consumer fighting backing, in any manner, usually gets the JDB cowards running.

Link to comment
Share on other sites

For even the reasonable sophisticated debtor the thought that comes to mind is "Who do I have to pay?".

Even the least sophisicated debtor will know it's the company listed on the letter and the company where is says make checks payable to XXXX. :)

What your doing is being the sophisticated debtor (which is great) and challenging they are the legal owners. A fine idea and pretty much stupid to pay somebody that you don't know if they even have standing. However, their initial letter is not confusing. It clearly states who you should pay, them.

Your reading way too much into the letter and the DV process. Your attacks, which are correct, come at later stages.

Link to comment
Share on other sites

Granted...Debt collectors know they don't have to show anything outside of court...but they also know it could be very expensive for them if they go to court with nothing to show ...especially if they aren't licensed in Tenn or if any purported assignment is not in writing . Why wait until Discovery ? Hit them hard at the onset...and if hard enough, it won't reach the litigation or the Discovery phase...heck, hit them with with a grocery list of Bill of Particulars..

another Tenn Law is as follows:

Chapter No. 674] PUBLIC ACTS, 2004 1

CHAPTER NO. 674

SENATE BILL NO. 1539

By Haynes

Substituted for: House Bill No. 1569

By Briley, Vincent

AN ACT to amend Tennessee Code Annotated, Title 47, Chapter 14 and Title 62, Chapter 20.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Title 62, Chapter 20, Part 1, is amended by

adding a new section thereto, as follows:

Section 62-20-127. (a) A collection service holding a valid license under this

chapter may take assignment of accounts, bills, notes or other indebtedness held by

another person or entity, for the purpose of billing, collecting or filing suit in the collection

service licensee's own name, as the real party in interest, if all the following

requirements have been met:

(1) The assignment was voluntary, properly executed, and acknowledged

by the person or entity making the assignment to the collection service licensee;

(2) The original agreement between the creditor and the debtor does not

prohibit assignments;

(3) The assignment was manifested by a written agreement stating the

effective date of the assignment and the consideration paid or given, if any, for

the assignment. The written agreement must also disclose that the collection

service licensee may, for purposes of litigation, consolidate the assigned

account, bill, note or other indebtedness with those of other creditors against the

individual debtor or co-debtors; and

(4) A collection service licensee bringing suit in its own name as an

assignee may submit an affidavit of sworn account that has been executed under

oath by the assigning party or by a person qualified to execute a sworn account

pursuant to Tennessee Code Annotated, Section 24-5-107(a). A copy of the

sworn account shall be filed with the court for service upon the debtor.

(B) A collection service licensee may commence litigation for the collection of an

assigned account, bill, note or other indebtedness in a court of competent jurisdiction

located in any of the following counties:

(1) The county in which the debtor signed the account, bill, note or other

indebtedness sued upon;

Chapter No. 674] PUBLIC ACTS, 2004 2

(2) In the case of consolidated accounts that all arose from the same

county, the county in which all of the consolidated accounts, bills, notes or other

indebtedness arose; or

(3) The county in which the debtor resides at the commencement of the

action.

© No collection service licensee shall commence any litigation authorized by

this section, unless the collection service licensee appears by an attorney admitted to

practice law in the State of Tennessee.

(d) (1) For purposes of commencing litigation, a collection service licensee that

has taken an assignment or assignments pursuant to this section may

consolidate the assigned accounts, bills, notes or other indebtedness of one or

more creditors against one individual debtor or co-debtors, in one case. Each

assigned account, bill, note or indebtedness must be separately identified and

pled in any consolidated action authorized by this section. The individual amount

of each account, bill, note or other indebtedness that forms the basis for any

consolidated action shall not exceed two hundred dollars ($200) each, as

identified and pled by the collection service licensee, exclusive of court costs,

attorney fees and interest that may have accrued before the filing of the

consolidated action. The aggregate amount of consolidated accounts, bills, notes

and other indebtedness in any one case shall not exceed five hundred dollars

($500), as identified and pled by the collection service licensee, exclusive of

court costs, attorney fees and interest that may have accrued before the filing of

the consolidated action. Court costs shall be assessed to the losing party.

Interest and attorney fees and reimbursable expenses shall be assessed against

the losing party, if provided in any of the consolidated accounts, bills, notes or

other indebtedness, or as otherwise permitted or required by law.

(2)If a debtor or co-debtor FILES A SWORN DENIAL or otherwise raises a

dispute concerning any account, bill, note or other evidence of indebtedness, the

court shall dismiss the account, bill, note or other evidence of indebtedness,

without prejudice. The collection service licensee may bring a separate case for

any such disputed account, bill, note or other evidence of indebtedness within

one (1) year of dismissal; provided, however, that the disputed account, bill, note

or other evidence of indebtedness cannot be consolidated with any other

account, bill, note or other evidence of indebtedness.

(3) For any account on which an affidavit of sworn account is filed

pursuant to Tennessee Code Annotated, Section 24-5-107(a), a separate

affidavit shall be filed for each account in a consolidated action.

(e) Nothing in this section relieves a collection service licensee from complying

with the "Fair Debt Collection Practices Act", 15 U.S.C. § 1692, as amended, or deprives

any debtor of the right to assert defenses as provided therein.

(f) On the face of any warrant or other pleading filed in any consolidated action,

or in an attachment thereto, the collection service licensee shall state the order in which

the creditor intends to apply payments received on any judgment obtained in the

consolidated action. The collection service licensee shall also state that payments will

Chapter No. 674] PUBLIC ACTS, 2004 3

be applied as stated unless the debtor instructs otherwise in writing or the court orders

otherwise.

SECTION 2. This act shall take effect July 1, 2004, the public welfare requiring it.

PASSED: May 5, 2004

APPROVED this 18th day of May 2004

BY:

PHIL BREDESEN, GOVERNOR, STATE OF TENNESSEE

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

POINTS OF INTEREST (1) RE: The Collection Service Licensee (Tennessee requires Debt Collectors to be licensed in Tennessee before commencing or conducting Collection efforts)....has the collection Service shown proof of their license in Tenn ?(2) Assignments must be in writing, etc......is it ?(3) The term 'collection service licensee" is used thru out this code.." without limiting the definition of this code, a collection service licensee is required to be licensed and bonded in Tenn, as Tenn does not have reciprocal agreements with other states.

(4) Now the word "commence" is also an interesting word. "Commence" basically means to start or begin. I suggest that a Debt Collector who is not licensed in Tenn cannot commence(start or begin) collection in any manner to include litigation or retaining an attorney, as to do so would be to "commence". Tenn Code holds that a Debt Collector not licensed in Tenn CANNOT COMMENCE or CONDUCT (see TFDCPA @ 62-20-101 and 105 thru 127) it's in there !

Edited by Informed
Link to comment
Share on other sites

Granted...Debt collectors know they don't have to show anything outside of court...but they also know it could be very expensive for them if they go to court with nothing to show ...especially if they aren't licensed in Tenn or if any purported assignment is not in writing .

Your preaching to the choir my friend. All I am saying is make sure you know none of that is required. Your 100% aware and won't make the mistake of trying to get the case dismissed if they don't provide all that in a DV response.

There are people who base their whole defense around, they did not give me what I asked for in DV so I win.

I'm on your side. I like going to court. Heck, I try to goad them into suing me. I send letters that try to appear I have no clue just to get sued, so you don't have to convince me. We're on the same side, just for those reading your posts, I don't want somebody thinking all that is required in the DV stage.

Link to comment
Share on other sites

Are you a follower of a poster known as Pro Say aka Noway?

No...my cousin is an Assistant District Attorney in Nashville...and keeps me on the straight and narrow. I've gained quite an education in law thanks to him ! But Coltfan, you are correct...cases aren't won on simple lack of validation...they are won when the other side cannot produce the requisite information and documentation. My point is to make sure the other side knows that "it won't be an easy target, if litigation becomes an issue". And I might add that my cousin has a very good close relationship with the OFFICE OF THE STATE ATTORNEY GENERAL and has often advised me on how best to proceed with that office if the need should arise.

Edited by Informed
Link to comment
Share on other sites

Your probably, especially if dealing with a JDB, get them to fold using those long letters and quoting statutes along with making demands they have zero obligation to meet or explain to you.

However, if one ever calls your bluff, you need to be prepared with more than fancy sounding legal terms and case law that sounds good. Also, you don't want to go into court and argue they did not explain or provide you something they are not obligated, by law, to do.

IMHO, there are cases or ways to do this. For example, a collector (not OC) is not legally obligated to show the (alleged) debtor that they have standing to collect. However, if the (alleged) debtor did demand that proof, then CA sues debtor, provides the proof of standing in court, and debtor settles agreeing to pay ... IMHO the debtor should not be on the hook for the CA's legal fees in bringing the suit. This is because the debt "made it clear" that he wanted to know and be sure he was dealing with the true creditor, and not some scammer, and that the creditor did have the opportunity to avoid "wasting the time of the court" and "wasting legal fees" by voluntarily (important to insert that word) providing the essential proof.

Summary: asking, before there is a suit, for certain things they are not legally obligated to provide, COULD (I don't know of legal points for this, but the logic makes sense to me) change SOME of the outcome. So I say there is an argument FOR asking for things not legally required, AND using that as evidence in court regarding their intentions.

Yeah, I'm still flying that "proof of standing" flag :D

Edited by Torden
inserted paragraph #2
Link to comment
Share on other sites

Even the least sophisicated debtor will know it's the company listed on the letter and the company where is says make checks payable to XXXX. :)

What your doing is being the sophisticated debtor (which is great) and challenging they are the legal owners. A fine idea and pretty much stupid to pay somebody that you don't know if they even have standing. However, their initial letter is not confusing. It clearly states who you should pay, them.

Your reading way too much into the letter and the DV process. Your attacks, which are correct, come at later stages.

While their initial letter might say we 'should pay them"...they need to show proof that one is 'required by law to pay "them".

This is accomplished by showing a complete unbroken chain of title , beginning with the original creditor showing that each member in that chain had legal standing at the time they took assignment and certainly before the account was assigned to the present debt collector. The present collector is required to show legal standing by providing a valid assignment which has been properly executed and acknowledged by the parties, and this assignment must be manifested by a written agreement showing date the agreement was executed and show consideration paid or given if any.

In a nutshell..the collector needs to show either before or during litigation why a debtor "should or is required to pay "them''....mere conjecture is legally insufficient.

And in Tenn, a Debt collector is required to be licensed as such before "commencing or conducting" collection of debts, and must meet the requirements of Tenn Fair Debt Collection Practices Act 62-20-101 and especially all codes 62-20-105 thru 127 and 127(a) as amended

Failure to meet these codes(about 30 or so) are violations, and can be pursued.

Edited by Informed
Link to comment
Share on other sites

and AKA NamVet...

That was my guess too though... I bet if they check IP's they will come back Matching Pro Say's ISP.

Hey Jordan, did I read here in the forum that you were recovering or had recovered from a severe illness, cancer perhaps ?

My mother in law, God rest her soul, passed away about 5 years ago.

I wish you well and hope you have a full recovery !

And best wishes for a HAPPY AND PROSPEROUS NEW YEAR !

PEACE ON EARTH, MY FRIEND, PEACE ON EARTH !

Link to comment
Share on other sites

Guest usctrojanalum

Wow, Prosay/Noway/NamVet has finally made his return. I'll run an IP check later, I know it's going to be the same poster again.

Informed, you should learn how to use a question mark and exclamation point and fix your other grammatical flaws before posting again so it is not excruciatingly easy to recognize your posting style.

Link to comment
Share on other sites

__________________

Contrary to popular belief, civil court is not "innocent until proven guilty"... that is only criminal court. In civil court the complaint is prima facie true unless you can show differently. The burden of proof is simply what the judge believes to be more likely true than not. - Methuss

Reply With Quote

And the burden of proof will lie with the Plaintiff(as in preponderance of the evidence) to show:

(1) Their legal standing in the cause of Action

(2) Their license and bond to Collect debts in the State of Tenn

(3) The name and location of their license and bonded location manager or managers in Tenn.

(4) The name/s of their solicitors who solicit debts for collection in Tenn, and as to each show that the solicitors so named have in their possession a valid registration card issued to them by the State of Tennessee Collection Services Board.

(5) A valid assignment, manifested by a written agreement properly executed and acknowledged by the parties which shows consideration paid or given if any.

and for the information of those interested, Tenn code states "if a person Disputes or submits a Sworn Denial, the court shall dismiss without prejudice.

Link to comment
Share on other sites

bwhahahahaha!!!!!

You have to be one of the biggest tool's on the web..

__________________

Contrary to popular belief, civil court is not "innocent until proven guilty"... that is only criminal court. In civil court the complaint is prima facie true unless you can show differently. The burden of proof is simply what the judge believes to be more likely true than not. - Methuss

Reply With Quote

And the burden of proof will lie with the Plaintiff(as in preponderance of the evidence) to show:

(1) Their legal standing in the cause of Action

(2) Their license and bond to Collect debts in the State of Tenn

(3) The name and location of their license and bonded location manager or managers in Tenn.

(4) The name/s of their solicitors who solicit debts for collection in Tenn, and as to each show that the solicitors so named have in their possession a valid registration card issued to them by the State of Tennessee Collection Services Board.

(5) A valid assignment, manifested by a written agreement properly executed and acknowledged by the parties which shows consideration paid or given if any.

and for the information of those interested, Tenn code states "if a person Disputes or submits a Sworn Denial, the court shall dismiss without prejudice.

Link to comment
Share on other sites

bwhahahahaha!!!!!

You have to be one of the biggest tool's on the web..

"Be wary when it comes to the advice you choose to take. Always keep in mind that the person offering you advice does not have to share in your consequences for taking it... CAVEAT EMPTOR!

Reply With Quote

Be wary of those who advise against holding Debt Collectors accountable for complying with your State laws"...they do not share in the consequences for your failing to do so"

"CAVEAT EMPTOR" back at cha !

Jordan, I do wish you and the forum membership good health, a Merry Christmas and a Happy and Prosperous New year !

Edited by Informed
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.