Jump to content

The Dreaded Affidavit in response to a DV letter


Recommended Posts

This occurred with me, I sent the DV and received an affidavit that had a heading of The Damed Bankster V ME which simulated a court document and implies that a lawsuit has already been commenced.

Why else send that except to intimidate the consumer

Michigan Occupational Code M.C.L. 339.915. Prohibited acts

(a) Communicating with a debtor in a misleading or deceptive manner,

(B) Using forms or instruments which simulate the appearance of judicial process.

(d) Using forms that may otherwise induce the belief that they have judicial or official sanction.

(f) Misrepresenting in a communication with a debtor any of the following:

(i) The legal status of a legal action being taken or threatened.

(p) Using a method contrary to a postal law or regulation to collect an account.

By the use of an affidavit sent by USPS mail in response to a request for validation of the alleged debt attributed to the Damned Bankster in which the heading indicates Bankster Vs. Me.

The document is clearly intended to intimidate, confuse, and create the impression that legal action has commenced when the defendant simply requested validation. Defendant asserts that the sending of such a document by itself as response to a first request for validation and not as an attachment to a formal summons and complaint violates the intent, law and spirit of the FDCPA and Michigan Occupational Code M.C.L. 339.915. Prohibited acts

The affidavit WITHOUT the heading Damned Bankster vs Me may be an appropriate document in response to a validation request but the addition of the heading to create the appearance of a legal document changes the intent and effect of the document and thus violates the law.

Sometimes you have to look at these things word by word, phrase by phrase to pull out the inconsistencies and violations, I think we (when we are new at this) often have the habit of making certain assumptions early on in these cases that hinder us later. Personally I like to think of the affidavit as a gift because of the opportunities it provides the collector to violate.

Link to comment
Share on other sites

I'm going through and trying to pull all the parts of my information and responses together here.

So you have a violation of State or Federal Laws, you identify the cross or counter claim in your pleading and then you have to ask the court to grant you the relief you are looking for. So this is another part of the process and the last part of my pleadings, (not including my affidavits and motions)

After going through this I believe in hitting the opposition as hard as I can right out of the gate.

a. WHEREFORE, the Plaintiff has failed to show right to relief the defendant motions for and prays for summary judgment: dismissing the complaint herein with prejudice.

b. WHEREFORE, Should Defendant be denied relief in the form of a dismissal with prejudice the defendant respectfully requests permission of the Court to pursue Discovery, including submission of interrogatories, Admissions and Production of Documents.

c. WHEREFORE the defendant’s rights as identified in the Fair Debt Collection Protection Act were violated. That the correspondence sent by Nasty Collector violated FDCPA 339.91(2) Notice of debt; dispute and verification of debt amount in that the right to request validation of the debt and to dispute the debt was not included in the initial dunning letter, the defendant prays for relief and statutory damages of 1,000.00 and for such other and further relief as may be just and proper.

d. WHEREFORE the defendant’s rights as identified in the Michigan’s M.C.L. 339.901 et seq. were violated by the Nasty Collector defendant prays for relief and statutory damages of 3 times the actual damages per violation as defendant asserts the violations were willful.

e. WHEREFORE the defendant’s rights as identified in TCPA 47 U.S.C. § 227 were violated by the Nasty Collector defendant prays for relief and statutory damages of $1,500.00 per call; and for such other and further relief as may be just and proper.

f. WHEREFORE the Nasty Collector has violated FDCPA 15 USC 807. False or misleading representations (13) The false representation or implication that documents are legal process. defendant prays for relief and statutory damages of 1,000.00 and for such other and further relief as may be just and proper.

g. WHEREFORE Nasty Collector has violated Michigan Occupational Code M.C.L. 339.901 defendant prays for relief and statutory damages for 3 times the actual damages per violation as defendant asserts the violations were willful and such other and further relief as may be just and proper.

I think that identifying each cross and counter claim in the intial response should be done and laid out as clearly as possible. Your job does not end there however. If you want the court to seriously consider and act on your requests you need to submit more to the court.

That is going to include your AFFIDAVIT and COMPLAINT

Link to comment
Share on other sites

Now Comes Plaintiff ME in pro per and in his Cross Claim against the defendant own behalf and on behalf of all other similarly situated in the aforementioned action states to this Honorable Court as follows;

1. The transactions and occurances which give rise to this action occurred in XXX

2. Jurisdiction and Venue are proper in this Court.

3. That the Plaintiff is the real party in interest and is a consumer as defined under the Fair Debt Collection Practices Act and as such has standing to bring the aforementioned cross claim.

4. That Defendant SHYSTER PC is a debt collector as defined under the Fair Debt Collection Practices Act." 15 USC 1692(6) and was assigned by BANKSTER NA sometime prior to 2010 to collect an alleged debt claimed due and owing to BANKSTER from Plaintiff

5. That Defendant SHYSTER PC on or about XXX 2010 did send a validation letter pursuant to 15 USC 1692 (g) to Plaintiff which was postmarked XXX 2010 and received XXX 2010

(Exhibit I)

6. That the dunning letter submitted by SHYSTER was on the law firm’s official letterhead and as such caused Plaintiff a great deal of anxiety and stress in the belief that a lawsuit was imminent when in fact plaintiff was not served a summons and complaint until 2011.

7. That the dunning letter on the firm’s letterhead was in fact false, misleading, and an unfair method to collect a debt by creating undue fear in an attempt to intimidate the Plaintiff pursuant to 15 USC 1692e § 807. False or misleading representations (3) and (5) and Section 1692g thus causing the Plaintiff to suffer damages.

8. That Plaintiff did respond to the dunning letter on XXX 2010 and requested validation of the alleged debt. (Exhibit F)

9. SHYSTER did in fact attempt to validate the debt allegedly owed by plaintiff by submitting an affidavit of debt to the plaintiff. (Exhibit A) in violation of FDCPA 15 USC 807. False or misleading representations (13) The false representation or implication that documents are legal process.

10. That the affidavit of debt had as a heading BANKSTER PLAINTIFF v. PLAINTIFF ME DEFENDANT and was designed to simulate court documents and as such constitutes making a threat of suit against the plaintiff when the plaintiff had only requested validation of the alleged debt. The affidavit thus violated FDCPA 15 USC 1692e § 807. (3) and (5). False or misleading representations and Section 1692g

11. Plaintiff was unaware of formal action in the aforementioned matter until being formally served on XXX 2011. As such plaintiff avers that the only purpose of submitting such a document as Exhibit A is to cause undue emotional distress, harm and to intimidate and harass the plaintiff in an attempt to collect a debt in violation of FDCPA

12. That the affidavit dated XXX 2011 was presented in place of a proper summons and complaint to inform the plaintiff of an imminent lawsuit was not a proper instrument to validate the alleged debt as it mimicked and simulated an official document of the court, said affidavit was not filed with the court by the defendant until 6 MONTHS AFTER THE REQUEST FOR VALIDATION of 2011. Further the affidavit gave the appearance that a lawsuit had been instituted and that the document was in the hands of the Court and constitutes an attempt to intimidate and harass the plaintiff in violation of FDCPA

13. The dunning letter (Exhibit I) was sent to the plaintiff on letter head from the firm of SHYSTER Attorney’s and Counselors at Law did not indicate that a meaningful review of the alleged had taken place, and no reference to the alleged account being pursued in a lawsuit was indicated leaving the affidavit to speak to the matter.

14. That the submission of the affidavit by SHYSTER does not meet even the most minimal of requirement for a valid response to a request for validation of debt under FDCPA. And thus constitutes a failure to validate the debt 15 U.S.C. § 1692g(B),

which provides that if a consumer submits a timely, written dispute to a debt collector, “the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt

Link to comment
Share on other sites

collector.”after the submission of a timely request for validation by the Plaintiff

.

The debt collector Defendant, through their own acts, by and through their agents and employees, and their policies and procedures, have violated the FDCPA which has caused damage to the Plaintiff. The affidavit does not constitute a valid response to validation and as such SHYSTER by serving the defendant IN 2011 has continued an attempt to collect on a debt without validation of said debt.

The Defendant falsely represented the legal status of the alleged debt, violating 15 USC § 1692e, 15 USC § 1692e(2)(A) and other provisions of the FDCPA.

The debt collector Defendants made misleading and deceptive statements in the collection of a debt in violation of 15 USC § 1692e.

The Defendants served on debtors and filed Affidavits containing false

and misleading statements as proof of the existence, amount and status of

alleged debts in violation of 15 USC § 1692e; 15 USC § 1692f.

Defendants used the unfair, deceptive and misleading affidavits as a

response to a written dispute from a debtor and/or a request for

verification/validation.

Defendant violated FDCPA 15 USC 807. False or misleading representations (13) The false representation or implication that documents are legal process.

The unfair, deceptive and misleading affidavit is not proper validation.

Defendant attempted to collect debts after having answered a dispute

and/or verification/validation request with the false, unfair, deceptive and

misleading affidavit in violation of 15USC 1692g.

The Defendants used unfair or unconscionable means to collect or

attempt to collect a debt in violation of 15 USC § 1692f including but not

limited to 15 USC § 1692f(1).

The violations have harmed the plaintiff and unless enjoined will continue to harm

the public interest by causing Plaintiffs to pay collection charges that are

unfair deceptive, unlawful, and an unfair method of competition.

Furthermore Plaintiff asserts SHYSTER violated the following Michigan Occupational Code M.C.L. 339.915. Prohibited acts

(a) Communicating with a debtor in a misleading or deceptive manner,

(B) Using forms or instruments which simulate the appearance of judicial process.

(d) Using forms that may otherwise induce the belief that they have judicial or official sanction.

(f) Misrepresenting in a communication with a debtor any of the following:

(i) The legal status of a legal action being taken or threatened.

(p) Using a method contrary to a postal law or regulation to collect an account

CLASS ALLEGATIONS

This action is brought on behalf of a class consisting of:

All persons in the State of Michigan

From whom defendants collected or attempted to collect a debt or

alleged debt;

Using an Affidavit in a form similar to Exhibit A and created to mimic an official court document.

The class period for the FDCPA is one (1) year prior to the date of filing

this action.

The class is sufficiently numerous that joinder of all members is

impractical.

This assertion is based upon the fact that the Defendants threaten

to sue and do sue hundreds of consumers in the State of Michigan

by the use intimidation through affidavits designed to look like an official document of the Court.

The misrepresentations and unfair statements in the Affidavit is part of the

boilerplate of the form used to create the affidavit served and filed in

thousands of cases.

The Affidavits sent to consumers in response to a request for validation of a debt in collection matters is a form that is materially identical to the ones received by all members of the proposed class.

There are questions of law and fact common to the class which

predominates over any questions peculiar to individual class members.

The principal issues include whether Defendants violated the FDCPA,

by

Using false representations or deceptive means to collect or

attempt to collect a debt;

Using unfair or unconscionable means to collect or attempt to

collect a debt;

Link to comment
Share on other sites

There are no individual questions other than issues which can be

determined by a ministerial inspection of Defendants’ records. There are

no individual questions peculiar to individual class members.

Plaintiffs have the same claims as the members of the class. All of the

claims are based on the same factual and legal theories.

Plaintiff will fairly and adequately represent the interest of the class

members. Plaintiff is committed to vigorously litigating this matter.

Plaintiff does not have any interests which might cause them not to

vigorously pursue this claim.

A class action is a superior method for the fair and efficient adjudication

of this controversy.

Class wide damages are essential to induce Defendants to comply with

the law.

The interest of the class members in individually controlling the

presentation of separate claims against the Defendants is small because

the maximum statutory damages in an individual FDCPA action are

$1,000.00.

Certification of a class pursuant to Rule 23(B)(3) of the Federal Rules of

Civil Procedure is appropriate. A class action is the only appropriate

means of resolving this controversy because the class members are not

aware of their rights. In the absence of a class action, a failure of justice

will result.

Certification of a class pursuant to Rule 23(B)(2) of the Federal Rules of

Civil Procedure is also appropriate. Defendants have acted on grounds

generally applicable to the class, thereby making appropriate declaratory

relief with respect to the class as a whole.

DEMAND

Statutory individual damages for the named plaintiffs pursuant to the

FDCPA, 15 U.S.C. § 1692k(a)(2);

Statutory class damages for the named Plaintiffs and putative class

members pursuant to the FDCPA 15 U.S.C. § 1692k(a)(2)(B);

The defendant’s rights as identified in the Michigan’s M.C.L. 339.901 et seq. were violated by SHYSTER defendant prays for relief and statutory damages of 3 times the actual damages per violation as defendant asserts the violations were willful.

Declaratory Judgment that Defendants' practices violate the Fair Debt

Collection Practices Act and/or the Michigan Consumer Protection

Act; and/or the Michigan Collection Agency Act;

Disgorgement pursuant to ##### of all interest, service

charges, attorneys’ fees, collection costs, delinquency charge or any other

fees or charges otherwise legally chargeable to the debtor on such claim,

collected by Defendants;

Injunctive relief;

For such other and further relief as may be just and proper by this Honorable Court

Notes

engaged in “collection of the debt” in violation of

§ 1692g(B)

An injury in fact is one that is specific, traceable to

the subject matter of the suit, and capable of being redressed by the court

Congress enacted the FDCPA in order 'to eliminate abusive debt

collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection

Link to comment
Share on other sites

Affidavit of PLAINTIFF

State of

County of

PLAINTIFF being duly sworn, deposes and says he is of suitable age and discretion to testify in a Court of Law and that he makes this affidavit based on personal knowledge and if called upon to testify would testify as follows:

1. This is a Consumer debt allegedly owed to BANKSTER

2. SHYSTER sent me a letter of demand on the debt allegedly owed to BANKSTER on the Law Firms Official letterhead dated XXX postmarked YYY and received on ZZZ.

3. Even though the letter was signed it did not indicate that the signor was or was not an attorney or whether it was or was not reviewed by an attorney, the receipt of the letter caused me great fear and anxiety that I was about to be sued immediately.

4. That in addition I felt intimidated and had a sense of great urgency to respond quickly or something terrible would happen. I had trouble sleeping, could not concentrate and had other physical and mental impacts from receiving the letter.

5. I sent a request to SHYSTER to validate the debt and to cease and desist all phone calls on XXX that they received on YYY 2010.

6. On ZZZ I received a response on the law firms letterhead signed by an attorney to my letter requesting validation that included an affidavit signed by a litigation support spe******t and had a heading of BANKSTER BANK v PLAINTIFF. I thought I might have had already been sued. The letter did not say that the account had been reviewed by the attorney for a lawsuit but in receiving the two items together I felt a great fear and did not know what to do.

7. When I received the affidavit I believed that it was an official Court Document from the Court.

8. I was not served a summons and complaint until 2 MONTHS LATER and the affidavit that was sent to me as validation of the alleged debt was not submitted to the Court by SHYSTER until 6 MONTHS LATER.

9. SHYSTER did not notify me or serve me for more than two months during the holiday season and left me to suffer in fear and that I believe this was done to create fear and intimidate me into submission, the affidavit was not submitted to the Court for more than 6 months.

10. I believe that the submission of the affidavit in response to my request for Validation of the Debt, a right I have under the law was a successful attempt to deceive and confuse me in violation of FDCPA and that even though it may have contained information normally used to validate a debt that the mocking up of the document to make it look like an official court document changes it. I believe that it was not a validation of the alleged debt but an unconciousable means to intimidate me in the collection of a debt by SHYSTER. An affidavit does not have to have a heading stating BANKSTER Bank v PLAINTIFF to be valid affidavit, the only purpose in including the heading is to create fear.

11. The affidavit made to appear as an official document of the Court is not a valid response to validation of a debt under FDCPA and SHYSTER by serving me the summons and complaint on XXX has continued an attempt to collect a debt without providing proper validation.

12. My damages against SHYSTER are the result of undue stress and anxiety as a result of their unlawful means to collect on an alleged debt. For the past nearly 6 months I have suffered bouts of sleeplessness, nervousness, inability to concentrate, depression, feelings of hopelessness, guilt, worthlessness, helplessness, restlessness, irritability, a negative impact on my marriage, difficulties in controlling my diabetes, digestive disorders, and fatigue.

I swear under penalty of Perjury that the above is true.

PLAINTIFF ____________________________________

Signature: __________________________________________

Date:

Subscribed and sworn to before me

Notary Public

Link to comment
Share on other sites

I prevailed on a separate FDCPA suit on a different violation, the suit ended up being settled out and dismissed with prejudice for less than I was getting on the violations so in effect they paid me to go away

This is just an example of some of the material I was submitting while I was defending myself in a suit. By submitting the complaint, and affidavit and serving the collector I think I got their attention, this was one of 3 that I wrote up and submitted complete with an affidavit.

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.