Coltfan1972

Standing when dealing with JDB

144 posts in this topic

I plan on taking bits and pieces from everything you fellas have posted and use them in my actual opposition to her opposition.....it should make for some good reading for the judge.....infeasible indeed......:rolleyes:

Please, please, in your reply ask for oral arguments on this. Please make them actually show up in court to argue this to the judge. Do not let this be ruled on the pleadings only. You've got to make them actually stand in front of a judge and argue such "assanine, jackassery, buffoonery (Man I love that legal jargon).

:trainwreck:

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You guys are so funny, there have been many times I have sat and laughed over some of the posts and honestly having to go thru this ridiculous stuff with Midland hasnt left me much to laugh about so it is a welcome diversion

I plan on taking bits and pieces from everything you fellas have posted and use them in my actual opposition to her opposition.....it should make for some good reading for the judge.....infeasible indeed......:rolleyes:

Look at it this way:

If you buy a TV from Best Buy, they'll give you a receipt that shows you bought a specific brand of television and the cost of that TV. It won't show that you simply bought a TV...no brand...no cost. That receipt will be pretty specific.

If you decide to return that TV, what's the first thing Best Buy will request? The receipt. You have to prove you bought that EXACT television from Best Buy.

Regarding an affidavit stating the JDB owns your account:

You can't find your Best Buy receipt. So, you take your Mom with you to Best Buy. Mom states that she knows for a fact that you bought the TV from that store. Will Best Buy accept your Mom's word? NO!

They don't care what your Mom says. Your Mom doesn't work for Best Buy. She wasn't there when you bought the TV. She cannot testify UNDER OATH that you bought the TV from Best Buy. She can state "upon information and belief" that believes you bought it, but she wasn't there at the time.

Unless the affiant for a JDB was present when your specific account was allegedly purchased, he/she doesn't have personal knowledge that your account was purchased by the JDB. He/She is testifying based upon "information and belief"...what they were told took place.

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BV80 she doesnt even have an affidavit from anyone at Midland much less anything from Chase....in discovery she claimed that she was going to call a witness....as of yet unknown.......from Midland to testify...and that she planned to call me as a witness......reading here I figured out that I could object to being called as a witness before being pro se I am not able to cross examine myself

Coltfan I love your legal jargon, it makes a lot more sense than what Midland has to say :-)

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and that she planned to call me as a witness......reading here I figured out that I could object to being called as a witness before being pro se I am not able to cross examine myself.

You can't be called as a witness if you're pro se? Please explain.

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They can call you as a witness because you can cross examine yourself. I've been there done that. You just ask yourself questions or if the judge allows go into a narrative. You can also object from the witness stand. The only time they can't force you to the stand is in a criminal case where you can plead the 5th. This is civil. Well it's comical, but it's still technically civil.

However, it will do no good.

Midland- Do you owe XXXX on XXXX card?

You- Hell yes I do, you better believe I owe every damn dime.

Midland- Do you have a reason you have not paid?

You- Nope, I spent all my money on crack and booze, I don't have any money left to pay it.

Midland- So you fully admit you owe XXX on XXXX card ?

You- Not just yes, but hell yes !!

Midland- And you fully admit you have no legal defense to not paying, only you have no money?

You- Unless blowing all my money on drugs and booze is a defense, I have no defense for not paying XXXX back, the ones that I opened the account with. xFlowersx

Midland- Your ID was not stolen and you opened the account

You- I don't know, I've never really checked into it. I don't really care either way, but yeah, I opened the account.

Midland- So what is your defense to this suit, why do you feel the judge should rule you don't us the money you just admitted you did not pay back.

You- I don't owe you the money, I owe somebody that can prove legal ownership of the account with admissible evidence. You guys told me it was Infeasible to prove you owned the debt. :IThankYou:

Midland- :oops:

You- Can I go home now your Honor, I'm tired, hungry, and need a drink.

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You can't be called as a witness if you're pro se? Please explain.

OP was wrong about that. I explained it in the next post.

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I have read several places that one can object to being called as a witness as being pro se how would one cross examine themself? I would feel truly foolish sitting there and talking to myself and answering my own questions ;) tho I really dont foresee this case going quite that far......the only time in my life that I have ever had to face a judge was when I was 17 years old and involved in a car accident, as it was my fault I lost my license for I believe it was 30 days, mind you this was in the late 70s so my memory is not clear on the experience, but I knew i wasnt in any kind of serious trouble :)

Coltfan LOL that was a hilarious court room scenario.......I do believe if I used that I would end up in the slammer with my luck.....altho the crack and booze might come in handy if I lose this case, I dont do those things now but I might have to reconsider and give them a try ;)

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I have read several places that one can object to being called as a witness as being pro se how would one cross examine themself?

Well unfortunately they were wrong. Even O.J. in the civil lawsuit was forced to the witness stand. If he could have stayed off the stand by going pro se, you know he would have done that in a heartbeat.

I do agree with you, this won't go to trial. Lord knows I would trade places with you in a heartbeat and do everything humanly possible to get this to trial. I would love to see them arguing this at an actual trial.

You drag them to court and make them argue that insane reason on why they can't prove standing and this thing is over.

BV80 example is perfect and something just about anybody can relate to. You also have a pretty good chance of not being held in contempt with his argument. :D

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If I could hand this nightmare over to you I would do so in a heartbeat, it seems you would enjoy yourself immensely.....I on the other hand just want this thing to be over so that I can continue with my regularly scheduled life with my kids and kitties....I want nothing to do with the inside of a court room, EVER if at all possible :shock: the thought of being able to roll this gal in the mud is fun to ponder, but I would most likely freeze up and trip all over my own tongue...tell them "Here take my purse, my rings, my bank card, just let me go HOME now" lol

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You- Can I go home now your Honor, I'm tired, hungry, and need a drink.

Then you pull out your cell phone and say "Operator? Trace this call and tell me where I am."

You'll feel a lot better when it's over and the JDB lawyer is standing there with that dumb look on his face they all get when they lose to a pro se.

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If everything y'all are saying in this thread is true then how do you explain this case where the Court of Appeals failed to reverse the lower Court's decision in favor of the Plaintiff?

tinyurl dot com forward slash 7ugb4rj (It says I don't have enough posts to be allowed to post a link as if I'm some kind of spammer or something. If that doesn't work it's at findlaw "EAVES v. UNIFUND CCR PARTNERS")

The Plaintiff's attorney who I am currently up against referred to this action in his response to my Motion For Summary Judgment.

Here are the main excerpts. (I left out the standard of review portions etc. to make it somewhat shorter here.)

STANDING

Eaves, contending that Unifund Partners lacked standing, first challenges the trial court's subject-matter jurisdiction over the suit. According to Eaves, there was no evidence that Unifund Partners owned the debt since Joseph Lutz's testimony was incompetent and therefore, no evidence, and neither the bill of sale from Citibank to Unifund Portfolio, nor the subsequent assignment from Unifund Portfolio to Unifund Partners, referenced his credit-card account.

Unifund Partners had Standing

Unifund Partners' petition, subsequent responses to Eaves' motions for summary judgment, and evidence presented at trial alleged that it was the present owner and holder of Eaves' account and was entitled to sue to collect the debt. The bill of sale from Citibank to Unifund Portofolio conveyed good and marketable title to the account, and more importantly, Unifund Portfolio expressly assigned the rights to collect on the account, including litigation, to Unifund Partners. Based on this evidence, we find Unifund Partners had standing to sue to collect the debt.

Nevertheless, Eaves asserts that because the bill of sale did not expressly reference his account, there was no evidence that Unifund Portfolio ever obtained ownership of his account. The bill of sale stated that Citibank sold and assigned the title to the “Accounts described in Section 1.2 of the Agreement․” Presumably, that agreement listed Eaves' account; however, the agreement was not attached to the bill of sale, nor was it admitted at trial. Although we do not condone Unifund Partner's failure to present the agreement listing Eaves' account, other evidence exists in the record that suggests Eaves' account was sold to Unifund Portfolio. Specifically, the affidavits attached to the pleadings alleged that Unifund Partners had purchased the debt, and a Unifund statement was admitted into evidence, which noted Eaves account from Citibank, the defaulted balance, and that he must tender payment to Unifund. Such evidence, at a minimum, supports the inference that Citibank sold Eaves' account to Unifund Portfolio, and that Unifund Partners, assignee of all accounts that Unifund Portfolio “owns or may acquire from time to time” for collection purposes, had standing to sue to collect the debt. See Air Control, 852 S.W.2d at 446 (in determining standing, appellate court should construe the pleadings in plaintiff's favor and, if necessary, review the entire record to determine whether any evidence supports plaintiff's standing to sue).

DIRECTED VERDICT

Eaves' second issue alleges the trial court erred by denying his directed verdict on Unifund Partners' claims of breach of contract, account stated, and open account. We disagree.

Breach of Contract

Recovery under a breach-of-contract claim requires proof of four elements: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Orix Capital Mkts., L.L.C. v. Wash. Mut. Bank, 260 S.W.3d 620, 623 (Tex.App.-Dallas 2008, no pet.). In this case, the evidence showed that Eaves opened the account with Citibank, used the account to buy goods and services, and promised to pay for the account, but failed to do so. The card agreement, which noted the terms, interest rates, and other charges, was admitted into evidence at trial and provided that the agreement was binding unless Eaves cancelled the account within 30 days and did not use the card. The evidence also showed that Unifund Portfolio purchased the account from Citibank and was therefore, entitled to payment. Unifund Portfolio further assigned the account to Unifund Partners for collection purposes. Account statements, including one from Unifund, specifically identified the account number and Eaves' name and address. Account statements, an account summary, and supporting affidavits established the amount due on the account as of the date of default, the date of the last payment, and the application of payments to the outstanding balance. Based on this evidence, the trial court could have determined that a valid contract existed between Citibank and Eaves, that Citibank tendered performance by allowing Eaves to use the card for purchases, that Eaves purchased goods and services with the card, and made payments on the card, and that Eaves defaulted by failing to pay the outstanding balance of $7,570.55. The trial court could have further determined that Citibank sold the account to Unifund Portfolio, that Unifund Portfolio assigned the account to Unifund Partners for collection purposes, and that Unifund Partners was entitled to collect the debt. Accordingly, the trial court did not err by denying Eaves' motion for directed verdict based on allegations that Unifund Partners failed to prove a breach of contract. See Gellatly v. Unifund CCR Partners, No. 01-07-00552-CV, 2008 WL 2611894, at *5-6 (Tex.App.-Houston [1st Dist.] July 3, 2008, no pet .) (mem. op., not designated for publication) (deemed admissions that established the existence of a contract between card holder and Unifund's predecessor in interest, that Unifund's predecessor in interest performed on the contract, that Unifund now owns the debt, that card holder breached the contract by failing to make payments, and that Unifund's predecessor in interest and, therefore, Unifund were damaged by card holder's failure to pay sufficient to establish breach of contract).

Stated Account

A party is entitled to relief for a stated account where (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due, and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness.

Again, the evidence showed that Citibank issued a credit card to Eaves, that Eaves used the credit card to make purchases, and that Eaves made payments on the account. The card-member agreement was admitted into evidence and provided that Citibank would allow Eaves to purchase goods and services with credit in exchange for payment. Further, the record showed that Eaves defaulted on the account and owed over $7,570.55, plus interest. Based on the card-member agreement and Eaves' usage of the credit card, we may reasonably infer that he impliedly agreed to pay a fixed amount equal to the purchases and cash advances he made, plus interest. See Dulong, 261 S.W.3d at 894; McFarland, 293 S.W.3d 759, 2009 WL 1693406, at *3-4 (cases holding creditor could collect debt on account stated where, based on the series of transactions reflected on the account statements, creditor established that card holder agreed to the full amount shown on the statements and impliedly promised to pay the indebtedness). Further, because the evidence also showed that Eaves' account was purchased by Unifund Portfolio and that Unifund Portfolio assigned the rights to collect on the account to Unifund Partners, Eaves has not shown that Unifund Partners could not bring a cause of action on a stated account.

Open Account

The elements of an open account include transactions between the parties, creating a creditor-debtor relationship through the general course of dealing, with the account still being open, and with the expectation of further dealing.1 Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex.App.-Beaumont 1999, no writ) (“As used in the statutes of this state, in act referred to, we believe that the word ‘account’ is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing ․”), quoting McCamant v. Batsell, 59 Tex. 363, 367-69 (1883). As noted before, Citibank issued a credit card to Eaves, Eaves used the credit card to make purchases, and Eaves made payments on the account. Therefore, the record not only reflects transactions between the parties through the course of dealing, but also a creditor-debtor relationship between Citibank and Eaves, which was extended to Unifund Portfolio and Unifund Partners when Eaves' account was subsequently sold to Unifund Portfolio with the rights to collect on the account assigned to Unifund Partners.

We further find that the account was still open with the expectation of further dealing. Eaves contends that those elements are not met as Lutz testified that Unifund Partners does not currently hold an open account for him, and that there was no expectation that Unifund Partners would ever loan him a dime. At its core, Eaves' argument would force creditors to keep credit available to nonpaying debtors and allow those debtors to continue debiting their accounts after having defaulted. We decline to accept Eaves' argument.

(Too long, concluded in next post below)

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(continued from above)

Black's Law Dictionary defines an open account as “[a]n unpaid or unsettled account,” or “[a]n account that is left open for ongoing debit and credit entries by two parties and that has a fluctuating balance until either party finds it convenient to settle and close, at which time there is a single liability.” See Black's Law Dictionary 21 (9th Ed.2009). Once a debtor defaults on his account, although the debtor may not be able to withdraw on the account, his obligation to pay still remains. Here, although Eaves defaulted on his account with Citibank, he still maintained his obligation to pay the debt; therefore, the account was still open with the expectation of further dealings, that is, that Eaves would tender the amount owed. Accordingly, the trial court did not err in denying Eaves' motion for directed verdict on Unifund Partners' failure to prove its open-account claim. Eaves' second issue is overruled.

FINAL JUDGMENT

Eaves' final issue contends that the trial court erred by signing the final judgment on the jury's verdict because “[n]o reasonable juror could have found that [unifund Partners] owned the debt upon which it sued․” Eaves' complaint, however, consists of only three conclusory sentences unsupported by any legal analysis or authority addressing arguments identical or analogous to that uttered at bar. His third issue, therefore, is inadequately briefed.

Further, Eaves did not file a judgment non obstante verdicto or motion for new trial contending that the jury's finding was against the overwhelming weight of the evidence. Accordingly, Eaves' third issue is not preserved for our review.

CONCLUSION

Having overruled Eaves' three issues, we affirm the judgment of the trial court.

Edit:

The Plaintiff's attorney against me also referred to Simien v. Unifund CCR Partners, 321 S.W.3d 235, 246 (Tex. App.-Houston [1st Dist.] 2010, no pet.) in which the appeals court upheld the lower Court's acceptance of an affidavit from the Plaintiff's employee. I don't know if I should post the bulk of that transcript here. If so let me know and I certainly will oblige though it is readily available online with a simple search.

Both of these seem to contradict everything you guys are saying here. I hope you can see something specific in these cases that prove you are right and maybe something else applied to the Appeals Courts' decisions.

Edited by texasrocker

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If everything y'all are saying in this thread is true then how do you explain this case where the Court of Appeals failed to reverse the lower Court's decision in favor of the Plaintiff?

I can't tell you with absolute certainty, but my guess is that the defendant failed to object. In most jurisdictions, evidentiary objections are waived if you don't object.

I can't see how the cardmember agreement gets admitted into evidence over a hearsay/lack of foundation objection, for example. Same with the Citibank statements. So I conclude that the defendant allowed it to come into evidence by not objecting.

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I can't tell you with absolute certainty, but my guess is that the defendant failed to object. In most jurisdictions, evidentiary objections are waived if you don't object.

I can't see how the cardmember agreement gets admitted into evidence over a hearsay/lack of foundation objection, for example. Same with the Citibank statements. So I conclude that the defendant allowed it to come into evidence by not objecting.

How would you describe/explain "lack of foundation" to a layperson?

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I can't tell you with absolute certainty, but my guess is that the defendant failed to object. In most jurisdictions, evidentiary objections are waived if you don't object.

I can't see how the cardmember agreement gets admitted into evidence over a hearsay/lack of foundation objection, for example. Same with the Citibank statements. So I conclude that the defendant allowed it to come into evidence by not objecting.

OK, but then shouldn't the Appeals Court have plainly seen that tons of inadmissible evidence was indeed allowed? They even noted that not only did the bill of sale not contain the Defendant's name or alleged account number but the Plaintiff failed to attach anything to the bill of sale referencing the Defendant's account. How could they overlook what appears to me to be among the most blatant examples of inadmissibility ever?

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The appeals court is not there to hear new arguments or see something that was wrong in the lower court level, but not raised in the lower court level, and then "make it right" on the appeal level.

I looked this case over and that is what happened. It was error on the part of the Defendant. Hearsay is admitted in court all time. Something being hearsay does not mean it can't be used.

You have to raise objections, timely, per the rules of procedure, and preserve those objections and arguments on the record. If you don't, the appeals court is not going to help you out. They will only consider matters that were raised properly at the lower court level.

There is another thread floating around that BV80 posted a link where a lady lost her case on the issue of standing. The reason was she raised the affirmative defense of lack of privity and did not properly challenge the evidence as hearsay. She relied on the argument that since she did not enter into a seperate contract with the junk debt buyer, they had no standing. That is a flawed argument.

I think the thread is bad case law in Tennessee or something to that effect. Read the last of the appeals court decision. The appeals court all but states that the other side should lose, but they have no choice in the matter because the pro se Defendant argued their case wrong, so they ruled for the junk debt buyer.

You have to look at the whole case and all the facts. The other side will try to bury you in paperwork with cases that is one just reads the summary of the case will appear the case dooms them. You simply have to point out how your case is different from the case the junk debt buyer uses. In other words they are not comparing apples to apples.

If you want a trump card, read the case CALAWYER posted in this thread. It's the Missouri Supreme Court coming down big time on the side of the consumer and it is right on point.

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How would you describe/explain "lack of foundation" to a layperson?

You getting up on the stand and saying that Exhibit A is a true copy of a bill sent to Calawyer on March 12, 2012. You have "no clue" and that's what lack of foundation means. There is no basis for you to make that statement. You have no personal knowledge of the facts.

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OK, but then shouldn't the Appeals Court have plainly seen that tons of inadmissible evidence was indeed allowed?

See, that's the catch. It is inadmissible ONLY if the defendant objects. And it is not a mere formaility. Litigants often allow the other side to introduce inadmissible evidence because they think it helps them. Maybe it "opens the door" to an inquiry that otherwise would have been prohibited. Maybe they think the evidence will be helpful to them. The trial court does not insert itself into the proceedings and make rulings on evidence unless it is asked to do so.

In any event, it is the appellate court's job to look at the trial court's rulings and give a thumbs up or a thumbs down. Here, there was no ruling because an objection was not asserted.

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Texasrocker,

This real life example might help you, hope it does. In a case of mine, I sued a junk debt buyer (JDB) for violating the FDCPA.

The JDB argued since they bought the account from the original creditor, they stepped into the shoes of the original creditor (which is actually true) and the FDCPA does not apply to original creditors (OC), another fact which is 100% true.

They then made a fancy pleading full of relevant case law, quotes from the courts, citations, and even made the argument that if congress wanted OC'S to be bound by the FDCPA they would have clearly written the law that way. They used the old congressional intent and a bunch of fancy jargon, somewhat like you posted.

In honesty, it looked good. Your first impression would have been dang, they got a ton of law on their side. And to be honest again, they were 100% right. Not a word they wrote was not correct, I found zero wrong with their argument.

But here was the problem, they took they position they were the OC, but never made an argument they were the OC. They simply took they position they were the OC and ran with it like the fact had been ruled on 9-0 by the supreme court.

So their arguments, case law, and theory was 100%. However, they still lost. They never proved they were the original creditor (because they were not of course is the reason) so all the fancy arguments, although dead one, were irrelevant.

My only argument was they are not an original creditor, but for the record, I agree 100% with every one of their arguments that an original creditor is not bound by the FDCPA.

That is what these guys are doing to you. They are hitting you with fancy sounding case law and jargon, and their arguments are right. However, right for the set of facts for the case they cited. If your case is not the same as the case they cite, then they can be 100% right in their arguments, but who cares. It's all irrelevant since the set of facts in the two cases are different.

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I have been trying to tell ya'll that very same thing for ages now. It is only inadmissible if a person OBJECTS to it. If you do not OBJECT it will be entered into evidence.

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Watch the movie Fracture with Anthony Hopkins. Hopkins is defending himself in court and the prosecutor is asking all kinds of questions that are improper. The judge finally asks Hopkins if he wished to object (the odds of that happening in a real trial are slim).

Of course the plot of the movie is being set up by him not objecting, (and when he finally objects it's a good one, if you have not seen the movie), but the improper questions and answers just move full steam ahead because Hopkins just sits there and does not object.

That is what happens, not just in the movies, when proper objections are not raised. Especially in a civil trial where in almost every case nobody is leaving in handcuffs. You might get an ounce of help from the judge (even though no requirement), if you are pro-se in a criminal case.

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My only argument was they are not an original creditor, but for the record, I agree 100% with every one of their arguments that an original creditor is not bound by the FDCPA.

And this is one of my major concerns with the FDCPA as it stands. Not trying to hijack, but how can 1 entity be guilty of something but the one next to them is not, simply based upon status of OC, JDB, CA, etc even though they are doing the exact same things. I know in general most OCs aren't nearly as bad as most JDB and CAs but I can speak from personal experiance that some are. And they love to flaunt they are not subject to the FDCPA (as they put in their first responses to me after I called them out for violations). The FDCPA is a nice piece of protective legislation, but it's far from perfect.

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How can 1 entity be guilty of something but the one next to them is not, simply based upon status of OC, JDB, CA, etc even though they are doing the exact same things.

Not saying there does not need to be other laws that apply to the OC and collections, but they don't do the exact same thing.

Generally speaking, by the time the debt has made it to real "collection agency" the original creditor has pretty much thrown their hands up and said, "just get us our money."

If you are a week late on your credit card bill, let's say to Citibank, the collection call will go (again generally speaking) a lot different than if you are four months late. No way (generally speaking) is Citibank, after a week late, going to demand a post dated check, tell you that you will be facing a lawsuit, or start reporting on your credit (they do that after 30 days).

In the case of a junk debt buyer, which does fall under the FDCPA, pretty much all hope is lost. The JDB just wants something and could care less about customer service or "retaining the customer."

So I can see your point, but they don't do the exact same thing. Original creditors so what I would term "soft" collections, as the debt and the relationship with the customer can still be saved.

A collection agency or junk debt buyer does "hard" collections. The nice guy approach has not worked, so it's time to pick up the pace and aggressiveness.

Obviously there is a ton more room for abuse with hard collections as opposed to soft collections.

Therefore, the reason the FDCPA does not apply to original creditors. Can you imagine the overshadowing nightmare an original creditor would have if they were forced to give the consumer 30 days to dispute and then not overshadow that dispute period.

The original creditor would not be able to send a billing statement with past due, please pay the past due now, if they were inside the validation period. Pay now would overshadow the 30 day validation period.

They would be in court every day (not that I would mind that) just for overshadowing lawsuits.

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Thanks, Coltfan.

Don't get me wrong- I'm not trying to be argumentative or critical of your expertise on this subject, in fact I greatly admire it- I'm just trying to learn. I haven't made any attempt to learn about the workings of Appeals Courts right now as I need to devote all of my time concentrating on fending off what is presently going on.

After learning about these cases what concerns me is that since the opposing attorney referred to them in his response then he will probably use them in an attempt to convince the judge to overrule any of my objections to his hearsay evidence. You say, "They are hitting you hard with fancy sounding case law and jargon, and their arguments are right." Well, they are also hitting the judge hard with the same B.S. then and if the judge reviews the appeal he could just as easily decide that exactly what I am objecting to was ruled admissible in a recent Appeals Court case.

The good thing is that my first impression of the judge was that I felt he was subtly helping me along and he made a comment like, "You've been doing a lot of work, haven't you?"

Edited by texasrocker

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great awesome wonderful thread.

the more I read the smaller, more clear and stronger my defense becomes. Instead of grasping at every little defense like a drowning man I have become much more calm and reasonable about the situation. Prove you own it mister JDB. prove it.

btw heres another great judgement about this very thing down in florida...covers other case law.

http://www.nclc.org/images/pdf/unreported/Palisades.pdf

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