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BAD TN Case Law


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I don't see it as a big deal. This appears to be an error by the pro se Defendant. Looks like she tried to argue lack of privity, an affirmative defense. As most affirmative defenses in a credit card case do, it failed.

The Defendant argue no contract with the JDB, not that the JDB did not prove they were the legal owner. Basically she conceded (did not state it but implied it with the defense) the debt but a lack of privity.

When lack of privity failed, she was left with nothing else and then I agree, summary judgement was proper. This is actually a good case to show how arguing affirmative defenses in a credit card case can get you in trouble.

Even the appeal court pointed this out in their ruling.

ASSIGNMENT. We may assign your account, any amounts you owe us, or any of our rights and obligations under this agreement to a third party. The person to whom we make the assignment will be entitled to any of our rights that we assign to that person.

The Defendant was arguing the Plaintiff did not have the right to do this, and here it is, right in the contract.

I chalk this one up to error on the part of the Defendant and agree with the court. The Defendant made other procedural errors also. The court even pointed out that proceeding pro se does not shift the burden to the court. In other words what I read into that was, you screwed up and had a winning argument just went about it wrong, and we are not your attorney so your screwed.

"Ms. Akers opposed the motion for summary judgment, reiterating her position that she did not have a contract with Phoenix Credit."

Bad, bad move. She should have argued Phoenix Credit did not prove they were the legal owners and challenged Phoenix Credit at the right time, at trial, that the records were all hearsay.

Edited by Coltfan1972
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Here is also where she doomed her case.

In opposition to the motion for summary judgment, Ms. Akers contends that there is a dispute of fact as to whether Phoenix Credit is "a lawful successor-in-interest to any credit card account [maintained by]...Deborah L. Akers." Despite Ms. Akers' argument, we find no evidence in the record to support her allegation. Rather, the uncontroverted bills of sale offered by Phoenix Credit clearly outline the successors in interest to Ms. Akers' account, and specifically show that Phoenix Credit is the lawful holder of the account. From the record, there is no dispute as to the material facts upon which this case hinges.

This was a summary judgement motion and she provided no rebuttal other than a general denial. As we know, you can't do that and win a summary judgement motion.

The Defendant on this one can look in the mirror and blame the person looking back at her.

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She argued against Phoenix Credit's ownership of the debt:

"In opposition to the motion for summary judgment, Ms. Akers contends that there is a dispute of fact as to whether Phoenix Credit is "a lawful successor-in-interest to any credit card account [maintained by]...Deborah L. Akers." Despite Ms. Akers' argument, we find no evidence in the record to support her allegation. Rather, the uncontroverted bills of sale offered by Phoenix Credit clearly outline the successors in interest to Ms. Akers' account, and specifically show that Phoenix Credit is the lawful holder of the account. From the record, there is no dispute as to the material facts upon which this case hinges."

However, the ruling doesn't mention exactly what the bills of sale contained. This was included in the footnotes:

According to the 13 Nancy F. McLean, Tennessee Practice: Civil Procedure Forms §8.1 (2011-2012):

A licensed collection service is authorized by T.C.A. § 62-20-127 to take an 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. The following requirements must be met:

(1) The assignor must make a voluntary, properly executed, and acknowledged assignment to the collection service licensee;

(2) The original agreement between the creditor and the debtor must not prohibit assignments;

(3) The assignment must contain 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 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;

It'll be interesting to see if any JDBs use this case as precedent.

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I didn't read everything as I'm on my cell. But how old was the account where the jdb had records even? I'm thinking anything. Before the last year or two where the robo signing was in full effect. And the banked being under watchful eyes now. They probably had records but before that. I'm sure the bank was very sloppy

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It'll be interesting to see if any JDBs use this case as precedent.

I sure hope they do. What you quoted is correct. The court said they found nothing in the record to support her allegation. In other words, did she object, motion to strike, file motion in limine, dispute timely, raise hearsay objections, file her own affidavit, or did she just say you are not the owner.

You even put in bold a requirement, at the end of your post, where it appears she could have also won. In other words, she failed as her own attorney. I don't see this case as even the smallest of issues.

It will sound good in a brief, but that is about it. She based her whole argument on lack of privity and then had other arguments branch off from the lack a privity argument, like limbs on a tree. Once the privity tree was killed, all the branches of the tree died with the privity tree dying.

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I don't see it as a big deal. This appears to be an error by the pro se Defendant.

Understatement of the year. I read this, the woman didn't have a clue. She should have come here. She made every mistake imaginable. This just gives pro ses a bad name. Chalk one up for the bad guys.

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She made every mistake imaginable. This just gives pro ses a bad name

This says it all.

Before reaching the substantive issue, we first note that Ms. Akers is proceeding pro se. While a party who chooses to represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges v. Tenn. Att'y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000) (citing Paehler v. Union Planters Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997)), "[p]ro se litigants are not ... entitled to shift the burden of litigating their case to the courts." Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000) (citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194-95 (D.C. Cir. 1983)). Pro se litigants must comply with the same substantive and procedural law to which represented parties must adhere. Hodges, 43 S.W.3d at 920-21.

Translation- You could have easily beat these clowns, but you had no clue, decided to use an affirmative defense (probably did not even know what you were arguing, just read on the internet to list affirmative defenses) and flip the burden of proof to yourself.

You failed miserably in your attempt and as much as this court would love to help you, we can't. Therefore with utter disgust we must hold our nose and rule in favor of the Plaintiff.

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I agree that the defendant made serious mistakes. It's still going to be interesting to see if JDBs cite the case, how a defendant rebuts it, and how a judge views it.

I have no doubt they will use it. It will be like them arguing the business records exception to hearsay for their records. It sounds good, it has legit precedent backing up it is legit argument, it applies in tons of cases and if you don't really think about it, it sounds like it makes sense.

However, it's a losing argument. You're right though, I think they might use it, but I think the only ones that will be defeated by it are the ones that would be defeated with any argument they use.

In other words, those that don't have a clue or are not really in it for a fight. Now I do think they can use it as a great case when somebody argues lack of privity. However, that was always a losing argument anyway. This will just give them some fancy sounding legal precedent that just reaffirms what was already the opinions of just about every court in the country.

I mean we have a poster that is facing an argument from Midland that it is not feasible for them to prove standing because they buy debts in bulk. In other words if they will argue something that ridiculous, then of course they will argue case law that is not really applicable if the consumer actually challenges standing and not lack of privity.

I had a junk debt buyer argue, in court, they did not have to comply with the FDCPA because they stepped in the shoes of the original creditor, therefore that made them the original creditor, and original creditors are not required to comply with the FDCPA.

So yeah, they will argue anything.

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