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Learnin got a negotiation/settlement offer, how to respond?


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Hello All.

 

Last weekish, while conferring with the other side, lawyer asked if I was open to negotiation/settlement conversation.  I said yes and sent an offer (I'll drop my crosscomplaint if you drop the complaint with prejudice, pay some $, and clear credit report, etc.

 

Today along with a related communication I received "today" (which I'll do in the next post), I received the below in response:

 

My questions:

 

1.  Do I need to respond?

 

2. Should I respond?

 

3.  If I do respond, do I/should I say anything other than 'no thanks, see you in court'?

 

4.  Is it just me, or did lawyer really mess up this sentence?  That's funny.  "Unfortunately our understanding of the causes of action filed against you is misplaced."  I might have to use that in my reply and agree with lawyer that their understanding is indeed misplaced.

 

 

Other thoughts on the topic.

5.  I know that what they've said is inaccurate, and I'm glad they sent this because I need to be able to counter it in court, so I need to practice/research -exactly- how to counter it, and put it on flash cards and practice it.

 

6;  They sued for 'breach of contract' and 'account stated'.  They do need a contract.

 

7.  Their bill of sale and affidavit of sale are crap, I'm not worried about that.

 

8.  I'm not exactly sure about the best response to the 'account stated'.  And probably should do a BOP.

 

 

========================================================================================

 

FOR SETTLEMENT AND NEGOTIATION PURPOSES ONLY
 
 
Mr. X.
You have alleged Actual Fraud against CACH, LLC and Mandarich Law Group based on the grounds that the
Cross-Defendants are not in possession of a "contract" and are not the holder in due course of the debt.
 
Unfortunately our understanding of the causes of action filed against you is misplaced. Under Civil Code
section1 707.02(B) Plaintiff/Cross-Defendanist not required to have a copy of the original application for credit
in order to institute a lawsuit against you because use of the card constitutes acceptance of the terms and
conditions associated therewith.
 
Plaintiff/Cross-Defendant has provided several statements to you which reflect that the card, which is in your
name and sent to your mailing address, was used and that an outstanding balance existed on the account.
Plaintiff/Cross-Defendant has also provided you with a copy of the card member agreement associated with the
account with explains that use of the card constitutes a promise to pay; therefore, Plaintiff is under no obligation
to produce a "contract" when the conduct of using the card creates an implied contract based on the written
terms and conditions.
 
Furthermore, Plaintiff/Cross-Defendant has produced a copy of a Bill of Sale with redacted exhibit as well as an
Affidavit of Sale which show that (l) a batch of accounts were assigned by US Bank to CACH, LLC and (2)
your individual account was a part of that batch, that you opened the account on X, 2007 using your social
security number and that the outstanding  balance at the time the account was charged off was $(some amount) which
is accruing statutory interest and costs.
 
You have also alleged violations of both the FDCPA and the Rosenthal Act; however, you have provided no
facts to support these allegations besides the that Plaintiff/Cross-Defendant filed this action in a jurisdiction
where you did not reside, a moot issue. Plaintiff/Cross-Defendant does not admit any liability for the causes of
action alleged but in an effort to resolve the cross-complaint, Plaintiff is willing to make the following
settlement offer:
 
I . cross-Defendant will pay you $(some small amount) to resolve the cross-complaint
2. Cross-Plaintiff will dismiss the Cross-Complaint with prejudice against all parties to the action.
3- Plaintiff will accept $about half of what they're suing for)  as settlement in full of the outstanding debt due and owing. Plaintiff is
willing to accept this payment on a payment plan as follows:
a. Defendant will make a down payment of $(small amount) within X days of the settlement agreement
b. Defendant will make monthly payments of $(smaller amount for XX  months until the remaining balance is
paid in full
I am hopeful that we can reach an agreement that is amenable to both parties and I welcome further settlement
discussions.
Sincerely,
Mandarich Law Group, LLP
======================================================================================================================
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For a variety of reasons.   If I wanted to put it to bed I wouldn't have filed the cross complaint and would have just beat them (short of a hostile judge) at the trial.
 

 

Eh, why not request that they drop their suit, you drop your counter, and they delete the tradeline?  Seems to put it to bed . . .

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"account stated'. And probably should do a BOP."

 

No BOP for account stated only breach of contract and common counts.

 

Junk debt buyers use your credit report as a weapon against you.Beat these people in court and make them clear your credit report.

 

Mandarich Law Group, LLP

Mandarich Law Group is the collection law firm for the CACH, LLC. CACH LLC, is a subsidiary of Square Two Financial, located in Colorado, and is Mandarich’s biggest client.

Cach pays pennies on the dollar for charged off debts and usually can not prove its case in court.

If you settle for less then the full amount of the debt,Cach may resell the debt to someone like midland funding and the whole thing starts over again.

 

You should post up the complaint and fight these people

 

"use of the card constitutes acceptance of the terms and conditions"

 

That is true, but they must be able to prove that you used the card with statements from the original creditor(not phony statements from cach) and the true balance and produce a live witness from the original creditor,also Cach must Prove assignment (standing to sue).Cach uses the invisible travelling witness who may or may not appear at court,they always say they will show and then something happens and they dont show imagine that.

 

Study the rules of civil procedure

 http://www.leginfo.ca.gov/.html/ccp_table_of_contents.html

Study rules of discovery

http://california-discovery-law.com/

 

Its best not to talk to the creditors except in court,they only want your money.Make them work for it just like you did.

 

What did they allege breach of contract and account stated?

 

 

 

 

     

 
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"What did they allege breach of contract and account stated?"
 

I'm not sure what you're asking.   On a credit card debt, might be the answer. ?

 

 

Racecar, any thoughts on whether I should respond or not to their counteroffer?

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You have alleged Actual Fraud against CACH, LLC and Mandarich Law Group based on the grounds that the
Cross-Defendants are not in possession of a "contract" and are not the holder in due course of the debt.

 

 

Quick read, quick evaluation. Mistake number one was accusing them of fraud. You apparently do not know the elements of fraud, or you would not have used this. Not having a contract or producing a contract is a discovery issue to be pursued as such. It is not fraud. You're lucky they didn't counterclaim you on this.

 

 

 

You have also alleged violations of both the FDCPA and the Rosenthal Act; however, you have provided no
facts to support these allegations 

 

 

No facts, no counterclaim. You make the charge, you back it up. Bottom line here is that they are politely telling you that your counterclaim is baseless and that you have not provided one shred of evidence that you do not owe them. Therefore, they will take X dollars to get rid of this at a very handsome profit to them. This is where you are.You're losing this case so far.

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California appears to have 5 elements required to prove fraud:
The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981.) Robinson Helicopter Co., Inc. v. Dana Corp., 102 P.3d 268, 22 Cal. Rptr. 3d 352, 34 Cal. 4th 979 (2004).
 
Unlike the mere 9 elements to prove fraud in Arizona:
"* * * (1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its *339 falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury. * * *" 31 Ariz. at 354, 253 P. at 628. Nielson v. Flashberg, 419 P.2d 514, 101 Ariz. 335 (1966).
 

Whether one is defendant or plaintiff (or both) it is essential to keep all the elements for all of the causes of action top of mind IMO.

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You have alleged Actual Fraud against CACH, LLC and Mandarich Law Group based on the grounds that the

Cross-Defendants are not in possession of a "contract" and are not the holder in due course of the debt.

 

 

Quick read, quick evaluation. Mistake number one was accusing them of fraud. You apparently do not know the elements of fraud, or you would not have used this. Not having a contract or producing a contract is a discovery issue to be pursued as such. It is not fraud. You're lucky they didn't counterclaim you on this.

 

 

 

To the extent that I have looked into the elements of fraud, I know what I know.  Having said that, I will revisit and investigate some more.  The above phrase is that I have 'alleged fraud on the grounds that ...not in possession of a contract' is not correct.  I'm alleging fraud due to their willfully attempting to extract money from me while knowing full well they don't have the barebone basics required for the causes of action in their complaint (breach of contract and account stated), and the 'evidence' they do have is obviously in error.  As JDBs do, pushing a crap case through and expecting the best.

 

 

You have also alleged violations of both the FDCPA and the Rosenthal Act; however, you have provided no

facts to support these allegations 

 

 

No facts, no counterclaim. You make the charge, you back it up. Bottom line here is that they are politely telling you that your counterclaim is baseless and that you have not provided one shred of evidence that you do not owe them. Therefore, they will take X dollars to get rid of this at a very handsome profit to them. This is where you are.You're losing this case so far.

 

Her statement isn't true, or at least isn't entirely true.  I will look at my cross-complaint again and get more clear on the 'facts' required, but I believe my stated FDCPA/Rosenthal violations are clearly stated/explained, using the 'facts' that they have provided and their actions.

 

 

Thank you, I appreciate your quick eval feedback.  Whether I did right or not, it spurs me to read up/investigate some more.

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California appears to have 5 elements required to prove fraud:
The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981.) Robinson Helicopter Co., Inc. v. Dana Corp., 102 P.3d 268, 22 Cal. Rptr. 3d 352, 34 Cal. 4th 979 (2004).
 
Unlike the mere 9 elements to prove fraud in Arizona:
"* * * (1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its *339 falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury. * * *" 31 Ariz. at 354, 253 P. at 628. Nielson v. Flashberg, 419 P.2d 514, 101 Ariz. 335 (1966).
 

Whether one is defendant or plaintiff (or both) it is essential to keep all the elements for all of the causes of action top of mind IMO.

 

 

Thanks Credator.  I'm glad I'm in California, I like their's better.

 

Yes, that's what I was thinking for fraud.  I didn't put all that in the cross-complaint, as far as those 5 elements..........

 

Should each of those elements have been in the cross complaint? It was my understanding that the cross-complaint didn't explain the entire argument of each and every cause of action?

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To the extent that I have looked into the elements of fraud, I know what I know.  Having said that, I will revisit and investigate some more.  The above phrase is that I have 'alleged fraud on the grounds that ...not in possession of a contract' is not correct.  I'm alleging fraud due to their willfully attempting to extract money from me while knowing full well they don't have the barebone basics required for the causes of action in their complaint (breach of contract and account stated), and the 'evidence' they do have is obviously in error.  As JDBs do, pushing a crap case through and expecting the best.

 

I don't see how "attempting to extract money from me knowing they don't have barebone basics required for their causes of action" constitutes the tort of fraud.   California has UCL 17200 Unfair Business Practices, but even there, I don't see where you have stated a claim.

 

 

Her statement isn't true, or at least isn't entirely true.  I will look at my cross-complaint again and get more clear on the 'facts' required, but I believe my stated FDCPA/Rosenthal violations are clearly stated/explained, using the 'facts' that they have provided and their actions.

 

 

Thank you, I appreciate your quick eval feedback.  Whether I did right or not, it spurs me to read up/investigate some more.

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This is not fraud. this is a discovery issue. They did not produce a document you think is necessary for them to prove their case. You either compel them to produce it or let it go and use it later. Fraud involves money damages based upon misinformation you relied upon. The AZ statute is no different, it just breaks it down into more parts.

 

 

his consequent and proximate injury

 

 

Same meaning, different wording. This does not even remotely apply. Pursue it at your own peril.

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So I would have to wait until they received money from me, with me relying on the information that they provided that I owe them money, to be fraud?

 

 

They have admitted in discovery that they do not have a contract.

 

Not arguing with you, but I do want to clarify for my own purposes.

 

1.  Bringing a lawsuit  for breach of contract when the plaintiff knows it has no contract is not a component of fraud (or attempted fraud)?

2.  Swearing under penalty of perjury that certain facts are true when they are not, is not a component of fraud?

3.  Stating that a bill of sale (that is not a bill of sale) means that I owe them money, and attempting to get money from me on false pretenses, plus components of 1 and 2 above, don't fulfill on "(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance" ?

 

With "resulting damage"?

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They may not have a signed contract, but that's usually not needed in cc cases.  More than likely, the cardmember agreement states that your use of the cards constitutes your acceptance of the terms and conditions. 

 

If you claim fraud, you have to prove it.  You have to prove that they lied under oath, the bill of sale is fraudulent, and that they're attempting to get money under false pretenses.  

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They may not have a signed contract, but that's usually not needed in cc cases.  More than likely, the cardmember agreement states that your use of the cards constitutes your acceptance of the terms and conditions. 

Strictly speaking in context of defending vs their Complaint, it is my understanding that for a 'breach of contract' cause of action there must be evidence of a contract.  No contract, no breach.  Is that not correct?

 

For the account stated, if they can prove that the 'cardmember agreement' they provided A. actually qualifies as evidence, and B. is in any way connected to the alleged debt, I would agree with that statement.

And of course there's the judge to contend with, fingers crossed for a good one.  And I'm preparing to set myself up for appeal if it's a bad one.

 

If you claim fraud, you have to prove it.  You have to prove that they lied under oath, the bill of sale is fraudulent, and that they're attempting to get money under false pretenses.  

 

Yes, I agree. I have that last two of those three covered and possibly the first (under penalty of perjury's, but so far no 'under oath's).

I'm certainly not claiming to be a master of the topic, but I believe I have a good enough scenario to make the argument.  

 

 

 

Also thanks, yes, it was 1742( b ), seems like that must be what they were referring to. 

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Contracts can be implied through actions.  If you used the card, then you accepted the terms of the agreement to pay back any charges.   1742(b) says:

 

( "Accepted credit card" means any credit card that thecardholder has requested or applied for and received or has signed,or has used, or has authorized another person to use, for the purposeof obtaining money, property, labor, or services on credit.

 

Research some court cases.

 

Hopefully, you have some court precedent to support your claims of fraud for the other 2 conditions.  Calawyer would know about this.

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Your getting good advice learning.

 

By filing a counterclaim of fraud that you cannot win, you run the risk of having to pay the JDB's cost and legal fees to defend that part of the counterclaim.  Good judge or bad, most will not want to spend a lot of court time on a debt collection case.

 

The point is not that you have to lose before you can claim fraud, the point is fraud is VERY difficult to prove in the best of circumstances and your is not even close.  If they bought your debt in good faith, suing you for it is not fraud. They may violate other statues along the way though. I'm not from California, but the UCL 17200 that was mentioned sounds like a better route than fraud.

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Contracts can be implied through actions.  If you used the card, then you accepted the terms of the agreement to pay back any charges.   1742(b) says:

 

( "Accepted credit card" means any credit card that thecardholder has requested or applied for and received or has signed,or has used, or has authorized another person to use, for the purposeof obtaining money, property, labor, or services on credit.

 

If a nigerian email scammer shows up with a few copies of account statements and claim that, upon that 'evidence', there was a contract and that I therefore owe them money, I would disagree and fight them and demand them to prove their claim.   Same thing here with this JDB.

 

They must be valid assignees, holders in due course, etc.  They must have actual evidence.  And, granted, a judge that requires actual evidence.

 

Research some court cases.

 

Hopefully, you have some court precedent to support your claims of fraud for the other 2 conditions.  Calawyer would know about this.

 

More research, in the works.

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Your getting good advice learning.

 

By filing a counterclaim of fraud that you cannot win, you run the risk of having to pay the JDB's cost and legal fees to defend that part of the counterclaim.  Good judge or bad, most will not want to spend a lot of court time on a debt collection case.

 

The point is not that you have to lose before you can claim fraud,the point is fraud is VERY difficult to prove in the best of circumstances and your is not even close.  If they bought your debt in good faith, suing you for it is not fraud. They may violate other statues along the way though. I'm not from California, but the UCL 17200 that was mentioned sounds like a better route than fraud.

 

I love the advice I get here.  I take it all under consideration and it's part of my learning.

 

""The point is not that you have to lose before you can claim fraud"     Ok, good.

 

I doubt I can disprove that they bought 'my debt' 'in good faith', but I can disprove that they bought a debt debt (or at least, they can't prove they did).  Knowingly bringing a suit without a valid claim to any debt, misrepresenting 'facts' and amounts as true, expecting me to rely on those misrepresentations, etc.

 

I'm willing to make that argument, but it sounds like I better do more on the finding case law etc end of things and making sure I can.

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You cannot satisfy the most important element of fraud here, that being that you suffered a monetary loss. You haven't paid them anything, therefore there is no fraud. Ineptness and inability to prove their case isn't fraud, it's just typical JDB stupidity. This is how they run their cases. You have to prove intent in a fraud case, which is very difficult to do. You would have to prove that they used fake documents knowingly, or some other type of manufactured evidence. If you want to see what happens when you do that, look up the Sharon Diane Hill Bankruptcy case and see what Countrywide's lawyers got for their trouble.

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I love the advice I get here.  I take it all under consideration and it's part of my learning.

 

""The point is not that you have to lose before you can claim fraud"     Ok, good.

This is why you will lose!

 

You cannot take just the first part of my sentence and attempt to make it a complete point.

 

You are in a court of law, not a court of semantics. Your word games and conjectures will not impress a judge.  

 

Filing a lawsuit against you without a shred of evidence is NOT FRAUD.  If a Nigerian Scammer files a lawsuit against you in a court of law with the assistance of a member of your states bar, then we can have that discussion separate.

 

The court and the judge are not living in a bubble, just waiting for you to show up with a new concept that a JDB lawsuit without documentation attached is fraud.  Now if you study the rules in your jurisdiction, you may find out that there are requirements of filings with a lawsuit that may make their claim defective.

 

For example in Ohio, if they sue for breach of contract, a copy of the contract HAS to be attached. If the contract is not attached, the response is NOT a countersuit of fraud, but filing a Motion to Strike pleading.

 

Again, I know you think that you may accomplish something by claiming fraud, but you are likely increase the judgement against you when you lose the claim and have to pay the cost and attorney's fees of the JDB for defending against your fraud claim. This can easily double the judgement against you. Even if you win on the debt claim against you, you could still lose on the counterclaim and still have to pay the cost and fees for that part of the claim.

 

A counterclaim for fraud is a bad idea in this case. Period.

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You cannot satisfy the most important element of fraud here, that being that you suffered a monetary loss. You haven't paid them anything, therefore there is no fraud. Ineptness and inability to prove their case isn't fraud, it's just typical JDB stupidity. This is how they run their cases. You have to prove intent in a fraud case, which is very difficult to do. You would have to prove that they used fake documents knowingly, or some other type of manufactured evidence. If you want to see what happens when you do that, look up the Sharon Diane Hill Bankruptcy case and see what Countrywide's lawyers got for their trouble.

 

"You would have to prove that they used fake documents knowingly"  

 

I believe that I can do that.

 

Thanks Bruno.   I'll look into this more.

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But you still have no loss. No loss, no fraud claim. Attempted fraud is not a cause of action. Just be careful accusing an officer of the court of something which is civil but very close to criminal. These statutes overlap. The lawyer didn't sit there and cobble up a fake affidavit, that you can count on. Do what you want, but I just don't see the claim. Neither does anybody else here that posted.

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If a nigerian email scammer shows up with a few copies of account statements and claim that, upon that 'evidence', there was a contract and that I therefore owe them money, I would disagree and fight them and demand them to prove their claim.   Same thing here with this JDB.

 

They must be valid assignees, holders in due course, etc.  They must have actual evidence.  And, granted, a judge that requires actual evidence.

 

 

A Nigerian probably wouldn't have any evidence whatsoever that he dealt with the OC and purchased accounts.  There would be no bill of sale.  I have no warm, fuzzy feelings for JDBs, but at least they'd have a bill of sale showing they purchased some accounts from the OC or previous owner of the account. 

 

If a JDB doesn't prove ownership to the satisfaction of the court, it doesn't mean they've committed a fraudulent act.  Look at the requirements to prove fraud in your state.  There has to be knowledge and intent.  According to those requirements, you'd have to show they DIDN'T purchase your account, they knew they didn't purchase your account, and tried to get you to pay on an account they knew they didn't own.

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