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@chicamarie

 

So, can they say that the one-year deadline has passed for that issue if they can point to that letter from December and say that the violation (even though I never saw the letter until they provided it back in June) occurred then, for the first time, and not in the lawsuit?

 

It's your word against theirs that you never got the letter.

 

In regard to the amount demanded in the letter, have you calculated the amount of interest that was added to the principal balance?  You have to prove that the amount being requested includes interest from the date of charge off.

 

1692f(1) says that debt collectors cannot charge an amount not expressly authorized by the agreement creating the debt OR permitted by law.  If the OC charged interest after charge off (and the cardmember agreement allowed for that), it might be legal.  This also applies to post charge-off interest in the complaint.

 

Does your state have a law pertaining to that issue?

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@Chica

 

Those alleged business records are now hearsay and probably always were. More importantly they cannot lay a foundation for them, nor have they been properly authenticated.

 

If I thought there was even the chance that I had enough just to bring an FDCPA suit (or any other for that matter) I would file it. It will give you leverage REGARDLESS of whether or not it's a slam dunk because the lawyers will still have to spend time defending it (as well as other reasons). Both sides could then agree to drop their cases, getting you out of this mess.

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If a JDB wins their case and has successfully defended an FDCPA counterclaim, the defendant will be held liable for the JDB's court costs in defending that claim.

 

Just something to think about.

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Lawyers vary widely in ability and inclination to pursue a case. Get another opinion.

 

Try here:

 

http://www.attorneysforconsumers.com

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 @BV80 - the issue, which even the lawyer agrees with, is that they are claiming a right to statutory interest, the state rate which is the default rate in the absence of a contract or agreement setting out a specific rate.  

 

Statutory interest would not apply to the two year period where the OC still owned the account, before the JDB purchase, as the credit card agreement was theoretically still in effect during this period, and thus the account was subject to any rate set out in the agreement/contract. 

 

There is obviously the issue that the JDB could claim the right to the interest calculated at the OC rate, not the statutory rate, but they would have to produce documents showing what that might be.  The JDB has not produced any contract or agreement from the OC during discovery, as I requested in my request for documents.

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And regarding the FDCPA issues and the approaching deadlines, the letter from December 2012 is from the JDB attorney, and therefore it is the attorney's claim that would be the subject of a complaint.  The issue with the JDB is from the lawsuit and complaint, in January.  If the targets for the FDCPA complaint are different, doesn't that make it more likely not to be considered the same complaint, and therefore not a problem if I forgo the complaint against the lawyer and wait to go after the JDB themselves?

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@chicamarie

 

 



 @BV80 - the issue, which even the lawyer agrees with, is that they are claiming a right to statutory interest, the state rate which is the default rate in the absence of a contract or agreement setting out a specific rate.  

 

Statutory interest would not apply to the two year period where the OC still owned the account, before the JDB purchase, as the credit card agreement was theoretically still in effect during this period, and thus the account was subject to any rate set out in the agreement/contract. 

 

There is obviously the issue that the JDB could claim the right to the interest calculated at the OC rate, not the statutory rate, but they would have to produce documents showing what that might be.  The JDB has not produced any contract or agreement from the OC during discovery, as I requested in my request for documents.

 

I'm not sure that there anything from the 9th Circuit regarding this issue.   You may need to check OR law.

 

I know there's a few state cases from other circuits in which the court ruled that a JDB has no right to charge interest for a period during which the JDB did not own the account.   Does this apply everywhere?  We don't know.  But it leads to another issue.

 

If the OC did not charge interest after charge off, it could be said that the OC waived that right.  Therefore, the JDB should not be able to charge interest for the period in which the OC still owned the account after charge off but chose to waive the right to collect interest.

 

Here's an IL case that discusses that issue:

 

http://scholar.google.com/scholar_case?case=2198172138428082436&q=%22SIMKUS+v.+CAVALRY+PORTFOLIO%22&hl=en&as_sdt=6,41

 

 

 



And regarding the FDCPA issues and the approaching deadlines, the letter from December 2012 is from the JDB attorney, and therefore it is the attorney's claim that would be the subject of a complaint.  The issue with the JDB is from the lawsuit and complaint, in January.  If the targets for the FDCPA complaint are different, doesn't that make it more likely not to be considered the same complaint, and therefore not a problem if I forgo the complaint against the lawyer and wait to go after the JDB themselves?

 

If you choose not to go after the attorney, you don't have to do so.  You can simply focus on any possible violations by the JDB.

 

Is the JDB suing you for the balance of the account at charge off and then requesting requesting statutory interest?  

 

Or are they claiming a different amount from the charge-off amount? 

 

In regard to the attorney's letter, again, did you calculate the amount of interest claimed  in order to determine how much interest has been charged and when the JDB might have begun charging that interest?  The reason I ask is because a debt collection agency can be held vicariously liable for the actions of it's debt collection attorney.  Therefore, the JDB could also be held liable for the attorney's letter if it's shown that they are demanding interest which they have no right to demand.

 

While the FDCPA itself is silent on the issue of vicarious liability, a debt collector may be held vicariously liable under the Act for the conduct of its attorney. Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir.1994).

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The amount due in the attorney's letter is, pretty much to the penny, the amount at charge-off plus 9% per year from charge-off to the date of the letter.

So, they are either claiming they are owed statutory interest from the date of charge-off, which is illegal because they didn't own the account during that period and therefore the account was subject to a contract rate of interest.

And if they claim that the amount is calculated from the date of JDB purchase then they are charging an interest rate far in excess of the state 9% statutory rate.

So, it's a violation no matter what they claim, assuming a judge would agree that they are not entitled to collect interest that was waived by the OC.

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@chicamarie

 

This is in regard to the letter:

 

Again, see what your state's law allows regarding statutory interest.  Is statutory interest only allowed after a judgment???

 

If that's the case, then it could be possible that demanding an amount (in the letter) that included statutory interest from the date of charge off is a violation because there was no judgment at that time.

 

If the interest rate in the letter is based upon their date of purchase of the account and the rate allowed by the credit card agreement, they would have to produce the cardmember agreement.  If they can produce that agreement, then they didn't violate. 

 

At that point, you'd have to show that they don't own the account and had no right to collect in the first place.

 

As you can see, the first thing you have to do is find out the rate of interest being charged in the letter and the date they began charging it.

 

 

In regard to the complaint:

 

Are you being sued for the balance at charge off?   Are they then requesting statutory interest?

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I am being sued for the amount at charge off plus statutory interest dating back to charge off in July 2010. They purchased the account in July of 2012.

The laws about statutory interest as it described in Oregon are vague, as I read it. It's just the interest rate a creditor/owner of a debt is allowed to charge in the absence of a contract rate of interest, and it states that the rate is applicable back to when the debt became due. There is no specific statute about it being post judgment.

It would then be up to a judge to decide if the debt became due when it was charged off, or when it was purchased by the JDB. Again, it makes sense to me, and a few courts, that the debt was under a contract rate of interest while owned by the OC. Any interest not charged during this time cannot (or should not) be legally allowed to be charged after being sold. And the JDB definitely should not be able to claim the statutory rate when another rate was in place in an as-yet-unseen agreement.

There is nothing in the letter than states a rate of interest or the date they began charging it, it is just a flat amount. As I said, I did the math to figure out what the amount was based on. If it's the statutory rate, which it seems to be, then they are calculating it back to the charge off date, which they may or may not be legally allowed to do. If it is not the statutory rate, which they would then have to claim they were charging a rate of interest from their purchase date, since the other time frame/interest charges are clearly 9%, then they would have to produce an agreement with that rate of interest, from the OC.

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@chicamarie

 

It would then be up to a judge to decide if the debt became due when it was charged off, or when it was purchased by the JDB. Again, it makes sense to me, and a few courts, that the debt was under a contract rate of interest while owned by the OC. Any interest not charged during this time cannot (or should not) be legally allowed to be charged after being sold. And the JDB definitely should not be able to claim the statutory rate when another rate was in place in an as-yet-unseen agreement.

 

A debt becomes due when it goes into default. 

 

Regarding your argument that another rate of interest other than the statutory rate was in place...be careful.  If they can produce the cardmember agreement, and IF you were to lose, you're own argument could possibly cause you to end up being charged alot more than the statutory rate.

 

I'm not saying that you don't have any violations.  What I am saying is to be careful.  First, make sure you actually have a violation.  Second, be careful with your arguments.  Third, make sure you can prove your claims.

 

You said that you have an attorney.  A good attorney should know which claims are valid, and whether they can be proven. 

 

You said he wants a slam dunk.  It's possible that his reasoning is because of the recent Supreme Court ruling in Marx v. General Revenue.  IF you were to lose, you could end up paying the JDB's court costs.

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Thanks for the cautionary words - the lawyer has actually said those exact things, about unintentionally "asking" for the higher rate of contract interest, but he's come around to at least acknowledging that it is probably a violation.  He has also intimated that filing a suit now, for the attorney's letter, before the MSJ deadline and while there's still a month and a half before trial, might make me seem "overly litigious" in the judge's eyes, and therefore hurt my image, rather than giving me leverage, as I would hope it would do.  He is a cautious lawyer, to be sure, but I figure he also knows the behavior of judges and courts better than I do. 

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@chicamarie

 

If he has a good record (no complaints), you're confident in his abilities, believe he's looking out for your best interests, and you trust him, you should be in good hands.

 

Good luck!

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The fact that you are appealing arbitration and going into trial de novo is not what the Junk Debt Buyer wants to hear or deal with. Now that you additionally have an attorney involved in the foray just add's more expense and improves your chances for dismissal. It cost's lot's of money to fly in witnesses and continue the expense of answering paperwork and responding to conference calls or meet and confer requirements, motions, man-hours billed and filing expenses so more than likely both attorneys will try to get you to negotiate a settlement. Go for the dismissal DNGPC is a volume lawfirm/collection agency and will prefer to drop the case and get on to others where they can obtain hundreds of simple default judgments for the same time and expense as your one case.

HP

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Here is a draft of my opposition to their MSJ.  I am following the example of my lawyer buddy as he won his last MSJ hearing with something lean and mean.  My first one, in arbitration, was 15 pages long, and in retrospect, I could have used an editor.

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR MULTNOMAH COUNTY
 

 

UNIFUND CCR, LLC,
                  Plaintiff,
vs.
Chicamarie,
                  Defendant
)
)
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)
)
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)
Case No.: xxxxx

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(ORCP 47: UTCR 13.100(8))

 

 
COMES NOW THE DEFENDANT, Chicamarie, Pro Se, in opposition to Plaintiff’s Motion for Summary Judgment in favor of Plaintiff and Plaintiff’s claim against Defendant.
The Defendant responds to the allegations in the Plaintiff’s Motion and argues that Defendant’s admissions and Plaintiff’s documentary evidence are insufficient to support a Motion for Summary Judgment.  The defendant objects to Plaintiff’s affidavit and chain of title documents as being lacking in merit and incapable of supporting the Plaintiff’s evidentiary burden of proof  (ORCP 47 B-C), and therefore creating genuine issues of material fact.
 
            Points and Authorities
Plaintiff is confident that the Defendant’s admissions as well as periodic statements from Citibank support its Motion for Summary Judgment.  Plaintiff also relies upon an affidavit from an employee of the Plaintiff to verify the accuracy of the records of Citibank, including the periodic statements.  Plaintiff notably does not produce an affidavit from any employee of Citibank to verify the credit card statements and the documents purportedly showing the relevant chain of title for the Citibank account, nor does the Plaintiff produce a credit card agreement or contract with terms, conditions, and interest rates governing the Citibank account.
 
DEFENDANT’S ADMISSIONS       
 
     Defendant’s answers to Plaintiff’s original complaint and Request for Admissions point to the existence of the Citibank credit card, the use of the Citibank credit card, and the charging-off of the Citibank card.  Plaintiff also cites the Defendant’s admissions that she did not contact Citibank regarding the Citibank card as a tacit approval of Plaintiff’s claims.  While the card issuer bears the burden of proving the authorized use of a credit card, the Truth in Lending Act specifically does not shift that burden to the consumer. (TILA, 1643)  The Plaintiff’s attempt to use these admissions as an argument for summary judgment is recognized by the courts as a flawed reading of the law. 
    
    Defendant raised questions in both her answer to the complaint and during Discovery regarding the accuracy of the accounting on the Citibank account, the Plaintiff’s inability to produce a contract or agreement for the Citibank account, and the sufficiency of the Plaintiff’s chain of title documents establishing ownership of the account.
 
PLAINTIFF’S DOCUMENTARY EVIDENCE
 
Affidavit of Axxxx Bxxxx

 

     The affidavit provided by the Plaintiff is by an employee of the Plaintiff who can testify to the record-keeping practices of the plaintiff.  The affiant does not claim to be, or have ever been, an employee of Citibank.   The date first mentioned in the affidavit is the date of sale from Citibank to Pilot Receivables, on June 18, 2013 (sic).  If the affiant means June 18, 2012, since the subsequent date of assignment to the Plaintiff is listed as September 1, 2012, and the affidavit provided was generated by plaintiff’s employee on November 26, 2013, then the affiant clearly has no personal knowledge of the Defendant’s account or the actual sale of the account.
    
    The affiant also clearly cannot verify the accuracy of any records purportedly provided by Citibank to Pilot Receivables or Unifund.  She cannot testify on matters of Citibank’s business records nor can she verify the account statements provided with the Plaintiff’s motion, as they are records of Citibank and not the Plaintiff.  The affiant says merely that “Unifund was provided with monthly statements for the account”, without actually indicating who provided the statements.  The evidence provided by the Plaintiff is hearsay and does not survive scrutiny under Oregon’s evidence code. (OEC 40.060 (6))
    
    The Defendant objects to this affidavit as being inadmissible, created by an affiant who has no personal knowledge of the actual account or of Citibank’s day-to-day record-keeping practices and accounting, and no personal knowledge of the actual sale and assignment of the account.  (West v Allied Signal., INC 200 Ore. App. 182, 190 (2005).)  Summary Judgment is inappropriate based on this inadequate affidavit.
 
Bill of Sale and Letter of Assignment
 
     The Bill of Sale and Assignment to Pilot Receivables Management LLC, (Exhibit A), contains no mention of the alleged Citibank account in question nor does it contain any information regarding or referring to the Defendant by name.  The Bill of Sale is not an affidavit or sworn document, and cannot be construed as a business record.  The Bill of Sale document refers to the account as being “described in Exhibit 1”, which the Plaintiff has attached to its motion as Exhibit C.  Assuming Exhibit C is an electronic record of the account from Citibank and is the “account information” as indicated in the Bxxxx affidavit, there is no one to attest to or verify its accuracy.  The “account information”, as with the periodic statements, has been “provided” to Unifund, without specifically indicating who has provided the account information.
 
     The letter of Assignment from Pilot Receivables, LLC to Unifund CCR, LLC is also a generic letter of Assignment between Pilot Receivables and Unifund.  There is again no reference to the Citibank account number or the Defendant.  The “Accounts described in Exhibit 1” are now noticeably absent and there are now only “Receivables,” assigned to Plaintiff without any guarantee as to accuracy or validity.  This document also cannot be construed as a business record or verified by the Plaintiff’s affiant.   
 
                Conclusion
 
     Plaintiff has not met the burden of proof to warrant a Motion for Summary Judgment against the Defendant.  There are genuine issues of fact regarding the affidavit of Axxxx Bxxxx and her inability to testify to the validity of the Plaintiff’s claims. The Plaintiff has never produced a contract or agreement governing the Citibank credit card account, and has produced no evidence that clearly establishes ownership of the account.
 
     The Plaintiff has failed to provide substantial documentary evidence to eliminate any question of material fact, such that Plaintiff is not entitled to prevail as a matter of law (Seeborg, APPELLANT v. General Motors Corporation Et Al, 284 Or. at 699, 588 P.2d 1100 (1978).
 
 

 

Based on the foregoing, Defendant respectfully requests that this court grants its Opposition to Plaintiff’s Motion for Summary Award.
 
                                       Dated this _____ of ________, 2013
                                       Chicamarie
Defendant, Pro Se
 
 
 

Any feedback is welcome and appreciated!

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Also, the timeline on these things confuses me.  The rules in Oregon are 20 days for a response to an MSJ . . . calendar days.  So, I received it on the 29th of November, so I assume I don't count that.  Which puts 20 days at the 19th, this Thursday.  Does that mean I have to file it with the court by the 19th AND get it to the JDB by that date also, or can I just mail it to the JDB on that date and it gets there the next day or soon afterwards?

 

Thanks.

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It looks pretty good, but when you reference the affidavit you should also include it as an exhibit.

 

You may also want to say something like: "the affiant cannot lay a foundation for the testimony or authenticate the evidence", something like that. I think "foundation" and "authentication" should appear in there somewhere. But it does look like it should do what you need it to do, in my opinion. 

 

I would file it and send it to the lawyer ASAP, not sure what your rules are.

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I have my summary judgment hearing on Wednesday, the day after tomorrow, and I have been getting as prepared as I can.  I can't believe I'm still only at this stage of the game after 9 months . . . keeping in mind that I lost to their MSJ during arbitration back in August so I'm back where I started, sort of.

 

I have two questions:

 

I noticed today while poring over the Oregon Rules of Civil Procedure that there was something about parties being able to produce additional affidavits at a summary judgment hearing, or something like that. 

For anyone who has read this thread, you'll have noticed that they originally included an affidavit from a Citibank employee (alleged) in their first MSJ and in their original batch of discovery documents.  They did not include the Citibank affidavit this time, but instead, now have an affidavit from a "legal specialist" for the JDB.  Easier to pick apart, to be sure, but still depends on how the judge sees it.  Is it feasible that they would show up with the older affidavit at the hearing, just to f*** with me?  Or can they not really do that?  I might have been reading too much into the rules I was looking up.

 

Secondly, and maybe stupidly, since I am going to be in front of a judge for the first time, I was wondering if I am supposed to call myself "the defendant" or if I just talk about myself in the first person and say "I".  As I said, maybe a dumb question, but I want to make sure I have the protocol straight.

 

Thanks.

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I would be prepared to fight both affidavits, just in case. You can call yourself "I",  and the judge "your honor" and then speak as you normally would,

 

Good Luck.

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I talked to my lawyer buddy about the possibility of their introducing a "new" affidavit at the hearing and he basically said they can't, and if they do, the judge most likely won't give it much credence.

 

Also, I have a "matter of opinion" question -

 

I know the attorney will drive home all of the points about my initial admissions  - that I admitted I had an account with the OC, etc, but I never admitted anything else. 

 

So, obviously one of the things I have experienced during this suit is the gradual awareness of the behavior of both JDBs and their attorneys - something I didn't know anything about before.

 

If the attorney starts to aggressively push the angle that I started out the suit by admitting some of these things, is it even appropriate to point out that I had no idea whom I was dealing with, specifically, an attorney who has been sanctioned/disciplined by the bar three times? (truly, Oregon and Washington).  I would only bust it out if I felt it was called for and timely, but is that sort of thing frowned upon?  I think it goes to their credibility, of course, not just showing their bad behavior.

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And just to clarify, the attorney who is now handling the case for them and will be on the phone for the hearing today, IS the one who has been sanctioned, out of all the lawyers at the firm.  The owner of the firm was sanctioned quite a few years ago, but this guy has 2010, 2012, and 2013 under his belt which is great since he's only been out of law school since 2006.

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Good luck!  I've been following your thread as I suspect I'll be facing these monsters soon.  Can't decided if I should take my chances in court, arbitration, or try to settle.  Hope your case turns out well.

 

Pickles

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Yea!  Do you have a play-by-play to post?

 

Pickles

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