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Sued by Unifund and Daniel Gordon, PC


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Pickles,

 

Midland hired the law firm S&H to collect on a $2200 account.

 

I sent them a Debt Validation letter electing Arbitration.

 

I never heard another word from S&H or Midland on this account and it has since gone over the 6 year SOL point.

 

Midland does not like arbitration and if your original credit card agreement allows for arbitration that is what I would do as I want to avoid court if possible.

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I won this round because the lawyer who has been feeding me advice helped me whittle my opposition (from my first MSJ during court-mandated arbitration) down to the basics:  challenging the JDB affidavit and therefore the admissibility of their "business records".  I only included one item of case law from Oregon, other than the ones used to describe the standards for summary judgment. 

 

The case is West v Allied Signal, available on Google Scholar.  I should post it in the case law forum because it's been successful in two MSJ defeats so far.  Basically it's the family of an Oregon guy (West) who brought suit, after he died from mesothelioma, against the company he worked for and the supplier of the asbestos gloves they used while working.  The issue was whether an affidavit from a worker at the plant should be admitted as evidence - the defendants argued that he was not an expert, that he didn't purchase the gloves, that he wasn't in any way a supervisor at the plant, but the affidavit is all about how he was THERE, IN PERSON, having PERSONAL KNOWLEDGE about the gloves because he wore them, and the fact that the plant only got their gloves from one place (the co-defendant). 

 

It's a great case to beat home the point that these affiants, whether from the JDB or the OC, can't possibly have personal knowledge about the accounts on which they are bringing suit.

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Also, the JDB, in their reply, cited a whole bunch of non-Oregon cases (the judge didn't like that) which were purportedly cases in which the business records were allowed in even though they were not those of the JDB. 

 

I had read all of the cases and made notes about all of them just in case, but the judge had read all of them too the night before, and he sort of addressed the JDB very snidely as he mentioned each case, and how they were in no way the same as mine:  Saks v M/V Export Champion - he said "coffee tallies on an African ship, really?", US v Childs - a DMV report which was generated by a different company which is actually just an arm of the DMV who USES THE DMV's SAME COMPUTERS? (I think he acutally said it in all caps :)).

 

The closest case to mine was Great Seneca Financial v Felty (also available on Google Scholar), but it's worth a read for a variety of reasons, especially for anyone in Ohio:

 

On appeal, the courts actually let in some of the business records based on the JDB affidavit - the account information and the year's worth of statements, but those were apparently "certified" by an intermediary of First USA Visa, whatever that means.  However, the court said that the purchase and sale documents should NOT have been admitted because they were not certified by anyone.  And, the court found that the amount that GSF was claiming could not be verified because the accounting didn't start from a zero balance. 

 

So, I could tell the judge was going to deny their motion but I was still thinking he might just be criticizing them and then he was going to grant it anyway - I've become an Eeyore during this process and I assume the worst!  He actually coached me at one point during my statement where he said "I think what you mean to say is . . ."  I could have hugged him.  And then he made sure to remind me that I needed to start getting ready for trial.  Sadly, he's not the judge . . .

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I had read all of the cases and made notes about all of them just in case, but the judge had read all of them too the night before, and he sort of addressed the JDB very snidely as he mentioned each case, and how they were in no way the same as mine:  Saks v M/V Export Champion - he said "coffee tallies on an African ship, really?", US v Childs - a DMV report which was generated by a different company which is actually just an arm of the DMV who USES THE DMV's SAME COMPUTERS? (I think he acutally said it in all caps :-)).

 

 

@chicamarie

 

:ROFLMAO2:   Good for that judge!   You know that the JDB attorney was not expecting the judge to take the time to read each case.

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Pickles,

 

Midland hired the law firm S&H to collect on a $2200 account.

 

I sent them a Debt Validation letter electing Arbitration.

 

I never heard another word from S&H or Midland on this account and it has since gone over the 6 year SOL point.

 

Midland does not like arbitration and if your original credit card agreement allows for arbitration that is what I would do as I want to avoid court if possible.

 

Thanks.  I have a similiar experience so far with Midland and S&H.  Sent an answer to their un-filed summons and haven't heard a word since.  The one I'm facing next is Daniel Gordon.  I'll start my own thread soon on that one.

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  • 2 weeks later...
Guest Happybluesky

OR: Motion to compel discovery denied without first a good faith effort to confer:

 

CHAPTER 5—Proceedings in Civil Cases 
NOTE:  Rules specifically relating to contempt proceedings are located in UTCR Chapter 19. 
5.010 CONFERRING ON MOTIONS UNDER ORCP 21, 23 and 36-46 
(1) The court will deny any motion made pursuant to ORCP 21 and 23, except a motion to dismiss:  (a) for failure to state a claim; or, (B) for lack of jurisdiction, unless the moving party, before filing the motion, makes a good faith effort to confer with the other party(ies) concerning the issues in dispute. 
(2) The court will deny any motion made pursuant to ORCP 36 through 46, unless the moving party, before filing the motion, makes a good faith effort to confer with the other parties concerning the issues in dispute. 
(3) The moving party must file a certificate of compliance with the rule at the same time the motion is filed.  The certificate will be sufficient if it states either that the parties conferred or contains facts showing good cause for not conferring. 
(4) Upon certification that a motion is unopposed, it may be submitted ex parte. 

 

 

Our DNG collection lady is such a sweetheart (Jan) and she's predictable also. Keep track of everytime she calls and leaves a "Call Jan at this 800 Number" and doesn't identy herself or her company. That's a FDCPA violation you can save for your counter claim.

 

 

Use the Microsoft Word Pleading Wizzard and Make you Caption and Banner headers look identical to the one you received. Suggest even the header and footers identify the Midland Funding LLC v. chicamarie, and the footer name the document with the page numbers identically to DNG's.  If you use the same font's and style just maybe you can cause some confusion and DNG will forget something.

 

Here is LegalEagle's 14 basic requests for Discovery I would suggest using.

 

Fourteen Basic Requests for Production of Discovery

(Defendants Requests for Documents from Plaintiff)

 

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account


3. The original written agreement in which defendant allegedly assented to the terms of the account


4. A complete history of the account from day one, establishing the legitimacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."
 

Chain of Custody and Forward Flow

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.
 

14. The forward flow document governing this transaction.

 

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

Plaintiff has not provided proof that complaint is based on a foundation of facts or has omitted facts establishing the chain of custody of alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the alleged debt was allegedly transferred to subsequent assignees, any and all account numbers and/or the names of the account holders, or forward flow documents governing all transactions providing no standing for complaint, injury or cause for relief in this action.

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

Credit Card Collection Defense Mantra

The old  credit  card  collection  defense  mantra,  "Deny

everything,  say  nothing  and  demand  strict  proof,"  has  forced

creditors  to  more  ardently  pursue  collection  defendants  for

requested  discovery  as  to  whether  one  used  a  credit  card,  or

made  payments  thereupon,  or  received  monthly  statements.

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

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So my trial is on Monday.  I do have a lawyer now, but as is probably typical with most of these cases, he's planning to attack all of the typical JDB docs, hammer at the hearsay, motion in limine, etc, and hope that the judge is one who understands the law or at least wants to interpret it correctly as it applies to these cases.  He had a loss going after PRA a couple of weeks ago so he's feeling cautious, but he knows what he's up against.

 

He looks to me to come up with ideas to add to the mix, as I have demonstrated that I have been studying up and reading case law, so I feel motivated to be fully engaged.  So along those lines, I have a question about what to ask the OC witness if they do ultimately show - they said last week that they would have one.  Appearing by phone?  They asked for that in a motion, but that was just for their own witness, not for the OC witness - can they do that this late in the game? Motion for a witness to appear telephonically and then change the witness?

 

Anyhow, their last effort to scare me with docs was just an additional year's worth of statements, not the whole 6 years that I asked for, and of course no contract, terms, etc, even though this is a breach of contract suit.  Because I never looked at these statements the first time I ever saw them (did I see them?? Who can remember . . ) I have pored over them now and have so many questions about how they present their charges, fees, etc, and I'm wondering if it helps to grill the OC witness about these things.  If I was still pro se, I'd be inclined, but maybe it's not helpful.  But I want to know how they can seemingly vacillate between listing overlimit fees, or amount over the limit, as a purchase on some statements, and then they magically they change to "fees" on later statements.  They are obviously able to charge interest on them if they are listed as purchases.  Were they ordered to stop this practice with the credit card reforms ("reforms") a few years ago? 

 

This is just one example.  If these are policies that change, shouldn't there be documentation, notification, changes to the contract, apart from the statements?  I know it sounds paltry, but the more I look over these statements the madder I get.  At this point I'd love to actually nail an OC witness to the wall.  Despite the behavior of the JDBs, the OC deserves no less scrutiny and is probably just as corrupt.

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I wish I knew how to add things to the title of my thread, like a sad face?  :(  JK, sort of.  I have a tendency to make light of things as a defense mechanism, until the reality hits.

 

We lost today!

 

I waited in the law library from 8:45 AM to 4:45 PM.  Yes, with a 1 hour lunch break, my lawyer was in there for 7 hours.  I can't accuse him of not trying.  With the presence of the Citibank witness, the judge allowed all of their "records" in.  The piece which held the whole thing together, the Bill of Sale from them to Pilot Receivables, the one that had no mention of me or the account number, was the sticking point, and apparently for a long time.  My lawyer hammered away at it as well as he could, as far as either the OC witness (alive and in person - some VP of courtroom appearances I think) being able to testify to the sale, or the affidavit of the OC employee being able to authenticate it.

 

As I mentioned in my other thread, when my lawyer started attacking the affidavit from the OC, the one we've had forever, which is the document that references the Bill of Sale, the judge basically went along with the Citibank witness treating it like it was just another business record.  So, instead of tossing it because there's no way the affiant had personal knowledge of the sale of the account, the judge let it stand as simply a business record that could be authenticated by the witness.  Therefore the affidavit and the Bill of Sale are just part of the same records.

 

Along those lines, the judge allowed the testimony of the OC witness to basically create a "package" of all the documents.  She testified that 42 page redacted "account information" and the Bill of Sale, Letter of Assignment, etc, were all of a piece, so they all basically authenticated each other.  As I said, my lawyer tried to point out that no one present had personal knowledge of the sale or of my account, especially the sale of the account, and that the Bill of Sale was an independent document that could not be tied to any of the account information.

 

Keep in mind that they never produced any kind of contract or any kind of agreement.  Nothing. 

 

As to that last fact, they were denied the post charge-off interest they were asking for.  The account was charged off back in July 2010, they "acquired" it in September 2012, and they were claiming a right to the statutory interest rate of 9% dating back to charge-off.  They were denied since they had no contract or agreement showing the right to collect ANY prejudgment interest.  So, small win, with an FDCPA violation built in, but as I've said before, he is reluctant to take those without lots of documentation.  I think he has only done it if he has the original dunning letter.

 

I can't believe they pony up to fly Citibank witnesses in.  Amazing.

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And just FYI, he decided not to have me in the courtroom because he was convinced that the last case he lost was because his client was too much of an easy target for the PRA attorney.  I think the result would have been the same either way.

 

Because he's a lawyer, he made it clear that this is just one step of the process and appeal is possible, settling is still possible, BK is possible, so I'm not drowning in despair. 

 

Also, this was the one credit card I couldn't settle back in 2010.  I settled, with my husband's accounts also, two B of A cards, two Chase cards, and three US Bank cards, for about 25% of the $90,000 we owed.  I'm not proud of the debt we incurred (recession hit us/him/construction project hard) but I was proud of myself for getting us out of the hole without BK.  When Citibank wouldn't settle with me I just gave them the finger in my mind and let it lie.  It's the last piece of the puzzle and I'm still not sure yet where it goes but I had hoped it would end today.

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@chicamarie

 

It's really unusual for a JDB to bring in an OC witness.  It makes it just about impossible to attack the JDB's standing. 

 

It appears that some JDBs and debt collection attorneys have revised their playbooks and upped their games.  There's a debt collection attorney in my state who is routinely providing OC affidavits now.

 

You did your best and should be proud of yourself.

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Chic,

 

I must say having any attorney litigate for 7 hours on a simple credit card case, the courts in Oregon must be desperate for something to do. I can't believe a judge let it go that long.  I had a couple of cases I used an attorney and they to didn't want me anywhere near the trial.  Said to risky if I were called to the stand to testify.  So your attorney had that dead on.

 

I know losses are tough, first case we had I lost so know the feeling.  It sounds like your attorney believes there is some way for him to build a practice around defending these cases.  Again second case second loss, and spending 7 hours at it.  There will be one hell of a transcript to read, of course it might be pricey to purchase.

 

I hope your attorney goes back and does some research on the law and finds the case law he needs for appeal.  Sometimes they can be like a dog going after bone and won't give up,,,

 

He sounds like he knows he is on the right side of law on the evidence needing to be exculded, but hasn't found the case law to support his belief just yet...

 

Good Luck 

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Chic,

 

I must say having any attorney litigate for 7 hours on a simple credit card case, the courts in Oregon must be desperate for something to do. I can't believe a judge let it go that long.  I had a couple of cases I used an attorney and they to didn't want me anywhere near the trial.  Said to risky if I were called to the stand to testify.  So your attorney had that dead on.

 

I know losses are tough, first case we had I lost so know the feeling.  It sounds like your attorney believes there is some way for him to build a practice around defending these cases.  Again second case second loss, and spending 7 hours at it.  There will be one hell of a transcript to read, of course it might be pricey to purchase.

 

I hope your attorney goes back and does some research on the law and finds the case law he needs for appeal.  Sometimes they can be like a dog going after bone and won't give up,,,

 

He sounds like he knows he is on the right side of law on the evidence needing to be exculded, but hasn't found the case law to support his belief just yet...

 

Good Luck 

 

 

Thanks Skippy.  He's been doing consumer law, collections suits, and bankruptcy for a few years now.  He has a few Oregon appeals cases under his belt - wins and losses, mostly dealing with SOL issues, choice of law regarding SOL, etc.  He has a good settlement from a couple of months ago with the FDCPA interest issue. 

 

I think that he pegged me as someone, while I really wanted this to be over (he talked me out of settling when they brought it up last week, after I beat their MSJ), who was interested in pursuing the legal end of things and hopefully establishing some case law, because there isn't any in Oregon!  He also knows that while I certainly can't comfortably handle a 12000 judgment, I have a roof over my head, a job, a husband with a job, etc, so asking me to participate in creating some legal pathways is acceptable.  He has helped me a lot, and for not much $. 

 

When I mentioned possibly settling before the judgment order was issued, he basically said that if it goes through, it will be on record that the JDB asked for illegal interest and was denied, because they couldn't produce a contract that showed they were entitled to it.  And others after me, like everyone on here, will benefit from it.  While a judgment, however it gets resolved - appeal or otherwise, would suck, I relish the thought of people like me having some ammo . . . ammo I didn't have.

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When I mentioned possibly settling before the judgment order was issued, he basically said that if it goes through, it will be on record that the JDB asked for illegal interest and was denied, because they couldn't produce a contract that showed they were entitled to it.  And others after me, like everyone on here, will benefit from it.  While a judgment, however it gets resolved - appeal or otherwise, would suck, I relish the thought of people like me having some ammo . . . ammo I didn't have.

 

Very selfless of you ... creating good case law for OR.

Hopefully there are issues for appeal ............ and good luck with them.

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@chicamarie

 

As to that last fact, they were denied the post charge-off interest they were asking for.  The account was charged off back in July 2010, they "acquired" it in September 2012, and they were claiming a right to the statutory interest rate of 9% dating back to charge-off.  They were denied since they had no contract or agreement showing the right to collect ANY prejudgment interest.  So, small win, with an FDCPA violation built in, but as I've said before, he is reluctant to take those without lots of documentation.  I think he has only done it if he has the original dunning letter.

 

 

He has their claim for interest in the complaint.  You have the judge's ruling.  What else does the attorney need?

 

1692f(1)

 

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

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He's pretty sure he won the business records argument, it's just that the judge didn't agree.  It's definitely appeal worthy.

 

And, I don't feel so much selfless as just a sense of duty, guilt, whatever . . gotta get rid of it somehow.  Stupid Catholic school.

 

Don't feel bad because at the least you helped those who will fight in the future. I have never heard of a single case like this that lasted a full day. I have actually witnessed a judge clear a docket of 30+ JBB cases in less than an hour.

 

Even though you guys lost, at least for now, I congratulate you on the effort!

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  While a judgment, however it gets resolved - appeal or otherwise, would suck, I relish the thought of people like me having some ammo . . . ammo I didn't have.

A judgment reversed on appeal would be great, it would actually be better than an outright win because you would establish needed case law for many others after you. Maybe you just had to take one for the team. 

 

When I heard 8 hrs. at trial I automatically assumed most of that time was spent in recess (while other cases were heard) unless it was a jury trial.  You may have a better chance of beating it at the appellate level anyway.

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He has their claim for interest in the complaint.  You have the judge's ruling.  What else does the attorney need?

 

1692f(1)

 

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

 

No way they are going to let a case dealing with post charge off interest go before a federal court. Losing an FDCPA lawsuit like this could cost them millions in future earnings. No matter how stubborn they have been I can't see them risking a large portion of their business model. I could be wrong, but it would not make business sense to do anything other than settle. 

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@chicamarie

 

It's really unusual for a JDB to bring in an OC witness.  It makes it just about impossible to attack the JDB's standing. 

 

It appears that some JDBs and debt collection attorneys have revised their playbooks and upped their games.  There's a debt collection attorney in my state who is routinely providing OC affidavits now.

 

You did your best and should be proud of yourself.

Having not reviewed the entire thread...

On an approximate $600 alleged debt purchase I predict it will remain "really unusual" to bring in an OC witness. This doesn't appear to be low hanging fruit for a JDB. If it is reversed on a successful appeal it will be the opposite of low hanging fruit. The cost of a JDB purchasing a robo-signed OC affidavit is insignificant compared to flying in an OC witness IMO.

 

Kudos to the OP for dealing with a Black Swan type event by a JDB.

 

Agreed, incredibly unusual, and a real case killer. They don't even need an affidavit with an OC witness.  

My thinking is that the primary purpose for having a DC witness would be to introduce evidence. When there is an affidavit before the court, that witness can either corroborate the evidence attached/referenced by the affidavit or possibly be shown to contradict the affidavit's claims about the evidence.

 

Even with a witness I would think most jurisdictions would still require actual evidence to prove up each required element for their cause of action (assuming the defendant pushed for such at trial and on appeal, if need be). Evidence like a bill of sale, contracts, etc. Otherwise the witness could just make stuff up like Tommy Flanagan, the Pathological Liar by Jon Lovitz. "The defendant owes me one million dollars. With interest, they owe me two million dollars. Yeahhh! That's the ticket!"

 

From my experience the lies entered into the court by a DC attorney would make for some rough sailing for their OC witness on cross by a competent consumer attorney. Maybe DC attorneys don't lie to the court when the consumer has representation. Yeahhh! That's the ticket! :-)

 

Hopefully the trial court record was properly made, the judge erred, and a timely appeal with a reverse and remand is coming at a future date.

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Even with a witness I would think most jurisdictions would still require actual evidence to prove up each required element for their cause of action (assuming the defendant pushed for such at trial and on appeal, if need be). Evidence like a bill of sale, contracts, etc.

 

I can't believe they can win without producing any kind of contract or agreement.  I've seen at least one state mentioned on this board where a breach of contract case must absolutely involve the production of a contract.  Maybe on appeal the court can see the wisdom in such a requirement. 

 

As far as the potential for the OC witness to lie, I think that's one reason they have title like "Vice President of flying to hell and beyond to testify".  They don't have to say anything other than yes, these are our records.  They can say that their position is far too important to actually come in contact with any of these records but they invented the way they were made, built the computers on which they were made, and they robotically manipulate the people who make them.  That's what they say in my fantasy trial anyway.  But I think the judge must get so dazzled and honored by their presence that when a lawyer attacks their credibility or the records they just think to themselves "banks don't lie, people do!"

 

I think we have a solid case for appeal.

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I can't believe they can win without producing any kind of contract or agreement.  I've seen at least one state mentioned on this board where a breach of contract case must absolutely involve the production of a contract.  Maybe on appeal the court can see the wisdom in such a requirement. 

 

That's Illinois, it's in the RCP. Credit card cases though aren't quite so clear cut. Every time the card gets swiped, you form a contract with the lender. That contract can be implied through the debtors actions like purchases and payments. So, authenticated statements showing transactions could be enough to show a contract. Although I would think that the proper credit card agreement would be necessary to show all the terms of the agreement including what constitutes a breech of contract. 

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@chicamarie

 

I'm honestly not sure that you have an appealable case.  Of course, I don't know that for sure, but I think it would be an uphill battle.

 

The OC witness was there to prove your account was sold to the JDB and to authenticate the business records.   The business records exception, 803(6), has certain requirements in order to show that a document is, in fact, a business record.  You're attorney would have to do some work to show that an employee of the OC cannot show that a billing statement was created by that OC.

 

It could depend upon your attorney's questions AND your court precedent in regard to what kind of knowledge a witness must have in order to authenticate that record.  Courts don't always require specifics. 

 

For instance, 803(6) says that the information in the record must have been from someone with knowledge or transmitted by someone with knowledge.  It doesn't say that the "someone with knowledge" has to be identified.

 

The OC witness could easily testify that they have  employees who are trained to enter information into the record.  They are the people with knowledge.

 

In regard to the sale, I guarantee you that if push comes to shove, the witness could provide documents that shows your account was sold to the JDB.

 

I would be pushing for the FDCPA complaint.  You might suggest to the attorney that he research "waiver" and "interest".  If the OC did not charge interest after they charged off the account, that means they waived the right to collect post charge-off interest.

 

The JDB claims to step into the shoes of the OC.  They have the rights of the OC but they can't also cannot do anything that the OC could not or chose not to do.  Their claim of post charge-off interest could be a violation if the OC waived the right to collect that interest.

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