If you recently won, what legal defense did you bring to trial and how

[thedestroyer]

Hi all,

I am only a few short weeks away from trial and I'm trying to get all of my "I" dotted and "t" crossed. I have searched with no luck for an attorney to take my case and will need to represent myself to the finish line.

If you recently won against against a junk debt buyer or any debt collector, what legal defense did you bring to trial and how? I am aware of the thread with all of the successful stories but I'm most interested in the legal defense you used and how you dodi it.

Thank you very much! I will beat these beasts with your support!

[hot in az]

It's hard to give advise without knowing the case up to now. We don't even know what you are being sued for??  Or what you have done to prepare up to now? Like did you file MIL to strike their so called evidence. Coming to Wyoming this labor day. My husbands from Rock Springs.  Are the mosquito's very bad?

[shellieh98]

Plaintif lacks standing to sue.  It was on a card I had already settled, but was sold again, and sued upon.  But I prepared, opposed their motions, submitted a motion in limine, they dismissed with prejudice at trial.

[nobk4me]

I beat a JDB with arbitration.  They hate JAMS, as it is too expensive for them.

 

I beat an OC (with a relatively small account, under $2K), just by running up their legal bill with lots of discovery.  In my state they can't get legal fees from consumers.

[thedestroyer]

Thank you all for your help!

[needabailouttoo!]

Here’s what did:

 

    First, I found online a kit on how to defend oneself pro se, written and sold for $15.00 by a fellow consumer, non-attorney guy who had fought and won several debt collector lawsuits. He also happened to be in my state (Georgia), so all of his templates provided were already formatted for Ga. court. He hammered home the fact that defending oneself pro se is completely doable, just be mindful of Rules of Procedures, and he gave the deep lowdown on the fraud being perpetrated upon us, which gave me immense confidence.

 

I was being sued by the second of two junk debt buyers, which added wonderful complications for this second JDB to have to prove in ownership of my alleged debt. I also learned from my online kit that the rule of Law in debt collection is different than what we, being unfamiliar with law, typically perceive. Once I recognized that even though I absolutely owed this debt ($6500.00), I didn’t owe this debt to an entity that couldn’t PROVE that I now owed the debt to THEM.

 

I learned that I could stop wasting time trying to squirm away from the fact that this IS my debt and how do I win this case? I was the defendant, and I didn’t have a burden of proof. The onus of responsibility was entirely on the Plaintiff. Knowing what is being said over and over on these subject responses, that JDBs have very little documentation associated with the debts they purchase, and how their lawsuits tend to disappear once they tangle with a defendant that seems wise to their ploys, I spent a lot of time online reading, and with help from many sources, I learned the most important defense after being served is to really pick through the documents that have been filed, because this is their ENTIRE case--and to recognize how much the documents they’re filing don’t prove AT ALL that they now own my debt. They may very well have entered into a purchasing agreement with JDB1 or the OC, and may truly have purchased my account, but the documents they’ve filed upon the court and the defendant don’t prove that MY alleged account (You must wear out the word ‘alleged’ everywhere you can) had ever been part of that debt transfer.

 

In Georgia, debt suits are handled in Magistrate Court, and we don’t have all the many steps involved as other states. Here, it goes fairly quickly. A Complaint is filed, the defendant must respond within thirty days after being served, otherwise a default judgment is automatic. In my answer, I always include Lack of Standing and Failure to state a Claim from which Relief may be Granted, because, since I know they can’t prove ownership of my debt, I know they have no case, they haven’t proven ‘injury’ or have in any way been ‘damaged’. They chose to enter into a buyer beware contract with the debt seller, and each sale is made without warranty to the accuracy or of the collectability of the thousands of accounts sold. I’m not responsible for their debt purchasing choices. They knowingly entered at their own risk.

 

Now this Plaintiff is trying to recover ‘full value’ of a debt that they willingly paid pennies on the dollar ($181.19) that is unproven, unwarranted and by all appearances, un-owned. When I file an Answer, I also file a Motion to Dismiss at the same time. Doesn’t cost anything, and it never gets read by the completely overwhelmed judges. I file the Motion to Dismiss specifically because I know the audience becomes the Plaintiff’s Attorney, who will certainly read it. I sprinkle plenty of case law throughout my Motion, picking apart their docs and rubbing their face in the obvious crap they’ve filed. Then I claim fraud upon the court for filing misleading representations of debt upon the court and the defendant, in an attempt to deceive both. Under FDCPA, providing false documentation or representation in the attempt to collect a debt violates § 807.2(a); § 807. 9; §807.10; § 807.12; § 807.14, False or Misleading Representations [15 USC § 1692e]. I certainly mention that Defendant now possesses legal right to counterclaim, for harassing litigation, lack of legal standing and $1,000.00 as penalty, for each of the EIGHT FDCPA violations cited in my Motion. (more...)

[needabailouttoo!]

I always point out that the Bill of Sale that they always include as part of their flimsy Validation of Debt is but one page of a very larger purchasing contract (Forward Flow Agreement) between themselves and whoever was the debt seller. In contract law, if one presumes to sue another on a contract, in this case a breach of an alleged contract, they must provide the ENTIRE contract that they purport to be a party to, not just fractions of it. It is this Forward Flow Agreement that is the instrument in conveyance that allows the JDB suing me to now have all the rights and privileges to be my new hemorrhoid, and if they claim to now be whom I’m indebted to, I need them to provide this ENTIRE Forward Flow Agreement, which they cannot. Since they cannot, they are denying me ‘due process’ and are unfairly prejudicing me in a legal matter. Someone in this forum once  mentioned ‘client privilege’ prevents them from providing this. I say BS. I’m entitled to ALL documents being used against me. This makes way for:

 

U.C.C. §3-305©  “...An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.” 

 

Then Georgia law has: OCGA 11-3-309.b A person seeking enforcement of an instrument, must prove the terms of the instrument and the person’s right to enforce them.

 

I point out also to the Plaintiff  by way of my Motion that they need to prove an intact chain of assignment as their ‘proof of ownership’, from the OC to the previous JDB(s) and then to themselves, which again they cannot. They were not a party to the first transfer, between the OC and JDB1, so they aren’t in possession of another party’s Forward Flow. All my Plaintiff has as any assurance that they bought my debt is a one page copy of a Bill of Sale from its seller, JDB1, and the OC. Again, this first Bill of Sale also does not have my name and account number specifically indicated that it was transferred, so this first Bill of Sale also doesn’t prove that my account was conveyed, it just memorializes (poorly-it never is notarized as authenticated as an act of conveyance) some prior business transaction. I point out that the contract I’m being sued upon-whether it is a Forward Flow Conveyance or a credit card agreement breach- the ‘contract’ is, at this point, imaginary and illusory, since neither can be provided to this Court, and is therefore unenforceable. “The substantial evidence test requires that the evidence must be existing and real, not just seeming and imaginary.” State v. Irwin, 304 N.C. 93, 97-98 (1981).

 

The plaintiff is contractually forbidden by confidentiality requirements within any Forward Flow that it is a party to, from ever providing the entire agreement, its many exhibits and the electronic file which contains my name and scant account info (and the thousands of other names and accounts) in public, meaning they CAN NEVER prove legal standing in a Court of Law. This is KEY. It trumps everything else. The Plaintiff’s burden first and foremost is legal standing. That they can’t prove this, they have no case. If they can’t prove ownership of a debt, they can’t legally collect a debt, it makes no difference if I owe this debt. That they can’t prove ownership, they can’t prove injury, they cannot establish every element of its claim as a matter of law.

 

Once one files an answer, a court date is assigned by the clerk. There is no further filing of interogs, discovery, document productions in Ga. Magistrate Court. Either you show up on your court date or you lose. “Court date” becomes a small cramped courtroom of pro se defendants meeting out in the hallway one-by-one with plaintiffs’ rent-a-lawyers. Mine had been given ‘special permission’ to offer me 50% off the entire debt owed (now $6800 with unearned interest and attorney fees). I made clear that I have no intention of paying any settlement of any amount when the Plaintiff can’t prove that they own my debt. Apparently the rent-a-lawyer had also been given special instructions that since I seemed to know my stuff, he didn’t put up a fight, he immediately volunteered to dismiss my case. I specified that my Motion asked to be dismissed with prejudice, but he said no.

 

“Well then I’d like to reject the dismissal and go to court”, I said. I had a twelve page monologue already written, thinking I’m going to have a chance to actually speak before a judge, the tryer of fact, and then he’ll see what scumbags these guys are, trying to pull all these filing of lawsuits without proof. Well, not in Georgia. In Georgia, debtor defendants never get face time with the judge, all the action takes place in the hallway. The judge is just there to sign off on final documents. Since the Plaintiff initiated the lawsuit, only THEY can decide in what manner they’d like to dismiss their own case. But, hey. Dismissal is a dismissal, this debt has gone away (for now) and I’m ecstatic and empowered that I was able to pull it off alone. All of you can, too.

[Credator]

Nice information. Each jurisdiction will vary. There is no one-size-fits-all or magic bullet. Every case is going to be a bit unique and require study and effort.

 

Best route is to exploit all of their case's weakness and defend any of your own according to your rules and procedures as well as governing law.

Here’s what did:

 

    First, I found online a kit on how to defend oneself pro se, written and sold for $15.00 by a fellow consumer, non-attorney guy who had fought and won several debt collector lawsuits. He also happened to be in my state (Georgia), so all of his templates provided were already formatted for Ga. court. He hammered home the fact that defending oneself pro se is completely doable, just be mindful of Rules of Procedures, and he gave the deep lowdown on the fraud being perpetrated upon us, which gave me immense confidence.

...

I learned that I could stop wasting time trying to squirm away from the fact that this IS my debt and how do I win this case? I was the defendant, and I didn’t have a burden of proof. The onus of responsibility was entirely on the Plaintiff. Knowing what is being said over and over on these subject responses, that JDBs have very little documentation associated with the debts they purchase, and how their lawsuits tend to disappear once they tangle with a defendant that seems wise to their ploys, I spent a lot of time online reading, and with help from many sources, I learned the most important defense after being served is to really pick through the documents that have been filed, because this is their ENTIRE case--and to recognize how much the documents they’re filing don’t prove AT ALL that they now own my debt. They may very well have entered into a purchasing agreement with JDB1 or the OC, and may truly have purchased my account, but the documents they’ve filed upon the court and the defendant don’t prove that MY alleged account (You must wear out the word ‘alleged’ everywhere you can) had ever been part of that debt transfer.

...

I’m not responsible for their debt purchasing choices. They knowingly entered at their own risk.

...

- Get some sense of hope.

- Learn how the game is being played on you.

- Ignore anyone stupid enough to believe and state that you are a deadbeat because some lying JDB is suing you on an alleged debt with no evidence solely because most people will fold and pay or get a default judgment. They are playing the odds. Time to turn the tables on them if you are up to the task. Be honest with yourself on that issue.

- Understand that the parties are responsible for their own choices.

- Thoroughly review every piece of alleged evidence brought by the plaintiff. Identify any hearsay and irrelevant documents. Junk affidavits not referencing anything attached as admissible evidence, etc.

- Make a plan of action to win and execute it.

 

I always point out that the Bill of Sale that they always include as part of their flimsy Validation of Debt is but one page of a very larger purchasing contract (Forward Flow Agreement) between themselves and whoever was the debt seller

...

I say BS. I’m entitled to ALL documents being used against me. This makes way for:

 

U.C.C. §3-305©  “...An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.” 

 

Then Georgia law has: OCGA 11-3-309 ( A person seeking enforcement of an instrument, must prove the terms of the instrument and the person’s right to enforce them.

 

...

“The substantial evidence test requires that the evidence must be existing and real, not just seeming and imaginary.” State v. Irwin, 304 N.C. 93, 97-98 (1981).

...

Apparently the rent-a-lawyer had also been given special instructions that since I seemed to know my stuff, he didn’t put up a fight, he immediately volunteered to dismiss my case. I specified that my Motion asked to be dismissed with prejudice, but he said no.

...

The judge is just there to sign off on final documents. Since the Plaintiff initiated the lawsuit, only THEY can decide in what manner they’d like to dismiss their own case. But, hey. Dismissal is a dismissal, this debt has gone away (for now) and I’m ecstatic and empowered that I was able to pull it off alone. All of you can, too.

- They chose to be the plaintiff, so make them be the plaintiff. Force them to prove an impossible to prove case. If you do that, on and for the record, then they should lose or you should prevail on an appeal review if necessary.

- Hammer them with the Civil Rules of Evidence. Force them to follow the Civil Rules of Procedure. Hammer them with any statutes in your favor and adverse to them backing up everything with controlling case law or at least some applicable case law.

- Affirmative defenses. Always a good idea. In some jurisdictions it may be able to inhibit a grant of a plaintiff's pre-discovery MSJ.

- Negotiate what you want and get it by having maximum leverage due to being willing to go all the way if they choose to continue their bogus lawsuit. That includes making a solid trial court record for your appeal review.

 

This is what I did to win against OCs prior to trial. I was denied leave to bring in my counter-claims that had developed during litigation so no counter-claims were used in my wins. By forcing the plaintiff to prove their case and showing them I would never quit they either eventually gave me what I wanted or the court ended their game.

[debtzapper]

http://www.govcollect.org/files/Wyoming_Debt_Collection_Laws.pdf

 

Written by debt coll lawyers, but is a summary of WY law.

[debtzapper]

http://www.leagle.com/decision/In%20WYCO%2020081010642

 

Leading debt coll case for WY

[debtzapper]

http://www.attorneysforconsumers.com

 

Try them if you need a consumer lawyer.  A nation wide law firm that has lawyers licensed in WY

[needabailouttoo!]

Thanks, Credator. Yes, I know (each jurisdiction will vary), and I made it clear that the important thing is to scour JDBs/OCs flimsy supporting docs. It is universal, regardless of national location, that no proof of debt ownership, no proof of intact chain of assignment instantly  proves no legal standing, case closed. That's it, faulty affidavits don't even matter if these foundational elements aren't proven by the Plaintiff. The big secret is, they never can. It becomes about the language provided in the Bill of Sale, and how it never identifies the account or debt at issue, yet its all the JDB has as anything remotely suggestive that an account was bought. Or was it? How can any interested party be assured that a generic Bill of Sale represented their alleged transferred debt? It provides absolutely no proof at all. Account Summaries, same thing. Look closely and one will see its basic demographic information that anyone who has access to consumer credit reports can easily compile and pass along as 'legitimate business records'. Without anyone in human form available with personal knowledge at the time of court to attest to that compilation, that Account Summary is entirely worthless and inadmissible. Familiarize yourself with your jurisdiction's case law to get an idea what flies as 'Good Evidence' in your hometown, and recognize that the JDB 500 miles away has no idea what that is. They're just throwing what little they have as 'evidence' and hoping it sticks. Defendants always have the upper hand, but don't know it.

 

Federal law requires that OCs only retain pertinent business records for two years. Its because of this that OCs rarely provide any detailed docs at transfer. Storage is expensive and doesn't generate revenue, and so OC account docs have been disposed of long ago. JDBs rarely have anything as admissible docs, and Defendants should realize that the more Bills of Sales provided in the Complaint, the more of a slam-dunk their case becomes. I think many here are entering this debt-lawsuit fighting arena already conceding that they are at a severe disadvantage, simply because anything legal is foreign territory, but in reality, the direct opposite is true. Defendants are already that much more guaranteed to win their case, just by being named in a collection lawsuit. They have no idea how much leverage they already have. If they can just know what to look for as missing in the docs provided, and challenge those, they've already won. 

 

Something too that is incredibly helpful and should be required reading is the 50 State Collection Law post. Excellent, pertinent, jurisdictional case law to tailor to any situation  and cite in responding docs, and should be accessed often, even moved to the 'Favorites' section on one's personal PC.

http://www.creditinfocenter.com/community/topic/320539-50-state-debt-coll-laws/ 

[texasrocker]

needabailouttoo! I could not have said it better myself.   You conveyed precisely what anyone who comes here the first time needs to know.  The powers that be on this forum should paste your summary on the front page.  It is just as worthy as anything there from our seasoned posters.