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What defense strategies are there when sued in court?


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I apologize if this may be somewhat vague question but I'm trying to get a bird's eye view onto the subject...

 

If you're sued by OC or CA, in a credit card debt case where you had stopped paying the debt for a simple reason of not having the resources to do so...

is there a "list" of defenses people usually consider for their strategy or is it really all over the place depending on a case?

 

In other words, is it possible to give few examples of defenses that can stand in court when the debt is obviously yours and the OC/CA are obviously the owner of it and eligible to collect?

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Guest usctrojanalum

If the debt is from an original creditor and it is obviously yours, and the only reason why you stopped paying was because of hardships - then there are no obvious defenses and the defendant is probably going to lose.  However, this does not mean you do not force the plaintiff to provide evidence that they are rightfully owed the money and if their evidence is lacking get a very favorable settlement.

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In any civil case the first thing to do is challenge the jurisdiction of the court, each court can only hear certain types of cases. Make sure it is in the right court(venue)

The are other ways of challenging jurisdiction but I do not want to confuse ya'll.

If the case is in the right court next challenge standing to sue. The Doctrine of Standing is a court created doctrine that determines whether a court can hear a case.

In other words they have to have a legitimate injury that the court can remedy.

One of the big ones for junk debt buyers is real party in interest. The big thing is even judges and attorneys have trouble understanding this issue and sometimes overlook it. You need to challenge them on this and make them prove it. In plain language this means that the plaintiff has to have suffered a loss resulting from your actions or inactions. Just because some one thinks you injured them does not necessarily mean that a real injury has occurred.  They can only be the real party in interest (the injured party) if you have some legal duty to them.

 

A fast way to stop a lot of these junk debt buyers, especially if the debt is really old, is the Doctrine of Laches. This Doctrine is a species of action where a person of reasonable intelligence and integrity, and having a right to take an action as prescribed by law, and having FAILED to do so, looses all right to proceed.

Now since they have failed to assert their right in a timely fashion they have failed to state a claim for which relief can be granted.

 

There a lot more ways to accomplish things but it is not in a prescribed manual with a step by step basis. It all depends on their complaint, supporting evidence, and various other reasons.

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Yes Sergeant, court of law can be a magnificent thing especially if you roll out common law on them.

 

It is no game for newbies though and without in-depth knowledge or time to acquire it, this newbie will have to strategically fold

 

Thanks much for sharing, would love to hear more of your wisdom ...perhaps soon enough

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I apologize if this may be somewhat vague question but I'm trying to get a bird's eye view onto the subject...

 

If you're sued by OC or CA, in a credit card debt case where you had stopped paying the debt for a simple reason of not having the resources to do so...

is there a "list" of defenses people usually consider for their strategy or is it really all over the place depending on a case?

 

In other words, is it possible to give few examples of defenses that can stand in court when the debt is obviously yours and the OC/CA are obviously the owner of it and eligible to collect?

As far as I know a CA/collection agency is very unlikely to be the plaintiff on a lawsuit to collect an alleged debt. The plaintiff should be a JDB, OC, or some other alleged real party in interest (RPII) that acquired the receivable or interest in that receivable presently alleged to be in default.

 

As to, "when the debt is obviously yours and the OC/CA are obviously the owner of it and eligible to collect?" (assuming that it was not barred by SOL) I am not sure what I would do to defend such a case. I have yet to see such an "obvious" case with the OCs that have sued me.

 

Often an N.A. bank credit card company has securitized the receivables for the accounts they create for consumers. They typically sell these receivables "without recourse" to make the receivables (and any cashflow they produce) bankruptcy remote regarding any account issuer that may need to file for BK. This procedure likely increases the perceived value to the investors by presumably reducing investor risk while the issuer raises a bit of cheap capital.

 

From what I have read, most consumers that have attempted to use the so-called "securitization defense" in court against an OC have met with defeat. Even if a litigious OC has sold their CC receivables without recourse it may not be advisable for me to attempt to convince the court that the plaintiff's representation to a federal agency (S.E.C.) that they sold the receivables "without recourse" actually means they no longer own the receivables/debt.

 

It is curious that the N.A. bank represents to the S.E.C. and investors that is is selling, without recourse (typically through a third party L.L.C. that eventually sells to the securitization trust), bankruptcy remote receivables to provide cash-flowing certificates for investors to purchase, yet through some magical agreement they are permitted to reacquire defaulted receivables for the purpose of putting their name on the lawsuit caption rather than the rightful owners, the certificate investors.

 

I think it would be fascinating to see an N.A. bank, as a debtor facing a BK court, explain how they had a billion or so in defaulted receivable face value assets available to their creditors (as well as a hundred million or two of those receivables in active litigation with them listed as plaintiff) which they had previously represented to the S.E.C., via public filings, as well as their future certificate investors that all the receivables, that were sold to the trust via a third party and without recourse, were bankruptcy remote and therefore the trust assets were protected from the issuer filing for bankruptcy.

 

I suppose lying is just the price an N.A. bank is willing to pay to increase profits while using litigation to punish and extract the last dime from consumers. It seems like a classic case of having your cake and eating it too. I hope that consumers and investors enjoy buying lots of cake!

 

The OC debt collection attorneys that have filed suit against me have clearly and consistently behaved as if they are a business partner of the OC. As far as I am concerned this further mucks up the RPII issue.

 

While understanding that the OC listed as plaintiff is not the RPII, due to selling without recourse to a bankruptcy remote trust, may not help me prevail as a defense strategy in court I find it of great assistance in my attitude toward a OC pretending to be the RPII. This causes me to see the battle against an OC as a battle against basically a  "JDB" that most likely paid $0.00 to reacquire allegedly recently defaulted debt. Additionally, that "OC" is likely involved in an undisclosed  business partner agreement with their counsel of record (or a business controlled or owned by their lawyer/law firm). So now when an N.A. bank/OC presents an affidavit that is about as effective as toilet paper in its ability to enter admissible evidence into the court record it no longer surprises or even amuses me.

 

Attitude isn't everything, leverage is important too. :-)

 

I would think a common successful defense to a collection suit is where the defendant clearly shows that the plaintiff failed to prove, by admissible evidence, each and every of the required elements to their claim(s). More defense ideas can be found in the two pdf files available here: http://www.masslegalservices.org/content/substantive-defenses-consumer-debt-collection-suits The one named Substantive_Defenses_to_Consumer_Debt_Collection_Suits_t  appears to be Massachusetts specific. My quick scan indicates that they should provide some insights, especially to newer defendants or defendants-to-be.

 

Without the right attitude and good leverage I would find litigation mighty scary (with or without representation).

 

The court makes presumptions that are deadly to the consumer, i.e., N.A. banks tell the court the truth. The consumer must rebut these presumptions. The consumer often makes their own detrimental and/or deadly assumptions, i.e., "when the debt is obviously yours and the OC/CA are obviously the owner of it and eligible to collect?" . Consumers must be vigilant to purge such erroneous thoughts and reject and rebut them when opposing or the judge states them as true and/or in evidence when they are not. The consumer, like the court of appeal, should only see the actual facts in evidence and not sly allegations and conclusory arguments. It is the plaintiff's job to prove their claim required element by required element. The defendant must require the plaintiff to prove up all required elements of their claim or consider moving the court to dismiss the claim brought against them.

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Some interesting MSJ defenses by a NY attorney in their "Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment":

http://www.jdsupra.com/legalnews/memorandum-in-opposition-to-motion-for-s-24281/

pg. 23 Plaintiff’s Own Publicly Disseminated Materials
Suggest That Plaintiff Has Engaged in Prohibited Usury
Laundering and That Its Accounts Are Properly
Subject to and in Violation of New York’s Usury Laws.

 

"Usury laundering" sounds like good "clean" fun. ;-)

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@Credator

This is a handful of fascinating insight, deep this rabbit hole goes indeed.

By saying "when the debt is obviously yours and the OC/CA are obviously the owner of it and eligible to collect?" 

I did not want to imply that this is the kind of attitude to be taken when in court (as I recognize the sly game they play, although I am no fair player in it myself). It was just a statement meant to indicate that this would be presumed to be a fact, and so then what for the defendant...

Thank you for chiming in.

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First thing you need to do is propound discovery on them. Make them cough up not only the bill of sale but the sales contract. You need the contract to determine if they have recourse to collect and sue you for the debt. A lot of debt is transferred from one entity to another through out right sales or by factoring. When a debt is transferred there is a contract that will state what their recourse is. Debt is sold either with nonrecourse or with recourse. If a company like Midland funding has your account they always claim to be a factoring company. When a debt is factored or sold it is often sold with recourse. This means that if a debt defaults it goes back to the seller for collection efforts and the Factor or buyer of the debt is not "the real party in interest" has has no right to sue you. If this is the case they have opened themselves up for an fcdpa violation for misrepresenting the character of the debt.

They will not want to give up the sales contract, if they are stubborn and object to your discovery of the contract it should send up red flags that the debt was more than likely sold with recourse. A motion to compel is in order, and if they still refuse sanctions are in order.

This method kills their standing to sue and creates an fdcpa violation.

One thing to remember in a debt collection suit "if the debt collector or their attorney opens their mouth in court they are lying, or do not have the proof they need to win their case. Attack every piece of paper or any words they may utter/ you know the fifth amendment  "anything you say can and will be used against you in a court of law" use it to your advantage. I do not care if they say the sky is blue make them prove it.....they sued you the burden of proof is on them. They have to prove that a debt even exists and that they have the right to sue you over it. Just because they claim they own it does not mean they do. If you let the wrong person sue you over a debt and win you are still libel the the person who really owns the debt.

Right  out of the gate you challenge jurisdiction and standing, when they call your name you state "I am here in regards to this matter your honor. " The judge will ask you to state your name and you reply by stating your name and then you state "I am here in propria persona, on a special appearance as opposed  to a general appearance, for jurisdictional challenges. This put the Plaintiff and the court on notice that you challenge them both/ without the plaintiff having standing to sue the court has no jurisdiction to hear the case. Do not say you are pro se to the court pro se means you are present and ready to continue and you submit to the courts jurisdiction. A pro se litigant cannot challenge juridiction of the court but a person standing in propria persona (Propria persona, pro per, means in his own person, It is a rule in pleading that pleas to the jurisdiction of the court must be pleaded in propria persona, because, if pleaded by attorney, they admit the jurisdiction, as an attorney is an officer of the court, and he is presumed to plead after having obtained leave, which admits the jurisdiction. A pro se litigant is assumed by the court to be ready to proceed, and if a person is ready to proceed they are submitting to the jurisdiction.)

The reason you state propria persona is because under the 4th, 5th, 6th and 14th amendment of the Constitution once jurisdiction is challenged is must be proven before the case can continue. I can show you upteen dozens of U.S. Federal Supreme court cases that state your right under this.

By the express words of the Constitution, every Senator and Representative,and Judge is bound, by oath or affirmation, to regard it as the supreme law of the land. Downes v Bidwell  182 U.S. 244 (1901)

The power of the Municipal or District Court is that of the old “justice of the peace” courts which were courts of “limited and special jurisdiction.” State v. Officer, 4 Or. 180 (1871)

 

“If the court is . . . of some special statutory jurisdiction it is as to such proceedings an inferior court, and not aided by presumption of jurisdiction.” Norman v. Zeiber, 3 Or 198.

 

the constitutional rule that justice courts are of limited jurisdiction. …their judgments must be sustained affirmatively by positive proof that they had jurisdiction of the cases they attempt to decide.” Evans v. Marvin, 76 Or. 540, 148 P 119 (1915).

 

“Because of what appears to be a lawful command on the surface, many citizens, because of their respect for what only appears to be a law, are cunningly coerced into waiving their rights, due to ignorance.”

United States v Minker, 350 U.S. 179 at page 187

 

“Every consent involves a submission, but it by no means follows that a mere submission involves consent.” Ragina v Day

 

"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026.
 
"A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance."
Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.

 

 

"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533.

 

With that being said do not take the word of the junk debt buyer, just because some attorney states they have a claim does not mean they have a claim. They must first prove that they do before the case can proceed.

 

When they cannot prove they have a claim there mere fact that they filed a suit is a misrepresentation of the character of the debt.

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...

I do not care if they say the sky is blue make them prove it.....they sued you the burden of proof is on them.

...

Solid gold!

 

That is the simple explanation of why I win. Relentlessly require them to prove up by admissible evidence that the "sky is blue". They cannot do it.

 

Every DC case I have been involved in had a party lie to the court. It was never me.

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