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Debt validation letter just answered (copies included)! What next?


LeeR
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Hey guys, I recieved a phone call from a local attourney who also moolights as a debt collector.  He is trying to collect a debt for Midland Funding LLC. That same evening I sent him a certified debt validation letter.  While that was being mailed to him, I recieved a "debt validation notice"   From the same collector.  Once he recieved my debt validation letter he responded with a debt verification.  The debt verification letter he sent me seems pretty generic and I'm not sure what I should do in responce or even if this is an acceptable debt validation letter.

 

A little background.  This same collector tried to sue me for a collection on a Chase account last year and I ended up just settling with him.  His office is not very nice and they did not want to negotiate with me at all really, I ended up paying 80% of the original debt.  So if I have any options I'd like to pursue them.  Any info would be great!

 

Here are the letters in order:

 

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post-93870-0-91772500-1385015931_thumb.j

 

post-93870-0-20600900-1385015947_thumb.j

 

post-93870-0-79688200-1385015960_thumb.j

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@LeeR

 

They were not required to provide the documentation you requested.  All they have to provide is the name of the OC, the amount of the debt, and the address of the OC (if you requested that address).

 

Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed. Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1173-74 (9th Cir. 2006).

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Lee, BV80 pretty much covers it. It's a very low threshhold to satisfy a DV. That being said they haven't really shown you anything other than knowing some numbers and your name/address. Midland is a debt buyer and they will have problems proving that they actually have standing to pursue the debt/win a lawsuit. Do a member search on this forum > advanced search and punch in Hawaii for the locaction - see of you can find some threads of people in your state so you can get an idea of how others have handled Midland or other JDBs. I know here in California I'd never give Midland or any JDB one penny since I know they can't prove their case in court.

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I didn't look at the docs but typically anything from the bottom feeder should be ignored until a lawsuit is filed. They probably view you as a cash cow if you paid them 80% of the original debt.

 

I would not talk to them on the phone (unless maybe you are speaking directly to the lawyer), learn how to defend a case, then let them sue you. Show them that you have "turned a new leaf", then you will see that they ARE wiling to negotiate. Of course by that time you will most likely be able to beat them.

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I received a complaing from Midland by regular mail. I talked to a lawyer and he said it may be better to settle- debt us inder 3k I still have time to answer the complaint, but I sent a debt validation letter and they responded  right away with a statement copy form original bank and bill of sale from original bank to them, Midland is the 2nd JDB, previous was Oliphant. WF and Oliphant reported on credit , now Midland reported with higher figure( fees interest I assume)

I never received in writing anything before from therm ever, I have robo calls from an 866 number with all hangups, no voice mails that I now see is their phone number on  Google voice account that I have saved.

What should I do? Fight or settle?I dont really have the money even for payments and I hear even settle for less they may not be able to remove from credit report as the credit reporting agencies do not like that pay for removal.

Help!

 

 

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@credit2011, you can fight them for sure. Take a look at that Bill of Sale they sent you. Did it reference your name and account specifically? Probably not. This is the kind of document JDBs provide, because they can't do any better. I'm a little confused because you wrote the bill of sale is from the OC to Midland, but Oliphant was the 1st JDB to buy the account??

 

Anyhow, you should start your own thread, we can help you better that way. Go to this thread http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/, copy the questions and paste into your own thread with the answers. Midland has a very, very poor track record against CIC members, you're in good hands here. The most important thing is to answer the complaint on time, because Midland's (any JDB for that matter) business model depends on defaults/people not fighting back. The moment you decide to bring the fight to them, their case is in trouble.

 

Check out this thread and you'll understand why self-represented people have dealt Midland many losses in CA. http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/#post1202922

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"local attorney who also moonlights as a debt collector"

 

 Marvin Dang is not moonlighting that's what he does.

 

Post the complaint when it comes and we will help you answer and beat Mr Dang at his own game.

 

For now I would study the rules of procedure.

 

http://www.courts.state.hi.us/docs/court_rules/rules/hrcp.htm

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Thank you gentlemen for your replies!  I've been trying to search and study but it's a little over-whelming!  I'll Keep trying!

 

@ Racecar - There hasn't been a compaint filed yet that i know of.  I just recieved the debt validation notice from them.  Here it is: 

 

 

post-93870-0-10490400-1385362204_thumb.j

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@credit2011, you can fight them for sure. Take a look at that Bill of Sale they sent you. Did it reference your name and account specifically? Probably not. This is the kind of document JDBs provide, because they can't do any better. I'm a little confused because you wrote the bill of sale is from the OC to Midland, but Oliphant was the 1st JDB to buy the account??

 

Anyhow, you should start your own thread, we can help you better that way. Go to this thread http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/, copy the questions and paste into your own thread with the answers. Midland has a very, very poor track record against CIC members, you're in good hands here. The most important thing is to answer the complaint on time, because Midland's (any JDB for that matter) business model depends on defaults/people not fighting back. The moment you decide to bring the fight to them, their case is in trouble.

 

Check out this thread and you'll understand why self-represented people have dealt Midland many losses in CA. http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/#post1202922

Thanks for your info , - Also one thing I know is that this was reported to my credit report before they sent the summoms compliant and they never validated the debt prior to sending me a complaint. Not till I received the complaint, I then sent a validation letter.

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Thanks for your info , - Also one thing I know is that this was reported to my credit report before they sent the summoms compliant and they never validated the debt prior to sending me a complaint. Not till I received the complaint, I then sent a validation letter.

 

They can report the TL before filing suit.  Nothing in the FCRA requires that they wait.  They can also proceed directly to a lawsuit even if you have sent a DV.  Now that they have sued the DV is pointless.

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@LeeR

 

I would see a consumer attorney.  Although it doesn't seem that the 9th Circuit Court of Appeals hasn't ruled on the issue, the 2nd Circuit Court of Appeals has ruled that a collection letter on an attorney header and signed by an attorney implies that the attorney has reviewed the case.

 

The letter sent to you gives no explanation of as to the level of attorney involvement.  It doesn't say that the attorney has reviewed your file, nor does it say that he hasn't reviewed it.   By not including some kind of explanation as to the level of attorney's involvement, you may have an FDCPA violation.

 

I'd see an attorney, and ask him to review Clomon v. Jackson and Miller v. Wolpoff & Abramson from the 2nd Circuit Court of Appeals.

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Here is what you do

 

Compose a letter that says

 

It is not now nor has it ever been my intention to not pay what I lawfully owe, in order to make arrangement to pay what I lawfully may owe, please document and verify the obligation.

 

 

Make two copies, walk into to his office, have him sign for his copy and you keep the other copy. Tell him you want him to document and verify this debt. He will try to talk you into setting up a payment plan but you refuse and tell him not until he documents and verifies the debt. This is not the same thing as a debt validation. You are demanding that he document verify the debt. Do not let him talk you into a payment plan. you keep refusing, he will then more than likely say if you continue to refuse we will see you in court, you tell him that he is the one that is refusing to cooperate and walk out.

 

This may sound strange, but you just set him up for fraud. Attorneys cannot advance documents from another person expecting someone to rely on those documents in which that person may have to surrender money, property, or rights,  especially if they have not verified them not to be false. An attorney has an obligation under oath to make an inquiry reasonable under the circumstances to determine whether or not there is a legal obligation. If they do not document and verify that the documents are not false they commit fraud in the name of the person they represent. You will present this letter as evidence to the court that all you wanted him to do is document and verify the alleged debt and he refused and filed suit. Now he has committed fraud and you sue him for it.
 

 

 

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Lee, BV80 pretty much covers it. It's a very low threshhold to satisfy a DV. That being said they haven't really shown you anything other than knowing some numbers and your name/address. Midland is a debt buyer and they will have problems proving that they actually have standing to pursue the debt/win a lawsuit. Do a member search on this forum > advanced search and punch in Hawaii for the locaction - see of you can find some threads of people in your state so you can get an idea of how others have handled Midland or other JDBs. I know here in California I'd never give Midland or any JDB one penny since I know they can't prove their case in court.

I was wondering what  the JDC  needs to do to  prove they have a standing to get the judge to rule in their favor and still pursue the debt? What evience to they have to present other then the OC name and a copy of one of your statments?This would be for the state of California.

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I was wondering what  the JDC  needs to do to  prove they have a standing to get the judge to rule in their favor and still pursue the debt? What evience to they have to present other then the OC name and a copy of one of your statments?This would be for the state of California.

Tough hypothetical, IMO. If a defendant fought them with a full arsenal & gave them no help (adopted the approach "admit nothing, deny everything") and the judge accurately interpreted the law? Hard to say. There are deficiencies all across their evidence.

 

What they typically try to submit:

1) Account agreement/Generic account agreement

2) Some period of account statements

3) A redacted Bill of Sale of bulk accounts from the OC

4) An affidavit of sale from the OC, typically signed/notarized outside of CA and not conforming to CCP2015.5 and CCP98

5) The CCP98 Declaration/Affidavit - used in attempt to "verify" all the above

 

The main target of my defense was #5 the CCP98 Declaration. Getting that thrown out kills the authentication they tried to establish for #s 1-4. #4 the OC affidavit typically doesn't conform to CA code (no notation of being signed under CA penalty of perjury & the affiant not available to testify). #1-4 can all be attacked as heresay, a witness from the OC needs to authenticate them; even then, the witness would need to have "first hand" knowledge as to their creation and record keeping. And even then, #3 has the problem of being redacted, and even then - ?? it is part of a much larger document ?? or sale where, likely, hundreds (or thousands) of accounts were included; how do they show yours was specifically one of them? Even then, my understanding is that in the docs pertaining to the bulk sale that we never see are disclaimers about the accuracy of the information.

 

^ this is all I can think of, and that's just looking at it as one sale from the OC to 1 JDB. If it has been sold several times...

 

Under "a defendant fighting them with a full arsenal and the judge accurately interpreting the law" I don't know just how much, how many witnesses a JDB would have to come up with to prove standing and right to collect the amount on the complaint.

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I would not send any letters to the other side saying I want to pay for what I lawfully owe.

 

Then you are admitting the debt is yours and unless you are coltfan I would not say anything thing like that to Mr Dang.

 

In fact it is better not to ever speak with that law firm except in court.

 

If you can find a local attorney that practices civil litigation have them see if you have any FDCPA violations from Mr Dangs letter(s).

 

When they file suit post it up.

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I was wondering what  the JDC  needs to do to  prove they have a standing to get the judge to rule in their favor and still pursue the debt? What evience to they have to present other then the OC name and a copy of one of your statments?This would be for the state of California.

IN order to gain jurisdiction a Plaintiff must plead a case sufficiently enough to invoke the authority of the court. In other words he must set forth facts that are concrete and plausible, not merely speculation or legal conclusions. 

Bell Atlantic v. Twombly (2007), Whitmore v Arkansas, 495 U.S. 149 (1990)

 

Averments to fact which are only in pleading are not before the court. Statements of attorneys in brief or in argument are not facts before the court. In on ther words just because an attorney says something does not make it true, each and every statement they make MUST be proven. Facts must be concrete and plausible not just mere statements or legal conclusions.

 

A pleading cannot be short and sweet such as "the defendant has breached the contract" pleadings must set out how you breached the contract what the remedy is as described in the contract and a copy of the contract signed by all parties must be attached or presented as evidence.

 

"Money lent" is not a proper complaint, they must state how, when, and where the money was lent and have evidence to prove their claims.

 

You reply to these type of complaints by stating "Plaintiffs complaint does not set forth any concrete and factual allegations that would invoke the courts authority

 

 

Also take into account that if standing to sue is not established the court also does not have jurisdiction. Jurisdiction can be challenged at any time.

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