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Need help with a JDB in South Dakota,

 

I apologize if this is in the wrong place!!

What happen;
Car repo in 2011
Bankster sold vehicle
Bankster notified me of this action
Heard nothing else from them

Where it’s at;
Received summons & complaint in 2014 to an action to this from an atty. Representing a collection agency. I had
received noting else from them previous to this S&C
Notified them of this and asked for a validation and never to contact me again until they do produce.
Received some documents but not the ones I was looking for because on my credit report it has a different acct.#
than what the bank had sent me when asking for verification from them also I received a doc. Stating is was
assigned where there stating it was purchased. (see violations).
Sent them an insufficient validation notice saying there missing doc. Essentially telling them there not proving
standing to file this suit.
Received a couple months later some more doc. And there the same as what I had received but also interrogatories to questions about my life.
I’m now in the process of sending them the 2nd notice of insufficient validation, basically telling them I’m not at liberty to reveal this information at this time and that I don’t wish to be a part of there fishing expedition. But also they haven’t sent me the docs I want showing they have standing to file. I do plan on sending them a day later an admittance letter getting them to admit they don’t have the docs. I seek.
WF sold to Autovest & is the JDB that hired the atty. and this is an adhesion contract.

Violations of the FDCPA I think are valid. Your input is welcome!
Remember I had no previous notifications from them and I have a witness to this!

Precedent opinion:
Lesher v. Law Office of Mitchell N. Kay, P.C
Use of their law firm letterhead in making initial debt collection contact violates FDCPA specifically 15 USC 1692e § 807. False or misleading representations.

15 U.S. Code § 1692g - Validation of debts
They haven’t even proved standing to file suit

This is questionable!
233 F. 3d 469 - Craig Gearing v. Check Brokerage Corporation Drew T Erwin
Can’t be both the assignee and the purchaser.

 

 

My plan of attack;
File a counterclaim in federal court on these violations and looking for any and all advice! What to put in this is where I’m having trouble. Keep in mind I’ve done nothing but read and my mind is boggled at this point!!
I do have the contract between WFFI & auto vest I found online and they are playing nasty with me!!
Your questions are welcome and I’ll do my best to answer them to assist me!
Thanks

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Did you ever file an answer to the lawsuit?

 

A DV is NOT the proper response to a summons and complaint. If I were you, I would be checking the laws in my state/county for proper response to a lawsuit in civil matters.

 

And prepare it, pronto.

 

You may not think that they have proven to your satisfaction that you owe the money to them. And it's entirely likely that they can't.

 

But if they sue you, and you don't answer properly, they CAN get a default judgment against you.

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Thanks for your reply;

 

There was no suit that was even docketed with the clerk of courts, my understanding is it was a dunning letter that was processed to me in apr.. I believe . basically a threat cause I went to the clerk of courts and checked and nothing was there. That's where I was at to file my response is when I learned that it hadn't been docketed.

 

They did honor my DV letter to them by sending me docs but not sufficient enough to prove standing.

 

I never received anything from them prior to this. I never received any notification that I could have them validate it! they claim I did but I have a witness that says also that I didn't.

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Did they send you a right to cure letter before they sold it? And then a letter where it would be sold at the date and time? Then they should have sent the deficiency amount after it was sold. My state requires those things or they may not be entitled to recovery of the deficiency, you should check the laws of your state if they didn't do those things

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The words you used in your OP were "summons and complaint."

 

I'm not that familiar with your state laws, just that some banks use SD for their CC services d/t the ability to charge high interest.

 

But some states, including MN, allow pocket service of civil suits. That means that you will NOT find a case number if you check with the courthouse; the rules say that you must respond within the prescribed time, whether or not the complain has been filed with the court.

 

If what you received was NOT a summons and complaint, then you have more time: time to research the questions that @shellieh98 asked, time to research your state's civil court rules.

 

But if it was, in fact an S and C, you really do have to get going on your response.

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@bowhuntersd

 

Sent them an insufficient validation notice saying there missing doc. Essentially telling them there not proving
standing to file this suit.

 

 

They don't have to prove standing in response to a debt validation request.

 

Would this be considered a small claims action?

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backing up a little bit and to answer everyone's question! I apologize if the links don't work, I tried it yesterday in my OP using

the link tool but locked up 3 different times. rewriting everything 3 diff. times. Sorry!!

@shellieh98

If your referring to the vehicle itself - yes they did!

If your talking about the contract between bankster and JDB then no they didn't. I had no idea it was sold or assigned to JDB until I

received this S&C. I did do some research on my states laws today on contracts and they were suppose to contact me in regards to the

contract. But what the JDB provided was an assignment, according to

http://openjurist.org/233/f3d/469/craig-gearing-v-check-brokerage-corporation-drew-t-erwin

they can't have it both ways. Let me say there trying to fluster me but I'm reversing the table on them by now asking them for what is

required on my state laws including additional duties that are required in regards to this transaction!

My understanding of this is if it was assigned then it falls under a secured transaction and I was suppose to be a part of it! SD has

other rules that have to be followed when there was an assignment of a contract. still looking into this!!

http://legis.sd.gov/statutes/DisplayStatute.aspx?Statute=57A-9&Type=Statute

@Wins the Battle

I responded to there S&C alright with a validation notification sent to them certified within 5 days of receiving it, can't file it with

the court cause they have nothing I can respond to! I will recheck tomm. to see if there is anything there!

I agree with you, however this pocket summons is trumped by federal FTC rules regarding this kind of stunt. When conflict of law is in the way then federal law trumps it as to protect the consumer. What they got was a denial of everything. If they bring suit against me I'm countersuing in federal for violations I've already have seen them do. One is this bogus

S&C cause federal law says so. will see where it goes! 15 U.S. Code § 1692e - False or misleading representations-(5) The threat to takeany action that cannot legally be taken or that is not intended to be taken.

Here's a link to the opinion letter of the FTC.

http://educationcenter2000.com/debt_collectors/FTC%20opinion%20letter%20on%20validation%20Section%20809(a)%20of%20the%20FDCPA.htm

@BV80

Yes this is a small claims! It's only 2400 bucks but this bankster already screwed me in every possible position! I refuse to give them

another penny! Now I understand what your saying! I never told them this but merely my thought as to what they have to bring suit.

But without standing how can they file suit? Reading @Coltfan1972 on this page.

http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/

I guess my job would be to get this problem solved in court which should be a slam dunk if they don't provide it in court either.

So this is an update on this. On the last letter from them they want interrogatories- I refused because they haven't produced what I'm

looking for which is the contract or bill of sale or anything that says they own it. they have not!

Atty. did offer me to contact her to settle this matter WITHOUT going to court. Nope, not gonna do it!

I did read that South Dakota collection laws are governed my federal law.

Thanks for you replies

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I'll do that @shellieh98

And I did and this is what it states.

15-39-46. Alternative to action begun by summons. The procedure shall not be exclusive but shall be alternative

to the formal procedure for actions begun by summons.

I would think fed. law trumps this!

Thanks

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@bowhuntersd: a validation  letter is not an answer to a summons and a complaint.

 

I've seen people handed default judgments in court because "I sent a letter to (the plaintiff) saying I didn't know anything about this debt," and were told by the judge that, unfortunately, she had no choice but to grant the default, because a letter isn't the proper response to a summons and complaint.

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@bowhuntersd

 

 

Yes this is a small claims! It's only 2400 bucks but this bankster already screwed me in every possible position! I refuse to give them
another penny! Now I understand what your saying! I never told them this but merely my thought as to what they have to bring suit.
But without standing how can they file suit?

 

 

They will allege that they have standing.   They don't have to prove it in order to file a complaint.  It's a defense that you can use in your answer and argue later.

 

Here's a small claims brochure from the SD government website.  It's backwards because it starts on page 2 and concludes on page 1.

 

http://ujs.sd.gov/media/pubs/small_claims_brochure.pdf

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I can understand that your upset about all this, but filing a FDCPA counterclaim is not something you do without a lot of study, planning and preparation, and you need to do more of that.

 

1.  A FDCPA counterclaim is not filed in federal court.  It is filed in state court.

 

2.  As BV80 said, standing has nothing to do with debt validation.

 

3.   JDB's in South Dakota (and in all the states)  must comply with the FDCPA because it is federal law.  However, South Dakota law and procedure, not federal law, will apply in the litigation of your case.  

 

A FDCPA complaint that is filed in federal court, or a FDCPA counterclaim filed in state court, must be precisely worded and thoroughly grounded in the law and facts or it will be dismissed by the court.  Worse, if you lose, you may be liable for the other side's costs.  Even worse, if the court finds you acted in bad faith, you can be liable for the other side's attorneys' fees, which can be a LOT of money.

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There few, if any, consumer lawyers in SD.  However, Krohn and Moss is a nationwide consumer law firm with offices in SD.  A consultation is free.  If you have a valid FDCPA claim, they will take your case on contingency and defend you against the JDB as well.

 

www.krohnandmoss.com

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I've been on this computer for 4 days now, not doing anything but study. I have read what your explaining and totally understand

what your sayin. It is frustrating but i'll get through it.

I am thinking about filing in fed. court and asking for an atty. there as my income level is limited, that's not a guarantee of course

but I will look into this atty. you put up. Here is my basis for wanting to file in fed. court. This is the one they've violated and in

oh so bad. I'll post the citation which is precedent.

SD law permits them to serve a pocket S&C, basically threaten me to a court. I've asked for all accounting info. everything I'm able to

ask for per SD law. They've not complied but continue to try to collect, and they can I understand. But now there asking questions

about my personal info. The purpose for posting this link is what they've done with egregiousness. 3 different times for there

notifications. No dunning letters prior, but just a shablam, your being sued with the pocket S&C.

http://www.scotusblog.com/case-files/cases/law-offices-of-mitchell-n-kay-p-c-v-lesher/

Let me post what I think would be grounds for this suit:

15 U.S. Code § 1692g - Validation of debts (they've violated)

(a)(1)(3)(4)(5)

15 U.S. Code § 1692e - False or misleading representations

(3)(5)no notice was ever given to me prior to the start of this. (10)(13)

I'll find more violations I'm sure. I also want to let you know that I am judgement proof cause I have nothing and have limited income

per disabled veteran status. Just want to level the playing field cause I don't like to be thrown down.

Thanks for your advice @debtzapper and I'll certainly look into what you've provided.

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@bowhuntersd

 

 

I am thinking about filing in fed. court and asking for an atty. there as my income level is limited, that's not a guarantee of course but I will look into this atty. you put up

 

 

 

Thinking about filing in Federal court for FDCPA violations?

 

They've not complied but continue to try to collect, and they can I understand. But now there asking questions about my personal info.

 

 

Are you referring to their discovery requests?

 

What did they provide in response your request for validation?

 

What are the false or misleading representations?

 

Does SD require a notice before suing?

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@bowhuntersd 

Thinking about filing in Federal court for FDCPA violations?

Well I'm hoping so but I see problems cause this atty is out of state! If you look at the citation I posted, this would be grounds

to file!

They can't threatin (bogus S&C that hasn't been filed) when there is no legal right to sue cause they haven't provided validation of this debt per my requests that I've sent 2 times now! There using there atty. status in big bold lettering on each of these letters they sendme, 3 times now, can't do this! Heck, I haven't received anything from this creditor Autovest that atty are involved!!

Now they've expanded it to asking for my property information when they haven't provided per my requests!! My question is, if there not

going to provide me this information of atty. fees, interest to dake from assignment of debt and so on? How do I know there not just

gonna tack on all this other stuff crooked atty's do? This door is being left open to do what ever!!

There not explaining my right to any validation request, they keep ignoring! What are they a collection agency or an atty? Read that

citation and this is exactly what there doing, to the T!!

Yes you could say it's discovery requests, it's interrogatories to what I have, i.e bank accounts, property! but also request for

production of docs and tangible things.

for validation notice they've provided, only the original contract of bankster, ASSIGNMENT of contract to JDB from bankster, notice of

right to sell from

original bankster, deficiency notice. That's all!

If you look at the citation I provided, this is exactly what there doing! I have a right to ask for production of the accounting records

and there refusing to provide it (from the orig.. bankster) But also SD law provides additional requirements of a contract that's been

assigned and there not providing this. They've not stated and atty. fees or interests to date.

Additional requirement of debt collector when it's assigned,

http://legis.sd.gov/statutes/DisplayStatute.aspx?Statute=57A-9-208&Type=Statute

Yes they have to serve!

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@bowhuntersd

 

They can't threatin (bogus S&C that hasn't been filed) when there is no legal right to sue cause they haven't provided validation of this debt per my requests that I've sent 2 times now!

 

 

You need to take a step back and find out some details. 

 

Do they have to file the suit before serving you?   If not, how long do they have after serving you to file the suit?  Talk to your clerk of court.  If they have done things correctly, you HAVE to answer the interrogatories within a certain amount of time.  Some of the requests may be improper, but you still have to respond even if it's with an objection.

 

The validation notice in 1692g(a) is only required with the initial communication or within 5 days after the initial communication.  A summons and complaint is NOT an initial communication under the FDCPA.

 

1692g(d):

 

(d) Legal pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

 

They did not have to include the validation notice on the summons and complaint.  As a result, they didn't have to respond at all to your DV request.  The information you require is going to be in the form of proper discovery requests.

 

 

If you look at the citation I provided, this is exactly what there doing! I have a right to ask for production of the accounting records
and there refusing to provide it (from the orig.. bankster) But also SD law provides additional requirements of a contract that's been
assigned and there not providing this. They've not stated and atty. fees or interests to date.
Additional requirement of debt collector when it's assigned,

 

 

Have you sent a proper request?  Your discovery rules lay out the requirements and format for sending those requests.

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@debtzapper

 

1. A FDCPA counterclaim is not filed in federal court. It is filed in state court.

3. JDB's in South Dakota (and in all the states) must comply with the FDCPA because it is federal law. However, South Dakota law and procedure, not federal law, will apply in the litigation of your case.

Yes I understand a little bit, I'm reading this which tells me they can't hear it!!

South Dakota has not enacted a separate state debt collection law. Nevertheless, the residents of South Dakota are well protected under

the federal law. Thus, South Dakota residents faced with abusive or harassing collection tactics will receive the most protection and

benefit from the FDCPA

Does this have anything to do with why I can't counter claim on a FDCPA claim?

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@BV80

Do they have to file the suit before serving you? If not, how long do they have after serving you to file the suit? Talk to your clerk of court. If they have done things correctly, you HAVE to answer the interrogatories within a certain amount of time. Some of the requests may be improper, but you still have to respond even if it's with an objection.

I just came from the clerks office and nothing has been filed with them, No they do not have to file before serving! What there doing

and my understanding is there just gathering all info before bringing it. I'll answer everything she asks with an objection if

appropriate!

 

The validation notice in 1692g(a) is only required with the initial communication or within 5 days after the initial communication. A summons and complaint is NOT an initial communication under the FDCPA.

1692g(d):

(d) Legal pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of

subsection (a).

Not according to this opinion letter from the FTC!! Not doubting it but getting confused!

http://educationcenter2000.com/debt_collectors/FTC%20opinion%20letter%20on%20validation%20Section%20809(a)%20of%20the%20FDCPA.htm

 

(4) If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt.

I received nothing from them, I have a GF who sees my mail on a day to day basis and she's seen nothing come from this

place!!

Yes I sent out both notices of validation, second one was insufficient verification. Actually templates came from this site!!

I'm beginning to understand a little better now!!

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@bowhuntersd

 

The FDCPA  was amended in 2006 to include 1692g(d).   The FTC letter no longer applies.  The JDB did not have to send validation.

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I think what I should be doing is figuring out how to shield what assets I have, I'm allowed $4000.00 and don't even have that. I have no income except my VA disability and I

KNOW they can't take that!! Not garnishable!

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Yes I sent out both notices of validation, second one was insufficient verification. Actually templates came from this site!!

 

Unfortunately the templates on this site are hopelessly out of date and riddled with errors.  In their response to your DV all they are required to provide is the name and address of the original creditor and the amount owed.  NOTHING more.  If you asked for anything on this list they are free to ignore your request and they are not violating the FCDPA:

 

  • What the money you say I owe is for;
  • Explain and show me how you calculated what you say I owe;
  • Provide me with copies of any papers that show I agreed to pay what you say I owe;
  • Prove the Statute of Limitations has not expired on this account;
  • Show me that you are licensed to collect in my state; and
  • Provide me with your license numbers and Registered Agent.

 

Not according to this opinion letter from the FTC!! Not doubting it but getting confused!

http://educationcenter2000.com/debt_collectors/FTC%20opinion%20letter%20on%20validation%20Section%20809(a)%20of%20the%20FDCPA.htm

 

An opinion letter is just that an opinion. It is not binding upon the courts.  Court precedent has established that a summons and complaint is not initial communication as it is their legal right to sue.  The FTC letter will have no benefit in your situation if they have sued.

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well this is all comforting! all my 4 days of researching just went to s**t! not that this was the only thing I found but, just sayin!!

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