Seadragon

How do we as defendants get the Forward flow purchase agreement between the OC and the assignees?

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What I was talking about is the banks effectively take the right to sue away from the jdb's with the wording of agreement. The fact that the rules of evidence preclude hearsay if it is unreliable and untrustworthy. This would include an affiants assertions of everything is a ok with everything on affidavits.

It is a case killer, and shows how judges are more than ready to disregard the laws just to make their court calendars shine.

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The other day I received a Bill of Sale from Persolve during my BOP and the document refers to a "Purchase and Sale of Charged-Off Accounts dated April 15, 2011". For the heck of it, I Google searched this same description and got a hit! It's a copy of the "Flow Agreement for Purchase and Sale of Charged-off Accounts" for Wells Fargo the OC and the first JDB Security Credit Services dated April 15, 2011 the same date on the Bill of Sale I received! It was located at http://dalie.org/contracts/. The only difference is that the document I located on-line had a fax copy of a different Bill of Sale exactly the same but was signed and notarized with different names and dates. The top portion is exactly the same with the same sale date of April 15, 2011.

 

My question is can I use this or does it have to come directly from Persolve? Thanks!

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The other day I received a Bill of Sale from Persolve during my BOP and the document refers to a "Purchase and Sale of Charged-Off Accounts dated April 15, 2011". For the heck of it, I Google searched this same description and got a hit! It's a copy of the "Flow Agreement for Purchase and Sale of Charged-off Accounts" for Wells Fargo the OC and the first JDB Security Credit Services dated April 15, 2011 the same date on the Bill of Sale I received! It was located at http://dalie.org/contracts/. The only difference is that the document I located on-line had a fax copy of a different Bill of Sale exactly the same but was signed and notarized with different names and dates. The top portion is exactly the same with the same sale date of April 15, 2011.

 

My question is can I use this or does it have to come directly from Persolve? Thanks!

Did they purchase from the OC directly? If so then using it can be tough. You have to authenticate the source. But maybe you can use this to make more specific requests for production. Maybe written depositions.

2028.010. Any party may obtain discovery by taking a deposition by

written questions instead of by oral examination. Except as modified

in this chapter, the procedures for taking oral depositions set forth

in Chapters 9 (commencing with Section 2025.010) and 10 (commencing

with Section 2026.010) apply to written depositions.

2028.020. The notice of a written deposition shall comply with

Sections 2025.220 and 2025.230, and with subdivision © of Section

2020.240, except as follows:

(a) The name or descriptive title, as well as the address, of the

deposition officer shall be stated.

( B) The date, time, and place for commencement of the deposition

may be left to future determination by the deposition officer.

2028.030. (a) The questions to be propounded to the deponent by

direct examination shall accompany the notice of a written

deposition.

( B) Within 30 days after the deposition notice and questions are

served, a party shall serve any cross questions on all other parties

entitled to notice of the deposition.

© Within 15 days after being served with cross questions, a

party shall serve any redirect questions on all other parties

entitled to notice of the deposition.

(d) Within 15 days after being served with redirect questions, a

party shall serve any recross questions on all other parties entitled

to notice of the deposition.

(e) The court may, for good cause shown, extend or shorten the

time periods for the interchange of cross, redirect, and recross

questions.

2028.040. (a) A party who objects to the form of any question shall

serve a specific objection to that question on all parties entitled

to notice of the deposition within 15 days after service of the

question. A party who fails to timely serve an objection to the form

of a question waives it.

( B) The objecting party shall promptly move the court to sustain

the objection. This motion shall be accompanied by a meet and confer

declaration under Section 2016.040. Unless the court has sustained

that objection, the deposition officer shall propound to the deponent

that question subject to that objection as to its form.

© The court shall impose a monetary sanction under Chapter 7

(commencing with Section 2023.010) against any party, person, or

attorney who unsuccessfully makes or opposes a motion to sustain an

objection, unless it finds that the one subject to the sanction acted

with substantial justification or that other circumstances make the

imposition of the sanction unjust.

2028.050. (a) A party who objects to any question on the ground

that it calls for information that is privileged or is protected work

product under Chapter 4 (commencing with Section 2018.010) shall

serve a specific objection to that question on all parties entitled

to notice of the deposition within 15 days after service of the

question. A party who fails to timely serve that objection waives it.

( B) The party propounding any question to which an objection is

made on those grounds may then move the court for an order overruling

that objection. This motion shall be accompanied by a meet and

confer declaration under Section 2016.040. The deposition officer

shall not propound to the deponent any question to which a written

objection on those grounds has been served unless the court has

overruled that objection.

© The court shall impose a monetary sanction under Chapter 7

(commencing with Section 2023.010) against any party, person, or

attorney who unsuccessfully makes or opposes a motion to overrule an

objection, unless it finds that the one subject to the sanction acted

with substantial justification or that other circumstances make the

imposition of the sanction unjust.

2028.060. (a) The party taking a written deposition may forward to

the deponent a copy of the questions on direct examination for study

prior to the deposition.

( B) No party or attorney shall permit the deponent to preview the

form or the substance of any cross, redirect, or recross questions.

2028.070. In addition to any appropriate order listed in Section

2025.420, the court may order any of the following:

(a) That the deponent's testimony be taken by oral, instead of

written, examination.

( B) That one or more of the parties receiving notice of the

written deposition be permitted to attend in person or by attorney

and to propound questions to the deponent by oral examination.

© That objections under Sections 2028.040 and 2028.050 be

sustained or overruled.

(d) That the deposition be taken before an officer other than the

one named or described in the deposition notice.

2028.080. The party taking a written deposition shall deliver to

the officer designated in the deposition notice a copy of that notice

and of all questions served under Section 2028.030. The deposition

officer shall proceed promptly to propound the questions and to take

and record the testimony of the deponent in response to the

questions.

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The other day I received a Bill of Sale from Persolve during my BOP and the document refers to a "Purchase and Sale of Charged-Off Accounts dated April 15, 2011". For the heck of it, I Google searched this same description and got a hit! It's a copy of the "Flow Agreement for Purchase and Sale of Charged-off Accounts" for Wells Fargo the OC and the first JDB Security Credit Services dated April 15, 2011 the same date on the Bill of Sale I received! It was located at http://dalie.org/contracts/. The only difference is that the document I located on-line had a fax copy of a different Bill of Sale exactly the same but was signed and notarized with different names and dates. The top portion is exactly the same with the same sale date of April 15, 2011.

 

My question is can I use this or does it have to come directly from Persolve? Thanks!

I downloaded the zip file just in case it goes down. What you can use it for is to make admissions that are specific. This is a very good link. Your Google-fu is strong.

 

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What I was talking about is the banks effectively take the right to sue away from the jdb's with the wording of agreement. The fact that the rules of evidence preclude hearsay if it is unreliable and untrustworthy. This would include an affiants assertions of everything is a ok with everything on affidavits.

 

 

As I stated before, I do believe the forward flow agreement could be helpful under certain circumstances assuming that it contains the warranty language.  One of those instances would be if the agreement contains the "as is" language, and a JDB employee signs an affidavit attesting to the accuracy of the information in credit card statements.

 

The "as is" language could discredit the JDB's affidavit.

 

The first order of business would be to get the forward flow agreement.  We all know that a JDB is not likely to willingly provide it.  Even if the consumer motions to compel the document, a court may not necessarily grant that motion.  When we motion to compel a document or record, we have to show that it's necessary to our defense.   Just because we want it doesn't mean we're going to get it.  I think this is where we would need the advice or guidance from an attorney as to how to effectively word a motion to compel.

 

Another fact to consider is that the "as is" language might not discredit an OC affidavit.   Here's a ruling from a TX court in which the court ruled that the lack of the forward flow agreement did not discredit an OC affidavit.  It doesn't say that the consumer compelled the production of the document, but he at least raised the issue of the agreement because the JDB referenced the it.

 

http://scholar.google.com/scholar_case?case=4735777346208125370&q=%22Ekpe+v.+Cach%22&hl=en&as_sdt=ffffffffffffe04

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As I stated before, I do believe the forward flow agreement could be helpful under certain circumstances assuming that it contains the warranty language.  One of those instances would be if the agreement contains the "as is" language, and a JDB employee signs an affidavit attesting to the accuracy of the information in credit card statements.

 

The "as is" language could discredit the JDB's affidavit.

 

 

 

I saw this addressed in an appeal recently. The court ruled that the "as is" language can apply to many things and should not be taken to mean that the purchased debts are bogus.

 

I don't think anyone is disagreeing here. My point is that I still see new members coming in with the impression that the proverbial "well worded answer" is some kind of panacea. The fact is that (let's exclude CA for a moment) these single-link cases with a major JDB (Midland/Cavalry) are difficult, if not impossible to win at trial. As @Harry Seaward said - the bar for proof is set at 51% and everyone in the room, including the judge, knows that, in 99% of the cases, the defendant defaulted and the plaintiff bought the paper.

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@Anon Amos

 

 

Maybe some people should just roll over or settle.

 

 

Depending upon the evidence and one's court rulings, yes, some people would be better off settling in order to avoid judgment interest and/or liens.

 

I'm not sure what you mean by "roll over".  

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@Anon Amos

@BV80

@Goody_Ouchless

@Seadragon

 

I think there are distinct issues here, and they should probably be vetted separately.  The first being the value of having the forward flow agreement.  The second being the sufficiency of affidavits & biz records that are admissible.  

 

From what I've seen posted on CIC, is that most affidavits do not mention specific records.  They generalize 'business records', and fail to name any.  This does not authenticate the records put forth under rule 902(11) (your rules of evidence may vary)), although, somehow these records are still getting admitted into evidence.  So that begs the question as to 'why'?  It is difficult to determine if the proper objections were made regarding the biz records and the affidavits.

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The only difference is that the document I located on-line had a fax copy of a different Bill of Sale exactly the same but was signed and notarized with different names and dates. The top portion is exactly the same with the same sale date of April 15, 2011.

Here are the two Bill of Sales I mentiond aboved ... Something doesn't seem right ...

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Both of those BOS contain a signature from the seller only, nothing from the purchaser. Can you imagine a car sale With only one signature, and then trying to register it with the DMV?

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From what I've seen posted on CIC, is that most affidavits do not mention specific records.  They generalize 'business records', and fail to name any.  This does not authenticate the records put forth under rule 902(11) (your rules of evidence may vary)), although, somehow these records are still getting admitted into evidence.  So that begs the question as to 'why'?  It is difficult to determine if the proper objections were made regarding the biz records and the affidavits.

 

When I started posting in this thread and mentioned the affidavits, I described the affidavits as "neatly linking everything together".  The reason I said it this way was to counter the idea about affidavits that you're saying here.  Recently, the affidavits showing up in JDB cases usually do mention the specific records and therefore do meet the requirements of 902(11).

 

This is the affidavit from my case.

 

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_rel_module=post&attach_id=1656

 

You can see he specifically mentions and describes "billing statements", "cardholder agreement" and "bill of sale with attached electronic records".

 

The one chink I did realize is the affidavit is made on "personal knowledge or diligent research".  I raised this issue and the trial court didn't care and the appellate court was similarly unimpressed.

 

Which leads me to the other thing I have discovered which is that reversing trial court rulings on evidence is nearly impossible.  Appellate courts take a position that rulings on evidence are discretionary.  "The appellate court must not re-weigh the evidence to see if it would reach the same conclusion as the original trier-of-fact."  "Something is discretionary because it is based on an assessment of conflicting procedural, factual or equitable considerations which vary from case to case and which can be better determined or resolved by the trial judge, who has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers, and witnesses, and who can better assess the impact of what occurs before him. Where a decision is made on that basis, it is truly discretionary and we will not substitute our judgment for that of the trial judge; we will not second guess."

 

Granted, those quotes came from AZ cases, but I suspect other states have similar caselaw.

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That is why we have to exclude these things at trial. Basically, in AZ and other states based on the federal rules, They are allowing the "Trial by Affidavit" These are frowned upon by most higher courts because they circumvent the confrontation clause in state and United States constitutions. The admission of hearsay is by it's very nature prejudicial and in these cases we are faced with layer upon layer of it.

 

As a method to exclude it because it is prejudicial is being pushed aside by the courts which is an abuse of discretion. True the reviewing courts will not disturb the trial courts ruling on evidence, but when it violates the evidence code it is an abuse of discretion to allow it.

 

That is why we must get it excluded in the trial court. Motion to strike was ineffective in the past. What better methods of exclusion are there.

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This affidavit says summary judgment not trial. Affidavits are always going to be admissible in a summary judgment. People don't even object to affidavits in a summary judgment because it just says what the affiant will say at trial if it goes that far. It was my understanding we are talking about keeping affidavits out of trial, not summary judgments, so I'm not sure how this is relevant.

 

You can see he specifically mentions and describes "billing statements", "cardholder agreement" and "bill of sale with attached electronic records".

They usually do. I do see how he specifically mentioned them, but I don't know what you did about objecting to each piece of evidence he mentioned, or how you attacked his ability to lay a foundation for some one else's records or how he can authenticate any of it. Also I see that it says summary judgment and not trial, so I don't see how it relates to affidavits in trial.

 

The one chink I did realize is the affidavit is made on "personal knowledge or diligent research".  I raised this issue and the trial court didn't care and the appellate court was similarly unimpressed.

This is where I'm lost. The affidavit says summary judgment but we are talking about affidavits at trial (unless I missed something). You are talking about trial court and appellate but the affidavit says summary judgment. Did you lose a summary judgment or a trial and appeal?

 

 

 

Which leads me to the other thing I have discovered which is that reversing trial court rulings on evidence is nearly impossible.

The decision they must make is whether or not the judge made a mistake by admitting the evidence, not to weigh the evidence.

  Appellate courts take a position that rulings on evidence are discretionary.  "The appellate court must not re-weigh the evidence to see if it would reach the same conclusion as the original trier-of-fact."  "Something is discretionary because it is based on an assessment of conflicting procedural, factual or equitable considerations which vary from case to case and which can be better determined or resolved by the trial judge, who has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers, and witnesses, and who can better assess the impact of what occurs before him. Where a decision is made on that basis, it is truly discretionary and we will not substitute our judgment for that of the trial judge; we will not second guess."

they won't second guess the judge's discretion on the weighing of evidence, just whether or not it should have been admitted in the first place. This is what I asked about how you objected to the evidence and did you object that the affiant in the affidavit cannot lay a foundation or authenticate the evidence (allowing it to be admitted in trial to be weighed by a trier of fact).

The issue is whether or not the evidence should have been admitted. If the issue was whether or not the evidence should be weighed again, then they could probably send it back to a lower court to be tried again (as they will not second guess the judges weighing of the evidence).

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902(11) is a rule evidence that is self authenticating (like the NY times, public record etc) and pertains to "certified domestic records of a regularly conducted activity" . That would mean a record like a birth certificate, death certificate, divorce, etc, AND it would have to be "certified" (by someone from county or state etc). A lot of states also say it must be sealed.Then that would make it a certified self authenticating domestic record of a regularly conducted activity or 902(11).

What the jdb claims are records and provides people with here are not those types of records.

 

 

 

JDBs usually provide copies of credit card statements.  902(11) (in TX, it's 902(10)) applies to business records including credit card statements.   Some states such as Arizona, Colorado, and Illinois even include a reference to 902(11) in Rule 803(6).   I don't think it would included in 803(6) if it didn't apply to business records in those states.

 

Here's 803(6) in Illinois:

 

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases medical records. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

 

 

Here's a few rulings in which other state courts applied 902(11) to credit card statements.

 

Capital One Bank (USA), NA v. Huffman, Haw: Intermediate Court of Appeals 2014

Discover Bank Issuer of Discover Card v. Howell, Tenn: Court of Appeals 2013

McFarland v. Citibank (South Dakota), NA, 293 SW 3d 759 - Tex: Court of Appeals, 10th Dist. 2009

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JDBs usually provide copies of credit card statements.  902(11) (in TX, it's 902(10)) applies to business records including credit card statements.   Some states such as Arizona, Colorado, and Illinois even include a reference to 902(11) in Rule 803(6).   I don't think it would included in 803(6) if it didn't apply to business records in those states.

 

Here's 803(6) in Illinois:

 

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases medical records. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

 

 

Here's a few rulings in which other state courts applied 902(11) to credit card statements.

 

Capital One Bank (USA), NA v. Huffman, Haw: Intermediate Court of Appeals 2014

Discover Bank Issuer of Discover Card v. Howell, Tenn: Court of Appeals 2013

McFarland v. Citibank (South Dakota), NA, 293 SW 3d 759 - Tex: Court of Appeals, 10th Dist. 2009

Agreed. I deleted that from my post (as you were posting this) because it is too far of a stretch not to allow these as records (it is better in CA) and since AZ is mentioning 803 6 (as well as a few other states) and lenient with 902 (11) (they don't require it to be admitted under a statute).

 

However it does mention that it is not admissible if (1) the source of information or  the method or circumstances of preparation indicate a lack of trustworthiness, or (2) to the extent that portions thereof lack an appropriate foundation. So you guys in AZ and other areas have lack of trustworthiness and lack of foundation to work with, and may have to appeal.

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This affidavit says summary judgment not trial. Affidavits are always going to be admissible in a summary judgment. People don't even object to affidavits in a summary judgment because it just says what the affiant will say at trial if it goes that far. It was my understanding we are talking about keeping affidavits out of trial, not summary judgments, so I'm not sure how this is relevant.

 

It's relevant because summary judgment cuts the evidence discussion off at the knees.  If we cannot get to a trial because of affidavits submitted at summary judgment, what good is a discussion if we're only going to talk about evidence admitted at trial?  That doesn't help pro se litigants that never make it to trial.

 

You've read the affidavit Cavaly used to obtain summary judgment against me.  Tell me specifically how you would have tried to knock this back if it was you that had been sued.

 

 

You can see he specifically mentions and describes "billing statements", "cardholder agreement" and "bill of sale with attached electronic records".

They usually do.

 

This is the exact opposite of what was said a few posts back in this post and is what I was responding to.

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@Harry Seaward

 

That affidavit is one of the more inclusive ones that I've seen.  If you look at my post #4, I stated we need to create material issues of fact to surpass the MSJ stage, and onto trial.  These affidavits typically won't cut it at trial.

 

I believe this is one of the most important topics that can be discussed, and it warrants its own thread.  We all absolutely need better strategies to get over the MSJ stage.  

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@Harry Seaward  

 

Did they disclose Saland as a witness in their disclosures?

Yes they did.  It was irrelevant, though because I lost on MSJ

 

 

@Harry Seaward

 

That affidavit is one of the more inclusive ones that I've seen.  If you look at my post #4, I stated we need to create material issues of fact to surpass the MSJ stage, and onto trial.  These affidavits typically won't cut it at trial.

 

I believe this is one of the most important topics that can be discussed, and it warrants its own thread.  We all absolutely need better strategies to get over the MSJ stage.  

I completely agree, but the point I keep trying to make is that not all affidavits are created equal.  Some are sufficient to qualify a JDB's evidence.  Most I have seen in the last several months fall into this category.  Even if the affiants are lying, how can you prove it on MSJ?  Or trial, for that matter?  These guys do nothing but sign affidavits and testify in court.  They know what to say and when, truth or not.

 

And then there's no way to 'force' the trial courts (or even appellate courts) to see material facts in dispute.  I raised tons of issues.  The trial court denied Cavalry's first MSJ and then granted the second one made on identical arguments.  (If that's not arbitrary, I don't know what is).  The appellate court upheld the trial court's ruling.  There is no higher appeal avail to me, so what do I do?  I'm not some freak of nature, either.  This kind of stuff goes on all the time in our Justice Court here in AZ.  Another guy here was sued and his lawyers first question was "who is the judge?"  Now why do you suppose that would matter?

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The Maricopa justice courts use the summary judgment as a paper trial. The Justice court judges are for the most part not lawyers and are being mislead on procedure by collections law firms. To disrupt that you have to kill the initial affidavit to make the triable issues. That is the part that the justice court is abusing. It is their unwillingness to resolve the doubt in defendants favor like the statute says.

Even with a counter affidavit they won't do it. I would say that because some people have won there, that the court being aware of the issues are fully covering for the plaintiffs. Other jurisdictions have similar problems of using SJ motions to clear the dockets of any who fight.

Important to defeating SJ is having an impeaching document like the forward flow agreement, And don't be afraid to motion to strike before the inevitable SJ motion appears. Also lets work on defeating sj motions in the courts of Maricopa.

we need to do something even if it is wrong.

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If we can assume that in some jurisdictions the courts allow the JDB's affidavits to authenticate evidence, then we must come up with different material facts to get beyond MSJ.  So, what are some of the possibilities? 

 

- Have they proven assignment?  Some states use the UCC 9-406 for the sale of accounts.  This is a material fact.

- Is the debt valid?  If the debt is disputed (most people do this in their answer), then it must be proven to be accurate.  15 USC 1643(a)...(B).  Burden of proof.  This is a material fact.

- Does the forward flow agreement restrict the rights of the assignee, or what are the terms and conditions that pertain to the sale of accounts?

 

These are just a couple of ideas, I hope to expand on...

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@Coffee_before_tea

 

Generally, UCC-9 is only for secured transactions.  "Secured Transactions" is even in the title.  I know that the UCC definition of "account" references credit cards, but there are secured credit cards.  One needs to research his own state court rulings and/or make a call to his appropriate state agency to find out if the UCC applies to unsecured credit card debt.

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@BV80

 

UCC-9 deals with the sale of accounts.  When the OC pools these accounts and sells them, it falls under the UCC.  This sale becomes a secured transaction (secured by the accounts).  I believe that a UCC statement is filed upon the transaction.  The question is which states follow the UCC, or have a similar version that can be applied.

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@Coffee_before_tea

 

Probably a general search with "Uniform Commercial Code" and "credit card debt" might provide information.  So far, I haven't been able to locate anything helpful on google scholar.

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