Seadragon

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

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What I stated above if the get the bills and info they send to you from this company above in discovery.  Is it  arguable in court that this is not valid?  . "Where did this information really come from and how is it pieced together? Is it purchased in bulk or an individual debtor?  And is  that this information valid enough since its passed down- how does it get verified?. Looks like they get what they can and try to piece it all together.

They do a lot of times just piece it together. What I think occurs is they get the billing statements then they piece random bills of sale they have lying around to make the paper trail.

We really need to find disgruntled debt collector employees. Then maybe offer up some expert witness money.

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What I stated above if the get the bills and info they send to you from this company above in discovery.  Is it  arguable in court that this is not valid?  . "Where did this information really come from and how is it pieced together? Is it purchased in bulk or an individual debtor?  And is  that this information valid enough since its passed down- how does it get verified?. Looks like they get what they can and try to piece it all together.

 

@credit2011  Glad you brought this up, as I believe it can be very important and deserves more discussion.

 

Companies like convoke store and maintain defaulted account records from OC's (card statements, applications, agreements etc...).  What does this mean?  It means that the OC does not maintain or provide the same records that the JDB is using to sue you.  Even though the JDB claims to be receiving the records from the OC.

 

Realistically, convoke would have to provide a custodian of records, and potentially open up a review of their contract to store & maintain the OC's records.

 

The FDCPA angle is interesting, because convoke is essentially keeping a record of defaulted accounts, then disseminating those records to the JDB that requests them. 

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Convoke is a business-to-business data transfer and storage system, just like those used in virtually every industry on Earth. Since you don't trust this one, do you also question the price of everything you buy at Home Depot, or the grocery store?

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Convoke is a business-to-business data transfer and storage system, just like those used in virtually every industry on Earth. Since you don't trust this one, do you also question the price of everything you buy at Home Depot, or the grocery store?

What do prices of items in a retail store have to do with 3rd party record repositories?  It is not only about trusting an unknown entity that stores records being used as evidence against you, it is about the additional layers in the chain of custody of said evidence.

 

Does the OC rely on these records to conduct business?  Not really anymore, if these are the records of accounts that have been sold off to JDBs, the only one accessing them would be a JDB.

 

How many JDB's can access these records?  Do they have to prove ownership before they can login and download records?  Or can they peruse the entire database regardless of ownership?

Without any information regarding the role convoke plays in the chain of evidence, then this raises an issue of trustworthiness, that can be used to move passed a MSJ and onto trial.  You guys are all looking for ways to get by a MSJ, I'm trying to fill the toolbox, or at least have a open discussion about it.

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I understand what you are saying. I'm also seeing the ARM industry reach out to judges to educate them on how all of this works.

 

Given a finite number of hours in the day, I'm just not sure that arguing against the integrity of modern, standards-based computerized records is an efficient use of that time. (It strikes me the same as trying to argue a three year SOL in AZ, given what we have learned in the past year.)

 

I still don't see anyone winning at trial with arguments of standing or funky records. I see witness scheduling issues, plaintiff's not showing up to court, and sloppy prosecution (missing dates, etc.) Getting past MSJ appears to be not much more complicated than approaching the court with a straight face and swearing "this debt is a mystery to me."

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@Coffee_before_tea

 

The FDCPA angle is interesting, because convoke is essentially keeping a record of defaulted accounts, then disseminating those records to the JDB that requests them.

 

 

 

I don't understand what you mean in regard to the FDCPA.

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@BV80

 

This has to do with @credit2011 post #149.  

 

If convoke acts as a separate 3rd party entity that stores defaulted account records, for the use of any JDB that has access to said records, then they are essentially creating a list of defaulted debtors.  Moreover, convoke themselves is a 3rd party, and 3rd party disclosures are a violation of the FDCPA.  Just throwing out ideas here...

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@Coffee_before_tea

 

I understand that you're just throwing out ideas.  We don't know if an idea is a good one or not unless we throw it out there.   :-)

 

Moreover, convoke themselves is a 3rd party, and 3rd party disclosures are a violation of the FDCPA.

 

 

Who exactly potentially violated?   The JDB for giving the information to Convoke?

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So I should sue my lawyer for using Sky Drive because that means he shared my case details with Microsoft? 

 

Sorry, but if you want to put that much effort into finding technical violations, why not just go to the ColtFan-School of tricking collectors into slipping up on the phone?

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No sue Microsoft for allowing NSA access to your records and NSA for taking them......The holding of records by third parties is standard in some industries.....the type of record and manner in which those records are released is the issue..as is reliability of the stored files..

Remember the "Credit" agency a few years back that issued driver reports to trucking companies? They released information received from 3rd parties (including disgruntled employers...or disgruntled OC's maybe?) without any verification of the truth or reliability of the information......they were sued and now have to toe the line and operate under Consumer Credit Reporting Rules...... A persistent group of screwed over driver's basically ruined their Post Toasties and Gravy Train with a non milk additive.

 

Seems like this conveo (never heard of them before this) or whatever is treading on the same shaky ground......just because it is standard or customary and lots of folks do it, does not make it legal or reliable.......thought for the day.

 

Place sounds like a Wal-Mart for JDB documentation, one stop shopping. Personally I have several samples documents I made up, just to see how hard it would be,  that "could" be shown to a court, establishing that about ANY document that the JDB present to a court can easily be "manufactured and produced blank"  and then tailor made for each case and litigant.....all with a standard word processor.... It may be that we should begin insisting upon "The Federal Best Evidence Rule" , that the only best evidence is the actual document upon which the alleged copies are made. Although courts typically accept copies as best proof, if the defendant can demonstrate to the court that certain documents are easily corrupted maybe we can compel the plaintiff to produce the original.....after all that document was created in normal course of business concerning YOUR account (then each account should have their OWN special affidavit) and producing YOUR Original should not be a problem as you should have your OWN SPECIAL affidavit because the Affiant examined your account PERSONALLY.........which of course is so much Bravo Serra.

 

Try getting courts to deny introduction of these documents, unless a reproduced document has some method of securely tieing that document to an "Best Evidence Original" (holograms, copy resistant paper, watermarked paper stock, the original filed with Sec of States and issued RSA signed digital signatures, etc.) that document................ in reality................ is unreliable, and untrustworthy. There is nothing wrong with copies used in court actions..............but......if called to do so the Plaintiff should be able to produce the original to "verify" the authenticity of the reproduction. This would blow back on these "rubber stamp" Notaries and could make them very reluctant to stamp these blanks for manufactured affidavits.....I suspect a great number of these affidavits (especially any from an OC) are bulk supplied and user modifiable.........I can't see an affiant and notary sitting down and signing and stamping several thousand statements for each and every debtor on a list of accounts from the OC. It's not cost effective.........

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@BV80

 

This has to do with @credit2011 post #149.  

 

If convoke acts as a separate 3rd party entity that stores defaulted account records, for the use of any JDB that has access to said records, then they are essentially creating a list of defaulted debtors.  Moreover, convoke themselves is a 3rd party, and 3rd party disclosures are a violation of the FDCPA.  Just throwing out ideas here...

They become contractors of the JDB, a JDB is allowed to disclose to entities in which it has an agency relationship to. Now For the fun Part, how can a JDB employee do all the in RE: Vinhee stuff to comply with hearsay rule.

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Now For the fun Part, how can a JDB employee do all the in RE: Vinhee stuff to comply with hearsay rule.

They don't have to:

Defendant relied on In re Vee Vinhnee, 336 BR 437 (9th Cir. 2005) as his authority to support exclusion of the evidence and suggested the elements about which he believed the proffered witnesses would need to be competent to testify. The trial court denied Defendant’s request. Defendant’s reliance on Vee Vinhnee is misplaced. Vee Vinhnee is persuasive and is not binding on state courts. Furthermore, the Vee Vinhnee ruling is premised on the trial court’s discretion. The Ninth Circuit held:

The court acts as gatekeeper on the preliminary questions regarding the admissibility of evidence. In general, rulings on admissibility of evidence are reviewed for abuse of discretion.

In re Vee Vinhnee, 336 B.R. 437, 443 (B.A.P. 9th Cir. 2005)(citation omitted). While the Ninth Circuit opted to exclude computer based evidence in a bankruptcy proceeding, the trial court in Defendant’s credit card case chose to allow the evidence to be presented. This is a discretionary determination.

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We have to make them. Every case that is won pushes the drive-thru nature of the courts back. The way that the forward flows are worded are devastating to the jdb claims AND also the OC's claims because you can show that so called accounts are rife with error.

Push for the forward flow agreement, I mean really push for it. It is important to get it.

Consumers are getting stronger every day. We have real opportunities to learn from past mistakes, I believe that times are going to get worse than get better.

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We have to make them. Every case that is won pushes the drive-thru nature of the courts back. The way that the forward flows are worded are devastating to the jdb claims AND also the OC's claims because you can show that so called accounts are rife with error.

Push for the forward flow agreement, I mean really push for it. It is important to get it.

Consumers are getting stronger every day. We have real opportunities to learn from past mistakes, I believe that times are going to get worse than get better.

The forward flows don't say the accounts are erroneous.  They only say they are not guaranteed for any purpose.

 

Say you buy a used car and it is sold to you "as-is".  That doesn't mean anything is wrong with it.  Just that the seller is assuming no liability if there is anything wrong.

 

Having the forward flow in hand is not the end of the story.  We have to then go back to the seller and find out why they would sell accounts with no warranty or otherwise uncover some smoking gun that links erroneous accounts to the disclaimer language in the forward flow.

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...because you can show that so called accounts are rife with error.

 

 

How many people experience this error on a regular basis? In every law suit, every collections letter and every entry on my credit reports the charge off amount is consistent (not counting the old practice of adding illegal interest, which is not "error"). A check of bank records and online statements verify these amounts.

 

It seems that open lines of communication can resolve any errors that one uncovers. 

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How many people experience this error on a regular basis? In every law suit, every collections letter and every entry on my credit reports the charge off amount is consistent (not counting the old practice of adding illegal interest, which is not "error"). A check of bank records and online statements verify these amounts.

 

It seems that open lines of communication can resolve any errors that one uncovers.

 

http://www.americanbanker.com/issues/177_49/chase-credit-cards-collections-occ-probe-linda-almonte-1047437-1.html?zkPrintable=1&nopagination=1

The outside attorneys were one flashpoint. The records the law firms used to sue people sometimes differed from Chase's own files at an alarming rate, according to a routine Chase presentation prepared by Almonte and later submitted to the Securities and Exchange Commission. Some law firms' records disagreed with Chase's in almost 20% of cases sampled, a rate far above what is regarded as an acceptable level of errors.

You're presenting an unrealistic view of banking errors.  The default judgment rate is 95-98% across the board, that leaves 2-5% of those cases that do not end in default.  Some end in MSJ, Trial, dismissal or some other reason.

 

Out of the 2-5%, how many consumers understand what is correct and what is not?  If they know it's incorrect, they have to articulate it to the court and prove them wrong.  However, the JDB has incorrect statements, and the court believes the JDB because "they are business records, they have to be correct".  As a pro se trying to muddle through that web of sharks, I find it very difficult for them to overcome the rubber stamp of the courts.

 

The simple fact is, the OC's sell these accounts for a reason.  If these accounts were easily collected on, accurate, and viable, then the OC would collect on them using their own attorneys (they do this all the time).  Instead they sell these accounts down the road because there is "Something" that does not fit into their metrics of "this account is accurate and collectible".  The account pools are rife with errors, and other reasons why the OC chose to sell them.  The JDB's understand this and they don't care because they know 95% of the time they can get a default judgment.  Not bad for only paying 3 cents on the dollar.

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The account pools are rife with errors, and other reasons why the OC chose to sell them.

Because there are "other reasons" for selling the accounts, as you correctly pointed out, it's your job to prove your account is rife with errors. If that's the case then, the forward flow is superfluous.

In other words, the forward flow doesn't prove there are errors in your account.

And as if to stick a fork in the debate, courts have ruled now that the "as-is" language of the forward flow and bill of sale means nothing in terms of the accuracy of the debts.

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All of my accounts were accurate, yet the OC sold them. For most it's not part of their business. The ones that pursue debtors directly (like discover) are those that built their business on high-risk borrowers. Again, it has nothing to do with the accuracy of the data.

 

The article referenced above, while interesting, is quite "dated." I would put little, if any, stock in the anecdotes of someone that has been out of the business for five years.

 

Again, if I had a legitimate concerned with the accuracy of a record I would reach out to all parties in an effort to achieve clarity.

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it's your job to prove your account is rife with errors. If that's the case then, the forward flow is superfluous.

 

No, it's not entirely your job to prove your account is rife with errors. If it is address & name errors sure, but charges/payments/authorized use falls on the creditor.

 

TILA: USC 15 § 1643 burden of proof

In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.

Danner v. Discover Bank, 257 SW 3d 113 - Ark: Court of Appeals 2007 

Crestar Bank, NA v. Cheevers, 744 A. 2d 1043 - DC: Court of Appeals 2000 

DBI ARCHITECTS v. AMERICAN EXPRESS TRAVEL-RELATED SERVICES CO., INC., Court of Appeals, Dist. of Columbia

Also, the language of "as is" or "no warranty on accuracy, collectibility, etc..." creates a layer of ambiguity that needs falls onto the creditor/assignee to overcome. At a minimum, statements that say "a true and correct copy" should be disallowed or highly scrutinized. If the OC cannot warrant the accuracy, then how can a second or thirdhand JDB aver to the accuracy? This needs to be proven, and creates a genuine issue of material fact. But it is up to you to argue it.

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@Coffee_before_tea

 

If these accounts were easily collected on, accurate, and viable, then the OC would collect on them using their own attorneys (they do this all the time).   Instead they sell these accounts down the road because there is "Something" that does not fit into their metrics of "this account is accurate and collectible".

 

 

Just because an OC chooses to sell an account doesn't mean it's not accurate.  Businesses, especially large ones, establish a business model.  They determine which efforts are worth their time and money and which efforts are not.

 

Collecting accounts costs money.  The collectability of accounts is not determined on an account by account basis.  State SOLs and garnishment laws vary.  Some consumers have jobs and assets while others don't.   Some states are community property states while others are not.  As a result, a business can choose to rely on statistics.  If a bank determines that it's not worth the time and money to collect charged-off accounts, then it's going to sell them.  Getting a percentage of charged-off accounts is better than getting nothing.

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Because there are "other reasons" for selling the accounts, as you correctly pointed out, it's your job to prove your account is rife with errors. If that's the case then, the forward flow is superfluous.

In other words, the forward flow doesn't prove there are errors in your account.

And as if to stick a fork in the debate, courts have ruled now that the "as-is" language of the forward flow and bill of sale means nothing in terms of the accuracy of the debts.

 

Maybe, but the as-is sure leaves (if you can prove it with the FFA) it open to work a little harder on the Due-Diligence aspect, most Statutes mention some where the attorney can not hand off certain duties to non attorney, legal aids, or para legals. Increase their paperwork....the longer the paper trail the more opportunities can present themselves to find a nugget  Hammer harder to certified, authenticated, proof that they have done a proper review of an account as they are required to do.............In other words make the attorney have to sign off on more and open himself up for more attacks depending on the situation. As it is now they duck and dodge....make them own the proof.

 

If they don't send it, then hammer on what it MIGHT say....don't lie outright, but use a similar one from online as an exhibit and tear that one up (if they want to dispute your "expanded inferences" and your "sample" FF, let them produce the appliciable FF to prove you wrong) but plant seeds of doubt with the court.......Remember they are the moving party...............they MUST prove their case. Until they do you really don't have to prove anything, the burden is on the Moving party...except that their "proof" is legally flawed and all but a blatant lie.

 

If any judge lets them have their judgment after you have shown they basically have nothing as real foundation for introduced documents, then maybe we need to learn how to file substantial judicial complaints ...............and make them stick. A single judge racks up enough of them and SOMEBODY will say something (wouldn't hurt for a letter to a few state reps either). Then share that information so that others can more easily do the same......attack the beast where they have the least influence...........

 

Just my thoughts.Harry.................I just don't like giving up...Kicking and screaming all the way down, maybe...............

 

Gather articles and Appeal Cases and any other documentation on JDB. Highlight the areas that apply to their "evidence"..................include with letters to state representative and anyone who has any influence......................

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