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@CommoSGT

 

I see what you're saying.  While the FTC has made that requirement of Asset, I don't know that it makes a difference in regard to your counterclaim or defenses.  What it might do is encourage Asset to dismiss. 

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@BV80 - I am talking to the FTC tomorrow.  That wasn't a 'you might want to' it was a 'you will'.  They are still reporting to the CRA and the amount is climbing monthly too.  How do I go about getting this under FCRA instead of FDCPA?  They basically showed that they are aware they can't charge interest, their initial complaint included 'and $xxxx.xx in interest' and when they amended it they removed that statement.

 

@CCRP626 - I don't know which Beneficial it is, anyway to tell that from what I have of the account number?

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@BV80 - I am talking to the FTC tomorrow.  That wasn't a 'you might want to' it was a 'you will'.  They are still reporting to the CRA and the amount is climbing monthly too.  How do I go about getting this under FCRA instead of FDCPA?  They basically showed that they are aware they can't charge interest, their initial complaint included 'and $xxxx.xx in interest' and when they amended it they removed that statement.

 

@CCRP626 - I don't know which Beneficial it is, anyway to tell that from what I have of the account number?

 

@CommoSGT

 

Since you just disputed their entry with the CRAs, I'm thinking there hasn't been a reply from the CRAs yet as to whether or not the entry has been verified.   An FRCA violation is not always as easy to show as an FDCPA violation.  Under the FCRA, the only way you can get damages awarded that are allowed by the statute is if you prove that the furnisher (Asset) willingly violated the Act.   If all you could show would be that they were negligent, you'd have to prove actual damages (that you were monetarily or emotionally harmed).

 

The fact that they removed the interest they were claiming in the complaint is not necessarily proof that they can't add interest.  First, you'd have to show that Beneficial didn't charge interest after the account was charged off. 

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@BV80 - I think it is just Asset doing the reporting.  They reported that the "High Balance" from the OC was $9### and charge off was December 2011.  Then Asset shows it as opened in December 2012 (their start on it) but they show in their documents to us 3 months prior to that.  Doing the math to find out what the monthly increase was I found it was going up by .00667 % each month (8% per annum).  Doing the calculations from where it is now and going back to start at the OC charge off amount, takes me back to October 1, 2012.  

 

So, what would you personally take from that if you were sitting in the dock on a jury?

 

Another note, the CR now has a statement at the bottom that says "Dispute resolved;customer disagrees"

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With the two federal laws it is not either or.  You can claim damages under both.  You have stated I believe four or more violations under FDCPA.  Only one has to survive for a claim of $1000 in damages to be awarded even if you can't end up claiming under FCRA.  You might concentrate on matching the details of your case into the way statute sections you have cited are worded.  

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@CommoSGT on the credit report it would show the contact info for Beneficial. Charge off should show zero balance if sold. One other entry for the same account would be the JDB. There can only be the two entries (OC and current JDB) for the same debt even if five different JDBs buy it over the years. No re-aging allowed. They all drop off in 7/7.5 years dated back to your late payment.

 

Asset does say they purchased the debt? It's not just assigned to them by the OC to collect on in Asset's name?

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@CommoSGT

 

 

@BV80 - I think it is just Asset doing the reporting.  They reported that the "High Balance" from the OC was $9### and charge off was December 2011.  Then Asset shows it as opened in December 2012 (their start on it) but they show in their documents to us 3 months prior to that.  Doing the math to find out what the monthly increase was I found it was going up by .00667 % each month (8% per annum).  Doing the calculations from where it is now and going back to start at the OC charge off amount, takes me back to October 1, 2012.  

 

So, what would you personally take from that if you were sitting in the dock on a jury?

 

Another note, the CR now has a statement at the bottom that says "Dispute resolved;customer disagrees"

 

Based on what you've said, I agree with you but if were on a jury, I'd want to see evidence.   You haven't provided a copy of your credit report.  As a result, so far, you've provided no evidence to support your claim about what's in your CR just as Asset has provided no evidence to support their claims.  Right now there's no evidence that Beneficial is incorporated in DE just like there's no evidence that Asset has purchased the account.

 

Like I said, hopefully Asset will dismiss and offer to dismiss with prejudice if you drop your counterclaims.  But if they don't, then you'll engage in the discovery process which would allow you to find out exactly what "evidence" Asset can produce.  

 

I would request not only the cardmember agreement in order to determine the state in which Beneficial is incorporated, but also a copy of Beneficial's charge-off statement AND a copy of the very last statement sent to you by Beneficial.  If the charge-off statement is the last statement sent to you by Beneficial, and if the balance is the same as the amount for which your being sued, there's you proof that Asset added interest to the balance which would support your FDCPA claim that they attempted to collect an amount not authorized by law. 

 

You may think I'm being picky here, but if Asset doesn't dismiss and its attorney pays attention, your counterclaim could be dismissed for failure to state a claim.   You didn't allege that Asset is a debt collector as defined by the FDCPA or that the debt is one as defined by the FDCPA.  If they recognize that, you could file an amended counterclaim.  But maybe they won't realize it.

 

Read Davidson-Stevenson v. West Asset Management, Inc. (ED KY 2014).

 

To establish a claim under the FDCPA, a plaintiff must show that: (1) she is a "consumer" as defined in 15 U.S.C. § 1692a(3); (2) the "debt" arises out of a transaction that is "primarily for personal, family or household purposes;" (3) the defendant is a "debt collector" as defined in the FDCPA; and (4) the defendant has violated one of the prohibitions in the FDCPA.

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@CCRP626 - The original OC is no longer showing on the report.  The CR report shows Beneficial as the OC and Asset as owner of the debt.  I wasn't worried about the re-aging of it.  I just rattled another JDB for and account that was supposedly with HSBC, sold to Cap1 and then to another JDB and finally this current JDB....they said the default date was December 2011.....but the statements they sent me show it was in default from February 2011.  That CAP1 disappeared off of my CR after I challenged it....but the JDB is still there.

 

I was just reading the FTCs 2013 report (The Structure and Practices of the Debt Buying Industry)  and it shocks me that the FTC acknowledges that "when debt buyers received information about debts at the time of sale, sellers generally disclaimed all warranties and representations with respect to the accuracy of this information".  Further, "the Commission, consumer advocates, and academics have issued studies, reports, and articles questioning the sufficiency and accuracy of the information and documentation supporting the complaints debt buyers file in court".  Yet we are still having to stand and fight against the crap instead of the JDB being held accountable.

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I didn't include the credit report pursuant to protections under CR 7.03, if I submitted it I would have had to block out about 95% of it to protect my privacy and then the bit left would not have done much except cause the judge to ask me if my kid's had fun coloring it up.  I can admit it under personal knowledge and testify to the un-redacted version under the rules in KY....or at least that is what my research says.

 

You may think I'm being picky here, but if Asset doesn't dismiss and its attorney pays attention, your counterclaim could be dismissed for failure to state a claim.   You didn't allege that Asset is a debt collector as defined by the FDCPA or that the debt is one as defined by the FDCPA.  If they recognize that, you could file an amended counterclaim.  But maybe they won't realize it.

I don't think I have to claim they are a debt collector, their documents they filed are stating it as a fact including on their complaint.

 

Read Davidson-Stevenson v. West Asset Management, Inc. (ED KY 2014).

 

To establish a claim under the FDCPA, a plaintiff must show that: (1) she is a "consumer" as defined in 15 U.S.C. § 1692a(3); (2) the "debt" arises out of a transaction that is "primarily for personal, family or household purposes;" (3) the defendant is a "debt collector" as defined in the FDCPA; and (4) the defendant has violated one of the prohibitions in the FDCPA.

 

I don't take anything any of you say as a personal attack, critical thinking is necessary in life if you want to succeed or move up....it is a skill that lots of people are lacking and I appreciate the opportunity to learn from all of you...and maybe stir a thought pattern or two in your minds too.

 

FYI - Old Army Vet here....ain't skeered!!   :ROFLMAO2: 

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@CommoSGT have you checked with a well rated consumer attorney (or three) to see about an FDCPA/FCRA lawsuit on its own? If it looks favorable they'll take the case at no cost to you since the JDB will end up paying the bill.

 

Here's one consumer atty's take on it, also see his comment reply below the article.

http://www.alabamaconsumer.com/2012/01/why-you-should-not-file-a-counterclaim-to-a-debt-buyer-lawsuit/

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@CCRP626 - I hadn't after talking to the lawyer that told me I would be better off just paying the debt.  BUT, I have been still reading today and contemplating contacting the gent that runs kyconsumerlaw.com

 

It may be worth it to see what he thinks....I haven't felt the need to earn a $ here, but I am getting frustrated enough to want to.

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Commonwealth v. Beneficial Finance Co - Beneficial Finance Co. (Defendant), was convicted of bribing state banking officials in order to get preferential treatment from the Small Loans Regulatory Board

 

Crooks.... wow

 

Found that Beneficial Kentucky Inc. was a Delaware corporation from an SEC filing.   

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For the failure to state a claim mentioned earlier, there are plenty of case decisions that state an FDCPA claim must establish a prima facie case with four elements. You can google prima facie fdcpa case, fdcpa counterclaim to see samples, etc.

 

It doesn't look like your counterclaim establishes all four elements in a prima facie manner and it's also not apparent reading the Plaintiff's complaint you could take the four elements from there.

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@CCRP626 - I will look at it but I found the elements where Fulk had hit the nail on the head and where it lined up in the facts here.... in fact, almost squarely point for point.  Reading that is what got me to consider those points, I stopped after a bit because I didn't want to get it so excessive that the judge looked at the book and said "recycle this rubbish".  Know what I mean?  

 

Reading back over it for the 5th or 6th time, I am noting some minor hiccoughs now, but they are bona fide errors like minor typos, etc.  Something about working 16 hours and then trying to write a foreign language..... Up til now I spoke hillbilly, sarcasm and english in a semi-coherent manner....this gibberish (legal) caused me to practice profanity a bit too. 

 

I appreciate all the brain cells you guys are loaning for sure.... I am tempted to start working towards a legal degree.  

 

Know what the SF Motto is?  De Oppresso Liber  - To Free the Oppressed...... sounds like a motto for a CA Lawyer.

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@CommoSGT use original creditor. Using FDCPA definitions a debt buyer would qualify as a creditor-

 

The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

 

They're still covered by the FDCPA because the debt was in default when they purchased it.

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@CCRP626 @ccposter @BV80 - So get this, I requested information about the creditor and was told "We are the creditor"....  

 

Like @CCRP26 said, reference the "original creditor".   Accounts never "originate" with Asset and that company only buys defaulted accounts. 

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I guess I should have put that in there, I did ask who the debt 'originated with' and that was the answer I received.  The stuff pasted below came from CIC.... is that not right then?
 
 
TITLE VIII - DEBT COLLECTION PRACTICES [Fair Debt Collection Practices Act]
§ 803. Definitions [15 USC 1692a]
As used in this title -- 
(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

So when a collection agency is assigned, or has purchased, your debt, they are NOT the creditor. They are the debt collector and the actions they take are all governed by the FDCPA.

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@CommoSGT

 

I did ask who the debt 'originated with' and that was the answer I received.

 

 

You specifically asked them with whom the debt originated?  They told you the debt originated with Asset?

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@CommoSGT

 

 

You specifically asked them with whom the debt originated?  They told you the debt originated with Asset?

Sure did.....my response was B#!!$#!^..... they hung up.

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@CommoSGT

 

I wish you had recorded that or gotten it in writing because it's a clear violation of the FDCPA.

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@CommoSGT

 

I wish you had recorded that or gotten it in writing because it's a clear violation of the FDCPA.

OOOFF!!! Thanks @BV80 ....   ::violin::   Now I wish I would have asked that in writing CMRRR.....

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OK, another question I have... I just found a copy of a document where the court was threatening to dismiss for failure to prosecute in October 2014. The JDB's law firm sent a request back asking them not to because they had just sent an alias summons. There is no record of it....the only summons in the record was sent in July 2015. Judge granted their extension because of their alias summons claim.

Any leverage here??

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