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@CommoSGT

 

I'd get an attorney because that could be a violation not only of the FDCPA but of the rules of professional conduct and fraud on the court.  That law firm could be in a tushie load of trouble.

 

Black's Law Dictionary defines fraud on the court as "In a judicial proceeding, a lawyer's or party's misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding." Black's Law Dictionary 686 (8th ed. 2004).

In . S.J.L.S. v. T.L.S., 265 S.W.3d 804, 831 (Ky.App.2008), the Court of Appeals quoted Triplett v. Stanley:

The broader view of fraud upon the court has remained constant throughout our jurisprudence. In Triplett v. Stanley, 279 Ky. 148, 130 S.W.2d 45 (1939), our former Court of Appeals said that fraud upon the court "is not confined to vicious import of a wicked motive or deliberate deceit, etc., purposely conceived, but embraces merely leading astray, throwing off guard, or lulling to security and inaction, be its intention or motives good or bad." Triplett, 130 S.W.2d at 47.

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@BV80 @CCRP626 @ccposter - You all are way more advanced with this stuff than I am.  

 

I received the CMRRR card back yesterday from my answer, but I also received a letter from the "Creditor Asset Acceptance" telling me the debt amount had now increased by about $420.00 and that we could resolve this if I would call them.

 

My questions are this: 1) Per 803 (4) they can't be creditors, right?   2) They are still growing the amount without a court order to authorize it.   3) Think this is an effort to resolve it because they can't win in court?

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@CommoSGT

 

1.  This is where the FDCPA is really not that clear.  Part of 1692a(4) says "receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another."  Asset's not collecting for another.  They're collecting for themselves.

 

1692g(a)(2) (Validation of debts) says "the name of the creditor to whom the debt is owed".  The debt is OWNED by Asset so the debt is owed to them. 

 

As you can see, Asset could be both the current creditor because the debt is owed to them, but they are also still a debt collector that must comply with the FDCPA.

 

2.  Court orders are not always needed.  That depends upon the cardmember agreement, the OC's actions after charge-off (whether or not it charged interest), and state laws.  Those state laws might include the laws of the governing state in the cardmember agreement. 

 

Did they give a reason for the increase? 

 

4)  It could be.  But it could also be just to get it over with.

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Fulk v. LVNV FUNDING LLC, Dist. Court, ED Kentucky 2014

Fulk claims that, even if liquidated claims are entitled to prejudgment interest as a matter of course, there is no right to extra-judicially accrue prejudgment interest prior to entry of a state court judgment. [Record No. 11, pp. 8-16] LVNV asserts that it does have the right, but relies solely on case law addressing prejudgment interest awarded by trial courts as part of a judgment. Under Kentucky law, prejudgment interest follows as a matter of course in claims for liquidated debt, and it "may be allowed as justice requires" in instances of unliquidated debt. Nucor Corp. v. General Electric Co., 812 S.W.2d 136, 144 (Ky. 1991). However, an award for either type of claim presupposes that "the trier of fact, judge or jury, has decided both the question of breach of contract and the amount due for the breach before reaching the question of interest as damages." Id. Thus, a creditor may not collect prejudgment interest from a debtor until a judgment has been awarded.

Further, equity requires a state court judgment prior to an award of prejudgment interest. Allowing extra-judicial accrual of interest would not allow for disputes regarding the amount of debt or when the right to prejudgment interest begins to run to be brought before a trier of fact. Id. Instead, it would provide creditors with the ability to unilaterally impose statutory prejudgment interest rates on debt claims without judicial oversight. Such as result is not supported by Kentucky law. Accordingly, the Court concludes that, although statutory prejudgment interest is available as a matter of course for liquidated claims under Kentucky law, it was not proper for LVNV to include it prior to receiving a judgment.

 

@BV80 - But this doesn't jive with the opinion that they could add it.  The OC shows the charge off as one amount 9XXX.XX and AA shows it as being some $420.00 higher.  The amount of the increase works out to 8% from the date they started listing it in our CR.  The CR on the other hand shows the amount increasing from the 9xxx.xx to an amount equal to increases of 8% starting at the date of the charge off.  That is some $25XX.XX higher.

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@BV80 - No, Equifax told me that AA had them remove it because AA owned it now.

 

Now what??  I just checked to see what the CR was showing....  Transunion is listed as "Closed-Derogatory" as of 31 July on this account.  ??? WIN ???

 

UPDATE:  Equifax is reporting it as CLOSED now too.

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@CommoSGT

 

I think the Equifax rep didn't know what the heck he/she is talking about.  Asset has no control over the OC's reporting.  It cannot authorize the CRAs to remove the OC's entry.

 

The reason I asked if the OC was still reporting is to find out the balance of the account at charge-off and the balance at the time the OC sold it.  If the balance was the same at both times, that would show that the OC did not charge interest after charge-off.  That would bolster your claim that the OC waived the right to charge contractual interest.  Therefore, Asset could not claim they are NOT charging statutory interest but are, instead, charging interest allowed by the contract.  You'd have them on both types of interest.

 

A closed-derogatory just means a closed account with negative information.

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@BV80

 

     Now both CRs are showing simply "CLOSED"  I guess they are going to give up on it....??   ???? WIN ????

 

     I had SOL, Standing and 5 different FDCPA violations on the counter-claims.  I guess we can see what they do with it in the next couple of days.

 

     Can they get a dismissal without an agreement from me since there are counter-complaints?

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@CommoSGT

 

Who knows if they are giving up on it?  You're dealing with a JDB who's not known for the most ethical of practices.

 

Without you, they can dismiss their own claims, but they can't dismiss your counter-complaint. 

 

I'm sure you already know this, but no matter how many FDCPA violations there are, the max award is $1000 plus attorney fees.  That amount won't make a dent in the amount of the debt.  Does the KY law allow a private right of action?

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@shellieh98  - To be honest, I don't know.  The credit report shows retail and I don't have records to show one way or the other.  Long story short, about 2 years or so ago, I got tired of climbing over some old banker boxes and burned them. 

 

I KNOW, not smart....

actually I would delete that post, as far as the law goes.

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@BV80 @Seadragon

Just checked on the court's docket and it showed " motion not requiring a hearing " for yesterday. I had called @3pm yesterday and asked if anything new had between filed and was told no.

My question is, what kind of motion can the opposition file without including me since they know I am pro se?

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Talked to the court clerk this AM and the motion was a request for an extension of time to answer my counter-claim. The plaintiff's attorney had also called here Friday while I was at work without leaving a message. What should I take from it at this point? Can I argue against the additional time?? Should I??

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They will get it, they are entitled to at least one.  He probably called you to talk a settlement.  If it is a mutual walk away, you might want to take them up on it. :) Or if not, counter their offer with a mutual walkaway.  

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In case of a settlement of a "mutual walk away" I would suggest that you still have a settlement agreement where they delete your lines from the CRAs and that you verify it has taken place before signing.  This might take multiple checks by you of your CR on all 3 before verifying it as there is a possible time lag before their request and deletion.  I sued 3 CA over the same account (not the one involving AA) and had that as a settlement condition.  I also put in there that they cannot issue a 1099C since it is not their place to do it, and also not report the settlement to the OC (which they also agreed to unless the OC asked); otherwise a 1099 will be triggered and you will have to deal with the IRS on tax on forgiven income.   

 

I also had them agree in writing not to resell the account (at my insistence strangely and not my lawyer's), which they also agreed to.  All this is less likely to need to be worried about in the case of AA because of the consent decree and the fact that they know you know about it, but I myself would still have it put in there.  

 

Others might advise about possibly mentioning liquidated damages as a penalty if they screw up and do anything violating the agreement, that might be too hard a sell.  I was told by another lawyer who agreed to take my case on contingency if they violate my agreement that there is a presumption of good faith regardless of the exact wording that would allow damages under common law.  

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I was hoping the Friday motion was a dismissal.  They can't do a dismissal without me dismissing my counter-claims though, right?  So, that may be why they are wanting to talk....

 

I hate that Ky doesn't have a way for me to be able to see the courts filings via the web.

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Right, they can't dismiss unless you do, or they can, but your claims will continue. Or a settlement....what ever you a agree to. Ie: a mutual walk away.

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@shellieh98 - These guys have been such a PITA that I don't believe I am willing to do a mutual walkaway.  If they are concerned enough to ask me to walk away, I am going to use the leverage.  Is this a bad attitude to have??

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@CommoSGT

 

If it were me, I'd consider the amount of the debt vs. the amount I might be awarded in my counterclaim.  Are they comparable?  In other words, is the amount of the debt much more than the amount you might be awarded in your counterclaim?

 

If you refuse a mutual walk-away, they could cave and give you what you want.  But what if they don't?   What if they proceed with the lawsuit?  Can they possibly prove their claims? 

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