rockingcredit

Bank of America - Nelson & Kennard Question

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hi!

New here and trying to figure out what to do. would love input of this amazing group of people! I have an attorney but not sure am getting the best advice.  Trial set for two weeks away.  B of A suing through Nelson & Kennard. I've been told that since a law passed in 2014 requiring junk debt collectors to have more documentation to get their money, that card companies can no longer sell their debt as easily and so they are holding on to the debt and going after it more aggressively with firms like Nelson & Kennard.  They produced statements and as well have an affadavit from Melissa K. Stephenson -- who looks to be a person who signs a LOT of affadavits.  I do not want to go to trial. Kennard himself said because it is B of A and not a debt collector that they have to take a harder line.  Any ideas of things to do at this point? My attorney said they would subpoena her.

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1 hour ago, Heather Erickson said:

If the OC CANNOT produce the original agreement with your wet ink signature, there is no valid contract.  If debt buyer claims they have a valid contract with you..ask to see it.  If they can’t produce it, it doesn’t exist.  Period end of story.   

NONE of this is true.  The courts are well aware there is NO signed contract with a "wet ink" (which isn't even the correct term) signature in a credit card case and the Plaintiff does not need one to prove their case.  Debt buyers DO have a valid contract with those they sue.  It is basic contract law.  When they buy the account they step into the place of the original creditor they bought it from and get all the rights and responsibilities as the OC did.  PERIOD.  End of story.

Edited to add:  a newbie one hit wonder poster re-activated a 2 year old thread to post their bad information. 

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10 hours ago, Heather Erickson said:

If the OC CANNOT produce the original agreement with your wet ink signature, there is no valid contract.  If debt buyer claims they have a valid contract with you..ask to see it.  If they can’t produce it, it doesn’t exist.  Period end of story.   

You should read court rulings.  Courts do not require “wet ink” contracts to prove a credit card debt.  Cardmember agreements state that the use of the card constitutes a consumer’s aacceptance of the terms in the agreement.  Those agreements are not signed, but it can be shown that a consumer used the account, a contract has been created.

Here”s just a few court decisions for you.

CACH, LLC v. Martin (AZ Court of Appeals, 2015)

“Although the Martins consistently noted the agreement was not signed, a signature is not necessary because use of a credit card is sufficient to bind the cardholder to the terms and conditions of the account.”

 

Williams v. American Express Bank, FSB  (KY Court of Appeals, 2013)

“We are in agreement with the court below that the statute of frauds is not applicable sub judice and, therefore, Williams was not required to sign the agreement but only to use the card to be bound by its terms.”

 

Discover Bank v. Ray (WA Court of Appeals, 2007)

“Here, the cardmember agreement clearly and unambiguously provided that use of the credit card issued by Discover Bank constituted an acceptance of the cardmember agreement. Mr. Ray used the credit card issued by Discover Bank for several years. There is sufficient evidence to establish that Mr. Ray accepted the terms of the cardmember agreement through his conduct of using the credit card.”

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19 hours ago, Clydesmom said:

Edited to add:  a newbie one hit wonder poster re-activated a 2 year old thread to post their bad information. 

@Heather Erickson‘s incorrect claim sounds like the same claim that has been posted in the past from readers of that faulty “You Can Beat Credit Card Debt Collectors” article.  

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27 minutes ago, Heather Erickson said:

You should ALL read your rights under the FDCPA.  WRONG!  They MUST supply an original contract with an original signature.  

Please quote to us the part of the FDCPA that applies to an original creditor, and the other part that says they have to provide an original contract and original signature. 

And stop making several different posts in a row.

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4 hours ago, Heather Erickson said:

You should ALL read your rights under the FDCPA.  WRONG!  They MUST supply an original contract with an original signature.  

Poor misguided thing.   The FDCPA says nothing about providing a contract.  

I challenge you to show us where the FDCPA makes such a requirement.  As the saying goes, either put up or shut up.

BTW, here’s what a court says about your “original contract with an original signature” claim. 

Discover Bank v. Ray (WA Court of Appeals, 2007)

“Here, the cardmember agreement clearly and unambiguously provided that use of the credit card issued by Discover Bank constituted an acceptance of the cardmember agreement. Mr. Ray used the credit card issued by Discover Bank for several years. There is sufficient evidence to establish that Mr. Ray accepted the terms of the cardmember agreement through his conduct of using the credit card.”

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