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Old cc debt; suit was dismissed; being hounded again


Charlie56
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Defaulted on a Providian credit card in 2004. Lawsuit filed against me in Dec 2007. The lawsuit was dismissed Feb 2009.  Now have another collector (he says he represents law firm) threatening lawsuit for same debt. I live in Texas. Can they do this? I have received no correspondence from this company pertaining to this latest collection, only harassing phone calls. They have called my 85 year old mother, my ex-husband and step-son.

Any guidance would be appreciated.

Thank you.

 

 

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7 hours ago, Charlie56 said:

Defaulted on a Providian credit card in 2004. Lawsuit filed against me in Dec 2007. The lawsuit was dismissed Feb 2009.  Now have another collector (he says he represents law firm) threatening lawsuit for same debt. I live in Texas. Can they do this? I have received no correspondence from this company pertaining to this latest collection, only harassing phone calls. They have called my 85 year old mother, my ex-husband and step-son.

Any guidance would be appreciated.

Thank you.

 

 

If you defaulted in 2004 then the SOL to sue expired in 2008 i Texas. This firm Could te hnically sue you but you have a gold plted defense if they do nd n FDCPA violation as well.  Send them a letter telling them you refuse to py and if they don't stop collection activity or they ue, sue them.

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new to the threads, i just posted the following on anohter thread but i see you have the same kinda problem...maybe this helps. replace "midland" with the collection agency that you are dealing with. all third parties have no contract with you.

 

 I saw your question and this is the same thing kind of that im doing, but im sending dispute letters to the Credit Reporting Agencies first and then i will send letters to the 3rd party collectors. I have my templates ready to go for the cra's i just got to get them notorized before i send them certified mail...as far as your question...you should right the 3rd party (midland) have it notorized asking for a valid contract with them that you signed. cuz from what i understand when the creditor discharges the debt to a buyer/collectionagency like midland the the creditor not only loses rights to that claim but now you get to ask midland where it is that you contracted with them?... because your initial contract was with a creditor...not with midland...

 

A contract requires transparency and agreement of the parties involved. Did you sign with your wet ink signature making a new contract with this third party? By the way when the collection agency sends you an invoice and you pay a dollar on it, then you just contracted with them....

 

Send them a notorized letter of "request for production", certified mail and send it directly to their lawyer at that collection agency, in that letter you get to ask for 1. copy of a contract signed by both parties therefore binding both parties... (remember you didn't sign a contract with midland)  Number 2. ask for "VALIDATION"(the actual accounting) of the debt not verification. 3. have them verify their claim against you: (sworn affidavit or a hand signed invoice in accordance with The Uniform Commercial Code) and 4. Please provide me with a true and certified copy (not photocopy) fo the Original Note (credit agreement), under penalty of perjury and with unlimited liability and confirm that this Note, has never been sold. Please also confirm the name of the individual who is the duly authorized representavie from your company, who has carried out due diligence under the Mondy Laundering Crontrol Act of 1986 and what actions s/hehas taken in relation to this account.

 

Once a debt is discharged by any party, that party looses prior claim to it. remember its all based on contracts. lender or creditors claim their interest in the money that was lent to you. If they recover that money, by selling the debt to a third party or they retract their interest in the contract by discharging the debt, they lose all claims to it over you.

 

this is exactly what happens in 3rd party debt collection (midland). the party you originally contracted with sold your debt, giving up their claim to it. and now a third party is trying to compel you to contract with them on a debt that had absolutely no valid enforceable authority in law, but only if you assert your rights and dispute the claim.

 

ive also attached a link, that i found if you are representing yourself in court and its scripted perfectly:

 

(link removed by moderator)

 

BTW im in the process of disputing my cra's first then i'll send the letters out to the collection agencies. disclaimer, i am not a "professional" just a neighbor.

 

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how am i hijacking others? seriously, i thought i was helping, this person has a third party trying to collect on a debt that has already been dischagred and not only that this third party is basically harassing someone, because they want that someone to admit the debt is theirs. how am i hijacking. im helping, at least that is my intention, if you can't see that then your blind. just because its "news" to you doesn't mean you should take offense...this is why i think you must be a creditor/lender/3rd party...

 

where am i wrong? answer that. its so simple its rediculous...this third party has no contract with "YOU" but they use scare tactics and hope they find the unwitting to misle. Im helping not hurting. you are mistaken.

 

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1 minute ago, Credithis said:

1/2 of what you posted is not applicable here. This alleged debt is too old to collect on and beyond Texas statutes of limitation to sue on. The OP could sue for being threatened with this debt. 

he could still send a letter asking for validation and send it certified mail and not even go through the hassle of court, though i agree he could win, if there is extra info, then isn't that a good thing, cuz most people deal with this all the time...

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@janus

The article "You Can Beat Credit Card Debt Collectors" contains many errors.   Much of the information in it is incorrect and inapplicable to credit card accounts.   Courts have discredited much of it.

Here's just a couple of examples:

 

On 6/7/2016 at 6:00 PM, janus said:

Citing Marine Bank, 25 Pa. D. & C.3d at 267-69. A “defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest.

That ruling was over 30 years ago in a county court in PA.   It is neither precedent or even persuasive in TX.

 

On 6/7/2016 at 6:00 PM, janus said:

5.) Defendant cites Failure of Consideration:

Whereas no exchange of money or goods occurred between the plaintiff and the defendant, therefore, defendant cites Failure of Consideration.”

Read up on assignment of debts.  It's legal and is contained in the terms in every credit card agreement.

Ainsworth v. CACH, LLC

An assignee stands in the assignor's shoes and may assert those rights that the assignor could assert, including bringing suit. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000); see also Sw. Bell Tel. Co. v. Marketing on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010).

 

On 6/7/2016 at 6:00 PM, janus said:

8.) Plaintiff's complaint violates the Statute of Frauds

The TX Statute of Frauds EXCLUDES credit card agreements from the signing requirement.

Title 3, Section 26.02

(2)  "Loan agreement" means one or more promises, promissory notes, agreements, undertakings, security agreements, deeds of trust or other documents, or commitments, or any combination of those actions or documents, pursuant to which a financial institution loans or delays repayment of or agrees to loan or delay repayment of money, goods, or another thing of value or to otherwise extend credit or make a financial accommodation.  The term does not include a promise, promissory note, agreement, undertaking, document, or commitment relating to:

(A)  a credit card or charge card

 

From Ainsworth v. CACH, LLC:

A credit or charge card agreement need not be in writing or signed. See Tex. Bus. & Comm. Code Ann. §26.02(a)(2)(A) (exempting credit or charge cards from the requirement that a loan agreement must be in writing); see also Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (concluding that use of and payment on a credit card account is sufficient to establish the card holder's intent to be bound by the credit card agreement).

I would suggest you read TX court rulings to determine what is required by TX courts.

In regard to the claims in the article about “subrogation” and “scienti non fit injuria”, where are the court opinions that support the author’s claims that those defenses apply to credit card debt?   Without a state law or supporting court opinion, those defenses are meaningless.

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2 hours ago, BV80 said:

 

 

@janus

Most of what you have posted is incorrect and inapplicable to credit card accounts.   It's been available on the internet for years and courts have discredited much of it.

Here's just a couple of examples:

 

That ruling was over 30 years ago in a county court in PA.   It is neither precedent or even persuasive in TX.

 

Read up on assignment of debts.  It's legal and is contained in the terms in every credit card agreement.

Ainsworth v. CACH, LLC

An assignee stands in the assignor's shoes and may assert those rights that the assignor could assert, including bringing suit. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000); see also Sw. Bell Tel. Co. v. Marketing on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010).

 

The TX Statute of Frauds EXCLUDES credit card agreements from the signing requirement.

Title 3, Section 26.02

(2)  "Loan agreement" means one or more promises, promissory notes, agreements, undertakings, security agreements, deeds of trust or other documents, or commitments, or any combination of those actions or documents, pursuant to which a financial institution loans or delays repayment of or agrees to loan or delay repayment of money, goods, or another thing of value or to otherwise extend credit or make a financial accommodation.  The term does not include a promise, promissory note, agreement, undertaking, document, or commitment relating to:

(A)  a credit card or charge card

 

From Ainsworth v. CACH, LLC:

A credit or charge card agreement need not be in writing or signed. See Tex. Bus. & Comm. Code Ann. §26.02(a)(2)(A) (exempting credit or charge cards from the requirement that a loan agreement must be in writing); see also Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (concluding that use of and payment on a credit card account is sufficient to establish the card holder's intent to be bound by the credit card agreement).

I would suggest you read TX court rulings to determine what is required by TX courts.

 

Hello thanks for that. I have read about the Assignee and Assignor and Obligor in Art 9.1.07 - 9.1.12. I understand that an assignee can take from the assignor the contract, but if you were to be faced with the assigner you can ask for a proof of contract, think about it like this...a debt is 10 years old, all of a sudden you get this letter in the mail saying you owe something to them...well my first response should be ...WHO IS THIS? I have that right under the federal debt collection act. Not only do I get to ask them to "verify" the debt but i also get to ask where is the contract that the assignor and assignee signed involving ME. Otherwise anybody could say anybody owed them money or services. If i went to court and had a consumer rights lawyer with me, their would have to be a validated paper trail...ultimately one that will lead to the first contract being signed with the original creditor/assignor, i also have to ask for that original contract cuz how do i know who is paying all the fees to this court? It makes sense that the burden of proof is on the assignee/3rd party...THEY HAVE TO PROVE TO ME THAT THERE IS A VALID CONTRACT. debts are repackaged and sold all the time, i actually had two different collection agencies come after me for a debt when i was already paying on it! How does that happen?! We have rights to know and validate an allegation. 

Also, i was thrown off with the texas statutes of frauds, and so i did go and look and at first was like what the frick cuz, my first instinct was how can they trump federal statute. and it turns out they cannot trump federal statute. when it says "credit cards are exempt" that is only from the actual creditor/assignor...NOT the third party...the third party aka collection agencies are governed under federal debt collection act... here is a link i found stating just that from this link http://www.peopleslawyer.net/legal-topics/debt-collection.html

B. Federal Debt Collection Act

The Federal Debt Collection law applies only to a person who is in the business of collecting debts or regularly collects debts for another. This includes businesses that are generally described as debt collectors or collection agencies. It can also include an attorney if the attorney regularly engages in debt collection. As noted above, a business collecting debts for itself is not subject to the federal law, and is regulated by only the Texas Debt Collection Act.

 

for example i have a kohls credit card that i have not paid and it has not been sold or discharged, they still have it within their own control, whereas the texas code would apply, however once they sell that debt, it is federal control...at least that is my understanding...

 

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2 minutes ago, janus said:

think about it like this...a debt is 10 years old, all of a sudden you get this letter in the mail saying you owe something to them...well my first response should be ...WHO IS THIS? I have that right under the federal debt collection act. Not only do I get to ask them to "verify" the debt but i also get to ask where is the contract that the assignor and assignee signed involving ME. Otherwise anybody could say anybody owed them money or services.

You could ask for a contract, but they don't have to provide it in order to validate a debt. 

 

4 minutes ago, janus said:

. If i went to court and had a consumer rights lawyer with me, their would have to be a validated paper trail...ultimately one that will lead to the first contract being signed with the original creditor/assignor, i also have to ask for that original contract cuz how do i know who is paying all the fees to this court?

This is different than requesting validation after receiving a debt collection letter.   If you are sued, a JDB would have to prove ownership of the account. 

To which contract are you referring?  The contract between you and the original creditor?   Or the contract between the original creditor and the JDB?

 

 

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17 minutes ago, BV80 said:

You could ask for a contract, but they don't have to provide it in order to validate a debt. 

i will dispute it by asking them to validate, but i would include my own terms stating basically 1. show me the true bill (cuz i need to know exactly what im being charged for, allegedly) 2. find me the contract that says you and alleged creditor are even lawfully binded 3) where is MY binding contract to the original creditor and i will also kindly add, at the end of the day when you guys attempt to sue me, I WILL NEED ALL THAT EVIDENCE, otherwise CASE DISMISSED.

This is different than requesting validation after receiving a debt collection letter.   If you are sued, a JDB would have to prove ownership of the account. I guess i would want to air it all out in the first letter, that way they know im gonna be a HARD case, do they really have all that info, if so, i'll settle when i see it with my eyeballs, otherwise PROVE IT TO ME!

To which contract are you referring?  The contract between you and the original creditor?   Or the contract between the original creditor and the JDB? Both. My whole thing is give it to them all at once, send it directly to the attorney for the agency, certified mail, and let them know they can ATTEMPT to collect a debt, BUT it will not happen until they prove it to me.

 

btw i don't know what JDB is but im assuming that is the collection agency?...

 

 

 

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2 minutes ago, janus said:

i will dispute it by asking them to validate, but i would include my own terms stating basically 1. show me the true bill (cuz i need to know exactly what im being charged for, allegedly) 2. find me the contract that says you and alleged creditor are even lawfully binded 3) where is MY binding contract to the original creditor and i will also kindly add, at the end of the day when you guys attempt to sue me, I WILL NEED ALL THAT EVIDENCE

Regarding a collection letter and consumer's debt validation request, consumer's do not get to dictate what a debt collector must provide for validation.  The courts have already decided.  All that's required for validation is verification that the correct consumer is being contacted and that the amount claimed is accurate.  In the case of a credit card debt, a credit card statement showing the consumer's name, address, and the charge-off amount would suffice.

5 minutes ago, janus said:

otherwise CASE DISMISSED

When one has only been sent a collection letter, no lawsuit has been filed, so there is no case to dismiss.

6 minutes ago, janus said:

Both. My whole thing is give it to them all at once, send it directly to the attorney for the agency, certified mail, and let them know they can ATTEMPT to collect a debt, BUT it will not happen until they prove it to me.

I haven't seen a ruling yet where a court required the contract between the original creditor and the JDB.    Also, credit card agreements do not require a signature.  You're talking about the original credit card application, if one was signed.  Even then, most courts do not require it because use of the card constitutes acceptance of the agreement.   You use the card, you create a contract.

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7 minutes ago, BV80 said:

Regarding a collection letter and consumer's debt validation request, consumer's do not get to dictate what a debt collector must provide for validation.  The courts have already decided.  All that's required for validation is verification that the correct consumer is being contacted and that the amount claimed is accurate.  In the case of a credit card debt, a credit card statement showing the consumer's name, address, and the charge-off amount would suffice.

MAYBE if it was with the assignor/original creditor, but to say that a 3rd party has any right over YOU, based on a simple letter, is not justice. They are gonna have to prove it through a chain of evidence.

When one has only been sent a collection letter, no lawsuit has been filed, so there is no case to dismiss. when i write im writing in past, present and future tense. im just jumping ahead so people can see my main point which IS...PROVE IT! Let those guys know right from the start that your aren't playing games you want to see all the evidence that a consumer rights lawyer would ask for, that way they know who they are dealing with.

I haven't seen a ruling yet where a court required the contract between the original creditor and the JDB.    Also, credit card agreements do not require a signature. Mine Did.  Otherwise you could say well how do you identify that it was me and not an imposter? You're talking about the original credit card application, if one was signed.  Even then, most courts do not require it because use of the card constitutes acceptance of the agreement.   You use the card, you create a contract. How do i know it was me that used the card if i don't even know or have seen the contract in question? How do i know it was me who used the card, if i can't even see a true bill? How do I know to trust these guys based on NOTHING?! 

"Your honor I move to dismiss on the grounds of hearsay"

Absolutely no proof, other than an allegation of a card being used, im sorry you can't tie that to me without me seeing the agreement and on top of that "my purchases". How do I tell you it was me if you can't provide me with what i need to prove its me?

Assignment- How a debt can lose its Soul

https://debtorprotectors.com/lawyer/2013/06/05/Collection-Harassment/Assignment-%E2%80%93-How-A-Debt-Can-Lose-Its-Soul_bl8193.htm 

 

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9 minutes ago, janus said:

That is written by a CA lawyer for CA residents.   While all courts require an assignee to prove an assignment, each state court is different.   Some courts require more evidence than others.   Some courts require more to authenticate evidence than others.

You have to find out what YOUR state courts require.  

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2 minutes ago, BV80 said:

That is written by a CA lawyer for CA residents.   While all courts require an assignee to prove an assignment, each state court is different.   Some courts require more evidence than others.   Some courts require more to authenticate evidence than others.

You have to find out what YOUR state courts require.  

i threw that in cause it resonated on every level with me when i first saw it. And in my mind to prove anything, there will need to be evidence.

 

but if we are talking about third partiers, then we are talking about federal jurisdiction, i would appeal the case to a higher court, and get a consumer rights lawyer, and counter sue.

 

but first after sending them a certified letter letting them know it ain't gonna be easy. so how much money do they want to spend? how much energy? if they can show me the evidence i will be glad to settle assuming i concur...if not i guess its off to federal courts with my attorney. o

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On 6/8/2016 at 12:29 AM, janus said:

but if we are talking about third partiers, then we are talking about federal jurisdiction

Where did you get that idea?   It doesn't matter if a debt collection lawsuit is filed by an original creditor or a debt buyer, it's a state court case, not federal.

 

On 6/8/2016 at 12:29 AM, janus said:

i would appeal the case to a higher court, and get a consumer rights lawyer, and counter sue.

A case is not appealed unless you lose.  You can only countersue if you have a valid counterclaim.

On 6/8/2016 at 12:29 AM, janus said:

but first after sending them a certified letter letting them know it ain't gonna be easy. so how much money do they want to spend? how much energy? if they can show me the evidence i will be glad to settle assuming i concur...if not i guess its off to federal courts with my attorney. o

Again, after receiving a collection letter, debt validation does not require the information you claim.

You are confusing debt validation with a lawsuit.

I read the information on the toughnickel site.   Where's the statute or case law to support each opinion cited on that link?   Without statute or case law, it's nothing but the opinion of the person providing the information.  Courts don't care about our opinions.  They want laws or higher court rulings.

We've hijacked this thread enough.  If you want to start your own thread WITHOUT the "toughnickel" link and quotes, you're welcome to do so.

 

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12 hours ago, janus said:

he could still send a letter asking for validation and send it certified mail and not even go through the hassle of court, though i agree he could win, if there is extra info, then isn't that a good thing, cuz most people deal with this all the time...

Stop spamming this website with your garbage blog.  You are utterly clueless about the law.  I am going to start reporting all of the copy/paste crap you are posting on everyone's threads.

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On 6/6/2016 at 0:49 AM, Charlie56 said:

Defaulted on a Providian credit card in 2004. Lawsuit filed against me in Dec 2007. The lawsuit was dismissed Feb 2009.  Now have another collector (he says he represents law firm) threatening lawsuit for same debt. I live in Texas. Can they do this? I have received no correspondence from this company pertaining to this latest collection, only harassing phone calls. They have called my 85 year old mother, my ex-husband and step-son.

Any guidance would be appreciated.

Thank you.

 

 

Enough of the dumb nonsense. Back to the Op.  How was your lawsuit dismissed in 2009?  Was there a settlement agreement? Did they just dismiss voluntarily? Did the court dismiss for lack of prosecution?

I would suggest you call a few consumer attorneys who do FDCPA work in your state and explain to them what is happening.  One of them may be interested in helping you out if they feel there is already a violation and/or potential for more violations to come.

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12 hours ago, BV80 said:

Where did you get that idea?   It doesn't matter if a debt collection lawsuit is filed by an original creditor or a debt buyer, it's a state court case, not federal.

because the federal court is the one where action is taken that is more restrictive to the third parties, in that the 3rd party has to show you the contract...and most of the time they cannot.

A case is not appealed unless you lose.  You can only countersue if you have a valid counterclaim. that is my ultimate point,  the option of appeal, ultimatley they have to provide proof that the information they have is correct, because how do you know if the bill is even correct if they can't provide it to you? also you need to see the contract for your own protection becasue if they due attempt to sue you need to see the terms of that contract, becasue they may be out of line, like for example in a contract it will state if its going to be arbitrated verses going to court, also in the contract itt will have other terms you need to validate such as is the assignee allowed to add interest as an example. ultimately they have to show you the contract.

Again, after receiving a collection letter, debt validation does not require the information you claim. yes the initial dispute letter, which is only gonna give you an amount, address, creditor, not the details, in which you get to send another letter asking for that when you realize their is insufficient evidence regarding the bill.

You are confusing debt validation with a lawsuit. no, im just saying go ahead and let them know in the dispute letter that you want to see the true bill and so you can validate the charges, you can add your own terms, nothing against doing so.

We've hijacked this thread enough.  If you want to start your own thread WITHOUT the "toughnickel" link and quotes, you're welcome to do so.

How did i hijack the thread? Looks like its fitting. 

12 hours ago, BV80 said:

 

 

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1 hour ago, janus said:

How did i hijack the thread? Looks like its fitting. 

 

Most of the information you've posted is inaccurate and we've been addressing your opinions and issues vs.  what the OP needs and any questions he may have.

If you start your own thread, your questions and issues will be addressed.

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