BV80

AMAZING! Debt Collection Misinformation on the Internet.

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 BEWARE OF SOME SELF-HELP SITES AND ARTICLES!!!

I understand that this article is fairly wordy and long, but I believe it's important because of all of the misinformation available on the internet.  Please take a few minutes to read it.

A self-help site or article is one that enables a person to help himself.  Yes, this is a self-help site.  In the context of sites such as this one, it enables a reader:

1.  to help himself if he cannot afford the services of an attorney to help fight a debt collection lawsuit;  

2.  to properly deal with debt collection letters;

3.  to deal with negative entries on a credit report;

4.  to research and learn about consumer laws such as the Fair Debt Collection Practices Act (FDCPA) and Fair Credit Reporting Act (FCRA).

A large portion of the information here is related to lawsuits brought by credit card debt collectors.  Those debt collectors are usually debt buyers (also known as junk debt buyers or JDBs).  

The difference between this site and many others is that the "regular" members here do not rely merely upon their own opinions when offering suggestions to readers.  The opinions offered are based upon real experiences, court rules of civil procedure, state and federal laws, and court rulings.  If  suggestions are offered that cannot be supported with by law, procedure, or court rulings, readers will be informed that the suggestions are the opinions of those who offered them.

In the event you are contacted by a debt collector, many state and federal laws and court rulings are referenced throughout this site.  While some of the rules civil procedure of particular courts in some states are referenced on this site, not all of the rules of all courts in all 50 states are referenced.  If you are sued for a credit card debt, you MUST research.  You must learn learn YOUR court's rules of civil procedure and how YOUR courts have ruled on particular issues.  

The purpose of this thread is to warn readers of sites that offer suggestions, advice, and opinions without supporting law and/or court rulings.

Over the years, consumers have come here for help when information on other sites has failed them.  For instance, they disputed a debt using a useless letter they found on the internet.  When the debt collector doesn't comply with the letter, those posters don't know what to do.  The reason the debt collector didn't comply with their letter is usually because he wasn't required to do because the letter had no basis in law.

Some consumers come here after being sued and following advice offered elsewhere that didn't work out for them.  The reason is usually because the advice was faulty.

I've reviewed some websites and videos.  There are several websites that are similar to this one which provide statutes (law) and court rulings to support claims.   However, there are many that should be avoided.

 

RED FLAGS

1.  "Securitization" is offered as a defense.  

This has been rejected by courts in which that defense was raised.  Here's a few rulings:

Capital One Bank (USA) NA v. Reese, Ohio Court of Appeals (2015)

"[N]umerous courts have held that simply because a debt is securitized, that does not mean that the original beneficiary or owner of the credit account * * * can no longer enforce its right to collect upon that debt."

Lane v. Vitek Real Estate Indus. Grp.(E.D. Cal. 2010)

"The argument that parties lose their interest in a loan when it is assigned to a trust pool has also been rejected by many district courts."

Tostado v. Citibank (S. Dakota), N.A. (W.E. TX, 2010)

"Tostado contends that Citibank's assignment of the receivables from his credit card account into a trust as part of an assent-securitization transaction prevents Citibank from collecting on Tostado's credit card account.  As previously noted, however, Citibank has demonstrated that it retains ownership of the accounts."

 

2.  The site offers the "debt validation" letter in the following link.

https://www.creditinfocenter.com/community/topic/329454-deceptive-validation-letter/

As you can see from the information in the link, very little in that letter is supported by law.  It proves that the people suggesting the use of that letter have done NO research at all into the details mentioned in the letter.  Years ago, someone wrote that letter, and people just copied and pasted it because it sounds good.  Considering the fact that those people have done no research into requests made in that letter, I would have to believe they've done no research into anything else they might suggest.

There are some versions of that letter that include a requirement for the debt collector to respond to the request within 30 days.  That's another claim that's not supported by the FDCPA and the courts.  It's another red flag that shows the person who suggests that letter has failed to research court decisions on various FDCPA issues.  

DO NOT FOLLOW ANY ADVICE FROM A PERSON WHO SUGGESTS THAT CONSUMERS SEND THAT RIDICULOUS LETTER!

 
3.  A site that claims something to the effect of "follow this advice and you will win".  

No advice or method is foolproof.  That is especially the case if the advice is not supported by law.

What is the experience of the person making the claim?   Is he an attorney?   If he's a consumer who was sued and defended himself, what was the outcome?

In the event he's a consumer who was sued and defended himself (Pro Se), had to oppose a motion for summary judgment and/or argue his  defenses in front of a judge, and the judge ruled in his favor, he's got some advice to offer.

However, if the plaintiff (JDB or original creditor) merely dismissed the lawsuit after the defendant/consumer filed an answer or a request for production of documents, be very wary of his advice.  The reason is because the court did not make a ruling on the defenses in his answer to the complaint.  If the plaintiff had not dismissed the lawsuit, the judge would have had to rule on the plaintiff's claims and the defendant's defenses.  Only upon a ruling by the court would it be known if the defenses raised by the defendant were valid.

When a plaintiff dismisses after a defendant files an answer, the defendant doesn't know if his defenses were valid or not.  He doesn't know  why the plaintiff dismissed.  He may claim the plaintiff dismissed because he showed the plaintiff he knew what he was doing, but that's a bunch of baloney because he does not know how the court would have ruled.
 

4.  The site offers  "one size fits all" advice.

As stated at the beginning of this article, it's important to know your state laws, court rules and the rulings from your courts.   Unlike this site, some sites do not reference the laws and court decisions from individual states.   They will offer a ruling or two from one or courts and advise that those rulings can be used in any court in the country.

You can use the rulings, but your court does not have to abide by them unless they were made by the higher courts in your state.   How a court in Pennsylvania has ruled has no effect on a court in Michigan, Arizona, or in any other court in the country.

Those sites will advise that debt collection plaintiffs must always provide certain information in order to win their lawsuits.   However, plaintiffs only need to provide what your state laws and/or courts require of them.


5.  The site offers a list of "defenses" that will include "Scienti Et Volenti Non Fit Injuria".  

That term means "an injury is not done to one who knows and consents to the act."   The defense claims that a debt buyer willingly purchased a defaulted debt and took the chance that you would not pay it.  By taking that chance, the debt buyer injured itself.

The trouble with that defense is that not one court that has ruled in favor of that defense in connection with debt buyers and credit card debt.   The reason is that various state courts throughout this country have ruled that assignees (which include debt buyers) "step into the shoes" of the original creditor.  That means that debt buyers can legally collect debts and, if necessary, sue for the full amount of those debts.

As usual, those who suggest that defense offer no court ruling relating to debt buyers that supports the defense.    If the person who advises you raise that defense has not researched the fact that no court supports that defense, it's obvious he hasn't researched the other defenses he may list.

 
6.  Little or no law and/or applicable court rulings are cited to support the information and advice.  

If what is offered is valid, there are usually statutes and/or court rulings to support it.  Information and advice without applicable laws and supporting court rulings  is nothing more than the opinion of the author/host.  

Sites that offer the "debt validation" letter mentioned in Red Flag #2 are ones that rarely offer court rulings to support information and advice.   As you can read from the information in the link to letter,  this site provides court rulings to show exactly what the law does and does not require.

The fact that some sites do not provide laws and court rulings indicates the authors/hosts have not done research into the validity of the advice.   Courts are not interested in my opinion or your opinion.  They're not interested in the opinions of invisible individuals on the internet.  They want law and/or higher court rulings.  Small claims courts (magistrate, justice courts, etc.) rely on state laws and on the rulings of the higher courts in their own states.

I recently read an article in which the author claims that if you hang up on a debt collector, he cannot you again for 7 days yet nothing was cited to prove that claim to be valid.   How the author came up with that claim is unknown.

There are sites which claim that signed contracts must be provided in order for a credit card company or debt buyer to collect on a credit card debt in court.   This would only be true if your court has made such a ruling or you state laws require  it.   Otherwise, it's not true.

 

7.  Sites that mention right of subrogation in relation to  credit card debt.

The people on those sites claim that debt buyers have to prove they have a right of subrogation in order to sue you for a credit card debt.  Of course, no law or court ruling is cited to support that claim.  In fact, if you google "subrogation" and "credit cards", you'll find those sites but nothing else.  You will not find a court ruling that even mentions subrogation in connection with credit card debt.  That means those people are telling readers to claim a defense that is not supported by law and cannot be proven. 

If there's nothing from the courts connecting subrogation to credit card debt, how do you convince a judge that a debt buyer must prove its "right of subrogation"?    You will not be able to do so.  You can claim that the debt buyer must prove it, but  "because I read it on a site on the internet" does not support your claim.  To date, subrogation is NOT a valid defense to a credit card debt.

 

8.  Those who tell you to send a request for production of documents when you have not been sued.

A request for production of documents is a step to take after being sued and is provided for in your court's rules of civil procedure.   To send it any other time simply tells a debt collector that you have no idea what you're doing.

The point is to be careful about the advice you choose to follow.  Do you want to follow unsupported opinions? Or do you want to follow advice that is supported by law and the courts?

It's your call.

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10 hours ago, BV80 said:

The point is to be careful about the advice you choose to follow.  Do you want to follow unsupported opinions? Or do you want to follow advice that is supported by law and the courts?

Excellent, important post, BV. Thank you!  If I could add one thing to your point above it would be to "trust, but verify" even advice supported by law and the courts.  Doing your own careful reading of rules, statutes and, especially, court rulings develops your legal mind. Reading judges' opinions instructs you on how they view and find "the facts," the evidence for those facts, and how they interpret and apply the law to the facts they find. This exercise will help you look at your own case with a much keener eye. Of course, this all takes time and a mind that isn't overwhelmed by terror. 

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Any opinion on this article?  Written by a California lawyer (Clinton Rooney). Published in the March 2010 Shriver Center for Poverty Law newsletter.

The title of the article is "Defense of Assigned Consumer Debts."  He makes sure to emphasize that he practices in California, so not everything will apply the same -- but most things will.  The focus of the article is on lawsuits from Debt Buyers.

https://www.povertylaw.org/files/docs/article/chr_2010_march_april_rooney.pdf

It seems to give a good 360 of the whole process.  I would love for the experts here to give it a glance.  I tried my best to do a forum search before posting this, but found no discussion of this article.  Thought it had some relevance in this thread, as it could be a primer of sorts.

Thank you, everyone!!

Defense_of_assigned_consumer_debt_chr_2010_march_april_rooney.pdf

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And here is a second article from the Shriver National Center on Poverty Law which I found incredibly useful (remember, I am in California -- things in these two articles may not apply to your state)

https://www.povertylaw.org/files/docs/article/chr_2012_may_june_holland.pdf

It was written by Peter A. Holland, a professor at the University of Maryland School of Law.  This article builds on the article by Clinton Rooney that I mention in the post above.

Defending_Junk_Debt_Buyer_lawsuits.pdf

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That article was probably cutting edge stuff when it was written, but is worthless today. The industry has changed, so things like broken chains of custody and flawed documentation are things of the past. Anyone who follows the advice given will probably hear the judge say "Ha - that's adorable! Judgement for Plaintiff."

 

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12 minutes ago, Goody_Ouchless said:

That article was probably cutting edge stuff when it was written, but is worthless today. The industry has changed, so things like broken chains of custody and flawed documentation are things of the past. Anyone who follows the advice given will probably hear the judge say "Ha - that's adorable! Judgement for Plaintiff."

 

Dang, @Goody_Ouchless -- that's a pretty bold statement you're making there.  So, I can't just let you make it and leave.

In the interest of helping current and future members of this great forum.  Would you please expand your answer?

Thanks a million!

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I think I did, but OK.

There was a time when debts bounced around between owners and documentation either didn't exist or was cobbled together (often using methods that bordered on forgery). Sites like this came along to help people, and various State's took the industry to task over these practices. Also (and perhaps most importantly) advances in the use of computers allowed for these debt records to be accurately and thoroughly bundled and transferred to their new owners. For example, when I was first sued (around when this article was written), the "evidence" consisted of bills-of-sale that were dated before the account ever went into default. When were last sued, two or three years later, the plaintiff said "how many statements of charges and payments do need, because we can get them all." And, finally, most States have adopted Federal Rules of Evidence regarding self-authenticating business records, meaning that correctly worded affidavits can take the place of a live witness.

So his advice old, stale and worthless, since the industry has adapted to the challenges mentioned, above: "Standing" doesn't work because the bill-of-sale, affidavits and billing statements prove they own the account. "Chain of Custody" doesn't work because settlements of the various lawsuits brought by States have led to an industry-wide policy of debt buyers not reselling debts. As for legal technicalities and  "magic discovery," most judges look at a pile of credit card statements with your name and address and put an end to the party right there.

There are only four things that work in today's environment:

1) Arbitration

2) Identity Theft

3) Statute of Limitation - in the extremely rare case that they bring a time-barred case (can't recall last time we saw on of those)

4) Unique State Rules - California has the whole CCP thing that seems to work. Texas has rules about discovery that appear to make some plaintiffs move on to easier targets. A couple other States may still have case law that, if push comes to shove, requires things like a live witness, but even those can fall to Adoptive Business Records rules.

 

 

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1 hour ago, LoveIsPower said:

that's a pretty bold statement you're making there.

It isn't if you have read the vast majority of experiences here from people who, in the last 3-5 years, have tried any of the strategies described in those articles.

I see that you're from California, so that would explain why your personal experiences more closely match what you have read elsewhere. Unfortunately, the rest of the country does't enjoy the optimism you've come to expect being a resident of California.

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Thanks for replying, @Goody_Ouchless

One of my pet peeves in this great forum of ours are the people who comment with a "vomited" and extremely negative answer -- in the process scaring the -isht out of people who are already scared and asking for help -- and then leave. 

Most often these people offer no solutions whatsoever. 

Again, thank you for replying. 🔥❤️🔥

On 10/9/2019 at 3:30 PM, Goody_Ouchless said:

And, finally, most States have adopted Federal Rules of Evidence regarding self-authenticating business records, meaning that correctly worded affidavits can take the place of a live witness.

In my humble opinion, here is where I think we have to be careful, and make sure we point out CLEARLY words like "most states" when we are trying to help people. 

Sweeping generalizations are extremely dangerous in general (besides being faulty logic).  But, especially when it comes to the law.

I'm in California, so I tend to stick to helping California folks.  That's my forte.  That's where I've won cases.  That's where I've actually guided other members of this forum to their own wins.  I would never presume to know the intricacies of the other 49 states, and always make sure to point that fact out when I become involved in a thread.

Your very last point (#4), pointed out the fact that for California, Texas, and "a couple of other states" it may be different.  Thank you for doing that.

Iin the spirit of "helping" (If I may be so bold), could we have, instead, led this discussion with something like:

"For some states, like California, Texas, and a few others, information like this may still be useful.  But be very careful, since a lot of the states, like  (insert states here), have ruled differently (insert examples here), so you must be very thorough in making sure this applies to YOUR state and YOUR specific case."

I mean ... "worthless" is such a strong word.  Isn't it?

23 hours ago, Harry Seaward said:

It isn't if you have read the vast majority of experiences here from people who, in the last 3-5 years, have tried any of the strategies described in those articles.

Wonderful!  This is crucial information that we must make sure to point out to newcomers looking at a pinned post for the first time!

But ... "worthless"?  🤔

On 10/9/2019 at 3:30 PM, Goody_Ouchless said:

So his advice old, stale and worthless, since the industry has adapted to the challenges mentioned, above: "Standing" doesn't work because the bill-of-sale, affidavits and billing statements prove they own the account. "Chain of Custody" doesn't work because settlements of the various lawsuits brought by States have led to an industry-wide policy of debt buyers not reselling debts. As for legal technicalities and  "magic discovery," most judges look at a pile of credit card statements with your name and address and put an end to the party right there.

There is a lot to unpack in this paragraph:

Is the advice old?  Well, the first article was written 9-years ago, and the second 7-years ago.  The age of the article must definitely be consideredAlso, in which states the attorneys practice (the first one in California and the second one in Maryland -- both authors point out this fact).  [Although, in the world of the law we still refer to things much older than this, right?]

Is it "stale and worthless" -- we already addressed this above.

The sweeping generalization made (this "doesn't work," this "doesn't work," this "doesn't work") that presupposes that every case, in every state, is exactly the same (except, perhaps, for those in point #4) ...
Besides this being a fallacy of logic ...  Is it helpful?

"Chain of Custody" doesn't work because settlements of the various lawsuits brought by States have led to an industry-wide policy of debt buyers not reselling debts."
Hmm ... someone I just helped win a case had a debt that was sold three (3) times.  Yep ... four (4) different companies.  And this win happened in the last two weeks (suit filed in 2018).  Can this be happening only in California?  Maybe.  Doubt it, though.  But, I am sure as heck not making any sweeping generalizations, or telling everyone that I know it for a fact.

On 10/9/2019 at 3:30 PM, Goody_Ouchless said:

"Standing" doesn't work because the bill-of-sale, affidavits and billing statements prove they own the account.

So ... here is where I am genuinely curious (I'm serious).  Now, remember, I am in California.  But ...

1. Other states don't let you face the affiant (person signing the affidavit) in person?

2. ANY piece of paper that anyone chooses to propound is AUTOMATICALLY ACCEPTED by the courts? 
So my 14-year-old niece can go on photoshop and doctor up some billing statements, I can grab Microsoft Word and type up some Bill of Sale, I can go online and find out your address, slap it all together, sue you, and I DON'T HAVE TO PROVE TO THE COURT THE VALIDITY OF THESE RECORDS??

When did the burden of proof switch to the defendant in these states??

Or is all I need to do is to get Tricky Sally Sue to sign on a piece of paper saying, "Yep, I do declare under the law of the state of (insert state here) that all of these papers here are authentic."

And the court AUTOMATICALLY ACCEPTS this!?!?

No matter who she works for?  What her job is?  When she worked there?

Am I missing something here?? 

"As for legal technicalities and  "magic discovery," most judges look at a pile of credit card statements with your name and address and put an end to the party right there."

I mean .... I've seen some pretty funky Bills of Sale (no person or account named, dates that don't match, on and on ...). 
So ... nobody questions this?  No one brings this up in court?  Tricky Sally Sue just has to sign a "correctly worded affidavit" and NO MATTER WHAT ... EVERYONE IS TOAST?

REALLY!?  

I mean ... really?  (I'm serious)

On 10/9/2019 at 3:30 PM, Goody_Ouchless said:

1) Arbitration

I keep hearing that arbitration is amazing and works like a charm.  I've never used it, so I'm not going to even begin to offer an opinion on it.  And I always tell everyone to PLEASE explore ALL options, including arbitration.

After all, I'm not a lawyer.

I'm definitely grateful to everyone who's blazed the trail for this option that has helped so many!

IN CONCLUSION

I do hope that you guys take the time to answer my questions (I'm genuinely curious and it would really HELP those new to this forum and this pinned thread!)

I always try to be helpful in pointing out what may work and may not -- making sure people explore EVERY OPTION to the fullest -- without making any sweeping generalizations ("Well, this worked for me, so it will obviously work for you." or "This didn't work for me, therefore it will not work for you.")

After all, I'm not a lawyer, and a particular strategy may work in a specific case, depending on the SPECIFICS of THAT CASE ... which may differ a lot or a little from a similar case.

If everything was black and white as far as the law went ... then we wouldn't need the Courts of Appeal, State Supreme Courts, or US Supreme Court.

Right?

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3 hours ago, LoveIsPower said:

Wonderful!  This is crucial information that we must make sure to point out to newcomers looking at a pinned post for the first time!

But ... "worthless"?  

Spend a few hours and read non-arbitration stories from here over the last 5 years.  Weigh the 'winners' (actual court wins/dismissals, not settlements) vs. those slapped with court judgments.  Then you can let us know if you think "worthless" fits or not.  Lots of us have been around here long enough to actually watch the tide change.  For me at least, it's the reason I'm a cynic any time someone comes along saying "aww, pshaw!  I did it, so can you!"

3 hours ago, LoveIsPower said:

The sweeping generalization made (this "doesn't work," this "doesn't work," this "doesn't work") that presupposes that every case, in every state, is exactly the same (except, perhaps, for those in point #4) ...
Besides this being a fallacy of logic ... Is this truly necessary?  Is it helpful?

90% of anything is subject to "sweeping generalization" without scrutiny.  And it is helpful because being intellectually honest with people keeps them from wasting months or years of their lives on an outcome the 'oldtimers' saw coming a mile away.  What's not helpful is stringing someone along saying "you can win this if you just work hard enough and follow these 347 steps exactly!!.....Aww, you lost?  Yeah, it's because you did step # 117 after #122.  Better luck next time, mate."

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18 hours ago, Harry Seaward said:

Spend a few hours and read non-arbitration stories from here over the last 5 years.  Weigh the 'winners' (actual court wins/dismissals, not settlements) vs. those slapped with court judgments.  Then you can let us know if you think "worthless" fits or not.

Are we really going to get into semantics here?

Ok ... The definition of the word "worthless" is (Oxford American) "having no real value or use."

I'm in California.  I keep reading stories from pro pers winning in California. I've helped people win in California.

So, obviously SOMEONE, SOMEWHERE, got value and use of it!!

This is why using the word "worthless" is ... well, it doesn't quite fit, does it? 

Now ... if you write ... "I think this strategy is BETTER.  As a matter of fact, statistically, it seems to work more often than the other one. Here, let me show you ..."  NOW WE'RE HAVING A SENSIBLE CONVERSATION!

Or if you say, "In some states, like (list states here) it seems to work well. But be careful, in these other states (list states here), it doesn't work so well.  Statistically, arbitration is working better ..."  NOW WE'RE HAVING A SENSIBLE CONVERSATION!

Using words like worthless in this context just makes you sound glib.  And I'm sure that's not your intention.  Your intention is to help people.

18 hours ago, Harry Seaward said:

For me at least, it's the reason I'm a cynic any time someone comes along saying "aww, pshaw!  I did it, so can you!"

As to the, "aww, pshaw! I did it, so can you!"  I'm not sure if you are directing this comment at the attorneys that wrote the articles ... who never say anything of the sort.  These articles are just an overview of JDB lawsuits, the law, and strategies to look at.  If you read them, they do not offer anything close to, "do this and you will win," or, "aww, pshaw! I did it, so can you!"

If you are talking about members in this forum who offer encouragement to people who are scared, having no idea what to do ... well, @Harry Seaward ... if you see extending kindness, encouragement, and guidance to someone so they can also win their case (just like you won your case in the past, aka. "I did it, so can you."), as a "BAD thing" ... then why are you still commenting in this forum?

If you are not here to offer a helping hand, saying to someone in need, "This is my experience. I did it. So can you." or "This is the experience of these many people in this state, if they can win their cases, so can you ... then ... why are you here?

Does extending kindness to someone in need make you feel uncomfortable?

Everyone is different, and that is great.  If you want to be a "just the facts ma'am," person, that's great for you.  But, why is telling someone that they also can win their case a "BAD thing"??

🤔

18 hours ago, Harry Seaward said:

90% of anything is subject to "sweeping generalization" without scrutiny. 

Hmm ... nothing is subject to a "sweeping generalization" without scrutiny.  That's the point of identifying a "sweeping generalization" ... it is (literally) ILLOGICAL.  A "sweeping generalization" is (literally) FAULTY LOGIC. 

 

18 hours ago, Harry Seaward said:

What's not helpful is stringing someone along saying "you can win this if you just work hard enough and follow these 347 steps exactly!!.....Aww, you lost?  Yeah, it's because you did step # 117 after #122.  Better luck next time, mate."

I would venture that no one in this forum wants to "string someone along" only to see them lose.  

And I would also venture to think that NOT EVERY STRATEGY WORKS EVERY TIME?

Or ... heck, maybe I'm wrong.  Is there, in fact, one strategy that unequivocally has worked ONE HUNDRED PERCENT OF THE TIME with EVERY SINGLE PRO PER who has tried it, IN EVERY STATE in the U.S. of A.?

If so ... then we better WRITE UP A POST IN DETAIL paint-by-numbers style, PIN IT, and then proceed to DELETE EVERY OTHER THREAD IN THIS FORUM ASAP!!  That way every new person that needs help can just go there, follow the instructions, and win!

---

I'm not an attorney. 

And I'm also not omniscient. I know this without a shadow of a doubt.

Anyone who says he is, is in the wrong business.  And most definitely in the wrong forum.

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9 hours ago, LoveIsPower said:

Are we really going to get into semantics here?

You tell me. You're the one picking apart the meaning of worthless. Most people will agree that something that is useless to 90% of its target audience can be labeled as worthless. In the car business, there is a saying - "there's an azz for every seat." Just because someone is willing to pay $5,000 for a pile of rust doesn't mean that pile of rust is intrinsically worth $5,000.

As for California, there's plenty of threads here that talk about how to deal with JDBs there. We always point people to those threads when we see a user is asking about being sued by a JDB in Cali. To that end, we don't need to waste time and energy writing out 3 paragraphs of disclaimers each time we make a post here. People are smarter than you seem to think. 

I can tell you right now I'm not going to spend my time reading the entirety of your repetitive and voluminous posts here.  Maybe others will have the time. I don't. I'll read the first couple of sentences and then maybe skip around to see if anything else catches my eye. Just so you know. 

 

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Of course nothing is 100%. 

And, things have changed tremendously in the decade plus since the time when my debts went under.  In fact, the later cases were very different from the early cases.   The landscape was changing year to year and sometimes month to month.  

And, there are always oddball cases.  I beat all OCs in arbitration, including AmEx and Discover, the last two due to some flukes that were uncommon back then and are unheard of these days.  

 

However, there are ways to deal with cases that work in MOST states. 

Things may be different in California, Florida, Minnesota, Mississippi, Texas, Wisconsin, etc.  

Things may be different if there are legitimate counter claims.  These are rarer than in the past.  

There are also a number of weird things that can happen in a case.  Trust me, I have seen truly strange things happen.  

Things may be different if your judge doesn’t act the way one would expect a judge to act.  

Your strategy may be different if your situation is unusual.  

Few of us are attorneys.  Those who are attorneys don’t know all the details of anyone’s case and can’t give specific advice   

What we do is show what has or hasn’t worked recently.   

But any individual case may be different. 

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4 hours ago, Harry Seaward said:

You tell me. You're the one picking apart the meaning of worthless. Most people will agree that something that is useless to 90% of its target audience can be labeled as worthless.

Tell that to the 10 % who could have used that strategy to win.

4 hours ago, Harry Seaward said:

As for California, there's plenty of threads here that talk about how to deal with JDBs there. We always point people to those threads when we see a user is asking about being sued by a JDB in Cali.

See, was that so hard?  Didn't see the word "worthless" in those two sentences.

4 hours ago, Harry Seaward said:

I can tell you right now I'm not going to spend my time reading the entirety of your repetitive and voluminous posts here.  Maybe others will have the time. I don't. I'll read the first couple of sentences and then maybe skip around to see if anything else catches my eye. Just so you know. 

Beautiful.  Your perogative.

Funny thing is, if you took a second, you would realize from the beginning that I am not disagreeing with you.  Perhaps some strategies apply better in most of the cases around the nation.  But saying that a strategy is "worthless," and dismissing it offhand, when it could actually help SOMEONE, is silly.  That was my original problem with @Goody_Ouchless coming in, writing that, and leaving.

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3 hours ago, Goody_Ouchless said:

My engaging in an argument that is best handled in a Meeting, or Session, is probably not in your best interest. 

Have no earthly idea what this means.

You are the one who started the discussion/argument with the "worthless" comment.

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3 hours ago, BackFromTheDebt said:

Of course nothing is 100%. 

And, things have changed tremendously in the decade plus since the time when my debts went under.  In fact, the later cases were very different from the early cases.   The landscape was changing year to year and sometimes month to month.  

And, there are always oddball cases.  I beat all OCs in arbitration, including AmEx and Discover, the last two due to some flukes that were uncommon back then and are unheard of these days.  

 

However, there are ways to deal with cases that work in MOST states. 

Things may be different in California, Florida, Minnesota, Mississippi, Texas, Wisconsin, etc.  

Things may be different if there are legitimate counter claims.  These are rarer than in the past.  

There are also a number of weird things that can happen in a case.  Trust me, I have seen truly strange things happen.  

Things may be different if your judge doesn’t act the way one would expect a judge to act.  

Your strategy may be different if your situation is unusual.  

Few of us are attorneys.  Those who are attorneys don’t know all the details of anyone’s case and can’t give specific advice   

What we do is show what has or hasn’t worked recently.   

But any individual case may be different. 

Now THIS is a SENSIBLE CONVERSATION!!!  THIS right here!!  Thank you @BackFromTheDebt!!

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19 minutes ago, LoveIsPower said:

Tell that to the 10 % who could have used that strategy to win.

We do. The second part of my post, that you also quoted actually, says that we tell Cali people to use their unique state laws to their advantage. The info we are squabbling over is worthless to the rest of the country. I don't understand what you're taking issue with. 

(Thanks for trimming your posts down.)

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4 minutes ago, Harry Seaward said:

The second part of my post, that you also quoted actually, says that we tell Cali people to use their unique state laws to their advantage.

My point exactly!  You are great at pointing people in unique situations (like in California), to look into using a different strategy.  This is brilliant!

5 minutes ago, Harry Seaward said:

I don't understand what you're taking issue with. 

My issue was with @Goody_Ouchless coming in, saying "this is worthless," and just leaving.  When, in fact, like you just said, other people in some parts of the country (like in California) may actually benefit from  it.

If you guys came in at the beginning and said -- "A warning.  This stuff doesn't work in most of the country any more.  Be vary careful.  In some states, like California, it may still work, but not for most of the country." -- then we would have a helpful discussion.

But both of you led with a dismissive, "this is worthless."

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19 minutes ago, LoveIsPower said:

My issue was with @Goody_Ouchless coming in, saying "this is worthless," and just leaving. 

So it's the curt delivery and not the content? 

Unless I'm a sucker and don't know it yet, no one here gets paid to contribute. That means we don't have incentive to hang out to wax nostalgic with every post we make. Some do it anyway, and i admire them. But that doesn't mean advice given here is any less valuable if it comes in a smaller package. 

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17 minutes ago, Harry Seaward said:

So it's the curt delivery and not the content? 

Nope.  Again ... you guys came in and said it was "worthless."

When, as you just pointed out, some parts of the country can benefit from it (like California), and that you are sure to point those people to the appropriate California threads.

19 minutes ago, Harry Seaward said:

That means we don't have incentive to hang out to wax nostalgic with every post we make.

You don't have to write down a long post.  You could have said:

"A warning.  This stuff doesn't work in most of the country any more.  Be vary careful.  In some states, like California, it may still work, but not for most of the country." 

#BOOM

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@LoveIsPower

Arbitration has been extremely successful in causing debt buyers to dismiss lawsuits.  I can only recall one or two instances in which JDBs paid the fees to commence arbitration.

As has been pointed out, things have changed a bit since those articles were written.  It’s also a fact that some states are more “consumer friendly” than others.

1.  California has some rules not available in other states.  Namely CCP 96 and 98 along with the CA Supreme Court decision in Mesa v. Portfolio Recovery Associates, LLC.   We have learned that JDBs do not want to comply with those rules.  As a result, lawsuits are dismissed without defendants having to delve into the issues of standing, authentication of business records, etc.

2.  Mr. Holland stated that he had never seen a JDB that could prove standing.  Well, perhaps he hasn’t seen it according to his standard of proof, but there are plenty of rulings from state courts of appeals in favor of JDBs.   

3.  In regard to evidence, something neither author addressed is the “adoptive business records doctrine” which allows third parties to authenticate the business records of another business as long as the third party relies on those records.  Tennessee even has a separate statute for it  

TN Code 47-22-302(a) and (c)

Records that are considered records of regularly conducted activity for evidentiary purposes.

(a)  A creditor's records shall include, but are not limited to, written or electronic records of an original creditor, issuer, or succeeding creditor that have been acquired by the creditor through a contractual agreement, an account purchase transaction or assignment in the creditor's regularly conducted business and such records are:

(1)  Incorporated as a business duty into the records of the creditor's regularly maintained records; and

(2)  Relied upon in the creditor's regularly conducted business activity.

(c)  The records described in this section may be submitted as records of regularly conducted activity pursuant to Rule 803(6) of the Tennessee Rules of Evidence.

That makes it a bit tough on defendants.

4. Those articles were written before the CFPB sued Midland and Portfolio.  The Consent Decrees between the Bureau and the JDBs offer a sort of road map to victory for JDBs whose attorneys follow them.  

For instance, one of the requirements in the Decrees is that, in a lawsuit, Midland and Portfolio must provide

A certified or otherwise properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive owner, including Encore. Each of the documents evidencing the transfer of ownership of the Debt must include a specific reference to the particular Debt being collected upon;

JDB attorneys who care about wins for their clients have followed that requirement and provided affidavits from original creditors that state a particular account was sold to the JDB and records are accurate.  

5.  No matter the application of the articles to the present time, the information offered requires research.  Some posters who come here do not want to take the time and effort to do that research.   They want us to do the work for them.  When we don’t do all the work, they may end up falling for the drivel found on the internet written by idiots who claim to have all the answers.  They will copy and paste that drivel and wait for an outcome.  

We routinely advise posters to learn their court rules.  This site is full of information regarding affirmative defenses and authentication of business records as well as case law from states around the country.  Anyone who spends time researching this site will learn that they must defend based upon their state’s court rules and court decisions.   They must determine what their courts require to prove standing, breach of contract, etc.

In other words, we have tried to provide posters with more than “write this” or “make this claim”.  When possible, unlike many sites and articles found on the internet, we have offered relevant case law to support possible defenses to allegations and oppositions to motions for summary judgment based upon individual posters’ locations. 

 

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1 hour ago, LoveIsPower said:

You are the one who started the discussion/argument with the "worthless" comment.

I was being nice, which always seems to get me in trouble. Instead of "worthless" I should have said "dangerous." 

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1 hour ago, LoveIsPower said:

You don't have to write down a long post.  You could have said:

"A warning.  This stuff doesn't work in most of the country any more.  Be vary careful.  In some states, like California, it may still work, but not for most of the country." 

I've said a half dozen times now that we do exactly this when we are talking to someone in California being sued by a JDB. There's no point to give a "warning" in every post where the warning won't apply to 90% of the people reading it. Again, people are smart. They can ask if they're genuinely confused about posts directed at california cases vs. general topics of discussion.

Anyway, I sense that you're just arguing to argue now. I've said my peace. Good day. 

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