BV80

AMAZING! Debt Collection Misinformation on the Internet.

3 posts in this topic

 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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Excellent point!  Thank you!

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