RobinR

Some opinions, please

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A few months ago, I received a debt collection letter from Midland Funding.  I found a validation letter on another site and sent it to Midland.  All they sent me was a copy of the original creditor’s charge off statement.  

I have been doing more research and from what I have found on this and other sites, the letter I sent requested things that were not required for Midland to send me.  

Does anyone have any opinions about this article?   I know the letter is wrong   What do you think about the rest of the advice?

 https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors?utm_source=maven-coalition&utm_medium=hubpages&utm_campaign=liftigniter&utm_content=hp-related

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I don't need to see more than "toughnickel.com" to be able to tell you it's a bunch of nonsense.

What midland sent you is considered validation. If you haven't been sued, best to just lay low until you are.

Who is the original creditor? Right now arbitration is the most effective weapon in our arsenal for dealing with JDBs, but Cap1 removed arbitration about 10 years ago and citi has a "small claims" exemption that prohibits arbitration in cases brought in a "small claims" court.

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You're in luck. Synchrony cards have consumer-friendly arbitration clauses.

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16 hours ago, Goody_Ouchless said:

You're in luck. Synchrony cards have consumer-friendly arbitration clauses.

Thank you.   That article I linked mentions this site and arbitration, so I came here and found the arbitration article.  It kind of eases my mind in case I get sued. 

I’m not very smart about this stuff because I’m just starting to learn.  That’s why I’m wondering about what else might be wrong with that other article.  

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11 hours ago, RobinR said:

That article I linked mentions this site and arbitration

Interesting.  I think that's a fairly recent change to that article because I don't remember seeing it when I read through the article a few months ago.

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On 11/30/2018 at 4:20 PM, RobinR said:

 Does anyone have any opinions about this article?   I know the letter is wrong   What do you think about the rest of the advice?

 https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors?utm_source=maven-coalition&utm_medium=hubpages&utm_campaign=liftigniter&utm_content=hp-related

Those terrible discovery items in that article have been floating around the internet for years and I can't even begin to imagine how many people have lost their case after thinking they had struck gold.  The defenses listed, with the exception of #1 and #3 are also terrible and will get you nowhere besides making a fool of yourself before the court.   

 The person mentioned who won his case in Idaho did everything right.  I have always said that if you are able to defeat a JDB's MSJ then you have won.  He not only raised sufficient doubt on the JDB employee's sworn affidavit but also another from the OC.  The points he brought up are excellent. They are unique as most defendants solely attempt to disqualify the affiant from being able to know anything about the OC's record keeping.  What this JDB expected to be an iron-clad bullet proof reinforcement with a second affidavit from the OC came back to bite them big time.

Take heed, Harry.  You must have overlooked that part too or you would have been pounding your fist on your desk with your head hung low, "Oh, no! Not again! This can't be happening in 2018... Texas, Florida, and now Idaho..."    

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2 hours ago, texasrocker said:

I have always said that if you are able to defeat a JDB's MSJ then you have won.

I defeated the first MSJ and lost on the second identical one in the same case.

I have always said winning in court is pure luck. 

But, really, there's absolutely no reason a defendant can be certain that they will win a trial just because the court declines to grant a summary judgment motion. All it means is the court wants to hear more from the parties before making a ruling. 

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2 hours ago, texasrocker said:

Those terrible discovery items in that article have been floating around the internet for years and I can't even begin to imagine how many people have lost their case after thinking they had struck gold.  The defenses listed, with the exception of #1 and #3 are also terrible and will get you nowhere besides making a fool of yourself before the court.   

 The person mentioned who won his case in Idaho did everything right.  I have always said that if you are able to defeat a JDB's MSJ then you have won.  He not only raised sufficient doubt on the JDB employee's sworn affidavit but also another from the OC.  The points he brought up are excellent. They are unique as most defendants solely attempt to disqualify the affiant from being able to know anything about the OC's record keeping.  What this JDB expected to be an iron-clad bullet proof reinforcement with a second affidavit from the OC came back to bite them big time.

Take heed, Harry.  You must have overlooked that part too or you would have been pounding your fist on your desk with your head hung low, "Oh, no! Not again! This can't be happening in 2018... Texas, Florida, and now Idaho..."    

The details are available online on the Idaho court website.  The judge did not rule in Miner’s case.  After the MSJ hearing, the plaintiff file a Motion to Dismiss Without Prejudice.  Also, the signed order shown in the Toughnickel article was an order granting the MTD   

As a result, we don’t know what a judge would have ruled. 

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On 11/30/2018 at 5:20 PM, RobinR said:

A few months ago, I received a debt collection letter from Midland Funding.  I found a validation letter on another site and sent it to Midland.  All they sent me was a copy of the original creditor’s charge off statement.  

I have been doing more research and from what I have found on this and other sites, the letter I sent requested things that were not required for Midland to send me.  

Does anyone have any opinions about this article?   I know the letter is wrong   What do you think about the rest of the advice?

 https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors?utm_source=maven-coalition&utm_medium=hubpages&utm_campaign=liftigniter&utm_content=hp-related

I’ll offer some opinions on that seriously flawed article later on.  However, I’ll offer this much right now.  

That article is full of so many inaccuracies and misrepresentations that it makes me madder than a mosquito in a mannequin factory. 

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3 hours ago, BV80 said:

The details are available online on the Idaho court website.  The judge did not rule in Miner’s case.  After the MSJ hearing, the plaintiff file a Motion to Dismiss Without Prejudice.  Also, the signed order shown in the Toughnickel article was an order granting the MTD   

As a result, we don’t know what a judge would have ruled. 

What do you mean?  He did not have to rule because the plaintiff dismissed the suit.  Therefore the defendant won.  

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9 minutes ago, texasrocker said:

What do you mean?  He did not have to rule because the plaintiff dismissed the suit.  Therefore the defendant won.   

I didn’t say the defendant didn’t win.  Of course, he won.  

However, due to the fact that the judge did not make a ruling, we do not know what would have happened at a trial on the merits.  

We also do not know which argument(s) presented by the defendant caused the judge to deny the MSJ.  Nor do we know if the plaintiff even showed up at the hearing.   If the plaintiff did not appear, that may have been the reason the MSJ was denied. 

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4 hours ago, Harry Seaward said:

I defeated the first MSJ and lost on the second identical one in the same case.

I have always said winning in court is pure luck. 

But, really, there's absolutely no reason a defendant can be certain that they will win a trial just because the court declines to grant a summary judgment motion. All it means is the court wants to hear more from the parties before making a ruling. 

I stand corrected-  I see I should have added something like "in the vast majority of cases." 

 A defendant can be certain there is a very good chance they will win if they defeat a MSJ because the plaintiff has brought before the court in the MSJ everything they believe they would need to prevail at trial.  If the judge agrees with the defendant that the JDB's evidence is not sufficient to rule for them at that time there is very little chance that they have an ace in the hole reserved just for trial just in case their MSJ is not granted.  If the defendant is able to convince the judge that their affidavit is null and void then anything else they could present at trial no longer has any support.

 Of course I don't know all the details of your case but I do know that you lost only because of the extremely biased legislation tipped in JDBs' favor in your state.  The one thing I have never been able to understand though is why on earth since you are so obsessed with arbitration you did not use it in your own case.  That defies all logic and reasoning.

 

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36 minutes ago, BV80 said:

I didn’t say the defendant didn’t win.  Of course, he won.  

However, due to the fact that the judge did not make a ruling, we do not know what would have happened at a trial on the merits.  

We also do not know which argument(s) presented by the defendant caused the judge to deny the MSJ. 

Very good then.  Seems trial court judges' thoughts are rarely revealed; only those in appellate courts when they have to thoroughly explain their rulings.

Most cases are won after defeating a JDB's MSJ by the plaintiff dropping the suit at that time not by the case proceeding to trial resulting in a ruling by the judge.  I hope that fully expounds what I meant to say in this thread.

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1 hour ago, texasrocker said:

I should have added something like "in the vast majority of cases."

How can you be in this level of denial? It is truly astounding.

1 hour ago, texasrocker said:

If the judge agrees with the defendant

Declining to grant a MSJ is not agreeing the plaintiff's evidence is not sufficient, and is not a finding of fact. It's merely the court saying it believes there remain issues of material fact. That could mean the judge wants to observe the witness on the stand, even if they simply restate the affidavit word for word. 

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52 minutes ago, Harry Seaward said:

Declining to grant a MSJ is not agreeing the plaintiff's evidence is not sufficient, and is not a finding of fact. It's merely the court saying it believes there remain issues of material fact. That could mean the judge wants to observe the witness on the stand, even if they simply restate the affidavit word for word. 

  I suppose it could mean anything you want it to especially in Arizona or the handful of other states with similarly biased precedents but in virtually every case I have seen at that point the plaintiff concedes there is little or no hope to continue and drops the lawsuit just as this one in Idaho did.  And no, I did not say I have seen every JDB case in all history or whatever you are devising to spin around now to make it appear that I said something else. 

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26 minutes ago, texasrocker said:

  I suppose it could mean anything you want it to especially in Arizona or the handful of other states with similarly biased precedents but in virtually every case I have seen at that point the plaintiff concedes there is little or no hope to continue and drops the lawsuit just as this one in Idaho did.  And no, I did not say I have seen every JDB case in all history or whatever you are devising to spin around now to make it appear that I said something else. 

I understand your point, but you must concede that there are appeals courts rulings in which both consumers and JDBs appealed state courts’, including TX courts, decisions on summary judgment motions.   

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7 minutes ago, BV80 said:

I understand your point, but you must concede that there are appeals courts rulings in which both consumers and JDBs appealed state courts’, including TX courts, decisions on summary judgment motions.   

Of course but is that not beside the point?  A whole lot more JDB's have given up after a defeated MSJ than those who have proceeded to trial; much less those who may have gone on to trial, lost and then filed an appeal.   

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21 minutes ago, texasrocker said:

Of course but is that not beside the point?  A whole lot more JDB's have given up after a defeated MSJ than those who have proceeded to trial; much less those who may have gone on to trial, lost and then filed an appeal.   

No, it is not beside the point.  To say it is avoids disclosing and admitting that it is a possibility.  Posters should be given as much information as we can provide.  

It doesn’t matter if a “whole lot more JDBs have given up...”.   We do not have a crystal ball and cannot determine which lawsuits will proceed beyond the denial of an MSJ.  The posters who come here for help deserve to know both facts and possibilities so that they can determine what is best under their individual circumstances.

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2 hours ago, texasrocker said:

to make it appear that I said something else. 

I quoted exactly what you said. In the "vast majority if cases", the MSJ is granted, so it's impossible for the vast majority of cases to end with the plaintiff dismissing following a denial of their MSJ.

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1 hour ago, BV80 said:

No, it is not beside the point.  To say it is avoids disclosing and admitting that it is a possibility.  Posters should be given as much information as we can provide.  

It doesn’t matter if a “whole lot more JDBs have given up...”.   We do not have a crystal ball and cannot determine which lawsuits will proceed beyond the denial of an MSJ.  The posters who come here for help deserve to know both facts and possibilities so that they can determine what is best under their individual circumstances.

As many others have, this thread has gotten so far off track that the original point or purpose of the post has been left by the wayside.   I apologize for being a party to this as I was actually referring to the point I was making, not the point of the OC's post.  I am glad we can all agree that the bulk of that article is some of the worst advice ever conceived for JDB defense.

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8 minutes ago, Harry Seaward said:

I quoted exactly what you said. In the "vast majority if cases", the MSJ is granted, so it's impossible for the vast majority of cases to end with the plaintiff dismissing following a denial of their MSJ.

I really prefer not to continue this based on my reply to BV80 above but I must clarify that what I said was I should have added the words, "in the vast majority of cases" to "if you are able to defeat a JDB's MSJ then you have won" so it would have become, "I have always said that if you are able to defeat a JDB's MSJ then you have won in the vast majority of cases."

 As you always do you did not quote exactly what I said.  You quoted a fragment of a sentence out of context because by spinning around something that someone says and leaving out of your reply other points they made is the only way you can win a debate.  That is pretty pathetic in my book. 

Go right ahead and chalk this one up as a win too as I am done with it.  One day you will fall off of your high horse. 

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24 minutes ago, texasrocker said:

I really prefer not to continue this based on my reply to BV80 above but I must clarify that what I said was I should have added the words, "in the vast majority of cases" to "if you are able to defeat a JDB's MSJ then you have won" so it would have become, "I have always said that if you are able to defeat a JDB's MSJ then you have won in the vast majority of cases."

 As you always do you did not quote exactly what I said.  You quoted a fragment of a sentence out of context because by spinning around something that someone says and leaving out of your reply other points they made is the only way you can win a debate.  That is pretty pathetic in my book. 

Go right ahead and chalk this one up as a win too as I am done with it.  One day you will fall off of your high horse. 

I'm quoting the whole thing so as to not offend your sensibilities, but only responding to the part where you say "I have always said that if you are able to defeat a JDB's MSJ then you have won in the vast majority of cases."  To that statement my reply is "So you're talking about a vast majority of a very tiny percentage of cases overall."

(That seems like a very inefficient way of having a discussion.  Especially since what you are trying to say happened didn't actually happen.  I did quote exactly what you said.  I didn't quote the entire post, but you seem to be concerned that I didn't quote some part of your post that didn't exist.  No where in the post I quoted from did it say the complete sentence that you're upset that I didn't quote.  This sucks.  From now on, I'm going to go back to only quoting the part of your post that I'm replying to.)

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IUh

@RobinR

As you pointed out, the debt validation letter in the article in the link you posted is inaccurate.  There are too many other mistakes and misrepresentations to list in that article, so I’m only going to address a few.  It would be ideal if Mr. Gray would respond to this thread.  Absent his input, here are my opinions.  

1.  In regard to Mr. Gray’s suggested request for validation, he tells consumers that debt collectors makes are required “by law” to produce a contract with their signature.   The Fair Debt Collections Practices Act makes no such specification.  Which state has such a law?

What happens when a consumer stands in front of judge and tells that judge that the law requires a signed contract be produced?   The judge is going to ask him to cite the law.   Thanks to Mr. Gray’s mistake, the consumer has just made a fool of himself if he can’t cite it.   

2.  Mr. Gray says “You have also requested that they produce all of the receipts for every transaction that you engaged in during the entire life of the use of that credit card. You have requested that they show what you purchased in each of those transactions, and you have requested that they produce your payment record. All of this is legal, and all of it is required in order for them to properly enter the court.”

Notice that he says that the plaintiff “is required” to produce those receipts.  However, Mr. Gray offers no court rulings or one single law from one state to support his claims.   Yet, we could show him opinion after opnion where courts have ruled none of the above is required.  

3.   Most of his listed defenses fare no better.   I have been unable to locate one ruling supporting “scienti non fit injuria”, “subrogation”, or “repudiation” as defenses to credit card debt collection lawsuits.

Considering he claims the foregoing are defenses to debt collection lawsuits, he should have no problem finding applicable laws and/or court rulings to support his claims.   Simply claiming they apply but providing nothing to support the claims is not good enough for a court.

A consumer  could raise those defenses, but if challenged by the plaintiff, what law or precedent would support the claims?

3.  Here is how he describes describes “accord and satisfaction”.  

As I stated earlier, quite often, the credit card company has made an insurance claim, or taken a tax deduction, and this is known as accord and satisfaction. This renders the debt satisfied, and, legally, no one should be able to attempt any further to collect this debt.”

He offers no law or ruling to support his claim.  Here’s what some courts say about “accord and satisfaction”.  Note the words in “bold”  

“An accord and satisfaction is a completed compromise of a disputed claim." Wickman v. Kane, 136 Md. App. 554, 561, cert. denied, 364 Md. 462 (2001). It is "a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the `accord' being the agreement, and the `satisfaction' its execution or performance." Weston Builders & Developers, Inc. v. McBerry, LLC, 167 Md. App. 24, 54 (quoting Jacobs v. Atlantco Ltd. P'ship, 36 Md. App. 335, 340-41 (1977)), cert. denied, 392 Md. 726 (2006). A valid accord and satisfaction requires a meeting of the minds of the parties. Id. at 56-58. Accord and satisfaction is an affirmative defense, and the burden of proof is on the party asserting the defense. Id. at 55.

“It is a generally accepted principle of law that when a debtor owes a fixed, certain, due, sum of money, commonly called a liquidated debt, the offer of a less sum to the creditor, with a statement or notice that it is in full payment of the obligation, and its acceptance and retention by the creditor do not bar him from collecting the balance of the debt, in the absence of any new or additional consideration. The reason being that the debtor is already under legal obligation to pay the full amount, and there is no consideration for a release or waiver by the creditor of the unpaid part of the debt. Where the debtor merely does what he is already bound to do, or that which the creditor was already entitled to, there is no consideration to support an accord and satisfaction. The reason back of the rule is that there is no benefit to the creditor, or detriment to the debtor, and the transaction is not a contract, with respect to the unpaid portion of the debt.”  DuTrac Cmty. Credit Union v. Hefel, 893 N.W.2d 282, 290 (Iowa 2017)(citing Gibson v. Deuth, 220 N.W.2d 893, 896 (Iowa 1974)).

"An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract." Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993).

An accord and satisfaction requires a clear manifestation that both the debtor and the creditor intend the payment to be in full satisfaction of the entire indebtedness. Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997).

Notice the courts refer to “the parties” or the “debtor” and “creditor”.   Accord and satisfaction occurs between the creditor and debtor.  It is between the parties to an agreement.  A tax write off is between the creditor and the IRS.  It is not an agreement between the creditor and the debtor.  

How would he explain his claim to a court?  What precedent or law would he offer that supports his claim that an insurance claim or tax deduction constitutes accord and satisfaction?

In fact, how would he prove that a creditor received payment from an alleged insurance claim?  It took very little time and effort to locate those rulings.  This shows that Mr. Gray has done very little research.  Perhaps he copied and pasted information he found on the internet but did not bother to determine the accuracy of the information.

 

Here is another of Mr. Gray’s misrepresentations.   He states:

“Forgiven Debt - The credit card company has the option of forgiving the debt, which means that they no longer expect you to pay. This, thus, makes the debt an income for you that must reported to the IRS, if it is over $600.00 , and you will then be issued a form 1099-C. This also means that no one should be coming to collect from you. The debt was forgiven.”

Here are the facts:

26 CFR 1.166-1 - Bad debts

(f) Recovery of bad debts. Any amount attributable to the recovery during the taxable year of a bad debt, or of a part of a bad debt, which was allowed as a deduction from gross income in a prior taxable year shall be included in gross income for the taxable year of recovery

Notice the above cited federal regulation states "[a]ny amount attributable to the RECOVERY". Then it states "which was allowed as a deduction from gross income in a prior taxable year".

Those phrases show that a business which claims a tax deduction for a bad debt is allowed to RECOVER some of that debt at a later time. Once it recovers some of that bad debt, it must claim the amount of the recovery as part of its income.

In the following ruling, the Michigan federal court noted that Chase and WFNB sold accounts AND were allowed to receive a bad debt tax deduction.

Instead of amassing interest on a worthless account, Chase and WFNB sought to sell the accounts and shift the risk of nonpayment to a third party for a nominal fee. This practice also permitted Chase and WFNB to remove the account from the financial records and receive a bad debt tax deduction. See I.R.C. § 166(a)(2). McDonald v. Asset Acceptance LLC, 296 F.R.D. 513 (E.D.Mich.2013).

Again, I addressed only a few of the inaccuracies in his article.  There are many more mistakes and misrepresentations in his article.

Chances are that Mr. Gray will never visit this site and read this thread.   But if he were to read it, I wonder if he would care enough to respond and engage in a respectful debate?   I somehow doubt it, though.  People who are not concerned with facts and proof including rulings by courts when they are contrary to their own opinions are not willing to discuss because they know they cannot prove their claims.  

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