cjtx2

Alternative service letter with no sender/return address

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The judge authorized alternative service for a JDB, and both 2 options they were given included sending a copy by first class mail.

The court probably assumed that they would follow the rules and include the name of the sender or at the very least a return address.

My theory is that this is their way of pretending to comply with the court order. In case the post office tried to return the mail as undelivered, there is no return address, so the attorney does not have to acknowledge that it was a bad address to start with and they can request a default judgment with plausible deniability,

Is there any way to link this to mail fraud?

I also find this anonymous letter deceptive because most people would just throw them away  with all the other junk mail without even checking to see the contents. It is a very important court document and there must be some indication that it requires attention. At the very least it should show that it comes from an attorney and that it contains court documents. 

Is this covered by a motion for sanctions? Or should this be addressed as a separate lawsuit against the attorney debt collector?

The collection is for a business debt personally guaranteed, so I cannot use FDCPA.

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1 hour ago, cjtx2 said:

Is this covered by a motion for sanctions? Or should this be addressed as a separate lawsuit against the attorney debt collector?

The major problem you have is the burden of proof is on you if you make the allegation.  You have nothing more than a theory.  It takes WAY more than that to prevail on what you are claiming.  

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6 hours ago, Clydesmom said:

The major problem you have is the burden of proof is on you if you make the allegation.  You have nothing more than a theory.  It takes WAY more than that to prevail on what you are claiming.  

The rules of civil procedure mention "properly addressed" several times for parties and their lawyers and also for court clerks when sending mail but it is not defined or explained.

An anonymous letter from a court clerk would be unacceptable. Why allow anything less from an officer of the court (lawyer or process server)?

There is nothing on TRCP 501.2(e) under alternative service, just that it must be by first class mail sent to the defendant at a specified address. 

TRCP 109a (other substituted service), which applies to service of citation in real courts, makes a reference to returned mail, which must be reported to the court, but this is impossible when there is no return address.

More to the point, TRCP 501.4 (service of papers other than citation) 

Quote

(a)(2) Mail or courier. A copy may be sent by courier-receipted delivery or by certified or registered mail, to the party's last known address. Service by certified or registered mail is complete when the document is properly addressed and deposited in the United States mail, postage prepaid. 

A certified or registered letter must include a return address to be "properly addressed".

So failing to follow the same standard for properly addressing a first class mail would require special permission from the court.

Now I just need some case law... 

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11 hours ago, cjtx2 said:

Or should this be addressed as a separate lawsuit against the attorney debt collector?

What would be your cause of action against the attorney?

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2 hours ago, cjtx2 said:

Now I just need some case law...

Right.  That is all you need.  Good luck with that.  

30 minutes ago, BV80 said:

What would be your cause of action against the attorney?

Awwww @BV80 don't encourage him!  It is futile trying to rationalize this.  We don't even know what color the sky is in his world.

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17 hours ago, BV80 said:

What would be your cause of action against the attorney?

Something along the lines of illegal debt collection. This would be covered by FDCPA and the corresponding state law if it were a consumer debt. 

1692e(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.

Deceptive trade practices act (DTPA) may be another option. Funny thing is a consumer could be either an individual or a business.  Illegal debt collection is a de facto DTPA violation as an unconscionable action, but debt is defined as a function of personal use.

There has to be something similar.

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16 hours ago, Clydesmom said:

Awwww @BV80 don't encourage him!  It is futile trying to rationalize this.  We don't even know what color the sky is in his world.

Cute. When the drugs wear off, go ahead and take a look at 15 US 1692e(15).

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It could be a fraudulent misrepresentation. The elements are: 

(1) the defendant made a material misrepresentation;

(2) the representation was false;

(3) the defendant knew the representation was false when made or made it recklessly without any knowledge of the truth and as a positive assertion;

(4) the defendant made the representation with the intention that it should be acted upon;

(5) the representation was in fact justifiably relied upon; and

(6) damage to the plaintiff resulted. 

 

The misrepresentation would be that it was just another piece of junk mail sent by some random solicitor hiding its identity. So the last 2 elements require a default judgment.

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1 hour ago, cjtx2 said:

Cute. When the drugs wear off, go ahead and take a look at 15 US 1692e(15).

I am familiar with it.  I have read all your posts which are fraught with nothing more than your opinion and a LOT of wishful thinking.  Based on that I don't think you have ANY proof nor that you can find case law to support your misguided belief.  If you want to tilt at the windmill go ahead.  Just be prepared that when the court finds it frivolous you will be nailed with the opposing side's attorney fees and court costs.  Hope you have $50k or more laying around.

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19 minutes ago, Clydesmom said:

I am familiar with it.  I have read all your posts which are fraught with nothing more than your opinion and a LOT of wishful thinking.  Based on that I don't think you have ANY proof nor that you can find case law to support your misguided belief.  If you want to tilt at the windmill go ahead.  Just be prepared that when the court finds it frivolous you will be nailed with the opposing side's attorney fees and court costs.  Hope you have $50k or more laying around.

Thank you for your time and your OPINION. I disagree.

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On 4/27/2019 at 12:56 PM, cjtx2 said:

Is there any way to link this to mail fraud?

Mail fraud usually involves the contents of the envelope.  That has nothing to do with the failure to include a return address.  In any case, the federal wire fraud statute does not allow for a private right of action   

It would best to contact an attorney to find out the meaning of “properly addressed”.  You can’t go into court with a theory.   You need facts and proof.

If a return address is required, then you’d probably simply have a defense for improper service.   

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33 minutes ago, cjtx2 said:

Thank you for your time and your OPINION. I disagree.

Disagree all you want.  Just do it knowing it could get VERY expensive for you.  My observation is more than just opinion.  There is a former member of this site and a prominent one on a now discontinued site that sued a CA in federal court on FDCPA violations.  For almost 2 years I was one of two people who stood firm his trial tactics and internet antics were going to lose the case for him.  Despite all his minions who lauded him and held him out as some consumer hero giving us relentless garbage for daring to oppose his strategy in the end I was right.  Not only did he lose [for every reason I said he would] and not get a big verdict from the Federal Court he was ruled frivolous and ordered to pay almost $60k in court costs and attorney fees.  He even messaged me that he should have listened to me and I was right all along when it was over.

Your rantings are extremely reminiscent of his almost identical.  You are shooting in the dark hoping for a miracle and in the end will end up shooting yourself in the butt on this wild goose chase.  But again, go ahead.  It is your funeral.

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38 minutes ago, Clydesmom said:

Disagree all you want.  Just do it knowing it could get VERY expensive for you.  My observation is more than just opinion.  There is a former member of this site and a prominent one on a now discontinued site that sued a CA in federal court on FDCPA violations.  For almost 2 years I was one of two people who stood firm his trial tactics and internet antics were going to lose the case for him.  Despite all his minions who lauded him and held him out as some consumer hero giving us relentless garbage for daring to oppose his strategy in the end I was right.  Not only did he lose [for every reason I said he would] and not get a big verdict from the Federal Court he was ruled frivolous and ordered to pay almost $60k in court costs and attorney fees.  He even messaged me that he should have listened to me and I was right all along when it was over.

Your rantings are extremely reminiscent of his almost identical.  You are shooting in the dark hoping for a miracle and in the end will end up shooting yourself in the butt on this wild goose chase.  But again, go ahead.  It is your funeral.

I did not appreciate the part where you said something about me seeing the sky a different color. Other than that, I truly appreciate your opinion. I am here to learn.

Your initial comments motivated me to look for specific case law and relevant causes of action.

I am familiar with someone who posted here, pretending to know it all, extremely full of himself, and his arrogant rantings were used against him in court and he lost. It might even be the same person. I thought he was pushing the envelope and some of his ideas were just too out there, not based in law or previous rulings.

There is no shooting in the dark just yet. I am doing my due diligence researching different theories and options.

Obviously, based on what happened to that person, I would not publicly discuss my actual strategy in an ongoing case.

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I could not find any cases for violation of 1692e(15), (sending an envelope with no return address containing service of process to deceive consumer into thinking that the documents are not court papers) even though it sounds to me like this is exactly what the statute indicates.

I found something very similar, which has to do with identifying themselves when sending a dunning letter, in which failure to do so is a violation of 1692e(10):

"Sending the consumer notice of debt verification rights in an envelope that appears to be junk mail, a credit card solicitation, dissuading the consumers from reading the contents".

See Voris v. Resurgent Capital Servs., LP, 494 F Supp. 2d 1156 (S.D. Cal. 2007)(question of fact remained to be determined by jury)

The attorney sent a blank envelope with that notice too.

According to the curriculum for process servers, the same person must complete both tasks: delivering the citation to someone older than 16 or posting it at the door or gate AND sending it via first class. mail . Need to compare to prepaid postal stamp, but it looks fishy. I found something interesting. If the judge authorizes posting the citation outside, it must be protected from the elements, not just taped without a bag or envelope.

 

So with at least one FDCPA violation, I have a question about this case:

Riveria v. MAB Collections, Inc., 682 F. Supp. 174,175 (W.D.N.Y 1988) ("any person who comes in contact with proscribed debt collection practices may bring a claim")

It has been mentioned here before:

It says you do not have to be a consumer to defend yourself from a debt collector using FDCPA. My question: does it apply to debt collectors collecting any debt or just consumer debt?

 

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17 minutes ago, cjtx2 said:

Sending the consumer notice of debt verification rights in an envelope that appears to be junk mail, a credit card solicitation, dissuading the consumers from reading the contents".

See Voris v. Resurgent Capital Servs., LP, 494 F Supp. 2d 1156 (S.D. Cal. 2007)(question of fact remained to be determined by jury)

The attorney sent a blank envelope with that notice too.

The ruling was based upon the fact that the words “you are pre-approved” and “see conditions inside” were written on the outside of the envelope which could indicate that it was a credit card offer instead of a debt collection letter.The court stated:

Taken together, the envelope and letter, as discussed in Part IV.C. infra, misleads debtors despite any truth to the credit card offer language on the envelope.”

Yours is the opposite.  You’re claiming something was not written on the outside of the envelope.

28 minutes ago, cjtx2 said:

So with at least one FDCPA violation, I have a question about this case:

You do not yet have a provable violation.  You’ve only cited one ruling from a district.court in CA, and you reside in TX.  In addition, your is not the same as the one in the ruling.  

31 minutes ago, cjtx2 said:

It says you do not have to be a consumer to defend yourself from a debt collector using FDCPA. My question: does it apply to debt collectors collecting any debt or just consumer debt?

The FDCPA only applies to the collection of consumer debt.  

1692a(5)

The term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

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I have other traditional defenses to this suit for "damages" for an account stated. The debt was disputed with both the OC and the JDB, which received a bill for other damages.

Besides the JDB's unpaid bill, false reporting, etc., is this considered abuse of process? an attempt at unjust enrichment?

 

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7 hours ago, cjtx2 said:

Besides the JDB's unpaid bill, false reporting, etc., is this considered abuse of process?

NO

7 hours ago, cjtx2 said:

an attempt at unjust enrichment?

Again:  NO.

 

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12 hours ago, cjtx2 said:

I have other traditional defenses to this suit for "damages" for an account stated. The debt was disputed with both the OC and the JDB, which received a bill for other damages.

Besides the JDB's unpaid bill, false reporting, etc., is this considered abuse of process? an attempt at unjust enrichment?

 

Please explain.  What false reporting?   What bill for damages?

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8 hours ago, BV80 said:

Please explain.  What false reporting?   What bill for damages?

I sent them a bill and they never disputed it (so it is assumed to be correct). I also let them know that the account was disputed with the OC before they bought it and was still disputed with them and that I would be willing to accept a lesser amount than the total bill in exchange for a full deletion of the tradeline. Otherwise, the bill was due in full immediately, and additional charges would be tagged for attorneys' fees and court costs if I had to take it to court, plus any damages resulting from their false reporting.

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42 minutes ago, cjtx2 said:

I sent them a bill and they never disputed it (so it is assumed to be correct). I also let them know that the account was disputed with the OC before they bought it and was still disputed with them and that I would be willing to accept a lesser amount than the total bill in exchange for a full deletion of the tradeline. Otherwise, the bill was due in full immediately, and additional charges would be tagged for attorneys' fees and court costs if I had to take it to court, plus any damages resulting from their false reporting.

You sent them a bill for what?

Whar was falsely reported?

Stop giving bits and pieces of information.   You know details, but we don’t.  We need details.

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9 minutes ago, BV80 said:

You sent them a bill for what?

The bill was for services performed.

10 minutes ago, BV80 said:

Whar was falsely reported?

The account was in dispute and it was not reported as such.  After this dispute, the report did not change after contacting the CRA to force the JDB to verify it.

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1 minute ago, cjtx2 said:

The bill was for services performed.

Again, details.   What services did you perform?

 

2 minutes ago, cjtx2 said:

The account was in dispute and it was not reported as such.  After this dispute, the report did not change after contacting the CRA to force the JDB to verify it.

Other than the CRA, to whom exactly did you send a letter of dispute?

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13 minutes ago, BV80 said:

Other than the CRA, to whom exactly did you send a letter of dispute?

The JDB was put on notice of the dispute first (by certified mail) and then a few days later, after receiving delivery confirmation, the CRAs.

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2 minutes ago, cjtx2 said:

The JDB was put on notice of the dispute first (by certified mail) and then, after receiving delivery confirmation, the CRAs.

Considering this is not a consumer debt, there’s no FDCPA violation.

What services did you perform to allow you to bill the JDB???

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7 minutes ago, BV80 said:

Considering this is not a consumer debt, there’s no FDCPA violation.

But is it still a violation of FCRA 623(a)(3) enforceable after a 623(b) notification of dispute to the CRA?

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