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Defense Forms, Answers, Discovery & Information


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On 10/8/2021 at 9:35 PM, HueyPilot said:

https://www.masslegalservices.org/system/files/library/Substantive_Defenses_to_Consumer_Debt_Collection_Suits_t.pdf

@Clydesmomwill claim this material is outdated and no longer a best practice. That may we be true but its a good read for the educational value and the forms and filings at the end are very useful.

 

Useful yes, however you have to realize that even though the legal system moves slowly, it still moves and adapts to technology and demands of society. Today, the JDBs have access to the records of the original creditor because storage and access is cheaper than ever before. They can now get the records then need easily that they could not get 10 years ago.

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WC1000, you are absolutely correct on today’s EDP capability for storage, search and retrieval. The main difference today is the vast volumes of information and data being stored at the numerous data centers and amount of specialized service providers giving availability with pay for various services. The Banks have always had their records in one form or another as required by law. The same Federal regulators require banks to write off and sell their stale debt after two years. If you have read any of the SEC filings and/or annual financials of the top ten JDB's their financial strength is just awesome. It's no surprise giant debt buyers can bid on and purchase any list of a million plus names for 4 - 6% of the retail value and demand all the associated records. They may have to pay a little extra for this service but it's only needed in a small and insignificant amount of cases where people actually object or provide a fight defending any pending action. 

Each week I see new posters asking "Help I'm being sued" or "How I do" the only difference from years ago is the greatly reduced number of requests. That in it's self would be good if there weren't so many more people giving up and rolling over and allowing the debt buyers to further increase their financial profits. The CIC forum used to have a repository of forms and steps to take to help people. I can no longer find that. There seems to be very few senior posters left carrying the torch helping other new people to win the fight. Bless you all that have hung in there! Where are the new posters. Why are they not finding this forum. There sometimes is a sense of an undertow, slightly negative giving a feeling of your on your own. That's of concern. Some of my strategies may be old but the foundation of winning never changes. Helping other people win is my main focus regardless of technique and it always comes back at me ten fold in my personal struggles. We shouldn't be stuck on any defense method past of present. The past always repeats itself and historically there are always a lot of lessons learned to bring forward. I posted some in the previous link and hope it may help people with potential templates. 

My next concern is what to do once I get followed into Private Contractual Arbitration, that is if I can just get there.

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First off, a bad case in court is a bad case in arbitration. In other words, arbitration will not make your case any better. It simply makes it more expensive on the plaintiff to collect their money. If you owe the debt and the JDB can prove it, arbitration or court does not matter. You certainly prepare your case but the rules of evidence are going to be the same and what is allowed in court will be allowed in arbitration. If anything, the evidence rules might be a little relaxed giving the plaintiff an advantage.

As for JDBs getting records from OCs, realize that as record retention became cheaper and cheaper, as well as the changes in court rules when it comes to records, many JDBs see getting the associated records on a debt at the rule rather than the except. All things being equal, the JDBs will probably pay regular price for debts with records and discount those without records (say 6 cents on the dollar for those with records and 4 cents on the dollar for those without). Besides, the records serve another purpose besides winning case when people fight.

When it comes to fighting, many people either have their head in the sand or think that since they owe the debt, they might as well not bother because they will lose anyways. Getting actual records helps the JDBs in convincing the latter people to give up and settle or simply not fight. That is why they are attaching them to the summons and complaints now. However, the default rate has been unusually high to begin with.

A great example is Minnesota. Minnesota has a unique process for civil cases where the case is started when the summons and complaint is served on the defendant, not when it is filed in court. This means that many people thought that the case was bogus when served because there was no case number on the papers. This caused many default judgements. The plaintiff can then, after 45 days, start the garnishment process, again without going to court, to see if there is anything worth taking. Many filed the case anyways and started the debtor examination process. The debtors of course, thinking that the those papers were bogus too, did not answer and found themselves arrested for contempt of court. The Minneapolis Star Tribune did a bunch of articles in 2008 regarding the process and figured that the default rate was 98%.

In response to the articles, the state legislature decided to curb some of the more egregious abuses. The biggest changes was that cover letter was to be put in the summons and complaint which says in big bold red letters that the person being served is being sued and that the case has started and that they have 20 days to answer to preserve their rights. After doing that, the default rate is...... 98%. You are not going to convince people to fight if they don't want to or are too tired to be able to.

 

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I grew up in International Falls and TRF Minnesota. Some of the heartiest, hard working and honest people on the planet. Did I mention stubborn? No wonder 98% don't fight. They think it's dishonest and beneath them. Its a pride thing, nobody wants their credit problems exposed. Midwest people think they owe the money and are responsible for their actions. Apparently the legal system works accordingly. I remember during various visits that merchants didn't take credit cards. You could write a check anywhere no problem and there were serious legal repercussions if it were to bounce. You would be arrested and in front of a judge if cash not provided next day. Maybe not a bad way to grow up but things change. People need help.

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