CREDITWRENCH
Creditwrench teaches the secrets of the debt collection industry and how to defeat their abusive practices without lawyers. We know how to win!
Friday, January 29, 2010
Finding a competent attorney
Finding a competent attorney












Quote:




Originally Posted by equinox308 

may be as many great lawyers out there as infamous ones


I tend to think that is probably
quite true[/quote]...to that point I would like some suggestions for
finding a great lawyer in my area for a consultation of my case(s)
dealing with creditors/collectors, and possibly an incorrect Judgment
against me. Also I'm hoping this attorney can help me back on the right
track to repair my credit and settle any bad outstanding ones as well.
Thanks for your time and feedback..[/quote]I seriously doubt that you
will be able to find an attorney willing to help you with repairing
your credit. If one did and was not properly licensed as a Credit
Repair Organization they would be in violation of CROA, Even if they
did help you with credit repair they could not ask you for any money
until 6 months after the work had been performed or they would also be
in violation of CROA. Although I can't remember the name at the moment,
I've seen an attorney here in this forum advertising his services as a
credit repair expert. He also does a thing called Authorized users that
is somehow supposed to drastically improve your credit ratings. Trying
to get just any attorney not properly licensed and set up to do those
things would not be a good idea.



One of the first things you need to do before seeking legal counsel is
go to the courthouse and pull your public record then ask to see the
files on any judgments or lawsuits you might have against you. Get
copies of all the paperwork in the file(s) so you are ready to talk to
an attorney if you find one.



Once you have an attorney in mind you should check his/her public
record in the same way you check your own. Look to see what kinds of
cases s/he has handled during the past year or so and what happened in
those cases. How many of them are similar to your case and problems and
what the outcome of those cases was. Did your prospective attorney win
his/her cases or lose them? It is highly unlikely that any attorney
will have won all the cases he participated in but you would certainly
not want to hire one that had no experience with situations like yours
or has a poor record of winning cases.



If you are lucky enough to live in a state or county that has all of
it's court records on line like we do here in Oklahoma that will make
your search much easier and much less time consuming. Just because an
attorney talks a great line and claims to be able to help you is
meaningless. It is their public record of winning or losing cases that
counts. They can't change the facts on record. A great sales pitch
might claim one thing but the public record might tell an entirely
different story.



Hiring an attorney without knowing what his public record has to say
about him is not a wise thing to do. Finding an attorney is easy,
especially in larger cities. Finding an attorney competent and willing
to work for you is an entirely different matter. There public record
will reveal the truth about how experienced they are and how competent
they are.



I wish you the best of luck finding a competent attorney. You are probably going to need it.

Written at 8:52 AM by Creditwrench.
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Monday, January 18, 2010
Toxicass SpeedFollo.ws Profile
Check me out on www.mysexydevices.com





From: http://ping.fm/ud4pg

Mobile post sent by creditwrench using Utterli. reply-count Replies.
Written at 7:16 AM by Creditwrench.
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Thursday, January 14, 2010
Supreme Court on bona fide error defense.
Debt collection professionals are preparing themselves for two U.S. Supreme Court opinions – one challenging the safe harbor clause for bona fide errors in the Fair Debt Collections Practices Act (FDCPA) and another which questions if a government backed student loan can be discharged through bankruptcy. Some industry observers say the outcome of both cases could have far reaching implications for some or most debt collection professionals.
Oral arguments in the case of Karen L. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA and Adrienne S. Foster, which challenges the bona fide error defense for ARM professionals, are set for January ("U.S. Supreme Court Oral Arguments Scheduled for FDCPA Case," Dec. 8). Earlier this month, the Court heard arguments in United Student Aid Funds, Inc. v. Espinosa, a case involving the discharge of federally-backed student loans.
As issue is whether a debt collector's legal error qualifies for the bona fide error defense under the FDCPA.


Lawyers for Jerman are suing Carlisle, McNellie, Rini, Kramer & Ulrich for violating the FDCPA when it attempted to foreclose on her home. The Ohio firm required that Jerman prove in writing within 30 days that she had paid her Countrywide Home Loans mortgage; otherwise the debt would be assumed valid. Countrywide is now owned by Bank of America. Jerman hired a lawyer to meet the Ohio firm’s written requirement, but FDCPA law does not require consumers to challenge debt claims in writing.

The Ohio firm, which specializes in real estate and foreclosure law, admitted that in its 2006 validation notice to Jerman it intended to require she dispute the claim in writing. But the law firm said it did not know that the FDCPA did not require a written dispute. After Jerman sued, the firm argued that it should not be held liable because it was an unintentional or “bona fide error” and has safe harbor protection under FDCPA.

Jerman’s lawyers have asked the court to decide if a debt collector’s legal error qualifies for the bona fide error defense under FDCPA. They contend it does not and want the court to conclude that the bona fide error defense is “categorically unavailable for any mistake of law.”

Attorney Kevin Russell argued for Jerman while George Coakley represented Carlisle, McNellie, Rini, Kramer & Ulrich. A PDF transcript of the arguments is available on the Supreme Court’s web site.

According to Courthouse News Service, Justice Stephen Breyer, Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor were the most active jurists in questioning the arguing attorneys.
Written at 11:42 AM by Creditwrench.
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Monday, January 11, 2010
Tweetup :: Jurisdictionary club meeting (via @creditwrench) #twtvite
Tweetup :: Jurisdictionary club meeting (via @creditwrench) #twtvite

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Written at 8:49 AM by Creditwrench.
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Thursday, December 17, 2009
Validation and what it consists of



Quote:
Originally Posted by ashriot
My response would be when I go through each of the numbered items in the paperwork I received and either admit, deny, or state that I'm not sure? They all seem correct to me, but some of the dates, I'm not sure about.
Seems like the logical thing to do, don't it? Problem is that admitting anything is just begging for the judge to bang his gavel and get it over with as quickly as possible and judges are all too happy to do just that. I can't give you legal advice because I'm not an attorney but if it were me I'd deny everything and see if I could make them prove everything.
Quote:
Second, what is a demand for admissions?
It is a list of things you want them to admit such as admitting they don't have any accounting of the debt or no agreement or any number of other things. I already have a list of demands made up just in case I ever get sued. My list consists of 44 things I'd like them to either admit or deny.
Quote:
And as far as I know, I've never been contacted by Ferris before, so how should I go about demanding validation?
Validation letters should be kept very simple. About all you need is a statement about how you found out about her, maybe the case number and tell her that you dispute the debt and demand validation. Anything else is probably superfluous and would serve no useful purpose.
Quote:
Is it validation that she is in control of this case
I'm quite sure she thinks she is but it is up to you whether you want to accept that or whether you want to take control of the case. If it were me I'd be taking control of the case one way or the other whether the lawyer liked it or not. And of course they wouldn't like that at all. After all, lawyers are just practicing law. I don't practice law so it is up to me to teach them a thing or two they didn't know before if I can. If I want to win I've got to be better than my opponent.
Quote:
or validation that she is legit?
What difference does that make? Whether or not her parents were ever married has no bearing on who wins the case. I couldn't care less. (LOL). No, validation means they must fully and completely prove the debt. (See Fields v. Wilbur Lawfirm 7th Cir Ct of Appeals). Judge Kenneth Minh spelled it all out for the debt collectors. He told them in one short paragraph exactly what was required of them when they reply to a demand for validation. Many debt collectors and pro se litigants alike seem to think that was all stated in Spears v. Brennan (7th Cir. Ct. of Appeals) but that was not the case. In Spears Judge Kenneth Johnson only stated what must be present in the initial contact with the consumer. He only quoted that which is to be found in 15 U.S.C. 1692(g)(§ 809)
Quote:
Again, thank you very much, just a response alone made me feel better as this whole situation is stressing me out.
Why should it? I understand that you are frightened because you don't know how to prepare the paperwork and fight the case to the bitter end but its up to you to learn. This stuff isn't rocket science and you should have started learning back when you knew you were going to default and even long before that. Yes, I know, we all think it isn't ever going to happen to us until it does. We also are trained to think that if we get into legal trouble all we have to do is go find a lawyer and let them take care of our problems. What we are not taught is what to do when that don't work or we don't have the money to pay them. Elementary legal education including a comprehensive study of our Constitution(s) should be required of every child from at least the 5th grade on up through college. That education should also include basic money management courses. That wasn't provided to you and you probably never thought you would need it anyway so you can hardly be blamed for that. But now push has come to shove and you are under the gun. You only have a few days to learn what you should have been studying long before this.
__________________
Cap1sucks links page
Written at 12:06 PM by Creditwrench.
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Thursday, November 19, 2009

Marie

Collections Law

Yes

Sued by Original Creditor-I think

Hello Creditwrench!
I was checking my local clerk of courts site looking into a erroneous tax sale against our property (predates purchase and was missed by title company..I got it voided). Anyway, I saw that I am being sued on a Discover Card account that I had submitted to a debt settlement agency in February this year. Yes, I know..now...bad idea: It cost me nearly $4,000 for them to "help" me with our credit cards...a.k.a do nothing, and now I am being sued so the money would sure be handy to have toward settling (it was my hubby's idea and I could not talk him out of it).

The suit was filed 10/28 by a somewhat local attorney that I have never heard of and sent to the sheriff for service on 11/02; I have not been served as yet. I received no communication of any kind from this attorney prior to their filing the suit so had no opportunity to ask for debt validation (15 USC 1692g section 809 (d) says that legal pleadings are not to be treated as an initial communication-so should I still have the right to validate?).

I plan on going pro se and am looking for some help in preparing my answer and paperwork after I finally get served: I will only have 15 days to answer after I get the papers. I have obtained a copy of the local court rules to familiarize myself with the "do's" and "do not's". I know that I will have to answer the claims made by the plaintiff's attorney as either affirm, deny, or lack the knowledge or information sufficient to form a belief as to the truth of the allegation. I also understand that I must provide a copy to the plaintiff's attorney and the original plus a certificate of service to the clerk of court. I have read elsewhere that I should file a affidavit of exemptions claimed and possibly a notice of appearance?

Where I get confused is affirmative defenses, discovery, and interrogatories. I know that throwing out too many affirmative defenses that aren't completely relevant can irritate the judge and make him see my side as frivolous (grasping at straws). I have been reading as much case law from this state as possible. Louisiana justices have been giving some credence to credit card contracts being contracts of adhesion, and unfair and deceptive trade practices. I want the attorney to disclose if this is truly an assignment or if they have purchased the debt; if it was purchased how much was paid; how the current balance was calculated including all fees and interest; provide the original contract and all subsequent addendums or updates; that payments in excess of the minimum were applied in accordance with FDIC rules 12 CFR 227.23 and 227.25; that I was provided "clear and conspicuous written notice of all amendments to the card agreement 15 days prior to the change and election to opt-out" as per Delaware Code Title 5, Chapter 22, SubChapter 11 section 224(b)(1), and a few other things that I have dug up.

Am I way off base here and they will just laugh at me then throw a piano on my head ala roadrunner and willey coyote?

Some other relevant information....The card is within the SOL and I do owe the principal, but they are asking for nearly 2x the balance from February. I am self employed and my only income (very small) is from a multi-member LLC (have been ill and can only work about 3-5 hours a day lately). Since this is a community property state, we set my husband, who is also self employed, up with his own multi-member LLC (I intervened in his operating agreement and held that his interest in the company and all profits or payments were his separate property as well as all capital used to start the company-all are notarized and filed per Louisiana laws): His income is in the form of a guaranteed payment as manager of the LLC.

The only assets we have that are not exempt under Louisiana law is one car, and two older motorcycles; all of which are for sale locally for fair market value. We have no cash assets to speak of...most have been used to pay my doctors... and I know that judgements last 10 years and may be renewed for an additional 10 before the first term expires.

So, that is our pickle. I have been reading your answers to folks on here for some time and always found you to be very helpful, so though...what the heck, I'll ask. Thanks in advance for any assistance you may be able to offer.


 You certainly are far more knowledgeable than most. Your first question is whether or not you can demand validation since (15 USC 1692g section 809 (d) says that legal pleadings are not to be treated as an initial communication. So to reach a plausible answer that question we have to understand what legal pleadings are. If we look for the definition of legal pleadings we find that almost all if not all documents including the complaint are considered to be legal pleadings. So how do we get around that section and still have grounds upon which we can logically demand validation and to do that we need to determine what an initial communication is.

We can easily arrive at the conclusion that the pleadings are not their initial communication with you in any case. In order to conclude that the pleadings are not their initial communication we have to analyze the sequence of events that occur during the service of summons. The process server comes to your door papers in hand and the first thing they do is hand you the summons and possibly explain a bit about the summons and what it requires of you. Once that has been done he hands you the papers with the summons on top and therefore the summons is their initial communication with the consumer and not the complaint. You get to read the complaint after the process server leaves. So the complaint becomes the second communication with you for all practical purposes. A summons is not a legal pleading therefore I think that you can demand validation and I have my students send demand for validation to the plaintiff's attorney at the same time they send their response to the plaintiff's attorney.

I believe that any action on the part of the attorney after that point becomes illegal continued collection activity unless they provide a full and complete accounting of the debt prior to doing anything else including providing their response to demand for admissions which I also have my students send along with their response. So far we have not had any reason to take that concept to federal court but the time will come when we must present the question to a federal judge. At that time we will have the answer to the question of whether or not a summons can be considered the initial contact with the consumer if no other communication have preceded the service of summons and whether or not they must then provide full and complete documentation before doing anything else including responding to discovery demands.

You must understand that I am not an attorney so can't give you a legal opinion on that matter. We will just have to wait until someone takes that issue to a federal court for determination. In the meantime, what can it hurt to send demand for validation at the same time you send your response? Next you talk about affirmative defenses. I greatly dislike the use of affirmative defenses because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party making an affirmative defense bears the burden of proof. While an unwaivable affirmative defense is subject matter jurisdiction that too must be proven by the defendant once raised and that can be very difficult to do.

On the other hand, an affirmative defense is different from a negating defense. A negating defense is one which tends to negate one or more or all of the essential element of the plaintiff's case therefore I think a negating defense is far better than an affirmative defense. I always have my students use a negating defense. Attorneys hate it when we do that and often object by claiming that the defendant raised no defense at all therefore they should be granted a default judgment. I've never seen a judge allow that argument yet but I have seen attorneys become extremely upset when the judge rules against them on that point.

In fact, I went to court with a friend who used a negating defense and the lady lawyer tried to argue that a default should be granted because the defendant had not filed a proper response to their complaint and she became very upset when the judge ruled against her. She became so upset that it was very funny and I made a comic video about it which I put on youtube and other video sites as well as on my www.creditwrench.tv web site. I would very definitely recommend that you use a totally negating defense instead of an affirmative defense.

I do think that many of the questions you are planning to ask will get you nowhere at all. They will simply claim attorney -client priviledge or any other excuse they can dream up to avoid response to those questions and you will have wasted valuable quota that could have been put to better use. You can almost bet that you will lose in local court no matter how you respond or what else you do. You can also count on the fact that they will learn about your corporations and will move to pierce the corporate veil and will have no trouble doing so.

They will go after your corporations as well so they are of little value for hiding assets as well. It is obvious that you are thinking in conventional ways, well inside the box and if you want to win you will have to start thinking outside the box and get agressive instead of being passive. The defense very seldom wins. If it were me I'd hand that attorney his walking papers in the form of a well prepared federal case against him if he does anything wrong at all.

That's the way to win.
Written at 7:52 AM by Creditwrench.
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Wednesday, November 18, 2009
Response to interrogatories
:Carolyn

Collections Law

No

Response to Interrogatories

I got a summons on a debt I owe to the Bank of America for approximately $10,000 in September of this year. The loan was sold to Midland Funding and a local law firm here in the Washington DC area was suing on their behalf. I answered the summons, within the allotted time frame, by saying that that the Defendant is without knowledge or information sufficient to admit or deny the allegation contained in the complaint.

The law firm has now sent me a certificate regarding discovery whereby they indicate that I had a revolving loan account with Bank of America and that it was sold to Midland. No mentioned is made of the fact that the last payment on this loan was made well past the 3 year statute of limitations in Washington DC.

They also sent a request for interrogatories where they asked all kind of information regarding whether I made debt and How should I answer them since my position is that I had the account and made the purchases but that the statue of limitations has been reached for the debt? I am pretty sure that I have not paid on this loan since 2004. Do I have to prove this or do they have to prove that I made payment since then?

Thanks for any assistance.
You need to be able to prove when you made your last payment to the creditor,Add 30 days to that and you have the start of the statute of limitations. It runs until they filed the lawsuit against you. Your problem now is not only that you have to prove your argument. If you had been a creditwrench student you would have known to send them your demand for admissions at the same time you sent your response thereby immediately putting them behind the curve instead of the way it is now. You definitely need to send your own demand for admissions and make them tell you when you made your last payment to the creditor among other things.

I have a somewhat similar situation going on right now. On Monday, November 9th, Allied Acceptance called me and informed me that I owe a credit card debt and that I made my last payment in 2001 and wanted to know if I wanted to take care of it now. Statute of limitations in Oklahoma is 5 years. Needless to say I didn't want to take care of it or at least in the way the lady had in mind.

Of course I was recording the call. I told her that I wanted them to send me a demand letter which she agreed to do. She wanted to know if the address she had was correct and I told her it wasn't and gave her my current address. So from that point on they had 5 days within which they must have had their demand letter in my hands since that was their initial contact with me. They called the next day too but I couldn't take the call at that time. Then she called again today. Of course I was recording and we went back and forth a bit and then I told her that I dispute the debt and demand that they validate the debt. "What are you disputing?", she asked. "All of it", I replied. Then she wanted to know how come I thought I could just say I don't owe the debt and get away with that. (LOL) Needless to say, I didn't tell her the real reason I can get away with doing that. I want to lead them on.

You see, since I said I disputed the debt and demanded validation every call they make is illegal continued collection activity. A federal offense. When and if their letter comes I'll dispute the debt and demand validation all over again. I am thinking it might be a while more before I get that letter and of course I also hope they forget to put the Miranda warning on it and maybe make a few other mistakes. There are other ways they can violate and I'll make sure they do. I'll even beg them to sue me and I sincerely hope they do because as soon as I hear from some attorney about this I'll sue them in federal court and start in on the lawyer, building him/her up to a federal lawsuit.

I'll sue the lawyer and the debt collector all over again. Of course, I'm watching my record down at the clerk of the court online so they don't pull a fast one there. I want to catch them filing a lawsuit on me and get my response in to the court the same day they file or the next at the latest. I'll have my response in and I'll have my demand for validation and my admissions in the mail to them so fast they won't know what hit them. You see, if it is out of statute as they said it was then they have violated federal law by even filing the lawsuit out of stat. Now that is the way I teach people how to deal with these kinds of problems. That lawyer has probably already violate your civil rights too and you can learn how to treat them the same way I would. It isn't hard to do. Just takes some learning. That's all.
Written at 11:08 PM by Creditwrench.
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