You Can Beat Credit Card Debt Collectors

Updated on April 19, 2019
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Brian Gray obtained his degree in Language from Lee University and has been a published author and professional writer since 1985.

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You just received a certified letter in the mail from a law firm, you have a sinking feeling as you sign for this unwanted piece of mail, and when you open the envelope, your fears are confirmed. You are being sued by a credit card company that has come to collect what you left off owing them. All is lost, your world goes into a tailspin, and images of lost wages, raids on your little bank account, and possibly losing everything flash through your mind. Hopeless! You just want to find a hole and drop in it. But, guess what, you are very wrong. You don’t have to lose a thing, and my article will explain why.

Debt collection is a big business always looking for growth opportunities. In January of 1990, credit card debt was at $214 billion, but by January of 2009, during the greatest recession in history, it grew to $964 billion. As the recession began, people were rapidly losing their jobs, and thus, their ability to keep up with the payments on that debt. Good people were being forced into default on their accounts.

So, what did the credit card companies do? They kept on lending, they kept on raking in profits, and they kept engaging in a relatively unknown practice of selling those defaulted debts to companies that had no connection to your original debt. This line alone should raise your eyebrows and cause you to say, “What?” Yes, the credit card company whose card you had been using sold your debt to someone else...and they, the credit card company, promptly washed their hands of your old debt. Stunning, isn’t it?

In 2008 alone, over $123 billion in charged-off debts were sold to companies that then pursued those debts as if they owned them. But they don’t...at least not until you make a fatal mistake and give them the right.

You see, when you signed the original agreement with your credit card company, you signed a contract with your original credit card company. Think about what I just said, because this is where winning your battle begins. Yes, you signed an agreement with your credit card company, but you did not sign one with the companies that bought your debt from the credit card company. Sound crazy? If they don’t have a right to your debt, then why are they coming after you? Because you don’t know your rights, they know this, and they collect billions of dollars every year at massive profits.

Say your original credit card had a final balance of $1,000. The credit card company sells that off to a collection company for $100. Say the collection company only manages to collect $500 from that debt. Not a bad profit. Understand why, then, they pursue these collections? And if I told you that these collection companies have no right to that debt, would that shock you? I mean, they all seem to be following legal procedures when they come after you, don’t they? Yes and no. Yes, they are following legal procedures to trap you in a debt you no longer owe, and no, they do not have any right to that debt...that is, they have no right to that debt until you give them that right. And, yes, millions of Americans make serious mistakes every year and end up owing a debt all over again, a debt that was written off long ago.

What to Do

So, let’s first look at what NOT to do. Do NOT ignore the certified letter. Do NOT miss the court date. You will win if you follow what I am going to outline here; however, the clock begins ticking the minute you sign for that certified letter. Sign it, then begin acting on your rights immediately.

Answer the Summons

Read the letter that comes from the court. It will state how many days you have to file an answer: that is, an answer saying that you plan to defend yourself in court. You must do this immediately.

If it is a magisterial court, you can defend yourself. If it is a higher court, then you need to retain a lawyer. If you opt to retain a lawyer, you do not need a high-priced one. After you have read my article, you can tell any lawyer exactly how to proceed, although he or she should already know this.

Once you have answered the court summons, and you have told them that you definitely intend to defend yourself, the court will set a date for the hearing. Mark that date on your calendar as the day you will walk out of court a winner. Above all, do not miss that court date! If you do not show up in court, you will lose by default, which means that the collection company that is coming after you now owns the debt that was otherwise written off and had become worthless. Miss the court date, lose by default, and you owe money to blood-suckers who will garnish your wages and attach your bank accounts. Attend that court date!

File a Request for Production

Next, and this is very important, you need to file a “Request For Production.” Use the form I have outlined below.

Note: once you have been sued, you cannot request verification of the debt. A request for verification of the debt can be sent immediately after you have been served notice by the collection company that they intend to collect on a debt that they allege you owe. This notice is sent before any suit can be filed, and if you are at this stage of the game, simply being notified and NOT being sued, then you want to send a letter requesting verification of the debt.

For more on the letter requesting verification of the debt, that is covered a little further on in this article.

The Request For Production

Mail a copy of this request to the lawyer who is representing the collection company. Make sure that you send the letter to the lawyer for the collection company via certified mail, return receipt requested. By sending this to the lawyer for the collection company, you are telling him several things. You are telling him that you may just know your rights, that he is going to have a battle on his hands, and most of all, that he may just want to let this one go, because he knows that until you make a mistake, he has no right to the money he is claiming. And, in most cases, when this request for documentation is filed with the plaintiff, they go away and give up. They would rather concentrate on the easy wins, the ones where the person does not respond to the certified letter and, especially, the ones who do not show up in court. By filing the request for documentation, you have already begun to win, and they know this. If you follow through, you will win.

Why You File a Request for Production

Now, let’s look at what you just requested. You have demanded that the lawyer representing the collection company produce the original agreement with your signature. (Note: in some areas, an original signed contract is not required. Also, a verbal agreement made over the phone will obviate this requirement, as well.) You have also requested that they produce all of the proofs 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. Guess what? They do not have this documentation.

Why? Because the original credit card company does not keep this information, they do not sell it to the collection agency. Shocking information, isn’t it? All the collection company has is your name, last known address, the amount you “supposedly” owed when you made your last payment, and often, not even the complete account number. That’s it. So, without a signed agreement with your signature, how can they collect on that contract? They can’t...unless you let them, and if you do not know your rights, you will let them. When the collection company filed suit, they did not attach a copy of the original contract from your credit card company, and this is required by law. It is called the "attachment rule." The judge knows this, but he cannot act as your attorney, so he has to sit on the bench and watch you sink yourself, if you do not follow your legal rights. So, here they are.

What to Say on the Day of the Hearing

On the day of the court hearing, the first thing you want to have in front of you is this statement:

1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

This statement tells the court that you cannot claim to know whether or not this is actually your debt, because no proof of that ownership has been provided by the collection company, Plaintiff. Read, or quote, this statement, and add nothing further to what it says.

Now, a trick here is used when a plaintiff does show up in court in an attempt to trip you up and win through trickery alone. They will call you to the witness stand, brandish a copy of the original contract issued by the credit card company, and ask you, under oath, if you are denying that you signed this agreement with the credit card company.

If you say that you are not denying that you signed the agreement, you lose. You simply state that you are without knowledge sufficient to form an opinion as to the accuracy of the Plaintiff’s claim, and add nothing more. You can repeat this as often as you need to until the judge loses his patience and orders the plaintiff to sit down. The plaintiff is waving a blank piece of paper in front of you. It does not contain your signature, and it is not the original signed agreement. It is worthless.

For your next step, you state the following:

2. Plaintiff has failed to state a claim upon which relief may be granted.

Either no statute was cited, or the complaint fails to state facts sufficient to constitute a cause of action against you, the defendant. Listing the facts of the case may be enough to file a claim, but the plaintiff merely says the defendant owes the money, and this is not enough.

You want to state this:

"Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited."

3. Defendant demands proof of Plaintiff’s ownership of alleged debt.

The law is very clear that the plaintiff has a legal duty to attach any necessary documentation to everything he has filed in court, including in the original certified letter that was sent to you. Did you see any documentation in that letter? No. Why? Because the plaintiff has none. He knows that, the court knows that, and now, you know that, too. Legally, the plaintiff lacks capacity to sue. At this point, you may read the following statement to the court:

The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action.”

What you just told the judge is that the plaintiff, in this case, the lawyer representing the collection company, has not presented proof that he, or his company, owns the debt. Why does he own it? Did you sign an agreement with him? Is he a credit card company? The answer is, no. You do not owe him, or his company, anything. He is required, by law, to show why you owe him, or his company. He will not be able to prove this...unless you have made one fatal mistake.

If you have been scared into making any payment arrangements and have already made payments to his company, then I would seek legal help in unraveling their tentacles. Cardinal rule: do not make payments, or agreements to make payments, to any company that is calling about a debt that you owed someone else. Doing so creates a contract that may be binding.

As in most credit card cases (depending on your state), when a claim is “based upon a written agreement, the pleading shall state specifically if the agreement is oral or written.” If the credit card claim is based upon a "writing," then the plaintiff must “attach a copy of the writing.” This means that, once again, the law requires that the plaintiff produce the original contract with the credit card company bearing your original signature. No blank contracts, no “supposed or forged” copies. The original, and only the original, will do.

Also, in most states, if the lawyer filing the claim for the collection company knowingly files a suit without having that original contract in hand, he is in violation of the law. He has to either have that contract, or he has to have someone with him coming to court who has personal knowledge of that signed contract, and he has neither. When he signed the suit papers, he stated that he had these proofs by his signature. A lawyer filing such a claim should be prosecuted, he deserves to be sued, and you can do so if you have a lawyer representing you.

Next, we come to:

4. Insufficient specificity in a pleading.

When the lawyer for the collection company seeks damages based on a contractual relationship, an agreement or contract, and these damages are ascertainable based on that contract or agreement, then the lawyer is required to plead those damages with specificity. What this means is that the court is going to require that lawyer to include facts concerning when you engaged in purchases that led to that debt, the amount of those purchases, and what those purchases were. You can cite the following in court:

Citing Marine Bank, 25 Pa. D. & C.3d at 267-69. A “defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest.

Next on the list:

5. Defendant cites Failure of Consideration:

Whereas no exchange of money or goods occurred between the plaintiff and the defendant, therefore, defendant cites Failure of Consideration.”

What you are saying here is that there was never any exchange of money or items of value between you and the collection company, between Plaintiff and Defendant. You tell the court that you never entered into any contractual or debtor/creditor arrangements with Plaintiff. Consideration is a necessary fact that the plaintiff is required to show in order to prove that you and the collection company had a valid, binding and enforceable agreement or contract. Consideration means that the collection company was giving you a service in exchange for your money. Were they a credit card company? Were they giving you credit? Not likely. Therefore, they were not giving you any “consideration,” and you, therefore, do not have a contract with them.

Furthermore, the collection company would be required to show the terms of that agreement in court. Where is their contract with you? There is none. Because they cannot produce any such agreement or contract, this is “failure of consideration.” They have no case, just one more reason they knew that they should not come to court, one more reason the judge is compelled to dismiss the case against you.

Next, we come to:

6. Repudiation. Plaintiff is not named in any alleged agreement that is purported to have been entered into between Defendant and Plaintiff.

Here, you state that the plaintiff has not produced any contract between Defendant and (your collection company), naming Plaintiff as a party to such contract. Defendant repudiates any claim to such a contract existing. As there was no “meeting of the minds,” a necessary element of a valid contract, no contract exists. The plaintiff is not an assignee for the purported agreement, and the plaintiff has not produced any evidence that supports any related claims or assumptions. The lawyer for the collection company has failed to produce any document that shows that your original credit card company has named him, or his collection company, as assignees, nor has he even shown that the original credit card company has any knowledge of his actions, or that the original credit card company has even given this lawyer, or collection company, all rights and control.

If a credit card company did sell the debt to a third party, the creditor would then lose his rights to collect later. This means that your credit card company probably took a tax credit, an insurance write-off, or some such action that makes the credit card company unable to collect the debt after that point. They destroyed their records, and they moved on. The collection company does not have the original agreement with your signature, and they know that they have no case against you...unless you make the mistake of making an agreement with the collection company and then making a payment on it. Since there was no “meeting of the minds” between you and the collection company, a necessary element required to create a legal and binding contract between the two of you, their claim is repudiated.

If your original credit card company had made an agreement with the collection company, you were not a party to those terms. Just because an assignment clause exists in a credit agreement does not mean that it is sufficient to create a new obligation with the collection company. The assignment clause merely takes away the rights of your original credit card company to collect if they decide to assign it to another credit card company. The collection company would have to be able to act as a credit lender, then have to offer you a new contract, you would have to agree to its terms, and you would finally have to sign this new contract. If you have not signed a contract with the collection company, you owe them nothing.

In court, if you had to argue this, you would simply state:

"Plaintiff is not an assignee for the purported agreement, and Plaintiff has not offered any evidence to the contrary. As there is no proof offered, assuming that it exists would create an unfair prejudice against the Defendant."

One note is important here. The original creditor could “assign” the debt to a collection company, in which case, the original creditor would have written the debt off the books to balance the ledger, but would pursue the debt and maintain ownership of that debt. In this case, the collection company would be working as an “assignee” of the original creditor. This would change things. However, in the majority of these cases, it is a junk debt buyer who purchased the debt, and the advice I gave still stands.

Now, we move to:

7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

You can simply state,

“Whereas no relationship exists between Plaintiff and Defendant, and whereas Defendant never signed a contract or agreement with Plaintiff, Defendant cites Lack of Privity.”

Privity is the legal term for a close, mutual, or successive relationship to the same right of property, or the power to enforce a promise or warranty. No relationship exists between the collection agency (Plaintiff) and Defendant. Defendant never signed a contract or agreement with the collection agency. A collection company cannot collect any amount of money that is not permitted by law or by agreement.

"The Fair Debt Collection Practices Act states that the debt collector cannot collect any amount of money that is not authorized by the agreement creating the debt or permitted by law. Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.”

Nearing the end of our list, we come to:

8. Plaintiff's complaint violates the Statute of Frauds.

Plaintiff claims to have a contract with you; thus, Plaintiff has to produce it, because such a contract falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.

In order for the collection company to state that it had an agreement with you, it has to show how it was going to benefit you. For example, was the collection company going to issue you credit like a credit card company? Highly unlikely. Therefore, to say that it had a contract with you is fraudulent, because the collection company cannot provide the same services as the credit card company did. It would be like the credit card company selling your contract to another company that required you to sell your house to them at the end of one year. This new requirement would not be something that you agreed to in the original contract, and since there was no “meeting of the minds,” you did not come to any agreement with the collection company.

Here, then, you simply cite statute of frauds. Research your state’s case law to see how your state stands on this point. In any case, because the collection company cannot provide the same services as the original credit card company, adding this new requirement is breach of contract; thus, we invoke “statute of frauds.”

Lastly, we come to:

9. Scienti et volenti non fit injuria: “An injury is not done to one who knows and wills it.”

The laws in this country do not provide a remedy for a collection company that knowingly and voluntarily takes on a bad debt and then goes after the debtor in an attempt to collect that alleged debt. What the law says is that an entity cannot place itself in harm’s way and then sue for damages. Thus, “scienti et volenti non fit injuria.” That would be like you standing in front of a speeding car, then suing the driver for damages. You put yourself in harm’s way, you deserve no damages. The collection company bought a debt that was bad, then wanted it paid. Just cite "scienti et volenti non fit injuria," and the judge will know what you mean.

More Things You Should Know

Statute of Limitations

Most collection companies know not to go after debts that are past the statute of limitations, but, there are still those who do. But, note this very important point: once the debt has passed the statute of limitations, they cannot take you to court. They can contact you and ask you to pay the outdated debt, but they cannot take you to court. However, if you agree to make any payments to them, or acknowledge to them that you owe the debt, you may reset the clock, so to speak. This is called "re-aging the debt." Be very careful with regard to this factor. So you should know that most States will not allow claims on debts that are more than three years old, though in other states that statute of limitations is four years. There are also a few States that go out even further. You want to research this so that you know what your State allows, because the collection company pursuing you may have waited too long, and you may have a right to have the suit thrown out on this technicality alone.

Is the Debt Satisfied?

As I stated earlier, quite often, the credit card company has made an insurance claim, as when a cardholder has taken out involuntary unemployment credit card insurance, or IUCC Insurance as it is called, or the credit card company has 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. Your collection company knows this, yet they are still trying to take you to court, because they know that if you do not show up, the law then reverses everything, and you end up owing them. So, go to court. Just the fact that you file an intent to defend yourself lets them know that you are aware of your rights, that their best bet is to call off the bluff, and that they should go find some other person to try to fool into entering a contract with them for a debt that is otherwise uncollectible.

Debt Collectors Need To Validate the Debt

Remember that the Fair Debt Collection Practices Act requires all debt collectors to validate the collection upon request of the purported debtor. If you are being sued, you are past this initial stage, but, keep in mind that, when a debt collector first makes contact with you, the collector has to send you a written “validation notice” within five days of first contacting you. The notice has to say:

* how much money you owe

* the name of the creditor you owe it to

* what to do if you don't think it's your debt

You must respond within thirty days of this notice requesting verification of the debt. Miss this deadline, and the debt collector can then go to the next level, which is to file suit. Nevertheless, even after filing suit, the debt collector must still validate the accounting and other items related to this debt, and unless the debt collector is an assignee, the collection company will not be able to, so, stand your ground with everything that I have written in this article. They deserve to lose, because they know they are acting illegally, yet they use all kinds of trickery and deceit to win. You can fight back by simply using the law and your legal rights.

Here is a very valuable article to read: https://www.nolo.com/legal-encyclopedia/debt-collection-defense-requiring-that-the-collector-document-the-debt.html

The Attachment Rule

When a junk debt buyer sues you, most State rules require, as per the Attachment Rule, that the debt collector must attach a copy of the account or written contract, and if they cannot do this, then they must state why the document is not attached. If the collector fails to do this, then you can file a motion with the court requesting that the court require them to produce the missing documents. Without these documents, you may petition the court to dismiss.

The Amount For Which You Can Be Sued In Small Claims Court

There are limits to the amount a collector can sue for in Small Claims Court. This will vary from State to State, so research your locality to see what they are.

Check Every Rule, and Good Luck

Make sure that you check every rule that I have quoted to make sure that there are not any deviations in your state. State laws will vary, and State laws vary from Federal laws, so do your homework. I am not a lawyer, but I used everything I have written herein to defend myself against a collection company, and you can already guess what happened. They did not show up in court, and the judge dismissed the case against me. It worked for me, it will work for you. And just in case you are not comfortable arguing in a court of law, if you can afford it, obtain the services of an attorney who is not too expensive.

The Federal Trade Commission explains your rights on its website: https://www.consumer.ftc.gov/articles/0149-debt-collection.

You have a right to win. Good luck to you.

Brian Gray

Additional Materials For Your Help

This article from the Loyola Consumer Law Review describes how creditors file improper collection complaints.

In the end, this article contends that plaintiff-creditors file improper complaints as part of a pecuniary calculus in the collection industry:

1) Original and secondary creditors file objectionable complaints (and cannot amend those complaints when challenged) since original creditors do not maintain the credit card debtor’s account documents at the outset of the creditor-debtor relationship (which means that secondary creditors cannot receive account records as part of an assignment); and

2) necessary account records are not retained because it is more economically efficient to file many unsupported claims than it is to expend resources in document retention and to file fewer substantiated claims.

The article describes how Pennsylvania courts require specific pleadings, and debtors can challenge pleadings that aren't specific enough.

Unlike federal courts, which require notice pleading, Pennsylvania courts demand fact specific pleading from both plaintiffs and defendants. At the outset, a pleading must set forth the “material facts” of the cause of action in a “concise and summary form.”

As in most credit card cases, when a claim is “based upon a written agreement, the pleading shall state specifically if the agreement is oral or written.”

If the credit card claim is based upon a writing, then the plaintiff must “attach a copy of the writing.”

Finally, “[a]verments of time, place, and items of special damage,” such as credit card charges, must be “specifically stated.”

Illegal Collection Efforts in the News

Federal Government Orders Firm to Stop Unsupported Collection Lawsuits

Pressler & Pressler, a New Jersey firm, was ordered in 2016 by the Federal Consumer Protection Bureau, which called it a "lawsuit mill," to stop filing unfair collection lawsuits. NJ.com reported that FCPB's order said that "before threatening litigation, agents must have original account-level information with the consumer's name, the last four digits of the account, the claimed amount, a chronological list of all the prior owners of the debt, a copy of the bill of sale and other records, the orders say."

Fraudulent Debt Collection is Big Business

Six people in North Carolina agreed to plead guilty to a $6 million fraudulent debt collection conspiracy that operated from 2011 to 2015, according to the Charlotte Observer.

In an article written by Joe Marusak and published in the December 14, 2016 edition of the Charlotte Observer, six people in North Carolina agreed to plead guilty to a $6 million fraudulent debt collection conspiracy that operated from 2011 to 2015. The operation targeted thousands of victims nationwide. The collection company, a Mecklenburg County entity that conducted business under the name of Capital solutions Agency, Berkeley Hughes and Associates and Vortex Group, ran its scheme from November 2011 through May 2015. This agency threatened people with civil and criminal charges and harassed their family members to collect money. The six people were charged with fraudulent debt collection and conspiracy to commit mail and wire fraud.

U.S. Attorney Jill Rose said, “...just because the collector has personal information about you, it does not mean the claim is legitimate. If you do not recognize the debt or the company, be careful and verify the information before you decide to pay.”

This is possibly the best one yet: https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/


Information From NOLO on Debt Verification

I am often asked where one can find a good attorney, and I highly recommend going to www.nolo.com and chatting with one of their attorneys. I consider them the best resource for this.

Nolo.com summarizes the principle of "debt verification" with advice similar to what I've given here that applies to many states. NOLO says:

If a debt collector sues you, most state and local procedural rules put even heavier documentation requirements on both the debt collector and creditor. In many states, a creditor or debt collector that is suing for collection of an account must:

  • attach to the complaint a copy of the account or written contract or agreement, or
  • state in the complaint why the account or document is not attached.

This is often referred to as the “attachment rule.”

If the creditor or debt collector doesn’t do this, you may be able to get the lawsuit dismissed. Or, you can ask the court to require the creditor or debt collector to provide the missing documentation and information. This is often called “requesting a more definite statement.” In either case, you’ll have to prepare and file a formal motion with the court.

What Documentation Must the Creditor Provide?

But what must the creditor provide by way of documentation? At a minimum, it must produce:

  • A copy of the original written agreement between the parties, such as the loan note or credit card agreement, preferably signed by you.
  • If the account has been sold to another creditor, then that creditor must prove that it has the right to sue to collect the debt. This usually means producing proof that the debt was assigned to it. Often such proof will be a bill of sale, an “assignment”, or a receipt between the last creditor holding the debt and the entity suing you.

What If the Collector Cannot Produce the Assignment?

If the creditor or collector suing you fails to produce proof of the assignment, then you can ask the court to dismiss the lawsuit. Again, you’ll have to prepare and file a formal motion with the court.

Counterclaims if the Collector Did Not Previously Verify the Debt

If the debt collector suing you previously did not verify the debt after you timely requested debt verification, you may file a counterclaim against that debt collector within the same lawsuit, requesting your own damages. Some states also allow you to countersue for damages against the creditor itself for failure to verify the debt.

An Important Article To Read From The New York Times

https://www.nytimes.com/interactive/2014/08/15/magazine/bad-paper-debt-collector.html

This is an eye-opening article written by Jake Halpern for the New York Times about the practice of junk debt buyers. I highly recommend reading this so that you can see what is going on behind the scenes with regard to charged off debts. This is a huge money making business, with junk debt buyers raking in billions.

Here is a quote:

“...buying up the right to collect unpaid credit-card bills. When debtors stop paying those bills, the banks regard the balances as assets for 180 days. After that, they are of questionable worth. So banks “charge off” the accounts, taking a loss, and other creditors act similarly.

The scale is breathtaking. From 2006 to 2009, for example, the nation’s top nine debt buyers purchased almost 90 million consumer accounts with more than $140 billion in 'face value.' And they bought at a steep discount. On average, they paid just 4.5 cents on the dollar. These debt buyers collect what they can and then sell the remaining accounts to other buyers, and so on. Those who trade in such debt call it 'paper.'"

From New York Times article by Jake Halpern

More from this article:

"Siegel quickly discovered that when he bought the right kind of paper, the profits were astronomical. He obtained one portfolio for $28,527, collected more than $90,000 on it in just six weeks and then sold the remaining uncollected accounts for $31,000. Siegel bought another portfolio of debt for $33,388, collected more than $147,000 on it in four months and sold the remaining accounts for $33,124. Even to a seasoned Wall Street man, the margins were jaw-dropping."

Another thing Halpern pointed out was that original creditors do not care what happens to the debt after they have sold it off to junk debt buyers. Here is another very enlightening quote:

"According to American Banker, in a series of transactions in 2009 and 2010, Bank of America sold millions of dollars of charged-off debt to a company in Denver called CACH. In the sales agreement, Bank of America said it would not make 'any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever' about the accuracy of the account information it was selling."

More from Halpern's article:

"In 2009, the F.T.C. said in a report: 'When accounts are transferred to debt collectors, the accompanying information often is so deficient that the collectors seek payment from the wrong consumer or demand the wrong amount from the correct consumer.'”

Here is one more reason from Jake Halpern's excellent about article why you should be questioning the legal right of the entity claiming to own your debt:

"The notion that a portfolio of debt could be stolen may seem improbable, but plenty of debt brokers are all too willing to sell 'bad paper.' Such brokers sometimes 'double sell' or 'triple sell' the same file to multiple unsuspecting buyers. Other times, a broker may sell paper that he does not own and obtained by nefarious means."


Letter Requesting Validation of Debt

Before you are notified that you are being sued by the plaintiff, but once the junk debt buyer notifies you that they are intending to collect the alleged debt, send them this letter requesting validation of the debt, and give them 30 days to comply. Save proof that you mailed this letter. Here is the letter:

I am sending this letter to you in response to a notice I received from you on (here, cite the date of the letter you received). Be advised that this is a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested. This is NOT a request for “validation” or proof of my mailing address, but a request for Validation made pursuant to the above named Title and Section. I am hereby requesting that your office provide me with competent evidence that I have any legal obligation to pay you. Please immediately provide me with the following:

*What the money you say I owe is for;

*Explain how you calculated what you say I owe:

*Provide me with copies of any papers that show I agreed to pay what you say I owe;

*Provide a verification or copy of any judgment if applicable;

*Identify the original creditor;

*Prove the Statute of Limitations has not expired on this account;

*Show me that you are licensed to collect in my State; and

*Provide me with your license numbers and Registered Agent.

If your offices have reported invalidated information to any of the three major Credit Bureaus (Equifax, Experian or TransUnion), said action may constitute fraud under both Federal and State laws. Due to this fact, if any negative mark is found on any of my credit reports by your company, or the company that your represent, I will pursue legal action against you for the following:

*Violation of the Fair Credit Reporting Act

*Violation of the Fair Debt Collection Practices Act

*Defamation of Character

If your offices are able to provide the proper documentation as requested, I will require at least 30 days to investigate this information, and during such time, all collection activity must cease and desist. Also, during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel. This includes any information to a credit reporting repository that could be inaccurate or invalidated, or verifying an account as accurate when, in fact, there is no provided proof that it is.

If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file, and a copy of such deletion request shall be sent to me immediately.

Further, no telephone contact shall be made by your offices to my home, or to my place of employment. If your offices attempt telephone communications with me, including, but not limited to, computer generated calls or correspondence send to any third parties, it will be considered harassment, and I will pursue legal action. All future communications with me MUST be done in writing and sent to the address noted in this letter.

Initiating Any Debt Collection Lawsuit

I have seen discussions by people who are unaware of what is legally required of debt collectors before they can file a lawsuit. I know of no better source for the answer to this than two paragraphs from a consent decree that was filed by the Consumer Financial Protection Bureau against one of the largest junk debt buyers in the United States. Note, "Respondent" refers to the junk debt buyer who was the defendant in this case. I present these two very informative paragraphs here for you:

119. Initiating any Debt Collection Lawsuit unless in possession of the following:

a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

c. the Charge-off Balance;

d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

What Is Subrogation?

I often advise people to request that the junk debt buyer show their right to subrogation of the debt, and I ask them to also request that the junk debt buyer show how much they paid for the debt. I do this partly to embarrass the junk debt buyer, because we all know that he paid pennies on the dollar for whatever debts he bought. How, then, does he come after you and claim that he has a right to collect $1,000 for a debt he bought for only $5? To fully understand this invaluable defense, one first has to understand what subrogation is.

But, before I go through this chapter, keep these two things in mind:

How does the junk debt buyer have rights of subrogation of your debt?

How does he justify paying $5 for your bad debt, then charging you $1,000?

According to Black’s Law Dictionary 1427 (6th ed.1990), subrogation is “...the substitution of one person in the place of another with reference to a lawful claim . . . so that he who is substituted succeeds to the rights of the other in relation to the . . . claim, and its rights, remedies, or securities.” I wonder if there is a legal term more debated and misunderstood than this one, yet the legal rulings regarding subrogation have been around since Emperor Hadrian of ancient Rome. Modified and further defined over the centuries, the idea still persists and is codified in today’s law. The rules of subrogation revolve around the relationships of those involved in the changing relationship of a debt. The terms for those involved in this debt relationship are “subrogee” and “subrogor.” The person who discharges the obligation is called the “subrogee,” and the party who is compensated is call the “subrogor.” In court papers, one often hears the explanation given that “the subrogee stands in the shoes of the subrogor,” the subrogee having acquired the subrogor’s rights to the debt.

To make this a bit more clear, here is an example: your car is hit by someone, so your insurance company pays you for your damages, then goes after the person who hit your car. The insurer, by right of subrogation, goes after the person who hit your car with all of the rights that you had, if you had gone after them yourself. Keep in mind that, once the insurance company pays you for the damages, you waive all rights and claims against the person who hit your car. Thus, the insurer is now standing in your shoes with all of your former rights to sue for damages. You are the subrogor, and the insurer is the subrogee. You got paid, the subrogee is now going after that sum from the person who hit your car.

Here is where it gets fun, and you have to pay close attention. Legal subrogation is not available to volunteers. What this means is that the party claiming a right of subrogation must establish that he is not a volunteer, but instead is under compulsion to satisfy the debt.

73 American Jurisprudence 2nd Edition section 93 subrogation

Subrogation will not be allowed to a third person who without any obligation to do so pays an indebtedness and this rule is fully applicable to payments of an indebtedness secured by a mortgage.”

So, the first thing that stands out is this fact: legal or equitable subrogation is not available to volunteers. Keep that in mind.

Equitable subrogation is a device created to compel the ultimate discharge of a debt by the person who should morally be the one due to pay it.

Home Owners’ Loan Corp. v. Parker, 181 Okla. 234, 235 (Okla. 1937).

What this means is best explained thusly. You borrowed your mother’s car, and you wrecked it. Your uncle steps in and buys your mother a new car, so that she can get to work. Then, he sets up a payment plan with you to pay him back, because you owe for the car. Your mother becomes the subrogor, and your uncle, by replacing the car you owe her, becomes the subrogee. Now, he comes after you, because, morally, you really are the one who owes for the car. So, this is the initial philosophy behind equitable subrogation. But, here is where it goes off the rails. Your uncle gives your mother a bicycle, then turns around and charges you for a car. That is not equitable subrogation! Yet, and here is where the lightbulb should go off in your head, a junk debt buyer purchases a bad debt for $5, then turns around and charges you $1,000! How is that equitable subrogation of the debt? And how did he become the legal subrogee with all rights to the debt? Doesn’t he have to pay dollar for dollar? In other words, doesn’t he have to pay $1,000 to the subrogor, if he is going to demand $1,000 from you? Car… bicycle... remember?

Legal subrogation is not available until the subrogor is fully compensated.

Legal subrogation is based on equitable considerations.

When a person pays the debt of another without any assignment or agreement of subrogation, s/he can be considered such a “volunteer”.

Hulen v. Hamilton, 2008 Tex. App. LEXIS 1672 (Tex. App. Fort Worth Feb. 28, 2008).

Here comes the junk debt buyer, and he claims that he is equitably subrogated to the rights of your original creditor. Well, if that is the case, he has to have satisfied this list of prerequisites:

  • Payment must be made by the subrogee to protect his own interest;
  • The subrogee must not have acted as a volunteer;
  • The debt paid must be one for which the subrogee was not primarily liable;
  • The entire debt must have been paid; and
  • Subrogation must not work any injustice to the rights of others.

Morgan Creek Residential v. Kemp, 153 Cal. App. 4th 675, 690 (Cal. App. 3d Dist. 2007).

I want you to really focus on that line… “The entire debt must have been paid.” How much did the junk debt buyer pay for your debt? The entire amount? No! And this immoral scam has grown into such a lucrative business with lawyers raking in huge profits, that our justice system has become its rubber stamp of approval. Total corruption! You are being charged for a car, but they paid for a bicycle. This is one of the reasons I call them blood suckers. The other reason is that the vast majority of people who have defaulted on their credit cards are basically good people. They did not default because they were deadbeats, but because the bottom fell out of their worlds and left them in dire circumstances. And it is while these good people are at their lowest ebb that these blood suckers come along to take the bread off their tables. So, yes, I like to help these good people turn the tables and win. It gives them a chance to get back on their feet and start over.

More About Subrogation

Traditionally, credit card companies attempted to collect their own debts. If this initial process was ineffective, then the credit card company assigned the accounts to collection companies. If the first collection company failed to collect, then the credit card company would re-assign the account to another collection company. Eventually, the credit card companies deemed this process too time-consuming and unproductive to be of financial value. They soon hit on a new idea—sell the debt. They got rid of their collection departments and went into a new business venture for selling off bad debt.

Around 1999, the credit card industry began to analyze the value of purchasing subrogation rights. It sounded like a great idea at first, but the credit card industry decided against it, because there would be legal problems once a case got into the courts and some smart lawyer decided to challenge the plaintiff with “First Dollar,” the term that refers to dealing with the insured’s (the credit card company) deductible. If one studies case law, various States require that the insured (the credit card company) be made whole before the insurance carrier can reap the benefit of subrogation. Under this statute, the credit card company has to get paid “first dollar” until the original creditor has been “made whole.” If the claim is purchased from the insurance company, what benefit is there for the insurance company to go to court on behalf of a junk debt buyer? Further, if the insurance company goes to court, how would it look for them to have their attorney subpoena the credit card company? So, the collection companies found an easier way around this difficulty.

They found that they could sue the debtors in court, the debtors would know that they owed the money, the debtors would run and hide, and therefore, once the case got to court, and the debtor did not show up, a default judgment would be issued, the debtor would now be indebted to the collection company, and a new and enforceable contract would now exist between the collection company and the debtor. And here is the Achilles heel of this: when a defendant answers, and a trial is scheduled, the insured and the claim representative are absolutely necessary in court in order for the plaintiff to prevail!

So, here are some things to keep in mind: Do not discuss the debt on the phone with collection companies, as they are recording your call and will use your admissions in court. Do NOT sign any promissory notes, as this is entering into a new and binding contract to pay the collection company the amount they are requesting. Answer the summons when you are sued, and tell the court that you will appear. Then, prepare your defense wisely, and go to court ready to win.

Can a Junk Debt Buyer Report You to a Credit Reporting Agency?

The answer is, "NO!" Why not? Because, the junk debt buyer was never a party to the original contract between you and your original creditor. For proof of this application, go to the US law encyclopedia, American Jurisprudence, 73 Am Jur 2d. Sections 90-93, and there, you will find that it states that the right of subrogation does not exist for a stranger to the transaction. In other words, a junk debt buyer, who is a "stranger to your original contract," cannot subrogate onto your original contract. They were not party to your original contract, nor did they have any interest to protect, so they cannot then try to claim that they have the status of successor in rights and interests. Thus, if they place your debt with a credit reporting agency, and they have not won ownership by presenting and winning their case against you in court, they have broken the law. Here just one of the reasons why:

Section 604 of the Fair Credit reporting Act specifically does not permit third-party collectors to "inquire" on your credit reports. It's called Permissible Purpose, which is what they would need in order to add or subtract anything with regard to your credit report.

You can read the entire section by going here:

https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf

What you will find is that nowhere does the law give a third party the right to your credit report. You will especially enjoy these words found therein:

§ 604. Permissible purposes of consumer report
a) In general. Subject to subsection (c), any consumer reporting agency may furnish a consumer report under the following circumstances and no other:

What follows is a description of your protections, and it clearly gives the junk debt buyer notice that, as a third party, a stranger to your original contract, they may not touch your credit report. They are a third party, a stranger to your original contract, and they cannot subrogate themselves onto that original contract. In order for them to affect your credit report, they have to enter into a contact with you, the consumer.

Transferring Your Account

All credit card companies can place a clause in your original credit card agreement which will read something like this: "We may transfer your Account and our rights under this Agreement to another person or company. That person or company will take our place in this Agreement. You must pay that person or company the amount you owe us on your Account (instead of paying us) if you are asked to do so." For this, I go back to one of the earlier points in my article: Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.


The collection agency does not have any signed agreement with you, and chances are that they probably do not even have a contract with the original creditor showing legal right of subrogation of the debt. The clause in the original credit card agreement is read to mean that the credit card company can transfer your account to another credit card company. While this point may be debated by some, I would argue in favor of the defendant and against the plaintiff on this one.

The Order of Transition in Credit Card Debt

Once the Account Becomes Delinquent - At 180 days from the last point of payment activity on an account, the company will usually designate that account as uncollectible. However, some companies may do this sooner, or wait a little longer, and that is their prerogative. When the company decides on this action, it will “write off” the account and list that debt against its earning for accounting purposes. This allows the company to reduce the amount it owes on taxes. The debt is now listed as “charged off.”

Charged off debts are still owing -The credit card company still owns the debt, and you still owe them the final balance. At this point, the credit card company can decide to pursue the debt themselves, or they can sell it to a junk debt buyer. If the bank sells the debt, they will adjust their accounting accordingly once the debt has been sold.

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.

Credit Report - Until the debt is paid in full, it will remain showing as unpaid on your credit report.

Why You Should Fight It In Court

In a 2015 Consent Order against Portfolio Recovery Associates by the Consumer Financial Protection Bureau, these two items should drive home the point that you simply do not want to run away and hide, like so many people do. You want to get your case together, organize your defense, and appear in court. I have highlighted several key elements in this excerpt that should show what is common practice with debt collectors. In this excerpt from that consent order, "PRA" stands for Portfolio Recovery Associates.

27. "Prior to PRA purchasing a Debt Portfolio, PRA typically receives an electronic file ("Sale File"), from the Seller that includes information about the Consumers and the Debts, including, but not limited to, name, address, social security number, as well as the current balance, contract interest rate, and dates of origination, last payment, and charge-off.

28. PRA is aware that significant inaccuracies may exist in the Sale Files it purchases, including that some Debts' balances were not reduced by a consumer's subsequent payments. For instance, when a PRA senior manager raised a concern about the poor quality of sellers' balance information and asked how PRA can know actual balances owed if it does not receive information on post charge-off payments, PRA's Vice President for Collections responded, "We don't. 90% of our cases are default judgments. We show the judge the math and if no one disputes we get our judgment. Debtor has the right to defend and prove us wrong. If they show payments we've missed we amend the complaint."

"90% of our cases are default judgments." That means that these debt collectors did not even have to put up a fight. Consider the fact that Portfolio Recovery Associates purchased more 4.7 billion dollars in debts in 2013 alone,and you can see why they keep on doing this to people.

I also repeatedly advise people to demand an accounting to show how the debt collector arrived at the alleged total that they are demanding. Here, from that same consent order, is an example of why I repeatedly advise this:

"For example, a 2009 purchase agreement with one large bank explicitly stated that account balances are "approximate" and "may not reflect credits for payments made by or on behalf of the [consumer] prior to the cut-off date."

Read These Two Very Important Consent Orders

I cannot emphasize how important it is to thoroughly study these two consent orders that were ordered against two of the largest junk debt buyers by the Consumer Financial Protection Bureau:

The Encore consent order can be found at:http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

The Portfolio Recovery Associates consent order can be found at:http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

A Deceptive Collection Practice

Junk debt buyers often want you to think that they are the original credit card company coming after you. For them to state this, when it is not fact, is fraudulent and illegal. But that does not stop them from trying to make you think that they are representing the original credit card company by using clever wording that skirts close to the edge of illegal. Here is an example of one letter from a collection company.

"Dear (Your Name Here),

The above referenced account has been referred to our office for collection of the balance in full. Previous attempts have been made by our client to resolve this debt voluntarily. As of this date, those attempts have not been successful. (Name of the collection company here) has been authorized by our client to provide the necessary effort to collect this debt. We recommend that you take advantage of this opportunity to pay the balance in full to prevent further collection activity."

Below this paragraph was the obligatory notification that you had 30 days to dispute the validity of this debt, but what most people tend to do is this; they read this first paragraph, think their original creditor is coming after them, they panic, and their brain fogs over. What are they missing? Lots!

First of all, in this particular case, this was a letter from a junk debt buyer, not the original creditor. So who, you may ask, is "their client?" Good question! Because it most certainly was NOT the original creditor. Why? Because this account had been closed and charged off due to a bankruptcy taken by the person who held the original credit card. That account was written off in 2003, and here was this junk debt buyer posing as representing the original creditor...in 2009! This account was closed and now was time barred by statute of limitations, yet here was this junk debt buyer insinuating that they had a "client" relationship with the original creditor. A good lawyer could get this junk debt buyer in a lot of trouble.

Consider this as well, the junk debt buyer is warning the recipient that they should pay the "full balance" so as to "prevent further collection activity." First of all, this junk debt buyer bought this bad debt for about one cent per dollar, so, for their investment of $50, they were trying to collect $1500. It reads: "Please detach the upper portion of this notice and return with your payment in the enclosed envelope." Nice try, blood suckers.

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Rodney Miner

Kellogg, Idaho 83837

208/786-2810

Defendant

IN THE DISTRICT COURT FOR THE FIRST JUDICIAL DISTRICT FOR THE STATE OF IDAHO, IN AND FOR THE COUNTY OF SHOSHONE

MAGISTRATE DIVISION

Cavalry SPV I, LLC,

Plaintiff,

vs.

Rodney Miner,

Defendant.

Case No.: CV-2017-586

RESPONSE TO MOTION FOR SUMMARY JUDGMENT

Rule 56 states that a court should only grant summary judgment if the moving party shows that there is no genuine issue of material fact. Defendant Rodney Miner, pro se, does hereby submit his Response to Plaintiff’s Motion for Summary Judgment. Defense shows that none of the evidence submitted in PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT is admissible, therefore, Cavalry SPV I, LLC failed to demonstrate that it is the owner of the account in question. Defendant asks the court to deny the PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.

MEMORANDUM OF POINTS AND AUTHORITIES

I. Fact

Cavalry SPV I, LLC Has Failed to Provide Any Admissible Evidence to the court.

Legal Argument

The supporting affidavits and the documents attached to them lack evidentiary underpinnings.

There is not sufficient demonstration of the competency of the affiants to testify, there is not sufficient foundation for the documentary evidence, and there is no evidence of the necessary linkage between the bulk account sale and the individual account of the defendant. The entirety of the documents submitted for motion for summary judgment by Plaintiff consist of two affidavits, Bill of Sale, Notification File, four credit card statements and a copy of the cardholder agreement.

The affidavits would be admissible under the Idaho rules which state that business records are admissible given a statement from a custodian of business records which are created in the normal course of business. This rule has long been held to a high degree of veracity. Christensen v. Rice, 763 P.2d 302, 114 Idaho 929, 934, 763 P.2d 302, 307 (Ct.App. 1088).

Idaho rule 803(6) Hearsay Exceptions; Availability of Declarant Immaterial outlines what are not excluded by the hearsay rule for records of regularly conducted activity.

Idaho Rule of Evidence 902(11) provides for the self-authentication of certified records of regularly conducted activity.

The two affidavits submitted with the request for summary judgment must meet the stipulation of these two Idaho Rules.

The Affidavit by Shannon Wiltgen, the only one offered by an employee of Synchrony Bank, states that she is a Documentation Specialist and that her bank sold a pool of chart-off accounts to


Cavalry SPVI, LLC on 3/23/2017. Wiltgen states, “As part of the sale of the Accounts, electronic records and other records were transferred on individual Accounts to the debt buyer.” Wiltgen also states, “These records were kept in the ordinary course of business of Synchrony Bank.” Wiltgen, as employee of Synchrony Bank working with the ordinary business records of Synchrony Bank falls under the exception to the hearsay rule.

The Synchrony Bank records would have been ordinary records until the account data files were were culled, separated, reorganized and restructured into a separate electronic file. This process of creating the new electronic data file was not the mere daily data entry of ordinary record keeping. Nor was it ordinary record handling to transfer this reorganized file to another business. Wiltgen states, “The Creditor has a process to detect and correct errors,”. Though Wiltgen is a Documentation Specialist there is no evidence of the algorithms or criteria used for the selection of accounts or error free process. If this file were to be used in evidence, substantially more foundational information would have to be provided, probably by an expert witness who has substantially more background knowledge than demonstrated by Shannon Wiltgen’s Affidavit. The affidavit does not provide the foundation to testify that this file was accurate, or complete, or reliable for later use by Cavalry SPV I, LLC. The reorganization of the ordinary data into a culled data file to be transferred to another company created non-ordinary business data that falls outside of the rules of I.R.E 902(11) and I.R.E. 803(6), making Shannon Wiltgen’s Affidavit inadmissible. MIDLAND FUNDING, LLC,. CV- 1 4- 8 3 O-C. Plaintiff/Respondent, vs. MEMORANDUM DECISION. BARRY STIMPSON.

In the second affidavit Sheila Pinckney states she is employed by Cavalry Portfolio Services, LLC (CPS), but “preforms collection services for Cavalry SPV I, LLC”. Under her signature line is says, “Legal Administrator”. Pinckney states, “I am familiar with the manner and method by which CPS and Plaintiff maintain computerized account records and documents for account holders.” It is unclear how these two companies share computer information. Pinckney goes on to state, “CPS and Plaintiff maintain such records in the ordinary and routine course of business and it is their regular business practice to accurately record any business act, condition or event onto the computer record maintained for the accounts, with the entries made at or very near the time of any such occurrence.” In effect, Pinckney as Legal Administrator of Cavalry SPV I, LLC, is testifying that Cavalry SPV I, LLC by Pinckney has authorized CPS, acting through Pinckney as its legal specialist, to prepare the identified documents. Therefore, the same person is authorizing the action and carrying out the action. It is a stretch to put all of these evidentiary steps onto a single witness. The real problem is a different one. Though we don’t know which company holds the business data or how they share it, we do know the relevant information is the electronic data file that was transferred to Cavalry SPV I, LLC from Synchrony Bank. The relevant data is the existence of the separate account for the Defendant, the identifiers of that account, the transaction history of that individual account while it was active, and the balance due upon its transfer to Cavalry SPV I, LLC. None of this data was created or sourced into the computer records while they were maintained by Cavalry SPV I, LLC or CPS; all of it would have been created or sourced by the bank.

Sheila Pinckney may be qualified to explain what CPS did or Cavalry SPV I, LLC, with respect to its own records or data created during its time, but she cannot establish a foundation for the bank data — she has no personal knowledge, she was not a custodian of the bank’s records while they were with Synchrony Bank, and the records in the Plaintiff’s possession do not qualify as ordinary business records. Because the electronic file transferred to Cavalry SPV I, LLC did not come to the Plaintiff as ordinary business records of Synchrony Bank, it cannot be said that the data in this file became routine business records of Cavalry SPV I, LLC or CPS, maintained in the ordinary course of business. Therefore, the documents created by Pinckney from Cavalry SPV I, LLC’s or CPS’s copy of the electronic file from the transferred accounts could not be said to be routine records maintained in the ordinary course of Cavalry SPV I, LLC business. This means that Sheila Pinckney’s Affidavit is inadmissible and Pinckney did not have a foundation to be a witness to identify the source documents, the monthly statements or the cardholder agreement. Furthermore, she avers that she is an employee of Portfolio Services, LLC. This means she is not an employee of the bank or Cavalry SPV I, LLC, and therefore has no cognizable standing as either a custodian or qualified person to establish the nature of file data as a business entity, without first establishing an adequate foundation of the witness as a person with actual knowledge, and then establishing how she obtained any of the knowledge to which she testifies.

Without a witness from Synchrony Bank with knowledge and expertise to walk the court through the steps of culling the necessary data pertaining to the accounts which were to be transferred from the regular business records of the bank, then getting the data into particular computer files for transfer from one system to another, and finally in actually getting the data files transferred and up and running with Cavalry SPV I, LLC, there is no one to testify on behalf of the Plaintiff. Therefore the Plaintiff has no way to prove he owns an account for which he seeks payment and reimbursement of costs.

Finally, the transferred data files were not regularly conducted business activity and therefore are not admissible Hearsay exceptions as defined by Idaho Rules of Evidence Rule 803.

Next, we address The BILL of SALE. The bill of sale is signed by Ken Wojcik, SVP Collections & Recovery for Synchrony Bank. The BILL of SALE states that the Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its successors and assigns, without recourse except as set forth in the Agreement, to the extent of its ownership, the Accounts as set forth in the Notification File. There were no representations or warranties provided in the attached bill of sale. He would be competent to testify from personal knowledge that the electronic file was the mechanism used to transfer the accounts to Cavalry SPV I, LLC. He does not have the foundation to testify that the file transferred was accurate, or complete, or reliable for later use by Cavalry SPV I, LLC in managing collection efforts.

Further, Plaintiff does not include in Exhibits a copy of its contract with Synchrony Bank. It is therefore not shown whether Synchrony Bank has expressly disclaimed all representations as to the accuracy of information or the accuracy of the current balance or interest on the accounts it has sold to Cavalry SPV I, LLC. The Federal Trade Commission has stated that sellers disclaiming the accuracy of the information they sell to debt buyers is common and recurrent (FTC DEBT BUYER REPORT, supra note 2, at iii, 25). The Restatement (Second) of Torts describes a fraudulent misrepresentation as being when the maker “does not have the confidence in the accuracy of his representation that he states or implies” or “knows that he does not have the basis for his representation that he states or implies.” Without a copy of the underlying contract, Defendant has no objective way to assess the veracity of Plaintiff’s claim. The FDCPA is a strict liability statute intended to be “liberally construed to protect consumers” (Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1271 (11th Cir 2011). Scienter is not an element of proving an FDCPA violation. Misleading or deceptive representations made as a result of carelessness or negligence are actionable under the FDCPA. All a court needs to find for an FDCPA violation is that the communications from the debt buyer to the consumer would have been misleading to the least sophisticated consumer (Weston v. Northampton Personal Care, Inc., 62 A.3d 947, 1019 (Pa. Super. 2013)).

In Plaintiff’s submitted documents and brief there are two contradictory Balances which Plaintiff claims Defendant owes, in Exhibit 1 for $4,078.57 and in Exhibit 2 for $4,116.57, demonstrating thereby a lack of sufficient indicia of trustworthiness for accounting in this instance to be considered reliable (Thanongsinh v. Board of Education, 462 F.3d 762, 778 (7th Cir. 2006)).

Defendant is entitled to recover its costs.

III. Conclusion

There is a genuine issue of material fact that Cavalry SPV I, LLC cannot show ownership of the alleged Synchrony Bank credit card debt. Defendant respectfully asks that Summary Judgment be denied.

DATED this fourth day of January, 2018

_________________________________

Rodney Miner

Defendant Pro Se

COPY of the foregoing sent via U.S. mail this fourth day of January, 2018to:

John H. Wilkinson ISB #8597

Machol & Johannes, LLC

1412 W. Idaho Street, Set 238

Boise, ID 83702

Attorney for Plaintiff

Sent by: Rodney Miner

More Great Material Shared By Rodney Miner

Go to this link and study it well. Some really great material is in this case that was fought and won by one of our readers, Rodney Miner. He put up a great fight and won. Read this to see how he did it. Great job!

https://www.nclc.org/images/pdf/unreported/midland-v-stimpson_appellate_decision_12162014.pdf

Order To Dismiss Without Prejudice Provided By Rodney Miner

Notice, Cavalry had to pay the court costs to the defendant.
Notice, Cavalry had to pay the court costs to the defendant.

Here is the Timeline for Rodney Miner's Case

Here is the Rodney Miner suit Timeline.

11/07/17 Served SUMMONS

11/22/17 ANSWER TO COMPLAINT AND COUNTER CLAIM paid $136 to file

11/28/17 Received from the court NOTICE OF HEARING:

Pretrial Conference: Monday, January 8, 2018

Status: Monday, February 12, 2018

Court Trial: Wednesday, February 28, 2018

12/04/17 Arrived in the mail and a big heavy envelope full of legal documents — PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, MEMORANDIUM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF’S STATEMENT OF COSTS AND DISBURSEMENTS, NOTICE OF HEARING schedule for 01/22/18 (schedule by attorney for summary judgment)

01/04/2018 Rodney filed, RESPONSE TO MOTION FOR SUMMARY JUDGMENT

01/08/17 Went to Pretrial Conference, reschedule motion for summary judgment hearing till 01/31/18.

01/22/18 Received in the mail from attorney STIPULATION FOR ENTRY OF JUDGMENT offering a reduced settlement.

01/31/18 Went to summary judgment hearing where case was dismissed.

If You Are Being Sued by Johnson, Riddle & Mark, Read This

I had a person write to me about a company that is taking him to court, and this company even claimed to be hired directly by Capital One. Everyone should remember this important fact: any collection company that states that they are directly hired by an original creditor must be able to prove that such a relationship exists, otherwise, this is a criminal offense, and you can sue them. I have often said that these blood suckers like to skate very close to the edge when making their harassing claims. So, do your homework, research them when they come after you making scary claims of representing your original creditor. Here is some very interesting material on Johnson, Riddle and Mark:


https://www.creditinfocenter.com/community/topic/318471-johnson-mark-llc-attorneys-or-debt-collectors-or-both/

https://www.ripoffreport.com/reports/johnson-riddle-mark-llc/draper-utah-84020/johnson-riddle-mark-llc-attorneys-for-plaintiff-capital-one-bank-usa-judgement-on-cred-504261

https://forums.debtcc.com/settlement/thread57219.html

Another Very Interesting and Educational Link

https://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

Defending Junk-Debt-Buyer Lawsuits by Peter A. Holland

I found this extremely well-written and priceless gem of an article, and I give it my highest marks. You would do well to read it, make copies of it, and study it until you know it by heart. What an excellent resource! The article is titled:

Defending Junk-Debt-Buyer Lawsuits by Peter A. Holland

You can find it here:

http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2206&context=fac_pubs

Three cheers for Peter A. Holland for the best article I have ever read on this subject.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.

Questions & Answers

  • I no longer reside in the county where the bank is trying to sue me. They are trying to serve it at a mail drop box address. The suit is filed in FL - I am currently in NJ. Which state is best to fight this in? Bankruptcy is NOT an option.

    Your best option is always to fight in the venue closest to your current address.

  • I am being sued locally by Calvary who purchased my Citibank (home depot) debt. My question is this: when I respond, do I respond differently, since they are not the original creditor? Is it okay to ask for additional information, since their Exhibit One sales information is marked through and unreadable? I know that is because they bought multiple accounts, but I am trying to figure out the best approach. Any guidance is greatly appreciated.

    The typical response is outlined in my article and the accompanying materials that I have posted. Answer the summons indicating that you will appear in court, and do so before the expiration of the time limits. Send the plaintiff a request for production, even though they may choose not to comply. You can use that as leverage later in court, but it basically lets the plaintiff know that you are not going to run away. Instead, you are going to put up a fierce fight, and you want them to know that.

    Yes, you may ask them for additional material, which is why I say to send them a request for production. And you are right, they bought thousands of accounts and have insufficient documentation to win their cases if you do your homework.

  • Why would a plaintiff file in district court rather than magisterial?

    It depends on the amount of money they are pursuing. Amounts under $12,000 can go before a magisterial court, amounts over that must go to the higher courts. If the amount they are pursuing you for is under that amount, then check with a local attorney to see if there is some rule in your county jurisdiction that allows lower amount suits to be pursued at the district court level. However, there are locales where the magisterial court is the district court, so check to see what it is that you are dealing with. In one, you can argue your own case, in the other, you most definitely cannot.

  • I asked for production and they sent six months of credit card statements, is that adequate on their part? They did not send the original contract, signed transactions etc.

    What are those six months? Are they actual proof of the last six months that this card was active, or are they a random six months? Where is their accounting for any payments that were made to this account? Where is their copy of the original signed agreement between you and the original creditor, and where is their proof of any modification to your original contract, which modification would permit them to service the account? How are they capable of servicing that account, if they are not a credit lending company?

    Also, where is their proof of legal right of subrogation of the debt? How much did they pay for this account? How do they justify how much they are trying to charge for it? For example, if they claim that you owe them $ 1,000, they probably paid about $5 for it, so how do they justify the amount they are charging you in the suit? How are they damaged to that amount? Research "scienti et volenti non fit injuria," and know what it means.

    And remember, the legal right of subrogation of the debt means that the junk debt buyer should be reimbursing the original creditor for the total amount that they are claiming. Are they?

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    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 hours ago from Pennsylvania

      Aaron Tomlin,

      I am glad that you are getting some good advice from a local attorney. Had an attorney been in that courtroom, they would have put a quick end to that "hearsay" phone call with a deft objection.

      Good luck to you,

      Brian

    • profile image

      Aaron Tomlin 

      15 hours ago

      TY, Mr. Gray, this is so exciting!!!...LOL yes your description was accurate, I did have a strategy but not prepared, and very nervous!!!..He denied my objection and allowed the phone call from PR, we could not hear her clearly, and she could not hear us, a shitshow!!!....so yes I was properly served, went to pre-trial remediation another shitshow!,...the tried to make it seem that my Original Creditor was on the speaker phone, deceptive, I called them out on it and went to trial yesterday, yes they list themselves as an assignee, and yes they have provided 1 affidavit with original creditor and $ owed, and last 4 of account #, a really phony looking Bill of Sale, that has clearly been doctored, They have filed a motion for summary disposition, the Judge printed off the documents for me and gave me until tomorrow to reply, I have spoken briefly with counsel here in the State of Florida, and will have some help going forward, she advised me to compile a sworn statement, and have it notarized then submit it to the clerks office, I have read all of this post and it is helping me so much, ty again kind sir...

    • Hanavee profile imageAUTHOR

      Brian Gray 

      28 hours ago from Pennsylvania

      Mrs T,

      There is no law that says that you have to maintain records. Your lack of records cannot be construed as an admission of guilt. The plaintiff must still prove their case. Furthermore, it is not your responsibility to prove their case. The burden of proof always rests upon the plaintiff, and before they filed suit, they are required by law to have sufficient proofs on hand to warrant their claim, which proofs are to be attached to their complaint in compliance with the rule of attachments. If they are still asking you for documents, that clearly indicates that they lack sufficient proofs to have filed in the first place. I would motion that the case be dismissed for lack of standing on their part, and I would cite their obvious lack of proofs.

      Don't forget, in order to file suit, they must follow these guidelines:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      28 hours ago from Pennsylvania

      Darren,

      Congratulations! I am proud of you! You studied, did your homework, and you denied these blood suckers another victim. Good for you. Time to celebrate.

      Thanks for sharing your wonderful experience,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      28 hours ago from Pennsylvania

      Aaron Tomlin,

      Sounds like you took a crash course and received a "Do Over" from the teacher. Since I don't know anything about your particulars, the first thing I would look at would be these items:

      Were you properly served?

      Were you sent a dunning letter before they filed suit?

      Are they junk debt buyers, or the assignee? (My bet is that they are junk debt buyers.)

      Did they provide affidavits from the original creditor showing a complete and accurate accounting for the amount they allege is owed?

      Here, from a consent decree issued in September of 2015 by the Consumer Financial Protection Bureau, is what they are required to have in hand before they can even file suit:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

      Finally, read my section on subrogation of the debt, then ask that they show their legal right of subrogation of the debt. I would embarrass them by asking them this: how much did they pay for the alleged debt? (It was pennies on the dollar.) They will not answer this, but get the judge to force them to by filing a motion to compel, if necessary. If they paid $5 for this debt, as an example, how then do they come after you for $1,000? Quoting "scienti et volenti non fit injuria," one is not injured who knows and wills it, ask them how they are injured? They knowingly bought a bad debt. How are they injured to the tune of $1,000?

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      29 hours ago from Pennsylvania

      cdectough,

      That is great to hear. Good luck to you.

      Brian

    • profile image

      Mrs T 

      35 hours ago

      Hello. Brian

      PRA gave me till April 15 to respond to their interrogatories. I respond and got a reciept it arrived to them april 13. I just got a letter that they moved the court date from july 7 to may 30. The letter is a motion of motion of the order truth of facts. They also included that we failed to respond to the their request of documents which they we're asking for bank statements. I dont know what else to do. Im filing a motion to dismiss & request of documents hopefully this works.

    • profile image

      Darren 

      35 hours ago

      So, I won.

      They sent me an email asking about pre-trial disclosures and again bringing up settling. I let them know I had already filed the disclosures and I would not even entertain the idea of settling unless if was for whatever they actually paid for the debt.

      I also communicated that we both knew the weaken of their case: their evidence and affidavits and so on.

      They sent me an email back later that day saying they wanted to simply have both parties "walk away" and dismiss the case.

      I post this here because I want people to know you can fight and you can win. Most lawyers will tell you to settle or whatever. Just understand you can do better than that.

      Thanks in no small part to the help from Brian and others who have shared their experiences, I was able to win. Thank you Brian.

    • profile image

      Aaron Tomlin 

      38 hours ago

      I went to court today, I read the scripts presented above, it kinda worked, lol, the Judge gave me 48hrs to come up with something better to refute their claim, or else I am doomed!!!...need advice quick!!! I am in Florida

    • profile image

      cdectough 

      43 hours ago

      Hi Brian,

      That's exactly what happened. I just got in touch with a lawyer and will be suing after we take care of getting their lawsuit dismissed. The info on our article has been tremendously helpful! Thank you so much!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 days ago from Pennsylvania

      cdectough,

      From what you are saying, Citibank was on your credit report? And they are no longer on that same credit report?

      And are you saying that Cavalry and Portfolio are on your credit report?

      Junk debt buyers cannot legally enter anything on your credit report without a court judgment against you, so, if they have not received a judgment in their favor for a debt, they cannot report any debts to the credit reporting agencies that belong to you and your original creditor. They are "third party," "strangers to the contract," so if you find that they have done this without a prior judgment from the court, you need to contact a lawyer and sue them.

      Legal right of subrogation of the debt means that they satisfied the original claim, the amount your original creditor claimed was owing and unpaid. Therefore, you would send them a request to show their legal right of subrogaton of the debt, and give them thirty days to comply. When they fail to do so, which they will, add that failure to comply into your list of affirmative defenses.

      Brian

    • profile image

      cdectough 

      2 days ago

      Hi Brian,

      Thanks for the quick reply! Just to clarify, the credit report doesnt have anything by Citibank listed at all anymore. Cavalry and JH Portfolio are in the CR, both with Citibank as the original creditor.Is there a way to determine ahead of time if they have legal right of subrogation of the debt or is the only way to determine that is to request them for documentation? thanks again, Sir!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 days ago from Pennsylvania

      Ashley,

      There can be no good reason that a known junk debt buyer would be offering you money. Read the fine print, either on the back of the check, or in the accompanying letter. Cashing any check from them can constitute an agreement.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 days ago from Pennsylvania

      cdectough,

      A junk debt buyer cannot legally report a debt to a credit reporting agency, so the fact that it is not listed yet may indicate that the debt is still in the hands of the original creditor. It also may be because of the timing of the last activity on the account until the present. Cavalry is a known junk debt buyer, and they cannot, at the same time, be an "assignee" and owner of all title and interest. Claiming ownership would suggest legal right of subrogation of the debt. Study the information I have supplied on this subject in my article. Also, study the very helpful material that was supplied by Rodney Miner who fought Cavalry and won.

      Good luck to you,

      Brian

    • profile image

      Ashley 

      3 days ago

      I received a letter from Midland Funding from Credit One Bank they sent me a prepaid debit card for $25 just for me to speak with them. Is this even legal I’m just curious to know

    • profile image

      cdectough 

      3 days ago

      we received a summons from Cavalry SPV here in Illinois/Chicago. The Complaint attached says that Cavalry

      is the assignee and bonafide owner of all right title and interest. It also has what looks like

      the front page of the Citibank account summary with the amount but it doesnt even have a

      complete account number. Is there a way to find out if they are the assignee other than

      having them furnish the proof? If they are the assignee, does that change the game and they

      can pursue and the strategy laid out in your blog will be ineffective? What's weird is we checked my wife's

      credit history and there was nothing from Citibank on it. Is it because Cavalry (which

      is in the credit report) is the assignee?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 days ago from Pennsylvania

      Jerry,

      You've got my vote of confidence. Good luck to you. Here's to another win.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 days ago from Pennsylvania

      I don't know why this is happening, but for those of you who are posting questions on the QandA section, they are not posting, so here is the latest one:

      I sent the request for production to the attorney "representing" Wells Fargo. They answered every question with the same, vague, "...unduly burdensome upon the plaintiff... requires the plaintiff to speculate in order to attempt to provide a substantive response." They answered every question like this! My court date is April 30th. Can I ask for a dismissal based on this lack of evidence, or should I file a request for dismissal prior to court? edit

      7 hours ago

      Answer:

      You have a legal right to answers under Rule 34. Their answers lack specificity, and thus, under Rule 37, you can file a motion to compel. See the clerk of the court for the appropriate forms. Cite them for lack of compliance with Rule 34 and lack of specificity. If they fail to answer a motion to compel, then you can file for dismissal.

    • profile image

      Jerry 

      3 days ago

      Thanks for the advice Brian. I won this same case last year with your advice and info on this page and I am confident I will win this year

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 days ago from Pennsylvania

      This question was asked on the question section, and for some reason, when I answered it, neither the question nor my answer went anywhere, so, here it is:

      Hello, Brian. What an article! I loved every bit of it. It gave me better confidence! I couldn't find the part where you explain what my good arguments are, if the plaintiff (Portfolio) is really being assigned the debt by Capital One, the original creditor. In one of your answers, you said I can ask them flat out if they are really assignee or not. How? By phone or certified letter? Again, what should I do if they are really the assignee? By the way, they are requesting the full amount. edit

      3 hours ago

      Answer:

      Simply send them a letter requesting that they show that they are assigned this debt by the original creditor. Send it via certified mail, return receipt requested. This way, you have a record of their answer, because, if they claim to be the assignee, and they are merely junk debt buyers (which is what I assume they are), then anything they do, in writing or otherwise, to appear as something they are not can be held against them in court. Save a copy of your request letter, and save your certified mail receipt as proof that you made this request, then save anything from them as evidence should you find that they have misrepresented their status. Portfolio Recovery Associates is a well-known junk debt buyer, and they were sued by the Consumer Financial Protection Bureau in 2015.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 days ago from Pennsylvania

      GregTC,

      If you go to my article, near my picture, you will see the words "Contact Author." Just click on that, and you will be able to email me directly and privately.

      Yes, if they so claim, then they have to show proof that they are assignee of the account.

      Brian

    • profile image

      GregTC 

      5 days ago

      Hi Brian,

      Do you have an email where I can send you my original answer to their summon with my defenses and their response?

      I do not have a lawyer so its hard but thank you for all your help

      So need to ask the Judge on the hearing day that Reese Law has to prove that they are assigned by Wells Fargo to represent or show me the affidavit as proof they are legally representing Wells Fargo ?

      Thank you,

      Greg

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 days ago from Pennsylvania

      Jerry,

      Sometimes it is hard to know what is in the mind of some judges. You almost get the feeling that they are biased in favor of the junk debt buyers. Midland was sued successfully by the Consumer Financial Protection Bureau in 2015, and the consent decree, which I posted on the site below my article, is filled with powerful evidence to be used against Midland and others, so I would highly recommend studying that consent decree for information that would help your case.

      Secondly, whatever flaws were in their proofs at the beginning are still there today, so you need to exploit their lack of proofs. If they withdrew back then (which shows unpreparedness on their part), they need to fully withdraw now, because it is highly unlikely that they have spent the past six months locating the evidence they needed to repair their case and win. I would file a motion to dismiss, and I would list as one of my reasons that they lacked standing. In order to file suit in the first place, they are required to attach to their complaint sufficient proofs to support their claims. This is called the rule of attachments. If they had attached sufficient proofs at the beginning when they filed suit, then why did they withdraw? The answer is apparent, they lacked sufficient proofs, therefore, they lack standing. They should not have been permitted their suit, and I would challenge it on those grounds.

      I would add that they need to attach affidavits from the original creditor showing a complete and accurate accounting of the amount alleged owed, and you will find these requirements in the 2015 consent decree. It sounds to me like they cannot produce these, so hold them to this.

      I would also chat with one of the lawyers at www.nolo.com to see if they have any light to shed on the idea of prosecutorial harassment. There is a limit to how many times a party can retry a suit, and you will need their guidance as to what missteps have been committed by the plaintiff. Nolo puts you in contact with lawyers from your state, so their advice is local and of greater relevancy.

      Good luck to you,

      Brian

    • profile image

      Jerry 

      6 days ago

      Hi Brian I am back again I had a question I am in Virginia and I am being sued by Midland. I went to court last year this exact same time for same case with Midland and they decided to file nonsuit but I ask the judge will he dismiss the case and he said he would give them 6 months to file again . The court order shows they filed in January. What advise would you have for me because I followed your advise last year and both junk debt buyers never showed up to court but just sent a messenger to file nonsuit but this is like harrsement Brian will they do this every year hoping I give up

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 days ago from Pennsylvania

      GregTC,

      They cannot hide behind that flimsy legal maneuver. A proper and legal interrogatory must be answered, and their attempts at avoiding answering throw up red flags, suggesting that they are junk debt buyers, and two, that they don't have sufficient evidence to win in court, should a good attorney nail them with the right questions.

      Point out to the judge when you are in court that you asked certain questions of the plaintiff in your interrogatories, and they refused to answer. If there is sufficient time before the trial, you could file a motion to compel, and the judge could order them to comply with answers. The judge would give them a time limit within which they must comply, and their failure to do so would then give you the right to file a motion to dismiss with prejudice.

      Remember this, they are required to have sufficient proofs on hand before filing suit, which proofs were supposed to be attached to the complaint filed, a copy of which was required to be sent to you. If they did not have sufficient proofs attached at the time of filing, you could then file a motion stating they lack standing, and motion the case be dismissed.

      Remember, they have to have, in hand, affidavits from the original creditor showing a complete and accurate accounting for the amount they allege is owed. If you want to cite law for this, the 2015 consent decree issued by the Consumer Financial Protection Bureau against several of the major junk debt buyers laid down the guidelines for what they are required to have in their possession. Here it is:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

      You might want to rattle their cage and send them this via certified mail, return receipt requested, then show the judge their answers to it. Also, if they are merely junk debt buyers, and not assignees, I would hammer them over that, too. However, if they turn out to be junk debt buyers who merely purchased the bad debt, ask them to show the court how much they paid for the debt, because they would then have only paid pennies on the dollar, then ask them how they justify charging you $1,000 , as an example, for something for which they only paid $5. They will balk at that, no doubt, but it is not an idle question, and it deserves to be answered.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 days ago from Pennsylvania

      GregTC,

      Since you applied online for the original credit card, they won't need to produce a signed contract to prove ownership of the account. All they need is to prove that you used the card.

      That being said, they still have to prove that they are the assignee of the debt. For them to say that they would have to ask Wells Fargo for an answer as to whether or not they could settle for less than the full amount alleged owed is claiming that they are the assignee, and it is highly unusual that the original creditor would go for a reduction. I could be wrong, but I am suspicious of this, and for this reason, I would demand their proof that they are the assignee for this alleged debt.

      If they are the actual assignee, it will be a different battle, but if they are merely junk debt buyers who purchased this debt, the mere fact that they misrepresented themselves is criminal conduct, punishable by law. So, go after this, find out what their status is, and demand to know this.

      If they are merely junk debt buyers, my article will give you all the technical information you need. Of course, you are always free to ask me questions if you need help.

      Brian

    • profile image

      GregTC 

      7 days ago

      Hi Brian,

      I can provide to you the response from the law firm pretending to represent Wells fargo to my response defense

      Basically to each of my defenses they responded with "Objection..

      The request is vague and ambiguous and unduly burdensome ... "

      Thank you,

      Greg

    • profile image

      GregTC 

      7 days ago

      Hi Brian,

      Its me Greg again...

      The law firm that they are claiming representing Wells fargo did send their response to my Request for Production with a huge box with copy statements from my previous credit card with Wells fargo. Because I applied online for that credit card I do not see any signature. I tried to negociate with the law firm and they said they need to ask Wells fargo which I did 3 times already and they always saying they need to get answer from Wells fargo

      From 18k they said Wells fargo reduced to 11k

      On may 11 I have a hearing at court local in California

      What should I do If I go to court?

      Thank you,

      Greg

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 days ago from Pennsylvania

      I was asked a question by someone anonymously, and both the question and my answer disappeared. Whoever anonymous was, I hope you read this, as this was my answer to your question:

      First of all, they are admitting that they are purchasers of the alleged debt, and not assignees. That's a good start. I would send them a request for complete and accurate accounting of the amount alleged owed, and that accounting must be in the form of affidavits from the original creditor. Electronic records of purchases may show use of the account, but they do not show the amount alleged owed. That can only be by verifiable statements from the original creditor stating that, at the close of the account, the correct balance due was as stated, and that statement must be an affidavit from none other than the original creditor. Secondly, I would request that they show legal right of subrogation of the debt. Here is an excerpt from my book on this subject:

      I often advise people to request that the junk debt buyer show their right to subrogation of the debt, and I ask them to also request that the junk debt buyer show how much they paid for the debt. I do this partly to embarrass the junk debt buyer, because we all know that he paid pennies on the dollar for whatever debts he bought. How, then, does he come after you and claim that he has a right to collect $1,000 for a debt he bought for only $5? To fully understand this invaluable defense, one first has to understand what subrogation is.

      But, before I go through this chapter, keep these two things in mind:

      How does the junk debt buyer have rights of subrogation of your debt?

      How does he justify paying $5 for your bad debt, then charging you $1,000?

      According to Black’s Law Dictionary 1427 (6th ed.1990), subrogation is “...the substitution of one person in the place of another with reference to a lawful claim . . . so that he who is substituted succeeds to the rights of the other in relation to the . . . claim, and its rights, remedies, or securities.” I wonder if there is a legal term more debated and misunderstood than this one, yet the legal rulings regarding subrogation have been around since Emperor Hadrian of ancient Rome. Modified and further defined over the centuries, the idea still persists and is codified in today’s law. The rules of subrogation revolve around the relationships of those involved in the changing relationship of a debt. The terms for those involved in this debt relationship are “subrogee” and “subrogor.” The person who discharges the obligation is called the “subrogee,” and the party who is compensated is call the “subrogor.” In court papers, one often hears the explanation given that “the subrogee stands in the shoes of the subrogor,” the subrogee having acquired the subrogor’s rights to the debt.

      To make this a bit more clear, here is an example: your car is hit by someone, so your insurance company pays you for your damages, then goes after the person who hit your car. The insurer, by right of subrogation, goes after the person who hit your car with all of the rights that you had, if you had gone after them yourself. Keep in mind that, once the insurance company pays you for the damages, you waive all rights and claims against the person who hit your car. Thus, the insurer is now standing in your shoes with all of your former rights to sue for damages. You are the subrogor, and the insurer is the subrogee. You got paid, the subrogee is now going after that sum from the person who hit your car.

      Here is where it gets fun, and you have to pay close attention. Legal subrogation is not available to volunteers. What this means is that the party claiming a right of subrogation must establish that he is not a volunteer, but instead is under compulsion to satisfy the debt.

      73 American Jurisprudence 2nd Edition section 93 subrogation

      “Subrogation will not be allowed to a third person who without any obligation to do so pays an indebtedness and this rule is fully applicable to payments of an indebtedness secured by a mortgage.”

      So, the first thing that stands out is this fact: legal or equitable subrogation is not available to volunteers. Keep that in mind.

      Equitable subrogation is a device created to compel the ultimate discharge of a debt by the person who should morally be the one due to pay it.

      Home Owners’ Loan Corp. v. Parker, 181 Okla. 234, 235 (Okla. 1937).

      What this means is best explained thusly. You borrowed your mother’s car, and you wrecked it. Your uncle steps in and buys your mother a new car, so that she can get to work. Then, he sets up a payment plan with you to pay him back, because you owe for the car. Your mother becomes the subrogor, and your uncle, by replacing the car you owe her, becomes the subrogee. Now, he comes after you, because, morally, you really are the one who owes for the car. So, this is the initial philosophy behind equitable subrogation. But, here is where it goes off the rails. Your uncle gives your mother a bicycle, then turns around and charges you for a car. That is not equitable subrogation! Yet, and here is where the lightbulb should go off in your head, a junk debt buyer purchases a bad debt for $5, then turns around and charges you $1,000! How is that equitable subrogation of the debt? And how did he become the legal subrogee with all rights to the debt? Doesn’t he have to pay dollar for dollar? In other words, doesn’t he have to pay $1,000 to the subrogor, if he is going to demand $1,000 from you? Car… bicycle... remember?

      Legal subrogation is not available until the subrogor is fully compensated.

      Legal subrogation is based on equitable considerations.

      When a person pays the debt of another without any assignment or agreement of subrogation, s/he can be considered such a “volunteer”.

      Hulen v. Hamilton, 2008 Tex. App. LEXIS 1672 (Tex. App. Fort Worth Feb. 28, 2008).

      Here comes the junk debt buyer, and he claims that he is equitably subrogated to the rights of your original creditor. Well, if that is the case, he has to have satisfied this list of prerequisites:

      Payment must be made by the subrogee to protect his own interest;

      The subrogee must not have acted as a volunteer;

      The debt paid must be one for which the subrogee was not primarily liable;

      The entire debt must have been paid; and

      Subrogation must not work any injustice to the rights of others.

      Morgan Creek Residential v. Kemp, 153 Cal. App. 4th 675, 690 (Cal. App. 3d Dist. 2007).

      I want you to really focus on that line… “The entire debt must have been paid.” How much did the junk debt buyer pay for your debt? The entire amount? No! And this immoral scam has grown into such a lucrative business with lawyers raking in huge profits, that our justice system has become its rubber stamp of approval. Total corruption! You are being charged for a car, but they paid for a bicycle. This is one of the reasons I call them blood suckers. The other reason is that the vast majority of people who have defaulted on their credit cards are basically good people. They did not default because they were deadbeats, but because the bottom fell out of their worlds and left them in dire circumstances. And it is while these good people are at their lowest ebb that these blood suckers come along to take the bread off their tables. So, yes, I like to help these good people turn the tables and win. It gives them a chance to get back on their feet and start over.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 days ago from Pennsylvania

      George,

      It is a criminal offense for a junk debt buyer to misrepresent themselves as anything other than what they are, especially if they represent themselves as the original creditor. For that, I would contact an attorney locally, or chat with one at www.nolo.com .

      Research the statute of limitation in your state. I believe it is six years. If the last activity on this account was more than six years ago, it is time barred.

      Obviously, these are junk debt buyers, not assignees of the debt, so treat them accordingly. Before they can file suit, they are required to have the following items in their possession:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

      Study my article. You have a myriad of defenses against these guys. If you need further help, just ask.

      Brian

    • profile image

      George 

      7 days ago

      Hello,

      I received a summons for 'lawyers' claiming to represent Bank of America for a debt from many years ago. In the court documents, they list it as if they are actually representing B of A. As in--Plaintiffs are B of A. I called B of A directly to see the account's status with them. They clearly said that they wrote the account off and these lawyers do not represent them. They've 'sold' the debt to a different company. I'm in Michigan--what options does this present to me? How do I go about 'nailing' them here as they are clearly mis-representing things. Thanks so much for any advice!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 days ago from Pennsylvania

      Jason Lee,

      Only time will tell if they are going to show up. In addition to the proofs necessary on their part that show you used this account, such as the original signed credit card contract, they do need to show an accurate accounting, as well, and that accounting has to be in the form of affidavits from the original creditor certifying that the amount alleged owed is completely accurate. Make sure that you demand this.

      Brian

    • profile image

      Jason Lee 

      8 days ago

      Hello,

      Just checking in..... The last update from me was regarding the plaintiffs motion for summary judgement. I then followed with a request to dismiss on the grounds of lack of evidence (no copy of contract and signed credit application). The court is now requesting a hearing in 2 weeks. The plaintiff worked really hard trying to avoid a hearing so I'm really hoping they do not show up and the case can get dismissed. Do you think they will show up?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Q. Jones,

      First, congratulations on your win! You did well. Whether to motion for dismissal with prejudice is difficult. Of course, dismissal with prejudice means that they can never come back, but sometimes, plaintiffs ask for dismissal without prejudice so that they can save face while knowing that they are defeated permanently. In other words, they won’t be back even with a dismissal without prejudice. However, motioning for dismissal with prejudice could cause them to withdraw their motion and go for a simple postponement, so the entire idea of objecting to their motion to dismiss can be a bit of a gamble, because you just don’t know what is in their minds. It is your call, but you don’t need an attorney to file a motion to dismiss with prejudice. The clerk of the court will have the necessary forms for you to fill out and submit. Of course, if you want to make your motion to be strong enough to win, then I would consult with an attorney, and the best place would be at www.nolo.com where you can have a free consultation with one. I would do this right away, however, because the clock is ticking.

      One note, the very fact that they filed for a motion to dismiss without prejudice shows that they may not have had all of the necessary proofs on hand when they initially filed suit, which in and of itself is grounds for throwing out the suit. It would mean that they lacked legal standing, because, before they can legally file suit, they must have sufficient proofs not only to win their case, but these proofs must be submitted with their suit to the court at the time of filing. If you are filing an objection to their motion to dismiss without prejudice, and you are doing it alone, then include this in your reasoning for the judge.

      Good luck to you,

      Brian

    • profile image

      Q. Jones 

      2 weeks ago

      I don't have an attorney but should I get an attorney and file a Order to Dismiss without Prejudice ?

      This is what the Plaintiff/Collection Agency letter said and the Collection Agency is Blitt & Gaines (see below)

      MOTION TO DISMISS

      Comes now the Plaintiff, by counsel, and no longer wishes to pursue this matter at this time and

      moves that the above-captioned matter be dismissed, Without prejudice.

      Thank-you !!!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Mrs T,

      You can file a motion to dismiss, and if the motion is denied, then continue on with your request for production.

      Just make sure that your motion to dismiss is well-worded and makes the case.

      Good luck to you,

      Brian

    • profile image

      Mrs T 

      2 weeks ago

      Hello Brian

      You have replied back with so much great information. I got a little confused due to my back to back comments being all over the place. I was thinking of sending PRA our response to the interrogatories then filing a motion to dismiss & same time a request of production. My husband thinks I should go ahead and file a motion to dismiss & request of production. What do you think

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Mrs T,

      I would respond to that one with "I do not recall."

      What they are trying to do is get you to claim ownership of this account. These are stupid trick questions, and I would not take the bait.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Mrs T,

      You could answer with "Not able to answer," and they would have a right to demand a better answer. What is the question, and why can he not answer it?

      Brian

    • profile image

      Mrs T 

      2 weeks ago

      Its me again. I apologize for flooding with so many questions. I'm not sure on how to respond on a question they want to know

      Question: Did you ever report that the credit card for the credit account was lost or stolen?

      How do I repond to this question.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Mrs T,

      They are showing you that they do not have the proofs that they were required to have before filing a suit in the first place. PRA cannot file a suit with no evidence submitted to the court. Their filing should have attached the relevant proofs for their claim. Now, here they come asking you for them.

      I would file a motion to dismiss, and here is what I would put in my motion. Plaintiff has filed suit without sufficient evidence attached to prove their claim. Plaintiff therefore lacks standing. And I would file this motion right away.

      Then I would point out this glaring item; they are asking you to provide them with the date you opened the account, and they are asking you what was the last payment made on the account, all of which they should already have in order to make their claim, because, they have to render an accurate accounting for the amount they allege is owed, and the only accepted form for this is an affidavit from the original creditor (and they are asking you for this information).

      At the same time, I would send them a request for production, and one of the items I would demand is the affidavits from the original creditor showing an accurate accounting of the amount they allege is owed. You see, it is quite evident that they do not have this, and without it, they are in violation of the law. They should not have filed suit without this.

      Remember, from the September 2015 consent decree issued against, and accepted by, several of the largest junk debt buyers in the U.S., Portfolio Recovery Associates and Midland Funding among them, here was what the Consumer Financial Protection Bureau required that the junk debt buyer have in hand before they can even sue you:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

      You can cite this to the court. It was the consent decree signed and agreed to by Portfolio Recovery Associates, and here is the link to it:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      Remember, there is no law that requires you to be a bookkeeper, keeping records of everything you have done for decades. So, if you do not remember something, or if you do not have a record of something, tough luck for the plaintiff. They cannot make you prove their case. A basic rule of law is that the burden of proof always rests upon the plaintiff.

      When they ask you to identify each and every person that you authorized to use this account, that is a trick question designed to get you to take ownership of the account. And for that, I would irritate the heck out of them by using the standard response: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      For the others, I would simply state: I do not remember.

      Another thing, in the request for production, I would add this: please provide affidavits from the original creditor verifying the accuracy of your accounting. Furthermore, please show affidavits demonstrating your legal right of subrogation of the alleged debt. Please show how the original creditor was fully compensated for this debt, as per your contractual subrogation.

      That should get them huffing,

      Brian

    • profile image

      Mrs T 

      2 weeks ago

      Hello me again

      One of the questions in PRA interrogatories he cannot answer can he answer the question with "not able to answer"?

    • profile image

      Mrs T 

      2 weeks ago

      The interrogatories that was sent to us by PRA they are asking him to respond to questions such as did he submit a request for a credit account, appoximate date he opened a credit account or what date is the last payment he made on the account, identify each and every person he authorized to use the credit account, the sum he owes which they came up with a date Nov 7 2018 (he has not use this account in 3 yrs so I'm not sure where they pulled that date from) if he corresponded with US bank or PRA and to state all facts which you base your denial of the complaint in ghis action ( which he never did deny) & they want bank statements also

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Mrs T,

      There are essentially three types of questions that the plaintiff sends to you, and you want to divide them accordingly. Here they are:

      1.) Questions that pose no threat to you winning your case by answering, such as your name and address;

      2.) Questions that do pose a threat to your winning, such as those aimed at getting you to admit that you owe the amount alleged;

      3.) Questions that show that the plaintiff is not in possession of materials that the plaintiff would need in order to prove their case.

      Questions in the first category pose no threat, so go ahead an answer them.

      Questions in the second category, you want to answer with this statement: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Questions in the third category, you do not want to supply what they should already have. For example, if they ask for you to supply the original signed contract, that is not for you to do. That is something that they were required to have in their possession when they first filed suit. And if they did not have that, they have to have proof that you used the account. You are not required to be a record keeper for their benefit, and the law clearly states that they must have sufficient proofs at hand to win their case when they file suit. Asking you to provide these is a clear indicator that they did not, and this would render them as having no legal standing. If this is the case, you want to file a motion to dismiss based on this very fact.

      Portfolio Recovery Associates was sued successfully by the Consumer Financial Protection Bureau in 2015. You would do well to study the consent decree:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      Good luck to you,

      Brian

    • profile image

      Mrs T 

      2 weeks ago

      Hey how do I respond to an interrogatories from PRA?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Cyfrin Miner,

      The first thing I would do is stand tall and take them on. I know that most people go into panic mode when they get a summons, they run and hide, and the junk debt buyer gets an easy win, because the defendant does not show up in court. So, my best advice is always to fight back.

      Research the rules for proper service of a summons in your state, because some states allow service of a summons to be done through mailing. If this is not permitted in your state, then you would have a reason to file a motion to dismiss based on invalid service. However, that could end up just prolonging things as they go through a few hoops and get their game back in court. Me, personally, I would simply prepare my case, go to court and defend myself.

      Before this suit was filed, were you ever sent a "dunning" letter, that is, were you sent a letter by the debt collector stating that they intended to collect on this debt and giving you thirty days to respond? If you were not sent a dunning letter, then they cannot sue you, and this would be another way to file a motion for dismissal. However, if you were sent the dunning letter and ignored it, then it is back to game plan A...go to court and defend yourself.

      Study my article and all of the related materials that I have provided. There is plenty of reference material on there to help you. Most of all, respond to the summons immediately and let the court know that you intend to appear for trial. Do not miss that date, because failure to appear would be reason for the judge to grant a default judgment against you.

      Good luck to you,

      Brian

    • profile image

      Cyfrin Miner 

      3 weeks ago

      Hi Brian,

      I found a summons in my mail box. What do I do?

      Thanks!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Oma Davis,

      You're welcome. Good luck to you.

      Brian

    • profile image

      oma davis 

      3 weeks ago

      Thank you!!! You have been an immense help

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Oma Davis,

      The request for information goes to the plaintiff only, not the court or the judge.

      "Legal specialists" with "personal knowledge" of the debt means absolutely nothing with regard to verifying two things: the complete accuracy of the accounting for the amount alleged owed, and the complete accuracy proving they own your original contract. The only things that can prove these are the affidavits from the original creditor.

      They like throwing these "expert witnesses" around as if that proves their claims, and untrained defendants fall prey to this tactic. These "experts" are nothing more than office workers who will verify that a certain method has been used by the plaintiff and plaintiff's company to purchase debts, and, "Yep, that was one of the debts we purchased." And this means absolutely nothing with regard to verifying the accuracy of the accounting. Taken from the consent decree of 2015 against Midland Funding, Portfolio Recovery Associates and others, here is what the Consumer Financial Protection Bureau ordered the largest collection companies in the U.S. to have when they pursued a debt collection:

      "119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost."

      Furthermore, I would show the judge what you found when you Googled that address. Maybe even get a photograph of it to show the judge what kind of operation goes on there, and you could even research with the powers that be in that area to see what kind of business is licensed to operate in that warehouse. Might be interesting.

      Send the plaintiff a request for production, and request that they show the affidavits from the original creditor that verify the complete accuracy of the accounting for the amount they allege you owe.

      Good luck to you,

      Brian

    • profile image

      oma davis 

      3 weeks ago

      Thanks for the information. Does the request for information go directly to the attorney or do I file with court?

      The affadavits are stating they are "legal specialists" with "personal knowledge" of the debt. When you google the address its a warehouse, AND that address belongs to another debt collector named Jeffeeson Capitol. (Midland Funding is the one suing me).

      As a trial date had been set already, I am not sure what I can send directly to their atty or if the request is made to the court.

      The information contained in the lawsuit is a bill of sale (they purchased 3 debts), they have some signed information for one of the debts from the original creditor, some statements from 2 "lawyers" (no identifying information other than their name).

      I have 2 months to take whatever steps I need to take before my trial date. I am just not sure what I am allowed to send where since the date has been sent.

      Your information has been great!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Oma Davis,

      Yes, that does sound a bit shady. I don't think that you have to file a motion for discovery. You can send them a request for information, and if they refuse to comply, you could then file a motion to compel, since you have a right to the answers to questions regarding information that helps you properly defend yourself. Some states do vary as to how many questions can be asked in interrogatories, but if your interrogatories are not overly burdensome and broad, there is no reason you could not send them to the plaintiff and request answers.

      Additionally, the people who signed the affidavits, what were they attesting to? Were they saying that the debt was owed by you and that all of the accounting was completely accurate? Unless they are employees of the original creditor who work in a related field within that original creditor's employ, then anything they say is mere hearsay and irrelevant.

      Make them show affidavits from the original creditor that show that the amount that they allege is owed has been verified for accuracy by the original creditor.

      It sounds to me that your debt has been sold and resold. The law still requires that they possess a chain of verification all the way back to the original creditor.

      That warehouse address makes me think that some shady purchasing has gone on with these accounts.

      Brian

    • profile image

      oma davis 

      4 weeks ago

      Hi, I have a question. I am being sued by Midland Funding for 3 debts they purchased. They did add the bill of sale, but the people who signed the affidavit have a business address that comes back to a whole other debt collector as well as seemingly housed in a warehouse. Can the information on these people be requested in a motion for discovery? The whole thing seems shady

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Samantha,

      It is complicated, but a debt that a debt collector is trying to collect on cannot be listed with a credit reporting agency. Even though some of these blood suckers do that, it is illegal for them to do so. Only the original creditor can report a delinquent contract to a credit reporting agency, because they are partners in the original contract. A junk debt buyer is called a "stranger to the contract," and does not have legal authority to post these.

      Be that as it may, a debt does not have to be listed with a credit reporting agency for a debt collector to come after it.

      Brian

    • profile image

      Samantha 

      4 weeks ago

      Hi Brian! Me again. I guess I should have better clarified my question. So there is already a collections account listed on my credit report, but the supposed account they are trying to take action on is not listed (US Bank) How is this possible?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Justin0288,

      Sorry for the delay in answering your question, but it just showed up. If a debt collector wants to collect a debt, they cannot call you at your place of employment. Furthermore, they are required to notify you by mail stating that they intend to collect on a debt they allege you owe, and they must tell you who the original creditor is, what the amount is, and contact information. If they fail to do this, they cannot file suit.

      In my honest opinion, I think some of what they have done thus far sounds a bit shady. So, I would wait for that dunning letter, and if you do not receive one, if they file suit, I would use the lack of the dunning letter as legal defense.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Gayle197,

      My guess is that the plaintiff thinks that they have an air-tight case, because they have an affidavit from the original creditor attesting to the accuracy of their accounting of the amount alleged owed. That will be hard to beat. A good lawyer is what you need, because they would know all the laws and how to contest ownership based on the inability of the plaintiff to service a credit card account by providing credit to a customer. This is a difficult argument that requires great legal skills.

      One defense you might work on is scienti et volenti non fit injuria, and ask the judge to require them to show how much they paid for the debt, then ask them to show how they are injured, and ask them how they are injured sufficiently to demand the amount that they are seeking. Because, as we all know, if the amount they allege owed was say $1,000 , they probably paid $5 for it.

      I would play on the immorality of it, I would seek to embarrass them in front of the judge, expose their absolute greed and ask them to justify it.

      Without a competent lawyer, it is going to be a difficult case, all because they have a bill of sale and an accurate accounting affidavit from the original creditor.

      Brian

    • profile image

      Justin0288 

      5 weeks ago

      Dear Brian,

      I received a phone call today from a lawyers office at my place of employment, I called the office back and immediately told him he is not to contact my employer under any circumstance because I can get fired. While speaking to him he told me I have an apparent debt with Kay jewelers and it was approaching the statue of limitations and the collection company will be filing lawsuit unless I speak to them. I have never received any type of collection letters. I asked who he represented and he said he was hired as a mediator and he is not representing anyone. I asked him who owned this apparent debt and he advised me it was owned by diverse funding associates llc. He said that I should contact Kay jewelers directly to get Information about the debt. I tried calling the collection company but I was on hold for about 30 min. In your opinion what is my next step here? Should I send a certified letter to the collection company for debt verification or should I contact the creditor directly. The statue of limitations is castle approaching I believe he said June 15th, so I’m not really sure where to start to fight this matter. I asked him for info but he said that he just has the information with the amount owed and when the account went delinquent, he said he could not answer any other questions. He called from the Raymond and Gastil law firm which I tried to find from google and I cannot find anything, I also tried looking up the phone number which does not produce any results

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Na Wao,

      Here is a very useful link that should give you all the help you need:

      https://www.nolo.com/legal-encyclopedia/if-the-cre...

      Brian

    • profile image

      Na Wao 

      5 weeks ago

      Dear Brian,

      Do you have much case about Equifax? What I mean is someone suing equifax and winning in Texas. I filed a small claim and they just responded by denying allegations. They have refused to update or change wrong information on my credit inspite of several letters to them. Their constant refusal prompted my small claim in court. But now that I have filed a small claim, they have responded by denying that I was damaged. So I need a stronger point to hit them with if any exist.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      The OC,

      You are welcome.

      Brian

    • profile image

      THE OC 

      5 weeks ago

      thanks Brian!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      The OC,

      Once pretrial has been determined, you don't have to file any more items with the court, per se, but you can still send interrogatories or file motions. Most of all, you want to work on your defense as if the pretrial were a trial.

      Brian

    • profile image

      THE OC 

      5 weeks ago

      okay, thanks! one last question please? so, I dont have to do or file anything until the pre-trial? I will keep you posted on April, thanks! really appreciate.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      The OC,

      So, what they are saying is that Citibank has hired Cavalry to collect, and Citibank is still the owner.

      I would ask them during mediation to show the following:

      That Citibank has NOT written off, nor charged off, this debt;

      That Citibank is retaining full ownership of this debt;

      That Cavalry is only being paid a collection fee, which fee is not $2672.00;

      That Cavalry did NOT purchase the alleged debt;

      That Plaintiff is providing an accurate accounting of the amount alleged owed by supplying affidavits from Citibank attesting to this demand.

      I would also ask them to delineate #3 "All conditions precedent have occurred." What are those "conditions precedent?" Spell them out. Be ready to object if any of those conditions were not fulfilled legally.

      Brian

    • profile image

      THE OC 

      5 weeks ago

      thanks Brian! so fast! what I have a is a Pre-Trial "Mediation" set for April 11, they served me with a "complaint for damages" stating the following:

      -Comes now the Plaintiff Cavalry SPV as asignee of Citibank

      1- this action is withing the jurisdictional limits of this court

      2- Defendant is resident of this county.

      3- all conditions precedent have occurred

      4- Citibank N.A has assigned the chose in action and Plaintiff is the owner of the debt.

      5-Before the institution of this action Citibank N.A and Defendant has business transactions between them and they agreed to the resulting balance for account number ending on xxxx.

      6- Citibank N.A rendered a statement of it to the Defendant and defendant did not object to the statement.

      7- defendant owes plaintiff $2672 on this account.

      then, a copy of last citibank bill/statement.

      Thanks again Brian!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      The OC,

      If they are the "assignee," then they will have no problem producing an affidavit from the original creditor showing the accurate accounting for the amount alleged owed. And if they cannot, then that alone could be proof that they have lied about their relationship with the original creditor, which is illegal.

      I would ask them flat out, "Did you purchase this debt, or are you the assignee of the original creditor?" Get them on record. If they are not the legal assignee of the original creditor, then I would hire an attorney and go after them. That is no small offense.

      Typically, an offer to settle for less than the full amount is offered by junk debt buyers who purchase these debts. Original creditors typically want the full amount. Just food for thought.

      On my blog, there is some very relevant information from Rodney Miner who successfully fought Cavalry. Study his documents. There is a wealth of information in there.

      Good luck to you,

      Brian

    • profile image

      THE OC 

      5 weeks ago

      Good morning Brian, thank you very much for the wonderful blog! I live in Florida and I have been sued by Cavalry, apparently the are saying "assignee" of Citi Cards for a citi credit card with a debt of $2600 unpaid since march 2016. Along with the serving documents they sent a copy of the last bill statement from citi card, besides your guide, do you have any special recommendation for me? Pre-Trial is set for April and is set for me to accept or deny the debt and if accepted, if I'm willing to do any payment arrangements. obviously I will deny but just want to ask you if there is anything else that I could do based on what they are providing as proof.

      Thanks!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      DM,

      I am puzzled as to the outcome of your bankruptcy being denied due to means (because a good attorney should have gotten down in the trenches with you), but I suppose they have done an asset and income accounting and declared that you are still capable of "giving blood" to the blood suckers. My best recommendation would be to conduct a free chat with some of the lawyers on www.nolo.com and see what they think, because I feel that there should be a way to roll back that default judgment and order a new trial. My reasoning would be that you were declaring bankruptcy. There are pros and cons to your defense, one pro being that you honestly thought that you were going to be bankrupt and free, one con being that you did not show up for the mediation hearing (big no no). However, knowing as much as I do about Portfolio Recovery Associates and what the Consumer Financial Protection Bureau did to them in September of 2015, and the fact that they are still under the effects of that consent decree, I would copy off that entire consent decree and share it with an attorney. Then I would look to see if there were any violations on their part, such as having the proper required legal documentation on hand when they filed suit...among other things.

      So, I hope you speak with a good attorney. Nolo.com will connect you to attorneys in your state and your area. I would do this immediately, because all of this is time-sensitive.

      Good luck to you,

      Brian

    • profile image

      DM 

      6 weeks ago

      Brian this is FANTASTIC information! Thank you so much for providing it! I have a few questions. PRA has been after me for a year over a $7k credit card debt that was sold to them by Synchrony Bank. They filed suit, I responded with a request for mediation (to buy time), I didn't show, then filed chapter 7 the day before the final hearing. They won a default judgment. My Bk is going to be dismissed because I don't pass the means test. Am I completely screwed? Is it worthwhile to send them the debt validation letter and would it hold water in court if they don't respond (since it's way beyond the initial 30 days)? I have $58k in credit card debt - I make half what I made when I got the credit cards and there is simply no way to pay them back anytime soon. Any advice you have would be tremendously appreciated. Thank you again for sharing all of this information!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      T Har,

      You did great. They were not prepared, and I would almost bet that delaying until July is not going to get any better for them.

      So, they offered to settle. What for? Let's see, if I pay $10 for a $2,000 bad debt, and I offer you a discount of $500 if you pay it now, not a bad profit. They buy these bad debts for literally pennies on the dollar, so why pay these blood suckers anything?

      Yes, now that you are into the suit phase, send them an interrogatory and ask them to produce the items on the list that I gave you earlier. Especially hold to the demand that they show affidavits from the original creditor, even if they bought this from another junk debt buyer, and require that those affidavits show that the original creditor attests to the complete accuracy of the accounting for the amount they allege is owed.

      Brian

    • profile image

      T Har 

      6 weeks ago

      We went court today. Studied this article. Everything aent great. attorney that represented PRA came unprepared and pushed the court date to July. Will this be a good time to send them the Letter requesting validation of debt? They did want my husband to settle & asked if he could pay the amount in 30 days to a year. My husband studied the article just to be told coms back in July. Thank you you helped a lot.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      T Har,

      Yes, this information is relevant to all fifty States. Make them prove that they own this debt. Where are the affidavits that show they purchased this debt from the original creditor? Where are the affidavits from the original creditor that show how the amount they allege is owed was accounted for? There must be an accurate accounting for the amount that they say you owe.

      Portfolio Recovery Associates was sued in September 2015 by the Consumer Financial Protection Bureau, and the consent decree showed the major corruption in which Portfolio engaged and for which Portfolio was fined heavily. One of the requirements that was levied against them was that they are required to have these items in order BEFORE they are permitted to sue. Here is that list:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer's name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer's last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent's method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent's agent will, within 30 days of such request, provide the documentation at no cost.

      That consent decree can be found here:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      Good luck to you,

      Brian

    • profile image

      T Har 

      6 weeks ago

      PRA sent us a copy of my husbands bank statements witb the amount they said he owes them. They also stated they are the current owner of his account. They have also asked my husband to provide bank statements that he has no longer have access to. The last time he had access was back in 2016. My husbands court date is tomorrow very positive that he will beat this. Will this work in California?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Gayle197,

      We like to think that judges are all knowing, but they are not. When it comes to junk debt buyers, the judges tend to let them lead the way, and you have to sometimes educate the judges and prove that the junk debt buyer is playing loose with the law.

      Study the consent decrees issued by the Consumer Financial Protection Bureau against Portfolio and Midland. You will see clearly the many abuses these junk debt buyers engaged in, and why these questions should be asked. Those consent decrees are law, and they can be quoted to your benefit. For the judge to say that they do not have to provide a complete accounting may be partially correct, in that your state may not require that they have to account for every transaction, but they do indeed have to verify that the accounting is completely accurate, and unless they can produce affidavits from the original creditor, as required by those consent decrees, they have not proved the accuracy of their claims. Further, they have to have a trail of affidavits all the way back to the original creditor showing that the debt was sold to them, and on these affidavits, your identity as the user of that account has to be clearly established.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Gayle197,

      You are very welcome.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Gayle197,

      You had a very fair judge, and a compassionate one at that. Something in that judge wanted you to win, so he gave you a chance. He can't be your lawyer, but he gave you some good advice...and he gave you several weeks to get it together.

      The first thing you have to note is this: the burden of proof always rests upon the plaintiff. Here is why this is so important. Any accusation makes the accuser the plaintiff for that accusation, thus, when you accuse the plaintiff of wrongdoing, you must then come up with proof for your accusation. The correct process is to always remain the defendant and ask for their proofs. For example, you cannot say that the credit card company took a tax credit for this account unless you can prove that they did. You cannot say that the credit card company took an insurance payoff unless you can prove that they did. Here is how I would have phrased that part.

      I would have said, "It is known business practice for credit card companies to allow their customers to opt into involuntary unemployment credit card insurance, or IUCC Insurance as it is called. If this happens, then the credit card company has received insurance payouts. How can the plaintiff verify that this has not happened? Where is the accounting affidavit from the original creditor that verifies that the amount alleged owed is completely accurately accounted?"

      I would narrow the scope of this. I would cite the September 2015 consent decree filed by the Consumer Financial Protection Bureau against several of the largest junk debt buyers in the United States, Portfolio Recovery Associates and Midland Funding. The article is found here:

      https://www.consumerfinance.gov/about-us/newsroom/...

      These requirements are universal and show what these junk debt buyers are required to have on hand BEFORE they file suit:

      119. Initiating any Debt Collection Lawsuit unless in possession of the following:

      a. Original Account-Level Documentation reflecting, at a minimum, the Consumer’s name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments (unless the claimed amount is higher than the Charge-off Balance or judgement balance, in which case Respondent must possess (i) Original Account-Level Documentation reflecting the Charge-off Balance and (ii) an explanation of how the claimed amount was calculated and why such increase is authorized by the agreement creating the Debt or permitted by law), and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt;

      b. A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

      c. A certified or other properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive Owner, including Respondent. Each of the bills of sale or other documents evidencing the transfer of Ownership of the Debt must include a specific reference to the particular Debt being collected upon, which can be done by referencing an exhibit attached to each bill of sale or other document transferring ownership of the Debt that is represented or warranted by a Seller to be a list all Debts acquired in that Portfolio; and

      d. Any one of the following: i. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or ii. Original Account-Level Documentation reflecting a purchase, payment, or other actual use of account by the Consumer.

      120. Engaging in any Legal Collection without providing the Consumer with certain information about the Debt, unless previously provided, including but not limited to, the following information:

      a. the name of the Creditor at the time of Charge-off, including the name under which that Creditor did business with the Consumer;

      b. the last four digits of the account number associated with the Debt at the time of Consumer’s last monthly account statement, or if not available, at the time of Charge-off;

      c. the Charge-off Balance;

      d. Respondent’s method of calculating any amount claimed in excess of the Charge-off Balance; and

      e. a statement that the Consumer may request, in writing, copies of the documentation referenced in Paragraph 119 and Respondent or Respondent’s agent will, within 30 days of such request, provide the documentation at no cost.”

      Depending on which state you live in, the laws there may require the plaintiff to attach a copy of the original contract, or explain why a copy is not attached, called the “rule of attachments,” and this same information would have to be attached to the papers sent to you by the debt collector. Failure to do so in some states is grounds for dismissal. At the very least, if they have not provided this information, you can file a motion to require them to provide it. This is called “requesting a more definite statement.” Also, in some states, if you filed a timely request for verification of the debt, and the debt collector fails to do so, you can counter sue for damages. For this, you will have to research your State laws.

      As for "scienit et volenti non fit injuria," I would ask the plaintiff to show how much they paid for the debt, which is usually pennies on the dollar (unless they are an assignee of the debt by the original creditor). For example, they will routinely pay $5 for a $1,000 dollar debt. Now then, if they only paid that much, how are they damaged? What are their damages? How did they knowingly and willingly purchase a bad debt, then claim that they were damaged? Ask them to show how they arrived at the amount of damages.

      They must show proof of the accounting, so hold them to that. Verify that the amount they are claiming was accurately accounted for by the ORIGINAL CREDITOR and no one else. You said that they provided this, so I just want to make sure that you know one thing about this: if they purchased the debt, they have to show proof that the amount alleged is completely accurate and is verified by the original creditor. Make sure that this is what their affidavits verify.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Samantha,

      Having an account in collections and not having it listed with the credit reporting bureaus is just a matter of time. They will ultimately catch up with each other.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Alexandra,

      If you have not been informed of the law firm retained to represent the collection effort, contact the clerk of the court and ask them who it is. It is a bit unusual to be sued and not be given the plaintiff's address.

      Brian

    • profile image

      Samantha 

      6 weeks ago

      Awesome awesome awesome. I have an important question. I have an account in question that is currently in collections but there is NO record of this account on any of my credit reports. Will this be in my benefit?

      Thanks!

    • profile image

      Alexandra 

      6 weeks ago

      I received notice of a Civil Complaint against me for unpaid debt owed to Barclays. I intend to send a production letter, but am not sure where to send it. On the document, the plaintiff is listed as Barclays Bank Delaware. Should the production letter be sent here? Or is there a law firm representing Barlcays this should be sent to? I am not seeing any other information other than that the Plaintiff is Barclays.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      T Har,

      The time to ask for verification of the debt is when the first letter of intent to collect a debt is sent to you by the collection company. They are required to send you a letter announcing their intention to collect, and informing you that you have thirty days in which to dispute the validity of their claim. If they did not do this, you have legal recourse, including filing for a dismissal of their suit.

      Nonetheless, once you are being sued, you still have a right to demand that they verify the debt, and one of the things that they are required to do is to account for the accuracy of the amount that they allege you owe. Further, they have to show that this accounting was verified all the way back to the original creditor. They must also show ownership, such as receipts for purchasing the debt, regardless of how many times the debt has been resold. You can send that request to them as interrogatories, keeping it brief, and they may refuse to respond, depending on the laws of your State. However, even if they do not respond, it lets them know that you are going to ask that in court, and if they do not have that information, they may as well not show up. It is required of them to have it in their possession before they file suit.

      I would also embarrass them and ask them to show how much they paid for the debt, since they only pay pennies on the dollar. Then ask them to show how they are damaged, as per "scienti et volenti non fit injuria," which means that they knowingly and willingly bought a bad debt, and are therefore not injured.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      Na Wao,

      I am not sure what you mean, but, if you are asking if notice of intent to collect a debt can be mailed to a post office box, if that is how you receive your mail, then the answer is yes. However, if you are asking if a summons can be served that way, I would check with your local courts to see if that is acceptable, since the U.S. Post Office can ask you to sign for a package that requires service receipts. Acceptable forms of proper service vary from State to State, so check with your local court to see what their rules of proper service are.

      Brian

    • profile image

      T Har 

      7 weeks ago

      I have been sued by PRA. Can I send them "letter requesting validation of debt" or is that too late

    • profile image

      Na Wao 

      7 weeks ago

      Can you serve a debt collection on their post office box if that is all you have and when you called them that was what they provided?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      Na Wao,

      They are in violation of the Fair Debt Collection Practices Act. Here is the section and paragraphs:

      15 USC 1692g

      § 809.  Validation of debts

      (a) Notice of debt; contents

      Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

      (1) the amount of the debt;

      (2) the name of the creditor to whom the debt is owed;

      (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

      (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

      (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

      Brian

    • profile image

      Na Wao 

      7 weeks ago

      Dear Brian Gray,

      Thank you very much. In the case with this Debt Collector Agency, their first letter to me never included my right to dispute it within 30 days, instead they were granting me discount incase my Tax refund is delayed. They only stated at the bottom that this communication is from a debt collection agency and any information obtained will be used for that purpose. What particular law or page can I quote to let them know they are in violations because I am sure they know.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      Na Wao,

      The laws pertaining to the requirements of debt collectors notifying those whom they are pursuing for debts comes from the Fair Debt Collection Practices Act. According to the FDCPA, five days from the initial contact by the debt collector, they must tell you the amount of the debt, the name of the creditor to whom the debt is currently owed, and they must also tell you that you have 30 days to dispute the validity of the debt. They must also notify you that, if you don’t dispute the debt’s validity, that the collector will assume that the debt is valid. They must tell you that, if you do dispute the debt’s validity within the 30 days, the agency will send you verification of it, and, if you send a written request within that 30 days for the name and address of the original creditor, the collector must provide it.

      I hope this makes it clear for you, any debt collector who fails to abide by these mandates is in violation of the Fair Debt Collection Practices Act.

      Brian

    • profile image

      Na Wao 

      7 weeks ago

      Quick question: Does anyone know whether if a debt collector agency sends you their first letter they must include the federal law requirement that states "they are from a debt collection agency and it is an attempt to collect a debt." But are they in violation of that law when they fail to include "you have a right to dispute it within 30 days?" My main question is whether failure to include your right in that their letter is a violation? Does anyone knows if it has been pointed out in any court case?

    • profile image

      GregTC 

      8 weeks ago

      Than you Brian for your help!

      I will let you know soon.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Darren,

      It sounds like you are doing an excellent job so far. If you have not done so already, study this case against Midland and others brought by the Consumer Financial Protection Bureau:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      The material in that case is priceless.

      As far as talking with the attorney, in my honest opinion, I think he realizes the weakness of their case, the strength of your defense, and is looking for a way to create a situation that he can exploit. If you call him, for the sake of personal curiosity, do not allow him to elicit anything that he can use. Don't let him pull you into a legal discussion of the case. At most, I would ask him the reason for the call, give him nothing in return, say that you will see him in court, and use the call to your advantage by noting the reason he gave for the phone call. That decision is yours, but if you call, just be careful of everything you say.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Greg TC,

      I have never heard of an assignee offering a negotiated settlement on a bad debt. That tactic is typical of a junk debt buyer, so if you can prove that these guys are falsely claiming the status of assignee, that shows they have committed a tortious act, and that is a situation you can go after in court.

      If the original amount was $18,000 , and if they are junk debt buyers, they probably purchased the debt for less than $1,000 . Something to think about.

      I would demand to see proof of assignment, and I would demand an accurate accounting of the amount they allege you owe, with affidavits from the original creditor.

      Finally, I don't personally think that they have provided sufficient proofs in their attachment to show they even have legal standing. But the fact that they took a year to serve you is puzzling and warrants some research on your part as to the legal requirements of proper and timely service in your State.

      Good luck to you,

      Brian

    • profile image

      Darren 

      8 weeks ago

      Hello Brian,

      It's been a 9 month ordeal with Midland Funding and Johnson Mark LLC here in Utah. I've been to court a couple times including for the Summary Judgment hearing and the pre-trial conference. I have filed a motion to dismiss, but so far have no idea what became of it. In the motion pointed out that there is no signed contract, there is no proof of ownership - portfolio bill of sale with no identifying language that indicates either my name or the account in question, that the accompanying affidavit from the original creditor also has no identifying language on it.

      Interestingly, the plaintiff's attorney replied to that motion and claimed I did not file it in time for the court mandated time limit - I did. Also, they claimed I gave up my right to affirmative defenses - I didn't. I put in my initial answer that I reserve the right to bring up defenses as the case proceeds into discovery and beyond.

      Also, the attorney that has represented them the 2 times I went to court called me yesterday and wanted to go over some issues because of the trail scheduled next week for Wednesday.

      I'm curious why their lawyer would want to talk on the phone. Any ideas?

    • profile image

      GregTC 

      8 weeks ago

      Hi Brian,

      I was served 3 days ago and on the summons filling date is showing march 2018 one year ago. The plaintiff is showing Wells fargo Bank, N. A. - on first page. Then on second page I see the name of the attorney for the collection agency Reese Law group then again down plaintiff Wells Fargo Bank; Action is limited civil case.

      They have 2 paragraphs:

      first: breach of contract

      second: common counts

      I called the collection agency and they said they can negociate fro 18k to 11k but they need to talk with Wells Fargo first.

      I did not received any update from the collection

      What should I do? Is this collection agency assigned by the Wells fargo or just a junk debt collection agency?

      Do I have any change if I submit my answer to the court?

      Thank you,

      Greg

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Na Wao,

      When you are the plaintiff, remember the cardinal rule of law: the burden of proof rests upon the plaintiff. If you are suing this company, you need to present compelling facts and evidence to the court. Once you have done so, the judge will look at who made the most compelling argument and rule accordingly.

      Brian

    • profile image

      Na Wao 

      8 weeks ago

      I am the person suing Diversified Adjustment Services and their attorney responded that they want it dismiss in their responses to the court as they have 14 days to respond. Do you think the court would just dismisses it like that because they responded, or they would set a date. I am the plaintiff. They are the defendant.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Na Wao,

      From what you are saying, it sounds as if you were being sued? Or are you suing Diversified Adjustment Services? If they are suing you, and they admitted that they would rather have their suit dismissed, then I would ask the clerk of the court how to file your motion to dismiss with prejudice.

      If this is something else, I would need a little more clarity as to who is suing whom.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Na Wao,

      Congratulations to you! You studied, followed my advice, and you won! That's great. I am very proud of you. Time to celebrate.

      Best to You,

      Brian

    • profile image

      Na Wao 

      8 weeks ago

      Brian,

      I currently have a case. I filed a small claim for Diversified Adjustment Services and their attorney responded before the 14 days that my case should be dismiss. What should be the next step. Do you think the court will just dismiss my case or they would set a day for hearing and have both of us argue our case. I want to inconvenience their attorney and would rather not want it to be done remotely, because they are in Dallas and the case is in Houston and the amount under contention is $320. So I was thinking it will be economically unwise for them to want to bring their attorney all the way down meanwhile they would gain nothing at all. It's a Justice of peace Court. My main question is what should i do at this point that they have responded. Do I need to file any other paper work or wait for a court hearing date by the court?

    • profile image

      Na Wao 

      8 weeks ago

      Brian Gray,

      I really want to thank you for your help and assistant for what you do. You may not know how many families you have saved as a result of your write-up on this platform. I learnt from you what I never learnt in school. The goodnews is that I sued Midland and they deleted the account from my credit and paid me some money. In a nutchell, they settled with me without wanting to go to court. You Rock and I'm grateful. I am now the aggressors that is chasing debt collectors. I am able to do this because of the valuable tools you have provided on this platform.

      Thank once more Brian Gray. I am grateful.

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