You Can Beat Credit Card Debt Collectors

Updated on May 3, 2018
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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.

Use this form for Request For Production
Use this form for Request For Production

Mail a copy of this request to the judge in whose court the hearing will be held, and mail a copy to the lawyer who is representing the collection company. Make sure that you send the letter to the lawyer at the collection company via certified mail, return receipt requested. By sending this to the lawyer at 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—and they are required by law to do so—the original agreement with your signature. You have also requested that they produce all of the receipts for every transaction that you engaged in during the entire life of the use of that credit card. You have requested that they show what you purchased in each of those transactions, and you have requested that they produce your payment record. All of this is legal, and all of it is required in order for them to properly enter the court. Guess what? They do not have this documentation.

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 the 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 with your credit card company, and this is required by law. 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 assign 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 company, in this case the collection company. The collection company would 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."

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, or taken a tax deduction, and this is known as accord and satisfaction. This renders the debt satisfied, and, legally, no one should be able to attempt any further to collect this debt. 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. 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.

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

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:

"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.'"

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.

What Is Subrogation?

What is subrogation? Subrogation is the doctrine that allows a third party to be substituted for the creditor. The party being substituted agrees to pay the original creditor for the debts, and this allows the third party, known thereafter as the subrogee, the rights to collect the debt as were originally held by the original creditor.

Here is the legal definition: Subrogation is the substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. The one who initially discharges the obligation is called the "subrogee" and the party who is compensated is the called "subrogor." In other words, the subrogee stands in the shoes of the subrogor.

Subrogation can operate through a written contract titled a “subrogation agreement.” Since subrogation is an equitable remedy, all defenses and theories that apply to equity laws are equally applicable when dealing with subrogation issues.

There are general rules that shape and guide issues of subrogation.

Legal, or equitable, subrogation is not available to volunteers. What this means is that an entity with no connection to the debt cannot step in and claim the status of subrogee. The subrogee must satisfy the debt, because he does so to secure his own personal interests.

Legal subrogation is not available until the subrogor is fully compensated. This means just what it says, i.e., the original creditor must be fully compensated. More on this will follow.

Conventional subrogation does not require full compensation of the subrogor. “Conventional subrogation” is technically not the same as “legal subrogation.” Conventional subrogation is created by contract, while legal subrogation is implied by law and is based on equitable considerations. An entity who interjects themselves into the debt situation will not be granted rights under subrogation without a valid written agreement.

There are three entities involved in the proper interpretation of subrogation. They are: the entity that causes loss, the entity that is subjected to that loss by the loss causer, and the final one of the three is the loss insurer. The foundation of the laws that were written regarding subrogation are restitution, deterrence and fairness, and these three bases form the right and proper goals of any future legal evolution. All laws coming since this foundation should be weighed against that foundation and its original intents. The laws of subrogaton were NOT created for the purpose of self-enrichment schemes concocted by junk debt buyers. The laws of subrogation are being abused and corrupted by junk debt buyers.

For the moment, I hope these few statements will give you, the reader, some material to research and study. I will be adding more here when time permits. Basically, if you read the erudite New York Times article written by Jake Halpern which I linked and referenced, this should begin to give you even more tools with which to fight these blood suckers. They need to show more than just that you once upon a time may have had an account with some credit card company. What is their legal right of subrogation of the debt? How do they own your alleged debt? Where is their contract? Where are their proofs? Research this, study this, and hammer it home! Make them lose!

Two Good Subrogation Definitions

Sometimes, using a different wording for a definition can really help clear up a meaning. So, here are two definitions that I thought might be helpful in this discussion:

"A subrogee is usually the insurance company which has insured the party whose expenses were paid. Thus, the subrogee insurance company may file a lawsuit against a party which caused the damages to its insured which the subrogee paid." https://legal-dictionary.thefreedictionary.com/subrogee

"A subrogor is person or entity that transfers his/her/its legal right to collect a claim to another (subrogee) in return for payment of the subrogor's expenses or debts which he/she/it claims. Thus, a person injured in an accident (subrogor) is paid by his/her/its own insurance company (subrogee) for the damages, and then the insurance company sues the party who apparently caused the damages." https://legal-dictionary.thefreedictionary.com/subrogor

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.

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.

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.

One of My Readers Shared This Exceptional Material

This exceptional material that I have placed here for my readers was shared with permission from Rodney Miner. Kudos to Rodney for sharing this, and kudos to him for his great win! May this material help others in the battle.


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/

Questions & Answers

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    • Hanavee profile image
      Author

      Brian Gray 6 hours ago from Pennsylvania

      Stretchem,

      Isn't it interesting that they use the legal BS of "overly broad and burdensome" with regard to your legal and simple request, then they send you an abnormal amount of pages of their own requests that far outnumber your humble little request for production.

      First and foremost, their excuse that your request is overly broad and burdensome is without merit, and I would file a motion with the judge to compel them to answer. They have supplied no compelling evidence to support their denial of your legal request for materials necessary to your defense. See the clerk of the court for these forms and their timelines.

      As to their intentionally overly broad and burdensome request of thirty-plus pages, send back the same answer to all of it: overly broad and burdensome. Furthermore, inform them that you are not required to keep records, and as such, you have retained none that they requested.

      As for any question they ask that obviously asks you to incriminate yourself, use our standard answer:

      "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." Use this sentence whenever and wherever it fits, and as often as you want. It does not matter how angry or irritated they get, they can tell it to the judge, and I doubt that he is going to pity them.

      They are playing games with you, trying to wear you down by bullying you with their arrogant abuse of legal BS. Don't play their games, don't give in. Just keep patiently firing right back at them, and for a real zinger, ask them to show their legal proof of subrogation of the debt. Ask them to submit proof that the original creditor did not take an insurance payoff or a tax credit, which would have rendered any selling or buying of this debt illegal. Ask them to prove that this alleged debt is encumbrance free. That should give them a rash.

      Good luck,

      Brian

    • Stretchem profile image

      Stretchem 13 hours ago

      Hi Brian! Thanks for much for sharing your knowledge!

      In a small claims $1500 case, I sent to Dewey, Cheatum and Howe representing the junk debtors Horse Riders the Request for Production as presented in your article. DC&H responded with:

      1, 2, and 3: None in Plaintiff's possession, custody or control...

      4, 5, and 6: Objection, ambiguous, burdensome and fishing....

      They also submitted in the same response a Notice of Confidential Information Within Court Filing, with confidential information to be within the document being filed of: Notice of Filing of Plaintiff's Response to Defendant's First Request for Production to Plaintiff, for which they have checked "Social Security, bank account, charge, debit, and credit card numbers in court records."

      Of course DC&H reattached the last credit card statement that they did have.

      DC&H followed that up with a Plaintiff's First Set Of Interrogatories. It is literally a 30+ page document full of "Request for Admission" questions and statements that range from Who am I talking to about this case? to Provide us with all of your banking and account information for all institutions I've ever done business with over the last 5 years.

      After that, comes the Plaintiff's First Requests For Admissions. That 30 page document includes a timeline that says I signed up for the credit, I paid some of the credit, there is $1500 left on that account, the account was assigned to Horse Riders, so the account is now owned by Horse Riders, so pay us.

      Finally, the last document is the Plaintiff's First Request For Production, where they ask for all of my financial information from near the beginning of time, the original credit application, payment history, etc.

      So clearly they're in the intimidation game. What obligations do I have to answer their interrogatories and requests? Is there a kind, gentle, legal way to respectfully tell them to go pound sand?

      Again, this is a small claims case, and it has already been scheduled for trial. At the pre-trial hearing I told the court I had no contract with the plaintiffs and was not interested in mediation.

      Looking forward to your input. Thank you for all you do!

    • Hanavee profile image
      Author

      Brian Gray 29 hours ago from Pennsylvania

      MGF,

      At this point, I don't see how that you can now claim that this account has not been proven to be yours. However, I would still ask them for an accounting on how they arrived at their amount alleged owed. They cannot just make up a number, so make them account for it.

      Also, I would ask them to show their legal right of subrogation of the debt. Request that they show that the original creditor did not receive either an insurance payoff or a tax credit.

      Brian

    • profile image

      MGF 33 hours ago

      Hi Brian,

      Thank you for this very informative post and I wish I had found it earlier! I am being sued by Calvary in two different lawsuits for around $10,000. I have already responded to both law groups involved and stated that I do not dispute the $435 dollars shown as purchases in the billing statements that they provided, but I do dispute the remaining amount. Now that I have admitted to some of the debt, can I still use Failure of Consideration and/or Lack of Privity as a defense?

    • Hanavee profile image
      Author

      Brian Gray 6 days ago from Pennsylvania

      Karen K,

      I would wait thirty days, then make the request.

      Brian

    • profile image

      Karen K 7 days ago

      My case was dismissed without prejudice. Question ...can I now request it be removed from my credit report? I ask bc they could technically come after me again.

    • Hanavee profile image
      Author

      Brian Gray 2 weeks ago from Pennsylvania

      JRjr,

      If you were never properly served a summons, then you need to contact the court and file a motion to have the judgment set aside and a new trial ordered. The court will want to know why you were not properly served, which proof should rest upon the plaintiff to demonstrate. Ask the clerk of the court for guidance in filing the motion.

      Good luck to you,

      Brian

    • profile image

      JRjr 2 weeks ago

      Brian,

      First, I want to thank you for this article. I’m hopeful that I can try these steps but I do have one concern. I was never served any court documents. I would’ve gone to court if so. With that being said, I have now received a notice that my wages will be garnished. Is there still any chance that I can fight this? Thanks again in advance!

    • Hanavee profile image
      Author

      Brian Gray 2 weeks ago from Pennsylvania

      Artilari,

      Sorry for my late response, but I was away on vacation and just got in. Magisterial courts vary from State to State, but it would appear that your State requires leave of the court. Ask your clerk of the court for the appropriate forms to file your motion, and ask the clerk what the filing deadlines are. It may be requisite for you to bring this to the attention of the judge and explain to the judge that you are acting pro se (as your own lawyer), and that you were not aware that you needed permission. Then say that you would like to respectfully request this information and would like to follow the courts permissions in doing so.

      Good luck to you,

      Brian

    • Hanavee profile image
      Author

      Brian Gray 2 weeks ago from Pennsylvania

      CamelJockey79,

      Sorry for the late response, but I was away on vacation and just returned. It has been years since I studied the laws regarding subrogation, but the one thing you want to keep in mind is this; you have to artfully raise doubts that are worthy of requiring an answer. For example, if you accuse the plaintiff of violating a law, then your allegation makes you the plaintiff for that question, thus requiring you to offer proof for your allegation. However, if you say to the judge, "Your Honor, I believe that it is possible that the practice exists wherein a credit card company receives an insurance payoff, or a tax credit, for a debt that has been written off, and if this is the case, then this would render the alleged debt off limits for selling or collecting thereon by any other entity than the one who paid the debt in full. Thus, I would like to ask that the plaintiff show that the alleged debt has no encumbrances, or that the plaintiff has full and legal right of subrogation of this debt."

      The judge should then rightly ask the plaintiff to answer the request. However, the artfulness of the questions, and the disposition of the judge are two key factors in what follows.

      To really understand the law with this regard, I would contact the Consumer Financial Protection Bureau and ask them which Federal agency would have the answers.

      Good luck to you,

      Brian

    • profile image

      Katie Wheat 2 weeks ago from South Carolina

      artilari,

      Read your magistrate court's rules of civil procedure. There are some magistrate courts (Georgia and Texas immediately come to mind) that require permission from the court to request discovery.

    • profile image

      artilari 2 weeks ago

      I filed a request for documents and sent to the attorney's office and they responded with a letter stating such request is disfavored by the magistrate court and are considered nullity when filed without leave of court. Is this true? What do I do now? My court date is in 3 days?

    • profile image

      CamelJockey79 2 weeks ago

      Hey Brian, in regards to getting Cavalry to prove that the original creditor did, or did not, take a payoff or tax credit....is there an actual law that I can cite to the judge?

    • profile image

      Katie Wheat 2 weeks ago from South Carolina

      BlueWall, are you in Limited Civil? Depending upon the timeline, review CCP (California Code of Civil Procedure) 96 and 98. Those rules would be in your favor.

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      MITZ90,

      That all depends on the strategy you take. It is an ace, and sometimes you hold them, and sometimes you hide them.

      Brian

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      MITZ90 3 weeks ago

      Thank you I will follow that, I was thinking because it was an acquisition of everything it would be a little different, not just buying a a bad loan. Is it advisable to show attachments of my credit report that now shows Capitol One as the debtor?

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      Brian Gray 3 weeks ago from Pennsylvania

      MITZ90,

      I would attack this on the grounds that you were never given a revised contract to agree to Capital One becoming your creditor. This is very complicated, and lawyers could argue both sides of this. In your original contract, there is no doubt a clause that allows the original creditor to transfer the account to another credit card company, but that clause would also state that you have a right to be notified of any such change, and, equally, the right to withdraw. This would still leave you owing the balance, important point to remember. Now, the opposing side would argue, well, this is not the case. Capital One bought the bed debt, not to service the customer, but to collect on the debt owed. Then, if this were argued, one could argue back that there must be a subrogation agreement, and they might then insist on requesting proof of this arrangement. Further, one would ask, how was the debt satisfied to the original creditor? But, looking at this even more, one has to assume that this is a larger credit company simply buying out a smaller one, and in the process, taking on all debts, past and present. This coin has two sides, so, for every argument, there is a flip side argument.

      I hope you follow my reasoning. A good lawyer hopes that the opposing side will not be prepared for his argument, but he prepares for a good rebuttal, nonetheless.

      So, if it were me, I would send a request to the plaintiff asking them to show their legal right of subrogation of the debt, and I would proceed from there.

      Hope this helps,

      Brian

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      MITZ90 3 weeks ago

      Hi Brian ~

      First of all, I would like to thank you for the service you provide. This has been very informative. I believe my case is a little different, and would like to get your opinion on this case. I had a debt with Cabela’s (World Foremost bank) that I defaulted on, I was contacted by my local courts that a lawyer has filed on their behalf in June of 2017, I responded and we started the dance. My last response was in October, and I requested information on the debt since World Foremost had been acquired by Capital One (for Cabela’s). I have not heard anything else, until this week, when the courts sent a notice to allow me to respond properly. I pulled my credit report, and it shows as Capital One / Cabelas, and closed as a charge off bad debt profit and loss write-off.

      Do you feel that I have should be able to request that a motion for the case be dismissed without prejudice, based on foremost not owning the debt anymore. Now, this notice has not come from the lawyers, but from the courts.

      Thank you!

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      Brian Gray 3 weeks ago from Pennsylvania

      BlueWall,

      Hind sight is always 20/20. Sitting in on cases can often give us insight into how best to present our own cases. And it can help a person acclimate to being in court, thus reducing the nervous factor.

      Good luck to you,

      Brian

      P.S. In my opinion, your judge sounded like a hack crony, one who is unable to get out of the "same ole same ole" attitude that gives these judges the feeling that the junk debt buyer is somehow morally and ethically right. They end up siding with the blood suckers, and they have no remorse, thus making them just as low as the blood suckers they are siding with. Hard to beat that team, but you can.

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      Brian Gray 3 weeks ago from Pennsylvania

      Carl W.,

      If you are going to win your case, you need to relax, focus and plan. Play devil's advocate and try to anticipate the line of attack that the plaintiff is going to use, and be ready for them. And go after them with everything my article and the posts on this site provide you. If you read the many posts on here, I know there are a lot of them, but if you take the time to study them, you are going to learn a lot, and right now, studying and applying should be your focus. Also, you will see how so many people won their cases without an attorney, so copy their strategies. This is your free library.

      Brian

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      BlueWall 3 weeks ago

      Brian,

      Considering I immediately felt defeated after the hearing, you saying that I "did well" means alot. What doesn't get talked about a whole lot in this process of fighting back is how much of a psychological warfare it is on the defendant. The laws, courts and civil procedure seems to favor debt collectors over consumers who are pro se and little by little this realization begins to break you to where you just want to give up and settle. I am proud that I had the guts to stand before the judge - albeit an embarrassing five minutes, but for the first time I feel fear of the pending judgement.

      Yes, I realize that there are "loopholes" or options to counter what happened today and your advice to seek help from an attorney who knows the judge is good advice. I did try to research the judge's profile and prior cases to gauge what he would be like but only found references to criminal cases. If I could go back in time, I would have tried to sit in on a few of his cases at the court house which would have helped no doubt.Thanks for the support!

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      carl w 3 weeks ago

      i know i need a lawyer but i cant afford one and I'm no English teacher but my last question was really messed up because i was in a hurry and a little distracted sorry:(

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      Brian Gray 3 weeks ago from Pennsylvania

      Carl W.,

      Judging from your syntax, I don't think English grammar is your forte, and I say that not to be critical, but to be honest. The way you wrote this paragraph tells me that you absolutely need the assistance of a competent lawyer. This is no game, and without a very good grasp of English grammar, you are going to lose. I know no other way of saying this.

      I am personally having a difficult time trying to fully understand what you are asking here, and i am on your side. So, here is what I can at least say. If there is no court date on the summons, then that is coming later. For now, you need to make clear to the clerk of the court that you are intending to appear, and you simply want to know how you let them know this.

      I am not sure what you meant by order for production, unless you meant a request for production, and that does not go to the court, it goes to the plaintiff.

      I hope that you will seek competent legal help. These cases are complicated, and they absolutely need a strong grasp of English grammar.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      BlueWall,

      You did well, considering all, but I would immediately try to pay for a one-hour, private consultation with a local attorney who is familiar with this judge. You do have some legal loopholes to use here, but you need competent legal help to make them happen.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      CamelJockey79,

      Well, one thing is for certain, the plaintiff knows that you are not going away, and you are not willing to roll over and play dead. Their easy target is fighting back. That will bother them, and that's good.

      As for getting the plaintiff to do the work involved in proving that the original creditor did, or did not, take a payoff or tax credit, I would ask them these questions:

      Please show that the original creditor, cited by the plaintiff as the subrogor, has given legal right of subrogation of the debt to plaintiff, that plaintiff is now legally the subrogee, and also please show how plaintiff, as subrogee, has satisfied the alleged damages. Please also show that the original creditor was not compensated by either an insurance payoff, thus satisfying the alleged debt, or that the original creditor did not receive a tax credit for the alleged amount.

      Brian

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      carl w. 3 weeks ago

      there is no court date on the summons i got and when i went to the civil clerk she gave me an answer-contract PDL-C-010 said i have to fill it out and then file it but i looked on line and it says that if the for says it approved for optional use then you don't have to use it because i would rather use the same format that the summons is in and when i wanted to submit the order for production she look confused and said if i wanted to subpoena records so I'm a little lost trying to get the same format as the summons

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      BlueWall 3 weeks ago

      Hi Brian,

      I had my hearing this week and the judge granted the JDB's motion to deem facts admitted based on my missing the deadline for RFA. I followed your link to saclaw.org re. motions, but it was too late to file a motion to oppose. Although I explained to the judge that while I didn't file an opposition, I did serve my responses to the Plaintiff's attorney via certified mail -a week before the hearing.The attorney's office did receive it but the attorney who showed up for the Plaintiff was not from their firm, but a "special appearance" attorney, so he had no knowledge of my responses being received. I feel like this was a tactic by the Plaintiff to not inform this guy that my responses were received. The attorney said something like, it was probably sent after their motion was filed. Which was true but I mistakenly thought I had a chance that the judge would "hear" my excusable neglect reasons as per Calif. Civil Code 2033. The judge became irritated and shut me down pretty quick, claiming there was no opposition filed. Did I interpret the civil code wrong or is it basically up to the judge's discretion whether that holds any water? The judge immediately granted the Plaintiff's motion. I feel like there was no point in me showing up at all. I'm assuming now the JDB will file a motion for summary judgement before the settlement conference/trial to avoid going to trial? It's about three weeks away.

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      CamelJockey79 3 weeks ago

      Hello Brian!! So I went to court yesterday for the call docket....it's crazy to think this has been going on since November, but I am not giving up! I scheduled the trial hearing for July 25, so now I need to work on my defense to present to the judge.

      In regards to proving the legal right of subrogation, how can I ask for proof that the credit card company did or didn't "receives an insurance payoff, or a tax credit, thus satisfying the debt, then they cannot legally re-sell the debt."?? I'd like to bring this issue up to the judge. Do I just simply ask the lawyer "Do you have an affidavit stating that Citibank did not any insurance payoff or tax credit?"

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      Brian Gray 3 weeks ago from Pennsylvania

      Carl W,

      There is no template that I know for for answering a summons. The basic rule of thumb is that you indicate that will be attending court, and you send it back before the deadline indicated on the summons. If it asks you how you plead, you simply indicate that you deny the plaintiff's claim. If there are more questions asked on it, such as stating a defense, then remember our favorite statement here: 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.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      Charge Off,

      If a credit card company writes off a debt, they could re-sell it, as long as the rules of subrogation of the debt are followed. If the credit card company receives an insurance payoff, or a tax credit, thus satisfying the debt, then they cannot legally re-sell the debt.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      Another Fighter,

      I am not sure, but I thought Rodney did everything on his own. I don't remember if he went to appellate level. However, nobody can file an appeal and work a case in appellate courts without an attorney. The rules change drastically and are quite complex. Without an attorney, filing an appeal is an absolute waste of time, because once in the appellate court room, the changes are dramatic, and the plaintiff's attorney will make short work of the defendant who is not legally prepared for this level of court.

      Brian

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      carl w 3 weeks ago

      how can i get a template for the answer to the summons

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      Charge off 3 weeks ago

      Maybe a repeat question here, but I thought that if a credit card account is charged off; it cannot then be sold to a junk debt collections company? Wouldn’t that be considered double dipping?

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      Another Fighter 3 weeks ago

      Thank you Brian. I was just hoping to mirror Rodney’s success story. I can’t recall if he had a lawyer or not. I’m not sure in my case, that monetarily, it’s even worth paying an attorney to fight it. I don’t need any more debt

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      Brian Gray 3 weeks ago from Pennsylvania

      Another Fighter,

      If your credit report says "Closed - Charged Off," that simply means that the original creditor wrote off this debt. If you are referring to that report, there is nothing that you can do to change that entry description. It is there for the duration. If you are referring to appealing the recent judgment, all appeals absolutely need an attorney.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      Carl W.,

      The fact that they are the second junk debt buyer to purchase this alleged debt further removes them from being able to produce many of the documents that they would need in order to win their case. The original creditor is going to give them nothing to work with, so I would hammer them with request for production items.

      My assumption is that you ignored the dunning letters from the first junk debt buyer, and they folded, because they felt that they could not win, or it was too much of an effort. The only time I would be worried is if you failed to respond to a summons for trial.

      The only way that I can think of that this being charged off by the first junk debt buyer is of any value would be if the current junk debt buyer falsely claims that they represent the original creditor. Otherwise, I would use the standard procedures to go after these guys.

      Brian

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      Another Fighter 3 weeks ago

      Hi Brian, thx for all of your help. I just looked at both TransUnion and Experian reports, on the account that I just lost the case on and both are noted on my credit report as “CLOSED-CHARGED OFF.” Would I still need an attorney to fight this?

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      carl w. 3 weeks ago

      hello again currently drafting answer to midland summons do they have to have mentioned the fact that they are the second junk debt collector to acquire the debt also if i have proof they are the second should i use it or does me using it somehow affect me arguing they have to prove i owe further is it bad that i ignored all of those letters they and the collector before they sent me and could they use that against me also they are saying that the debt was charged off by the 1st junk debt collector but i have proof it as actually charged off by the original creditor is that of any help to me?

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      Brian Gray 3 weeks ago from Pennsylvania

      Another Fighter,

      First and foremost, if you are going to file an appeal, do not wait. The time limit clock is ticking. See an attorney pronto.

      Secondly, the laws regarding legal right of subrogation of debts is very complicated, and it has been some time since I studied them, but the basics are that a creditor must be reimbursed for the debt for it to be satisfied. Thus, the buyer of the debt becomes the entity responsible for repaying the original creditor. Where this gets slippery is if the original creditor has received either an insurance payoff, or a tax credit, for the bad debt. Doing so would render the original creditor incapable of selling the debt, and the junk debt buyer would be equally incapable of buying the satisfied debt. It would be illegal for either party to engage in any selling or buying of a debt that has been satisfied by either an insurance payoff or a tax credit from the government.

      Speak with an attorney very soon, and good luck to you.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      Carl W.,

      I doubt the collection company is going to be compassionate to your low income situation. If all you lived on was Social Security, then, yes, you would be exempt, but just the fact that you don't make much money is not going to be much of a deterrent. If a judgment went against you, the judge could set a very low monthly repayment schedule, but other than that, I don't see the junk debt buyer leaving you alone.

      Whether you put up a fight or fold is all up to you.

      Brian

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      Another Fighter 3 weeks ago

      Hi Brian, I want to appeal the almost $10,000 judgement against me, by these leaches, that paid- maybe $500 for the junk debt. Can you tell me what the following

      Actually means? Does it mean that my state doesn’t acknowledge the defendants right to subrogation???

      “The doctrine of subrogation presupposes the payment of a debt by a party secondarily liable therefore, who thereby acquires an equitable right to be reimbursed by the principal debtor and for the purpose of making this right effective is invested with all the rights which the creditor had against him (the principal debtor).” DeLellis v. Burke, 598 A.2d 203, 205 (N.H. 1999) (emphasis omitted).

      Thanks!

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      carl w. 3 weeks ago

      I'm also being sued by midland funding but i am of low income do you think it would be wise to contact them directly and tell them of my situation because on their website they say something about ceasing collection if your income is form exempt sources I'm thinking about fighting them with the info provided here but that loss by another fighter scared me what if i also get a judge like his here you make it seem like the law says you they have to have a signed contract to prove you owe and that they can collect but his loss makes me wonder...

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      Brian Gray 3 weeks ago from Pennsylvania

      Faillite01,

      The ball seems to be in your court. The judge gave you a real winning moment by ordering them to comply with your request, and it seems to have caught them off guard. Keep pressing this issue, because they obviously do not have the requisite materials that you requested.

      If it were me, personally , I would answer their questions thus:

      1.) I have no records.

      2.) I have not claimed fraud of identity.

      3.) As plaintiff has not verified the alleged amounts owed through proper accounting and other such relevant documentation, I can neither confirm nor deny the accuracy of their claims, and, therefore, I must deny generally and specifically Plaintiff’s claims.

      4.) I would have fun with this one, because they are trying to get you to claim to be the owner of the debt. I would say, "Since there has been insufficient proof offered to validate this alleged debt, it would then be erroneous to state as fact that the identity of the owner of an unproven could be proven, and further, since plaintiff has not even validated this allegation, it would be presumptive to offer identifiers, such as ownership."

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      Karin P,

      Check with your clerk of the court, but I believe that the plaintiff has a time limit.

      Brian

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      Brian Gray 3 weeks ago from Pennsylvania

      Lizard123,

      Typically, the original creditor writes off bad debts after six months of no activity on an account. After this, they sell the bad debts to junk debt buyers. Then, the junk debt buyers hire a law firm to represent them in court. In most of these cases, the junk debt buyers want you to think that the original creditor is coming after you, and they will often cross the line of legality in their charade. Truth of the matter, in most of these cases, the only entity coming after you is a junk debt buyer with no moral claim to the money, and they paid pennies on the dollar for your debt. It is not uncommon for them to buy a $1,000 debt for $10. Do the math. It's a lucrative business, even if they settle for half of what they are pursuing.

      If the debt is less than six months old, maybe Barclays is pursuing this internally. One way to find out would be to get a local attorney to read your notices and give you their take on all of this. If you cannot find one who would do so for free, then pay for a one-hour, private consultation with one. it will be well worth your time and money.

      Brian

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      faillite01 3 weeks ago

      Hello Brian.

      I just wanted to thank you for taking your time to educate us about these debt buyers.

      I did follow your the steps of answering the debt collector (Midland LLC) who is suing me in Hamilton County OH (Municipal court). When I appeared in court for the case management meeting, the lawyer did not show up and the court had to call him. The court asked him to provide me with my requests (substantiation of the debt, contract, etc...). The court gave them 30 days to provide these documents before we meet again (this time will be over the phone on both side). This past Friday, I received a letter from Midland which says that they are opening an investigation concerning this dispute, and to see how they can produce the documentation I requested. They went on to say they : "in the interim, we are ceasing all collection efforts until this conclusion of the investigation of your dispute". And also they added a chart with date the account was opened, the date charged-off, last payment date, the current principal and that they are the new creditor ( in lawsuit they stressed that they purchased the debt from synchrony bank). And they also wrote :"in order to reach a quick resolution of your dispute, it would be helpful to a have copy of any documentation that may support your dispute, if it has not already been provided. Examples of documentation include the following:

      1- Paid in full or account settled (documentation)

      2- Fraud of Identity theft (police report ....)

      3- Balance discrepancy

      4- Death of Consumer Owing the debt (death certificate)"

      what should do at this point?

      Thanks in advance, Brian.

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      Karin P 3 weeks ago

      Thanks Brian. I called the court and they said that the dismissal is the same as without prejudice even though it is not noted as such. So plaintiff can come back. August will be three years (statute of limitations in my state) so I will keep my fingers crossed and hope it doesn't arise again before then. Thank you for your help. Everything here has been invaluable.

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      Brian Gray 3 weeks ago from Pennsylvania

      Karin P,

      It is odd to me to see that there is no delineation on there as to whether this dismissal is with prejudice, or without. Maybe this court runs differently from what is the norm, so I would ask the clerk of the court the question as to whether or not the plaintiff can ever come back and re-open this case. It may be that this court operates with the assumption that their dismissal is final. The clerk of the court will have that answer.

      Brian

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      Karin P 3 weeks ago

      Hi Brian, As I had mentioned on here before, my case was dismissed because the attorney for Calvary did not show for mediation, nor did he opt out of mediation. The notice from dismissal came from the court in the mail. The dismissal did not say it was with or without prejudice. I filed a motion with the court to have it dismissed with prejudice. I just received a note from the court that simply said the case was dismissed and see attached (which was the original letter stating the case was dismissed). There was a copy of my motion, but neither the motion granted or denied box was checked. Do you know what this might mean? Can the case just be dismissed with no indicated as to whether it is with or without prejudice?

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      Brian Gray 3 weeks ago from Pennsylvania

      CamelJockey79,

      Never take anything for granted. The judges in these cases always seem to need a wakening, otherwise, they just seem to go with the status quo, which is the collection company gristmill of people showing up uninformed and judgments being granted against them in favor of the junk debt buyers.

      So, do your homework and be prepared to show the judge why the case should be dismissed for lack of evidence, no proof of legal right of subrogation of the debt, scienti et volenti non fit injuria, and others.

      If the original contract that they attached does not bear your signature, that is just one more item to point out to the judge. And you are right, they need to do a better job of accounting for the amount they allege you owe. I would throw a monkey wrench in the works and ask them about their legal right of subrogation of the debt and how they are reimbursing the original creditor for "first dollar." Study that term "first dollar" with regard to subrogation of debts. You'll enjoy what you find out.

      I hope you knock it out of the park.

      Brian

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      CamelJockey79 3 weeks ago

      Hello Brian! So I was last in court on March 21st, where Calvary's lawyer hand-delivered the request for production. I am due back in court May 2nd for the call docket. In the request for production I asked that "they please provide the actual credit card contract upon which your complaint is based on"... so they did attach the original credit card agreement, and of course it has absolutely nothing in it saying that I would owe Calvary if I default on my debt.

      I also asked that they "please provide a contract, agreement, assignment or other means of demonstrating that the plaintiff has a authority and was legally entitled to collect on the alleged debt".... they included an Affidavit of sale of account by original creditor which states that Citibank sold the charge-off account to Calvary, although the purchase price is censored out.

      So basically Calvary is admitting that they purchased the debt which means that they inflicted the damages on themselves. There's no contract signed between Calvary and I, and there is no mention of Calvary in the original contract that I signed.

      They also attached the last few credit card statements that show my balance and interest but they did not show the purchases that add up to the alleged debt. So Calvary is claiming I owe them thousands of dollars but yet they cannot show what items add up to that debt.

      I'm really hoping the judge is just and fair, because this seems like such an easy case for me to win.

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      Brian Gray 4 weeks ago from Pennsylvania

      Sandra,

      If this is the first time that you have seen these charges, and your suspicion is that someone else opened the account fraudulently, then, by all means, pursue this as a legal defense. Once you make this claim, the plaintiff will most likely send you forms to fill out with regard to this defense.

      Brian

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      Sandra 4 weeks ago

      I requested discovery and they sent me credit card statements dating back 2 years ago. I have no knowled OF these transactions and think it may be a former boyfriend who opened this card. Is there anything i can do at this point? It’s too late for me to submit a fraud claim with the government.

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      Brian Gray 4 weeks ago from Pennsylvania

      Mark G,

      While it is true that most plaintiffs will go after the fact the use of the card constitutes a binding contract, it is still worth asking for the proof of the contract.

      Brian

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      Mark G 4 weeks ago

      Will the defense of an no actual signed contract hold up in court? I have read cases where it did not hold up in court because this day and age, most credit card applications are done online. That is what is actually signed, the credit card app.

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      Brian Gray 4 weeks ago from Pennsylvania

      John,

      Don't do the lawyer's job for him. The burden of proof always rests with the plaintiff. If you file a motion to dismiss, one thing I would use is that the account they identified was listed as belonging to your father, and is therefore improperly served. Since they misidentified the account, you need proof that the account is yours, and that their accounting is accurate. Thus, I would especially go after the fact that the production of all statements is required. You might also want to add that at no time has the lawyer shown legal proof of their right to subrogation of the debt.

      Brian

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      john 4 weeks ago

      all documents on the card refer to john from the credit card and the served documents. i used the excusse that i am john jr. and requested the production of documents for the same reason to see of it is mine not my fathers since he is john also. today the judge rejected all points on the production letter with the exception of the production of all statements. the lawyer rescheduled in two month with the expectation i file a motion on wrong serve and the judge dismis the case. the lawyer made that suggestion before the trial for me to help him out with midland and show he did not loose since it was a mistake on the servers side. he is am old lawyer and seemed nice. what i did not understand is what to file and if i should since i know it migh be mine

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      Brian Gray 4 weeks ago from Pennsylvania

      Another Fighter,

      I would have hit them with a demand for accounting to show how they arrived at their alleged amount owed. I would also have hit them with a request for them to show their legal right of subrogation of the debt. Too late for that now, but you are quite correct that the judge was prejudiced, because that is how the status quo usually works. It take a lot to get judges out of that status quo mentality. Siding with these blood suckers is like a knee jerk reaction, and I wonder if they aren't getting kickbacks.

      You could appeal, but you have time limits if you choose to do so. You can also declare bankruptcy, which wipes this out. Or, you can elect to pay the judgment and ask the judge for a minimal payment schedule, something that makes it a dragged affair for the plaintiff.

      Sorry to hear that you lost. That does happen from time to time, which is why I always tell people to try to retain a good lawyer. They know the ropes well.

      Brian

      P.S. I disagree with the judge that these blood suckers did not need a signed contract with you.

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      Brian Gray 4 weeks ago from Pennsylvania

      John,

      In my honest opinion, getting the name right is something that they will eventually do, but, I would still ask a local attorney his opinion, because there might just be a loophole that I am not familiar with.

      Knowing what the attorney representing them knows now, I would think that it is just a matter of time before he tells his client that they need to serve you properly. But, I would not do their work for them. The fact that they had this information wrong shows that they could have committed other errors, as well, so this is something that may be useful against them.

      Brian

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      Another Fighter 4 weeks ago

      Hi Brian, I lost BIG today. I have to pay full balanced claimed, plus cost for their court fees. I argued the case using everything that I’ve read on this site, but the judge said that these scum bags do not need to show any accounting or signature that I signed a contract with them. The information provided by these leeches and their affidavit, was all that she needed to see and hear to make her decision. The Leeches Lawyers also said, that since previous payments were made at some point on the credit card, it was clear that this debt was mine. No one else would pay that credit card company (sent directly to the credit card company, and not to the collections company) from my address, that I’ve had for 8 years. The financial numbers they submitted were actually wrong on their paperwork too, but the judge kindly let the leeches know, that she had fixed it for them. How sweet!! More mistakes that at “okay”. This of course, was after I had pointed out the other error that I had found in their paperwork. She didn’t care about those little errors. Their just typos the judge said. It seems to me that she immediately sided with the Plaintiffs before I had even walked in the door, and yes I’m pretty sure of that. Disappointed overall and hit with the full bill. In retrospect, probably should have settled. Thanks for your help anyways. I tried. Good luck to everyone else, but be prepared to forefeit the option to a redced settlement, when fighting in court, because you could me up like me- paying the full bill and courtfees.

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      john 4 weeks ago

      i asked about being served under john and my name is john jr i am not sure account is mine and requested production recieved nothing. the lawyer representing midland asked me to file a motion saying the company that served me served the wrong person since i am jr. and it does not say jr. my question is should i file the motion even if the account might be mine

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      Another fighter 4 weeks ago

      Hi Brian, I have my case heard today. Nervous about the questions that I’ll be asked by the collections attorney. Words of advice? I noticed that some my paperwork has the wrong state printed on it, I’m not sure if that makes the integrity of their case any weaker? It’s noted as the heading, on paperwork, to their response to Request For Production? They objected to every single request of proof that I had sent!

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      Brian Gray 4 weeks ago from Pennsylvania

      Donaldson,

      A contract can be oral. Use of the credit extended constitutes agreement to the terms of the contract binding that credit.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      John,

      Yes, you can request that clarification.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Micah 2000,

      Always defer to the documents required or requested by your local court.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      AU Man,

      I would bring it up in court and present the judge with a motion to compel. The judge can either compel them to supply the requested documents, or dismiss the case, whichever the judge decides.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Mark G,

      Here is a trick question for your lawyer: if this is the original creditor, then where, as per the rule of attachments, is the original signed contract?

      If they were the original creditor, they would have had no problems attaching that, as it is required.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Wemick,

      I usually use that line to repeat whatever was sent on their legal forms, but you are quite right, it most often is nothing more than the junk debt buyer posing as the original creditor. If they list the original creditor as the plaintiff, you might just as easily list the collection company in its place.

      Brian

    • profile image

      Donaldson 4 weeks ago

      Can someone claify this rumor?

      Someone said the FCRA states that there must be a wet original signature, not a copy? For all I know, all credit card term agreements are done by recorded voice agreement and E-Signing; will that suffice? I'm confused here.

    • profile image

      Micah 2000 4 weeks ago

      Team... I have read the "Request for Production" form and printed it out...but on our local Magistrate Court web page is a list of proper forms to use..... http://www.waltoncountyga.gov/courts/magistrate-co... My question is should I used your form or one of the forms listed on the web link above.....I want to make sure I'm not to be thrown out of court for the wrong form...Can you check out the link and advise....You guys have encourage me to fight...Thanks..

    • profile image

      AU Man 4 weeks ago

      Hello Brian, I sent a Request for Production to the law firm via USPS Priority Mail that was delivered on March 29th. I have not received a reply from them as of April 24 and my court date is May 2nd. Should I send them another request? What does it mean for me if they do not respond in the 30 day window?

    • profile image

      Mark G 4 weeks ago

      I spoke to a lawyer and he believes it is the original creditor. Is there anyway to tell if it is?

      The only thing I received with the summons was an account summary stating how much I owed. No affidavits or anything. Are they allowed to bring affidavits to trial? I already certified mail them a request for production but have not received anything. From what I have read, they do not need to since it's a Magisterial District Court.

      If they had the original signed agreement and statements would they have attached it to the summons or are they trying to get that information now and present it at trial?

    • profile image

      Wemick 4 weeks ago

      Mr. Gray,

      I noticed in your example Request for Production form that the plaintiff should be the credit card company. The actual plaintiff is the dept collector as opposed to the original credit card company. As I am in the process of completing the request to send off to the plaintiff I want to assure that I address it properly. Thank-you for your valuable information and help.

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Mark G,

      Here's a very good article for you to read and study:

      https://www.mforbeslaw.com/Blog/2011/September/-Ju...

      Just because the firm is a law office does not mean that they are acting in direct order from the original creditor. In the vast majority of cases, they are covers for nothing more than unscrupulous junk debt buyers. Research Ratchford online, and you will see all you need to know about them.

      Brian

    • profile image

      Mark G 4 weeks ago

      I plan on going to court and defending myself either way. It is the Ratchford Law Group and they list Capital One as the defendant. The debt was charged off in May of 2017 according to credit report.

      Are they just junk debt buyers? Thanks again for all your help on this site.

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Mark G,

      It is such a rare occurrence that someone is actually being sued by the original creditor that I always have to ask why they think that this is the situation. However, in the unlikely scenario that this is the case, then the original creditor is going to win, because they will possess all of the necessary documents and records to win their case.

      Make sure that it is the original creditor before you go giving the victory to a collection company that has convinced you that they are the original creditor. You won't get a re-do on this.

      Brian

    • profile image

      Mark G 4 weeks ago

      Brian, if I am being sued by the original creditor, can I still use this same defense strategy?

      Thanks for all your great insight on this blog

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Sued,

      Lawyers range from inadequate to intelligent, so just because you got a lawyer who appears to lack experience and know how does not mean that you should just throw in the towel. If it was not possible to win against these blood suckers, I would not have written my article, and the thousands of people who have won their cases using the information that I have shared on here would also never have won their cases.

      So, I am not sure why this lawyer told you that you were going to lose, but I have my suspicions. The choice is yours, but for that lawyer to tell you to just let Midland get a default judgment against you sounds like the stupidest thing I have ever heard.

      If you declare bankruptcy, the problem goes away, but then your credit will have that bankruptcy showing on it for ten years. Something to think about.

      Read my article, read and study the many posts on here from people who have fought these blood suckers and won...and take heart, you can win, too. Me, personally, under no circumstances would I just lay down and let them roll over me.

      Brian

    • profile image

      sued 5 weeks ago

      hello again so when i read your article i felt like i could win but today there was a free legal aid clinic in my town and i got to talk to a lawyer there to see if they could help me and she suggested that i just let midland get a default judgement because according to her with the little documentation they included in the summons they would most likely win if i tried to fight them which would only add more to the debt i told her everything i read here and even to check it out her self but she said that the best thing for me to do was nothing i know nothing is guaranteed but i don't know what to do on the one hand i don't want to just let them win without a fight but on the other hand i don't want to try to fight this, lose and have more added to the debt. before this though a friend suggested i declare bankruptcy but i really don't know what to do and i don't know i just feel trapped and hopeless like there is no way out :( do you have any suggestions??

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Micah 2000,

      The status quo in most states seems to favor the "good ole boys" approach to these types of cases, because nobody challenges the status quo. Thus, my article and the thousands who have started fighting back.

      My suggestions? Follow the advice that my article has given to thousands of people, read the many posts on here to see the winning strategies that others have used to their benefit, and study like you are going in for a final exam. It's all on here, and it works, even in Georgia.

      Good luck to you,

      Brian

    • profile image

      Micah 2000 5 weeks ago

      Mr.Brian I just a summon from Discover card about a debt...Ga has funny laws about credit card companies...They seem to favor them.....What do you suggest...have you had dealing with Ga laws?

      This is scary.....Hope you can help me...Thanks in advance...

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Sued,

      Study the many posts on here written by people who have been sued by Midland and have won their cases. They list their strategies, so it is well worth your time to read them.

      If you know that they have two other debts, if they have contacted you about them, I would send them a request for validation of the debt as soon as they start asking you about these two debts.

      Brian

    • profile image

      sued:( 5 weeks ago

      hello Brian i am being sued by midland funding for one debt and would like to know if you have any specific tips on how to handle a case with them also they have two other debts should i send them a request for validation for those other two or do i wait to see how this first case goes (I'm in California btw)

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      BlueWall,

      Here is a link to the answers you are seeking:

      https://saclaw.org/wp-content/uploads/sbs-motion-t...

      I hope this helps,

      Brian

    • profile image

      BlueWall 5 weeks ago

      Does anyone have experience with hearings to deem facts admitted? I have this hearing scheduled soon because I failed to respond to a combined request for admissions and interrogatories. Even though I was advised to seek an attorney, no local attorneys will assist me -either they don't respond or won't take cases where the debt amount is under $2000. So I'm on my own and would like to know what to expect when I show up at the hearing- will I be allowed to present a defense? should I put it in writing and submit it during the hearing? Do I prepare a motion? The court clerks won't tell me what to expect at the hearing because that is considered giving legal advice. Please help. Thank you.

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Na Wao,

      There are courts and states in which that argument holds up, still, I would use the fact that they do not have a signed copy of the original contract as part of your defense in court.

      What they have offered is not a complete validation of the debt. For example, how do they verify the accounting for the amount that they allege you owe? Study the documents that were provided by Rodney Miner, which documents I posted on my site. He gave quite a bit of useful information on how to fight these types of situations.

      Also, send them a request for proof of their legal right of subrogation of the debt. That will put them into a frenzy.

      Brian

    • profile image

      Na Wao 5 weeks ago

      Midland sent me a letter stating "The original contract, complete payment history, sale documents,

      and a full set of billing statements are not required under the FDCPA. As a courtesy, while sale documents

      are not required to validate the account, a copy of the bill of sale and additional documentation is enclosed" What is the best response to them.

      for your records.

    • profile image

      Ninacatharina2 5 weeks ago

      Thank you Brian, I'll sent request of production letter right now. Thank you for all information that you share to us, its really help.

      Paulina

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Ninacatharina2,

      If you have been sued, send a request for production. If you have not been sued, then send a letter to the debt collection company requesting validation of the debt. Do NOT sign anything that admits anything.

      Brian

    • profile image

      Ninacatharina2 5 weeks ago

      I call the debt collector and they said they sent the demand letter which i don't get it. I told them that long time ago CITI tried to make a deal that lower that debt collector ask me to pay. the debt collector ask me to make a letter that i acknowledge the card is belongs to me which i decline. mky question now is, I want to send letter requesting validation of debt is still valid? thank you for your answer

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Karin P,

      Even though it has been dismissed, I would still contact the credit reporting agencies and inform them of the status of the account.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Jerri,

      Very good! Time to celebrate. Thanks for sharing that experience.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Heather Strait,

      I would contact a local attorney. And I would refuse to answer any correspondence posed by the company that is trying to repossess.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 5 weeks ago from Pennsylvania

      Karin P,

      Congratulations! You did well, and I'm sure you're glad that part is over. You can file a motion with the court to have the case dismissed with prejudice. Ask the clerk of the court for the forms and procedures.

      Brian

    • profile image

      Jerri 5 weeks ago

      I forgot to mention in Virginia you can use everything from this free library. Thanks again Brian

    • profile image

      Karin P 5 weeks ago

      Oh gosh - one more question. Now that it has been dismissed, what about having the debt removed from my credit report? Is the plaintiff responsible for making this happen? What can I do to make it happen?

    • profile image

      Jerri 5 weeks ago

      Brian, another thank you sir for this free library of knowledge, and inspiring page. I would also like to thank the contributors for sharing each experience. I have won my second case before the third court date with one junk debt buyer. It is very funny how I did not have to say anything in court but, "I would like to dispute the case, your Honor." and "what do mean your Honor?". I won the first case last, and second one first, also each lawyer wanted a non-suite. Also, one of the lawyers said it in court and the other one sent me a letter. Thank You Jesus.

    • profile image

      Karin P 5 weeks ago

      Oops - in my post below, I mean dismissed with prejudice. Just wanted to make that clear.

    • profile image

      Heather Strait 5 weeks ago

      My husband is being sued for the remainder of a repossessed vehicle. He is currently out of country and working in Saudi Arabia. What can I do!

    • profile image

      Karin P 5 weeks ago

      Hi Brian,

      I showed up for mediation and plaintiff did not. Just got the letter in the mail that the judge dismissed the case because plaintiff did not show up nor opt out out of mediation! Ecstatic!! Now I’d like to ask the court to change it to dismissed without prejudice. How do I go about doing that? Thank you for your help!

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