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Being Sued Over a Debt? It May Just Be Fraud Upon The Court or Perjury

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Pro se write up.

 

FWIW

 

http://www.statesboro.biz/News/545/Being-S...or-Perjury.aspx

Many times an original creditor will farm out the collection of a debt to a collection company (such as Nationwide Credit), who in turn farm it out to collection attorneys so they can file suit on the debt (such as Hanna and Associates, the now defunct Mann Bracken, and others).

 

The big problem with this is that the law firm that filed the suit doesn’t directly represent the original creditor, but the 2nd party collection company. Since the law firm didn’t name the 2nd party as the plaintiff, but named the original creditor as plaintiff many see this as “fraud upon the court†and at the very least the law firm didn’t name a “party in interest†in the lawsuit.

 

Even better news is that anything the law firm introduces as evidence, witnesses, or documents is pure hearsay, being that the law firm is in actuality a third party to the proceedings.

Collection law firms will go to great pains to hide the fact that they are indeed third parties to a suit and that they do not in fact directly represent the original creditor.

 

I personally have been subject to such suits and have discovered several methods to expose the truth in the matter. First though, I would like to show an actual example of an attorney firm filing a lawsuit in which they didn’t directly represent the original creditor.

 

Several years ago I was sued by Macey, Wilensky, Kessler and Hennings LLC of Atlanta Georgia. The suit named American Express Centurion Bank as Plaintiff.

 

I had suspected that Nationwide Credit (a debt collection company) had been assigned the alleged account as I had sued another debt collector prior to being sued by Macey, Wilensky, Kessler and Hennings LLC and in the settlement the collector offered, American Express was included (which I made the remove before I settled with them).

 

finish reading article at :

 

http://www.statesboro.biz/News/545/Being-S...or-Perjury.aspx

Edited by Jen23514

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Interesting case. The ABC Creditor assigns UVW Collections to collect the debt and UVW Collections then has XYZ Law firm file the suit against you. So if XYZ Law firm lists ABC Creditor as the creditor and not UVW Collectoins it's fraud?

Edited by BoostMyScore

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Good stuff...i always wondered how this was legal..this and how they can sue for thousands on something they paid 5 bucks for

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Random tidbits from my files:

 

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla.

County Court, Orange County July 20, 2007), the court held that a debt buyer

“assignment†which does not refer to specific accounts does not establish

ownership by plaintiff, nor is testimony based on computer screen sufficient:

The Court has reviewed the documents presented by the Plaintiff, Bill

of Sale and the Assignment, and finds that they fail to sufficiently

identify the accounts that were assigned or sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment indicate the account

numbers or names of account holders. They do not provide any

information that would allow the Court to determine if the alleged

account of Defendant was one of the accounts sold or assigned to the

Plaintiff.

 

Without any indicia of ownership that would sufficiently identify the

true owner of the account at the time that Plaintiff filed this action,

the Plaintiff is unable to prove that it had standing to bring the action.

An assignment is the basis of the Plaintiff's standing to invoke the

processes of the Court in the first place and is therefore an essential

element of proof. Progressive Express Ins. Co. v. McGrath

Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2nd DCA 2005);

Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469

(Fla. 5th DCA 2001). “Only the insured or medical provider ‘owns'

the cause of action against the insurer at any one time.†Id. at 470.

 

 

Generally, an employee of a debt buyer is not competent to offer testimony

concerning the records of an assignor.

 

PRA III, LLC v. Mac Dowell, 15 Misc. 3d

1135A, 841 N.Y.S.2d 822 (N.Y. Civ. Ct. 2007) (“Elaine F. Lark, a legal

specialist of the plaintiff†is “ not an employee of the original creditor (Sears) and

cannot authenticate documents from another businessâ€).

 

A good case involving debt buyer affidavits is Luke v. Unifund CCR, 2-06-444-

CV, 2007 Tex. App. LEXIS 7096 (2d Dist. Ft. Worth Aug. 31, 2007).

 

 

“Business records†must be prepared in the regular course of business, where

there is little or no motive to falsify. Documents prepared after the event for

litigation purposes are not admissible as business records.

 

 

Also illustrative of the problem is Palisades Collection LLC v. Haque, 2006 N.Y.

Misc. LEXIS 4036; 235 N.Y.L.J. 71 (Civ. Ct. Queens Co., April 13, 2006)

(Pineda-Kirwin, J.), where a debt buyer’s case was thrown out even though it had

local offices and was able to call a witness, because (a) it could not prove title to

the debt, (:good: it could not authenticate the contract, © it could not show the debtor

had failed to pay. The Haque court also held insufficient the offer of “generic†contracts which

could not be linked to the defendant’s account. The court also held a claim of assignment insufficient without proof of the

assignment.

 

 

Unifund CCR Partners v. Harrell, 2005 Conn. Super. LEXIS 2037 (Aug.

3, 2005): Failure to produce signed agreement or affidavit authenticating

purported agreement as that entered into with defendant results in denial

of summary judgment. Affidavit of “plaintiff’s legal coordinator†that

“she has access to the records of Unifund CCR Partners and therefore has

personal knowledge of the facts†not sufficient.

 

 

 

Of course, this is all relevant to events waaaaaaaaaaaay past the DV stage. Hopefully it is resolved before you have to research the m atter to this degree. :wave:

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many things that people ask for in their DV are not required by the FDCPA.

 

as the author of the blog I posted above pointed out, there are many things that are discoverable though in court (but are often asked in that dreadful c/p of DV#1)

 

Among some of the areas that have found to be discoverable in FDCPA cases:

 

1. The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt.

2. How amount sought was calculated.

3. Where in issue, list of reports to credit bureaus. Coppola v. Arrow Financial

Services, 3:02CV577, 2002 U.S. Dist. LEXIS 26788, 2002 WL 32173704

(D.Conn., Oct. 29, 2002).

4. Documents conferring authority on defendant to collect debt. Coppola v.

Arrow Financial Services

5. Number of times offending collection letters were used. Yancey v. Hooten,

180 F.R.D. 203 (D.Conn. 1998)

6. Proof of prior illegal acts is admissible to show knowledge and intent

7. Where a good faith defense is asserted, prior claims. Trevino v. ABC Am.,

Inc., 232 F.R.D. 612 (N.D.Cal. 2006). “In their answer to the complaint,

defendants claim that they had a good faith belief that their collection efforts

were lawful. While plaintiffs' requests may be phrased too broadly,

information relating to whether or not defendants had claims filed against

them, participated in litigation or arbitration, or received demand letters from

attorneys about the legality of this particular type of collection effort under

the FDCPA is relevant and must be disclosed.â€

8. Manuals relating to the practices in question. Trevino v. ABC Am., Inc., 232

F.R.D. 612 (N.D.Cal. 2006).

 

I'm sure there's more.

:D

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Interesting case. The ABC Creditor assigns UVW Collections to collect the debt and UVW Collections then has XYZ Law firm file the suit against you. So if XYZ Law firm lists ABC Creditor as the creditor and not UVW Collectoins it's fraud?

 

Depends on your state laws......

 

many states allow collection agencies to bring suit in court on behalf of a creditor.

 

this is called "delegation" - and the contract/partial assignment from the OC to the CA has to specifically state they can bring suit.

 

and these states also require the collection agency to be represented by an attorney.

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Good stuff...i always wondered how this was legal..this and how they can sue for thousands on something they paid 5 bucks for

 

In the instant case, there was not a purchase. They were authorized to act on behalf of AXP.

 

Further, when there HAS been a sale, the purchaser acquires ALL rights and is legally entitled to stand in the shoes of the seller. This is spelled out in the original terms and conditions that the consumer agreed to when they used the account. The sale of debt-related rights is NO different than the assignment (sale) of mineral rights on a piece of property.

 

Looking at the individual quoted, it appears that they are basically another Cunningham...they luckboxed a few settlements or favorable rulings and now feel they are qualified to give guidance to people in all 50 States...

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Depends on your state laws......

 

many states allow collection agencies to bring suit in court on behalf of a creditor.

 

this is called "delegation" - and the contract/partial assignment from the OC to the CA has to specifically state they can bring suit.

 

and these states also require the collection agency to be represented by an attorney.

 

Is there some place I can search to find out of NC allows this or any other state for that matter?

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Depends on your state laws......

 

many states allow collection agencies to bring suit in court on behalf of a creditor.

 

this is called "delegation" - and the contract/partial assignment from the OC to the CA has to specifically state they can bring suit.

 

and these states also require the collection agency to be represented by an attorney.

 

Is there some place I can search to find out of NC allows this or any other state for that matter?

 

RCP is a good place to start as is your jurisdiction's equivalent to the Civil Practice and Remedies Code.

 

Knowing the appellate tenor in your jurisdiction also goes a long ways towards knowing what flies and what does not.

 

Bottom line, though, is that if the Defendant fails to articulate all available arguments, they are considered to have waived the argument.

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Depends on your state laws......

 

many states allow collection agencies to bring suit in court on behalf of a creditor.

 

this is called "delegation" - and the contract/partial assignment from the OC to the CA has to specifically state they can bring suit.

 

and these states also require the collection agency to be represented by an attorney.

 

Is there some place I can search to find out of NC allows this or any other state for that matter?

 

Yes, I made a link to the NC laws and posted it in the state forums. I also posted it in this forum. The one in this forum had more discussion.

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Depends on your state laws......

 

many states allow collection agencies to bring suit in court on behalf of a creditor.

 

this is called "delegation" - and the contract/partial assignment from the OC to the CA has to specifically state they can bring suit.

 

and these states also require the collection agency to be represented by an attorney.

 

Is there some place I can search to find out of NC allows this or any other state for that matter?

 

 

 

if you live in NC, you are in luck - they passed new law effective oct 1, 2009 reagarding suits by JDB's & collection Agencies.

 

it's all in the state law forum, and jack did repost it here on the credit forum.

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On 2/7/2020 at 6:48 PM, IndyPoolPlayer said:

Are you being sued in Marion Superior or Township Small Claims?

 

On 2/7/2020 at 10:24 PM, rhill1 said:

It's Marion County Circuit/Superior Court

 

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On 9/14/2010 at 10:19 PM, Jen23514 said:

Random tidbits from my files:

 

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla.

County Court, Orange County July 20, 2007), the court held that a debt buyer

“assignment†which does not refer to specific accounts does not establish

ownership by plaintiff, nor is testimony based on computer screen sufficient:

 

 

Generally, an employee of a debt buyer is not competent to offer testimony

concerning the records of an assignor.

 

PRA III, LLC v. Mac Dowell, 15 Misc. 3d

1135A, 841 N.Y.S.2d 822 (N.Y. Civ. Ct. 2007) (“Elaine F. Lark, a legal

specialist of the plaintiff†is “ not an employee of the original creditor (Sears) and

cannot authenticate documents from another businessâ€).

 

A good case involving debt buyer affidavits is Luke v. Unifund CCR, 2-06-444-

CV, 2007 Tex. App. LEXIS 7096 (2d Dist. Ft. Worth Aug. 31, 2007).

 

 

“Business records†must be prepared in the regular course of business, where

there is little or no motive to falsify. Documents prepared after the event for

litigation purposes are not admissible as business records.

 

 

Also illustrative of the problem is Palisades Collection LLC v. Haque, 2006 N.Y.

Misc. LEXIS 4036; 235 N.Y.L.J. 71 (Civ. Ct. Queens Co., April 13, 2006)

(Pineda-Kirwin, J.), where a debt buyer’s case was thrown out even though it had

local offices and was able to call a witness, because (a) it could not prove title to

the debt, (:good: it could not authenticate the contract, © it could not show the debtor

had failed to pay. The Haque court also held insufficient the offer of “generic†contracts which

could not be linked to the defendant’s account. The court also held a claim of assignment insufficient without proof of the

assignment.

 

 

Unifund CCR Partners v. Harrell, 2005 Conn. Super. LEXIS 2037 (Aug.

3, 2005): Failure to produce signed agreement or affidavit authenticating

purported agreement as that entered into with defendant results in denial

of summary judgment. Affidavit of “plaintiff’s legal coordinator†that

“she has access to the records of Unifund CCR Partners and therefore has

personal knowledge of the facts†not sufficient.

 

 

 

Of course, this is all relevant to events waaaaaaaaaaaay past the DV stage. Hopefully it is resolved before you have to research the m atter to this degree. :wave:

This is exactly how my attorney beat Cavalry Portfolio when they tried to sue me some years ago.  It was right after the book Bad Paper was published.  An excellent read on this topic, and defending against junk debt buyer lawsuits in general, is the paper Defending Against Junk Debt Buyer Lawsuits by Peter Holland: Link to Univ of Maryland School of Law.  Some things have changed in the 8 years since this research paper was penned. The OCs and buyers and sellers of debt are now much more careful to document original contract terms, chains of ownership, detailed account records, etc.  But the tactics in this paper are still valuable to review and apply in almost all cases where the account or debt in question originated prior to 2015.

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Interesting bump...always wonder what happened to people like Jenbunchonumbers LOL!

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36 minutes ago, centex said:

Interesting bump...always wonder what happened to people like Jenbunchonumbers LOL!

she's probably running an ironman.

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