WHAT’S IN THE NEWS (Old 2014)
December 30, 2014Lardner v Diversified Consultants Inc. TCPA. “Defendant’s argument is absurd and has been previously rejected by this Court.” So says judge in TCPA case to defendant’s argument on manual dialing and prerecorded messages.
December 21, 2014Sayyed v. Wolpoff & Abramson. When is a Motion for Summary Judgment not Motion for Summary Judgment? When it is an attempt to collect a debt. So says the 4th Circuit Court of Appeals.
December 20, 2014Powell v. Palisades Acquisition XVI, LLC. When is an Assignment of Debt not an assignment? When it is an attempt to collect a debt. So says the 4th Circuit Court of Appeals.
NATIONAL CREDIT UNION ADMIN. BOARD v. U.S. BANK NA & BANK OF AMERICA NA. An action for violations of the trustee to perform the required policies and procedures under the Pooling and Servicing Agreement. The Trustees had a duty to protect the Trust, and failed in their performance.
December 17, 2014Bridge v. Ocwen Bank 681 F.3d 355 (6th Cir. 2012) Neither a Creditor nor a Debt Collector be. Ocwen and Deutsch plead that they were neither a Debt Collector nor a Creditor therefore the FDCPA does not apply. Yeah, right. Didn’t fool the Court.
December 4, 2014Weiner v. Ocwen, pro se files a class action against Ocwen with 6 Causes of Action. Complaint goes well into the backdoor sources for extorting money from people who are already struggling to keep their homes.
December 3, 2014New York regulators on Wednesday rolled out new debt collection rules requiring collectors, among other things, to produce loan documents or a court judgment if requested.
Florida Federal Court Grants Rule 12(b)(6) Motion For Failure To Satisfy Twombly/Iqbal Pleading Standard. In TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a claim under the TCPA rather than allege adequate factual support, and dismissed plaintiff’s complaint without prejudice. New York regulators on Wednesday rolled out new debt collection rules requiring collectors, among other things, to produce loan documents or a court judgment if requested.
November 21, 2014FTC Continues Regulatory Scrutiny of the Debt Buying Industry. The Federal Trade Commission (FTC) recently obtained temporary injunctions against two passive debt buyers, which are companies that buy and sell debt portfolios and exclusively use third-party debt collectors. In complaints filed against the companies, the FTC alleged that the debt buyers had engaged in unfair practices under Section 5 of the FTC Act. Article in *.pdf format.
Turning the Tables: How You Can Turn Your Debt Collection Lawsuit into an FDCPA Action Against Junk Debt Buyers. Debt buyers have two things working against them: first, they deal in huge volume. It is nearly impossible for them to truly understand what it is they are suing on or to really know any specifics about your case. Second, they pay very little for their accounts (on average about 4 cents on the dollar). Because they pay very little they get very little; they often don’t have any real evidence to support their claims – which is a big “no no” under the FDCPA. Article in *.pdf format.
November 20, 2014Where is summary judgment not appropriate? Notice the search phrase: “what is the oklahoma statute where summary judgment is inappropriate?” Try replacing Oklahoma with your state and see the results. Article in *.pdf format.
The U.S. Court of Appeals for the D.C. Circuit spent several hours on Wednesday weighing whether corporations and state attorneys general had legal standing to challenge the existence of the federal Consumer Financial Protection Board, the merits of their challenges notwithstanding. Article in *.pdf format.
Nine-Year Prison Sentence in First CFPB Criminal Case Referral. Michael Levitis, the owner of a New York debt settlement company, was sentenced to nine years in prison Wednesday after pleading guilty in a fraud scheme that law enforcement officials said victimized 1,200 people with false promises of relief from credit card companies and banks.
Could this event and its potential be what’s behind the attack on the CFPB???? (see above article)
“No one gets a free house.” This Court and others have uttered that admonition since the early days of the mortgage crisis, where homeowners have sought relief under a myriad of state and federal consumer protection statutes and the Bankruptcy Code. Well, maybe they do! Article in *.pdf format.
November 15, 2014McLaughlin had a mortgage. As a result of an error, the mortgage company believed that he was in default and referred the matter to a law firm, PHS, which sent McLaughlin a letter about the debt that, he claims, violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692 by referring to attorneys’ fees and costs that McLauglin claims had not yet been incurred. The district court dismissed certain claims because McLaughlin did not ask PHS to validate the debt under 15 U.S.C. 1692(g) before he filed suit. The Third Circuit reversed, concluding that he was not required to request validation in order to sue under 15 U.S.C. 1692(e). The court affirmed imposition of sanctions against PHS for its failure to produce certain documents during discovery. Judicial Order in *.pdf footnoted format.
November 13, 2014Az Federal Judge Strikes at Heart of Nonjudicial Foreclosure, Denies OneWest Motion to Dismiss. A Federal Judge upheld a Complaint against OneWest on all counts except fraud. Actually the Judge was doing the homeowner a favor because the burden of proof on fraud is clear and convincing evidence whereas the burden of proof for the rest of the causes of action is only a preponderance (50% + 1) of the evidence. Judicial Order in *.pdf format.
Feds Investigating Banks’ and Debt Buyers’ For Their Treatment of Bankruptcy Accounts. The United States Trustee Program, a division of the Justice Department, is investigating several of the largest consumer lenders in the country over their debt collection and portfolio sales tactics relating to accounts owed by consumers under bankruptcy protection.
November 11, 2014BoA and ReconTrust sent packing. Utah Fifth District Judge Jeffrey Wilcox listened to Sam Adamson tell his story on the witness stand about the illegal foreclosure conducted on his home by ReconTrust Company over four years ago. After taking the case under advisement Judge Wilcox issued a ruling stating that the foreclosure sale on Adamson’s home was void and never happened. Judicial Order in *.pdf format.
November 10, 2014SPS and the Chase Servicer Shell Game. Many Judges have expressed their concern about the constant movement of servicers and trustees. They are asking why the servicer keeps changing and why the trustees are changing. And now they are asking for legal argument why the substitution of the only named Plaintiff is not an amendment to the Complaint which must specifically allege facts in support of the claim of the “new Plaintiff.” This is a result of the multifaceted fraudulent scheme where claims of securitization are unfounded and claims of debt are fictitious in derogation of the rights of both investors on Wall Street and borrowers on main Street. In *.pdf format.
October 31, 2014Federal Judge Sustains 8 Count Complaint Against US Bank, OneWest, Ocwen. See 62-Order Denying Motion To Dismiss, Buffington Behrens One of the interesting things about the history of these mortgages and foreclosures is that back when the tidal wave of foreclosures began the banks were denying there was any trust involved in the transactions. Now they claim that their right to appear in court as representative of the owner of the debt or the holder in due course is derived from the Trust instrument (Pooling and Servicing Agreement) of a Trust! But back in 2007-2009, they were busy denying that a Trust existed.
October 21, 2014A Recent Decision by the Illinois Appellate Court May Have Significant Fallout. The Illinois Appellate Court recently held that a residential mortgage is void if the related loan transaction was originated by an entity that was not licensed or exempt under the Illinois Residential Mortgage License Act of 1987 (the “License Act” or “Act”). First Mortgage Company v. Dina, appeal decision.
Dina Ruling Stands in Illinois, First Mortgage Company’s petition for leave to appeal was denied by the Illinois Supreme Court on September 24, 2014. If your mortgage on Illinois property was made by an unlicensed firm, it may be void ab initio (from the beginning).
October 20, 2014In a significant action against a debt buyer, a pro se Plaintiff responds to Debt Buyer’s Motion for Summary Judgment. Plaintiff has provided a ton of disputed facts as revealed in the unsealed opposition and exhibits, smart money is on the motion being denied. What catches the eye, however, is the Forward Flow Agreement (a contract between Debt Seller and Debt Buyer) in which the buyer agrees not to ask for documents in support of the debt they are collecting or attempting to collect. This agreement builds roadblocks that thwart the requirements of a “re-investigation” under the Fair Credit Reporting Act. See examples of forward flow agreements here.
October 1, 2014In a significant action against a debt buyer, a pro se Plaintiff responds to Debt Buyer’s Motion for Summary Judgment. Plaintiff has provided a ton of disputed facts as revealed in the unsealed opposition and exhibits, smart money is on the motion being denied. What catches the eye, however, is the Forward Flow Agreement (a contract between Debt Seller and Debt Buyer) in which the buyer agrees not to ask for documents in support of the debt they are collecting or attempting to collect. This agreement builds roadblocks that thwart the requirements of a “re-investigation” under the Fair Credit Reporting Act. See examples of forward flow agreements here.
September 25, 2014On many occasions debt collectors foreclosing on a mortgage have tried to circumvent liability under the FDCPA as debt collectors; reasoning that they are enforcing a security interest under 15 USC 1692f(6) only and therefore are not subject to the FDCPA in its entirity. Well, that is not necessarily true. The CFPS spells that out in their Amicus Brief in Birster v. American Home Mortgage Servicing, Inc., 2011/2012.
September 24, 2014Debt Buyer provides a witness for deposition that is designated able to testify to a list of 21 topics noted within the Notice of Deposition . You will notice that they only able to give partial testimony or none at all on 9 of the 21 topics. Most of the desposition contains statements by the counsel for supposed witness and not the witness.
September 18, 2014Seventh Circuit rules federal government not immune from Fair Credit Reporting Act claims. In a decision issued Tuesday, July 23, 2014, the Seventh Circuit ruled that the federal government does not enjoy immunity from Fair Credit Reporting Act related damages. Although Bormes v. U.S., No. 13-1602 (7th Cir. July 22, 2014), a class-action suit, was ultimately dismissed on other grounds, the decision stands as the first appellate case to address the issue of whether government immunity is a defense to FCRA claims.
September 17, 2014The mortgage granted to MERS “only the right to record the mortgage” as the lender’s nominee. When MERS then assigned its interest in the mortgage to BAC, it granted to BAC only what MERS possessed—the right to record the mortgage as nominee—because MERS could not have granted to another person or entity any greater interest in the mortgage than that enjoyed by MERS. (Page 11)
September 10, 2014In Parton v. Midland Credit Management, Inc. Plaintiff not only claims FDCPA violations, they also claim UDPTEA of the elderly which carries a penalty of $10,000 per violation, with possible treble award ($30,000 per violation). Georgia Statute for elder abuse known as the Unfair and Deceptive Practices Toward the Elderly and Disabled Act (UDPTEA) as stated in O.C.G.A. § 10-1-851.
September 9, 2014Pollard v. Law Office of Mandy L. Spaulding . Section 1692g(b) of the Fair Debt Collection Practices Act (FDCPA) requires that a debt collector’s collection activities and communications “not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” Same in pdf.
Fonteno v. Wells Fargo Bank, N.A. California Foreclosure Sale Reversed. The court of appeal reversed, finding that plaintiffs pled viable causes of action for equitable cancellation of the trustee’s deed obtained by Wells Fargo based on their allegation that Wells Fargo did not comply with the NHA requirements incorporated into the deed of trust. Same in pdf.
Giunta Prevails on Wells Fargo Motion to Dismiss — Federal Court. He filed a lawsuit against Wells Fargo while the trial on a foreclosure was underway. Wells Fargo now faces a loss in the foreclosure where their witness admitted to being unable to explain the chain of ownership, the balance and the reason why Wells Fargo refused to cooperate in the sale of the property that would have paid them in full. Same in pdf.
September 5, 2014LVNV Funding LLC v Guest. This Court ordered a hearing to determine whether sanctions should be imposed on plaintiff and its attorneys for filing a frivolous debt collection lawsuit and whether plaintiff’s counsel should be held in contempt of the Court for failing to provide court ordered documents. Same in pdf.
September 4, 2014
Forward Flow Agreements Between Creditors and Debt Buyers:
Jefferson Capital/Midland Funding and Encore Capital Group – http://agreements.realdealdocs.com/Asset-Purchase-Agreement/ASSET-PURCHASE-AND-FORWARD-FLOW-AGREEMEN-228804, In pdf format with highlights of significant information.
FIA Card Services/CACH, LLC Forward Flow Agreement – https://s3.amazonaws.com/s3.documentcloud.org/documents/329733/fia-to-cach-forward-flow.txt,
44 more Forward Flow Agreements in zip file format for you to download..
Thank you Dalié Jiménez.Notice that the sales are made in “as is” condition with no warranties as to
completeness, accuracy or documentation.
What does this mean to you? It means: that there may or may not be any evidence that there is even a debt; that the amount claimed may or may not be correct; that the debt may be yours or may belong to someone who has the same or similar name as you do.
September 3, 2014
HOT! HOT! HOT!4th Circuit Court of Appeals holds that debtors are NOT required to dispute debt in writing to state a claim under FDCPA. On August 15, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s denial of a debt collector’s motion for judgment as a matter of law because, under the FDCPA, debtors are not required to dispute debts in writing pursuant to Section 1692g in order to seek relief under Section 1692e. Russell v. Absolute Collection Services, No. 12-2357, 2014 WL 3973729 (4th Cir. Aug. 15, 2014)
September 1, 2014Teal v. Southbound motion for protective order cross motion to compel. Arguments over attorney client privilge and work product. Granted in part, denied in part.
- Capital One Sets Record With $75M TCPA Deal
- Sixth Circuit: State Procedural Rules Don’t Prohibit TCPA Class Actions
- Hospital Admissions Form Evidenced Consent for Later Collections Calls, Southern District of California Court Holds
- Massachusetts Judge Holds That Capability, Not Actual Use, Determines Question of ATDS
August 19, 2014True Confessions of a Former Debt Collector. I collected outstanding mortgage debt for one of the largest mortgage servicing companies, handling loans from Bank of America (BAC), Bear Sterns, Merrill Lynch, Countrywide and many others. The start of my time there predated the mortgage bust by a year, so I got to see exactly how banks had structured loans and people stretching themselves too thin. The job opened my eyes to the problems before they became supremely obvious to everyone back in 2008. True Confessions of a Former Debt Collector.
7 Factors which may be considered by Federal courts in exercising discretion as to the entry of a default judgment. What it looks like to discharge those 7 factors, notice the amount of damages is not a consideraton in the decision for default.
Motion to Strike Plaintiff’s Affidavit of Debt – How to File a Motion to Strike in Court. If you are in the middle of a lawsuit, hopefully you have already read our articles explaining how to answer a summons and complaint and how a lawsuit works. Having digested all of that information, you are now ready to move on to the next phase of your lawsuit, filing a Motion to Strike because part of what you received along with your Summons and Complaint is an Affidavit of Debt from the Plaintiff.
August 16, 2014If ever there was a “don’t do this” here it is. It is a somewhat long read (41 pages, double spaced), yet, what this debtor plaintiff did was entirely beyond the pale. UNBELIEVABLE!!!
August 15, 2014Inside the Dark, Lucrative World of Consumer Debt Collection. That was Aaron Siegel’s business. It turned out to be a good one. Siegel quickly discovered that when he bought the right kind of paper, the profits were astronomical. He obtained one portfolio for $28,527, collected more than $90,000 on it in just six weeks and then sold the remaining uncollected accounts for $31,000. Siegel bought another portfolio of debt for $33,388, collected more than $147,000 on it in four months and sold the remaining accounts for $33,124. Even to a seasoned Wall Street man, the margins were jaw-dropping.
Lawsuit Filed Against Georgia Debt Collection ‘Factory’. The Consumer Financial Protection Bureau (CFPB) is suing Frederick J. Hanna & Associates, a Georgia-based law firm that specializes in suits against consumers who have outstanding debts owed to banks, debt buyers, and credit card companies. The suit, filed earlier this week in the Atlanta Division of Georgia’s Northern District, says the firm . . .
August 12, 2014Rice v Montgomery Ward & Co., Inc. 450 F. sup. 688, 670-72 (M.D. N.C. 1978) Defendant violates FCRA if it obtains a consumer report on Plaintiff after Plaintiff insitutes an action against defendant. Such an inquiry is impermissible.
August 11, 2014Court Asks State Bar to Review Frequent Flyer’s License to Practice Law After He Files Frivolous Complaint . Despite the collection agency’s opposition to the motion to dismiss and its request for sanctions, including costs and attorney’s fees pursuant to Rule 11 of the Federal Rules of Civil Procedure (Rule 11), the court was unable to award sanctions given the 21-day safe-harbor provision of Rule 11 that allows an opposing party the opportunity to correct or withdraw the challenged paper, claim or defense. It appears that the Plaintiff’s attorney was attempting to coerse a settlement on a frivolous case.
August 7, 2014Eleventh Circuit Holds That Filing a Time-Barred Proof of Claim in a Bankruptcy Proceeding Violates the FDCPA. The Fair Debt Collection Practices Act (FDCPA) provides that debt collectors “may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Nor may a debt collector “use unfair or unconscionable means to collect or attempt to collect any debt.” In determining whether a debt collector’s conduct was deceptive, misleading, unfair or unconscionable, courts apply a “least-sophisticated consumer” standard.
A collection of Great FDCPA cases. If you know of one that isn’t shown yet you believe it should be included, please send me the cite and I will review for inclusion.
July 31, 2014Even ABC News tells what can be done to debt collectors and the money that can be made doing it. Be sure to listen all the way to the end, you will learn something to your financial benefit. You can learn the “How To’s” here, and join our mailing list here.
July 25, 2014Sixth Circuit broadens FDCPA verification requirements for debt collectors. Last week, in Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC,— F. 3d — (6th Cir. 2014), 2014 WL 3440174 (6th Cir. Mich. 2014), 2014 U.S. App. LEXIS 13498, the Sixth Circuit expanded the requirement for how a debt collector must respond to a debtor’s request for verification of a debt under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), creating the most consumer-friendly verification standard ever.
July 20, 201440 Years of Experience with the Fair Credit Reporting Act, a FTC Staff Report with Summary of Interpretations by: Federal Trade Commission -2011
July 18, 201411th Circuit Appeal on Statute of Limitations as Pertains to Mortgages. In particular, RESPA statute of limitations. It is a cornucopia of case law and information. Study it thoroughly. It is the case law that is the most significant.
July 15, 2014FDCPA lawsuit and action to collect underlying debt are not compulsory counterclaims. Peterson v. United Accounts, Inc., 638 F.2d 1134 (8th Cir. 1981). Consumer is therefore not barred from filing separate FDCPA action even when previously sued on the debt. Debt collector may not maintain collection action as counterclaim in federal court – Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443 (D. Nev. 1994).
July 13, 2014A selection of Golden Cases and medley of good FDCPA & FCRA case law. Many different issues cited in this one file.
July 11, 2014When debt incurred for combined consumer and nonconsumer purposes, fact question as to which purpose was primary reason debt was incurred – 15 U.S.C. Section 1692a(5). In other words, can a business card fall under the FDCPA as consumer debt?
July 10, 2014In 2008, plaintiff filed for Chapter 13 bankruptcy. During the proceeding, LVNV filed a proof of claim to collect the Heilig-Meyers debt, notwithstanding the limitations period had expired four years earlier. At issue on appeal was whether a proof of claim to collect a stale debt in Chapter 13 bankruptcy violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692-1692p. The court answered in the affirmative. The FDCPA’s broad language, the court’s precedent, and the record compelled the conclusion that defendants’ conduct violated a number of the Act’s protective provisions. Accordingly, the court reversed the orders of the bankruptcy court and the district court dismissing the adversary proceeding.
June 26, 2014The 9th Circuit SAID: “We now reverse and HOLD that judgment should be entered for Tourgeman. Specifically, Tourgeman argues that the defendants violated the Act by misidentifying his original creditor in a series of collection letters sent to him, as well as in a complaint filed against him in state court. He also maintains that one defendant, Nelson & Kennard, misleadingly represented that its collection letter was from an attorney when, on Tourgeman’s account of the facts, no attorney had been “meaningfully involved” in evaluating his case. The district court granted summary judgment to the defendants.” The court goes even further, it discusses standing, both statutory and Article III and redefines or expands upon the statute of limitations as it applies to the FDCPA.
June 19, 2014THE COURT HAS SAID: “Appellants next claim error in the award of $17,104.14 in late charges. The promissory note provides for a late charge of 5% of any monthly installment not received by the bank within fifteen days after the installment is due. Appellants claim that once the bank opted to declare the entire amount due, the late charges should not have continued to accrue on the delinquent monthly payments. We agree. The bank is only entitled to late charges that accrued up until the day the note was accelerated. Thus, we vacate the award of late charges and remand for an evidentiary hearing to determine the correct amount of late charges owed.” Can anyone say Class Action!
June 12, 2014Debt Buyer Arrested and Charged in $76 million Fraud Scheme According to the indictment, UCR purchased consumer debt in the form of overdrawn checking accounts from Wells Fargo and U.S. Bank and then used account information provided by the banks to create hundreds of thousands of fake affidavits purporting to describe and to verify debt owed by consumers. UCR used the fake affidavits in collecting the debt. UCR also sold the fake documents to other debt collectors.
June 10, 2014Debt Buyer Charged With Bribing Bank Executive Leonard G. Potillo III, the owner of Florida-based debt buyer United Credit Recovery LLC, was arrested Monday and charged with bribing a U.S. Bank official to get inside information on the sale of debt portfolios
June 5, 20143rd foreclosure case wins since the 1st of the year. 1st case voluntarily dismissed by the bank, 2 & 3 were involuntarily dismissed by the court.
A lady goes to buy a car, is detained as a terrorist, thanks to a plug-in to a credit report. The lady has a name that was similar to, but not the same as, yet she was reported via her credit report as suspected terrorist, money launderer, drug dealer or the like. This plug-in service from the Credit Reporting Agency could keep you from having a bank account or credit card, getting or keeping a job, being able to acquire housing, getting or renewing a driver’s license, and more, much much more. Thank you Trans Union.
Great case on the issue of the CRA’s SELLING credit reports to entities they KNOW OR SHOULD KNOW are not going to use it for permissible purpose and the issue of the credit reports being sold for purposes of TARGET MARKETING… ie; promotional pulls and to companies no longer is business who bundle and resell to unauthorized entities. The class action was just filed May 29
Cappetta v. GC Services LTD is HUGE. Debt Buyers 1. purchase large portfolios of DEFAULTED debt at deep discount to face value, 2. The accounts listed on the purchased spread sheet are then analyzed by automated computer system, 3. The computer then “red flags” the first round they will attempt collection on, 4. The computer then generates a pull of the related consumer credit files associated with the names and ssi#’s flagged. Up to this point NO HUMANS ARE INVOLVED ANYWHERE EVER. There is no one who ever certifies the accuracy or completeness of the records, period!
Debt Collectors Have Figured Out A Way To Seize Your Wages And Savings. People with overdue bills have long complained of harassment from debt collectors, from late-night phone calls to frightening in-person visits. Now it appears the industry has found far more troubling strategy: Filing lawsuits against debtors — often, consumer advocates say, on the theory that they won’t ever show up to court to defend themselves. Oh so sad, but Oh So True!
May 14, 2014Of all of the rules required for court, the least known throughout the legal industry are those contained within the Rules of Evidence. Particularly the rule of “best evidence”. Once you read this article you will understand why.
May 7, 2014Trevino – v – ACB American Inc Motion To Compel Order. Contains excellent quotable language usable in a motion to compel discovery.
May 2, 2014Did the trial court err by allowing a debt buyer to prove its case against a debtor by submitting unauthenticated documents and an affidavit of an individual not employed by the original creditor given that Rule 3-306 provides that a debt buyer must prove its case with evidence that would pass muster under the business records exception to the hearsay rule? (Highlighted)
The Ethical EXploitation of the Unrepresented Consumer and
Broke But Not Bankrupt – Consumer Debt Collection In State Courts
Two white papers cited within the Townsend v. Midland Funding case above
April 30, 2014MERS, according to the 11th US Circuit Court of Appeals, is not a creditor and cannot be a creditor. Therefore cannot foreclose as a creditor.
April 24, 2014The question is whether mortgage foreclosure is debt collection under the Act. We hold that foreclosure is debt collection and therefore reverse and remand.
April 22, 2014This article will provide an overview of the Federal Fair Debt Collection Practices Act (“FDCPA”). It is intended as a guide for those seeking to bring their firms into compliance with the Act, but it does not cover every question that could arise in the daily practice of collections. Written for the benefit of Debt Collectors.
April 20, 2014“That debt is neither inevitable nor ethical is one of the powerful assertions of Strike Debt, whose brilliant manual is both a practical handbook and a manifesto for a true debt jubilee: an economic rebirth in which the indebted are freed and financial institutions are reinvented.
April 19, 2014SummaryJudgment
In-depth on RESPONDEAT SUPERIOR from Hofstra University.
April 18, 2014PUNITIVE DAMAGES UPHELD AGAINST US BANK IN MONTANA CASE The Gallatin County, Montana District Court has rejected US Bank’s Motion to reduce a punitive damage award assessed against it by a jury, upholding the $5,000,000.00 award as well as the $1M compensatory damages . . .
April 17, 2014Federal Rule of Evidence 1002 contains the Best Evidence Rule: “An original writing, recording, or photograph is required in order to prove its contents unless these rules or a federal statute provides otherwise.”
April 16, 2014Overshaddowing, few know what it is and what it’s affects can be and how it is a violation.
Slantis v. Capozzi & Assocs PC, obtaining a Consumer Report in Preparation for Litigation is Not a Permissible Purpose.
Absent contrary Congressional intent, the plain language of Sections 1681n and 1681q leads to the conclusion that Section 1681q imposes a requirement that a user not obtain credit information under false pretenses.
April 13, 201426f Disclosures from Preparting for Trial in Federal Court.
Motion to Strke Affirmative Defenses in Federal Court.
Summary Judgment from Preparing for Trial in Federal Court.
Rouse vs. Wachovia a victory for National Banks.
March 30, 2014CFPB Annual Report 2014 (Highlighted) on the Fair Debt Collection Practices Act. Debt collection constitutes one of today’s most important consumer financial concerns, as indicated by the more than 200,000 consumer complaints that Federal agencies received in 2013 about the conduct of debt collectors.
March 28, 2014Abstract: Debt buyers have flooded courts nationwide with collection lawsuits against consumers. This article reports the findings from the broadest in-depth study of debt buyer litigation outcomes yet undertaken. The study demonstrates that in debt buyer cases, (1) the vast majority of consumers lose the vast majority of cases by default the vast majority of the time; (2) consumers had no lawyer in ninety-eight percent of the cases; and (3) those who filed a notice that they intended to defend themselves without an attorney fared poorly, both in court and in out of court settlements.
This study challenges the notion that there is an “adversary system” within the context of debt buyer lawsuits. The findings suggest that no such adversary system exists for most defendants in consumer debt cases. Instead, these cases exist in a “shadow system” with little judicial oversight, which results in mass produced default judgments
March 11, 2014Dirty Debts Sold Dirt Cheap(highlighted) “..It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred, sometimes as far as specifically refusing to stand by “the accuracy or completeness of any information provided.” The Article argues that the collection of consumer debts sold through these transactions is in violation of the Fair Debt Collection Practices Act’s prohibition against using deceptive or misleading representations in connection with the collection of a debt.
March 5, 2014Deconstructing the Black Magic of Securitized Trusts: How the Mortgage-Backed Securitization Process is hurting the Banking Industry’s ability to Foreclose and proving the best Offense for a Foreclosure Defense.
March 4, 2014I sued you, you didn’t come to court. What more do I have to prove?
Debt buyers of consumer debts have proliferated since the 1970s and have become infamous for purchasing consumer account obligations for pennies on the dollar—sometimes fractions of pennies—and then seeking to collect the full amount plus interest and fees from consumers, sometimes as much as a decade or more after the obligation was incurred
. Over the past decade, banks have increasingly moved away from collecting defaulted credit card accounts in-house to a model of selling off bad accounts for pennies on the dollar to debt buyers. The accounts are sold “as is,” pursuant to contracts in which the banks state that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing.
Despite the broad disclaimers, debt buyers then pursue these accounts and seek to collect 100 percent of the face value of debts for which they paid only 3 percent or 4 percent of face value— sometimes much less.
The selling of known faulty debts by creditors, to debt buyers. When read, this sales contract spells out that the Debt Buyer/Debt Collector knows that most of the debts he is purchasing are in “as is” and with “error” condition, i.e. wrong amount owed, no debt owed, wrong person owing, discharged in bankruptcy, etc.
Advocates for lower-income families need to be aware that many debt buyers are suing the wrong people, and for the wrong amounts.
Over the past decade, banks have increasingly moved away from collecting defaulted credit card accounts in-house to a model of selling off bad accounts for pennies on the dollar to debt buyers. The accounts are sold as is, pursuant to contracts in which the banks state that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing.
March 1, 2014Dixon-Rollins, this case is against the CRA (Credit Reporting Agency), it is PACKED with boat nails in regard to the heightened responsibilities on both the 1996 amendments and FACTA amendments to the FCRA, the ratio on punative damages, the reckless practice of “parroting info already obtained”, continued willful violation and I love this language…
“Based on its repeated conduct, it appears that Trans Union has made a risk-benefit analysis, concluding that it is worth the risk to continue doing business as usual and to ignore its obligations under the FCRA. Thus, any punitive award must be of sufficient size to deter Trans Union from disregarding its legal obligations”
Debt Collectors’ will, after they claim they own the debt, always assign their own account number and claim the date of delinquency to be about a month after they acquire the debt. They illegally re-age it that way and they are violating a section of the FCRA. This happens often in debts that are well and truly outside of the statute of limitations.
February 22, 2014In Robins v. Spokeo, Robins had sued Spokeo for willful violations of the FCRA, 15 U.S.C. § 1681 et seq. Specifically, Robins alleged that Spokeo violated the FCRA by describing him untruthfully as holding a graduate degree and as wealthy, untruths that ended up hindering his employment prospects, thereby causing actual harm.
Once again the FTC joins the Fray, filing a AMICUS CURIAE (friend of the court) brief into Nelson v. Chase Bank, for reporting false and inaccurate information into Nelson’s credit report.
February 21, 2014Suing for debt outside the statute of limitations, its a no no, yet it is done very often and consumers do not know that it is not permitted.
FTC files to reopen Class Action Settlement, the lead plaintiff and their attorney settled a class action suit while betraying both the other class members and the public at large. FTC chastises the Court for having breached its fiduciary duty to the class and the public at large.
February 19, 2014Capital One contract update: ‘We can visit you at home or work at any time’ Top 10 US bank Capital One has shocked some customers with a new contract clause which apparently allows its representatives to arrive uninvited on their doorstep. The company insists the message has been misinterpreted.
February 17, 2014Bank of New York foreclosure defeated on standing issues, New Mexico Supreme Court. Read this case to the very end, contains issues that can be brought up in many foreclosures.
February 5, 2014In response to the poor experience of many distressed borrowers during the mortgage crisis, the CFPB is putting in place new procedures to facilitate borrowers’ access to foreclosure avoidance options.
January 31, 2014Deceptive TCPA Defense Please note that the TCPA defines an Automatic Telephone Dialing System (ATDS) as equipment “to store or produce telephone number to be called, using a random or sequential number generator” and to dial such numbers.
January 29, 2014On January 2, the U.S. Court of Appeals for the Eleventh Circuit held that a debt collector violated the FDCPA by collecting a fee based on a percentage of the principal owed when the contract allowed a fee only for the actual cost of collection. Bradley v. Franklin Collection Serv., Inc. No. 10-1537, 2014 WL 23738 (11th Cir. Jan. 2, 2014).
January 28, 2014Inmate Ran Debt-Collection Agency While Paying Debt to Society, Cuomo Says. Lamont D. Cooper was supposed to be paying his debt to society. Instead, he ran a debt-collection company from federal prison, demanding payments from people who owed nothing, New York Attorney General Andrew Cuomo said.
Meet the scavengers: debt collectors hard at work. Felons, including drug dealers, shoplifters, armed robbers, and an assorted list other criminals are in the business of scavenger debt collections.
January 27, 2014Actual Damages v. Statutory Damages, “[w]hen the emotional distress alleged to have been suffered is the sort that would be experienced by reasonable people under the circumstances, some damage, even if merely nominal damage, can be presumed.”
January 26, 2014Debt Collector sues Debt Collector for bad behavior. This makes an interesting case study, seeing a debt collector treated like a consumer who just doesn’t know any better.
Credit Card vendors now requesting that you give them permission to do what would otherwise be illegal under the TCPA. They want you to give them expressed written permission call you on your cell phone and leave messages, without which would be illegal under the TCPA.
January 21, 2014Whats In A Debt Collectors 10-K Security and Exchange Filing. What is amazing is that they explain how they break the consumer protection laws.
January 14, 2014Garnishment Exemption By State. Handy to know if you are under threat of garnishment.
January 7, 2014Freedom not to participate in Federal health insurance programs. It is possible to set up your own medical savings account.
So, you think you own your home, but do you? Really?
January 2, 2014Ok, this is the funniest Judicial Order I’ve read in a long time.… I think this judge went to the Dave M. school of ripping affidavits to shreds!! This is a NY STATE COURT case brought by Midland Funding where the consumer did not answer or appear or object at all. Midland put in for Summary Judgment and the judge LET THEM HAVE IT with both barrels, then denied their motion for summary judgment! This is a judge DOING HIS JOB! Hard copy here. As entertaining as this Judge’s writing is, do not overlook the real golden nugets it contains.