AA has filed suit against me in Illinois. Thanks to the incredible advice from this valuable resource, I've requested VoD via Certified Receipt Requested 2X & they have not responded to either so I subsequently sent them Estoppel. They also are beyond the Statute of Limitations, regardless of whether this is a Written or Open contract. I feel confident I have them. However, I am having fun sending them on a paper chase until the court date. My issue at hand. I have filed a Motion for Dismissal on grounds they do not have a CA License, yet are acting as such per Illinois law 225 ILCS 425/3: (d) Buys accounts, bills or other indebtedness with recourse and engages in collecting the same; As usual, AA claims they are not a CA, rather a "Specialty Finance Company" that purchases assets without recourse. Laughable, I know...... Does anyone have any case law precedents where AA was found to be a CA, preferably in Illinois, but any state where they did such will do? Any anecdotes on this? TIA
HI, I don't know the laws and all that, but I have a collection letter from Asset with the lady's name and underneath it clearly says "debt collector". Does anyone think this could be of help? I hope it works out for you. Asset is a giant pain in the rear.
#1, they all claim to not be a CA; Per the FTC, any company collecting debts either directly or indirectly, on behalf of another is a CA, this includes any company which purchases 'debts' or 'assets' as they want to call them.
Thanks for the response. I know they are a CA. I was just wondering if anyone had successfully raised this issue in court. Also of help, I found their 10-K which they filed with the SEC. This contains massive references to their being a CA & might be useful as evidence. http://investors.assetacceptance.com/phoenix.zhtml?c=148416&p=irol-sec
Why aren't you trying to motion for dismissal on the grounds that the claim is invalid, and past the statutes of limitations.
Already did... The judge is somewhat of an idiot & dismissed this motion without even hearing any evidence. I didn't press the matter at the time since that did not preclude me from using that as an Affirmative Defense in court as I stated such in my answer to the complaint.
Remember, you asked for it... Arbuckle Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/arbuckle.htm Midland Credit Management a debt buyer of the ilk of AA, is a debt collector. Cline Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/cline.htm A lender was proposing having CA's insert into their mailings, a solicitation for a loan, if the consumer accepted the loan, the portion of the loan for that account would be issued directly to the CLIENT of the CA as the payee of the check. When they go beyond the 'no-strings attached' offer, and involve themselves in notifying the CA, and paying the CA's CLIENT, they indirectly become a CA. Klayman Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/klayman.htm Telecheck, which purchases checks like AA purchases debts, is a CA. As per Kimber v. Federal Financial Corporation, 668 F. Supp. 1480 (M.D. Ala. 1987) Halverson Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/halversn.htm This one is a good one... From the back-story which you have to infer, they are being sued for violating the FDCPA, and it appears that it is a class action lawsuit brought forth by a State AG's office, and they are inquring whether the president of the company, and the collection manager themselves would be debt collectors under the Act (as well as their stockholders) (YYN). Isgrigg Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/isgrigg1.htm Isgrigg Opinion (2) http://www.ftc.gov/os/statutes/fdcpa/letters/isgrigg2.htm CA collecting for LA county hospitals wondering if it would be a CA. Zager Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/zager.htm Law firm sending notices for hospital patients to send the hospital payment, or insurance information is still a collection agency, even though they are only sending the letter, and answering the phones in the name of the hospital. These are mostly referring to direct collection activity (except for the Cline Opinion)... But, the FTC has some great opinions, showing how indirect, indirect collection activity could be to make a company be considered a debt collector under the FDCPA. i.e. if these examples qualify as a CA, then AA doesn't have a leg to stand on. LeVine Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/levine.htm A 'telephone' message service was proposing sending letters claiming that the consumers had an urgent voice telegram waiting for them, that they needed to call 1-8xx-xxx-xxxx right away. The telephone message service would not be performing any debt collection purpose EXCEPT FOR providing the phone numbers of the consumers who call to pick up their voice telegram to the debt collector. Even that indirect collection activity made them a CA, and subject to the FDCPA. Stanley Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/stanley.htm Virtually identical situation to Levine. Bergstrom Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/bergstrm.htm Yet, another virtually identical situation to Levine; only this time the hook was offering 'FREE' pre-paid phone cards, to get the consumer to call. -- Now... LoPresti Opinion http://www.ftc.gov/os/statutes/fdcpa/letters/lopresti.htm It is not a violation for a CA to claim that it is not covered by the FDCPA. However, I personally disagree, since that would be at least a false and misleading representation under Section 807(10).
Cline really plays well into their 'finance company' claims... The best thing however, would be to contact whichever office is in charge of CA licensing, and get them to issue an opinion as to whether or not AA is a debt collector under IL law. Because, just because a debt collector is a debt collector under federal law, that doesn't mean the state definition is the same as the federal definition.
jam, you're an absolute gem! thx so much. as earlier stated, thx in large part to this resource, a solid formal MBA education in Contract Law & many earlier brushes with the legal system, I entered this one well-prepared. I was served for $1443 + Atty Fees + Expenses & filed an answer immediately. My defenses were: I. GEN'L DENIAL - Prove it, AA -- II. SOL - Computer print-out shows 5/26/99 as Last Pmt. I lived in NC then & can prove such with copies of Utility Bills & cancelled checks (plus a southern accent). Illinois Statutes clearly state that if Cause of Action occurred in foreign state (NC), their SOL apply. NC SOL is 3 yr regardless of Contract type. - III. FAILURE TO STATE A CAUSE OF ACTION - No proof AA is a licensed CA & therefore no demonstration of right of actionable claim. IV. STATUTE OF FRAUDS - Show me a signed & dated contract. - V. INVALID OR FAILURE OF ASSIGNMENT - Show me where I agreed to pay assigns. - VI. FAILURE OF CONSIDERATION - Show me where AA entered into a contract with me & provided me material benefits. - VII. ACCORD AND SATISFACTION - OC has accepted good & valuable consideration. This renders original alleged debt satisfied and legally uncollectible by the creditor or any subsequent assignees. - VIII. VIOLATION OF FDCPA - No VoD, no judgment. I requested VoD 2x via USPS Certified Receipt Requested. In VoD, I asked for everything & incl FTC Opinion letters stating print-outs wouldn't cut it, they couldn't charge me, VoD had to come from OC, et al. No response from AA on either. I exercised ESTOPPEL. - (The MBNA acct was allegedly opened over 10 yrs ago. You know as well as I do that there is no way the OC could validate something that old & thus the non-response.) Honestly, I have a solid defense given SOL, no VoD & AA is not licensed as a CA in Michigan or Illinois. I am just doing the good Defendant exercise of 'Make it expensive for the Plaintiff to sue me'. I am getting some humor out of their Atty's though. It baffles me why they continue to press this case. It's a minor amt & they have to know that I know what I am doing. I've done considerable reading on AA's 10-K filed with the SEC. They state that their external legal staff is hired on a contingency basis. So they can't just be "burnin' & churnin' hourly billing. I guess they are using it to groom Jr Staff. Or maybe they're just stupid. Who knows?
Look at Johnson v. MBNA MBNA admitted that all their evidence after 5 years gets destroyed under their DRP.
Thx again for yet another gem to make AA's case all but a sure loser. For humor, the atty responded to my motion for dismissal on grounds AA is not licensed as a CA, yet is acting as one under pertinent Illinois law (Failure to State an Actionable Claim): (225 ILCS 425/3) (from Ch. 111, par. 2006) (Section scheduled to be repealed on January 1, 2006) Sec. 3. A person, association, partnership or corporation acts as a collection agency when he or it: (d) Buys accounts, bills or other indebtedness with recourse and engages in collecting the same; stating that they purchased this WITHOUT recourse, citing the terms of the assignment (ie They had no recourse with MBNA). That's what makes me think their angle has to be grooming junior staff. The Illinois Statute obviously refers to the accounts, bills or other indebtedness having recourse - not the assignment agreement between OC & CA thereof. IOW, the recourse associated with a Credit Card issuer & alleged debtor is "If you do not pay according to cardholder agreement, we will take the following action - report TL & potentially turn account over to collections." In contrast, recourse associated with a Credit Card issuer & its assign is typically "If this is not a collectable account, we'll replace it with another in our receivables portfolio." I shake my head that someone could make such an incredulous argument, especially knowing the time spent doing so could easily be more productively spent pursuing default judgements, working out settlements, et al.
This just goes to show you, why you need to be able to twist vocabulary, just as well as your adversary.
