Re: Re: Cases We Need! question for ya butch in your above statement c you mention cases and rulings reversed from a hypothetical view if a check is not considered a debt then why do they have debt collectors trying to collect it ? ironic don't ya think? lol sorry for the tonque twister.
Re: Re: Re: Cases We Need! Butch, Have I been studying too much that my brain is addled? It seems to me that I have stated that Azar had nothing to do with "validation" but with the nature of the "debt". I also mentioned Zimmerman in "cable pirating" and the reversal of that determination in Bass as to what constitutes a "debt" (doesn't have to be an "extension of credit";NSF checks are considered debts per the FDCPA). In Chaudry the allegation that NMC did not validate when the plaintiffs had the promissory notes (there were 2...the home equity note AND the construction loan note), they had the "secret" tape recording of the meeting with NMC which they used to impeach but instead it boomeranged and hit them in the a$$, they had made payments regularly on the interest per the promissory notes until they defaulted. Their attorney requested a letter and it was produced. Then Chaudry's counsel put forth the argument that NMC or Gallerrizzo didn't send a "verification" to the Chaudry's even though he knew he had received the letter as their legal representative. They had a jury trial and the jury found for the plaintiffs on the "excessive atty" fees but on a post trial JNOV (judgment notwithstanding the verdict) the judge reversed the judgment against Gallerrizzo and found for the defendants on all of the remaining counts. It is obvious on ITS FACE (as a matter of law) that Chaudry was abusing the provisions of the FDCPA egregiously. Now what could be "troublesome" with all of those facts??? I am not a CA lover by any means but one cannot use any of the consumer laws to eradicate debts that can so easily be verified. I think it is disengious to put forth the notion that in today's technology driven environment to demand that a CA produce an original signed contract. The FDCPA does not implicitly state that that is the requirement. Have you gone to your bank recently and asked to see your signature card?? Even if you can get a CA on a technical violation the courts have found that that in and of itself does not invalidate a debt owed. What we are seeing is the reluctance of creditors and/or CAs to litigate cases that do not pass the cost/benefit brightline test. Even CAs will admit they have to prove the debt is valid with SOMETHING...whatever that is it better be able to pass a judicial review or else it has to be voided. My theory vis a vis "credit repair" is the "throw the spaghetti against the wall and see if it sticks" legal doctrine. So follow all the steps; request validation, wait, wait, write a demand letter, wait, wait, send an ITS letter, wait, wait, file a complaint, wait, wait, go to court and hope they don't show or get a judgment by default or win on the merits, then wait, wait, wait to collect and/or get a deletion or lose and have to pay the debt + court costs + atty fees. So to answer your eternal quest for "what constitutes validation?" As Justice Stewart quipped in the famous pornography case "I can't define it but I know it when I see it!" As "beauty is in the eye of the beholder" "proper validation is in the eye of the fact finder" ultimately. I also think that all these "boilerplate" letter generators will ultimately cause problems. IMO people should write letters that would indicate they are NOT so consumer savvy. Do not quote chapter and verse of the FDCPA, FCRA yada,yada. They should begin by writing a simple "is this mine please send me some proof 'cause I'm a pre-Alzheimer dummy" letter. Send it CMRR with the CMRR # on the letter and wait. Then repeat and rinse again....then repeat and rinse again...and then file a claim. If the CA violation is as egregious on its face as Chaudry's bogus claims were as a matter of law then proceed immediately to court, do not pass go and do not collect $200. I can assure you that law is not rocket science (I'm living proof of that). It is a lot of common sense backed up statute and case law. But case law is not "static" but rather it is "dynamic". As in the Zimmerman and Bass cases...both using the same argument. The earlier case found for the plaintiff, Zimmerman, the later one disposed of Zimmerman and decided against Bass. Ipso facto...the interpretation of the FDCPA changed. So what constitutes validation today could be re-interpretated tomorrow. That is the evolution of "common law". Back to the books....miles to go before I sleep and miles to go before I sleep. clc
Re: Re: Re: Cases We Need! Thanks CLC, It is my perpetual contention that Chaudhry is NOT problematic on it's merit. It's problematic to the extent that our adversaries keep using it against us. In fact, it's the ONLY case they seem to have that bolsters their argument. So we see it all the time in letters from atty's in response to Val. demands. Moreover, it does appear to scare/confuse those who really ARE "Pre-Alzheimers". So I'm working on one of my famous, overly technical essays on how to kill the Chaudhry argument. If Azar has nothing to do with val. wouldn't it be handy to have the case so we can assert; "it has nothing to do with it"? Thanks for your thoughts CLC. Perhaps, when you get beyond this hard study time, you can help us formulate a return letter, and meaty argument, in response to their Chaudhry reply. I'm also looking at a way to turn this into a Deceptive Act & Practice to assert an innaplicable case. Whenever we see Chaudhry, we should have an automatic claim. If not FDCPA, then perhaps State UDAP. Don't study too hard. There IS a point where you can do more damage than good. ... and good luck .. .
Re: Re: Re: Cases We Need! Butch, There are quite a few points in Chaudry that can be attacked. Was Gallerrizzo et al (his partners) debt collectors per the FDCPA. The plaintiffs never even brought that up. Just because he was representing NMC does not necessarily mean that he met the requirement as a debt collector per the FDCPA. Was NMC "specail assets" division a debt collector or just a subsidiary of NMC the OC. The plaintiff's atty, Kiley, didn't even bring up these issues. The other issue is that Chaudry states a "debt collector" does not have to have detailed files. It does not say OCs do not have to have detailed files. As I have said in earlier posts on this subject the appeal judges opinion and interpretation of what constitutes "validation" was their reasoning as it pertained to Chaudry. It is my opinion that the judges reasoning was due to the fact that it was proven in the Circuit Court that the plaintiffs had plenty of detailed verification. Chaudry was essentially arguing atty's fees...that Gallerrizzo was charging them for work performed for NMC that was not connected to their case and it was being improperly charged to them. Also they argued even if it the fees were related to their case the amount of the fees were excessive. The defendants proved in the Circuit Court that the initial amount of $8,600 that they sent to Chaudry's counsel was in fact a lower amount than what NMC had actually paid Gallerrizzo et al at that time. The jury agreed with Chaudrys argument that the fees were excessive but the judge on a JNOV post trial motion overturned their verdict on that issue. NMC could have waived the atty's fee and who knows..if the Chaudrys had signed the original settlement agreement at the face to face on December 21 then maybe NMC would have waived the atty's fees. We will never know this as it didn't happen. While there is no proof in the transcipts as to what was going on here behind the scenes but it is my opinion that the Chaudrys were trying to buy time in order to obtain a new mortgagee as NMC had sent a demand notice which was well within their rights per the promissory notes as the Chaudrys were in default which the Chaudrys never denied. Thusly I think the "meaty" argument you seek might be Chaudry does not make it incumbent on the debt collector to keep detailed files but upon a validation request it should be incumbent upon them to request the information from their client OC which would constitute more than a computer printout that would prove they were "dunning the right debtor" which is exactly what the FDCPA addresses as to the purpose of validation. What do you think? clc
The pertinent section: No provision of the FDCPA has been found which would require a debt collector independently to investigate the merit of the debt, except to obtain verification, or to investigate the accounting principles of the creditor, or to keep detailed files. Gee no kidden. LOL .
Re: Re: Re: Re: Cases We Need! Thanx for all your valuable help CLC. Quick question: Blacks law definition of "Certification" or to "certify" something. There were revisions in the FCDPA. One of them replaced the word "certification" with the word "verification". It was thought that "certification" would be overly burdensome. Quesation: What constitutes a "certification" from a legal perspective. 1) I'm sure it MUST be signed. Must it be by one who has "first hand" knowledge? 2) Must it be NOTARIZED? 3) Must it be done "under the penalty of perjury" All 3 of these components would make it an affidavit, but for a certification to rise to the level of a legal cert., must it meet any or all of these components? ??????? Big KISSS!! .
Re: Re: Re: Re: Cases We Need! Black's Law Dictionary Certificationn) 1. The act of attesting 2. The state of having been attested. 3. An attested statement. 4. The writing on the face of a check by which it is certified. 5. A procedure by which a federal appellate court asks the US Supreme Court or the highest state court to review a question of law arising in a case pending before the appellate court and on which it needs guidance. Later (if I survive tomorrow ;=]), clc
Re: Re: Re: Re: Re: Cases We Need! clc guess we were both answering at the same time lol sorry didnt mean to step on your toes there just wanted to help out.
Re: Re: Re: Re: Re: Cases We Need! butch wanted to apologize I didn't make it to the law library today Ill try tommorrow if I get a chance and look up the cases
Re: Re: Re: Re: Re: Cases We Need! No need Fun. The only case outstanding is Diamond. We need one other thing too but it's outta print. I'm looking for it's reference asap.
