How to spot an invalid judgement

Discussion in 'Credit Talk' started by bbauer, Sep 11, 2001.

  1. Jeff

    Jeff Guest

    The term "charged off" means that the creditor has taken the account off of the books.

    The creditor still has the option of collecting the debt and can obtain a valid judgment as long as the SOL allows.
     
  2. bbauer

    bbauer Banned

    Jeff:

    All modern bookkeeping & accounting is done by the double entry method in most large businesses.

    This means that the account must be charged off against something, some other account.

    If it is charged off as a tax write off, then they have taken the loss off of their taxes meaning that they have been paid for the debt in terms of tax writeoffs, the government pays the bill in terms of lost tax revenues.

    If it is charged off against owner's equity, then the owner foots the bill.

    Either way, it is paid for on the books.

    One argument has it that they therefore have no right to collect from the government and the debtor at the same time.

    What do you have to say about that?

    Is that theory right or is it wrong?
     
  3. Jeff

    Jeff Guest

    Hi Bill,

    Here is an article that might be helpful.

    http://www.fool.com/DRIPPort/1998/Dripport980331.htm

    It seems to me that a bank or finance company could legally pursue a charged off loan for collection if accounted for properly.

    What do you think?

    Good discussion Bill.
     
  4. bbauer

    bbauer Banned

    Thanks for the reply Jeff.

    Your reply (post) seems to answer the question, but in actuality only partially does so.

    It does tell us what happens internally to the company's (banks) internal accounting system and is a very definitive answer from that viewpoint, but it does not tell us the actual end result of a charge-off, but rather what is the temporary "end result" of the charge off.

    Here is why I say that, and before I jump off the deep end on this particular matter, I'm going to state that if we have seen one answer(theory) on this subject, over time we have probably seen a half dozen or more at least in this or other forums. None have really ever given us an answer to the questions that a judge would give us in a legal opinion in a court of law if presented the following legal argument.

    "Your Honor, Moneybags & Co. cannot collect on this purported indebtedness because they charged it off and that means that they took it off of their taxes. Therefore they have already been paid and cannot now demand to be paid a second time."

    "Moneybags & Co. commits fraud by demanding payment from both the government and defendant"

    That is just about the crux of the arguments that people have postulated in this and other forums. It is the crux of the argument(s) that some of the letters floating around the internet would have us use.

    So the burning bush question of the moment is, will that argument hold water or will it not hold water and why?

    How have/has a judge rule(d) on the matter?

    Jeff, I intend to keep this thead going for a long, long time and the reason that I intend to do so is that it is long past time that we learn once and for all that while pet theories and ideas are great, (we all have to start somewhere, somehow), all such pet ideas and opinions are exactly that until they are tested in a court of law.

    The great majority of readers of such forums such as this one come here with not the foggiest idea of how to proceed or why and they jump from one idea (good, bad or indifferent) to the next much as frogs hopping from one lily pad to the next, both often getting a "belly full".

    By bringing on an actual judgement which was actually filed and pursued in an actual court of law
    by an actual credit card bank using an actual attorney who, according to the Oklahoma Bar Association is a competent legal counsel qualified to practice law before a duly and properly constituted and authorized court of law presided over by an judicial official qualifed to render judgement in the case before it we then may presume that this case might well be fairly representative of what might be expected in a court of competent jurisdiction when we have been presented with a summons to appear and answer to the court.

    So what does a person do when presented with such summons? Does he commit Hari-Kari of some sort, or does he look at the summons and petition for judgement and start to look for the proper way to answer the summons and petition for judgement? In the past, many of us have actually committed Hari-Kari of one sort or another.

    Let us put an end to the commission of such suicidal arguments as we know to exist and learn how to properly answer such summons and complaints and win on the arguments we present to the courts.

    It's not all that tough, and one we need to learn once and for all.

    So, for the moment, will the argument that a debt has been charged off by the lender and is therefore totally uncollectable fly in a court of law or will it not, and why.
     
  5. Tuit

    Tuit Well-Known Member

    If the creditor charged off the debt and received a tax credit, then the government owns the debt, bc the debtor must now claim the write-off as income on his taxes, then the arugment would be that he is being asked to pay the debt twice?
     
  6. bbauer

    bbauer Banned

    Some folks are supposedly making that argument. The question seems to be "if that is a valid argument, where then in law is it supported?"

    Personally, I find no basis in law so far for this argument. That's not to say that it might not be an effective argument in some cases, but if it is a valid argument, we need something in law to hang our hats on.

    Be that as it may, it strays from the subject matter that I wish to pursue here and that is what are the legal infirmaties in the judgement depicted and how do we attack them in a court of law so that the judgement which we already know is false and fraudulant and void upon it's face can be overturned. In order to do that, we must first of all come up with the strongest legal arguments available in the given judgement and then formulate proper response to the judgment.

    Granted that there are several people here who know exactly what is wrong and exactly how to proceed to defeat the judgement. That is great. But what I want to do is to gather up all the information we can and actually come up over time and discussion with the final document that can be presented in a court of law with almost 100% certainty of winning given no judicial chicanery which does happen in these kinds of situations even in larger cities.

    All of us who follow this thead are going to learn some very valuable lessons in this discussion because we know that the final document we come up with is going to get filed in an actual court of law and the results and judgements of the court are going to be posted in this forum for all to see.

    In otherwords, we will be helping someone beat this case and we will be seeing the actual results so that we can gain actual hands on experience through this media.

    So let the fun begin!
     
  7. marvin

    marvin Well-Known Member

    First, Am I the only one that is unable to get the link to the judgement pages to work?

    Second, my opinion on the way a charge off works. Keep in mind this is just my opinion, cause I don't work for a collection agency,and I've never dealt with a charge off. In regard to collecting on a charge off, the company wouldn't be collecting the money twice. When you charge off a debt, the government isn't "buying" the debt, and doesn't own the debt. If a company charges off 10,000, basically all they are doing is saying that they lost $10,000 and please reduce my income by 10,000 accordingly; therefore, paying less in taxes. If they do come after you and collect the debt, they would be responsible for reporting that amount as income, and repaying those taxes.
     
  8. tom65432

    tom65432 Well-Known Member

    If you owe the bank money, what you owe is an asset. They have to show the government that they are financially solvent which means having the required amount of assets. When you fail to pay them, and it does not appear that you will pay them, they cannot, by law, report your debt to them as an asset. So they write it off. It is a regulatory thing.

    But, you still owe them the money. If you do pay, then it goes back on the asset sheet.

    So the fact they took a charge off means that they are making the regulators happy. It has nothing to do with whether or not you owe them.


    The best example I can think of now is my house. I have equity in it so I have an asset. If I lose it to the bank in a foreclosure, it is no longer an asset to me.
     
  9. Jeff

    Jeff Guest

    Bill,

    As you know my expertise is in securities. I do understand corporate balance sheets, however I am not an accountant or an attorney. There are others far more qualified than I am to answer the questions you posed.

    Given what I do understand, the fraud argument seems ridiculous and IMO would have no base for successful argument. Tax law and accepted accounting practice seem to cover charge off's and how to handle the accounting and taxation of charged off accounts that are recovered. It seems to me legal to pursue them for collection.

    I would refer those interested back to the article linked in my previous post for a very general primer on bank/finance company accounting. I believe this makes it clear enough that there would be strong legal arguments against the fraud defense. I am not qualified to make those arguments however.

    Maybe someone with expertise in these areas would like to comment?

    Thanks for the interesting discussion Bill. Have a good day all.
     
  10. bbauer

    bbauer Banned

    Marvin, tom, jeff:

    First of all, here is the correct URL again.
    Again, all pages are clickable and clicking on any page will take one to the next page in the sequence.

    here is the link again.
    CLICK HERE FOR THE REVISED JUDGEMENT PAGES

    it does work for me.

    Secondly, I think everyone of us is in accordance with the idea that any such claim that a tax or other type of charge off eliminates indebtedness is ludicrous indeed. Yet it persists in being made.

    So let us move on to more weighty matters, i.e., building the fight against the judgement.

    I think that the most important and first line of attack would be the obvious lack of any affidavits having been included, filed or offered in the filing. So I will posit what I think is the first and likely most important argument to be presented to the court upon filing for summary judgement against the bank and it's attorney.

    This motion for summary judgement would pretty muchly follow the format and arguments used in CLICK HERE FOR NEARLY IDENTICAL CASE

    This is a case which I prepared for another customer about a year ago and which the customer filed as a pro se litigant and won quite easily. The major differences between the two is that in the example case, the credit card company's case had not yet been adjucated by any court and so my customer filed as an answer and counter suit to their motion.

    In the present case, judgement has already been granted, so the form and filings are going to be a bit different, but I believe that the same arguments will win the day.

    What do all of you think?
     
  11. lbrown59

    lbrown59 Well-Known Member

    What if the debtor has alreday paid the tax on the Chg. off?
     
  12. marvin

    marvin Well-Known Member

    My guess is that you would be able to claim it as tax paid on that years income tax return
     
  13. bbauer

    bbauer Banned

    Hey Marvin!

    Brown ask a question which at first reading sounds stupid, but if one stops to think about it for a moment, just might not be anywhere near as stupid as first reading might indicate.

    So let me raise browns question again, with a qualifier he didn't add, and let us check him out if at all possible.

    Here is the qualifier key which he didn't add.

    Let us assume for the purposes of this conversation that you bought a new car which cost just exactly $10,000.00. Let us also assume (incorrectly, of course) that the taxes on the car were exactly 10% of the total sales price so 10% would be $1000.00 meaning that $9,000 was for the car, interest, ect.

    Usually, the creditor will pay all taxes on the account out of the loan proceeds so let us assume that upon closure of the loan the creditor pays the $1000 in taxes due.

    Again, let us consider a most highly unlikely circumstances that has it that the debtor paid in exactly $1100.00 so that he paid $100 more than the taxes cost and then defaulted on the loan. All the numbers are totally important so long as the taxes are all paid plus a bit for the purposes of examination of what Brown is saying.

    The creditor sues and the debtor has paid the taxes on the loan to the creditor. The creditor charges it off AND TAKES IT OFF HIS TAXES. So what? What point is it that brown says we are missing here and what laws back up his statement(s) that we should be aware of.

    We are talking court cases and acutal court cites so that we have the ruling of judges on the case law we cite. When we go to court, we can cite all the laws we want to cite, but the law has no validity whatever and is meaningless until we have a court ruling that tells us what the law means to back up what we are saying here and in court.

    I'm not trying to put anybody down, professional or otherwise. I'm not trying to say that Mr. Brown or nobody else can read and understand the law and therefore anything they say is just so much meaningless and useless verbiage. That's not what I am saying at all. I'm not putting anybody down, I'm just stating the facts of life in the courthouse.

    If you want to win arguments in court, you rely on what a judge or judges have said that the law means and what the application of the law is.

    In otherwords, to be a bit lighthearted, if you quote a law to a judge, you have just put yourself on a space rocket and launched yourself. The ceramic tiles that help assure that you do not burn up on re-entry are the case cites and judicial rulings which back up your contentions.

    Go for it Mr. Brown.
     
  14. Jeff

    Jeff Guest

    Bill,

    The courts order itself violates the law. Ordering the contract rate of 13.9% on the judgment amount until paid is illegal. It is usurious under Oklahoma law. Usury is a crime.

    The court would have no choice but to grant a motion to vacate on this point alone.

    Does your client want to settle? It seems to be a good time to negotiate a settlement along with a joint motion to vacate.

    If the creditor returns to court and obtains a bulletproof judgment after your client gets this sloppy thing vacated your client may be stuck with only a satisfaction of judgment and a "paid judgment" on his report for a long time at best. Settling now seems to be where the best odds are to me. I realize I am digressing from the point of your thread. Just had to add my .02 This would be a good strategy for some in this situation. Maybe not for others.

    I do agree on your other points of possible attack Bill. This judgment seems to be among the walking dead.
     
  15. bbauer

    bbauer Banned

    Jeff:
    Really appreciate your comments. Very valid indeed.

    But once vacated as a void judgement what allows them to come back and refile?

    Does this person also have a possibility of filing separate demand for summary judgement for denial of due process of law?

    Let's go a bit far afield for a bit. Did not both the attorney and the judge both know as legal professionals that the "victim" was being denied due process rights? Did they not possibly collude to deny due process of law? Did they then lay themselves open for prosecution under the Rico act?

    Let it be understood that the above are not my theories but the theories of others who are quite vocal in their public expression. I neither agree nor disagree with their viewpoints since I am not qualified to answer on their opinions.

    What do you say on those ideas? Valid, crazy, what?
     
  16. bbauer

    bbauer Banned

    Re: How to reply to judgements

    What about how to answer a summons?

    Here is what you need to do if you are hit with a judgement.
    How to reply and how to get the ball rolling the other way.

    CLICK HERE TO LEARN HOW TO ANSWER SUMMONS FOR SUMMARY JUDGEMENT AND MORE

    All of the pages are clickable so you need to click on each page to proceed to the next on. There are about 15 pages in this lesson. It is very much in depth and very complete.

    It is all free for the taking and the using in any way you see fit.
    No strings, no obligations of any kind.
    You can download it and you can print it out to use as a guide.

    Enjoy. I sincerely hope it helps someone and count on the fact that there will be many more such tutorials in the future.
     
  17. bbauer

    bbauer Banned

    A class action lawsuit against Sear

    Sears Credit Card Holders Not Wild About Insurance

    On June 29, 2001, the court certified several classes in a class action against Sears Roebuck claiming that Sears violated both federal and Florida law in marketing a package of "credit life, disability, unemployment and leave of absence insurance coverage" in connection with the Sears credit card. The action claims that Sears violated the federal Truth in Lending Act (TILA) and similar Florida statutes by failing to make disclosures that the laws require. The action seeks statutory damages, actual damages, attorneys fees, restitution (refund of premiums plus interest), and injunctive relief to prevent future violations.

    The court certified a national class consisting of all Sears credit card holder who purchased the
    insurance package by an in-store application between June 5, 1997, and October, 1998, who have not received benefits in excess of premiums paid, and whose accounts are not in default by the close of the opt-out period. This class seeks damages under TILA. The court also certified two classes of persons seeking recovery under Florida law. Both consist of all Sears credit card holders who purchased the insurance package in the state of Florida from June 5, 1994 to the present whose accounts are not in default and who have not received benefits in excess of premiums paid. A card holder can be a member of both the TILA class and the Florida law classes.

    NO further information about this case is available at this time
     
  18. johnny joe

    johnny joe New Member

    I need some help does someone know how to get this information.
    In Apr 2001 there was a post on "How to spot an invalid judgement."
    Re: How to reply to judgements

    Here is what you need to do if you are hit with a judgement.
    How to reply and how to get the ball rolling the other way.



    All of the pages are clickable so you need to click on each page to proceed to the next one. There are about 15 pages in this lesson. It is very much in depth and very complete.

    It is all free for the taking and the using in any way you see fit.
    No obligations or strings attached of any kind.
    You can download it and you can print it out to use as a guide.

    Enjoy. I sincerely hope it helps someone and count on the fact that there will be many more such tutorials in the future.
    I cannot find the 15 pages in this lesson.
    I need some help
    Again, I cannot find the 15 pages in this lesson.
    I was sued in small claims against ALLIED COLLECTOIN SERVICE, INC. and lost (hospital bill). I put in motion to Appeal, in short Johnson Memorial Hospital did nothing for me but make matters worse.
    This is what happened. I entered the emergency room at Johnson Memorial Hospital on 09/14/2008. I told the doctors that I believed I had pneumonia because the symptoms were the same as a previous case of pneumonia I had in 1995, from which I recovered within a few days of treatment at another hospital. My symptoms continued to worsen after my visit to Johnson Memorial Hospital, including chronic coughing, sweating, vomiting, and fever. The incessant coughing was causing severe stomach muscle cramping, and prevented me from sleeping. I took all three of the medications prescribed to me timely. My condition continued to deteriorate over the next few days, causing me to seek additional emergency medical help on 09/22/2008 at Morgan Hospital Medical Center. After diagnosis, I was determined to have pneumonia and was told to throw away all the previously prescribed medication from Johnson Memorial Hospital. The doctor stated to me that Johnson Memorial Hospital was not aggressive enough in their treatment. As you can see I endured unnecessary pain and suffering due to inappropriate medication prescribed for my condition from Johnson Memorial Hospital.
    Morgan Hospital Medical Center fixed my medical condition, not Johnson Memorial Hospital they made my condition worse.
    I am the injured party, not ALLIED COLLECTION SERVICE, INC., not Johnson Memorial Hospital. I consider this to be an invalid judgement against me. I need some help does someone know how to get this information, about the 15 pages in this lesson. How to spot an invalid judgement

    I appreciate all your time and consideration.

    Sincerely,

    Johnny Joe Van Hessen
    329 W. Washington St.
    Morgantown IN [46160]
    1-(765)-631-0879 cell
     

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