You are right godaddyo. Judy's scenerio is what might happen in a bad legal drama where the writers ignore all rules of law. What a judge looks at is current contract only. Unless I am mistaken, the only time a previous contract is relevant is if 1) the current contract's terms are so ambiguois that a previous contract is needed to clarify new contracts terms or 2) the current contract has specific terms that previous contract is still in force and part of new contract. Also the judge just wants to see if both sides have gotton consideration. It is not his role to determine if someone got the better deal (nor do I believe he would care -he just applies the law and moves on). Determining the motives behind the agreement are not the judges concern. Have you heard differently godaddyo?
Kristy W. I have visited your site and I must say that it is well done and would be extremely helpful to any of the newbies. Keep up the good work!!
Judy, I don't believe I was reading too much into what you said. I am just stating how I perceive your post to come across. If I am reading too much into and it offends you, I apologize. But I think your hypothetical made some assumptions about the poster, that I think warranted my response. I agree with others, your scenario may make for interesting afternoon court tv, in a real court, a contract is contract and the judge is obligated to view the facts at the formation of the contract, but I won't go into that again, I think others have made their point quite clear, in accordance to what I stated earlier. Anyway, most of us are here to learn more about credit repair or improving their credit, and if what either of us said today, helped someone in positive manner, then all the better. Cyprigirl
This thread has become somewhat crazy and out of sorts. It seems that a lot of apples are being compared to oranges. Contract law is contract law folks. It is what it is and if written up properly, it will hold up in a court of law. It doesn't matter if it is between the creditor and the debtor or the collection agency and the debtor or the creditor and the collector. The point is that somewhere down the line there is an agreement between two parties. In most cases between a collection agency and the debtor there is no agreement or contract. It is just assigned or purchased to a third party by the origianl creditor when the debt is deemed no longer collectable. I have won my own legal battles concerning this issue. Collection agencies try to trick debtors into agreeing that there is some obligation to repay the debt to the collector. Guess what folks, if you did not agree to this particular party having a say so in the original contract, then there is a breech of contract on the creditors part. You are not under any obligation to pay the collection agency unless you have agreed to do so by either giving them money or setting up payment arrangements. You have then lost your rights to not deal with them...
No matter that the legal drama on court TV is normally pretty bad legally speaking, Judge Wapner did have one valuable legal lesson to learn, one frequesntly overlooked. When Judge Wapner began a case, he always started with the word, "I have read your case and I understand it's arguments." With that saying, he established subject matter jurisdiction over the case. That is something that should be examined in each and ever instance where one wishes to challenge a court ruling, such as the granting of motion of summary judgement. Did the judge have subject matter jurisdiction and if he did, how did he establish it?? If he did not have subject matter jurisdiction, then he had no authority to rule in the case and the judgement is void upon it's face. There is also one other type of jurisdiction a judge must establish in order for his rulings to be valid. Who can tell me what type of jurisdiction I am speaking of and how is it established? Come on, all fine legal minds out there. Let's have a bit of fun with this one.
Are you referring to personal jurisdiction? If I understand it correctly a court has jurisdiction over the parties if they (the defendant) is physically present in state or can pass the "minimum contacts test". Shouldn't be a problem with a written agreement with a CA or creditor since by doing business in the state is enough to pass the minimum contacts test.
That's right. A court must establish both subject matter and personal jurisdiction in order to make a valid ruling in a case. And since a court case can be likened to a 4 legged table which must have all 4 legs to stand, and both subject matter jurisdiction and personal jurisdiction must be established, can you name the other 2 legs?
Very good Bill! Well Bill there is personal jurisdiction, quasi in rem jurisdiction, original jurisdiction, appellate jurisdiction. Then there is the long-arm statutes..... Of course, after you have determined the venue, I definitely don't have the time to go into how each one is established. I will leave that for others. LOL Cyprigirl
Cypri...I just have to say that all those words you just threw out totally impressed me!! I tried to say them and it was like trying to say one of those tongue twisters..ROFL... So, Cypri..hats off..you rock!
Yep, I have to agree. Its nice to see that I am not the only legal geek. Its a fairly new hobby, but you learn something everyday.. By the way Cypergirl, are you interested in the law for other reasons than credit repair?
Well, although I know that all those other types of jurisdiction exist, I don't know how to determine if they are pertinent yet or not. Only the two.types, personal and subject matter jurisdiction. Quasi en rem is my next one to learn about. But when I go looking at a judgement that has already been granted, one of the first things I am going to look at is whether or not the court had the proper jurisdiction. The next thing I will look for in an effort to overturn a judgement is affidavits. Have all the required affidavits been perfected and filed with the court? If all of the above have not been satisfied, then it's time to go to court and file summary judgement against the original creditor. Let us assume that I find that no affidavits nor actual testimony were ever completed with the court. Let us get real ridiculous and state that plaintiff's lawyer just got up in court, showed the judge a photo copy of a contract purported to have been signed by both the creditor and the debtor and said, "Your Honor, it is plain to see that Dumbo Debtor owes this debt to my client and my client prays for relief and judgement in this matter" Where upon the judge looks around and asks if there is any dispute in the matter and when Dumbo Debtor makes no appearance the judge says "Motion granted" and moves on to the next case. Why could the lawyer not legally have made the kind of statement that I just claimed he made and in the event that I found the errors several years (say 10 years) later quite by accident, could I go back into court and file motion for summary judgement based on those errors? In other words, is there any statute of limitations where reversable error has been discovered?
Godaddyo: You could say I have a little interest in the law, I am going to law school and I stumbled onto this board because I wanted to clean up my credit for a loan for school and be licensed one day. Although I feel I have a good grasp of the law, you guys on this board have really helped me focused and create better strategies when dealing with CA and creditors, law school doesn't teach you too much about that, so thank you board. Anyway, its fun bouncing ideas of people that have similar situations and you help each other in the process. I have to say one thing, this board has made me evaluate what type of law I may want to practice in the future, maybe I will be a consumer advocate. There is soo much misinformation about credit, I want people to be aware of their rights and don't cave in to the Big Bad CA or Creditor or CRA, pick your choice. You're on your own about the last one Bill. Cyprigirl
I think that being a consumer advocate is the perfect way to go. If you educate yourself in all aspects of consumer law and take those multi-million dollar cases you probably wont make a bad living either. There are a need for individuals who are really educated in these laws. I have spoken to many attorneys. I went throught my local bar for referrals. I asked for lawyers who were well versed in consumer law. Each time I got some attorney who usually only practiced on the side of recovering debts for creditors/collectors. This was very disheartening to say the least. They knew very little about the FDCPA,FCRA or the FCBA for that matter. I was much more knowledgable on the flow of what should happen. It wouldnt take much for an attorney to study the consumer side of it. All the attorneys I visited were pretty useless except when it came to contract law. The government tells everyone that you have to wait for seven years for this information to fall off our reports. This is false propaganda and it can be proved otherwise, but legal proffesionals fall into the trap of what is force fed just like medical doctors fall for everything the AMA says is true. I hope that you do take a stand. Good luck and keep me posted. My email is below...
Oh Lord has this subject gotten WAY TOO DEEP for me! Let me say, I have NO background in lawyer stuff. Don't want any...personally don't like any of them. GoDaddyO, nice widget senario, but you missed one point. I would have told you to have a nice day and not let the door hit your rear on the way out. I've had several of my own little business's and I never ran after cheaper rates. I was usually the one cutting out the competition. All that being said, Let anyone who wants take any contract, letter, whatever they got from a collection agency and run all over town doing whatever. If you can get a letter from someone saying they will delete your entry...good for you. I hope it works out for you. Maybe I am totally wrong, probably am. But I really don't believe any of the smarmy collectors when they say anything. Liars change their spots everyday. I am sure the person who wrote your letter has authroity to do so, I am sure they won't be gone when you call back to fight. I am sure anyone else will back-up your letter and do what they promised. After all, they are nice collection agency advocates who only want your what's in your best interest. Good for them. I am sorry, this thread has gotten so long I don't remember the original posters name. Sorry! But, the letter you got is probably fine. Take the deal. I am sure it will all work out fine for you. I'm done.
godaddyo, Thanks for the compliment on my site. It is a labor of love over the past 6 years. My personal crusade is to stop the debt consolidation companies from ripping off the consumer.
judyputy: I completely agree with you in recommending that someone not use a "contract letter" with a collection agency, since you don't know if the collection agency is legally the owner of the debt. The only way they could be an owner is to purchase the debt from the original creditor. Most collection agencies only have debts assigned to them. So getting an amended contract from a collection agency wouldn't be bulletproof, though it may work. I would think the debt validation method would work better in this case. When a contractural agreement is established (meaning you signed a credit card application or loan paperwork), then an amended agreement would hold up in law. With the original creditor, you can always renegotiate the terms of the loan, so debt settlement would be the course I would recommend.
Hi Kristy, Godaddyo, thanks for the information, I will definitely keep it in mind. The more I am learning, the more I feel I want to practice in this area, and I definitely will not be defending CAs or CRAs. You are right, there is alot of propaganda about credit reporting. I am sure I will be able to carve out a nice living and really be able to help people. No I have always been one to question things and not just accept the status quo. I keep you updated with my progress, actually I will be done very soon and then its the bar exam, ((( Cyprigirl
