ucc...why is it not discussed more here

It may be a pretty big deal to you but probably what is a big deal to you is not necessarily a big deal to the judge who feels he has a responsibility to see to it that justice is done.

But what determines what that term means? Is it more important to the judge and the plaintiff that the money they lent is paid back in full and the plaintiff made whole again or is it more important that every little rule is followed to the letter and that the plaintiff has dotted all the is and crossed all the ts?

Defendants need to keep one thing in mind above all else and that is that the only question before the court is whether or not the defendant owes the debt. If the defendant owes the debt then the outcome is normally judgment for the plaintiff regardless of what arguments the defendant may try to advance. In most cases that leaves the defendant with few if any defenses. That's one of the reasons defendants can't find attorneys willing to defend them. Of course, money is another reason. Most defendants can't afford competent legal assistance. That is why most defendants don't bother to show up in court. What is the use of going to court when you owe the money and you know you owe the money and have no viable defense. Waste of time, effort and money or so they think. The result is a default judgment, garnishment, seizure of bank accounts, garnishment of wages, seizure of vehicles that are free and clear and any other legal means the plaintiff might have to collect on the judgment. Because they lack knowledge the average defendant has no defense against those either.

But there are very good reasons to respond to the complaint and drag things out to the max. One of those reasons is to put off the inevitable while the defendant does what he can to safeguard his assets. Another is to gain valuable evidence of violations of either FDCPA or FCRA or both that can be used in filing a separate lawsuit against the attorney and or the plaintiff in federal court because in most cases the only way to win is to turn the tables on them and become a plaintiff instead of a defendant.

History proves that he who starts the war usually wins, the defenders usually lose and are conquered and suffer the consequences whatever they may be. History also proves that he who fails to study history are doomed to relive it's mistakes. Beyond any shadow of a doubt, history also proves that plaintiffs usually win in any court of law and it also proves that it is far better to be a plaintiff in federal court than it is to be a defendant in any court. I'm sure that sounds impossible or extremely difficult to do or that they would have to find a lawyer to do it for them but that isn't so. Most people of at least average intelligence can learn how to do it but another problem is that they don't start the learning process until they already have a summons in hand and only so many days within which they must respond. Then maybe they will get busy and start learning and maybe they still won't. In far too many instances they wait until a day or two is left and then end up here and on other boards expecting to learn how to do it all for free.

But anyone who thinks that information like that is free simply isn't thinking very well. There are no free lunches. You will pay one way or another. Remember, your time is valuable too. For instance, some people have been known to post here that they would rather pay for credit repair even though they know they can do it for free because their time is worth more than the amount of money they spend getting someone else to do it for them.

Take a doctor for instance. Even young interns can make $1,000 a shift or more working at a hospital emergency room. So what they pay to a credit repair company amounts to about 3 or 4 hours working at their jobs. To them free information is worthless. In reality there is no free information on this board either. The information found here is being sold at a very great profit. You might not be paying anything for it but all those advertisers are certainly paying a high price for it.

 

Speaking from experience, Cap is right. Moreover, the UCC is hardly understood in a "small claims" setting.

For attorney's, presented UCC, FDCPA, or whatever claims is time consuming. The chances of winning beyond negation of the underlying debt is slim. Thus, we need paid up front for representation and most people getting sued simply don't have the money. Conversely, most pro se litigants don't have the knowledge to adequately defend and counter.

 

There is no need to deny affidavits. In most instances where affidavits are used they are DOA to start with. Learning why and how to prove it is not easy and usually takes a bit of special knowledge and detective work. The knowledge part is the easiest. Just look the affidavit over carefully. Who signed it and who notarized it? Does the affiant claim to work for the plaintiff? Who is the plaintiff and who is the real plaintiff? The real plaintiff is the true party of first interest in the case, usually the bank who loaned the money or issued the card. So the key to determining whether or not an affidavit is false and misleading (FDCPA violation) is whether or not the affiant actually works for the bank as claimed. We find that out by looking at the notary seal or stamp on the affidavit. If the bank is physically located in Delaware and the notary is from Georgia we next check to see if the bank has any actual offices in the county the notary lives and works in.

We can easily determine where the bank is located by going to www.occ.com and looking in the right hand column on that site where you will find a list of all nationally accredited banks and nationally accredited credit cards banks. So we learn that Discover card (for instance) is physically located in Delaware. We also know that Discover card isn't going to take a plane down to Georgia to get their affidavits notarized in Georgia. They will have enough notaries in their Delaware offices to make that unnecessary. So if the bank is in one state and the notary is in another we know for certain that the affiant also lives and works in Georgia because the law says that the affiant must be physically standing in front of the notary and must either be personally known to the notary or present I.D. to prove that s/he is who s/he claims to be.

Of course, we also know that don't happen either in debt collection cases. What really happens is that the affiant's statement is made up and sworn to one time and then run through the copy machine and unlimited numbers of copies are made and sent out to the attorney who was hired by the debt collector to prosecute the case. The attorney gets 100 cases from the debt collector and he gets an affidavit which covers all the cases and the attorney runs off 100 copies of the copy thereby providing the defendant with false and misleading information and defrauding the court all in one fell swoop. That is why most attorneys don't use any affidavits. They know what goes on and don't want any part of that. They know that the results could be disastrous for them. It could potentially lead to heavy sanctions, disbarment and maybe even jail time. The problem the defendant has is proving that the affidavit is indeed false and misleading. He has to prove it even if he knows it and knows that the lawyer knows it and the judge should be able to see it and know it for what it is and probably does. The defendant also needs to prove that it is or will be used as material evidence before the court. Just because it is there does not mean that the judge will give it any credence even though that is what the lawyer intended.

Most defense lawyers don't even pick up on that point when such a false affidavit is presented and wouldn't have enough knowledge to pursue the matter even if you pointed it out to him/her. Most likely wouldn't want to use it even if s/he did know it because the lawyer would have to get all bent out of shape and go after both the fellow lawyer and maybe even the judge too. They are unlikely to have the stomach for such a battle but the defendant couldn't care less about all of that. Actually proving that the affidavit is false and misleading takes quite a bit more than I have outlined here but any pro se can do it.

This little trick was discovered and developed by a lady from Chicago about 2 years ago. She not only proved it but actually had the notary brought up on state charges in Georgia. The notary lost her license and maybe went to prison as well. I don't know about that. All I know is that she lost her notary status but the important part is that the lady from Chicago lost her case in local court anyway. Since then others have filed federal cases against attorneys who used false affidavits and they won. They got rid of the local court judgments and got paid on top of that. They did what I advocate which is that it is far better to be a plaintiff in a federal court than it is to be a defendant in any court. None of them hired any attorneys either. They did it all pro se.

But don't think that what I discuss here is some kind of magic sword. It isn't. It is just one of many tools and bits of knowledge that it takes to win. Each case is different even though they are very similar. In order to even hope to win you must have the experience and the knowledge to spot every mistake the plaintiff and their lawyer makes and how to make best use of it. You can't wait until a few days before your response is due and frantically run around the internet or every lawyers office looking for help. You need to start learning the day you first realize that things have gone sour for you. The day you lose your job or the day you or a loved one get(s) out of the hospital or even the day you apply for that credit card or loan. Keep those credit card agreements. Keep all your old credit cards even if they are no longer any good. Don't cut them up or thow them away. Keep all your expired debit and credit cards too. Get a business card file to keep them in. When they expire put them in a business card folder. You can buy small 3 ring binders with plastic windows to put business cards in for $10 or less at any office supply store. If you fill them up through the years you can buy more plastic sheets to put in the little notebook. But don't cut them up or throw them away.

 

Jonathan, why is it that quite often when I put in a link such as [www(.)occ(.)com] or some other link it automatically gets turned into something else such as the following. [Find Jobs. Build a Better Career. Find Your Calling. | Monster.com] ??

That's not nice at all. There can only be two answers to that question.
Either you have some trojan you don't know about running around on your system playing nasty tricks or somebody is getting paid to put their advertising on this board using sneaky and underhanded tricks. Which is it? The link to occ.com is to the web site of the Office of the Comptroller of the Currency, a web site owned and operated by the United States Treasury department, not some private web site trying to sell some dumb deal to unsuspecting and gullible people?

Just how well do you think the United States Government would like people turning links to their web site and free public information into a sales gimmick?

 

I'm not Jonathan, but I can tell you that when you post a link it pulls in the name of the page. occ.com goes to monster.com (must be some redirect site). The one you want is occ.GOV, which will show as OCC - Office of the Comptroller of the Currency, Administrator of National Banks.

 

I am aware of all that you have said above. What I said was that I put in the correct url to occ.gov and of course expected that it would remain that way but it didn't. My link got changed from occ.gov to monster.com automatically upon saving the message. It takes a script to do that hence my statement that there must be a trojan here or some kind of malicious code somewhere on the system or somebody is getting paid to have put that script on the server. This isn't the first time that has happened to me either. Put a link into a message and it gets changed to something entirely different than what I intended. I thought Johsua (not Jonathan) should be made aware that this is going on.