Oooh, I must have struck a nerve there, huh, kiddo? Someone certainly doesn't like getting called on it when he's caught BSing. So what? If a plaintiff moves for summary judgment and fails to make a prima facie case, summary judgment can be granted in the non-movants' favor. Like I said, your own case proves my point. Nice try, but I've always said that the essence of your strategy is to try to be too much of a hassle for the CAs or CRAs and hope they decide its not worth it, and I've also always said that the strategy clearly does and will work at least some of the time. But when people ask questions about what their actual, honest-to-goodness, legal rights and remedies are, they deserve the truth, and not some half-assed ramblings by some doofus with delusions of competence. The original poster asked a question about the law, and I answered it, with back up. You've offered nothing other than your own words, which, as I've pointed out, are essentially worthless. Give us a break with this crap. Why would I or anyone else care one whit about your charge offs and whether or not they are on your reports? Moreover, if you have the settlements you say you have, how could they possibly be put back on your reports? I'll tell you what, you send me an e-mail, and I'll send you my phone number. If you have the guts to call and tell me where I can find all of these judicial decisions in your favor, I'll be happy to tell you my identifying information. Again, nice try, dude. You sound like the type that loves to talk, but hates getting called on his lies. Or, as they say in Texas, all hat--no cattle.
I think one of the factors involved, that has not been discussed is that in most cases suits against a CRA or collection agency are/would be filed in Small Claims Court. In most jurisdictions, in a small claims matter, neither party can be represented by an attorney, and the court is much more lenient with expected knowledge of case law, court procedure, etc. The court is also not likely to cite statutes or precedent, as the individual parties to the suit are expected to do this. For example, if I were sued in small claims court for a 10 year old debt, which was outside the SOL, if I did not offer this as an affirmative defense against judgement, the court would likely just issue the judgement and would not offer this as a defense on my behalf. By the same token, the court is not likely to offer legal precedent on behalf of the collection agency or CRA. While this may be different in civil or circuit court, Small Claims is a different animal entirely. In almost all small claims cases, the parties are offered an opportunity to reach a settlement before the court actually hears the case. In LK's cases I believe the cases were all settled before hearing (Is this correct LK? ). And, by your reasoning Squawk, I could simply produce computer generated invoices, indicating you owe me money, and sue you for it using the case law you provided - and I would win by precedent - I would never have to prove you ever entered any type of agreement...sounds quite lucrative.
Not quite. You'd have to prove that they were ordinary business records kept in the ordinary course of business and that it was part of your business to keep such records. Even after that, my testimony that I never had any dealings with you would create an issue of fact such that a jury could find in my favor. Issues of law can be decided on precedent. Issues of fact cannot. Also note that the question of whether the records would be enough to win in court is seperate from the question of whether the records by themselves are sufficent to satisfy the validation requirement. I agree, generally, with your points regarding small claims court.
Oregon state laws says they have 20 days to validate. Fines are $400 for first offense and $1,000 for each thereafter.
THAT WAS THE PART OF THE ARGUMENT TO BEGIN WITH ON THIS THREAD , SOUNDS LIKE YOU ARE BACK TRACKING! First you said CA can take as long as they like with validation and then you supply a case where the CA validated within a day , then you said that a computer printout is good enough evidence to validate a debt based on the rules of evidence and now someone calls you out on your own point about the computer print out and now you are claiming they would have to prove business dealings with you and other circumstances is that validation as well, which is it? Sounds like you are running around in circles and don't know which side of the agrument to stick with or which argument you are actually making. By the way, summary judgments are either granted or denied in the favor or not in the favor of the movant. Cypri
First, let's not berate LK because he doesn't want to expose his entire personal life to all. We are all lucky LK has shared what he has already. He has included enough detail to be credible, IMO. I think we can all agree that much of what goes on in a court is smoke and mirrors anyway. On BOTH sides. Let's remember too we are talking small claims court here. Simple rules, layman terms, show-me-what-you-got. I would say in this climate of identity theft and computer fraud it would be easy to convince a judge that a computer printout of receivables could be easily faked. Judges know about Quicken and QuickBooks, too. A CA would automatically be under suspicion because they have a vested interest in the outcome. Squawk1200- Under your reasoning, someone who is a victim of identity theft could never be cleared. If all the CA has to provide is a printout, then it's over. Wouldn't you want to see that signed contract if someone stole your identity? It appears you are fishing for some caselaw. I have done deep searches on the net and in libraries concerning the subject at hand. There is virtually NO cites/caselaw. IMO, this is because these types of suits are settled at the very bottom levels of the courts. It's hard to get that kind of caselaw without physically going to the courthouse. So, what we are left with are real-world stories of those who have been there. It's up to readers to pick and choose what information they find useful or credible. Now, back to some of your original points... You are technically correct in that a CA is not under any time restraint as to when they must answer a validation request. However, should the matter be brought to court, a judge would quickly have to decide what is reasonable here. That's what judges are for. Now, I don't think any judge would disagree that 30 days was a reasonable amount of time for validation. If the CA needed more time, they can articulate that to the court in their written answer to the small claims suit. The CA has a legal duty to answer a request for validation. If they don't validate, then it can be assumed no debt exists. No law says they *must* validate. But if they *don't*, they relinquish their right to collect on the debt. They also relinquish the right to *report* the debt as the mere act of *reporting* a debt has been found to satisfy the definition of "collecting" a debt. Under the doctrine of estoppel by silence (acquiescence), one could argue that by the CA NOT replying to a validation request, that no proof of debt exists. How long should we give 'em? Again, thirty days seems reasonable to me : ) Some caselaw in which there was a question of when "silence" turns into fraud: "Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading." See U. S. v. Tweel, 550 F.2d 297, 299 (1977), emphasis added, quoting U.S. v. Prudden, 424 F.2d 1021, 1032 (1970). See also Carmine v. Bowen, 64 A. 932 (1906). One must be careful not to one-up the judge with all this, lest the judge be inclined to rule agin' you. "I'm educated, I spent three years at Penn State.... er.... the State Penn." Dean Martin.
Come now, Cypri, you know better than that. I thought you were in law school -- or maybe I'm thinking of someone else. I stand by the statement that no federal law requires validation be done in any particular time frame nor does any federal law bar enfrocement of a debt contract because it was not "validated" in a "reasonable" or specific time frame. I stand corrected that state laws may, indeed, provde specific tim frames for validation, but I have, as yet, seen no state law which would bar enfrocement of a debt contract because it was not "validated" in a "reasonable" or specific time frame. The point about what constitutes validation was bropught up later in response to LK's posts, and you know it. The case I cited was on that point, and you know it. So you REALLY want me to post a litany of cases showing that summary judgment can be granted in a non-movant's favor? REALLY? I will if you want me to. How about just one, to start:
VENDI VIDI HO-HUM!!!!!!! I Came, I saw, I fell asleep. Come on, what's the point of all this useless dribble? This is a board where people come to help people, to share knowledge, and to chat about common issues and problems. All this 'I know more than you' crap is ridiculous. LK has shared a lot of GREAT info with the board...more than he had to. A lot of the information was quite personal. I think judging him for that is, well, quite rude. I am not trying to be the 'net police' or anything, just saying that this is kind of ridiculous. "Can't we all just get along" Shawn
Ok very good, you get an A for your paralegal skills. However, this is not a court and I am certainly not going to waste my time looking up cases just to prove something to you. If you want state law, there are a host of other legal resources you may want to utilize. No one has to prove anything to you. From the beginning of the post I expressed an opinion that was reasonable and flexible. You on the other hand, came right off the bat pigeonholing yourself by claiming the poster is just Wrong! I chose to disagree with you because your tone and your comments were argumentative to begin with. First thing any good lawyer or professor will tell you about the law and a particular issue, is that IT DEPENDS. Right away you broke that simple rule by clinging to the literal meaning of the statute that just serves as a guideline for states to follow. If you want to stick to that, good for you and I have no problem with that but I believe my point has been made. About summary judgments, I read that directly from a federal rules of civil procedure book and of course that serves as a guidline and your case law shows that literal meaning or lack thereof can be interpreted, implied or inferred differently by the courts. The cases you have kindly provided for the board in actuality proves the point I made earlier and that laws are not rigid and can be formed in several ways, I am also curious as to whether these were state caselaws, because I am sure you know that states have their own version of rules for civil procedure. Again we have another example of federal laws then state law utilizes those guidelines. So maybe you should think out your arguments more clearly and not wrap yourself around with statutes or case law when someone questions your theory. To me good lawyering is determining the issue, what are the facts, the law and how it will apply to this issue. I will it at that........
I totally agree with te prior post.All the bantering is useless.Both LK and Squa both have validity I am sure in different areas.Let us just agree to disagree.I enjoy reading all the newbie posts because even they bring up alot of different aspects.ideas and opinions.Whatever gets results is what I am after.So both of you please keep posting,please.I know very little about the law,and need all the advice I need,whether from an expert in the law or an expert at getting results in this arena.
Bravo Cyprigirl. I could not agree more with your points. Laws are written as guidelines to assist society in dealing with civil and criminal wrongs. The laws are written by the legislature and are INTERPETED by the judiciary. This is the whole point of checks and balances in our country. Laws cannot be taken literally in all cases. The judiciary is in place to interpet the application of the law or its guidelines in relation to the facts/evidence presented in the particular case before them at the time. If we interpeted every statute, Federal or State, literally we would live in either a totalitarian society or one of utter chaos. Although it is my constitutional right to free speech, I cannot scream "Fire" in a crowded theater when there is not one present, without suffering consequences. Hal. "During the space race the U.S. invested millions of dollars to develop an ink pen that would write in zero gravity.....the Russians simply used a pencil."
In law school, "it depends" because the cases you study are the close ones -- the ones that changed the law or started a doctrine. In real life, the vast, vast majority of cases are decided on the facts, and not on some new interpretation of the law. If I do remember correctly and you are in law school, you will eventually learn that the first rule of statutory interpretation is that statutes are interpreted in accordance with the plain meaning of the language used. Bandying about terms like "strict constructionist" is all well and good when discussing Constitutional law, but I assure you that even the most liberal judges follow the rule of stautory interpretation I just described. No one has to prove anything to anyone on here. This is an open forum and you are free to call all of my words bullshit. Similarly, I am free to point out when others are wrong and express my views. You expressed an "opinion" that may have been "reasonable and flexible," but, in my view, was wrong. I responded quite reasonably by asking you to explain why you thought the law was as you described. Rather than answer, you've chosen to launch ad hominem attacks. I don't have a problem with that, but, of course, it doesn't do anything to convince me that you're right and I'm not, so I'll continue to disagree with you. You want state law saying the same thing? No problem: Satisfied?
Squawk1200- Simple question: Assume you became a victim of identy fraud. Accounts were opened in your name. You received dunning letters for payment. You were sent computer printouts showing your name and how much you owe. Would you pay up? Or, would you request to see copies of original signed documents showing YOUR signature?
You have got to be kidding. Of course I wouldn;t pay, but neither would I say to them, "show me my signature or I won't pay." I would prove that fraud had been committed. What address were the statements on the fraudulent accounts sent to? I would prove I have no connection with that address. When and where were the charges made on the fraudulent accounts? I would prove I was elsewhere. I would file police reports, put fraud alerts on my profile at the CRAs, and I would demand written statements from the creditors that the accountes were fraudulent and that they would not be reported to the CRAs. If the creditors refused to give them to me, and statements did appear on my reports and were verified after I disputed them, I would get everyone into court pronto with a declaratory judgment action. Would YOU just say "show me my signature?" Or would you take additional steps, as well?
"What address were the statements on the fraudulent accounts sent to? I would prove I have no connection with that address. " It would be very easy for someone to simply check your mailbox on a daily basis, and remove the statements. Even "apartment type and bulk" mailboxes are very easily opened. "When and where were the charges made on the fraudulent accounts? I would prove I was elsewhere. " Anyone with your account information could go to a public access internet point and run up multiple charges online. Could you prove you were never there? "I would demand written statements from the creditors that the accountes were fraudulent and that they would not be reported to the CRAs." Didn't you previously make an assertion in this thread that written proof does not have to be provided to you, showing you were liable for an account. This statement seems to contradict that assertion.
Squawk- Why in the world would you respond by quoting more posts? Even the people you were arguing with basically said 'so what'. Whats the point? This is the kind of crap that ruins a perfectly good board. If thats they kind of conversation you want, go to USENET where they enjoy flaming each other over and over. Give it up already...Sheesh. Shawn
Easy, but very unlikely. Only someone who has easy access to your house would try this, b/c sometimes you just happen to be home when the mailman shows up, and he hands you a stack of mail. The overwhelming cases of long-term identity fraud involve a different address. Indentity fraud involving the same address is usually hit-and-run account openings at department stores and the like. I wouldn't have to prove I was "never" there, I would only have to prove that I wasn't there at the date and time the charges were made. C'mon, this one's easy. First, you've mischaracterized my previous statements. Second, look again. I said that I would demand written commitments from the creditors acknowledging the fraud. I'm not asking them to "prove" anything to me, I am demanding that they provide written assurances that no adverse reporting will be done and the means to correct whatever adverse reporting has already been done.
What happens if you were never contacted by the CA and they put it on your report? I'm not that hard to track down. Every address for the last 10 years are showing up on my reports. Any ideas?
This is my last comment on this because carrying on this pointless argument with you does not really help anyone on this board and you are definitely not interested in contributing helpful information to others, except to show the board how well you can pull up cases and post them for the world to see. Very good, you get an A+ now for legal research. _________________________________________________ You want state law saying the same thing? No problem: quote: -------------------------------------------------------------------------------- From NY CPLR 3212(b): "Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." -------------------------------------------------------------------------------- Satisfied? _______________________________________________ By the way thanks for proving my case for me further, and while you're doing your legal research do you mind briefing those cases also, so that the world can see that you have a full understanding about the law. you said; In law school, "it depends" because the cases you study are the close ones -- the ones that changed the law or started a doctrine. In real life, the vast, vast majority of cases are decided on the facts, and not on some new interpretation of the law. ____________________________________________ I don't get it, wouldn't the outcome of the case DEPEND on the facts of the case and how it relates to the law. Last time I checked, this standard does not change whether its an old case or a new one. anyway, I have had enough of your psuedo-lawyering and posturing, because when a client walks into the office, they don't want to hear about how this case was decided by this court and that this is the literal meaning of the statute, they want to know do they have a strong case to win or a weak case to lose and how much its going to cost and that is REALITY! Ciao Cypri
Shawn -- I appreciate what you are saying. And I agree with something you said some posts back: "This is a board where people come to help people, to share knowledge, and to chat about common issues and problems." I try to help by posting when folks ask questions I think I know the answers to. Anything I post, I am ready to explain why I think its true or provide cites to statutes or cases that people can look up for themselves. When people post something I don't think is true, I ask about it so I can learn more. Some folks respond helpfully with concrete information and we all learn something -- like Hal did with the bit about state law, or SofaKing does with links to the FTC opinion letters. Some folks respond less helpfully. THAT "is the kind of crap that ruins a perfectly good board." Cypri has indicated that she has had enough, after getting in some more pointless attacks. We'll see if Hal wants to continue the hypothetical discussion about identity theft. Best wishes- Squawk1200
