validation of sold accounts

Discussion in 'Credit Talk' started by kenc_69, May 21, 2001.

  1. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    I would like to state my defense once again. First of all I am in total understanding that assignment is a totally normal and legal business transaction. It happens everyday and I am aware of their rights under assignment. This however, does not in anyway void rights of the original agreement between a creditor and a debtor. The contractual agreement took place between the debtor and creditor. The assigment is legal in standing, but it voids the creditors rights and so they are waived.This takes away his ability to collect. Since there is no real agreed upon amendment to the contract by the parties involved this would lead to repudiation. Secondly, since the collector has no product or service that falls under the same category as the original creditors, the agreement changes again between the creditor and the debtor. This would be considered a breech of contract. This is where the loophole is as far as I know.
     
  2. bbauer

    bbauer Banned

    Re: CA Rights

    The assigment is legal in standing, but it voids the creditors rights and so they are waived.

    No Way! Assignment of the debt to a 3rd party in no way voids any rights the creditor may have. Sorry, but I gotta go against you on this one.
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    This takes away his ability to collect. Since there is no real agreed upon amendment to the contract by the parties involved this would lead to repudiation.

    Gotta disagree again.
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    Secondly, since the collector has no product or service that falls under the same category as the original creditors
    I believe this would be CATEGORICALLY true. Maybe theoretical would be a better word.

    the agreement changes again between the creditor and the debtor. This would be considered a breech of contract. This is where the loophole is as far as I know.

    Nope! I think you are way off base with this.
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    Now then, some of what you state may conceiveably hold water in the event of an actual sale taking place between the creditor and some 3rd party wherein a certain amount of cash actually transferred in the purchase of the debt by 3rd party. But in the event of a valid cash sale of the debt to a 3rd party then all of the rights, title and interest of the 1st party transfer to the 3rd party purchaser. Even the death or bankruptcy or going out of business by the 1st party does not change any of that.
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    However, after the passage of some time or the death or other business demise of the original creditor, a knowledgeable debtor or his agent may very well be able to upset the apple cart of the 3rd party. All depends on how he goes about it and how he handles the matter.In the interests of brevity, and the fact that multitudes of posts have already been made by many others about all that, I refrain from further comment.

    Sorry to have to disagree with you, but that's the way I see it. Anthony or others may very well state differently, and their ideas may be more valid than mine. As I have stated many times, I am not an attorney, so what I have said is just my personal opinion, nothing more.
     
  3. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    This arguement falls under the affirmative defense of "statue of frauds". "Scienti et volenti non fit injuria" translates into "Injury is not done to one who know and wills it" This is one of the oldest basic principles of law. Debt collectors take on the a liability and then they believe that they should be compensated for it. This is ridiculous!
     
  4. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    There I go again calling statute "statue" , one day I will learn how to use the spellcheck and proofread. Until then, Buh bye!
     
  5. GEORGE

    GEORGE Well-Known Member

    Re: CA Rights

    "STATUE" is spelled right ( A three-dimensional form or likeness sculpted, modeled, carved, or cast in material such as stone, clay, wood, or bronze).


    "STATUTE"

    1.Law. A law enacted by a legislature.
    2.A decree or an edict, as of a ruler.
    3.An established law or rule, as of a corporation.

    SPELL CHECK WOULDN'T HELP...


    JUST F.Y.I. DON'T READ ANYTHING INTO IT.
     
  6. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    If you noticed, I also included proofread in my post. This would definately help that. By the way thanks for the definitions. I love it!!!
     
  7. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Re: CA Rights

    Daddy-O:
    Ridiculous? Foremost, there is nothing â?ridiculousâ? about one gaining compensation for services rendered or upon investment made. What youâ??re trying to do is make an argument where there is none to be had. That is to say for some reason you seem hell bent on the idea that a collection agent, under assignment or otherwise, has no right to collect.

    Frankly, weâ??ve gone over these aspects before and I believe quite thoroughly. What part of my posts regarding â??agencyâ? and â??right of assignmentâ? didnâ??t I make clear enough? Because Iâ??ll tell ya the only thing truly â?ridiculousâ? is the notion that others should take it in the shorts, based on flawed loopholes.

    Granted I realize youâ??re simply looking for leverage, yet youâ??ll not find it challenging the right to collect using faulty concepts. At long last, Daddy-O, if your general notion had any merit whatsoever believe me Iâ??d know about it..! Funny thing is, so would everyone else because millions wouldnâ??t be paying transferred debt.
     
  8. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    Anthony,
    maybe your right and maybe your wrong. After all, millions of people have bought into the notion that they are required to have a social security number. Also, millions have been convinced by the FTC, the CRA's and the media that you cannot remove accurate information from your credit files. Yet, I see people here on this board and others do it every day. I guess its all perspective and the education process that enlightens those who think that there maybe another way. Maybe my concept is faulty, but I know that it works. Since my revelation of this subject, I have seen nothing but results and more results. That is what is important to me and that is the basis for my argument. I am looking for leverage to backup the fact that the original contract holds total precedence over any assignment of debt, wether a third party clause is put in the contract or not. This is the reason contracts were created in the first place. Why should I sign an agreement with someone who thinks that it is ok to sell the rights to the debt after they profit from the sale of the debt. What gives the creditor any rights after they have been satisfied through "Accord and Satisfaction". Then many times the collectors turn around and makes claim also, through insurance or taxes. Then I am supposed to turn around and claim on my taxes that I have obtained extra income due to the nonpayment of my debt. I don't see anyone taking it in the shorts in this scenarios. It seems everyone will profit somehow, including the IRS. Wow, imagine that! Thanks for your opinion.....



    Repudiation:: the act of repudiating : the state of being repudiated; especially : the refusal of public authorities to acknowledge or pay a debt
     
  9. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    Repudiation
    Contract


    A term used in various senses in contract law.
    1. An absence of readiness or willingness to perform contractual obligations by the promisor, sufficiently serious to give the promisee a right to terminate (repudiation of obligation).

    2. Termination of the performance of a contract.

    3. Any breach which gives rise to a right of termination.

    4. In sale of goods legislation, termination for breach of condition, and termination of a sale of goods by instalments.
     
  10. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    Locus poenitentiae
    Agency


    Lat â?? a place of repentance

    Breach of contract
    Contract

    The failure of a party to a contract to perform a contractual obligation; or an anticipatory breach.

    Contract


    1. A legally binding promise or agreement; an act in law where two or more persons declare their consent as to any act or thing to be done or forborne by some or one of them for use of the others or other of them.

    2. The body of general principle pertaining to the various branches of contract law, such as sale of goods contracts or charterparties.

    3. The act of entering into an agreement.

    4. The form or document that embodies the terms of an agreement between parties, for example a `standard form contract'.

    Estoppel

    The doctrine designed to protect a party from the detriment which would flow from that party's change of position if the assumption or expectation that led to it were to be rendered groundless by another.


    Agreement
    Contract


    In contract law, the stage at which the negotiations between the parties are complete. The foundation of legal relations called `contract' is the agreement of the parties.

    Accord and Satisfaction is like a new contract
    Generally, when there is a bona fide- or genuine- dispute between two parties as to the amount of a debt, one party can offer to pay a specific amount in full settlement of the debt. The other party can accept the offer and cash the check. This is called an â??accord and satisfaction.â?

    The rules governing an accord and satisfaction are substantially the same as those governing contracts. The â??accordâ? is the agreement between the parties to settle the dispute, and the â??satisfactionâ? is the payment of the amount expressed in the accord. Like a contract, an accord and satisfaction requires some form of â??consideration.â? This is something of value or something bargained for. Generally, the existence of a dispute and its settlement, such as when the debtor pays less or pays earlier, is sufficient consideration to support the accord and satisfaction.

    When the parties agree that this â??substituteâ? amount will settle the debt, the satisfaction of the accord wipes out the original debt.

    Bona Fide dispute, â??Meeting of the Mindsâ??
    A bona fide dispute need not be based upon solid foundation, but there must be some justification for it - not a mere arbitrary refusal to pay. Consequently, if a debtor disputes some or all of



    a debt and is not simply creating a dispute out of thin air, this may be enough to support an accord and satisfaction.

    Like a contract, some state courts hold that in order for an accord and satisfaction to be created, there must be a â??meeting of the mindsâ?? between the parties. This means some evidence must exist to show that the parties discussed and settled on an acceptable partial payment.

    Most states will â??presumeâ? that a meeting of the minds exists where the creditor received notice of the debtorâ??s offer of accord and satisfaction and accepted payment or cashed the check. Or if it is
    satisfied by another party.
     
  11. bbauer

    bbauer Banned

    Re: CA Rights

    That argumentgot thrown out of the castle window during the reign of Richard the Lionhearted who got sick and tired of having to put the widows and orphans on welfare after his knights kept getting killed while jousting.

    King Richard didn't mind having to pay to remove all the dead horses and knights from the White House Lawn. He didn't mind all that much having to listen to the environmentalists crying about the damage being done to the lawn and the moat which was home to alligators. But he drew the line at having to pay off the widows and orphans and the enormous costs to the Veteran's Administration in pensions and medical benefits that the liberals kept demanding he pay. So he threw that age old principle out the window. Of course, he had to protect himself somehow, so he secretly slipped in the seat belt laws and made the horses all have saftey stickers and all the armor carry product liability codes so that the manufacturers could be held liable instead of him.

    Errrr maybe Anthony's answer would serve better than mine. He studies them there new fangled books and my personal memories of what happened back past the time when they took Pore ole King John out there in the piney woods at Runny Mead and came back with the Magna Carta is gittin a bit shakey.

    Actually, I can understand your points of argument and where you are coming from, but I really can't give you any answer.
     
  12. godaddyo

    godaddyo Well-Known Member

    Re: CA Rights

    Bbauer,
    I have beaten this horse to death. I am not educated enough in the law to prove my point any further, so I officially give up on this particular subject matter. By the way, funny story and it even has a moral to it :)
     
  13. bbauer

    bbauer Banned

    Re: CA Rights

    I did hope someone might see some humor in it. Of course, I made it up "on the spur of the moment".

    Actually, I don't agree that you have "beaten the horse to death". You present some very valid sounding arguments that may actually hold at least some water. One of the severe problems in our society is that we seem to need 1 million laws to enlighten us as to the meaning of 10 Commandments. And somehow in the 10 x 1 multiplication process we came up with 11 million lawyers. After that, the average man can't put 2+2 together and come up with anything except 3 lemons.
    So they just go watch football, wrestling, or the sitcoms all the while squeezing their 3 lemons into their beer.
    Can't say as I blame them, really.

    Your points, valid or not, at least make a lot of sense to me. Problem is that if a satisfactory answer to them exists, then a moral problem exists as well as a practical financial one due to the ease with which one could then go out and buy a new castle, a few horses and sit back and enjoy the life of Riley on his credit cards and then when the wolf comes howling at the castle door, Joe Sixpack could then just dump a pot of hot oil out the castle belfrey onto the poor wolf, wipe his hands and go back to his beer and tv in peace. The wolves don't like that concept much so they go hire lawyers whom they have previously trained to toe the party line or else. Joe Sixpack is obviously more frightened of the lawyers whose bark is usually worse their bites, than he is of the wolves since the wolves have little more aptitude in legal matters than Joe does. I think that what frightens Joe more than anything else is that lawyer sittin high up there on his perch wearing a stern face, and a long black dress and got that hammer in his hand. I think Joe is frightened that he might get banged on the head with the hammer and then have to pay for the hammer yet as well as that dude's time that did the bangin.

    The thing that irks me is that if I go hire me one of them lawyer dudes to defend me from the wolves, he usually comes up with a whole bunch of yarns about how he's gonna git me off light, not to worry, he's gonna make it all come out right and then goes in there and files some papers and makes it look good but I end up gittin banged on my pointy little noggin anyway.

    On the other hand, if I go do a bit of my own studying and conniving, I get the whole thing to come out my way without having to pay that lawyer dude or his pal with the hammer either.

    An recent example of that is the one where all this time, I've been getting all wrapped up over what to do when the credit bureaus tell me my demands for validations are frivolous, refuse to answer my letters, send me obfuscatory letters with nothing much on them that makes any sense and otherwise try to play mind games on me. That's maddening and very unproductive to say the least and all them fancy lawyers I ever talked to told me that I couldn't do one single thing about it because the law says they can do it and get away with it. Well, they are dead wrong. I got a new method that is so effective that it can be likened to pulling the pin on a live hand grenade and slipping it into their sleeping bag in the middle of the night. It's very tricky and what it does is to make them subject to another law in stead of the one they use to hide behind. The other law says they gotta perform for you whether they like it or not. And when they wake up and realize that the hand grenade is there and it's most likely to go off at any time, they get out of their sleeping bags real quick. I used it once because it just popped into my little pea brain and I thought it was a "cute" trick. It worked just like I hoped it would. Got the exact results I wanted. Then someone approached me with a problem that turned out to be very similiar, so I taught him what I had done before and twisted it just a tad so it fit his situation as well. It worked again! He wrote me an email and told me how happy he was and how well it had worked. That put me to wondering why it worked so well. Then the light dawned on me and I knew the exact reason. It was because I was making them subject to another law instead of the one that let them do as they pleased. I couldn't do anything about their stalling tactics if I let them rely on their way of thinking, but when I slipped the other law in on them in a special way, the lights suddenly came on and all the dark was gone. I came out winner instead of loser. And the nice part about it is that they don't have any way out this way. It stops up all their little hidey-holes real quick.

    Lawyers and lawmakers are trained to make sure the desired laws are always observed and the status quo always preserved. They are never trained in techniques that will go out and get the job done for the little guy. Every once in a while, one or another of them will actually go out and do enough homework to realize that there is a rat in there somewhere and they go on to become the F. Lee Bailey's and the Johnny Cochran's. They actually go figure out how to jump ship and go for the gold. Those few people get humongous amounts of bucks and become very famous very quickly. The rest just stay down in the ranks and plod along.trying to impress Joe Sixpack with how much good they are gonna do him then end up usually shafting him again.

    No matter how it comes out, I hope you continue with your thread because it seems to me to have a lot of merit even though fine legal minds tell you that you are full of it.
    If you work at your theories and thoughts long enough and hard enough, I think you stand an excellent chance of coming up with something that will upset the apple cart again like I just did. Your thoughts make a lot of sense even if they might not be legally correct. I've found that when things make a lot of sense, there is usually a reason why. It may take you a while to see the light for yourself, and when or if you do, it's application may turn out to be far different than what you expected.

    You will never know if you just give up.

    Lots of luck.
     
  14. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Re: CA Rights

    Daddy-O:
    Well, I ainâ??t wrong thatâ??s for certain.

    Foremost, please understand Iâ??m not aiming to get into a contest with you over this sub-thread. For one thing youâ??re heavily outgunned, flanked and seriously quartered; so Iâ??ll be kind considering. Besides youâ??re a friend and I donâ??t knock those around (embarrass them) readily, unless one clearly asks for it. [;-)

    Yet when you make statements like, â??I know that it works. Since my revelation of this subject, I have seen nothing but results and more results.â? Helllooo? Are you trying to tell us that folks have factually challenged assignment authority, and/or a creditorâ??s right to transfer debt and HAVE WON? Prevailed in whatever dispute is relative to issues? Careful here pal, youâ??re skippin rope at-edge of a minefield!

    Hereâ??s the dealâ?¦ Certainly a case could be made for some type of breach on the creditorâ??s part, expressly for transferring debt (by assignment or sale). Courts donâ??t pre-screen pleadings for legal accuracy, nor do court clerks advise on what will fly and what wonâ??t before a hearing. So anyone could file such a complaint (lawsuit), but would it stand the test of (opposing-side) challenge? I-DONâ??T-THINK-Soooooo!

    Additionally, your observations of law are skewed inaccurately. For one thing a contract is (in context) not breached by the creditor before assignment/transfer to a collection agent, because the prerequisite for such is the debtor having defaulted. Therefore referring to a collection agent is a creditorâ??s defensive move, not one of aggression initiated without cause. Your â??revelationâ? supposes a consumer SHALL (clearly) benefit by his/her own default, thus creating an unchallengeable defense for oneâ??s own misconduct. Again, HEEELLLLOOO?

    Whatâ??s more, Iâ??m confused, on one hand you purport this new and revolutionary tactic; yet on the other state, â??I am not educated enough in the law to prove my point any further.â? Now without meaning to knock your little epiphany, very bright legal minds have establish creditor assignment rightsâ?¦ Iâ??m definitely certain theyâ??re educated enough.

    I eagerly await your response with examples of how your theory produced (past tense) results. That is unless of course, I misunderstood your statement and you actually meant something else?
     
  15. bbauer

    bbauer Banned

    Re: CA Rights

    Anthony, I am in complete agreement with all that you have said, but I do have this one little corner of this thread that I still wonder about and will rely on your answer as being correct, whatever it may be.

    Person A, the creditor, assigns Person B's debt to a collection agency who becomes Person C. Person C adds on a bunch of charges for whatever. Interest, carrying charges, late fees, whatever, thereby greatly increasing the amount demanded of Person B.

    Does Person B have any defensible legal position in claiming that those sums of money tacked on by Person C are illegal because Person C has performed no service nor provided any goods in order to support claim for such charges and thereby successfully argue against at least such additional charges??
     
  16. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Re: CA Rights

    Bill:
    A collection agent may demand ALL relative (direct) costs associated with the debtorâ??s default, including the charges you mentioned if appropriate. However, if for example, the subject contract specified no interest (an extreme situation yet possible). Then no interest could be legitimately demanded because it was not part of the initial transaction.

    Where person B may have a creatable defense is against additional charges, ancillary to the actual default; i.e., a $35 processing fee assessed by the collection agent, or inapplicable interest. All other charges such as unwaived late fees, field chase expenditures, and investigation costs can be demanded â?? providing the collection agent has some reasonable basis for doing so (like a written contract specifying such).

    Clearly, person C is performing a service or function by collecting the debt (even by the mere effort). Attempting to allege otherwise is a no-huntin-hound I assure you, because people are entitled to compensation! The degree to which one performs so as to gain that compensation is not at issue, but rather the results of which that is a key factor. So in other words if I collect a debt by making one phone call, and bag a million for myself in the process (donâ??t I wish), the sum I make cannot be challenged. How much money the collector makes isnâ??t at issue, but the DEFAULT is. There is simply no getting around it.

    Does this make any sense to you?
     
  17. bbauer

    bbauer Banned

    Re: CA Rights

    No, it does not make any sense to me at all for the very simple reason I don't want it to be true. (LOL)

    Thanks for your reply. It was appreciated. I quite often wish I could make up my own laws. I'd sure change a few of the ones on the books now. :)-0)
     

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