Being Sued by Attorney for Cap one

[dystopia]

Originally Posted by valahian

I would personally go with a motion to dismiss for failure to state a claim upon which relief can be granted. I would look at what Richard Cornforth has to say about the debt collectors, he is the man and then research the court procedures where you have been sued.

I read about that one, it looks like that one hits two birds with one stone because it makes them prove a bunch of things they cannot and motions to dismiss right away.

I saw a case where it actually worked which is even better.

[dystopia]

Originally Posted by Livefire

Panicpass is wrong about state courts not having jurisdiction. FDCPA grants concurrent jurisdiction to the feds AND state governments. As a matter of fact, the DC is required to file in your local court or the jurisdiction where the debt was incurred. You could include question in an interrogatory as to whether or not the debt was purchased by the law firm. If yes, then the LAW FIRM is acting on its own behalf. not the client and isnt entitled as a 3rd party to payment (You didnt contract a debt with them! they shouldnt have standing to sue!) !

No prior course of dealing. This is likely the case that the lawyer bought the debt? God I hope so.

What do you think about the fraud angle?

http://www.suijuris.net/forum/genera...hlight=wolpoff

Originally Posted by Livefire

Also you need a affirmative defense, DEMAND that they produce a copy of the original signed agreement. That is your right according to the UCC (Uniform Commercial Code) No agreement, no debt. Most of the time all they will prodice is a computer statement with payment history and an affidavit by someone at the bank/company stating they have personal knowledge that you owe this debt. You have to object to the affidavit as being proof positive because the affiant cannot be cross examined! All this person states in the affidavit is that they have knowledge of the account. Is this knowledge that a computer record exists??? Thats not proof! A certified copy of the agreement needs to be produced. Its up to you to force the issue. The judge is not going to do this for you. They just want to move on to the next case to clear the docket before lunch or quitting time!

Ok I was getting a little worried reading about the judge steamrolling over people saying "it's good enough".

[PANICPASS]

Livefire wrote:

Panicpass is wrong about state courts not having jurisdiction.

No, I am not wrong.

[BOBT12]

Originally Posted by PANICPASS

So ? Debt collectors are required to register with the state because they are debt collectors. Does that mean they are barred from suing in federal court? No.

Maybe not? However, because as a part of registering to do business in the state, DC must maintain a office in the state, which gives the state jurisdiction in the issue also.

Originally Posted by PANICPASS

I haven't seen that anywhere in FDCPA.

Well, you decide:

Originally Posted by FDCPA

§ 811. Legal actions by debt collectors
(a) Any debt collector who brings any legal action on a debt
against any consumer shall—
(1) in the case of an action to enforce an interest in real
property securing the consumer’s obligation, bring
such action only in a judicial district or similar legal
entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1),
bring such action only in the judicial district or similar
legal entity—
(A) in which such consumer signed the contract sued
upon; or
(B) in which such consumer resides at the commencement
of the action.
(b) Nothing in this title shall be construed to authorize the
bringing of legal actions by debt collectors.

[...]

(1) STATE OR DISTRICT ATTORNEY.—The term “State
or district attorney” means the chief elected or appointed
prosecuting attorney in a district, county (as
defined in section 2 of title 1, United States Code), municipality,
or comparable jurisdiction, including State
attorneys general who act as chief elected or appointed
prosecuting attorneys in a district, county (as so de-
fined), municipality or comparable jurisdiction, who
may be referred to by a variety of titles such as district
attorneys, prosecuting attorneys, commonwealth’s
attorneys, solicitors, county attorneys, and state’s attorneys,
and who are responsible for the prosecution of
State crimes and violations of jurisdiction-specific local
ordinances.

Emphasis added.

http://www.ftc.gov/bcp/edu/pubs/cons...edit/cre27.pdf

If the FDCPA only allowed suits to be brought in (federal) District Court, there would be little need for the phrase: a judicial district or similar legal
entity. The phrase, "judicial district", does not necessarily mean "District Court", but may refer to the state's judicial district. Moreover, the DC is often interested in acquiring the alleged debtor's property, in some form, in order to pay the loan. Of course, the property issue is more of a state concern.

[BOBT12]

Originally Posted by dystopia

I read about that one, it looks like that one hits two birds with one stone because it makes them prove a bunch of things they cannot and motions to dismiss right away.

I saw a case where it actually worked which is even better.

Be careful, generally you must answer the Complaint in the time provided.

Of course, you may file motions, such as, a Motion to Dismiss. However, this is a separate instrument. If your motion is rejected, you want to make sure you raise your best defense in you response to the Complaint. Additionally, you should ask about the court's motion practice rules.

[quasimodo]

Error
Will try to post again

[quasimodo]

This may be of some help.
Q

[valahian]

BobT12 is right, you gotta watch your defense in your motion, however most likely the DC doesnt have any contracts, notes, and Cap1 wont file an appearance so I wouldnt worry too much plus you can always counter motion for summary judgement. Use your own judgement but I would definately read court procedures and others docs, like the metris vs edwards case for instance, to support your knowledge when in court. I would try to stay away from the jurisdiction issues in this case and suing for fraud but instead try to win with facts - no proof of debt. Also you should be able to get online or the court website (clerk of court) some fill-in forms to help you with making motions. This is, obviously, not legal advice.

[gldskr]

Originally Posted by valahian

I would try to stay away from the jurisdiction issues in this case and suing for fraud but instead try to win with facts - no proof of debt.

The new and improved FDCPA has declared that a Statement of Account is sufficient for a VOD, therefore, a jurisdictional challenge would be the most fruitful course of action.

gldskr

[Livefire]

gldskr,

That is not a good thing! I appreciate you bringing that up.