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Can someone who is smarter than me, help me to make sure I under stand this correctly? I put the text in bold that I want to be clear on as not fall on my face in court.
I Have a case where a junk Debt buyer is claiming they are assignee and purchaser.
16a-3-404
Chapter 16a.--CONSUMER CREDIT CODE
Part 4 LIMITATIONS ON CONSUMER'S LIABILITY
Article 3.--REGULATION OF AGREEMENTS AND PRACTICES
16a-3-404. (UCCC) Assignee subject to defenses; application of payments received by assignee; limitation of actions; assignee may require seller or lessor to repurchase obligation; joinder of parties; procedure. (1) An assignee of the rights of the seller or lessor under a consumer credit sale or consumer lease is subject to all claims and defenses of the buyer or lessee against the seller or lessor arising out of the sale or lease, notwithstanding that:
(a) There is an agreement to the contrary, or
(b) the assignee is a holder in due course of a negotiable instrument issued in violation of the provisions prohibiting certain negotiable instruments (section 16a-3-307).
(2) Claims or defenses of a buyer or lessee specified in subsection (1) may be asserted against the assignee only:
(a) If the buyer or lessee has attempted in good faith to obtain reasonable satisfaction from the seller or lessor with respect to claims or defenses,
(b) if the buyer or lessee, when requested in writing to do so by the seller, lessor or the assignee, has given notice in writing to the seller or lessee and the assignee stating the claims or defenses,
(c) to the extent of the amount owing to the assignee with respect to the sale or lease at the time the assignee has notice of such claims or defenses. Such notice, generally stating the claims or defenses, must be in writing and shall be sent to the seller (or lessor), and to the assignee if the buyer or lessee has received written notice of the name and address of the assignee, and
(d) as a matter of defense to or setoff against claims by the assignee except that the buyer or lessee shall not be prohibited from bringing an action to rescind an obligation against which it has a defense or setoff.
(3) For the purpose of determining the amount owing to the assignee with respect to the sale or lease:
(a) Payments received by the assignee after the consolidation of two or more consumer credit sales, other than pursuant to open end credit, are deemed to have been first applied to the payment of the sales first made; if the sales consolidated arose from sales made on the same day, payments are deemed to have been first applied to the smaller or smallest sale or sales;
(b) payments received upon an open end credit account are deemed to have been first applied to the payment of finance charges in the order of their entry to the account and then to the payment of debts in the order in which the entries of the debts are made to the account.
(4) byAny action an assignee or the original seller or lessor who has repurchased an obligation under subsection (5) to enforce an obligation, or any action by a buyer or lessee to rescind, or any request to repurchase the obligation, shall be brought within one year from the date of receipt of the notice of the claim or defense, or default in payment, whichever is later.
Does the above mean that the SOL for a JDB who claims they are an assignee is One Year? From default? Is this why they put a line on my credit report that is 120 days and not 3 years??
(5) If a claim or defense of a buyer or lessee against a seller or lessor is asserted against an assignee, the assignee may, regardless of any existing agreement to the contrary, require the seller or lessor to repurchase the obligation for an amount equal to the price for which the obligation was assigned, plus that portion of the finance charge earned by the assignee, minus payments previously made to the assignee by the buyer or lessee. In any action by the buyer or lessee to rescind an obligation held by the assignee, the seller or lessor shall have the right to intervene and any party may join as a defendant any manufacturer or other person who is or may be liable to another party. If the action to rescind is brought against the seller or lessor, such seller or lessor shall have the right to join as a defendant any manufacturer or other person who is or may be liable to such seller or lessor.
Does this mean I can have the OC join me as a defendant in a action brought by the JDB? I would not do it but just asking. Can this be the reason they waited to take action so the Original creditor could not be pulled in on their case?
(6) An agreement may not provide greater rights for an assignee than this section permits.
16a-6-203
Chapter 16a.--CONSUMER CREDIT CODE
Part 2 NOTIFICATION AND FEES
Article 6.--ADMINISTRATION
16a-6-203. Fees. (1) A person required to file notification shall on or before April 30 of each year pay to the administrator an annual fee in an amount established pursuant to subsection (5) of K.S.A. 16a-6-104, and amendments thereto, for each business location for that year.
(2) Persons required to file notification who are sellers, lessors or lenders shall pay an additional fee at the time and in the manner stated in subsection (1), in an amount established pursuant to subsection (5) of K.S.A. 16a-6-104, and amendments thereto, for each business location for each $100,000, or part thereof which exceeds $10,000 and which is above the first $100,000, of the average unpaid balances, including unpaid scheduled periodic payments under consumer leases, arising from consumer credit transactions entered into in this state and held on the last day of each calendar month during the preceding calendar year and held either by the seller, lessor or lender, or by the immediate or a remote assignee other than a supervised financial organization who has not filed notification. The unpaid balances of assigned obligations held by an assignee other than a supervised financial organization who has not filed notification are presumed to be the unpaid balances of the assigned obligations at the time of their assignment by the seller, lessor or lender.
(3) Persons required to file notification who are assignees shall pay an additional fee at the time and in the manner stated in subsection (1), in an amount established pursuant to subsection (5) of K.S.A. 16a-6-104, and amendments thereto, for each $100,000, or part thereof which exceeds $10,000, of the average unpaid balances, including unpaid scheduled periodic payments payable by lessees, arising from consumer credit transactions entered into in this state taken by assignment and held on the last day of each calendar month during the preceding calendar year.
Does this mean that the JDB that claims to be an assignee has to Notify the state that they are doing business and pay tax to the state even if they have no office in the state? Thank You!
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