MBNA and debt collector collecting on same account

[Ice]

I'll say this much, RB echoes some of my earlier posts in which I suggest that folks learn more about court (and I was accused of "manipulation" at another board ... remember that?!!) This is an area of study which people seem to want to avoid... so they seek processes that attempt to keep them out of reach of the court.

I think we can do more using the courts... but then, I don't view the courts in the same way that some members do. We have heard the courts called "enemy" and such. Hell, I believe we have a responsibility to insure that the courts function as we would have them function... to be honest, fair and produce sound judgment. Most of all, it is our responsibility to make sure that our public servants abide by their oath.

But when speaking of the courts ya gotta remember that the legislature is responsible for what transpires there... they enact the laws. Soooo... we gotta be mixed up in all of it if we are to see any change.

hmmm.... I remember a thread in which one of our members was part of a crusade that resulted in some big time changes. Anyone else remember that one?

Ice

[seeker]

Rory did good!

[truth4all]

[quote=Judge Roy Bean]ras - MBNA can't file the suit themselves - they have to have a firm licensed to practice law in your state to do that, hence they hire bottom-feeder "spe******ts" to do their dirty work.

QUOTE]
Judge Roy, If you lived in Delaware, could MBNA sue you themselves?
Why do they outsource? A big bank like that, seems as though they would have their own in-house attorneys.
Is it because outsourcing is less expensive ?

Don't they have to charge it off of their books after 150 days, by law?
Do they get tax write offs for charging off a debt?
Doesn't Wolpoff and Abramson purchase the debt? If Wolpoff and Abramson try to sue you they must do so with Wolpoff and Abramson as Plaintiff and not MBNA, right?
For that matter, haven't Wolpoff and Abramson already purchased the debt when they take it to NAF?
Wouldn't it be considered intrinsic fraud to claim to represent MBNA when they purchased the debt from MBNA. They don't represent MBNA when they own the debt.
If they then filed for arbitration with MBNA as Petitioner, or file a law suit naming MBNA as Plaintiff, aren't they commiting fraud upon the court, Defendant and breaking more than a few laws?
Isn't it true that any third party debt collector that purchases a debt, then sues you with the name of the bank as Plaintiff, is committing fraud upon the court?
How many Judges know this and allow it anyway? How many Judges would even allow the issue to be brought up in a court room?
If Judges know that this is illegal, but do not allow the issue to be brought up in the case by the Defendant and rules against the Defendant in the matter, is the Judge then not a party to the fraud?

[Judge Roy Bean]

Originally Posted by truth4all

Judge Roy, If you lived in Delaware, could MBNA sue you themselves?
Why do they outsource? A big bank like that, seems as though they would have their own in-house attorneys.
Is it because outsourcing is less expensive ?

It's a lot less expensive. Collection firms have systems and processes in place to do it in large volume and they know the local evidentiary rules and court processes.

The fact is, even with Federal law, there are differing rulings in different courts, particularly when a case hasn't gone to appeal, and even then there are disagreements between courts at the district level that will eventually work their way up to the Supreme Court.

Originally Posted by truth4all

Don't they have to charge it off of their books after 150 days, by law?

Not neccessarily. You're into the accounting rules area now which is different between actual banks and other kinds of financial entities, but generally speaking, if they believe it is still collectible, they can carry it as a receivable as long as they want and as long as their auditors don't mind.

Originally Posted by truth4all

Do they get tax write offs for charging off a debt?

Not really. The way reserves for losses and hedges are implemented, tax implications are far too complex to detail here and are the arcane realm of the accountants and auditors, but the essesntials are that what is taxed is earnings. Losses (including charge offs - again, depending on how they are accounted for) can affect earnings and perhaps reduce taxes. The taxation game is played by highly-compenstated experts and they have enormous flexibility to ensure they don't pay much in taxes.

Originally Posted by truth4all

Doesn't Wolpoff and Abramson purchase the debt?

They can but that doesn't mean they have to. As "creditor's rights" attorneys their practice isn't limited to buying debt. They specailize in moving the cases into arbitration, and MBNA, in particular, is famous for automatically dumping you into the process unless you opted out if you just happened to have read the notice.

Originally Posted by truth4all

If Wolpoff and Abramson try to sue you they must do so with Wolpoff and Abramson as Plaintiff and not MBNA, right?

No. They can represent MBNA in the states in which they are licensed to practice, but again, their modus operandi is to put victims through the NAF.

Originally Posted by truth4all

For that matter, haven't Wolpoff and Abramson already purchased the debt when they take it to NAF?

Not neccessarily. I suspect in the majority of cases the debts they actually buy are pools, but there will be cases (particularly, but not limited to bankruptcy) where they represent MBNA or any lender as a client.

Originally Posted by truth4all

[Wouldn't it be considered intrinsic fraud to claim to represent MBNA when they purchased the debt from MBNA. They don't represent MBNA when they own the debt.
If they then filed for arbitration with MBNA as Petitioner, or file a law suit naming MBNA as Plaintiff, aren't they commiting fraud upon the court, Defendant and breaking more than a few laws?

No. Again, they could be managing the arbitration process for their client.

Originally Posted by truth4all

Isn't it true that any third party debt collector that purchases a debt, then sues you with the name of the bank as Plaintiff, is committing fraud upon the court?

Not neccessarily. They could set themselves up as joint plaintiffs if there is a contigency agreement based on the outcome of the case. I.e., W&A buys a pool of debts based on $X but if there are issues that come up that result in actually going to trial, they bring the lender in as plaintiff and represent them.

That doesn't mean a firm like Lenahan or W&A wouldn't try to conceal the real nature of the action just to scare the victim and then hide behind the bona fide error defense when it's exposed at trial.

Originally Posted by truth4all

How many Judges know this and allow it anyway? How many Judges would even allow the issue to be brought up in a court room?
If Judges know that this is illegal, but do not allow the issue to be brought up in the case by the Defendant and rules against the Defendant in the matter, is the Judge then not a party to the fraud?

Again, it all depends on the details, and no, the judge cannot be made a party to the alleged fraud.

[Ice]

Here's another thing to comtemplate in regards to collectors purchasing debts:

Are they not "purchasing evidence" of a debt?

hmmm.... purchased evidence.... something to think about.

They are not just purchasing the rights of the original creditor in regards to the debt... they are purchasing the evidence of the debt (if any exists).

Ice

[truth4all]

Originally Posted by Judge Roy Bean

the judge cannot be made a party to the alleged fraud.

Is it legal to purchase evidence of an alleged debt then claim injury or loss, Judge Roy?
Doesn't the Statues Of Fraud cover putting oneself in harm's way then claiming injury or loss, Judge Roy?
If Wolpoff and Abramson are only representing MBNA then an MBNA agent or bank official would have had to file the affiidavit with NAF.
MBNA would have had to produce the evidence of the alleged debt if Wolpoff and Abramson were only representing them as a client.
As it is, the attorney for Wolpoff and Abramson signed an affidavit under penalty of perjury, with a generic piece of paper that says "statement of account" with a date received in office on it.
This clearly has PURCHASED written all over it.
1. No documents from MBNA submitted.
2. Attorney signed the affidavit.
We all know an attorney cannot testify for his "client".
3. Anything an attorney signed stating facts about the alleged debt is only hearsay because he has no first hand knowledge of the account, contract or anything else relating to the alleged debt.
Any Judge should know this.
Any arbitrator should know this.
And the attorney signing it cannot claim ignorance of the law.
He has made a statement under penalty of perjury to facts which he knows he has no first hand knowledge of.
He knows he is misrepresenting the true nature of the action from the beginning by claiming to "represent" MBNA on purchased evidence of alleged debt,which is fraud.
What and who gives immunity to a Judge who knowingly, willing and actively assists a party to engage in fraud and concealment of the true nature of the action?

[Ice]

By the way, RB, I've never heard of any corp. (including banks) that do not write off the debt and zero the account after sending it to collection attorney/agency. It comes off their books ASAP. It's true that they will make every attempt to collect the debt ... but when they have exhausted their efforts and send it off... the account is zero balanced. It is SOP in Finance. Some corporations don't waste much time trying to collect... 30 days without a reply and they send it off... some allow up to 120 days maximum ... if there is no activity in any 30 day stretch, it is "gone".

Ice

[dashboy]

That the Counter defendant has failed to show the actual situs of any “DEBT” and standing to collect upon them in light of the fact that original promissory notes are only evidence of debts. (247 U.S. 142; 38 S. Ct. 452;62 L. Ed. 1038 MARIN v. AUGEDAHL No. 227) Promissory notes are only evidences of debt and not the debts themselves. Their situs, therefore, is not the situs of the debts; the situs of the debts is at the residence of one or the other of the parties to the relation.

SO WHERE IS THE DEBT?

dashboy~

Originally Posted by Ice

Here's another thing to comtemplate in regards to collectors purchasing debts:

Are they not "purchasing evidence" of a debt?

hmmm.... purchased evidence.... something to think about.

They are not just purchasing the rights of the original creditor in regards to the debt... they are purchasing the evidence of the debt (if any exists).

Ice

Truth4All has posed excellent questions and Judge Roy Bean has done a great job in answering them.

With respect to the NAF Arbitration process, T4A is right on the money regarding the Affidavit issue. Rule 5 of the NAF Code of Procedure states:

RULE 5. Summary of Procedures.

A. Claim. A Party begins an arbitration by filing with the Forum a properly completed copy of the Initial Claim described in Rule 12 [my emphasis], accompanied by the appropriate filing fee which appears in Appendix C. The Forum reviews the Claim, [my emphasis] opens a file, assigns a file number, and notifies the Claimant, who then serves the Respondent in accord with Rule 6.


Rule 12(A)(4) of the NAF Code of Procedure clearly states:

RULE 12. Initial Claim.

A. An Initial Claim, which begins an arbitration in accord with Rule 5 of this Code, shall include:
4. An Affidavit asserting that the statements and documents in the Claim are accurate;

Wolfpoff & Abramson NEVER include an Affidavit with their claim.

When one asks the NAF how they allow to stand as an "Initial Claim" a claim with NO AFFIDAVIT attached, their response is that they are a "neutral third party" and cannot interpret the Code of Procedure. (An interesting statement considering it is THEIR OWN Code.)

And when a consumer points this out to the Arbitrator in their Response, the Arbitrator FLAT OUT ignores it and rules against the consumer.

QUESTION FOR JUDGE ROY BEAN: After presumably administratively reviewing each Claim to make sure that it meets the requirements of an "Initial Claim" as stated in Rule 5 above, how, in your opinion, does the NAF allow to stand as an "Initial Claim" Wolpoff & Abramson's claim when no Affidavit is included?! Any thoughts?

I look forward to your comments.

Confused.
B.

PS: The NAF claims that their Arbitrators take an "Oath". When one asks for a copy of the "Oath", the NAF refuses to provide it. What are they and their so called "neutral" Aribitrators hiding I wonder? So much for transparency. The NAF is the Enron of Arbitration venues.

[truth4all]

Originally Posted by buscador

Truth4All has posed excellent questions and Judge Roy Bean has done a great job in answering them.

With respect to the NAF Arbitration process, T4A is right on the money regarding the Affidavit issue. Rule 5 of the NAF Code of Procedure states:

RULE 5. Summary of Procedures.

A. Claim. A Party begins an arbitration by filing with the Forum a properly completed copy of the Initial Claim described in Rule 12 [my emphasis], accompanied by the appropriate filing fee which appears in Appendix C. The Forum reviews the Claim, [my emphasis] opens a file, assigns a file number, and notifies the Claimant, who then serves the Respondent in accord with Rule 6.


Rule 12(A)(4) of the NAF Code of Procedure clearly states:

RULE 12. Initial Claim.

A. An Initial Claim, which begins an arbitration in accord with Rule 5 of this Code, shall include:
4. An Affidavit asserting that the statements and documents in the Claim are accurate;

Wolfpoff & Abramson NEVER include an Affidavit with their claim.

When one asks the NAF how they allow to stand as an "Initial Claim" a claim with NO AFFIDAVIT attached, their response is that they are a "neutral third party" and cannot interpret the Code of Procedure. (An interesting statement considering it is THEIR OWN Code.)

And when a consumer points this out to the Arbitrator in their Response, the Arbitrator FLAT OUT ignores it and rules against the consumer.

QUESTION FOR JUDGE ROY BEAN: After presumably administratively reviewing each Claim to make sure that it meets the requirements of an "Initial Claim" as stated in Rule 5 above, how, in your opinion, does the NAF allow to stand as an "Initial Claim" Wolpoff & Abramson's claim when no Affidavit is included?! Any thoughts?

I look forward to your comments.

Confused.
B.

PS: The NAF claims that their Arbitrators take an "Oath". When one asks for a copy of the "Oath", the NAF refuses to provide it. What are they and their so called "neutral" Aribitrators hiding I wonder? So much for transparency. The NAF is the Enron of Arbitration venues.

Good post, but you missed one point. At least in one case, Wolpoff and Abramsom DID include an affidavit with their claim. The attorney for Wolpoff and Abramson submitted his own affidavit and swore to it under penalty of perjury. It DIDN'T come from MBNA, nothing they submitted was from MBNA, only from attorney for Wolpoff and Abramson. That alone says says "purchased". It is interesting to see attorneys "attesting to under penalty of perjury" to purchased evidence of an alleged debt.
When it was pointed out that to this particular attorney that he had sworn to something that he couldn't possibly have first hand knowledge of and an answer demanded of him, Wolpoff and Abramson very quickly handed the account off to one of their "partner" firms to collect.
They are all playing tag team with the alleged debtors,tossing about purchased evidence of an alleged debt.
And consider this;
The IRS allows creditors to charge off debts that have become worthless. The rule is called the "Specific Charge-Off Method". In a nutshell, this rule allows creditors to take a loss on their income taxes when a debt they are trying to collect becomes worthless. Companies do not actually have to go to court to prove the debt is uncollectable.
So they have charged it off, taken a tax write off and then SOLD evidence of it to a third party in a "pool".
I too, look forward to Judge Roys comments.