Car lease-Complaint for Replevin

[jmartinezclark]

Hi, I was just sued by the leasing company on a car that I leased in 2006. Their original complaint includes a copy of the lease agreement and a copy of the title of the car. I have replied to their complaint with a motion to dismiss. My argument is that they have not entered in the court records the original lease agreement. I base my argument in the fact that the lease agreement is a negotiable security instrument (similar to a promissory note) and I'd be exposed to liability if the leasing company doesn't have it in their possession since the holder of the original could sue me again. I have uploaded my to pleadings.

My second argument in my motion to dismiss is that the attorney representing the leasing company has failed to send me a debt verification letter/"dunning letter" per the Fair Debt Collection Practices Act.

The plaintiff's attorney has answered my motion to dismiss simply by sending to the court a notice of filing, a copy of the lease agreement (which they also included in their original complaint), a copy of the vehicle title, and a copy of the leasing company's registration in the Florida Division of Corporations. The plaintiff's attorney did not really refused or failed to rebut the affidavit in my pleading. They didn't address the issue that they violated the Fair Debt Collection Practices Act for not sending me a "dunning letter". Notice that in their answer they say they included a "copy" of the documents and there is no mention of filing the original lease agreement. They plaintiff's attorney has scheduled a hearing and for the 27 of Sept. 2007.

I'd like to get this forum feedback on my arguments and my reasoning. Any help/feedback would be greatly appreciated.

[Sharing Lights]

Good start.

If judge is honest, must dismiss.


Also browse here:

http://www.suijuris.net/forum/court/...-s-courts.html

for an overview.

You narrowed down on some critical points well.

Richard Luke Cornforth should be read few times
till pieces fall into a puzzle, then, reading others
and utilizing their knowledge would be easier.

In a few days, I would post up, the expanded version,
trying to cover most angles.


You may need only some as the true art is
to keep Motions brief but covering most ground.

Corruption of the NY courts forces me to go into -
cover all angles - prepare for an Appeal,
(leave nothing out)
therefore, so far, my version
is about 35 pages in the Maximus mode,
slightly altered:

.....................

[jmartinezclark]

Thank you for your reply Sharing Lights!
The plaintiff's attorney scheduled a hearing for Sept. 27, 2007. I don't see the point in having a hearing when they have violated federal law by not respecting my due process rights (for not sending me the debt verification/dunning letter before initiating the lawsuit), thus the court lacking subject matter jurisdiction.

In Richard Cornforth's book "Secrets of the Legal Industry" , SECTON THREE: The Fair Debt Collections Practices Act, he says that ..."Debt collection activity must cease if the debt is disputed. Failure to notice the alleged debtor of their due process rights subjects the collector to suit for violation of the Act and any action to collect without informing the alleged debtor of their due process rights or failure to cease collection activity until timely validation subjects the collector to suit for damages under the Act and voids any legal proceedings including mortgage foreclosures."

This is my main legal argument to dismiss this lawsuit. I'd like to send the court a petition to cancel the hearing since there is no point in scheduling a hearing when there is a clear violation of Federal law under the FDCPA and thus my due process rights and the court lacks subject matter jurisdiction.

Do you know of any sample similar petition that I can use as an inspiration to write mine?

Can you share any cites related to FDCPA and the dismissal of a lawsuit for the debt collector not sending a debt verification/dunning letter?

Any help is greatly appreciated.

[gldskr]

I'm confused. You state that;

Their original complaint includes a copy of the lease agreement and a copy of the title of the car.

But your paperwork denies that you or the court have such copies. Why do you wish to dishonor your agreement?

While the lease agreement may have the characteristics of a negotiable security instrument, it is not, simply because there's nothing that needs to be secured. Title to the vehicle already belongs to the leasing company. What appears to be a promissory note is upon the use not the ownership.

Was your credit used as the basis for the lease? Probably, but title and liability therefor still resides with the leasing company. If you read your lease, I'll bet you'll find that it or the servicing rights are assignable.

While your paperwork looks OK, your premise appears to be faulty.

gldskr

[Sharing Lights]

On FDCPA, browse here:
http://www.myfairdebt.com/forum/index.php

You would get many answers.

Gldskr provides quality answers and straight to the point.
Ask - you shall receive.


I think you can try this approach:
ask members one precise question first.


Then, a response may lead you to the center
of the issue.


Keep in mind that many firms, lawyers, judges
break laws so extensively that they could not
care less of the FDCPA and other violations unless
one finds a way to place so much
leverage on the court's docket
that even they think twice.


Do not put to much faith in the letter of the law.

It seems that http://jurisdictionary.com may prepare
you for that, as well as many posts here.

But not all are organized yet.

...............

[jmartinezclark]

After much research on my claim that the creditor's attorney violated Federal law under the Fair Debt Collections Protection Act (FDCPA) by not sending me a debt verification notice before initiating their lawsuit against me, I have found that according to the FSRRA 2006, the filing of a complaint does not constitute an
initial communication for purposes of the validation notices required by section 809 of the FDCPA (§1692g). Thus, collection attorneys who merely litigate collection cases are exempted from the requirements of § 1692g.

S. 2856 [109th]: Financial Services Regulatory Relief Act of 2006
http://www.govtrack.us/congress/bill...bill=s109-2856

SEC. 802. OTHER AMENDMENTS.

(a) Legal Pleadings- Section 809 of the Fair Debt Collection Practices Act (15 U.S.C. 1692g) is amended by adding at the end the following new subsection:

`(d) Legal Pleadings- A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).'.

(b) Notice Provisions- Section 809 of the Fair Debt Collection Practices Act (15 U.S.C. 1692g) is amended by adding after subsection (d) (as added by subsection (a) of this section) the following new subsection:

`(e) Notice Provisions- The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by the Internal Revenue Code of 1986, title V of Gramm-Leach-Bliley Act, or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section.'.

(c) Establishment of Right To Collect Within the First 30 Days- Section 809(b) of the Fair Debt Collection Practices Act (15 U.S.C. 1692g(b)) is amended by adding at the end the following new sentences: `Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.'.

So ... apparently I have no defense on this case since this was my strongest argument to dismiss the lawsuit. :-(

[Sharing Lights]

Just to make sure:
is there a phrase - "we are debt collectors"
on the lawyers' documents or they, strictly,
represent their client?

................

[jmartinezclark]

NO...there is no phrase "we are debt collectors" on the lawyers' documents; they, strictly, represent their client.

[B Rookard]

Originally Posted by jmartinezclark

NO...there is no phrase "we are debt collectors" on the lawyers' documents; they, strictly, represent their client.

Of course, just thinking about what you are trying to do from a moral perspective will tell you why the law wouldn't let you succeed ... you are (1) keeping a car that you don't own, after (2) failing to pay the lease.

Would you like someone to keep your property that you leased to them and they never paid you on the lease?

Think about what you're trying to suggest you should be able to get away with ... that should convince you.

[Sharing Lights]

Post # 1 reveals the following allegation
by the D ( Defendant: )

Such is incomplete, and no one may form a verdict
or opinion based on inconclusive statement or allegation.

[D's response is optional]

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