Credit Card Default- No Standing, No Ability To Collect!!!!!!!

Originally posted by lostviking
reply to post by 4nsicphd

 

The mortgages were void because the note and mortgage were separated when the loan was securitized. With credit cards, I would believe that the creditor would need to demonstrate that they actually loaned the money from their balance sheet, and never sold off the loan.

edit on 14-1-2011 by lostviking because: (no reason given)

It depends. Who's sueing, the original credit card company or the assignee?
And here's what you might be getting yourself into. Every state has a discovery provision for "Requests for Admission." along the lines of F.R.C.P. 36. See www.law.cornell.edu...
The plaintiff submits these requests that you admit:
1.) You bought $x.xx of goods or services using credit card x;
2.) Under a credit card processing agreement, we paid the merchants of these purchases $.xx.
3.) You didn't pay us.

If you deny 1 or 2, they hire accountants at $150.00 per hour to go through years of records to prove that you did buy the stuff and that transfers were made to the processing agent. And you get to pay every penny of the cost of doing that under the rules covering failures to admit. Be careful what you wish for.

reply to post by MMPI2

I keep waiting for citi or chase or some other megalithic creditor to try to move these defaults into the criminal courts...charging fraud, theft, conversion of property, etc...

They can not because the contracts are not valid to begin with. There is no "Consideration" ("the thing exchanged") an essential element part of a contract. A friend wooped Bank America's rear in court in New York on just that premise. (He studied law and represented himself)

There is precedence:

Defendant Jerome Daly opposed the bank's foreclosure on his $14,000 home mortgage loan on the ground that there was no consideration for the loan. "Consideration" ("the thing exchanged") is an essential element of a contract. Daly, an attorney representing himself, argued that the bank had put up no real money for his loan. The courtroom proceedings were recorded by Associate Justice Bill Drexler, whose chief role, he said, was to keep order in a highly charged courtroom where the attorneys were threatening a fist fight. Drexler hadn't given much credence to the theory of the defense, until Mr. Morgan, the bank's president, took the stand. To everyone's surprise, Morgan admitted that the bank routinely created money "out of thin air" for its loans, and that this was standard banking practice. "It sounds like fraud to me," intoned Presiding Justice Martin Mahoney amid nods from the jurors. In his court memorandum, Justice Mahoney stated:

Plaintiff admitted that it, in combination with the Federal Reserve Bank of Minneapolis, . . . did create the entire $14,000.00 in money and credit upon its own books by bookkeeping entry. That this was the consideration used to support the Note dated May 8, 1964 and the Mortgage of the same date. The money and credit first came into existence when they created it. Mr. Morgan admitted that no United States Law or Statute existed which gave him the right to do this. A lawful consideration must exist and be tendered to support the Note.

The court rejected the bank's claim for foreclosure, and the defendant kept his house. To Daly, the implications were enormous. If bankers were indeed extending credit without consideration – without backing their loans with money they actually had in their vaults and were entitled to lend – a decision declaring their loans void could topple the power base of the world.

Needless to say, however, the decision failed to change prevailing practice, although it was never overruled. It was heard in a Justice of the Peace Court, an autonomous court system dating back to those frontier days when defendants had trouble traveling to big cities to respond to summonses. In that system (which has now been phased out), judges and courts were pretty much on their own. Justice Mahoney, who was not dependent on campaign financing or hamstrung by precedent, went so far as to threaten to prosecute and expose the bank. He died less than six months after the trial, in a mysterious accident that appeared to involve poisoning.4 Since that time, a number of defendants have attempted to avoid loan defaults using the defense Daly raised; but they have met with only limited success. As one judge said off the record:

If I let you do that – you and everyone else – it would bring the whole system down. . . . I cannot let you go behind the bar of the bank. . . . We are not going behind that curtain!

www.webofdebt.com...

You want a trial with a jury for this type of court action.

I love this kind of stuff, I would like to add a thread "What if I told You" www.abovetopsecret.com... Where it has videos, and pdf's to look into all of the details from the U.S, Canada, and the U,K.

Peace, NRE.

reply to post by starshift


If the debt was discharged in a Chapter 7, you owe nothing. They can try to collect, but don't even respond. On your credit report it should say "included in Chapter 7". They can't report negative entries once discharged in BK.

File another LLC and go on.

reply to post by 4nsicphd


Good point. I am researching strategy, out of interest. I am current on all of my loans. Any idea how to negotiate a settlement while current, so your credit doesn't suffer?

reply to post by 4nsicphd


At the inception of a securitization of credit card receivables, the bank as the seller selects receivables arising from specific accounts and sells the entire balance of these receivables to the securitization vehicle. The transfer of credit card receivables represents a sale (if the criteria are met for sales treatment under FAS 140) of an undivided interest in the receivables, not the accounts. Ownership of the accounts is retained by the credit card issuing bank.


Is that not clear? The lender no longer owns the debt.

A lender cannot choose how to treat these transactions. It is all outlined in the link I provided. They SELL the debt, but retain the empty account. A lender might try to use fancy language in their agreement, but the effect is the same. A sale occurred. Investors in the Trust don't buy thin air. They buy debt.

The lender has no standing to sue for the debt.

They have standing to sue for the account. An empty account


Since they SELL the debt, they MUST prove repurchase in order to have standing. Even then, they have unclean hands, and their standing is greatly diminished. What is a charged off account worth on the junk market? 5 cents on the dollar?

If you can prove the lender has repurchased a single account from the Trust, they might have standing.

Those arrogant idiots on Wall Street didn't bother to set up a process for proving ownership of individual accounts after the sale to the Trust. There was never going to be a need to deal with the Trust on an individual card account level.

Heck, they didn't think to do it with $500,000 SECURED mortgages, which had SIGNED and notarized contracts. Why would they bother with $50,000 UNSECURED accounts?

The card lenders can't prove anything. They depend on you not knowing that, to intimidate you into paying an unjust debt.

Originally posted by lostviking
reply to post by starshift

 

If the debt was discharged in a Chapter 7, you owe nothing. They can try to collect, but don't even respond. On your credit report it should say "included in Chapter 7". They can't report negative entries once discharged in BK.

File another LLC and go on.

That may be true if the creditor received notice of his individual bankruptcy. If not, then the debt is not discharged, unfortunately.

Originally posted by lostviking
reply to post by 4nsicphd

 

Good point. I am researching strategy, out of interest. I am current on all of my loans. Any idea how to negotiate a settlement while current, so your credit doesn't suffer?

OK, here's an idea, but I have retired from practicing law, and this is not legal advice. Put together a list of all creditors. Then do a real, accurate financial statement and sign it. I'm assuming you owe more than you are worth. Calculate the ratio of debts to assets. Let's say you owe $100,000 and have assets, at a liquidation value, of $50,000. That's a 50% ratio. Write a letter to each creditor with a copy of the financial statement, and a copy of a Chapter 11 Bankruptcy petition you have filled out. You can get the forms at any good sized office supply store. The letter should say something on the order of, "I've tried but I just can't make it. Here's a financial statement. I will pay you 55% of what I owe which is more than what you'll get if I file the attached Petition in Bankruptcy."
But remember, this advice is coming from someone who quit doing law and went back to get a PhD in Physical Chemistry and is now a forensic scientist, not a lawyer.

Originally posted by lostviking
reply to post by SonOfTheLawOfOne

 

Great post SOTLOO! How about having the original debt removed from your credit report because they are no longer the lender because they sold off your debt into a securitized pool?

Thanks, and my pleasure... I'm glad to help those in need.

As far as having the debt removed from your credit because they are no longer the lender, that is what happens after they sell off to a collection agency. Unfortunately, the way it works is a little silly....

If the original debtor reported you to the credit reporting agencies, you would have to wait to get it removed until AFTER the collection agency is removed. The reason is because then it becomes the responsibility of the credit reporting agency to accurately and fairly report the debt. If you ask them to show proof that the reporting agency is accurate, and they can't, they are obligated to remove the item. The only way this happens is if the original debtor has destroyed the original records, then the credit reporting agency can't validate it.

The law says the credit reporting agency must report EVERYTHING accurately, so even the amounts have to be confirmed. If they are reporting that you owe $100 and you owe $99 and they can't prove it is $100, they have to remove it. It's a slippery slope though because the credit reporting agency will almost always tell you that "at the time the original debtor reported the item, it was accurate", even though they can't show proof of that. Most of the time, if you can argue the point well enough, you can win.

They will stonewall you, threaten you, probably spit on you if they could, but you have rights that are protected, and as another poster pointed out, nobody knows what those rights are because they bury them in places where only people who get really pissed off will find them. The idea is to intimidate you with verbiage that you can't understand so you'll give up before it's even a fight. I can assure you that common sense and Occam's Razor will almost always prevail in a court, especially if you get a jury of your peers.

The problem you asked about with packaging up the debt/credit into securities is showing proof of that, which would get very costly and impractical if you were to try to use that argument. Not only that, but there is a long way from plastic money to tangible land and property, so the packaging of deeds is a little different. In the case of credit, you would have to show evidence that YOUR debt was packaged into a specific security, and then show something that you signed that says you didn't agree to that, or something that you signed that specifically says that can NOT do that. I've found that it's easier to do what I mentioned here. Oh, and this will NOT work with student loans, not ever.... you will always have to pay them or the government will come take the money from you without your permission.

~Namaste

reply to post by 4nsicphd

Great idea 4nsicphd......good luck in your new vocation.

reply to post by 4nsicphd

If it was a business debt, and you filed a personal bankruptcy, it depends if you got the loan under your social security number or EIN number. If it was a personal debt, even in the name of your business, it is dischargable. Look at your discharge papers.

reply to post by SonOfTheLawOfOne
How does the government collect on student loans? The were securitized too.

If the government guarantee was waived in whole or in part, which I am sure is the case, then the rationale for non-dischargeability disappears. So I am suggesting that the assumption that the student loan is non-dischargeable should be challenged based upon the individual facts of your student loan. If it was securitized and it most likely was, then the party seeking to enforce the debt must prove that the government guarantee still applies. Otherwise it should be treated like any other unsecured debt.

Commentary from Neil Garfield, of Livinglies:

Editor’s comment: Fact: Nearly all finance was securitized and still is. Ron Lieber talks below about efforts to change the law so student loans could be dischargeable in bankruptcy. Good idea. But I’m not so sure it is necessary to change the law. The entire student loan structure, as President Obama has pointed out, is just plain wrong. Somehow loans that were provided by government anyway became guaranteed by government and then actually “funded” by banks. The banks could charge whatever interest they wanted, which frequently rose to usurious levels and if the student didn’t pay, then the government did, which is the way it was before they let private banks into the mix. The effect was to burden students with loans that were impossible to pay off given the economic context of unemployment, underemployment and stagnant median income. So the prospective students frequently put off the education or avoided it entirely because the economics did not make sense. Those that did take the plunge are “underwater” just like U.S. Homeowners all because of financial chicanery. To top things off they made student loans —- private student loans — non-dischargeable in bankruptcy. The theory was that since the government was doing students the favor of providing a guarantee of the loans, the loans would be more available, thus increasing liquidity in the student loan market. Since the net effect was a gusher of money pouring into private banks from the pockets of students, marketing efforts (including payoffs in student adviser facilities on campus) did in fact lure students into these ridiculous arrangements. Enter securitization: Since the private bank was guaranteed against loss, this provided the rationale for this lock-up system enslaving students before their careers even begin. But virtually ALL private banks were simply paid a fee for fronting the marketing of the loan which was funded with investor money because the loans were securitized before they were ever granted and thus the money and the risk was already resolved before the “underwriting” of the loan. Like the mortgage loans, underwriting standards were dropped completely in favor of parameters set by Wall Street. The appearance of underwriting was preserved, but like mortgages, not very well. Like the mortgages, credit enhancements were added to the mix adding co-obligors right in the pooling and servicing agreements and assignments and assumption agreements, including insurance, credit default swaps etc. Thus the “lender” that originating the Loan was what? A pretender lender whoa advanced no funds or capital of their own. Since the originating lender made the election of laying off the risk into slices and pieces and credit enhancements, they, in my opinion, waived the government guarantee. If the government guarantee was waived in whole or in part, which I am sure is the case, then the rationale for non-dischargeability disappears. So I am suggesting that the assumption that the student loan is non-dischargeable should be challenged based upon the individual facts of your student loan. If it was securitized and it most likely was, then the party seeking to enforce the debt must prove that the government guarantee still applies. Otherwise it should be treated like any other unsecured debt. ———————————————— June 4, 2010 Student Debt and a Push for Fairness By RON LIEBER If you run up big credit card bills buying a new home theater system and can’t pay it off after a few years, bankruptcy judges can get rid of the debt. They may even erase loans from a casino. But if you borrow money to get an education and can’t afford the loan payments after a few years of underemployment, that’s another matter entirely. It’s nearly impossible to get rid of the debt in bankruptcy court, even if it’s a private loan from for-profit lenders like Citibank or the student loan specialist Sallie Mae. This part of the bankruptcy law is little known outside education circles, but ever since it went into effect in 2005, it’s inspired shock and often rage among young adults who got in over their heads. Today, they find themselves in the same category as people who can’t discharge child support payments or criminal fines. Now, even Sallie Mae, tired of being a punching bag for consumer advocates and hoping to avoid changes that would hurt its business too severely, has agreed that the law needs alteration. Bills in the Senate and House of Representatives would make the rules for private loans less strict, now that Congress has finished the job of getting banks out of the business of originating federal student loans. With this latest initiative, however, lawmakers face a question that’s less about banking than it is about social policy or political calculation. At a time when voters are furious at their neighbors for getting themselves into mortgage trouble, do legislators really want to change the bankruptcy laws so that even more people can walk away from their debts? There are two main types of student loans. Under the proposed changes, borrowers would remain on the hook for federal loans, like Stafford and Perkins loans, as they have been for many years. To most people, this seems fair because the federal government (and ultimately taxpayers) stand behind these loans. There are also many payment plans and even forgiveness programs for some borrowers. In 2005, however, Congress made the bankruptcy rules the same for the second kind of debt, private loans underwritten by profit-making banks. These have no government guarantees and come with fewer repayment options. Undergraduates can also borrow much more than they can with federal loans, making trouble more likely. Destitute borrowers can still discharge student loan debt if they experience “undue hardship.” But that condition is nearly impossible to prove, absent a severe disability. Meanwhile, the volume of private loans, which are most popular among students attending profit-making schools, has grown rapidly in the last two decades as students have tried to close the gap between the rising price of tuition and what they can afford. In the 2007-8 school year, the latest period for which good data is available, about one third of all recipients of bachelor’s degrees had used a private loan at some point before they graduated, according to College Board research. Tightening credit caused total private loan volume to fall by about half to roughly $11 billion in the 2008-9 school year, according to the College Board. Tim Ranzetta, founder of Student Lending Analytics, figures it fell an additional 24 percent this last academic year, though his estimate doesn’t include some state-based nonprofit lenders. There is no strong evidence that young adults would line up at bankruptcy court in the event of a change. That gives Democrats and university groups hope that Congress could succeed in making the laws less strict. In Congressional hearings on the efforts to change the rule, last year and then in April, no lender was present to make the case for the status quo. Instead, it fell to lawyers and financiers who work for them. They made the following points. BANKRUPTCIES WOULD RISE At the April hearing, John Hupalo, managing director for student loans at Samuel A. Ramirez and Company, made the most obvious case against any change. “With no assets to lose, an education in hand, why not discharge the loan without ever making a payment to the lender?” he said. Once you set aside this questionable presumption of mendacity among the young, there are actually plenty of practical reasons why not. “People don’t like to go through bankruptcy,” said Representative Steve Cohen, Democrat of Tennessee, who introduced the House bill that would change the rules. “It’s not like going to get a milkshake.” Andy Winchell, a bankruptcy lawyer in Summit, N.J., likens student loan debt to tattoos: They’re easy to get, people tend to get them when they’re young, and they’re awfully hard to get rid of. And he would remind clients of a couple of things. First, you generally can’t make another bankruptcy filing and discharge more debt for many years. So if you, in essence, cry wolf with a filing to erase your student loans, you’ll be in a real bind if you then face crushing medical debt two years later. Then there’s the damage to your credit report. While it doesn’t remain there forever, the blemish can have an enormous impact on young people trying to establish themselves with an employer or buy a home. Finally, you’re going to have to persuade a lawyer to take your case. And if it seems that you’re simply shirking your obligations, many lawyers will kick you out of their offices. “It’s not easy to find a dishonest bankruptcy attorney who is going to risk their license to practice law on a case they don’t believe in,” Mr. Winchell said. Sallie Mae can live with a change, so long as there’s a waiting period before anyone can try to discharge the debts. “Sallie Mae continues to support reform that would allow federal and private student loans to be dischargeable in bankruptcy for those who have made a good-faith effort to repay their student loans over a five-to-seven-year period and still experience financial difficulty,” the company said in a prepared statement. While there is no waiting period in either of the current bills, Mr. Cohen said he could live with one if that’s what it took to get a bill through Congress. “Philosophy and policy can get you on the Rachel Maddow show, but what you want to do is pass legislation and affect people’s lives,” he said, referring to the host of an MSNBC news program. BANKS WOULDN’T LEND ANYMORE Private student loans are an unusual line of business, given that lenders hand over money to students who might not finish their studies and have uncertain earning prospects even if they do get a degree. “Borrowers are not creditworthy to begin with, almost by definition,” Mr. Hupalo said in an interview this week. But banks that have stayed in the business (and others, like credit unions, that have entered recently) have made adjustments that will probably protect them far more than any alteration in the bankruptcy laws will hurt. For instance, it’s become much harder to get many private loans without a co-signer. That means lenders have two adults on the hook for repayment instead of just one. BORROWING COSTS WOULD RISE They probably would rise a bit, at least at first as lenders assume the worst (especially if Congress applies any change to outstanding loans instead of limiting it to future ones). But this might not be such a bad thing. Private loans exist because the cost of college is often so much higher than what undergraduates can borrow through federal loans, which have annual limits. Some lenders may be predatory and many borrowers are irresponsible, but this debate would be much less loud if tuition were not rising so quickly. So if loans cost more and lenders underwrite fewer of them, people will have less money to spend on their education. Some fly-by-night profit-making schools might cease to exist, and all but the most popular private nonprofit universities might finally be forced to reckon with their costs and course offerings. Prices might come down. And young adults just getting started in life might be less likely to face a nasty choice between decades of oppressive debt payments and visiting a bankruptcy judge before starting an entry-level job. Spread the word StumbleUpon Digg Reddit Share

reply to post by lostviking

In fact, because the student loans are securitized, the government makes money when a student defaults.

The Wall Street Journal ran an interesting piece last week suggesting the federal government collects a hefty portion of defaulted student loans. But Collinge – who was quoted in the story – argues that it didn’t quite paint the real picture. “After paying the companies that actually collect the loans and other costs, the U.S. Department of Education expects to recover 85% of defaulted federal loan dollars based on current value,” says the WSJ, noting that the percentage of student loan collections are relatively huge compared to collections on other defaulted consumer credit. Banks, for example, might retrieve 10 cents for every dollar from past due credit cards. But what the article doesn’t explain, Collinge tells me, is that the government is collecting 85% on hugely inflated loans. “The current value of the default portfolio includes principal plus interest at time of default, plus a tremendous amount of interest that accrued after default.” And therein lies some possible profit and perhaps a serious, twisted incentive to offer students six-figure loans they will most likely never be able to repay. ”Given a current defaulted loan portfolio of approximately $60 billion, the amount of revenue this represents to the Department of education is in the tens of billions of dollars,” writes Collinge in his self-published report.

Government Profits

Here is a letter I found online that people have used successfully to dispute credit card debt:

Non-Negotiable, Non-Transferable

NOTICE OF DISPUTE OF ALLEGED DEBT
(Insert Collector’s Name Here)

Applicable to All Successors and/or Assigns
_____________________________________________________
Notice to the agent is notice to the principal and notice to the principal is notice to the agent

Date: Monday, January 1, 2010

From: (Insert Your Name Here)

To: (Insert Collector’s Name)
P.O. Box XXXX
City, ST ZIP

Re: In the matter of: Debt collection letter dated 12/25/2009; INSERT NAME OF CREDITOR, (“alleged creditor”);
Account # XXXXXXXXXXXXXX

Sent by: U.S. Postal Service REGISTERED MAIL

To Whom It May Concern,

Please take notice as follows:

1. Authority: That this Notice of Dispute of Alleged Debt (“Notice of Dispute”) is sent to you pursuant to Title 15, United States Code Annotated (“U.S.C.A”) § 1692 et seq, known as the Fair Debt Collection Practices Act (“FDCPA”), the legislative purpose of which is to protect consumers from abusive, deceptive, and unfair debt collection practices by debt collectors;

2. Your debt collection letter: That I have received and read your debt collection letter referenced above, identifying yourself as debt collectors,(Exhibit A; copy of debt collection letter), wherein you allege that I have a debt obligation to the alleged creditor referenced above;

3. Purpose of this notice: That the purpose of this Notice of Dispute is to assert my rights in debt collection under FDCPA § 1692(g)(b) without delay and within thirty (30) days of my receipt of your aforesaid debt collection letter;

4. Alleged debt disputed: That I hereby dispute the validity of the alleged debt in its entirety;

5. Verified documentary evidence requested: That I hereby request you provide me with the following verified (sworn to by affidavit) documentary evidence in substantiation of the alleged debt claimed by the alleged creditor referenced in your debt collection letter (see Exhibit A);

(a) Proof of authority: Please provide me with verified (sworn to by affidavit) proof of your authority to represent the alleged creditor in this instant matter;

(b) Real party in interest: Please verify who the real party in interest is in this debt collection matter;

(c) Alleged original creditor. Please provide me with the name and address of the alleged original creditor if different from the alleged creditor identified in your above mentioned debt collection letter.

(d) Alleged original agreement: Please provide me with a verified (sworn to by affidavit) copy, both front and back, of the alleged original agreement and any other alleged original security instruments in their entirety, including the allonge , affixed to the original alleged agreement for endorsements. Said affidavit is to be sworn to be true, correct, complete, and not misleading, by a properly identified and authorized officer of the alleged creditor, who states that he or she has personal knowledge (Federal Rules of Evidence [“FRE”] Rule 602) of the validity of said alleged original document(s).

(i) Inspection of document(s). Please provide me with the date, time, and place convenient to (CITY, STATE), that I can personally inspect the above alleged original agreement and any other alleged original security instruments in their entirety relevant to the above alleged debt.

(ii) Custodian of document(s). Please provide me with the name, title, and address of the natural person custodian of the alleged original agreement and of any other alleged original security instruments.

(iii) Address of physical location of document(s). Please provide me with the address of the physical location of the alleged original agreement and any other alleged original security instruments if different from “(ii)” above.

(e) Holder in due course. Please provide me with verified (sworn to by affidavit) evidence that the alleged creditor is the secured party in the instant matter, i.e., holder in due course, and has a perfected security interest in the aforesaid alleged agreement and alleged debt;

(f) Proof of Value Given: Please provide me with verified (sworn to by affidavit) copies, both front and back, of all documents and records with respect to the aforesaid alleged agreement and alleged debt from the beginning, including but not limited to, any and all lender issued cancelled certified checks, cashiers’ checks, money equivalents or similar instruments, identified as or evidencing assets provided by the alleged creditor and/or the alleged original creditor to me and indorsed by me;

(g) Deposit slip and cancelled check: Please provide me with a verified (sworn to by affidavit) copy of the deposit slip for the deposit of my alleged agreement in its entirety by the alleged creditor associated with the above alleged account/file number, and a verified copy of the cancelled check issued by the alleged creditor as payor in payment for my alleged agreement in its entirety and any other alleged related security instruments;

(h) Affidavit of debt & damages: Please provide me with an affidavit of debt and damages incurred, sworn to be true, correct, complete, and not misleading, by a properly identified and authorized officer of the alleged creditor, hereinafter “affiant,” upon his or her personal knowledge (FRE Rule 602) stating:

(i) that the alleged creditor is, indeed, the secured party and holder in due course of the aforesaid alleged original agreement in issue and has an enforceable perfected security interest therein pursuant to and in compliance with the Uniform Commercial Code (“U.C.C.”) Section 9-203, Section 9-204(1), and Section 9-305, or equivalent sections of the Commercial Code of (INSERT YOUR STATE HERE);

(ii) that the alleged creditor provided consideration to me, the alleged debtor, from the assets they had on hand before the alleged credit was made, and incurred a financial loss under the full and complete alleged original agreement and alleged debt, and state each and every loss that the alleged creditor has incurred to date under the alleged debt in issue; and

(iii) that affiant has personal knowledge (FRE Rule 602) regarding the facts of the alleged debt and is the original custodian of the books of entry, or directly supervises said original custodian of the records.

(i) Bookkeeping journal / account ledger entries: Please provide me with a verified (sworn to by affidavit) copy of the complete set of original bookkeeping journal / account ledger entries associated with my alleged agreement and alleged file/account number using Generally Accepted Accounting Principles per 12 U.S.C. § 1831n, showing all debits and credits and identifying the source(s) and amount of the credit funds/assets; Note: The verifying affidavit of journal / account ledger bookkeeping entries is to be completed by the original custodian of the books and records, sworn to be true, correct, complete, and not misleading. Further, said affidavit shall contain positive identification of the custodian, and state that he or she has personal knowledge (FRE Rule 602) of said entries.

(k) Assignment contract: If applicable, please provide me with verified (sworn to by affidavit) proof of an assignment contract in its entirety of the alleged original agreement and the alleged debt in issue from an alleged original creditor, as assignor, to the alleged creditor, as assignee.
(l) Proof of authority: Please provide me with a verified (sworn to by affidavit) copy of the contract your firm has with the alleged original creditor which authorizes your firm to engage in collection activities on their behalf against the above alleged account, and naming you as an authorized collection agent / claims adjuster.

(m) Certification of authority: Please provide me with a verified (sworn to by affidavit) certificate of authority from the State of XXXXXXXX authorizing your company to transact business in the state of XXXXXXXXXXX and a photocopy of your State Department of Commerce and Insurance certificate.

(n) Form 1035: Please provide me with Department of the Treasury Form 1035 Custodian of Documents attached or associated with my alleged original agreement and /or the name and address of said custodian per “(b)(ii)” above;

(o) Form 1099: Please provide me with Department of the Treasury Form 1099 Original Issue Discount for each year the alleged creditor was holder in possession of the alleged original agreement;

(p) Vendor sales slips/vouchers: Please provide me with verified (sworn to by affidavit) copies of all original sales slips/vouchers from all alleged vendors covering all alleged transactions in the above referenced file/account from its inception to date.

Note: This Notice of Dispute is not a request for confirmation that you have mere photocopies of alleged documents. I am requesting ONLY VERIFIED DOCUMENTARY EVIDENCE in validation of the alleged debt pursuant to the FDCPA.

6. Warning: That all your communications and omissions will be made a part of and incorporated into any litigation arising from this matter.

7. Time is of the essence; reply deadline: That time is of the essence, therefore, I extend to you, RightWay, thirty (30) days from the date of your receipt of this Notice of Dispute to perform in compliance with verifying the alleged debt as requested above per FDCPA mandates. I will consider a reasonable extension of time–only for the production of verified documents–should you need more than the thirty (30) days if you request it in writing to the address below. Your failure to perform as herein requested will show bad faith and will establish the fact that you are using abusive, deceptive, false, and unfair collection tactics against me as a consumer. Furthermore, if you remain silent to this request or are unable to verify the debt as above, the legal concepts of estoppel by acquiescence and tacit admission will come into play whereby the alleged debt will be admitted invalid, a nullity, and unenforceable, and thereby repudiated in its entirety ab initio . In the interim, you are prohibited from any contact with me, the undersigned, except in writing, and only in regards to the matters herein expressed. All debt collection activity– including litigation– is to cease per FDCPA § 1692g(b) “… the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt…”

8. Mandatory reply to undersigned: That all of the above demanded verified evidence, sworn to by a competent witness per FRE Rule 602, should be sent to me, (INSERT YOUR NAME), the undersigned, as indicated at the address below within the above-mentioned thirty (30) days from your receipt of this Notice of Dispute. Please do not send any reply correspondence to me at any other mail location except as follows:

Send to: YOUR NAME
YOUR ADDRESS
CITY, ST xxxxx

9. Exhibits: All exhibits attached to this Notice of Dispute are incorporated by reference herein.

Signed with reservation of all rights,

By: ________________________________________

INSERT YOUR NAME

Enclosures: Exhibit A – Copy of xx/xx/20xx debt collection letter

reply to post by lostviking

SBA loans might too be dischargeable.
Fed Action on Student loans, Auto Loans, Consumer Loans and small business loans
Posted on November 30, 2008 by Neil Garfield

As we have repeatedly said publicly and privately, the securitization process extended throughout the credit world. Hardly anything was not packaged in some securitized zone. Thus most assumptions about the liability on such debt are wrong as to whether there is any outstanding balance, who owns the loan, etc.

Of particular interest is the student loan debt. We have researched this. It appears that the government guarantee does not necessarily run with the note. In fact, quite the contrary, once the lender is paid in full (as they always are in securitized loans) there is no guarantee. This is important because it is the presence of the government guarantee that is the basis for student loans being non dischargeable in bankruptcy. It appears to us that auto and student loans can be both unsecured and fully dischargeable in bankruptcy. The same might hold true for small business loans.

ecuritization in a nutshell: what the banks did with mortgages, they also did with credit cards. Pooled them and sold them off to investors. All the credit card companies are doing is collecting money that they then turn over to the investors.

It's a very complicated subject, but I think this may be the issue that will break their backs, if pleaded correctly. Look at the Securities and Exchange Commission website, www.sec.gov, and search for your creditor. Look at the prospectus, which will be lengthy. They all did it. They lost NO money when you stopped paying them.

reply to post by lostviking


That letter is almost exactly what I have used countless times.... it's very effective and contains everything that you'd need to dispute a claim.

Very good find!

~Namaste

reply to post by lostviking

Oops. I said Chapter 11 when I meant to say 7 and it's too late to edit.

reply to post by 4nsicphd


Chapter 11 is a business discharge. If it was discharged through the Chapter 11 it is uncollectable. The debt can be sold to third party collectors, but they have no legal standing. You can either not reply, or send them a cease and desist letter that says this was discharged in your Chapter 11, and if they continue to harass you that you will take legal action. (there is lots of info on the internet how to to stop collection calls/mail).

Originally posted by lostviking
reply to post by 4nsicphd

 

Chapter 11 is a business discharge. If it was discharged through the Chapter 11 it is uncollectable. The debt can be sold to third party collectors, but they have no legal standing. You can either not reply, or send them a cease and desist letter that says this was discharged in your Chapter 11, and if they continue to harass you that you will take legal action. (there is lots of info on the internet how to to stop collection calls/mail).

No, Chapter 11 is a discharge after reorganization. It is available to all entities; individuals, corporations, partnerships, LLCs, trusts, estates. It simply means that the entity reorganizes its affairs in order to be able to pay some or all of its obligations. My point is that if a creditor does not receive notice of the filing of a bankruptcy proceeding, the obligation to them is not discharged, regardless of the chapter under which it was filed.