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Slide 1: How to Legally Beat Debt Collectors The legal secrets that nobody will tell you…not even attorneys. Strategies to win almost any debt collection lawsuit (Foreclosure, credit card, etc). Julio Martinez-Clark
Slide 2: 1 How To Legally Beat Debt Collectors Disclaimer All this book offers is a personal opinion. If you are going to go to court and are unsure of yourself, or at any time have questions about the law, seek an attorney's advice and representation, and don't believe for one minute that the law matters in America's courts. Nothing you will see or receive is intended as legal advice or as counseling over legal matters. All materials are intended to entertain by educating, and by illustrating certain approaches to interpreting legislation to which we all are subject. Julio Martinez-Clark has never claimed to be a licensed attorney. The sole description of what he offers is best termed "opinion" offered only as information accumulated, examined and deemed important. The contents of this book are for educational and instructive purposes only; readers are always encouraged to seek the advice of legal counsel in their geographical area. Responses to submitted questions are generalized and may not be specific to the reader's state or area. You may find an attorney specializing in consumer rights at http://www.naca.net or consult your local bar association. THIS IS A PREVIEW OF THIS BOOK. TO DOWNLOAD YOUR FREE COPY, PLEASE VISIT www.Beat-Debt-Collectors.com Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 3: 2 How To Legally Beat Debt Collectors Table of Contents Disclaimer_____________________________________________________________ 1 1. Introduction _________________________________________________________ 5 2. The Debt Collection Industry ___________________________________________ 8 3. Secrets of the Legal Industry ___________________________________________ 17 3.1 Twenty-Two Reasons To Vacate A Void Judgment ___________________________ 20 3.2 Summary Of The Law Of Voids ___________________________________________ 23 3.2.1 How To Vacate a Void Judgment ______________________________________________ 24 4. How to Win_________________________________________________________ 49 4.1 Arbitration ____________________________________________________________ 49 4.2 Overview Of The Fair Debt Collections Practices Act _________________________ 65 4.3 To Complete Foreclosure, Is The Original Note Required? You Be The Judge_____ 74 4.4 Are All Contracts Assignable? What About Contracts That “Die With The Individual” Or Go To A Question Of The Credit Of The Parties? You Be The Judge. _ 76 4.5 How To Beat An Old Credit Card Debt _____________________________________ 79 4.6 Phone Scripts To Use With Third Party Collectors ___________________________ 80 4.7 How To Respond To Debt Collections Letters ________________________________ 81 4.7.1 Dispute letter to a debt collector (credit card, mortgage or other loan) __________________ 82 4.7.3 Dispute letter to a debt collector (attempting to collect a bill for services) _______________ 85 4.7.4 Dispute letter to a debt collector (attempting to domesticate a foreign judgment)__________ 87 4.8 Defense Against Mortgage Foreclosure _____________________________________ 89 4.9 Respond Their Legal Complaint When They Sue You ___ Error! Bookmark not defined. 4.10 Respont to their Counterattack _____________________ Error! Bookmark not defined. 4.11 Launch Discovery ________________________________ Error! Bookmark not defined. 4.12. File Your Motion for Summary Judgment Against Them______ Error! Bookmark not defined. 4.13 How to Deal With Magistrate Judges ________________ Error! Bookmark not defined. 4.14 How To Deal When Faced with a Hearing ____________ Error! Bookmark not defined. 4.15 Discovery On You ________________________________ Error! Bookmark not defined. 4.16 Ask for Discovery ________________________________ Error! Bookmark not defined. 4.17 Motion to Compel ________________________________ Error! Bookmark not defined. 4.18 Deposition ______________________________________ Error! Bookmark not defined. 4.19 Responding to a Motion for Summary Judgment ______ Error! Bookmark not defined. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 4: 3 How To Legally Beat Debt Collectors 4.20 When In Court __________________________________ Error! Bookmark not defined. 4.20.1 First and likely scenario: no witness – just attorney_________ Error! Bookmark not defined. 4.20.2 Second scenario: witness in appearance – happens only about 1% of the time. _______ Error! Bookmark not defined. 4.21 File Your Motion for Judgment By Default ________________ Error! Bookmark not defined. 4.22 Your Writ Of Mandamus ______________________________ Error! Bookmark not defined. 4.3 Civil R.I.C.O. – The ultimate weapon_________________ Error! Bookmark not defined. 5. Resources _____________________________________Error! Bookmark not defined. 6. Recommended Additional Material_________________Error! Bookmark not defined. 7. Appendix A ____________________________________Error! Bookmark not defined. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 5: 4 How To Legally Beat Debt Collectors Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 6: 5 How To Legally Beat Debt Collectors 1. Introduction The inspiration for this book started after my financial life was ruined due to the collapse of the residential real estate market in 2006. In 2003 I started investing in real estate purchasing, renovating and selling foreclosure homes in the Central Florida area. Between 2003 and 2006 my partner and I purchased, renovated and sold about 50 homes, and I was involved in a few commercial real estate ventures. My educational background is in Electric Engineering with a MBA (Master in Business Administration). As Albert Einstein said “Education is what remains after one has forgotten everything he learned in school.” Academic education teaches you how to think critically and how to analyze and put together information from different sources. When I started investing in foreclosure homes I knew nothing about the real estate industry; I had to learn a new profession and every deal I participated in taught me something new. Real estate is an interesting industry because it involves a product that we all need to live in a modern society: housing and other forms of human dwellings and structures. By its nature, real estate is intrinsically related to the law since it is related to important human activities such as marriages, divorces, law suits/judgments, death, bankruptcy, etc. In order for me to be a skillful and successful real estate investor, I had to learn about the above-mentioned topics. Since my focus was in acquiring foreclosure homes, I had to deal with homeowners facing financial distress caused by several possible reasons such as medical, divorce, job loss, death, bankruptcy, etc. In order to best address the different challenges in purchasing the homes, I had to constantly research and study the laws to make sure the seller could legally transfer title of the property, I had to constantly consult with my real estate attorney, and I studied the different type of judgments a homeowner can get from creditors, the different type of liens, how the foreclosure process works, landlord-tenant law, how divorce and death affects real estate, bankruptcy law, and other myriad of laws affecting real estate. I increasingly developed curiosity for these topics. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 7: 6 How To Legally Beat Debt Collectors After several years I have developed a good knowledge of law and have become an avid reader of different law related topics. After several years of residential real estate boom, the market came to a crisis in which the number of properties for sale greatly outnumbered the willing and able buyers and credit requirements to obtain a loan have dramatically become stricter. This situation forced me to have too many unsold homes in my company’s inventory that we were unable to sell. The rental income we obtained from the homes was not enough to pay for the expenses and we were forced to stop making payments to lenders, thus, falling into the foreclosure trap. At the time of this market crisis, I had mortgage and credit card debt and the dreaded collectors started calling, sending letters, and creditors initiated debt collection and mortgage foreclosure lawsuits. Attorneys and judges are accustomed to dealing with average individuals with little or no knowledge of the law; they take advantage of your ignorance and abuse your rights based on your fear and ignorance of the legal system. Attorneys make easy money winning cases in the courts and don’t expect you to use the law to your advantage; my goal with this book is to teach you legal techniques to put you in a position to win and to make attorneys’ lives absolutely miserable. The tactics proposed in this book will help you represent yourself “pro se” in court or will help guide the actions of your attorney. I highly recommend you seek legal advice and seek an attorney representation if you don’t have the time or the willingness to defend your self “pro se” (without an attorney). When dealing with a debt collection matter, you will be better served by seeking the advice of a consumer protection and/or consumer rights attorney. Unless an attorney is a consumer protection/rights one, most general attorneys will probably have a very limited knowledge of the law and will need your guidance. I recommend you provide them with the pleadings that you want them to submit to the court in your defense or in your attacks and let them review and revise them if necessary; your attorney is working for you and you must always be the guiding mind behind his actions. I encourage you to question everything that you attorney intends to submit to the courts and to discuss with him in detail your winning strategies. You may find an attorney specializing Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 8: 7 How To Legally Beat Debt Collectors in consumer rights at http://www.naca.net or consult your local bar association. This book was greatly influencied by the writtings of Mr. Richard Cornforth who has done an extraordinary work in educating the public in his seminars and book on the legal system in the United States. I higly recommend that before you continue reading this book, you read the short document called “Lawyer’s Secret Oath” part of the Appendix of this book and also available online at http://www.budgetcorporaterenewals.com/LawyersSecretOath.pdf. I have no certainty whether what this document says is true or not; you have to make your own determination. I’m sure this document will at least stir a curiosity in you to continue researching the truth about the legal system in America. I publish a free monthly newsletter called The Truth Report in which I expose the truth about several life topics (money, law, health, etc), life changing news and general information that you likely won't see in the mass media. If it’s in the mass media, it’s probably not important for you to know it. I kindly invite you you to sign-up for the newsletter at my personal website at www.JulioMartinezClark.com where you will also find a list of resources that I consider crucial in your quest for the truth. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 9: 8 How To Legally Beat Debt Collectors 2. The Debt Collection Industry I will quote what Mr. Bud Hibbs, considered “America’s Consumer Credit Expert” and author of 2 books on credit and debt collectors said in his blog (http://budhibbs.wordpress.com/): http://budhibbs.wordpress.com/tag/debt-collectionindustry/ August 7, 2006 “The Debt Collection Industry in America has Changed Filed under: Debt Collection Industry — budhibbs 4:30 pm @ “Despite tough government regulations protecting people against abusive debt collectors, a three-month ABC News investigation found many unscrupulous collectors routinely ignore the law. A report on the debt collection industry issued by the Federal Trade Commission, however, found that consumers filed a record number of complaints against collectors in 2005, up 14 percent from the previous year. The debt collection industry in America has taken a turn for the worse. Gone are the days when consumers and collectors could talk and work out reasonable settlements, based on professionalism and accepted business practices. Today’s debt collector is viewed as an uneducated, job-hopping, drug induced moron who is under incredible pressure to hit a quota or face job loss. Owners are flush with large hordes of cash, so paying off lawsuits has become just another cost of doing business. Washington, DC and your state capital is not concerned about this problem and the FTC and your state attorney’s general are too overwhelmed to make a dent in the problem. I receive more than 400 emails every day from consumers complaining about the illegal tactics used by debt collectors to fleece them out of their money. You file is now a ‘case number’, everyone is a ‘legal assistant’ or you’ve reached the ‘pre-litigation department’ which is nothing more than a call center Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 10: 9 How To Legally Beat Debt Collectors where everyone is strung out on something, from an abundance of caffeine, uppers, downers, coke and smoke. Most blame the pressure of the industry as it has exploded in the past three years to numbers that were once unimaginable. This has caused the debt buying segment to expand to a billion dollar industry and accounts that are ten and fifteen years old, to be back on the front burner, with a renewed vigor by the over-zealous debt collector to separate you from your cash. To add to the pressures on both sides, the bottom feeders, those who buy old accounts are taking extreme measures to collect at the expense of violating laws and in many cases, committing crimes. These violations from organizations such as Unifund, Asset Acceptance, Midland Credit, Credigy, Account Management Services, Collect America, NCO, Shekinah, and anyone with a Buffalo, NY address threatening legal actions, posing as law enforcement and attorneys, manufacturing bogus documentation to validate their court filings, purchasing money orders to show phony payments on accounts, contacting third parties, violating everything the Fair Debt Collection Practices Act (FDCPA) states they should not legally be allowed to do. The time has come to make changes and give consumers weapons to fight back these parasites of the American economy. I read recently where notorious bottom feeder Unifund, of Cincinnati, OH was at a debt buyers conference and their booth sign read: “FUTURE HOME LIENS FOR SALE!” Unifund president David G. Rosenberg has made millions living off the misery of others, with his despicable collection practices and innovated a lot of the bogus court filings that are now common. The good news is there are new ways you can employ to counter the moves of these parasites for both now and in the future that will make their jobs harder, more costly and bring a wrath of new legal problems upon them. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 11: 10 How To Legally Beat Debt Collectors Having more than twenty years experience in this business, talked to millions of consumers dispensing advice, a few books, lots of radio and television and an upcoming movie on my resume, I feel it is now time to share this knowledge on a scale that will arm the average consumer with information and resources to considerably up the ante for the debt collector. I’m looking for your input, your feedback on proven methods that will change how debt collectors operate. This blog will be a place to get assistance on dealing with the debt collectors on a scale that slows them down, holds them accountable, gives you power you never knew you had and ways to bring their collections to a crawl.” See how Mr. Hibbs on his web site (http://www.budhibbs.com/) defines a debt collector: http://www.budhibbs.com/debt_collector.htm “The Debt Collector-Money Beggars Liars, Lawyers, Con-Men & Thieves AGENCY COLLECTORS (Beggars) Agency collectors have correctly been deemed the worst-type of collection agents! They operate from a computer database containing all your personal information, provided to them by the original creditor. When an outside agency gets your account, it has been 'charged-off' for non-payment. They make calls as fast as the auto-dialer can picking up the first one that hits a live voice and letting the rest go as annoyance calls. That's why sometimes you get only a recorded message telling you to call about a very important matter. Commission is their livelihood; they don't have time for pleasantries or obeying the law. An agency collector's commission ranges from 15-25% of what they can extract from you. Most are paid bonuses if they hit a quota and steady, hard-working collectors can make $40-60K per year. The majority will bring in much less because they routinely step over the line to increase their take. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 12: 11 How To Legally Beat Debt Collectors Who Seeks a Career as a Debt Collector? In a industry where deception, craftiness, and deceit are rampant, you might imagine most honest people would seek work elsewhere. And you're right. My experience says the average debt collector is male, has a large ego, bounces from job to job, suffers low self-esteem and enjoys using the telephone as an instrument of empowerment. You shouldn't be surprised to find most of them have great debt problems themselves. The debt collection business is plagued with high employee turnover. Constant training of new collectors puts great strain on the agencies and the employees. Every moment someone is in training is time lost on the phone. You can imagine the shortcuts that are taken to get a new caller on the floor as soon as possible. Collectors see themselves in a position to take advantage of those they deem weaker, in an effort to overcome their own insecurities. They normally will talk-over any issues you may have, threaten and intimidate you, lie, misrepresent themselves, abuse, annoy and attempt to push you as far as they can. After all, a portion of what they collect from you becomes theirs. Unfortunately, far too few consumers complain about debt collectors overstepping their bounds, because they are intimidated or embarrassed about their dilemma. Over the years I've dealt with literally thousands of collectors and suggest that only 2 out of 10 are honest and hard working. The greater percentage are deadbeat scum either just out of, or heading back into a jail cell. Collecting is a male dominated business and because of the shortage of skilled workers, agencies are hiring anyone who can walk and chew gum to make their calls. Social skills, education and career orientation are NOT normally the prerequisites for a debt collector – money beggar position. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 13: 12 How To Legally Beat Debt Collectors What Techniques Do They Employ? You'll hear standard phrases such as: "what is your intent" or "I'm going to recommend that our client take immediate legal action against you." The innocent unsuspecting consumer feels threatened, even terrorized by the antics of unscrupulous debt collectors. The really bad ones will call you at work, violate third party disclosure, or worse, threaten you with arrest or wage garnishment if they don't have the money today! They'll try to persuade you to pay off old debts using your new credit card, via Western Union wire transfers, bank drafting, debit checks and cash. They will tell you your credit report will be clean if you just send them the$ MONEY$. The National Consumer Law League, (NCLC) and the National Association of Consumer Advocates, (NACA) assist attorneys across the country in pursuing agencies and collectors who violate the law and your rights. Collectors are learning that the phone name they use and the perceived anonymity of hiding behind a telephone can easily be overcome with today's modern technology and investigative techniques. Some collectors are learning first-hand that they too, can be charged with making threats over the phone and that their employers don't provide bail money or legal representation. Creditors are increasingly becoming less tolerant of agencies that allow abuse and will drop those that don't comply. I urge you to complain about collector abuse by contacting the FTC, the American Collectors Association, the original creditor and your state bar association (against attorneys), or me if you feel your rights are being violated. There is a nationwide group of professional consumer attorneys, skilled in debt collection laws that passionately defend the rights of consumers against these illegal collectors. No consumer should ever suffer abuse from a debt collector. The laws WILL protect you! Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 14: 13 How To Legally Beat Debt Collectors ATTORNEY/LAWYER DEBT COLLECTORS The law binds attorneys who engage in the collection of debts and the collectors that work for them. One of the worst attorney collection networks I have ever encountered is the Collect America/Refinance America franchise founded by Attorney P. Scott Lowery, of Denver CO. This is abuse at its absolute worst. The worst Collect America/Refinance America office that I have encountered appears to be Attorney James Anthony (Tony) Cambece, of Peabody MA. This group of misfits, brain dead, egotistical punks think collection laws don't apply to them. Their ring-leader, Tony Cambece, a Massachusetts Attorney can be dealt with legally if consumers will file a bona-fide, written complaint about him and his thugs with the Massachusetts Bar Association, Boston, Mass at: (617) 542-3602. Many other law firms that engage in the collection of debts. One recent scam I've encountered is Attorney A. C. Donahue, of Somerset, KY. It appears that Attorney Donahue is NOT really an attorney in states that he is sending mail from, such as Oklahoma. When I tracked Attorney A. C. Donahue to his KY address, he told me over the phone that he would not speak to me and to contact his attorney. Would you feel comfortable sending money to the Donahue Law Group of OK, (oh), and KY? I certainly would recommend that you DO NOT! (At least until it can be determined just where Mr. A. C. Donahue is legally allowed to practice law. He seems a bit confused about this.) A majority of law firm collectors I have dealt with in my business are usually the ones with the "big head" syndrome. They try to impress you with titles such as 'Head Legal Assistant to Attorney Smith', or use the most intimidation to force payment with such classics as, "the paperwork is ready to send to the courthouse for suit." One of my favorites: "We don't have time to play games with you. Are you sending the money today or not?" These jerks seem to get their kicks convincing debtors that they have life and death power over them. They love to use the phone as a weapon of terror. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 15: 14 How To Legally Beat Debt Collectors You almost never are allowed to speak with the attorney who sent you the letter because he is always "in court." You are told that they never take calls from debtors. Well that's not correct. The law states that if an attorney places their name and/or letterhead on a collection notice, they MUST make themselves available to talk with you and they MUST have some knowledge of the debt. Don't be intimidated by these over-bearing jerks. THEY CAN BE HELD ACCOUNTABLE UNDER THE LAW! If you feel that your rights are being abused by a debt collection attorney/law office, file a complaint with your State Bar Association, the Attorney General, or the Federal Trade Commission, or contact me for a confidential referral to a consumer law professional in your area.” With the above information about the debt collection industry you have a very good idea of whom you are dealing with. If you are an educated consumer prepared with legal tools to win, debt collectors will not step on your legal rights. In this book you will learn among other things that credit card contracts are not transferable; when a third party debt collector attempts to collect any consumer debt including state income taxes, the debt collector must obey the Fair Debt Collections Practices Act or they are subject to suit. Additionally, federal R.I.C.O. (Racketeer Influenced and Corrupt Organizations Act of 1970) law provides that a cause of action lies where one or more members of an enterprise affecting interstate commerce commit two or more acts of fraud or extortion resulting in damages to property or a business. Property includes bank accounts and money. Lost business opportunity is damage to a business interest. Before any party can legally prevail in any lawsuit, the party must be prepared to show standing to sue in the jurisdiction and standing to sue the respondent party. Corporations must also be prepared to show that the corporation’s charter authorizes the activity sued over and also authorizes suing. The party legally prevailing in any lawsuit must show that a contract exists if the matter is a breach; and regardless, every prevailing party must “prove up” a claim of damages. After judgment is rendered, there must always be a second proceeding in rem Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 16: 15 How To Legally Beat Debt Collectors for collection. Even though in rem proceedings have been simplified in most jurisdictions, don’t count on attorneys knowing how to file an in rem petition. The Debt Collection Industry is a multi-billion dollar racket run throughout the country. Just as a photocopy of a $100 bill is evidence of a $100 bill, it is not the actual Federal Reserve note; it’s a copy that doesn't spend. Yet, debt collectors are collecting billions on photocopies of debt. That is, evidence of debt, not the debt. The evidence of debt is being sold for and purchased for pennies on the dollar, while debt collectors/attorneys are collecting on the full face value plus penalties and attorney fees. There have been numerous occasions where 2, 3, and even 4 debt collectors have had photocopies of the same debt and were all trying to collect on the same debt, at the same time. How many times does one owe on the same debt? If at all? The Courts have been rubber-stamping these transactions for so long that it has now become custom to rubber stamp. A custom that is at its best, difficult to overcome. The Courts don't like having to actually consider the facts and evidence, it is so much easier to hand out your money than for them to behave according to their own rules of procedure and evidence. The Courts want you to prove a negative that you don’t owe. While refusing to require the Plaintiff to prove the charges he has brought against you. Recently, a housewife in Colorado had gotten totally fed up. She has sued Wells Fargo for their participation in this racket. What happens most often is that a bank or credit card company will bundle defaulted accounts and sell them on the debt wholesale market. This is after they have written them off on their corporate taxes and collected the bad debt insurance. Then they destroy all of their records so they cannot be compelled to show that they have collected insurance to pay off the debt. The wholesaler will then re-bundle and sell either to attorneys or to companies dedicated to collecting on these defaulted, already paid for, accounts. (Again, this is after they have been written off on corporate taxes and bad debt insurance has been collected.) What is being sold are photocopies of debt, they don't (except on very rare occasions) have the original thus cannot extinguish the Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 17: 16 How To Legally Beat Debt Collectors debt when paid. What is worse, if there are a thousand photocopies, there will be a thousand claims and since none are the original, none can be satisfied/extinguished. Isn’t that great! It’s come to my attention that there is web site where attorneys can go to purchase supposed Affidavits from their supposed clients; just fill in the blanks and low and behold an Affidavit appears. Now isn’t that slick? The Affidavit that appears is at best defective, at worse, a fraud upon the Court; don’t forget the Rubber Stamp Factor of the Courts. The debt collection racket is one of the biggest components of the obscenely corrupt legal industry. If after reading this book you were to carefully examine any debt collection lawsuit case you will very likely find that almost none of them was done properly. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 18: 17 How To Legally Beat Debt Collectors 3. Secrets of the Legal Industry Most judgments are not merely voidable, but are in fact void judgments. They can be vacated; made to go away (Although, it is an up hill battle). Rarely has any authenticated evidence, competent fact witness, or even a claim been put before a court and on the record. Defective affidavits, hearsay as evidence and no stated damages are but a few elements that rob the court of subject matter jurisdiction (at last count there are more than twenty elements that deprive the court of subject matter jurisdiction. Some of the elements are: denial of due process, denial of access to court, fraud upon the court, and fraud upon the court by the court. Although these pages are aimed primarily towards debt, credit card debt, the principals set forth herein apply to virtually all civil and criminal cases. Common pleas such as "open account" or "account stated" are often used in place of, and sometimes in conjunction with, breach of contract. To file under breach a contract would require that they (the creditors) bring in the signed contract, agreement, or note. If they don’t bring in a contract, they bring in the "terms of agreement" which has no signature or persons name on it, a template that could apply to anyone. These are just some of the tools used by debt collectors (credit card debt collectors in particular) and their attorneys (also called counsels) to perpetrate a fraud upon the court, with or without the courts cooperation or complicity. At the same time, courts, almost as a rule, openly display a bitter and venomous hatred of pro se / pro per litigants. Pro se is a Latin adjective meaning "for self", that is applied to someone who represents himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. So don't expect the courts to just roll over and give you what you demand without a battle. It doesn't matter to them that you are right, it matters only that you are pro se; an inferior, low life being, and the courts have a position and the income of their brotherhood to protect. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 19: 18 How To Legally Beat Debt Collectors These are the four secrets of the legal industry: 1. Courts of general, limited, or inferior jurisdiction have no inherent judicial power. Courts of general, limited, or inferior jurisdiction get their jurisdiction from one source and one source only: sufficient pleadings. Someone before the court must tell the court what its jurisdiction is. Without pleadings sufficient to empower the court to act, that court cannot have judicial capacity. No judge has the power to determine whether he has jurisdiction. He does have the duty to tell when he does not. What this means to you is that no court can declare that it has the legal power to hear or decide cases, i.e. jurisdiction. Jurisdiction must be proved and on the record. Without sufficient pleadings, without jurisdiction, no court can issue a judgment that isn’t void ab initio, void from the beginning, void on its face, a nullity, without force and effect. 2. We have a common law system. No statute, no rule, or no law means what it says as it is written. Only the holding tells you what it means. The statute means what the highest court of competent jurisdiction has ruled and determined that the statute means in their most recent ruling. What this means to you is that courts are governed/ruled by case law, what has been determined before, what the highest court of competent jurisdiction has said the law is, means. It is called the Doctrine of Precedent. This doctrine is so powerful that it can kill and has. A family in Florida has become quite familiar with this doctrine when they tried for 15 years to prevent feeding tubes from being removed from their daughter who was in a vegetative state. a. The real law is found in the Annotated Statutes. Sometimes referred to as a state or federal "Code." The Annotated Statutes is a collection of state or federal laws, generally organized by topic area, that is accompanied by a brief summary, or "annotation," of the court decisions of the appropriate state or federal appeals Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 20: 19 How To Legally Beat Debt Collectors courts that have interpreted the meaning, constitutionality or limitations on the enforceability of the statutes. The importance of annotated law: (1). It is organized. (2). It is abbreviated (you don’t need to read the whole case) (3). The “holdings” define the real law. Examples of holdings: i. Debtor, as natural person who was obligated to pay debt to hospital for services provided in connection with her kidney infection, was "consumer" within meaning of the Fair Debt Collection Practices Act (FDCPA). Creighton v. Emporia Credit Service, Inc., E.D.Va.1997, 981 F.Supp. 411. ii. Patient who had received medical services on credit, and who was primarily responsible for payment of account at medical center, qualified as "consumer" under the Fair Debt Collection Practices Act (FDCPA). Adams v. Law Offices of Stuckert & Yates, E.D.Pa.1996, 926 F.Supp. 521. iii. Fair Debt Collection Practices Act, establishing liability of debt collector who fails to comply with the Act "with respect to any person," does not limit recovery to "consumers," and thus would not preclude recovery by person to whom debt collector sent letter seeking to collect debt of such person's deceased father even if such person were not a consumer; but, in any event, such person was a "consumer" when collectors admittedly demanded payment of debt from him. Dutton v. Wolhar, D.Del.1992, 809 F.Supp. 1130. iv. Unpaid administrative and other fees charged under rental agreement by automobile and truck rental company in event of accident constituted "debt" under Fair Debt Collection Practices Act. Brown v. Budget Rent-A-Car Systems, Inc., C.A.11 (Fla.) 1997, 119 F.3d 922. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 21: 20 How To Legally Beat Debt Collectors You will find the Annotated Statutes in law libraries under the Lexis-Nexis brand or Thomson/Westlaw. 3. Attorneys cannot testify. Statements of counsel in brief or in argument are never facts before the court. What this means to you is that no attorney can state a fact before the court. This was more than adequately pointed out in 2000 when thousands of Florida ballots were taken before the U.S. Supreme Court, without even so much as one competent fact witness. Without a witness the court could not see the ballots, the ballots were not before the court, and the ballots could not be introduced as evidence. 4. Before any determination, there must be a court of complete or competent jurisdiction. a. There must be two parties with capacity to be there. b. There must be subject matter jurisdiction. c. Appearance or testimony of a competent fact witness. What this means to you is that without jurisdiction, complete jurisdiction, no court can issue a judgment that isn’t void, a nullity, without force or effect, on its face and in fact. 3.1 Twenty-Two Reasons To Vacate A Void Judgment The real issue in void judgments is, subject matter jurisdiction. Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. Wahl v. Round Valley Bank 38 Ariz, 411, 300 P. 955(1931), Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940). The really big deal with subject matter jurisdiction is that it can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. Subject matter jurisdiction is two part: The statutory or common law authority for the court to hear the Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 22: 21 How To Legally Beat Debt Collectors case and the appearance and testimony of a competent fact witness; in other words, sufficiency of pleadings. Even if a court (judge) has or appears to have subject matter jurisdiction, subject matter jurisdiction can be lost. Major reasons why subject matter jurisdiction is lost: 1. No petition in the record of VanKeuren, 340 Ill. 118,122 (1930). the case, Brown v. 2. Defective petition filed, Same case as above. 3. Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d 893(1985). 4. Fraud upon the court, In re Village of Willowbrook, 37 Ill, App. 3d 393(1962) 5. A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921) 6. Unlawful activity of a judge, Code of Judicial Conduct. 7. Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019; Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E. 2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936). 8. If the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967) 9. Any acts in violation of 11 U.S.C. 362(a),IN re Garcia, 109 B.R. 335 (N.D> Illinois, 1989). 10. Where no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994). 11. Where a complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist. 1993) Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 23: 22 How To Legally Beat Debt Collectors 12. Where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction. 13. When the judge is involved in a scheme of bribery (the Alemann cases, Bracey v Warden, U.S. Supreme Court No. 966133(June 9, 1997) 14. Where a summons was not properly issued. 15. Where service of process was not made pursuant to statute and Supreme Courth Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708 (1953) 16. When the rules of the Circuit court are not complied with. 17. When the local rules of the special court are not complied with. (One Where the judge does not act impartially, Bracey v. Warden, U.S. Supreme Court No. 966133(June 9, 1997). 18. Where the statute is vague, People v. Williams, 638 N.E. 2d 207 (1st Dist. (1994). 19. When proper notice is not given to all parties by the movant, Wilson v. Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973). 20. Where an order/judgment is based on a void order/judgment, Austin v. Smith, 312 F 2d 337, 343 (1962); English v. English, 72 Ill. App. 3d 736, 393 N.E. 2d 18 (1st Dist. 1979) or 21. Where the public policy of the State of Illinois is violated, Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist. 1975) Another that can and should be checked on is does the judge have a copy of his oath of office on file in his chambers? If not, he is not a judge and yes, you can go into his office and demand to see a copy of his oath of office at any time. The laws covering judges and other public officials are to be found at 5 U.S.C. 3331, 28 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 24: 23 How To Legally Beat Debt Collectors U.S.C. 543 and 5 U.S.C. 1983 and if the judge has not complied with all of those provisions he is not a judge but a trespasser upon the court. If he is proven a trespasser upon the court (upon the law) not one of his judgments, pronouncements or orders are valid. All are null and void. In all, there are 22 indices that tell us whether or not a court had subject matter jurisdiction and when examining a judgment one has to know each and every one of them by heart. If he knows them by heart he can go through a judgment and point out all of the errors that might make the case a void judgment, null and void upon it's face. 3.2 Summary Of The Law Of Voids Before a court (judge) can proceed judicially, jurisdiction must be complete consisting of two opposing parties (not their attorneys - although attorneys can enter an appearance on behalf of a party, only the parties can testify and until the plaintiff testifies the court has no basis upon which to rule judicially), and the two halves of subject matter jurisdiction = the statutory or common law authority the action is brought under (the theory of indemnity) and the testimony of a competent fact witness regarding the injury (the cause of action). If there is a jurisdictional failing appearing on the face of the record, the matter is void, subject to vacation with damages, and can never be time barred. A question that naturally occurs: "If I vacate avoid judgment, can they just come back and try the case again?" Answer: A new suit must be filed and that can only be done if within the statute of limitations. "Lack of jurisdiction cannot be corrected by an order nunc pro tunc. The only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history." E.g., Transamerica Ins. Co. v. South, 975 F.2d 321, 325-26 (7th Cir. 1992); United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987). Also see Central Laborer’s Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir. 1999). Nunc pro tunc is a Latin expression in common use in the English language. It means “Now for then.” Nunc pro tunc or now for then is a phrase which theoretically applies to acts that are allowed to be Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 25: 24 How To Legally Beat Debt Collectors done after the time when they should have been done with a retroactive effect. 3.2.1 How To Vacate a Void Judgment We petition to vacate them – we sue them! This is known as a collateral attack. Sometimes a direct attack is appropriate but not usually. A direct attack goes back into the same court where judgment obtained and likely to the same judge. Obviously, it is usually most beneficial to do a collateral attack – sue them! Sue the party who got the judgment against you. Also, after we get the judgment vacated, it’s almost always moot and cannot be reasserted, especially if beyond the statute of limitations. Please remember, statutes of limitation do not apply to vacating void judgments. Following are some sample cases to vacate void judgments. The court (meaning the judge) cannot consider any information not shown to be of record in the original case as there is no pre-trial in vacating void judgments. The following template is in the Vermont form. To file a proper and sufficient pleading empowering the court to rule favorable for you, check the style and authority to vacate void judgments in your state. One is a quiet title petition, which is a variation of the law of voids where the action is to recovery real property. An action to recover personal property is called a replevin. Another variation of the law of voids is exercisable in bankruptcy court; its advisable to use this last void strategy as a last resort and even then use chapter 13 rather than the ill effects of a chapter 7. The strategy is to file a chapter 13 – be sure to file a plan and an 11 USC 9014 at the same time. Set the 11 USC 9014 for hearing and notice the party holding the void judgment. After vacating the void judgment as a “contested matter,” dismiss the chapter 13. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 26: 25 How To Legally Beat Debt Collectors State of Vermont Essex County Siwooganock Bank, plaintiff, vs. Aaron J. Lovejoy, and Eva J. Lovejoy, defendant. ) ) ) ) Essex Superior Court ) Docket number 40-7-99Excv ) ) ) ) ) Defendants’ Vermont Rules of Civil Procedure, rule 60(b)(4) motion to vacate a void judgment / motion for injunctive and declaratory relief Brief in support of motion to vacate 1. Aaron J. Lovejoy and Deborah Lovejoy as next friend of Eva J. Lovejoy, Aaron J. Lovejoy and Eva J. Lovejoy being aggrieved parties, move this court for vacation of a void judgment. 2. The judgment of foreclosure is facially void for reason to hereinafter, damages default “Siwooganock” DAMAGES failed MUST in this instant case Siwooganock refused PROVED BY to Even Bank, prove with a or BE that entitling judgment, Siwooganock judgment. EVIDENCE ENTERED ON THE RECORD. Cir. 07/25/2001). For example, see American Red Cross supreme court has written v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Oklahoma’s most eloquently on the subject of failure to enter evidence Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 27: 26 How To Legally Beat Debt Collectors on the record renders default judgment void. Taking account or proof or assessment of damages on default or decision of issue of law, of trial court default could not Inc. award v. damages to plaintiff, evidence following damages. judgment, without requiring Inc., Razorsoft, Maktal, Okla.App. Div. 1, 907 P.2d 1102 (1995), rehearing denied. A party is not in default so long as he has a pleading on file which makes an issue in the case that requires proof on the part of the opposite party in order to entitle him to recover. Millikan v. Booth, Okla., 4 Okla. 713, 46 P. 489 (1896). Proof of or assessment of damages upon petition claiming damages, it is error to pronounce judgment without hearing proof or assessing damages. Atchison, T. & S.F. Ry. Co. v. Lambert, 31 Okla. 300, 121 P. 654, Ann.Cas.1913E, 329 (1912); City of Guthrie v. T. W. Harvey Lumber Co., 5 Okla. 774, 50 P. 84 (1897). In the assessment of damages following entry of default judgment, a defaulting party has a statutory right to a hearing on the extent of unliquidated damage, and encompassed within this right is the opportunity to a fair post-default inquest at which both the plaintiff by and the defendant can participate and in the proceedings P.2d 1088 cross-examining A default a with witnesses introducing as a evidence on their own behalf. Payne v. Dewitt, Okla., 995 (1999). sanction declaration, defendant, liability imposed cannot for the discovery beyond against extend harm saddling defendant occasioned and for imposition of punitive damages, and the trial court must leave to a meaningful inquiry the quantum of actual and punitive damages, without stripping defendant Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 28: 27 How To Legally Beat Debt Collectors of basic forensic devices to test the truth of plaintiff's evidence. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). Fracture of two toes required expert medical testimony as to whether such injury was permanent so as to allow damages for permanent injury, of future pain, and future no medical medical requires 913 on treatment on default judgment, and such testimony was not within 913 Reed competency plaintiff of 820 who had expertise. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th (1991). v. Rendition Okla., of default P.2d 445, roll judgment 20 shows production of proof as to amount of un-liquidated damages. Scott, When A.L.R.5th judgment (1991). face judgment pleadings without evidence as to amount of un-liquidated damages then judgment is void. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). In a tort action founded on an un-liquidated claim for damages, a defaulting party is deemed to have admitted only plaintiff's right to recover, so that the court is without authority or power to enter a judgment 534 fixing P.2d the amount (1975). of recovery in the absence of the introduction of evidence. Graves v. Walters, Okla.App., 702 Presumptions which ordinarily shield judgments from collateral attacks were not applicable on motion to vacate a small claim default judgment on ground that court assessed damages on an unliquidated tort claim without first hearing any supporting evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Rule that default judgment fixing the amount of recovery in absence of introduction of supporting evidence is void and not merely erroneous or voidable obtains with Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 29: 28 How To Legally Beat Debt Collectors regard to exemplary as well as compensatory damages. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Where liability of father for support of minor daughter and extent of such liability and amount of attorney's fees to be allowed was dependent on facts, rendering of final judgment by trial court requiring father to pay $25 monthly for support of minor until minor should reach age 18 and $100 attorney's fees without having heard proof thereof in support of allegations in petition was error. Ross v. Ross, Okla., 201 Okla. 174, 203 P.2d 702 (1949). Refusal to render default judgment against codefendant for want of answer was not error, since defendants and court treated answer of defendant on file as having been filed on behalf of both defendants, and since plaintiff could not recover without offering proof of damages and offered no such proof. Thomas v. Williams, Okla., 173 Okla. 601, 49 2007 P.2d 557 (1935). Under R.L.1910, §§ 4779, 5130 (see, now, this section and § of this title), allegation of value, or amount of to controvert. discovery non-jury Cudd v. Farmers' barring on Exch. Bank of damages stated in petition, were not considered true by failure Trial Lindsay, Okla., 76 Okla. 317, 185 P. 521 (1919). Hearing court's sanction hearing defendant from using cross-examination and other truth-testing devices at post-default (1999). 02/07/86 A.2d 972, plaintiff's damages violated due process. Payne v. Dewitt, Okla., 995 P.2d 1088 For a good Vermont citation on the subject, see CHARLES 146 REUTHER 540 v. MARILYN the GANG court 1986.VT.20 found, 507 Vt. wherein “Where defendant answered both complaints filed by plaintiff and Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 30: 29 How To Legally Beat Debt Collectors had filed counterclaim, but did not appear for trial, her requests for continuance evidenced her intent to continue to defend action; thus, trial court erred when it did not proceed to take testimony before it entered default judgment for plaintiff; un-sworn statement of plaintiff's attorney could not support default judgment rendered.” It is also true, in mortgage foreclosures, prove up of the claim requires presentment of the original promissory note and general account and ledger statement. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger. See Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. v. 371, (Conn. Super.2000), Estates, and Inc. Town 513 of A.2d Brookfield Candlewood Shores 1218, 201 Conn.1 (1986). See also Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3Dist. failed 1987). or Siwooganock, in alleged foreclosure to Eva produce J. the actual owed. note Where Lovejoy suit, which the refused alleges Siwooganock complaining party can not prove the existence of the note, then there is no note. To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 31: 30 How To Legally Beat Debt Collectors the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLC. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.), Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, “...; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, Bank as v, the case 256 may be. See Restatement, 23 (App. Div Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469, in Carnegie Shalleck N.J. Super 1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the N.J.S. 12A:3-302" there in Since is no no one is able to rights and produce before common of the the law the protections provided a holder in due course pursuant to “instrument” the true competent course. prove evidence Jersey Court that any party is the holder of the alleged note or holder that the due New the dictates plaintiff existence alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 32: 31 How To Legally Beat Debt Collectors of any security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977). “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security actual bailee.” 389 interest possession in by instruments the Courts secured have has been perfected his the agent is or party, followed the must New be Bankruptcy Uniform Uniform by Commercial Code. In Re Investors & Lenders, Ltd. 165 B.R. (Bkrtcy.D.N.J.1994), interest in “Under which Jersey Commercial Code (NJUCC), promissory note is “instrument,” security perfected possession...” Unequivocally the Court’s rule is that in order to prove the “instrument”, possession is mandatory. Conclusion 3. Siwooganock’s judgment of foreclosure is as bogus as a three-dollar bill. This court has a non-discretionary duty to vacate the void judgment and compel Siwooganock to compensate the defendants for the fair market rental for the time of deprivation of access to their own property and damages to the property other than normal wear and tear as well as ending trespass to the property. Cause for injunctive and declaratory relief 4. Putative owners of the property that is the res of this non-controversy had no did not title acquire to good title as Siwooganock valid convey. Siwooganock’s claim was facially void. As irreparable harm will come to the lawful homestead of Eva Lovejoy, this court’s duty is to protect the property from further trespass or injury by the putative owners. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 33: 32 How To Legally Beat Debt Collectors Prepared and submitted by; ___________________________________ Aaron J. Lovejoy Deborah Lovejoy Certificate of mailing I, Deborah Lovejoy, certify, that March _____, 2003, I mailed a true and correct copy of the above and foregoing motion to vacate and motion for injunction via certified mail return receipt requested to: Siwooganock Bank ________________ ________________ _____________________________ Deborah Lovejoy Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 34: 33 How To Legally Beat Debt Collectors IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA Sharon C. Right and Jim R. Right Plaintiffs v. MIDFIRST BANK, N.A. Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO._____________ PETITION IN THE NATURE OF A PETITION TO VACATE A VOID JUDGMENT AND COLLATERAL ATTACK OKLAHOMA STAUTE TITLE 12, SECTIONS 1031, 1038 1. Sharon C. Right and Jim R. Right, aggrieved parties, petition this court under authority of O.S. 12, §§ 1031, 1038 for vacation of a void judgment attached. 2. Fraud was practiced in obtaining judgment warranting vacation of “judgment” CS-2001-1234: (1) William L. Nixon, Jr. committed felony fraud by advancing writings Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 35: 34 How To Legally Beat Debt Collectors which William L. Nixon, Jr. knew were false with the intent that Sharon C. Right and Jim R. Right and the court would knew rely on to deprive Sharon C. Right and Jim R. Right of money, property and rights. William L. Nixon, Jr. that the sum demanded of Sharon C. Right and Jim R. Right was different from and greater than a sum Sharon C. Right and Jim R. Right could owe under any lawful theory. 3. The putative judgment in CS-2001-1234 is insufficient on it’s face. The putative judgment in CS2001-1234 is not ratified by the signature of a judge. This suggests that William L. Nixon, Jr. and David M. Harbour are involved in the holder in due course fraud racket. See O.S. Title 21, Chapter 19, § 554, “Attorney Buying Evidence of Debt-Misleading Court. Every attorney who either directly or indirectly buys or is interested in buying any evidence of debt or thing in action with intent to bring suit thereon is guilty of a misdemeanor. Any attorney who in any proceeding before any court of a justice of the peace or police judge or other inferior court in which he appears as attorney, willfully misstates any proposition or seeks to mislead the court in any matter of law is guilty of a misdemeanor and on any trial therefore the state shall only be held to prove to the court that the cause was pending, that the defendant appeared as an attorney in the action, and showing what the legal statement was, wherein it is not the law. If the defense be that the act was not willful the burden shall be on the defendant to prove that he did not know that there was error in his statement of law.” Any person guilty of falsely preparing any book, Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 36: 35 How To Legally Beat Debt Collectors paper, [({ record, })], instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced as genuine upon any [({ trial, proceeding or inquiry whatever, })] authorized by law, SHALL BE GUILTY OF A FELONY. See Oklahoma 13, Statutes Section Title 453. 21. Crimes and and Punishments, Chapter Reasonably logically, the rubber stamp mark of David M. Harbour either appears on the attached putative judgment without knowledge of David M. Harbour or David M. Harbour chose to stamp the judgment rather than sign it to be able to later deny knowledge of the fraud clearly articulated at O.S. Title 21, Chapter 19, § 554. It is also true that an unsigned order is not an order. See Second Nat. Bank of Paintsville v. Blair, 186 S.W.2d 796. 4. A default judgment (even if properly signed) does not enjoy For want the presumption of res of on a to competent the consider fact court the judicata. witness wanted unverified, William L. and Nixon, Jr., placed no evidence on record to prove his case: appearing subject testifying jurisdiction record, matter undocumented claims of William L. Nixon, Jr. 5. A jury’s determination that the putative judgment in CS-2001-1234 contained a claim which was greater than and different from lawfully owed and or that the putative judgment was not signed and or that jurisdiction is lacking on the face of the record for want of any evidence whatsoever, warrants vacation of the “judgment” in CS-20011234. Determination that William L. Nixon, Jr. has violated O.S. Title 21, Chapter 19, § 554 and or O.S. Title 21, Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 37: 36 How To Legally Beat Debt Collectors Chapter 13, § 453, and or O.S. Title 21, Chapter 11, § 421 requires a warrant for the arrest of William L. Nixon, Jr. A jury’s determination that William L. Nixon, Jr. willfully acted to defraud Sharon C. Right and Jim R. Right justly requires less that William L. Nixon, Jr. be compelled to the compensate Sharon C. Right and Jim R. Right a sum of not twenty-five thousand dollars ($25,000.00), standard damages for fraud. JURY TRIAL DEMANDED Prepared and submitted by: ____________________________________________ Sharon C. Right Jim R. Right Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 38: 37 How To Legally Beat Debt Collectors IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA Billie E. Brighter and Bernarda Brighter a married couple Plaintiffs ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1234567890 GOETZ AND COMPANY, INC., Defendant. PETITION IN THE NATURE OF A QUIET TITLE ACTION AND CLAIM / JUDICIAL NOTICE 1. Billie the E. Brighter and petition Bernarda this Brighter, under hereinafter authority of “Brighters,” court 12 Okl. St. § 93 (4),12 Okl. St.§§ 131, 1141 and 21 Okl. St. § 1533. JUDICIAL NOTICE 2. All officers of the court for Oklahoma County, Oklahoma are hereby placed on notice under authority of the supremacy and equal protection clauses of the United States Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), “United States v. International Business Machines Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 39: 38 How To Legally Beat Debt Collectors Corp., Tennessee, 517 U.S. 843, 856 (1996), 842 quoting Payne v. J., 501 U.S. 808, (1991) (Souter, concurring). Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001), and Local Rules of the United States District Court for the Western District of Oklahoma, Rule 7.1(h), In re Haines: pro se litigants (the Brighters are pro se litigants) are held to less stringent pleading of standards the than bar licensed in their In re attorneys. to submit Regardless evidence in deficiencies of their pleadings, pro se litigants are entitled to the opportunity support claims. Platsky: court errs if court dismisses the pro se litigant (the Brighters are pro se litigants) without instruction of how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants’ constitutional rights are violated when courts depart from precedent where parties are similarly situated. All litigants have a constitutional right to have their claims adjudicated according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). Statements of counsel, in their briefs or their arguments are not sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. See also, Local Rules of the United States District Court for the Western District of Oklahoma, Rule 7.1(h). This court is also noticed on the following point of law: Prevailing party on default judgment of liability must still prove damages, American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 40: 39 How To Legally Beat Debt Collectors 07/25/2001). This court is further noticed on U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986), Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.,U.S.C.A. Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985), State v. Blankenship Dist. 1996), Graff v. 675 N.E. 2d 1303, (Ohio App. 9 P.2d 489 (Okl. 1991), Kelly, 814 Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990), and Com. V. Miller, 150 A.2d 585 (Pa. Super. 1959), all discussed and relied upon infra. 3. Notwithstanding the fact that the record made in the underlying case construes in harmony with 12 Okl. St. § 93 (4), defense of laches cannot be raised where the judgment is facially void. Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996). Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment 4. CAUSE Com. OF V. Miller, 150 GOETZ A.2d 585 (Pa. Super. AND COMPANY INC. is 1959). ACTION: trespassing on property to which the Brighters hold right, titile, and interest to described as “Lots THIRTEEN (13) Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 41: 40 How To Legally Beat Debt Collectors and FOURTEEN (14) in Block FIFTY FOUR SOUTH copy OKLAHOMA of the CITY ADDITION deeds to is (54) in SHIELD’S City, The Oklahoma putative Oklahoma County, Oklahoma as shown by the recorded plat thereof.” A Brighters’ attached. judgment of FIRST ENTERPRISE BANK giving rise to the chain of title ending with GOETZ AND COMPANY, INC., occulting the Brighters’ property, is void on its face: (1) Even in a default judgment, plaintiff must prove case by submission of evidence through a competent witness. The record made in CJ-0000 the reveals no evidence of or construing in harmony Title with 12, of Local Rule 7.1(h) of the United States District Court for Western 12, District Rule 13, Oklahoma, the common Oklahoma law Chapter authority American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). (2) The court in the underlying Porter. action wanted subject or matter refused When For lacked of the jurisdiction to inform to the were “Void subject due rule favorably for debt collector in the action Delmer W. Mr. Porter Practices failed Act. Brighters of their due process rights under the Fair Debt Collections subject judgment matter McNell void acted Brighters see: or violated deprived of due process rights, the court was deprived of matter is one jurisdiction. where or court entry examples personal order jurisdiction process,” U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. 110 F.R.D. 382 (S.D.N.Y. 1986) and judgment in a if court that rendered with due “Judgment is a judgment lacked Fed. jurisdiction of the subject matter, or of the parties, or manner inconsistent process,” Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 42: 41 How To Legally Beat Debt Collectors Rules 1985). 5. The amount in controversy exceeds ten thousand dollars ($10,000.00). REMEDY SOUGHT 6. void A jury’s determination ending supra, value the that GOETZ to AND COMPANY INCORPORATED’s claim of title to the Brighter property is justly requires trespass removing of rents the Brighters’ instruments the time to of the property for the described fair market all for Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. occulting the Brighters’ title, compensating the Brighters trespass, compensating Brighters for damages property other than normal wear and tear, and compensating the Brighters for the costs in bringing this action. JURY TRIAL DEMANDED Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 43: 42 How To Legally Beat Debt Collectors IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA In re: ) ) George Washington, ) ) Debtor ) ) ) vs. ) ) Holton Puque, ) ) Creditor ) ___________________________________) Case No. 02-05555-R Chapter 13 11 USC 9014 motion to contest creditor HoltonPuque’s claim as falsely asserted Brief in support 1. is Holton Puque’s putative Puque judgment alleges against valid George Washington, case number CJ-99-169, Osage County, Oklahoma facially void. Holton judgment against George Washington in a sum of twenty-five thousand dollars have plus statutory interest. Holton Puque’s counsels Holton Puque into thinking that because deceived George Washington failed to enter and appearance and answer in the proceeding; Holton Puque obtained a valid judgment. Nothing could be further from the truth. The debt Holton Puque was attempting to collect goes back to an alleged failure to pay in the early eighties. All competent jurists know that a right of action to collect a debt lapses after five Payne years to in sue Oklahoma. George Nonetheless, counsel persuaded 12, Washington. Oklahoma Statute Section 102, provides “When a right of action is barred by Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 44: 43 How To Legally Beat Debt Collectors the provisions of any statute, it shall to be unavailable or either as a cause of action or ground of defense, except as otherwise setoff.” provided with reference counterclaim Because the statute of limitations had run, Payne had no remedy. After the prescribed time period has lapsed, a statute of limitation serves to extinguish the remedy for the redress of an accrued cause of action. Smith v. Westinghouse Elec. Corp. 732 P2d 466, 468 (Okl. 1987) and Reyonolds v. Porter, 760 P.2d 816, 820 (Okl. 1988). 2. Regardless, the record made in the Osage County Oklahoma case reveals the so-called judgment to be bogus even if the action was timely. Puque’s so-called judgment was via default. All competent jurists know that even in a default judgment, plaintiff must “prove up the claim” by submitting an affidavit of damages. See American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). If affidavit of damages proving up claim incorporates reference to records such as a general ledger and accounting of an alleged unpaid promissory note, the person which responsible must be the for to preparing and See dated Pacific 25 P.3d and by maintaining the person F.C.U. Hawaii Town 513 the who V. 32, of A.2d account general ledger must provide a complete accounting sworn ledger. Yonenaka 371, maintained Kauanoe, Hawaii, Conn. Concrete 807, 96 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Inc. v. (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 L. Rptr. v. (Conn. Super.2000), Estates, and Inc. Brookfield Candlewood Shores 1218, 201 Conn.1 (1986). Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 45: 44 How To Legally Beat Debt Collectors 3. Determination by this court, Holton Puque cannot show by certified copies from the record made in CJ-99-169 Osage County, Oklahoma, that Holton Puque filed a timely action and / or proved up his claim by submitting two (2) affidavits verifying a claim: one the account general ledger signed and dated under penalty of perjury by the person who maintained the ledger wherein is verified that George Washington is indebted to Holton Puque and secondly, Holton Puque’s affidavit of damages sworn under penalty of perjury that George Washington damaged Holton of law. of Puque vs. Puque requires denial of Payne’s claim as matter represented by counsel in the matter 4. Determination by this court, that Holton Puque is Washington, Osage County case number CJ-99-169, judgment creditor in this instant case, and that counsel is deemed by bar membership to be intelligent, educated, and trained and under Rule eleven duty to make inquiry, reasonable under the circumstances, and therefore knew that the socalled judgment in Osage County is facially void warrants sanction of Mr. Puque’s counsel in a sum sufficient enough so as to be instructional and amend the counsel’s bad behavior. Reasonably and logically, the sanction should not be less than the sum sought to be taken away from George Washington. Prepared and submitted by: __________________________________ George Washington 1301 East 15th Street Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 46: 45 How To Legally Beat Debt Collectors Pawhuska, Oklahoma 74056 Certificate of service I, George Washington, certify that December ____, 2002, I mailed a true and correct copy of the above and foregoing motion to contest a matter via first class mail to: Thomas M. Klenda 15 East 5th Street, Suite 3900 Tulsa, Oklahoma 74103-4346 - and Lonnie D. Eck, Standing Chapter 13 Trustee P.O. Box 3038 Tulsa, Oklahoma 74101-2038 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 47: 46 How To Legally Beat Debt Collectors IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA In re: George Washington, Debtor ) ) ) ) ) ) ) vs. Holton Puque, Creditor ) ) ) ) ) ______________________________) Case No. 02-05542-R Chapter 13 11 USC 9014 motion to contest creditor Holton Puque’s claim as falsely asserted Notice of motion George record Holton for Carter Holton notices Puque as Thomas of falsely M. Klenda, to counsel You of motion contest creditor should Puque’s claim asserted. consult with competent legal counsel. If you do not want the court to grant the requested relief, or if you want your views considered, you must file a written response with the Clerk of the United States Bankruptcy Court for the Northern District of Oklahoma no later than fifteen Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 48: 47 How To Legally Beat Debt Collectors (15) days from the date of filing this request for relief. You should also mail a copy of your response to George Washington. Declaration Fifteen motion, days from the receipt of this notice of an order will be prepared and submitted to the court for ratification, unless prior to that time, counsel for Holton Puque answers disputing the material facts and points of law with evidence and authority and sets the matter for hearing. Prepared and submitted by: __________________________________ George Washington 1 East 15th Street Pawhuska, Oklahoma 74000 Certificate of service I, George Washington, certify that December ____, 2002, I mailed a true and correct copy of the above and foregoing notice of motion to contest a matter via first class mail to: Thomas M. Klenda 15 East 5th Street, Suite 3900 Tulsa, Oklahoma 74103-4346 - and Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 49: 48 How To Legally Beat Debt Collectors Lonnie D. Eck, Standing Chapter 13 Trustee P.O. Box 3038 Tulsa, Oklahoma 74101-2038 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 50: 49 How To Legally Beat Debt Collectors 4. How to Win In this section I will give you some legal techniques with the use of motions and pleadings to use in different type of debt collection legal actions 4.1 Arbitration Arbitration has become quite popular as a way of lawyers and their crooked buddies, the judges, ripping people off. There are some folks out there who are counterattacking them before they have a chance to work this con. Internet searches will likely take you to some sites where attorneys inform you how to get an arbitration award against them. Public Citizen, a consumer oriented non-profit organization has recently published a report called “How Credit Card Companies Ensnare Consumers” in which it publically denounces the arbitration scam. You can access the report at http://www.citizen.org/documents/Final_wcover.pdf. Here is what Mr. Higgs has to say about the arbitration scam in his blog. “June 11, 2007 The Scam of Arbitration Filed under: Arbitration Justice — budhibbs @ 4:13 pm The Scam of Arbitration Debt collectors, junk debt buyers and bottom feeders are looking to enrich themselves through arbitration claims filed with the National Arbitration Forum, Minneapolis, MN. Some of the organizations filing arbitration claims include Wolpoff & Abramson, Baltimore, MD, Collect America (CACH & CACV) Denver, CO, Mann-Bracken, Atlanta, GA ,NCO Financial Systems, Baltimore, MD and Midland Credit Management. Arbitration is an area most consumers have little or no knowledge of and the system is set up to take advantage of that. The National Arbitration Forum (NAF) is biased in favor of those who file claims because their filing fee of $250/per account is what keeps them in business. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 51: 50 How To Legally Beat Debt Collectors To give you an idea of how this functions, let’s use our Washington bureaucracy for an illustration: NAF is the Congressional representative writing laws. Debt buyers are the lobbyists looking for favorable results on their investments. They write a check to the NAF, the arbitration claim is filed, the NAF pays a local lawyer to rubber stamp awards in favor of the debt buyer and just like Washington, they make a ton of money, while you get screwed. Sound familiar? The attorneys they use are from your local area (with exceptions) who are also paid a fee of $250/hour with the expectation they will handle up to six claims per hour. Do the math, does this sound ethical? The arbitrators rubber stamp their approval, many lie and sign statements that are false and perjured so they can stay on the money side of the NAF. The arbitration process conducted by the NAF is a corrupt system of big bucks designed to screw the consumer who is mostly kept in the dark about the process and how it evolves. I have seen many awards where attorneys lied in their statements just so they could collect the $250/fee. (Does this sound like a lobbying organization?) There are ways to take on this corrupt system and turn the tables on the National Arbitration Forum and the lawyers they pay to make awards against you they may not be entitled to. A national group of consumer attorneys is fighting the arbitration system head-on. If you are threatened with, or served an arbitration claim get in touch with me for assistance and referral to an expert who can assist you. If you fail to respond to an arbitration claim, it could eventually end up with a judgment against you, so the time to take action is when you are threatened or served.” The following are letters you can use to send to the attorneys who try to trap you in an arbitration forum. Actually, for the most part, arbitration clauses in contracts of adhesion, like other ‘choice of law” or “forum Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 52: 51 How To Legally Beat Debt Collectors selection” clauses are unconstitutional. (A contract of adhesion is one printed in mass; they all look the same and you either “adhere” to the contract or reject it). Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 53: 52 How To Legally Beat Debt Collectors NOTICE Kenneth L. Good & Laverne Good Certified mail number ( 2128 Winter Road Somewhere, Florida 32000 Wolpoff & Abramson, L.L.P. Two Irvington Centre 702 King Farm Blvd. 5th Floor Rockville, MD 20850 And The Forum P.O. Box 50191 Minneapolis, MN 55405-0191 ) Sirs: We are objecting to the notice of arbitration in re: your contract FA0308000191962. We have two grounds for our objection: (1). Forum selection clauses in contracts of adhesion are unenforceable unless the clause could have been rejected without impunity (cite omitted), and (2). The United States Supreme Court has instructed that arbitration clauses are only enforceable to the extent that they permit parties to effectively enforce their substantive rights (cite omitted). In addition to not being allowed discretion relative to the forum selection clause, the arbitration forum of Minneapolis seems an obvious subterfuge deliberately intended to abridge the substantive rights of Floridians such as us. We also believe that we can introduce witnesses who will testify that your arbitration form is a sham where no actual proceedings take place and those with the wherewithal to attend such proceedings are given the “old run around.” Fifteen days from the verifiable receipt of this notice, your silence shall verify that the so- called Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 54: 53 How To Legally Beat Debt Collectors notice of arbitration is a fraud wherein you used the United States Mail in an attempt to create a legal disability where none existed. If you succeed in taking any money or property from us or interfering with a business interest which we may have, your receipt of this letter shall be added to our evidence file in support of a racketeering suite against you. Most sincerely, _________________________________ Kenneth L. Good Laverne Good October 4th 2003 Copy to: (state attorney general) Charlie Crist State of Florida The Capitol PS-O Tallahassee, Florida 32399-1050 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 55: 54 How To Legally Beat Debt Collectors And if they don’t get the point – SECOND NOTICE AND WARNING Kenneth L. Good & Laverne Good Certified mail number ( 2128 Chester Road Yulee, Florida 32097-4905 ) Wolpoff & Abramson, L.L.P. Two Irvington Centre 702 King Farm Blvd. 5th Floor Rockville, MD 20850 And The Forum P.O. Box 50191 Minneapolis, MN 55405-0191 To the personal attention of: Laura Johnson & Ronald M. Abramson: Leave us alone! Your so-called National Arbitration Forum is a complete, total, and utter fraud. Because you are both ignorant of the law and in spite of the fact that you are contumacious, we are affording you the courtesy of reviewing controlling authorities. WARNING! Your continued harassment may result in criminal RICO charges against you and shall result in a civil RICO suit against proper parties. We request: (1). Your written assurance that you will leave us alone, and (2). Your written assurance that you will cease and desist with your ridiculous fraud, “National Arbitration Forum.” MBNA America Bank NA’s reliance on an arbitration clause in MBNA’s contracts of adhesion is morally, Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 56: 55 How To Legally Beat Debt Collectors ethically, and legally wrong. See Myers v. MBNA America and North American Capitol Corporation, CV 00-163-MDWM (D. Mont., March 20, 2001), Armendariz v. Found. Health Psychare Servs., Inc., 6 P.3d 669, 690 (Cal. 2000), Circuit City v. Adams, 279 F.3d 889, 893 (9th Cir. 2002), (citing Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138, 145 (Ct.App. 1997), Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir. 2001), Neal v. State Farm Ins. Co., 10 Cal. Rptr. 781 (Ct. App. 1961), Flores v. Transamerica HomeFirst, Inc., 113 Cal. Rptr. 2d 376, 382(Ct. App. 2001), Szetela v. Discover Bank, 118 Cal. Rptr. 2d 862, 867 (Ct. App. 2002), ACORN v. Household Int’l, Inc., 211 F. Supp. 2d 1160, 1172 (N.D. Cal. 2002), Mandel v. Household Bank, 2003 SL 57282, at *4(Cal. Ct. App. Jan. 7, 2003) (applying Nevada law), Murcuro v. Superior Court, 116 Cal. Rptr. 2d 671, 678 (Ct. App. 2002), Gilmer v. Interstate/Johnson Lane Corp. 500 U.S. 20 (1991), In re: Cole, 105 F.3d at 1482, Shankle v. B-G Maint., Inc., 163 F.3d 1230, 1235 (10th Cir. 1999), In re: Doctor’s Assocs., 517 U.S. at 688, and Ting v. AT&T, NO. 02-15416 (9th Cir. Feb. 11, 2003). Stop harassing us. Most sincerely, _____________ Kenneth L. Good November 19th, 2003 Copy to: (attorney general) Charlie Crist State of Florida The Capitol PS-O Tallahassee, Florida 32399-1050 Leave us alone. _____________ Laverne Good Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 57: 56 How To Legally Beat Debt Collectors What if the wise guys get the picture and try to get you into an arbitration forum in your state? Object to an arbitration forum even if it is in your state! Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 58: 57 How To Legally Beat Debt Collectors Sue Bear Rue 1234 Delightful Lane Hometown, Michigan 00000 Respondent IN THE NATIONAL ARBITRATION FORUM NOTICE OF OBJECTION TO ARBITRATION RULE 13A(2) Forum File Number: BR 549 MBNA America Bank, N.A., Claimant, v. Sue Bear Rue Respondent, _________________________ POINTS AND AUTHORITIES Sue Bear Rue, Respondent, hereby asserts Respondent’s objection to this claim for the following reasons as instructed pursuant to Rule 13A of the National Arbitration Forum Code of Procedure July 1, 2002 hereafter, the Code: STATEMENT OF CASE 1. Claimant has submitted a claim to this Forum stating that this is a claim for money and other relief. BASIS FOR OBJECTION TO ARBITRATE 2. I reject this claim as filed on the basis that this forum lacks both Personal and Subject matter jurisdiction in this matter and has failed to comply with the rules of the Code. Based on the documentation I have received from this forum and the Claimant I have reason to believe that this claim as filed lacks several key elements required to be considered a valid claim and I demand strict proof thereof: Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 59: 58 How To Legally Beat Debt Collectors a. Rule 1 of the Code states that both parties agree to arbitrate. I have never agreed to waive my right to meaningful access to due process by way of contract. b. Rule 12A (2) of the Code requires that the initial claim shall include: a copy of the Arbitration Agreement or notice of the location of a copy of the Arbitration Agreement; c. Rule 12 A (3) of the Code requires a copy documents that support the Claim. d. Rule 12 A (4) of the Code requires an affidavit asserting that statements and documents in the Claim are accurate. e. Rule 12 A (5) of the Code requires that the appropriate Filling Fee be paid. f. Rule 12 B Requires that Claimant promptly file with the forum proof of service of the initial Claim on the Respondent. g. Rule 20 A of the Code indicates that the Arbitrator has powers provided by the code, the agreement of the Parties and the applicable Substantive law. h. Rule 20 C of the Code indicates that the Arbitrator does not have the power to decide matters not properly submitted under this code. LAW AND ARGUMENT NO VALID AGREEMENT TO ARBITRATE 3. Claimant has filed a claim with this forum listing false and misleading allegations regarding the agreement to arbitrate. Arbitration Agreement is clearly defined in the Code under Rule 2 C and is requirement in order to establish the existence of a valid claim. Without first establishing the existence of this agreement any ruling rendered by this forum for either party would be void on its face for lack of personal and subject matter jurisdiction. 4. The courts have upheld that a party who has not agreed to arbitrate a dispute cannot be forced to do so. In addition is has been established that the party making the claim must show that the respondent in the claim was made aware of the arbitration agreement, and that they agreed to its provisions. Casteel v. Clear Channel Broad., Inc. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 60: 59 How To Legally Beat Debt Collectors 5. Arbitration is a matter of contract, and a party cannot be compelled or required to submit to arbitration any dispute he has not agreed to submit. A party who has not agreed to arbitrate a dispute cannot be forced to relinquish the right to trial. 6. Further, under the first step in analysis to decide whether a dispute must be arbitrated under the Federal Arbitration Act (FAA), a party may challenge the validity of an arbitration agreement under general contract principles. 9 U.S.C.A. Sec.1 et seq.; See also In Re David’s Supermarkets, Inc. 43 S.W.3d 94 (2001). In addition, the federal policy favoring arbitration does not apply to the determination of whether there is a valid agreement to arbitrate between the parties; instead ordinary contract principles determine who is bound. 9 U.S.C.A Sec. 1 et seq.; Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, opinion supplemental on denial of rehearing 303 F.3d 453. 7. Claimant claims that there was an alleged agreement to arbitrate. This would then be governed by provisions under the FAA. Even under the FAA, there must be evidence of a valid agreement. Courts are clear in upholding an agreement to arbitrate must be clear to both parties. Otherwise, the legislative intent of arbitration is abused and devalued. In Stout v. Byrider, 50 F.Supp.2d 733, affirmed 228 F.3d 709, the court held that arbitration is a matter of contract, and thus, a party cannot be compelled to arbitrate any claims he or she did not agree to arbitrate when making the contract. In the case at hand, Claimant never agreed to arbitration. Claimant never received any agreement or contract, or information regarding an arbitration clause. 8. The Federal Arbitration Act, 9 U.S.C.A., provides that the purpose of arbitration is to give arbitration agreements the same force and effect as other contracts, where parties expressly agree to submit to disputes to arbitration. Further, there must be a clear agreement to arbitrate. In the case at hand, Respondent did not receive notice or agreement to arbitrate, nor did Respondent ever expressly agree to arbitration. On this basis it is Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 61: 60 How To Legally Beat Debt Collectors reasonable to assume that Respondent was also not notified of his/her right to opt out of this provision with out impunity. 9. No arbitration agreement exists between Respondent and Claimant whatsoever, and none of Respondent’s arguments should be construed to mean that such agreement exists. NO JURISDICTION UNDER THE FAA 10. “Federal law preempts state law on issues of arbitrability.” Three Valleys Mun. Water Dist. v. E.F. Hutton (9th Cir. 1991) 925 F.2d 1136, 1139. “...a party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make that decision.” Three Valleys Mun. Water Dist. v. E.F. Hutton, at 1140/1141. 11. 9 USC Sec. 2 requires a written agreement to arbitrate. The requirement is jurisdictional. Without a written agreement, the FAA does not apply. Further, there is no requirement under the FAA mandating that the jurisdictional defense of “no agreement to arbitrate” be raised within a particular period of time. 12. In the alternative, even with Claimant’s assertion that there was an agreement to arbitrate, the alleged agreement is unenforceable. In Badie v. Bank of America, 67 Cal.App 4th 779, although a California case, the appellate court held that the alleged agreements in the terms and conditions cannot be construed as agreement to arbitrate. Therefore, even if Respondent had received an agreement to arbitration notice, it would be unenforceable. The court stated that “the initial step in determining whether there is an enforceable ADR agreement between a bank and its customers involves applying ordinary state law principles that govern the formation and interpretation of contracts in order to ascertain whether the parties have agreed to some alternative form of dispute resolution. Under both federal and California state law, arbitration is a matter of contract between the parties.” (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944-945; see Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 62: 61 How To Legally Beat Debt Collectors also Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 56-57, 62-63; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8.) As the United States Supreme Court has stated, “The ‘liberal federal policy favoring arbitration agreements,’ [citation] . . . is at bottom a policy guaranteeing the enforcement of private contractual arrangements.” (Mitsubishi Motors v. Soler ChryslerPlymouth (1985) 473 U.S. 614, 625; see also Volt Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468, 478.) Similarly, the California Supreme Court has stated that, “[T]he policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.” (Victoria v. Superior Court (1985) 40 Cal.3d 734, 739, italics in original.) “Although ‘[t]he law favors contracts for arbitration of disputes between parties’ [citation omitted], ‘ “there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate . . . .” ’ [Citation omitted.]” (Id. at pp. 744; see also Arista Films, Inc. v. Gilford Securities, Inc. (1996) 43 Cal.App.4th 495, 501; Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 640.). 13. Myers v. MBNA America and North American Capitol Corporation, CV 00-163- M-DWM (D.Mont., March 20, 2001), although not an appellate case, is similar in ruling as the above mentioned Badie case. The judge ruled that a mandatory arbitration clause cannot be enforced. In that case, the arbitration clause in the alleged credit card agreement was held unenforceable because the defendant never agreed under the contractual relationship between parties to arbitrate her dispute with MBNA. The judge found that no such agreement could be implied. The judge further stated that “MBNA skipped offer and went straight to acceptance. . . if MBNA’s argument that Myers agreed to arbitration . . . there would be no reason to stop at arbitration. . . MBNA could amend the agreement to include a provision taking a security interest in Myers’ home or requiring Myers to pay a penalty if she failed to convince three friends to sign up for MBNA cards.” Id. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 63: 62 How To Legally Beat Debt Collectors WHEREFORE, there is no consent or agreement on the part of Respondent to arbitrate, Respondent respectfully requests that this dismissed as outlined in the Code Rule 41 A. _____________________________ Sue Bear Rue CERTIFICATE OF SERVICE The undersigned parties hereby certifies that on this date a copy of the foregoing document was duly served upon the Claimant by depositing same in the United States Mail, postage prepaid, via facsimile and/or hand delivered at their last known addresses: MBNA America Bank, N.A. 702 King Farm Blvd. Two Irvington Centre Rockville, MD 20850-5775 DATED: March ____, 2004 __________________________ Sue Bear Rue Sue Bear Rue 1234 Delightful Lane Hometown, Michigan 00000 Respondent matter be Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 64: 63 How To Legally Beat Debt Collectors IN THE NATIONAL ARBITRATION FORUM NOTICE OF OBJECTION TO ARBITRATION RULE 13A(2) Forum File Number: BR 549 MBNA America Bank, N.A., Claimant, v. Sue Bear Rue Respondent, _________________________ Respondents motion to strike the so-called affidavits of Bruce Buttkiss, Jr. Brief in support The putative affidavits of Bruce Buttkiss, Jr. are nullities for the reason that: (1). Mr. Bredicakas incorporates documents by reference which Bridicakas did not sign and date therefore, Bredicakas has no actual knowledge of the articles Bredicakes purports to swear to, and (2) the affidavits do not include any actual accounting and therefore are merely idealistic and theoretical notions of Bredicakas. Conclusion This forum’s swift to admit that the so-called affidavits are nullities avoids the conclusion that the arbitration forum is openly colluding with MBNA America Bank, N.A. in violation of 18 USC 1961, 1962 & 1864(a). Prepared and submitted by: _____________________________ Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 65: 64 How To Legally Beat Debt Collectors Sue Bear Rue 726 Iowa Street Ashland, Oregon 97520-2944 CERTIFICATE OF SERVICE The undersigned parties hereby certifies that on this date a copy of the foregoing document was duly served upon the Claimant by depositing same in the United States Mail, postage prepaid, via facsimile and/or hand delivered at their last known addresses: MBNA America Bank, N.A. 702 King Farm Blvd. Two Irvington Centre Rockville, MD 20850-5775 DATED: March ____, 2004 __________________________ Sue Bear Rue Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 66: 65 How To Legally Beat Debt Collectors 4.2 Overview Of The Fair Debt Collections Practices Act The Act does not apply to the original makers of a loan. The Act applies to third party debt collectors. Third party debt collectors includes lawyers and law firms who are attempting to collect any alleged debt including mortgage foreclosures. George W. Heintz v. Darlene Jenkins, 514 U.S. 291, 115 S.Ct. 1489. When a third party debt collector contacts an alleged debtor, the collector must in the first communication or within five (5) days thereafter furnish the alleged debtor with a “dunning letter.” The dunning letter must inform the alleged debtor that the collector is attempting to collect a debt and inform the alleged debtor that they have thirty (30) days to dispute the debt. 15 USC 1692g, 1692g(a)(3). The alleged debtor has thirty (30) days to dispute the debt requiring the collectors to furnish validation of the debt. 15 USC 1692G(b). Validation of the debt can either be a signed judgment order or an accounting that is signed and dated by the person responsible for maintaining the account general ledger. See Spears v. Brennan, Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). See also Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3Dist. 1987). Bear in mind creditor’s attorneys can use in their defense that in 1999 the United States Fourth Circuit Court of Appeals has opined that validation can be nothing more complicated than this: "Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt." See, Chaudhry v. Gallerizzo, 174 F.3d 394 (1999). Let’s say you have been sued for an old credit card debt and you are called to a hearing. The county clerk says it's just a hearing where you can say whether you owe the debt or not, eh? Shame on her for giving you such bad advice. It isn't that she has given you bad advice but she should not have made it sound so simple as that. She at Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 67: 66 How To Legally Beat Debt Collectors least ought to have told you that the lawyer on the case was from the local office of Dewey Cheatum & Howe, and the hearing will be held in the courtroom of Judge Whangum Hardnose who is a good friend of the lawyers. She should have warned you that Judge Hardnose almost always grants judgments against people like you. She should have at least told you that you need expert help or Judge Hardnose will hang a judgment on you in less than 5 minutes so he can clear the day's docket quickly and get back to his own law office or whatever. She should have told you that the judge won't even care what the debt was for, how much the debt is, how much interest they plan on hitting you with or how much they plan to charge you for that 5 minutes it takes to get the judgment. So let me assure you that the above is all approximately true. Should you send them a letter offering to settle? Well, that is one option, of course and they will be probably be glad to settle for as little as $3.000 immediate cash. If you don't have that much cash they may even be willing to let you make payments provided you are willing to sign a stipulated judgment and of course you never want to do that under any circumstances. How do you know how they got that figure? You don't and they don't really want to take the time or trouble to explain it to you in the way the courts have ruled that they must do. There are many cases on record where the federal courts have ruled that debt collectors must give you a full and complete accounting of the debt and how their final amount has been calculated. One such case is Fields v. Wilber Law Firm, P.C. 383 F.3d 562 C.A.7 (Ill.), 2004, which is a 7th Circuit Court of Appeals case in which Judge Minh ruled that exact way. Most debt collectors like to claim that they only have to give you a very limited amount of information and of course they can quote cases such as Spears vs Brennan, Chaudry and others in an attempt to make you think they know what they are talking about and therefore can't be argued with. Nothing could be further from the truth. You have the right to know how much the debt is and what it is for, you have the right to examine their evidence if they have any that they usually don't. They usually don't because the Judge Hardnoses who sit on our benches all across America really don't care about all of that unless they are forced to question the validity of the debt by people who have learned how to fight back Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 68: 67 How To Legally Beat Debt Collectors against shyster lawyers and their sleazy tricks. It isn't just a hearing where you can say whether you owe the debt or not. It is a hearing where you can demand to know and say a lot more than that but you do have to know how to do it properly or they will win the case easily. 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. All that having been said, requesting validation of the debt works for two reasons: First and most importantly, it buys you some time. Under the FDCPA, all collection activity must cease until the attorney puts that verification in the mail to you. The verification is usually a simple statement signed by the creditor, and it will not take the collection attorney long to obtain it or mail it, but it does "stay" collection activities, including law suits, until answered. Secondly, it sends a signal to the collection attorney that you are not going to be a rollover debtor. He knows you will be active in the defense of the suit. The last point is very critical because a high percentage of collection suits simply proceed to default judgment without any response from the debtor. Default judgment is a collection attorney's dream. He loves consumers who don't answer law suits and, believe it or not, a majority of law suits filed by collection attorneys go unanswered because the debtors feel like they can't fight the debt in court, usually because they feel they owe the money so they have no point in fighting. However, by filing a validation request, you send a very strong message to the collection attorney that you aren't going to give up. He might actually have to go to court himself and you may force him to prove the debt. Also, by filing the validation request, you actually stay the collection proceedings. Thus, if a collection attorney cannot move forward against you in a collection suit, the chance of your having a default judgment against you is greatly diminished. They don't like that one bit. The Act also allows damages when the collector makes false statements regarding the character or amount of the Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 69: 68 How To Legally Beat Debt Collectors alleged debt. An aggrieved party has one year from the violation of the Act to sue or one year from the taking of property by the collector. An aggrieved party under the Act is entitled to one thousand dollars ($1,000.00) in statutory damages plus unlimited damages for intentional infliction of emotional anguish. Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1267, 833 P.2d 545 (1992), and Fletcher v. Security Pacific National Bank, 23 Cal.3d 442, 451, 591 P.2d 51 (1979). In addition, without time limitation, judgments including judgments that have been collected and mortgage foreclosures are void by reason of deprivation of due process rights deprives the court of subject matter jurisdiction. It is possible to recover full damages under both strategies or double recovery. Award of statutory damages does not require proof of actual damages, Woolfolk v. Van Ru Credit Corp., D.Conn.1990, 783 F.Supp. 724. Consumer need not produce evidence of actual damages, Crawford v. Credit Collection Services D.S.D. 1995, 898 F.Supp.699. Actual damages not capped at $1,000 Smith v. Law Offices of Mitchell N. Kay, D. Del. 1991, 124 B.R. 182. Court may consider sum necessary to amend bad behavior. Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1267, 10 Cal Rptr. 2d 538, 833 P.2d 545 (1992) and Fletcher v. Security Pacific National Bank, 23 Ca.3d 442, 451, 153 Cal.Rptr. 28, 591 P.2d 51 (1979). Debtor need not show intentional conduct on part of collector. Russell v. Equifax A.R.S. 74 F.3d 30, 33 (2nd Cir. 1996), Bently v. Great Lakes Collection Bureau, 6 F.3d 60, 63 (2nd Cir. 1993). The FDCPA allows recovery for costs. If a debtor notifies a debt collector within 30 days after receiving notice of an alleged debt, that the debt, or any portion thereof, is disputed, the debt collector shall cease collection activity until the debt collector obtains and sends verification of the debt to the debtor. 15 USC 1692g(b). A copy of the consumer credit contract is not sufficient to validate the debt. Validation requires presentment of the account and general ledger statement signed and dated by the party responsible for maintaining the account. Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of Brookfield v. Candlewood Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 70: 69 How To Legally Beat Debt Collectors Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). and Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3Dist. 1987). The debt collector must actually review the file. 15 USC 1692e(g). Claims under the Fair Debt Collections Practices Act adhere to the unsophisticated consumer standard. See Gammon v. GC Services Ltd. Partnership, C.A.7 (Ill.) 1994, 27 F.3d 1254, on remand 162 F.R.D. 313. According to the Financial Services Regulatory Relief Act of 2006 (FSRRA), the filing of a legal complaint (lawsuit) 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, Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 71: 70 How To Legally Beat Debt Collectors 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.’ Assigned or purchased debt: How do you know Bob is the right guy to pay? Why should you care if a debt is purchased or assigned? In an assignment, the collection agency does not own the debt, and therefore you do not technically owe them any money. There is no way for a collection agency to prove that you owe them money because there is only an assignment of the debt and not a contract between you and the creditor. One loophole: Some contracts have the wording 'debtor agrees to be responsible for payment of this debt to creditor “or its assigs.” This is a contract between you and the debt collector as well as the creditor and if they can provide you with a copy of a contract that states this (with your signature!), you are pretty much stuck and perhaps need to negotiate. www.creditinfocenter.com/rebuild/debt_validation.shtml. What does a debt collector need to provide as debt validation? • Proof that the collection company owns the debt/or has been assigned the debt. (Bob is legally entitled to collect this particular debt from you.) This is basic contract law. It is very difficult to get a judgment without a direct contract between collection agency and the original creditor. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 72: 71 How To Legally Beat Debt Collectors At a minimum, some account statements from the original creditor. If you really want to get sticky, you can pin them down on the amount of the debt by requiring complete payment history, starting with the original creditor. (How the heck did Bob calculate this debt? What fees/interest Bob has tacked on to this debt and how he determined these fees?) This requirement was established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004. • Copy of the original signed loan agreement or credit card application. (Your contract with Joe establishing the debt between you.) However, account statements from the original can fulfill these requirements. When a creditor hires a collection agency the debt has been assigned to the collection agency. If a collection agency is successful at collecting the money on the account, they usually keep a percentage of what is collected as payment for services. Original creditors sometimes sell debts in large portfolios to collection agencies. This is starting to be the norm, and several of these companies, called Junk Debt Buyers (JDBs), are now being traded on Wall Street. The companies do not spend much money at all for these debts, sometimes paying less than 1 cent on the dollar. Even if the debt is not a large debt, they often hire attorney to send out mass form letters to debtors in the hopes of collecting. As you can see, even if they get a small percentage of the debtor to pay, profits are enormous. Continue to treat any collection agency, junk debt buyer or law firm who says they own the debt as a collection agency subject to the FDCPA. You can still request validation and proof of the purchase, because if they can't validate it, the collection agency can't prove you owe the debt. Often a JDB will tell a consumer that since they purchased the debt, they are not subject to the FDCPA. It's simply not true FDCPA Section 809. Validation of debts [15 USC 1692g] (b) If the consumer notifies the debt collector in writing within the thirtyday period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains • Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 73: 72 How To Legally Beat Debt Collectors verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Plus, they must show proof positive that you owe them this debt. It's not enough to send you a computergenerated printout of the debt. There is an opinion letter from the FTC to support this: www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm; nor can they ask you to pay for digging up your records: www.ftc.gov/os/statutes/fdcpa/letters/krisor2.htm. So, if a creditor can't verify a debt: They are not allowed to collect the debt; they are not allowed to contact you about the debt; and they are also not allowed to report it under the Fair Credit Reporting Act (FCRA). Doing so is a violation of the FCRA, and the FCRA states that you can sue for $1,000 in damages for any violation of the Act. The opinion letter from the FTC which clearly spells out that a collection agency cannot report a debt to the credit bureaus which has not been validated: ftc.gov/os/statutes/fdcpa/letters/cass.htm. On Spears vs. Brennan the appeals court determined: ”Brennan (plaintiff collection agency attorney) violated 15 U.S.C. § 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears.” This means that you have an absolute defense in court to deny them judgment if they still have not validated the debt. Once you get your FDCPA dispute letter in, the collector cannot even get a judgment until they satisfy the FDCPA law. The appeals court overturned the default summary judgment in part because the collection agency lawyer did not meet the rules of the FDCPA. This could be grounds for getting a default judgment vacated. It's also another violation of the FDCPA and you can collect $1,000 from them. As you can see, “debt” stopped being a “debt” when the original creditor charged it off, sold it and took the tax deduction for the loss. It became an investment when the first junk debt buyer bought it as an investment with full knowledge that it was a bad debt. These people are not creditors and are not afforded the protection under the law that creditors are. They are simply investors who made a Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 74: 73 How To Legally Beat Debt Collectors bad investment. This is like you calling your stockbroker to purchase a stock, you buy it, it crashes, you lose all your money and then you sue your stockbroker because you made a bad investment. This is exactly what these junk debt buyers are doing when they use the courts to collect on thier bad investments. The courts get really pissed off when they are used to enforce return on investment. You need to bring this up repeatedly and even add it into your response to the summons. Get it documented early on and make it a part of permanent record, which your response to the summons becomes. First of all, under Federal law, a debt must be “charged off” 180 days after first major delinquency, which is usually on the 7th month. The purpose of this mandatory chearge-off is to stop penalties and excessive interest. That is the whole reason for it. The interest is limited to a statutory maximum, not the contract rate. The contract rate only applies up to the date of charge-off. After charge-off the statutory max applies. As far as JDB go, they must be able to prove that they own the debt and be able to show an entire account history and itemization of all charges, otherwise, the suit gets dismissed. There is a big difference between “assignment” and “sale.” In any civil suit in FL, legal fees and costs must me sought in addition to the principal amount. They are not automatic. They are awarded by the court, or excluded by the court. The junk debt buyer does not have any prior business relationship or contract with the debtor; therefore, they do not have the same rights as the original creditor. They must prove that the obligation actually exists. Furthermore, the amount paid for the debt is the amount of the loss; not the original contract amount or charge off amount. The courts will dismiss these suits almost every time when the amount is questioned, and cannot be documented. The Discovery Motion is perfectly valid as provided for under the law being made by the defendant. The Pro Se staus makes no difference whatsoever. A Pro se Defendant has all of the same rights of the Discovery process as the defendant being represented by counsel. Most debt cases in FL never get past the pre-trial appearance, as anyone who denies a claim, gets forced into a little room with an arbitrator. Little do most people know, they do not have to say anything at this time except stating they deny the debt and want a trial date. A common Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 75: 74 How To Legally Beat Debt Collectors misunderstanding, is interest on a credit card. FDCPA allows a collector to add interest if you original agreement calls for addition of interestd during collection proceedings or the addition of such interest is allowed under state law; every state authorizes the collection of such interest (if it is in the agreement). The assignee, the collectional agency, must be collecting on behalf of the original creditor and if the original creditor has an in house collection dept, the chances are the collection agency is trying to pull a fast one; the original creditor has to contract with the collection agency. Discovery in small claims court: if you do not request discovery. then you will lose out if you have to appeal: appeals court will look into errors, and what's in the records. Court is you final chance to be heard. Pretty much if it isn’t said during the trial, it isn’t going to said in appeal unless there's was a error or a bad call by the court. If a debt was attempted to be collected on by another collection agency, the 3rd or new collection agency can't claim to be the assignee a contract must be signed by you to be used in court. You should always request discovery, so you know what you are up against. Don't expect the other guy to play fair or within the rules You must request for cost and reasonable attorney fee if you win; it's up to the court to award them to you if you win the case. Most attorneys will agure that a pro se should not get attorney's fees; there is plenty of case law to support a pro se getting reasonable attorney fees in certain cases. 4.3 To Complete Foreclosure, Is The Original Note Required? You Be The Judge Where the complaining party cannot prove the existence of the note, then there is no note. To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLC. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.) Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 76: 75 How To Legally Beat Debt Collectors states, “...; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469 in Carnegie Bank v Shalleck 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302" Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977), “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform Commercial Code.In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bkrtcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession ...” Unequivocally the Court’s rule is that in order to prove the “instrument”, possession is mandatory. In addition to the note, another element of proof is necessary – an accounting that is signed and dated by the person responsible for the account. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 77: 76 How To Legally Beat Debt Collectors provide a complete accounting which must be sworn to and dated by the person who maintained the ledger. See Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). 4.4 Are All Contracts Assignable? What About Contracts That “Die With The Individual” Or Go To A Question Of The Credit Of The Parties? You Be The Judge. “As a general rule, all contracts are assignable . . . An exception to this rule is that a contract that relies on the personal trust, confidence, skill, character or credit of the parties, may not be assigned without the consent of the parties.” See Crim Truck & Tractor Co. v. Navistar Int’l 823 S.W.2d 591, 596 (Tex. 1992). See also Southern Community Gas Co. v. Houston Natural Gas Corp., 197 S.W. 2d 488, 489-90 (Tex.Civ.App. – San Antonio 1946, writ ref’d n.r.e.), and Moore v. Mohon, 514 S.W. 2d 508, 513 (TexCiv. App. – Waco 1974, no writ). Most rights under contracts are assignable. 2 R.C.L. 598. The exception is where rights are coupled with liabilities, with contracts for personal services or with contracts involving personal confidence. Fire insurance contracts are within the class last mentioned, and are held not to be assignable because of the confidence reposed by the insurer in the owner of the property. Thus, the owner may not sell the property and transfer the policy to the purchaser along with the title; for the insurer has not agreed to insure the property in the hands of the purchaser nor to assume the hazard involved in his ownership and possession. On the other hand, an assignment, not of the policy itself with its obligations, but of the owner's rights there under by way of pledge or otherwise as security for a debt, is held valid, in the absence of express restriction to the contrary; and the reason for this distinction is that such pledge or assignment does not affect the personal relationship, i.e., the ownership of the property by the insured, upon the faith of which the policy has been Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 78: 77 How To Legally Beat Debt Collectors issued. Cooley's Briefs on Insurance (2d Ed.) vol. 2, pp. 1768, 1769; Ellis v. Kreutzinger, 27 Mo. 311, 72 Am.Dec. 270; True v. Manhattan Fire Ins. Co. (C.C.) 26 F. 83; Stokes v. Liverpool & London & Globe Ins. Co., 130 S.C. 521, 126 S.E. 649. Such rights could only have arisen in Deutsche from a direct guaranty made by the Mauricios to Deutsche, or by assignment from someone to whom a guaranty had been made that was legally assignable. There is no claim of a direct guaranty to Deutsche, so any rights it had could only have arisen from a legally valid assignment by Centron or Security Marine of the Mauricios' guaranties to them. The district court concluded that such rights had been validly assigned. We disagree. Under Maryland law, neither of the assignments made by Centron to Deutsche in respect of Chesapeake's indebtednesses was effective to assign any guaranty rights against the Mauricios respecting the note secured by the fifty-foot yacht. Whether a particular assignment is effective to assign a guaranty respecting a particular debt depends on two things: (1) whether the assignment in terms covers the guaranty, and (2) whether the guaranty is a legally assignable one. Deutsche relies on two assignments as the source of its right to recover from the Mauricios as guarantors of the note securing the fifty-foot yacht: (1) Centron's July 31, 1990 assignment to Deutsche and (2) Centron's October 1, 1990 assignment to Deutsche simultaneously with Security Marine's assignment to Centron, of their respective "rights, titles, and interests" in Chesapeake's indebtednesses. Looking first to Centron's July 31, 1990 assignment, we conclude that, even if it could be interpreted as intended to include the Mauricio guaranty to Centron, the guaranty was not legally assignable. While, as indicated in Part II.A., an assignment of debt carries with it an assignment of any guaranty of that debt, this does not mean that a guaranty may be assigned independently of any underlying debt. The general rule is, in fact, to the contrary where the guaranty is "special," i.e., made only to particular potential lender or lenders. As expressed in black-letter form: If a guaranty covers future credit which is to be extended by a specific individual, it may not be transferred to another person so as to enable him to become the creditor who is secured by the guaranty. 38 Am. Jur. 2d Guaranty § 35. The Centron guaranty is such an instrument. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 79: 78 How To Legally Beat Debt Collectors It specifies that it is made "to induce . . . Centron Financial Services, Inc. to make loans and in consideration of loans heretofore and hereafter made by [Centron] to Chesapeake." JA 36. Further, it promises "prompt and punctual payment . . . of any and all present and future indebtedness . . . of [Chesapeake] to you," i.e. Centron. Id. (emphasis added). The guaranty does contemplate that once Centron extended credit to Chesapeake, Centron might assign the debt, for the guaranty was for payment to Centron, "its successors and assigns." Id. The guaranty nowhere includes, however, a promise to pay debts arising between Chesapeake and anyone other than Centron. Under the general rule, therefore, the Centron guaranty, covering only credit extended by Centron, could not be assigned by Centron so as to enable Deutsche to become a creditor secured by the guaranty. We are satisfied that Maryland courts would so hold, though on a basis more explanatory of the actual reason for non-assignability of guaranties independently of consummated debt. Maryland law properly treats guaranties of future debt as simply a species of "continuing" or "standing" offers to make a series of individual, unilateral contracts. See Weil v. Free State Oil Co., 200 Md. 62, 87 A.2d 826, 830 (Md. 1956). Under general contract law principles, such offers are accepted by the extension of credit by the offeree. See id. ("to be accepted from time to time by [credit extension]"). See generally Restatement (Second) of Contracts § 31, cmt. b (1981) ("continuing guaranty" constitutes a "standard example of a divisible offer to make a series of contracts"). And, until such a continuing offer is accepted, it remains only an offer of contract which, as with contract offers in general, is not assignable. See Routzahn v. Cromer, 220 Md. 65, 150 A.2d 912, 915 (Md. 1959) ("an offer made to one person cannot be accepted by another"); Restatement (Second) of Contracts § 52 ("an offer can be accepted only by a person whom it invites to furnish consideration"); 38 Am. Jur. 2d Guaranty § 35 ("offer of guaranty is, in and of itself, not assignable"). A note void in the hands of the payee, because obtained by him of the maker by fraud, is collectible in the hands of a subsequent bona fide holder who has taken it before maturity for value; but if such holder has paid on such transfer a less sum than the amount of the note, he Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 80: 79 How To Legally Beat Debt Collectors can only recover the amount which he, or some prior holder through whom he derives title, has paid for it. Holcomb v. Wyckoff. 1870 WL 5231 (N.J. Sup.). 4.5 How To Beat An Old Credit Card Debt What is the best strategy to beat an old credit card debt that has been sold to a debt buyer? During my research for this book, I’ve found a great source of information on this topic; according to the law offices of Edelman, Combs, Latturner & Goodwin, LLC at http://www.edcombs.com/CM/Actions/Are-You-Being.asp, “Debt buying is a fast-growing business in the U.S. Just because a debt buyer claims they are owed money from you in court or in a letter doesn't mean they are entitled to anything. Many of the debts they purchase are undocumented, not beyond the statute of limitations, or legally invalid. “If you are being dunned or sued by a debt buyer, it is important for you to understand your rights as a consumer. You may have a valid defense to the claim -or you may have a claim against the debt buyer. “The Federal Trade Commission reported with regard to a lawsuit filed in 2004 that accounts enforced by the debt buyer may came from "consumers who never owed the original debt in the first place. Many consumers pay to get [a debt buyer] to stop threatening and harassing them, their families, their friends, and their co-workers." (http://www.ftc.gov/opa/2004/12/camco.htm) “Likewise, the Attorney General of Minnesota in 2004 sued two collection agencies that represent debt buyers. According to the Attorney General, the companies used illegal tactics such as ignoring written disputes filed by consumers to coerce those consumers into paying invalid debts. “Even if you know the debt is valid, you have the right to know that the debt buyer actually owns the debt. The debt buyer must be prepared to provide you with a copy of an assignment of the debt that specifically refers to the debtor by name, address, and account number. Also, beware: making even a small Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 81: 80 How To Legally Beat Debt Collectors payment may revive the statute of limitations on an old debt which would otherwise be uncollectible. “Click on this link for more information on debt buying and your legal rights.” [On this link you will be able to download an extraordinary .pdf document titled titled “Defense of Collection Cases” by the law offices of Edelman, Combs, Latturner & Goodwin, LLC http://www.edcombs.com/CM/Custom/collection.defense.12008.pdf] 4.6 Phone Scripts To Use With Third Party Collectors Commentary on the morality of debt: I believe that if we owe, we should repay. The fallacy is that we rarely owe when a collector calls. The following phone scripts are not mean spirited when we realize that the caller is trying to get us to pay money that we don’t owe! In spite of CallerID collector calls you, or other screening, if a “Thank you for calling. May I have your full name please? Thank you. Please spell your full name for me. Now, (their name) what is your Social Security Number? (After listening to their protest say) I just need to have your identity so I will be suing the correct person if you violate my rights under the Fair Debt Collections Practices Act.” - or “Thank you for calling. Do I have a contract with your company? (They’ll tell you they’re call regarding your xyz bill). That’s not my question. Do I have a contract with your company? Don’t ever call me again.” - or “Thank you for calling. I was not expecting your call and I’ll need a while to look up some helpful information. Would you please hold? (Don’t wait for their answer. put the phone down and walk away).” Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 82: 81 How To Legally Beat Debt Collectors 4.7 How To Respond To Debt Collections Letters If you have studied this topic in other sources, you will recognize that the above and foregoing dispute letters go beyond what is required under the Fair Debt Collections Practices Act. So why do they work? Because you are offering to contract with them – otherwise known as a conditional acceptance. People that have used them have reported great success and almost nobody has being contacted again after sending one of the above letters to a debt collector. Also, very important I advise against sending a cease and desist letter or any letter containing the words “cease and desist.” A cease and desist letter is an invitation to being sued! Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 83: 82 How To Legally Beat Debt Collectors 4.7.1 Dispute letter to a debt collector (credit card, mortgage or other loan) Your Name Certified mail receipt number______________________________ Your address City, state, zip code The name of the person who sent you the collection letter Their address City, state, zip Sir or Madam: You are in receipt of notice under the authority of The Fair Debt Collections Practices Act regarding your file #XXXXXXXXXXX #OOOOOOO 000000 RMS008. It is not now, nor has it ever been my intention to avoid paying any obligation that I lawfully owe. In order that I can make arrangements to pay an obligation which I may owe, please document and verify the “debt” by complying in good faith with this request for validation and notice that I dispute part of, or all of the alleged debt. 1. Please furnish a copy of the original promissory note redacting my social security number to prevent identify theft and state under penalty of perjury that your client named above is the holder in due course of the promissory note and will produce the original for my own and a judge’s inspection should there be a trial to contest these matters. 2. Please produce the account and general ledger statement showing the full accounting of the alleged obligation that you are now attempting to collect. 3. Please identify by name and address all persons, corporations, associations, or any other parties having an interest in legal proceedings regarding the alleged debt. 4. Please verify under penalty of perjury, that as a debt collector, you have not purchased evidence of debt and are proceeding with collection activity in the name of the original maker of the note. 5. Please verify under penalty of perjury that you know and understand that certain clauses in a contract of adhesion, such as a so-called forum selection clause, are unenforceable unless the party to whom the contract is extended could have rejected the clause without impunity. 6. Please verify under penalty of perjury that you know and understand that credit card contracts are a series of continuing offers to contract and as such are nontransferable. 7. Please provide verification from the stated creditor that you are authorized to act for them. 8. Please verify that you know and understand that contacting me again after receipt Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 84: 83 How To Legally Beat Debt Collectors of this notice without providing procedurally proper validation of the debt constitutes the use of interstate communications in a scheme of fraud by advancing a writing, which you know is false with the intention that others rely on the written communication to their detriment. Disputing the “debt” Your signature Your name month day year Copy to: Consumer Response Center Federal Trade Commission Washington, D.C. 20580 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 85: 84 How To Legally Beat Debt Collectors 4.7.2 Dispute letter to a debt collector (attempting to collect state taxes) Kenney F. Love Certified mail receipt number_________________________ 916 E. Maple Blvd. Sunnyville, Oklahoma 74000 GC Services Limited Partnership C/o P.O. Box 271376 Oklahoma City, Oklahoma 73137 Jess Moran: You are in receipt of notice under the authority of The Fair Debt Collections Practices Act regarding your file #ITIS235242479. It is not now, nor has it ever been my intention to avoid paying any obligation that I lawfully owe. In order that I can make arrangements to pay an obligation which I may owe, please document and verify the “debt” by complying in good faith with this request for validation and notice that I dispute part of or all of the alleged debt. 1. Please furnish a copy of the assessment this so-called debt is based on redacting my social security number to prevent identify theft and state under penalty of perjury that Oklahoma Tax Commission is the holder in due course of the original assessment and will produce the original for my own and a judge’s inspection should there be a trial to contest these matters. 2. Please name the person or persons who completed the assessment along with their verification under penalty of perjury showing the full accounting of the alleged obligation that you are now attempting to collect. 3. Please identify by name and address all persons, corporations, associations, or any other parties having an interest in legal proceedings regarding the alleged debt. 4. Please verify under penalty of perjury, that as a debt collector, you have not purchased evidence of debt and are proceeding with collection activity in the name of the Oklahoma Tax Commission. 5. Please provide verification from the Oklahoma Tax Commission that you are authorized to act for them. 6. Please verify that you know and understand that contacting me again after receipt of this notice without providing procedurally proper validation of the debt constitutes the use of interstate communications in a scheme of fraud by advancing a writing, which you know is false with the intention that others rely on the written communication to their detriment. Disputing the “debt” Kenney F. Love April 30th 2003 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 86: 85 How To Legally Beat Debt Collectors 4.7.3 Dispute letter to a debt collector (attempting to collect a bill for services) Bobby Farmer Certified mail receipt number______________________ Route 1, Box 60 Union City, Oklahoma 73090 Lawrence R. Scott 2519 N. W. 23rd Street, Suite 204 Oklahoma City, Oklahoma 73107 Sir: You are in receipt of notice under the authority of The Fair Debt Collections Practices Act regarding your file “INTEG CANADIAN VALLEY REG.”. It is not now, nor has it ever been my intention to avoid paying any obligation that I lawfully owe. In order that I can make arrangements to pay an obligation which I may owe, please document and verify the “debt” by complying in good faith with this request for validation and notice that I dispute part of or all of the alleged debt. 1. Please furnish a copy of the original contract redacting my social security number to prevent identify theft and state under penalty of perjury that your client is the bona fide party in interest of the contract and will produce the original for my own and a judge’s inspection should there be a trial to contest these matters. 2. Please produce the account and general ledger statement showing the full accounting of the alleged obligation that you are now attempting to collect. 3. Please identify by name and address all persons, corporations, associations, or any other parties having an interest in legal proceedings regarding the alleged debt. 4. Please verify under penalty of perjury, that as a debt collector, you have not purchased evidence of debt and are proceeding with collection activity in the name of the original contracting party. 5. Please verify under penalty of perjury that you know and understand that certain clauses in a contract of adhesion, such as a so-called forum selection clause, are unenforceable unless the party to whom the contract is extended could have rejected the clause without impunity. 6. Please provide verification from the stated creditor that you are authorized to act for them. 7. Please verify that you know and understand that contacting me again after receipt of this notice without providing procedurally proper validation of the debt constitutes the use of interstate communications in a scheme of fraud by advancing a writing that you know is false with the intention that others rely on the written communication to the detriment of Bobby Farmer. Disputing the “debt” Bobby Farmer May 28th 2003 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 87: 86 How To Legally Beat Debt Collectors Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 88: 87 How To Legally Beat Debt Collectors 4.7.4 Dispute letter to a debt collector (attempting to domesticate a foreign judgment) Your Name Certified mail receipt number_______________________ Your address City, state, zip code The name of the person who sent you the collection letter Their address City, state, zip Sir or Madam: You are in receipt of notice under the authority of The Fair Debt Collections Practices Act regarding your file #Il-10969. It is not now, nor has it ever been my intention to avoid paying any obligation that I lawfully owe. In order that I can make arrangements to pay an obligation which I may owe, please document and verify the “debt” by complying in good faith with this request for validation and notice that I dispute part of or all of the alleged debt. 1. Please furnish a copy of the alleged judgment and document that the court file in the original proceeding shows a copy of the original promissory note redacting my social security number to prevent identify theft and state under penalty of perjury that the judgment debtor named was the holder in due course of the promissory note and will produce the original for my own and a judge’s inspection should there be a trial to contest these matters. I also request that the “debt” be fully extinguished in the event that I pay off the note by returning the original to me Brightered paid in full and signed by an officer of the holder in due course. 2. Please produce the account and general ledger statement showing the full accounting of the alleged obligation that the judgment was based on. 3. Please identify by name and address all persons, corporations, associations, or any other parties having an interest in legal proceedings regarding the alleged debt. 4. Please verify under penalty of perjury, that as a debt collector, you have not purchased evidence of debt and are proceeding with collection activity in the name of the original maker of the note. 5. Please verify from the record in the proceedings in case number IL-10969 that the record in the trial court established that I was a resident of Illinois, operated a business in Illinois, or owned property in Illinois establishing the Illinois Court’s personal jurisdiction over me. If personal jurisdiction was based on a forum selection clause, please give ten examples of parties who were allowed to line through the forum selection clause in the contract of adhesion with the judgment creditor. 6. Please verify under penalty of perjury that you know and understand that contracts which go to the credit of the parties are non-transferable absent a specific enabling clause fully disclosed at the time of contracting and cite the enabling clause Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 89: 88 How To Legally Beat Debt Collectors in the contract the judgment was based on a accompany the document with an affidavit of the party co-signing the contract that the transfer clause was fully disclosed to me. 7. Please verify under penalty of perjury that you know and understand that credit card contracts are a service of continuing offers to contract and as such are nontransferable. 8. Please provide verification from the stated judgment creditor that you are authorized to act for them. 9. Please verify that you know and understand that contacting me again after receipt of this notice without providing procedurally proper validation of the debt constitutes the use of interstate communications in a scheme of fraud by advancing a writing that you know is false with the intention that others rely on the written communication to their detriment. Disputing the “debt” Your signature Your name month day year Copy to: Consumer Response Center Federal Trade Commission Washington, D.C. 20580 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 90: 89 How To Legally Beat Debt Collectors 4.8 Defense Against Mortgage Foreclosure According to the Law Office of Edelman, Combs, Latturner & Goodwin, LLC at http://www.edcombs.com/CM/News/News178.asp, which has published on their website above a great guide to formulate a foreclosure defense strategy. “Many lawyers and judges have long assumed that if a mortgage company seeks to foreclose, the defendant probably owes the money and has no defense. In fact, as recent publicity concerning the widespread problem of predatory lending has made clear, many mortgage lenders overreach. In a substantial portion of residential mortgage foreclosures, the homeowner has a valid defense to at least part of the claim. Either they are not in default at all, or the extent of the default is significantly less than claimed, or the mortgage is subject to attack, most likely under the Truth in Lending Act, 15 U.S.C. §1601 et seq. ("TILA"), as amended by the Home Ownership & Equity Protection Act of 1994, 15 U.S.C. §§1602(aa) and 1639 ("HOEPA"), and implementing Federal Reserve Board Regulation Z, 12 C.F.R. part 226. “Unfortunately, most foreclosures end in default or bankruptcy. Few result in a lawyer looking through the loan documents to see if the homeowner has any claims or defenses. In part, this is because "minorities, women, and the elderly bear the brunt of abusive mortgage lending practices, particularly in predominantly minority or low-income neighborhoods that do not have access to mainstream sources of credit." "Curbing Predatory Home Mortgage Lending," joint report of the Department of Housing and Urban Development and the Department of the Treasury, HUD Document No. 00-142, issued June 20, 2000.” In this section I will insert a document from the law offices of David Leen & Associates, PLLC. This document is freely available online and I have added here for your convenience. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 91: 90 How To Legally Beat Debt Collectors _________________________________________________________________ BORROWERS' DEFENSES TO FORECLOSURE © _________________________________________________________________ By David A. Leen David Leen & Associates, PLLC 520 East Denny Way Seattle, WA 98122 (206) 325-6022 ____________________________________________________________ DAVID A. LEEN is a principal in the law firm of David Leen & Associates, PLLC in Seattle where his main emphasis of practice is on real estate, business and consumer litigation. He received his B.A. degree with honors from Beloit College and his J.D. degree from the University of Oregon. Mr. Leen was a Reginald Heber Smith Fellow from 1971-1973. He is a former regional attorney for the Federal Trade Commission and the Legal Service Corporation. Mr. Leen is the author of several law review articles and manuals on real estate and a frequent speaker before professional and civic groups on various real estate topics and has testified on foreclosure issues before the Washington State Legislature and the U.S. Congress. Mr. Leen handled several recent landmark cases on deed of trust foreclosure, including Cox v. Helenius, 103 Wn.2d 383 (1985), which imposed new responsibilities upon trustees in the foreclosure process, and Vail v. Brown, 946 F.2d 589 (8th Cir. 1991), imposing due process upon foreclosure of VA insured loans. Mr. Leen is a member of the Deed of Trust Revision Committee of the Washington State Bar Association. He is also a Trustee of the Legal Foundation of Washington, which distributes IOLTA funds to low income legal service providers. This outline covers mainly Washington law, but an effort has been made to include information that will be useful in most foreclosure contexts. Bankruptcy and tax issues pervade foreclosures, but are beyond the scope of this article. The focus is upon residential foreclosures as opposed to commercial foreclosures although there is substantial overlap. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 92: 91 How To Legally Beat Debt Collectors TABLE OF CONTENTS BORROWER'S DEFENSES TO FORECLOSURES (April 2002) I. GENERAL CONSIDERATIONS A. B. II. WHETHER TO REINSTATE, DEFEND OR GIVE-UP OFFENSIVE STRATEGY 2 2 3 4 4 7 10 15 17 20 21 23 23 23 24 25 25 26 27 28 28 28 29 30 30 31 31 31 DEFENDING NONJUDICIAL DEED OF TRUST FORECLOSURES A. INTRODUCTION B. PROCEDURE FOR RESTRAINING TRUSTEE'S SALES C. DEFENSES BASED ON TRUSTEE MISCONDUCT D. POST-SALE REMEDIES E. SETTING ASIDE THE TRUSTEE'S SALE F. ADDITIONAL STATUTORY REMEDIES G. RAISING DEFENSES IN THE UNLAWFUL DETAINER (EVICTION) ACTION H. DAMAGES FOR WRONGFUL FORECLOSURE DEFENDING JUDICIAL FORECLOSURES A. INTRODUCTION B. HOMESTEAD RIGHTS C. UPSET PRICE D. DEFICIENCY JUDGMENTS E. REDEMPTION RIGHTS F. POSSESSION AFTER SALE G. POST FORECLOSURE RELIEF MISCELLANEOUS ISSUES A. BANKRUPTCY B. WORKOUTS (DEED IN LIEU) C. LENDER LIABILITY D. MOBILE HOME FORECLOSURES E. TAX CONSEQUENCES OF FORECLOSURE THE GOVERNMENT AS INSURER, GUARANTOR OR LENDER A. INTRODUCTION Julio Martinez-Clark • www.Beat-Debt-Collectors.com III. IV. V.
Slide 93: 92 How To Legally Beat Debt Collectors B. C. D. VI. HUD WORKOUT OPTIONS THE VA HOME LOAN PROGRAM RURAL HOUSING LOANS 32 34 37 39 I. GENERAL CONSIDERATIONS A. WHETHER TO REINSTATE, DEFEND OR GIVE-UP RESOURCES By far the most important decision that must be initially made is whether the property is worth saving. This is often ignored and wasted effort is expended when there is no "equity" (realistic fair market value minus all debt, liens, property taxes, anticipated foreclosure costs, late fees, and selling costs) in the property. The options are as follows: 1. Reinstatement. Pay the costs and late charges and stop the process. In most non-judicial foreclosures this is permitted up until the date of sale. In Washington the lender must allow reinstatement 10 days prior to the sale date. See RCW 61.24. Often a lender or relative will loan necessary funds and take a subordinate lien on the property to do so. The makes sense only if the new payments are within the means of the debtor. 2. Sell the Property. If there is equity, but no ability to reinstate, then immediately list and sell the property to recoup equity. 3. Obtain Foreclosure Relief. Most government insured loans (if, VA, FHA) See have programs allowing (or requiring) lenders to assist defaulting borrowers. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 94: 93 How To Legally Beat Debt Collectors discussion under §V infra. Check into these options immediately. 4. Give Up. This is actually an option as most state laws permit the debtor to remain in possession during the foreclosure process and redemption period rent-free. Most laws, especially in non-judicial foreclosure states - do not allow (or at least limit) deficiencies. Debtors contemplating bankruptcy should take advantage of homestead rights and redemption rights. If there is no equity or negative equity and no ability to make payments, there is no economic reason to try to avoid foreclosure. 5. Defend the Foreclosure. After all of the above have been considered, defense of the foreclosure may be warranted. This outline discusses some defenses that may result in re-instatement of the mortgage or recovery of equity. B. OFFENSIVE STRATEGY In addition to defenses that may be raised, there may be affirmative claims that can be brought against the lender which should be immediately determined and raised in a counterclaim or set-off or, in the case of non-judicial foreclosure, brought by separate suit and coupled with an injunction against continuing the non-judicial foreclosure. These claims can also be brought in bankruptcy. See, e.g. In re Perkins, 106 BR 863 (1989). A few examples of affirmative claims: 1. Truth-in-Lending Act Violations. Often lenders will hand the debtor a claim, which can turn a debt into an asset. If the Truth-in-Lending disclosure statement is less than one year old, there may be damage claims for improper disclosure. See, 15 Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 95: 94 How To Legally Beat Debt Collectors U.S.C. 1635. More importantly, there may be a right of rescission, which can be exercised up to three years after the closing resulting in a tremendous advantage to the borrower. See, e.g., Beach v. Ocwen Fed Bank, 118 S. Ct. 1408 (1998). 2. Usury. If a state usury law applies (usually on seller financed real estate), this can parlay a debt into an asset. Federal pre-emption generally prevents this, but there are exceptions. See, RCW 19.52. 3. Mortgage Broker Liability, Lender Liability, Unfair or Deceptive Acts or Practices. Numerous claims that arise in the mortgage financing context give rise to setoffs that can allow negotiation out of the foreclosure. See e.g. Mason v. Mortgage America, 114 Wn. 2d 842 (1990). Intentional breach of contract gives rise to emotional stress damages. See, Cooperstein v. Van Natter, 26 Wn. App. 91 (1980); Theis v. Federal Finance Co., 4 Wn. App. 146 (1971). Under a new federal statute to regulate high interest, predatory loans, Congress enacted in 1994 the Home Ownership and Equity Protection Act (effective on loans after October 1, 1995). This amendment to the Truth-In-Lending Act requires greater disclosures in loans where a number of factors exist such as, points exceeding 8% and other excessive costs. Penalties include enhanced damages and rescission. See 15 U.S.C. 1602(u) and 15 U.S.C. 1640(a). The Mortgage Broker Practices Act, RCW 31.04 and the Consumer Protection Act also have enhanced damages and attorney fees. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 96: 95 How To Legally Beat Debt Collectors II. DEFENDING NONJUDICIAL DEED OF TRUST FORECLOSURES A. INTRODUCTION The deed of trust is currently one of the most common devices for securing conventional and government insured or guaranteed real estate loans. The deed of trust may be typically foreclosed either judicially as a mortgage or non-judicially. Set forth below are the jurisdictional variations in security agreements and the most common foreclosure procedures . Nonjudicial foreclosure is allowed in approximately one-half of the states. Also listed are the states that permit nonjudicial foreclosure and their relevant statutes . With nonjudicial foreclosure, it is not necessary to utilize the court for the foreclosure sale unless a deficiency judgment is sought. Nonjudicial foreclosure is often the preferred method of foreclosure because it is more efficient than judicial foreclosure and quicker. The nonjudicial foreclosure procedure has been found constitutional between private parties on the basis that there is no state action , but there is a serious question as to whether the government can direct a lender to use a nonjudicial procedure . B. PROCEDURE FOR RESTRAINING TRUSTEE'S SALE Anyone having an interest in the real property security, including the borrower, Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 97: 96 How To Legally Beat Debt Collectors may restrain the non-judicial foreclosure of a deed of trust on any proper ground . Proper grounds for enjoining a trustee's sale include: (1) there is no default on the obligation, Salot v. Wershow, 157 CA.2d 352, 320 P.2d 926 (1958), (2) the deed of trust has been reinstated, (3) the notice of default, notice of sale, or proposed conduct of the sale is defective, Crummer v. Whitehead, 230 CA.2d 264, 40 CR 826 (1964), (4) the lender has waived the right to foreclose, (5) a workout/settlement has been agreed to, (6) equitable reasons that would entitle a debtor to close a sale of the property or complete a refinance, (7) to enforce government relief programs, and trustee misconduct. Finally, there may be defenses to the debt (i.e. usury, truth in lending violations, misrepresentation of the seller, breach of warranty by the seller, etc.) or set-offs, which substantially reduce the debt. 1. Time for Filing Action The action can presumably be filed any time before the scheduled trustee's sale, but the sooner the better. Under Washington law, if one seeks to restrain the sale, five days notice must be given to the trustee and the beneficiary. See the Revised Code of Washington (hereinafter "RCW") 61.24.130(2); Note, supra, footnote 4. A trustor in California has at least one hundred and ten days (after the recording of the notice of default) to seek to enjoin the sale. In California, fifteen days are required for noticing a motion for a preliminary injunction. See CCP section 1005. 2. Effect of Lis Pendens Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 98: 97 How To Legally Beat Debt Collectors Filing a lis pendens at the time the lawsuit is commenced constitutes constructive notice to purchasers and others dealing with the property of the claims and defenses asserted by the plaintiff . Even if the plaintiff does not seek an order restraining the trustee's sale or a restraining order is denied, purchasers at the sale acquire the property subject to the pending litigation . 3. Notice of Application for Restraining Order In Washington, a person seeking to restrain a trustee's sale must give five days notice to the trustee setting forth when, where and before whom the application for the restraining order or injunction will be made. See RCW 61.24.130(2). See also Civil Rules 6 and 81 of the Civil Rules for Superior Court regarding computation of time. 4. Payment Obligation When a preliminary injunction is sought, many states require the petitioner to post an injunction bond to protect the lender from injury because of the injunction . Some courts require the party seeking the injunctive relief to pay to the court the amount due on the obligation . If the amount due on the obligation is in dispute, most courts will require the borrower to tender at least what he/she acknowledges is due . Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 99: 98 How To Legally Beat Debt Collectors Under Washington law, if the default is in making the monthly payment of principal, interest and reserves, the court requires such sum to be paid into the court every thirty days. See RCW 61.24.130(1)(a). A practice tip: even if local law does not require this, it would advantageous to offer to make ongoing payments. Then the creditor loses nothing during the pendency of the suit. In the case of default on a balloon payment, the statute requires that payment of the amount of the monthly interest at the new default rate shall be made to the court clerk every thirty days. See RCW 61.24.130 (1)(b). If the property secured by the deed of trust is an owner occupied single family dwelling, then the court must require the party seeking to restrain the trustee's sale to make the monthly payment of principal interest and reserves to the clerk of the court every 30 days. See RCW 61.24.130(1). Although the amount that the party seeking to restrain the trustee's sale must pay as a condition of continuing the restraining order would ordinarily be the regular monthly payment on the obligation, RCW 61.24.130(1)(a), when there is a balloon payment past due, RCW 61.24.130(1)(b) provides: In the case of default in making payments of an obligation then fully payment by its terms, such sum shall be the amount of interest accruing monthly on said obligation at the non-default rate, paid to the clerk of the court every thirty days. This is consistent with the intent to preserve the status quo while the lawsuit is pending and provide security only for prospective harm. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 100: 99 How To Legally Beat Debt Collectors Failure to seek a restraint may constitute a waiver of all rights to challenge a sale for defects whenever the party who received notice of the right to enjoin the trustees sale, had actual or constructive knowledge of a defense to foreclosure prior to the sale, and failed to bring an action to enjoin the sale. The doctrine of waiver would thus preclude an action by a party to set aside a completed trustee’s sale . Finally, RCW 61.24.130 allows the court to consider the grantor's equity in determining the amount of security. This would significantly help a borrower avoid a costly bond. An appraisal showing equity should persuade a court that the lender is protected while the underlying dispute is resolved in court. When a party knew or should have known that they might have a cause of action to set aside the sale but unreasonably delayed commencing the action, causing damage to the defendant, the doctrine of laches may bar the action . C. DEFENSES BASED ON TRUSTEE MISCONDUCT Most defenses that are available in judicial foreclosures are also available in nonjudicial foreclosures of deeds of trust. Defenses may include violation of Truth-inLending, usury statutes, other consumer protection legislation, or special requirements when the government is the lender, insurer, or guarantor, infra. Other defenses are unique to nonjudicial foreclosure of deeds of trust because they relate to the particular obligations imposed upon trustees who conduct the sale of the real property. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 101: 100 How To Legally Beat Debt Collectors 1. Breach of Fiduciary Duties A trustee selling property at a nonjudicial foreclosure sale has strict obligations imposed by law. In most states, "a trustee is treated as a fiduciary for both the borrower and the lender." In McPherson v. Purdue, 21 Wn. App. 450, 452-3, 585 P.2d 830 (1978), the court approved the following statement describing the duties of a trustee from California law: Among those duties is that of bringing "the property to the hammer under every possible advantage to his cestui que trusts," using all reasonable diligence to obtain the best price. In Cox v. Helenius, 103 Wn.2d 383, 388, 693 P.2d 683 (1985), the Washington Supreme Court adopted the following view: Because the deed of trust foreclosure process is conducted without review or confrontation by a court, the fiduciary duty imposed upon the trustee is "exceedingly high". The court went on to illuminate four duties of the trustee: (1) The trustee is bound by his office to use diligence in presenting the sale under every possible advantage to the debtor as well as the creditor; (2) The trustee must take reasonable and appropriate steps to avoid sacrifice of the debtor’s property and his interest; (3) Once a course of conduct is undertaken that is reasonably Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 102: 101 How To Legally Beat Debt Collectors calculated to instill a sense of reliance thereon by the grantor, that course of conduct can not be abandoned without notice to the grantor; and (4) When an actual conflict of interest arises between the roles of attorney for the beneficiary and trustee, the attorney should withdraw from one position, thus preventing a breach of fiduciary duty. In Blodgett v. Martsch, 590 P.2d 298 (UT 1978), it was stated that "the duty of the trustee under a trust deed is greater than the mere obligation to sell the pledged property, . . . it is a duty to treat the trustor fairly and in accordance with a high punctilio of honor." The Supreme Court in Blodgett went even further and found that the breach of this confidential duty may be regarded as constructive fraud . The general rule is summarized in Nelson & Whitman, Real Estate Finance Law, (West Publishing Co., 3d Ed. 1994), §7.21: . . . a trustee in a deed of trust is a fiduciary for both the mortgagor and mortgagee and must act impartially between them. As one leading decision has stated, "the trustee for sale is bound by his office to bring the estate to a sale under every possible advantage to the debtor as well as to the creditor, and he is bound to use not only good faith but also every requisite degree of diligence in conducting the sale and to attend equally to the interest of debtor and creditor alike, apprising both of the intention of selling, that each may take the means to procure an advantageous sale." Mills v. Mutual Building & Loan Association, 216 N.C. 664, 669, 6 S.E.2d 549, 554 (1940). Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 103: 102 How To Legally Beat Debt Collectors The fiduciary duty of a trustee to obtain the best possible price for trust property that it sells has been discussed in nonjudicial and other contexts . However, this "fiduciary" characterization of a trustee is not accepted in all jurisdictions. The California Supreme Court has stated, "The similarities between a trustee of an express trust and a trustee under a deed of trust end with the name. 'Just as a panda is not a true bear, a trustee of a deed of trust is not a true trustee.' *** [T]he trustee under a deed of trust does not have a true trustee's interest in, and control over, the trust property. Nor is it bound by the fiduciary duties that characterize a true trustee." Monterey S.P. Partnership v. W.L. Bangham, Inc. 49 Cal.3d 454, 462, 261 Cal.Rptr. 587,592 (1989). In most jurisdictions, a trustee cannot, without the express consent of the trustor, purchase at the sale that he conducts . A court may impose additional affirmative duties (beyond the statutory requirements) upon the trustee in certain circumstances. This could include a requirement that a trustee's sale be continued, if necessary, to prevent a total loss of the debtor's equity. West v. Axtell, 322 Mo. 401, 17 S.W.2d 328 (1929). RCW 61.24.040(6) authorizes a trustee to continue a trustee's sale for a period or periods totaling 120 days for "any cause he deems advantageous." However, the Washington Court of Appeals has ruled that the trustee need not exercise "due diligence" in notifying interested parties of an impending sale. Morrell v. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 104: 103 How To Legally Beat Debt Collectors Arctic Trading Co., 21 Wn. App. 302, 584 P.2d 983 (1978). Further, the general rule is that a trustee is not obligated to disclose liens or other interests which the purchaser could or should have discovered through his or her own investigation. Ivrey v. Karr, 182 Md. 463, 34 A.2d 847, 852 (1943). The Washington courts have held that even when a trustee is aware of defects in title, the trustee only undertakes an affirmative duty of full and accurate disclosure if s/he has made any representations or answered any questions concerning the title. McPherson v. Purdue, 21 Wn. App. 450, 453, 585 P.2d 830 (1978). However, despite this general rule, there is authority behind the proposition that a trustee has a fiduciary duty to restrain the sale due to defects known to the trustee. In Cox v. Helenius, 103 Wn.2d 383,*,693 P.2d 683 (1985), in which the trustee knew that the right to foreclose was disputed and that the attorney for the trustor had failed to restrain the sale, the court held that the trustee should have either informed the attorney for the trustor that she had failed to properly restrain the sale or delayed foreclosure. As a result of the trustee's failure to do so, the sale was held void. Trustees are not permitted to "chill the bidding" by making statements which would discourage bidding, for example, a statement that it is unlikely that the sale will be held because the debtor intends to reinstate . If a trustee does engage in "chilled bidding", the sale is subject to being set aside . 2. Strict Construction of the Deed of Trust Statute Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 105: 104 How To Legally Beat Debt Collectors The nonjudicial foreclosure process is intended to be inexpensive and efficient while providing an adequate opportunity for preventing wrongful foreclosures and promoting the stability of land titles . However, statutes allowing foreclosure under a power of sale contained within the trust deed or mortgage are usually strictly construed. Id. at 509. Recent decisions have moved away from the strict construction ruling, holding that some technical violations of statutes governing nonjudicial foreclosures will not serve as grounds for setting aside sale when the error was non-prejudicial and correctable. See Koegal, supra at 113. An example of a non-prejudicial and correctable error is noncompliance with the requirement that the trustee record the notice of sale 90-days prior to the actual sale when actual notice of the sale was given to the debtors 90-days prior to the sale and the lack of recording caused no harm. Steward, supra at 515. Further, inconsequential defects often involve minor discrepancies regarding the notice of sale. In Bailey v. Pioneer Federal Savings and Loan Association, 210 Va. 558, 172 S.E.2d 730 (1970), where the first of four published notices omitted the place of the sale, the court held that since there was "substantial compliance" with the requirements specified by the deed of trust and since the parties were not affected in a "material way," the sale was valid . In another case, where the notice of sale was sent by regular rather than by statutorily required certified or registered mail and the mortgagor had actual notice of the Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 106: 105 How To Legally Beat Debt Collectors sale for more than the statutory period prior to the sale, the sale was deemed valid . Clearly a grantor must show some prejudice. D. POST-SALE REMEDIES 1. Statutory Presumptions The Washington Deed of Trust Act contains statutory presumptions in connection with a trustee's sale that are similar to those found in most other states. RCW 61.24.040(7) provides, in part: . . . the [trustee's] deed shall recite the facts showing that the sale was conducted in compliance with all of the requirements of this chapter and of the deed of trust, which recital shall be prima facie evidence of such compliance and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value. Such provisions are designed to protect bona fide purchasers and to assure that the title passed through a trustee's sale will be readily insurable. However, although the required recitals are described as "conclusive" in favor of bona fide purchasers and encumbrancers for value, there is extensive case law setting forth the basis for rebutting these presumptions. They also don't apply to a dispute between the grantor and grantee. See, generally, Nelson & Whitman, Real Estate Finance Law, (2d ed. 1985) § 7.21 ff. Some states employ other means of stabilizing titles, such as title insurance. Yet another means of stabilizing titles is to include a provision in the deed of trust that in the event of a trustee's sale, the recital will be conclusive proof of the facts. See, Johnson v. Johnson, 25 Wn. 2d 797 (1946); Glidden v. Municipal Authority, 111 Wn. 2d 341 (1988), Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 107: 106 How To Legally Beat Debt Collectors modified By Glidden v. Municipal Authority, 764 P.2d 647 (1988). 2. The Bona Fide Purchaser The law is well settled that a bona fide purchaser, in order to achieve that status, must have purchased the property "for value." See RCW 61.24.040(7). The general rule is set forth in Phillips v. Latham, 523 S.W.2d 19, 24 (Tex. 1975): [The purchaser] cannot claim to be a good-faith purchaser for value because the jury found . . . that the sale price of $691.43 was grossly inadequate. These findings are not attacked for lack of evidence. Although good faith does not necessarily require payment of the full value of the property, a purchaser who pays a grossly inadequate price cannot be considered a good-faith purchaser for value. Further, if a lis pendens has been recorded, it "will cause the purchaser to take subject to the plaintiff's claims." Bernhardt, California Mortgage & Deed of Trust Practice (2d Edition 1990). A purchaser will not then constitute a bona fide purchaser able to utilize the presumptions of regularity in recitals of the trustee's deed. See CC § 2924. The beneficiary of a deed of trust is not a bona fide purchaser. See Johnson, supra. E. SETTING ASIDE THE TRUSTEE'S SALE Setting aside a trustee's sale is largely a matter for the trial court's discretion. Crummer v. Whitehead, 230 Cal. App. 2d 264, 40 Cal. Rptr. 826 (1964); Brown v. Busch, 152 Ca. App. 2d 200, 313 P.2d 19 (1957). After a trustee's sale has taken place, a trustor or junior lienor may bring an action in equity to set aside the sale. See Crummer v. Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 108: 107 How To Legally Beat Debt Collectors Whitehead, 230 Cal. App. 2d 264, 40 Cal. Rptr. 826 (1964); see also Note, "Court Actions Contesting The Nonjudicial Foreclosure of Deeds of Trust In Washington," 59 Wash.L.Rev. 323 (1984) . An action may be brought to set aside a trustee's sale under circumstances where the trustee’s sale is void. Cox v. Helenius, 103 Wn.2d 383, 693 P.2d 683 (1985). In those circumstances where the defect in the trustee's sale procedure does not render the trustee's sale void, the court will probably apply equitable principles in deciding what relief, if any, is available to the parties. A general discussion of equitable principles in contexts other than trustee's sale can be found in Eastlake Community Council v. Roanoake Associates, 82 Wn.2d 475, 513 P.2d 36 (1973) and Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 908 (1968). Although it is preferable to raise any defenses to the obligations secured by the deed of trust or other defects in the nonjudicial foreclosure process prior to the trustee's sale, a trustee's sale can presumably be set aside if there was a good reason for not restraining it. Possible reasons could include those described below. 1. Breach of the Trustee's Duty a. Inadequate Sale Price The general rule on using inadequate sale price to set aside a deed of trust sale is stated in Nelson & Whitman, supra, § 7.21: All jurisdictions adhere to the recognized rule that mere inadequacy Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 109: 108 How To Legally Beat Debt Collectors of the foreclosure sale price will not invalidate a sale, absent fraud, unfairness, or other irregularity. Stating the rule in a slightly different manner, courts sometimes say that inadequacy of the sale price is an insufficient ground unless it is so gross as to shock the conscience of the court, warranting an inference of fraud or imposition . In Cox v. Helenius, supra, at p. 388, the court indicated that the inadequate sale price coupled with the trustee's actions, would have resulted in a void sale, even if not restrained. Generally, unless the sale price is grossly inadequate, other irregularities or unfairness must exist. However, considerable authority exists to support setting aside a sale when, coupled with an inadequate sale price, there is any other reason warranting equitable relief. Nelson & Whitman, Real Estate Finance Law, supra. b. Hostility or Indifference to Rights of Debtor. In Dingus, supra, at 289, it is stated: In an action to set aside a foreclosure sale under a deed of trust, evidence showing that the trustee was hostile and wholly indifferent to any right of the mortgagor warrants setting aside the sale. Lunsford v. Davis, 254 S.W. 878 (Mo. 1923). CF. Cox v. Helenius, supra. c. Other Trustee Misconduct Other trustee misconduct that would give rise to grounds for setting aside a trustees sale could include "chilled bidding" where the trustee acts in a manner that Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 110: 109 How To Legally Beat Debt Collectors discourages other parties from bidding on the property . Actions by the trustee which lull the debtor into inaction may also give rise to grounds for avoiding the sale . Particular note should also be made of the discussion in Cox v. Helenius, supra, at p.390 in which trustees who serve a dual role as trustee and attorney for the beneficiary are directed to transfer one role to another person where an actual conflict of interest arises. 2. Absence of Other Foreclosure Requisites RCW 61.24.030 sets forth the requisites to non-judicial foreclosure. Failure to meet these requisites may render the trustee's sale void. In Cox v. Helenius, 103 Wn.2d 383, 693 P.2d 683 (1985), the court concluded that a trustee's sale was void under circumstances where the borrower had filed an action contesting the obligation and that action was pending at the time of the trustee's sale. The action was filed after service of the notice of default but before service of the notice of foreclosure and trustee's sale. The decision in Cox was based on language in the Deed of Trust Act that made it a requisite to foreclosure that "no action is pending on an obligation secured by the deed of trust." That part of the Cox decision was legislative overruled by Chapter 193, Law of 1985, Reg. Sess., which amended RCW 61.24.030(4) to read as follows: That no action commenced by the beneficiary of the deed of trust is now pending to seek satisfaction of an obligation secured by the deed of trust in any court by reason of the grantor's default on the obligation secured; Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 111: 110 How To Legally Beat Debt Collectors As a result of the amendment, pendency of an action on the obligation brought by the grantor does not render a subsequent trustee's sale void. Only pending actions commenced by the beneficiary to seek satisfaction of the obligation secured by the deed of trust operate as a bar to nonjudicial foreclosure. The trustee must be properly appointed and be appointed before the trustee has authority to act. When an eager trustee "jumps the gun" the actions are equally void. F. ADDITIONAL STATUTORY REMEDIES 1. Confirmation of Sale Price. Many states (but not Washington) require confirmation that the nonjudicial sale resulted in a fair value to the debtor. Below is listed the states that have adopted fair market value statutes . Fair market value statutes are usually used to limit deficiency judgments to the difference between the fair market value and the debt. Failure to confirm the sale within the statutory period is usually a bar to a deficiency. For example, in Georgia the court must be petitioned for a confirmation of the sale if a deficiency judgment is sought. 2. Redemption in Nonjudicial Foreclosures. Approximately one-half of the states allow for redemption after foreclosure, although not Washington. Some states allow redemption after a nonjudicial sale. See Minnesota Statutes Annotated § 580 et seq. Generally, the grantor can remain in Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 112: 111 How To Legally Beat Debt Collectors possession during the redemption period, rent the property (retaining the rents) and/or sell the property (or sell the redemption rights). G. ACTION RAISING DEFENSES IN THE UNLAWFUL DETAINER (EVICTION) In Washington, RCW 61.24.060 specifies that the purchaser at a trustee's sale is entitled to possession of the property on the 20th day following the sale. If the grantor or person claiming through the grantor refuses to vacate the property, the purchaser is entitled to bring an action to recover possession of the property pursuant to the unlawful detainer statute, RCW 59.12. Ordinarily, parties in possession will not be allowed to raise some defenses in the unlawful detainer action that could have been raised prior to the trustee's sale . In most states defenses in an eviction action are severely limited. Despite these early cases restricting defenses in unlawful detainer, e.g. Peoples National Bank v. Ostander, 6 Wn. App. 28 (1971), a more recent case, Cox v. Helenius, 103 Wash. 2d 208 (1985), allowed defenses to be raised that the sale was void because of defects in the foreclosure process itself. In fact, Cox v. Helenius was initially a unlawful detainer action in the King County Superior Court. In Savings Bank of Puget Sound v. Mink, 49 Wn. App. 204 (1987), Division One of the Court of Appeals, held that a number of defenses raised by the appellant (Truth-in-Lending violations, infliction of emotional distress, defamation, slander, etc.) were not properly assertable in an unlawful detainer action but ruled that: Julio Martinez-Clark • www.Beat-Debt-Collectors.com
Slide 113: 112 How To Legally Beat Debt Collectors THIS IS A PREVIEW OF THIS BOOK. TO DOWNLOAD YOUR FREE COPY, PLEASE VISIT www.Beat-Debt-Collectors.com Julio Martinez-Clark • www.Beat-Debt-Collectors.com