Author Topic: What if – lack of standing to sue.  (Read 2420 times)

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24wonFL

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What if – lack of standing to sue.
« on: August 28, 2010 01:52:05 AM »
What if – lack of standing to sue.

If a JDB files a CC breach of contract complaint against a consumer in small claims court... and JDB includes attached exhibits – including an assignment that has the wrong name on it...

[the assignment attached is not the JDB named in the complaint – but possibly a parent company]

Can one argue that the name (on assignment) must be consistent with the statement of claim on case law for MTD.
I don't know for sure - I have not found much to support this argument in my search.

I mention this because it sounds familiar to one on my cases – where I settled a claim only to have another debt collector who claims assignment sue for the same debt I settled with someone else.

I went back and found that the JDB in our case also had a different name on the assignment.

With a JDB - I now always question and confirm assignment to make sure they have the right (in standing) to sue on the alleged debt – otherwise you may settle and find you paid the wrong owner of the debt – and worse (as I did) find yourself back in court over the same debt you thought you already paid.
2-4-one in Florida with one documented win.

CleaningUp

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Re: What if – lack of standing to sue.
« Reply #1 on: August 28, 2010 01:59:01 AM »
You can use the discrepancy to challenge the assignment.

The JDB is likely going to come up with something in rebuttal, and the judge will make the decision. If it is only a technical discrepancy -- as opposed to material -- the judge may well let them get away with it if they have enough other evidence to establish their case.

Such is the nature of the courts.





 

24wonFL

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Re: What if – lack of standing to sue.
« Reply #2 on: August 28, 2010 02:20:13 AM »
It seems to me - without assignment - they have no rights to sue.

Any other evidence is moot - who cares.

The alleged debt could be yours , but if not theirs to collect (assignment) then ANY other other evidence does not matter.

Mistake - yes...procedural law - I would think force them to re-file or motion for notice of assignment.

I'd say strong MTD - let JDB re-file with the correct assignment.
2-4-one in Florida with one documented win.

24wonFL

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Re: What if – lack of standing to sue.
« Reply #3 on: August 28, 2010 11:30:26 AM »

559.715 Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

Devemedic once posted;

“Make them produce documentation that shows the debt, and shows that the debt has been assigned to you. Also, make them produce the letter they were required to mail you within 30 days of them buying the debt. (Florida Statute 559.715)”

The 'written notice of such assignment within 30 days after the assignment'" is all key. 
2-4-one in Florida with one documented win.

1florida

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Re: What if – lack of standing to sue.
« Reply #4 on: November 06, 2010 05:33:16 PM »
Couldn't they simply just write up the 30 days letter and date it back at that time and send it to you and say "Here's the letter"? how would you tell? Remember they're all scumbags.