Author Topic: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?  (Read 2507 times)

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benedick

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Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« on: February 21, 2016 09:43:11 PM »
10/9/12 I received CITIBANK collection notice via collection lawyers DANG,
10/17/12 I sent per FDCPA rules for validation, with fee schedule.
10/23/12 DANG came back with computer printout, but not full validation.
2/19/2013 I sent them a notice of irrevocable estoppel by Acquiescence with fees reminder and copies of my 2 certified letters.
Heard nothing, but as I later found out on 12/30/14 ...
4/15/13 they filed complaint with notarized affidavit signed by a Tim O'Dor representing CITIBANK. but
They delayed service with 3 requests for extension to serve until ... what is the SOL on these requests?
12/30/14 I was served, at first hearing Trial set 3/6/15 ... I was the last in the court room
2/10/15 filed Affirmative Defence and Counter Claim for damages arising out of the Estoppel
2/17/15 DANG got a Continuance to 7/10/15 to answer my Affirmative Defence and lies of trying to contact me
2/17/15 DANG sent me a notarized full copy of my cc bills with my sig card and CITIBANK cc agreement now signed by CITIBANK Terry Ryning
3/6/15 I find out about the continuance at the hearing and agree to 9/4/15
8/28/15 DANG asks for another continuance (5 times so far, but states 1 in doc.) to retrieve documents 3/4/16 ... and lies about trying to contact me
8/28/15 DANG files Motion for Summary Judgement with the same notarized package referenced at 2/17/15 above
9/4/15 Hearing - we agreed to 3/4/16
9/21/15 After talking with Anthony Williams he authored NOTICE OF DEMAND TO VALIDATE THE DEBT under Common Law.
9/28/15 DANG send identical set of notarized cc bills and sig,
2/18/15 I file Motion to compel for documents - wet signature
2/18/15 DEMAND TO TRIAL BY JURY - IN FORMA PAUPERIS was denied 2/18/15. Don't have $450!
I have pdfs of documents for review.

Suggestions appreciated.

BellEbutton

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #1 on: February 21, 2016 09:47:25 PM »
Quote
10/17/12 I sent per FDCPA rules for validation, with fee schedule.

What do you mean by a "fee schedule"?

benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #2 on: February 21, 2016 10:02:55 PM »
IN the Notice of Irrevocable Estoppel by Acquiescence and Invoice

....

Quote
Fee Schedule

Any further invalid claims against myself and/or attempting to contact by mail, mobile phone and/or telephone will constitute the agreement of Marvin SC Dang LLLC to the following Fee Schedule:
1. $1000.00 (ONE THOUSAND US DOLLARS) per invalid claim in writing, nunc pro tunc,
2. $1000.00 (ONE THOUSAND US DOLLARS) per letter and/or notice sent by recorded mail, nunc pro tunc,
3. $1000.00 (ONE THOUSAND US DOLLARS) per hour or portion thereof, of the Authorized Representative’s time, nunc pro tunc,
4. $1000.00 (ONE THOUSAND US DOLLARS) per attempt to contact by telephone and/or mobile phone.
5. $1,000,000 (ONE MILLION US DOLLARS) per unauthorized infringement.


BellEbutton

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #3 on: February 21, 2016 10:11:40 PM »
The computer printout probably validated the debt.  What state are you in?


benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #4 on: February 21, 2016 10:27:02 PM »
I am in Hawaii.

I asked them 10/17/12 to "Please provide me with the following:

1. What the money you say I owe is for;   -  yes, allegedly
2. Explain and show me how you calculated what you say I owe; - no
3. Provide me with copies of any papers that show I agreed to pay what you say I owe; - no
4. Provide a verification or copy of any judgment if applicable; - NA
5. Identify the original creditor; - yes
6. Prove the Statute of Limitations has not expired on this account; - not answered
7. Show me that you are licensed to collect in my state; and - not answered
8. Provide me with your license numbers and Registered Agent. - not answered



BellEbutton

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #5 on: February 21, 2016 10:44:11 PM »
I am in Hawaii.

I asked them 10/17/12 to "Please provide me with the following:

1. What the money you say I owe is for;   -  yes, allegedly
2. Explain and show me how you calculated what you say I owe; - no
3. Provide me with copies of any papers that show I agreed to pay what you say I owe; - no
4. Provide a verification or copy of any judgment if applicable; - NA
5. Identify the original creditor; - yes
6. Prove the Statute of Limitations has not expired on this account; - not answered
7. Show me that you are licensed to collect in my state; and - not answered
8. Provide me with your license numbers and Registered Agent. - not answered

They don't have to provide any of that to validate the debt. 

At the minimum, "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." Clark v. Capital Credit & Collection Servs. Inc., 460 F.3d 1162, 1173-74. (9th Cir. 2006).

In regard to the fee schedule, you do not get a statutory award of $1000 for each violation of the FDCPA.   You get $1000 per action (lawsuit), so your fee schedule meant nothing to them.

What makes you think estoppel by acquiescence applies here?

benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #6 on: February 21, 2016 11:35:39 PM »
Thanks,

I was under the impression/assuming because I had done a similar notice on 4 other different collection attempts and they all stopped collecting.  I could be wrong!!  But it appeared to me that if they did not complete in 30 days with a validation, which they did not other than a computer print out.

http://www.creditinfocenter.com/rebuild/debt-validation.shtml see their view of requirements.
Also copy of the original was establihed in Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004

So, moving down the list ...

4/15/13 they filed complaint with notarized affidavit signed by a Tim O'Dor representing CITIBANK. but
They delayed service with 3 requests for extension to serve until ... what is the SOL on these requests?

Can I demand why they failed to serve for 22 months, when I could very easily have been located with a simple search.  The only case I could find that is similar is:
https://scholar.google.com/citations?view_op=view_citation&continue=/scholar%3Fhl%3Den%26as_sdt%3D4,12%26scilib%3D1%26scioq%3DMotion%2Bto%2BVacate%2Bfor%2Bfailure%2Bto%2BServe%2BSummons&citilm=1&citation_for_view=5rtQ-sIAAAAJ:u5HHmVD_uO8C&hl=en&oi=p

Could this be used as a defense? Why would they do these delay tactics?  To get beyond the FDCPA SOL?

coltfan1972

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #7 on: February 21, 2016 11:45:11 PM »
I could be wrong!!

There is no could about it, you're 100% wrong. 

However, if you want to get your FDCPA case into federal court, file the case in your local small claims court.   The other side will quickly remove it to federal court for you.   
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #8 on: February 21, 2016 11:57:31 PM »
OK, thanks, that helps clear up that misconception

So, moving down the list ...

4/15/13 they filed complaint with notarized affidavit signed by a Tim O'Dor representing CITIBANK. but
They delayed service with 3 requests for extension to serve until ... what is the SOL on these requests?

Can I demand why they failed to serve for 22 months, when I could very easily have been located with a simple search.  The only case I could find that is similar is:
https://scholar.google.com/citations?view_op=view_citation&continue=/scholar%3Fhl%3Den%26as_sdt%3D4,12%26scilib%3D1%26scioq%3DMotion%2Bto%2BVacate%2Bfor%2Bfailure%2Bto%2BServe%2BSummons&citilm=1&citation_for_view=5rtQ-sIAAAAJ:u5HHmVD_uO8C&hl=en&oi=p

Could this be used as a defense? Why would they do these delay tactics?  To get beyond the FDCPA SOL?

BellEbutton

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #9 on: February 21, 2016 11:57:55 PM »
Quote
I was under the impression/assuming because I had done a similar notice on 4 other different collection attempts and they all stopped collecting.

All that means is that they decided not to validate, so they stopped collecting.  The FDCPA allows them to forego validation if they stop collection efforts.


Quote
I was under the impression/assuming because I had done a similar notice on 4 other different collection attempts and they all stopped collecting.  I could be wrong!!  But it appeared to me that if they did not complete in 30 days with a validation, which they did not other than a computer print out.

They're not required to validate in 30 days.  It's the consumer who must request validation within 30 days of receiving a collection letter that contains the 30-day notice.

Quote
Also copy of the original was establihed in Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004

You're not in the 7th Circuit.  You're in the 9th.  A copy of the original what?  I don't understand.

Quote
4/15/13 they filed complaint with notarized affidavit signed by a Tim O'Dor representing CITIBANK. but
They delayed service with 3 requests for extension to serve until ... what is the SOL on these requests?

Unless the rules dictate otherwise, a court has discretion to allow extensions.  As long as they filed the requests to extend before the previous extension was up, and the court granted them, I don't know that you have a claim.  The rule doesn't seem to limit the number of extensions that can be requested.

Quote
Could this be used as a defense? Why would they do these delay tactics?  To get beyond the FDCPA SOL?

An FDCPA counterclaim would toll the SOL (stop the SOL clock from running).   If you didn't file a counterclaim, then you're out of luck for any possible violation that occurred more than a year ago. 

benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #10 on: February 22, 2016 12:39:25 AM »
Quote
4/15/13 they filed complaint with notarized affidavit signed by a Tim O'Dor representing CITIBANK. but
They delayed service with 3 requests for extension to serve until ... what is the SOL on these requests?

Unless the rules dictate otherwise, a court has discretion to allow extensions.  As long as they filed the requests to extend before the previous extension was up, and the court granted them, I don't know that you have a claim.  The rule doesn't seem to limit the number of extensions that can be requested.

The first enlargement was for 3 months starting  1/20/14
The second enlargement was for 3 months starting  10/2/14
The third was from 3 months starting 12/14/14  and then I was served 12/30/14

So they did not keep their extensions up to date. 

What now?


cgoodwin

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #11 on: February 22, 2016 01:35:07 AM »
While their actions may be sloppy, they are not actionable. 

Unfortunately you are chasing red herrings and will likely end up with a Summary Judgement if you continue down this path.  They have produced enough evidence to satisfy most courts to find you liable.

As far as your agreement for fee schedule, it is not enforceable in any court in the country.

In order to have a binding contract, there needs to be an exchange of consideration.  You would need to provide them with something of value for the money you are saying they are agreeing to pay you.  Just making a demand, if you do this you owe me that is not enough.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #12 on: February 22, 2016 01:46:34 AM »
So, is there any defense? 

If not what's the best noble way of moving on ... compel for an arbitrator?

Wet ink signature?

cgoodwin

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #13 on: February 22, 2016 02:04:34 AM »
Forget the whole "Wet ink signature"

We live in an era where you can consent and agree by clicking "OK" online.  My current credit card, I never signed any agreement.

If Arbitration is still available to you, that is the way I would go against an OC.  They have already produced what is needed to win in court.  File the MTC ASAP.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

benedick

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Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
« Reply #14 on: February 22, 2016 02:41:41 AM »
thanks everyone, I appreciate your help.  I'll file the MTC in the morning.


 

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