Author Topic: A question on a paper a debt collector sent me.  (Read 3920 times)

0 Members and 1 Guest are viewing this topic.

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: A question on a paper a debt collector sent me.
« Reply #60 on: May 21, 2017 06:19:09 PM »
Show me a credit card contract that states a partial payment does not extend the SOL.


Show me one that does. You cannot be required under the law to prove what a contract doesn't say.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: A question on a paper a debt collector sent me.
« Reply #61 on: May 21, 2017 06:30:08 PM »
Bruno - no contract can have an enforceable provision that supersedes the law. If they could supersede the law then EVERY Contract of Adhesion (read that EVERY Consumer Credit Contract) would have a stipulation in the fine print where the borrower/consumer waives all statutory protections and defenses, including SOL, as well as a default provision that appoints the creditor as the consumer's attorney-in-fact with power to accept service of a summons and to enter a Consent Judgment against the consumer. Believe me, these provisions aren't there because of the lender's generosity - they are not there because the laws prohibit them.

I was in the collections industry in the "good old days" when they were. Just a check box in the fine print of the contract gave the small loan company a lien on everything the borrower owned - for a $400 loan at 30%. Check another box and the "Financial Statement" the the loan officer knew was phony because it was written in the loan officer's handwriting was sworn to as genuine, true and accurate. I remember this, I did it. I was taught to do it. I remember when the Federal Trade Commission banned the "Holder in Due Course" doctrine and made the Finance Companies subject to the same defenses the seller was subject to when the seller arranged the financing.


I would argue that the state has no dominion over national banks, which are regulated by the OCC not state banking law. They are exempt from state regulation , otherwise they could not impose their idiotic interest rates on the rest of the country. Nobody can willingly extend or cancel the SOL at their whim; I agree with that. But that is procedural. When you file a suit in state court you submit to the procedures of that court.

My point is that no court can modify or change what parties agreed to as long as no laws are violated. Key word is violated. What constitutes default is between the parties. It may be different than what the state considers default, but too bad for the state, who has NO regulatory authority over national banks. I went through this with a major lender, and made them very sorry they moved to South Dakota. Apparently they didn't read the laws they impose on the rest of us.

Default is the key; without default, the SOL is moot.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

  • Valued Member
  • Posts: 3461
Re: A question on a paper a debt collector sent me.
« Reply #62 on: May 21, 2017 07:03:38 PM »

Show me one that does. You cannot be required under the law to prove what a contract doesn't say.

And, you cannot add what is not there which is what you are trying to do.


Quote
It may be different than what the state considers default, but too bad for the state, who has NO regulatory authority over national banks.

The SOL is not regulatory control.  If state laws had no effect on banks, then banks could charge whatever interest rate they please no matter in which state they are located. 

The National Bank Act says that banks must follow state laws as long as the laws don't prejudice the banks and treat them differently than state banks.

12 USC 25b

(b) Preemption standard

(1) In general State consumer financial laws are preempted, only if

(A) application of a State consumer financial law would have a discriminatory effect on national banks, in comparison with the effect of the law on a bank chartered by that State;

(B) in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N. A. v. Nelson, Florida Insurance Commissioner, et al., 517 U.S. 25 (1996), the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers; and any preemption determination under this subparagraph may be made by a court, or by regulation or order of the Comptroller of the Currency on a case-by-case basis, in accordance with applicable law; or

(C) the State consumer financial law is preempted by a provision of Federal law other than title 62 of the Revised Statutes.


Here's what the SCOTUS has ruled:

Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of the NBA.  Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11, 127 S.Ct. 1559, 167 L.Ed.2d 389 (2007).



Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: A question on a paper a debt collector sent me.
« Reply #63 on: May 21, 2017 07:47:05 PM »
If state laws had no effect on banks, then banks could charge whatever interest rate they please no matter in which state they are located. 

They can. The National Bank Act gives them that right.(national banks)  They are subject to CRIMINAL violations of state laws where they conduct business. Charging a ridiculous interest rate in all fifty states when federal law says you can apply the interest rate of your home state is not criminal.  At least not in the eyes of the law, and look at who makes the laws. We all know what that's worth.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

  • Valued Member
  • Posts: 3461
Re: A question on a paper a debt collector sent me.
« Reply #64 on: May 21, 2017 07:58:05 PM »
If state laws had no effect on banks, then banks could charge whatever interest rate they please no matter in which state they are located. 

They can. The National Bank Act gives them that right.(national banks)  They are subject to CRIMINAL violations of state laws where they conduct business. Charging a ridiculous interest rate in all fifty states when federal law says you can apply the interest rate of your home state is not criminal.  At least not in the eyes of the law, and look at who makes the laws. We all know what that's worth.

No they cannot charge any rate they please.   They can charge the interest rate of the state in which they are headquartered based upon that state's law.    If the law says 29%, they can't charge 50%. 

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: A question on a paper a debt collector sent me.
« Reply #65 on: May 21, 2017 08:15:46 PM »
That is what I said. The NBA gives them the authority to export their state's interest rate. They all chose to incorporate in states where there is no cap on interest.  There is NO law that says they are  restricted to the 29.9% rate, they just seemed to agree to it rather than look like what they are.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

  • Valued Member
  • Posts: 3461
Re: A question on a paper a debt collector sent me.
« Reply #66 on: May 21, 2017 08:42:21 PM »
That is what I said. The NBA gives them the authority to export their state's interest rate. They all chose to incorporate in states where there is no cap on interest.  There is NO law that says they are  restricted to the 29.9% rate, they just seemed to agree to it rather than look like what they are.

The point is that they are subject to state laws. 

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: A question on a paper a debt collector sent me.
« Reply #67 on: May 21, 2017 08:59:36 PM »
Criminal laws, which do not include interest rates.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

  • Valued Member
  • Posts: 3461
Re: A question on a paper a debt collector sent me.
« Reply #68 on: May 22, 2017 07:29:46 PM »
Criminal laws, which do not include interest rates.

They are also subject to civil laws.

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: A question on a paper a debt collector sent me.
« Reply #69 on: May 22, 2017 07:51:04 PM »
Only if they violate criminal statutes that open them up to certain state charges like UDAP.  Otherwise, they are exempt from all state banking laws.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

  • Valued Member
  • Posts: 3461
Re: A question on a paper a debt collector sent me.
« Reply #70 on: May 22, 2017 07:54:24 PM »
Only if they violate criminal statutes that open them up to certain state charges like UDAP.  Otherwise, they are exempt from all state banking laws.

I already posted the applicable section of the NBA.  Banks ARE required to follow state financial laws as long they are not prejudiced by those laws.

Read reply #62.  The section starts out with:

(1) In general State consumer financial laws are preempted, only if
« Last Edit: May 22, 2017 08:07:13 PM by BellEbutton »

jacky123

  • Valued Member
  • Posts: 219
Re: A question on a paper a debt collector sent me.
« Reply #71 on: May 22, 2017 11:14:03 PM »
Last payment on the card, April 11, 2013. There's a 90 day grace period. The 30 days late appears on August 20th, 2013. The credit card company can argue for the later date, does not mean the court will accept it. It appears in California they go by the last date paid or 30 days after.
In a lawsuit the first to speak seems right,
until someone comes forward and cross-examines.
Proverbs 18:17

CleaningUp

  • Valued Member
  • Posts: 10455
Re: A question on a paper a debt collector sent me.
« Reply #72 on: May 22, 2017 11:29:30 PM »

Banks ARE required to follow state financial laws as long they are not prejudiced by those laws.




National banks are immune to state regulation in BANKING matters and policies.  And since the Constitution explicitly reserves to the states the administration of contracts explicitly for the States, being a national bank has no bearing on obligations and disputes founded in contract law.

jacky123

  • Valued Member
  • Posts: 219
Re: A question on a paper a debt collector sent me.
« Reply #73 on: May 23, 2017 12:09:00 AM »
"How difficult is it to tell that a debt has expired? Two recent rulings in Rhode Island show that legal clocks can run at sharply different rates.

Rhode Island resident Frank Fiorenzano was sued by a debt buyer for a $1,552 Capital One balance in 2010, eight years after he stopped making payments. He argued that Capital One's card agreement made Virginia the legal state of the debt, where the debt clock had run out years before. The U.S. District Court that heard his case disagreed in a June 2012 ruling, saying Rhode Island's 10-year statute should apply, leaving Fiorenzano on the hook for repayment.

But in another Rhode Island case that also involved a Capital One card, Teri Martin got the opposite result. In a December, 2012 ruling in federal court, that judge decided that Virginia's shorter statute should apply, using a different legal theory to arrive at his decision than the Fiorenzano case. "

I guess it depends on the judge.

 http://www.creditcards.com/credit-card-news/collectible-expiration-date-old-debt-statute-1282.php
In a lawsuit the first to speak seems right,
until someone comes forward and cross-examines.
Proverbs 18:17

CleaningUp

  • Valued Member
  • Posts: 10455
Re: A question on a paper a debt collector sent me.
« Reply #74 on: May 23, 2017 12:20:34 AM »
Once the federal court rules on a state court issue, the matter becomes precedent.  Right now, the latter case is the precedent.

But since it was a RI case in the RI Federal Court, it is binding ONLY in RI.

If some enterprising defendant choses to appeal based on the conflict in the Federal District Court ruling, that is their right.

 

credit