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Credit Basics => The Flyingifr Method of Aggressive Credit Repair © 2007 => Topic started by: benedick on February 21, 2016 09:43:11 PM

Title: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: BellEbutton 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"?
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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.

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

Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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


Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: BellEbutton 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?
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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 (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?
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: coltfan1972 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.   
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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?
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: BellEbutton 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. 
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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?

Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: cgoodwin 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.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick 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?
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: cgoodwin 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.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick on February 22, 2016 02:41:41 AM
thanks everyone, I appreciate your help.  I'll file the MTC in the morning.

Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 22, 2016 01:39:08 PM
Three years with no activity? See what your court rules say about lack of prosecution. That's a long time to let a case sit without doing anything.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 22, 2016 01:43:58 PM
Rule 12. DISMISSAL FOR WANT OF PROSECUTION.
      An action may be dismissed sua sponte with written notice to the plaintiff if no activity has occurred within 8 months after a complaint has been filed (or within any further period of extension granted by the court). Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal.
      (Added November 27, 2007, effective January 1, 2008.)
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: coltfan1972 on February 22, 2016 01:47:24 PM
Rule 12. DISMISSAL FOR WANT OF PROSECUTION.
      An action may be dismissed sua sponte with written notice to the plaintiff if no activity has occurred within 8 months after a complaint has been filed (or within any further period of extension granted by the court). Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal.
      (Added November 27, 2007, effective January 1, 2008.)

Should have Googled sua sponte before posting this, because above helps the OP in this case zero.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 22, 2016 01:51:07 PM
I know what it means. Now he knows it's at the discretion of the court and there is no provision for him to file a motion. That helps.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: coltfan1972 on February 22, 2016 01:51:31 PM
thanks everyone, I appreciate your help.  I'll file the MTC in the morning.

Good plan, and please stop listening to whoever you've been listening to up until this point. 

All this wet ink, kitchen sink validation demands, and fee schedule stuff just makes you look like you have no clue and they are going to fight you harder.   

The motion to compel arbitration, properly written, should end this for you pretty quickly and send them packing.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: coltfan1972 on February 22, 2016 02:00:44 PM
I know what it means. Now he knows it's at the discretion of the court and there is no provision for him to file a motion. That helps.

Wrong as usual.  All that means is one option is the court can act on their own, as any court in America under the same facts as this case.   You'll find that rule in every court, for obvious reasons.

Obviously the OP should have filed their own motion long before this, but that and the court acting sua sponte are now off the table, so your post telling the OP what the court could have done was of no use to the OP.

But you did get to throw around some fancy legal jargon, sua sponte, that sounded cool and like you really knew what you were talking about.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 22, 2016 03:31:19 PM
Wrong as usual.  All that means is one option is the court can act on their own, as any court in America under the same facts as this case.   You'll find that rule in every court, for obvious reasons.

Obviously the OP should have filed their own motion long before this, but that and the court acting sua sponte are now off the table, so your post telling the OP what the court could have done was of no use to the OP.

But you did get to throw around some fancy legal jargon, sua sponte, that sounded cool and like you really knew what you were talking about.


I didn't throw it around, I quoted the rule. So it's my fault he may not know what it means and I have to explain it to him? Give me a break. And for your information, there is nothing in the HI district court rules that provides for a party to file such a motion. You have rule 12 and rule 29. Neither mentions "by motion" of a party. Dog the Bounty Hunter is on his way to Arkansas.

Hey, at least there is one thing in this thread somebody with your limited mentality can understand.......his opposing counsel is named Dang.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: BellEbutton on February 22, 2016 05:40:41 PM
Three years with no activity? See what your court rules say about lack of prosecution. That's a long time to let a case sit without doing anything.

The OP didn't say there was 3 years of no activity.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 22, 2016 06:07:05 PM
I see that. There was a period of 22 months where they apparently did not serve him. I wonder why they moved so slowly on this.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: BellEbutton on February 22, 2016 06:31:34 PM
I see that. There was a period of 22 months where they apparently did not serve him. I wonder why they moved so slowly on this.

Lazy process server?  Lazy attorney?  Someone dropped the ball?   Who knows.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: benedick on February 22, 2016 09:37:15 PM
Good plan, and please stop listening to whoever you've been listening to up until this point. 

The motion to compel arbitration, properly written, should end this for you pretty quickly and send them packing.

So, for clarification why should this send them packing?
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: coltfan1972 on February 22, 2016 09:38:39 PM
So, for clarification why should this send them packing?

There is an arbitration section of this board, read it.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 23, 2016 02:18:01 PM
Also read up on waiver. You have almost four years of this case being litigated in court. They may argue that by using the court system to this extent, you waived your right to arbitration.

This comes up occasionally in other states. We don't get that many HI cases, so you'll have to look it up to see how it applies there.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: BellEbutton on February 23, 2016 07:37:32 PM
You have almost four years of this case being litigated in court.

No.  He was served on a little over a year ago.
Title: Re: Can I get a continuance - FDCPA issues - and trail 3/4/16 ?
Post by: Bruno the JDB Killer on February 23, 2016 08:31:01 PM
4/15/13 they filed complaint


They did not serve him until Dec 2014. There seems to be a lot inbetween then and now.