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The 9th circuit court of appeals rejects a novel tactic by debt collectors: buying consumers FDCPA lawsuits out from under them at auctions on the courthouse steps.

Arellano v. Clark Cty. Collection Serv.
Case No. 2:15-cv-01424-JAD-NJK (D. Nev. Feb. 19, 2016)

Opinion: 16-15467.pdf

Background: Bloomberg
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To establish the bona fide error defense, a debt collector must prove by a preponderance of the evidence that its FDCPA violation was unintentional and was caused by an objectively bona fide error (i.e., one that is plausible and reasonable) made despite the use of procedures reasonably adapted to prevent that specific error. Wilhelm v. Credico, Inc., 519 F.3d 416, 420 (8th Cir. 2008).
That's why you give the attorneys a few days to correct the error.

Give them the police report, and give them 3 business days to dismiss the case.

If they don't, sue them under the FDCPA.

They knew. They didn't dismiss. They can't claim error.
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Arbitration / Re: JAMS Appeal
« Last post by kevinmanheim on Today at 01:55:28 AM »
The contract was amended by agreement when Discover participated in the arbitration using the consumer rules described in the letter JAMS sent you and Discover.

Those amendments become part of the arbitration agreement.

If they try to confirm the award, I would do two things:

1- Argue that there is no award to confirm, as is required by the FAA to confirm an award. The court can only confirm an award. The contract, which Discover drafted, says the award is not final. Simple as that.

2- Sue the law firm for violating the FDCPA. Taking an action they know they cannot legally take in attempting to collect a debt.
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I'm unclear what, if any, rights I have regarding obtaining a copy of the 2012 cardholder agreement; and how/if those rights change if I'm being sued.
That was my concern related to calling them.
Nothing to be afraid of. AMEX is friendly. Ask, and you will probably receive the agreement.

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General Credit Forum / Re: Midland Funding ?????
« Last post by CleaningUp on Yesterday at 11:53:39 PM »

This provision seems somewhat casual and unofficial, especially when formal official types of communications and procedures are expected by the system.
*shaking my head*


What you think is reasonable is irrelevant.  It's what the law says is reasonable.  If "nail and mail" is legal in your jurisdiction...well...er...it's legal in your jurisdiction.

Don't let your emotional response get in the way of your thinking strait.  (BTW, doing so is rather a common occurrence, but being "common" doesn't change the fact that it is unhelpful to your cause.)

As for the attorney only having practiced for a year?  Quite the norm in cases like this.  Why would they trust a freshly minted attorney to, say, something like the Samsung/Apple patent case?
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There is no law that requires them to provide it.

But that is where discovery comes in.  Your going to have to read the Rules of Civil Procedure, but most jurisdictions only allow discovery after the defendant has been served.

If you think about that statement seriously, you will see the logic behind it and the efficacy of the rule.

Have you read and understood the RCPs yet?  Your question could be easily answered by that understanding.  The basic rule is that if it isn't prohibited or specifically constrained, it is allowable as long as all the other rules of the court are followed.

Read up on discovery, and check the governing case law.  I am sure that there is plenty since discovery has been a key element of civil litigation since our courts began operation in 1787.  You'll find your answer there.
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Arbitration / Re: JAMS Appeal
« Last post by Riceman on Yesterday at 10:51:24 PM »
So Discover still has not paid their portion of the filing fee. Jams sent them a reminder yesterday. I have a feeling they are going to not pay and then try and confirm the award from the initial arbitration.

How should I defend this to a Judge? The card member agreement says one thing but Jams is saying something else. I'm not sure how to argue this in front of a Judge.

Thanks!
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Arbitration / Re: Summons by Gurstel in Arizona Asking for Assistance
« Last post by BellEbutton on Yesterday at 09:51:40 PM »
We live together.  We have different phones. 

Is case law necessary for FDCPA?  I didn't read that.  Only that proven number and frequency mattered in harassment.  It was excessive - multiple times a day for a few weeks. 



Some courts rule that fewer calls are required to show harassment, whereas others require more calls and frequency.

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Are attorneys allowed to contact without identifying themselves, leaving no messages, and multiple times?

Sometimes they don't leave messages in the event a third party might hear the message.  For calls made after the lawsuit was commenced, they could claim they were calling to try to settle. Again, attorneys call each other.   That's the chance you take when you represent yourself.   And again, you need to see how your courts have ruled on call frequency and harassment.
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File a Consumer Finance Protection Bureau complaint and complain that AMEX is refusing to provide the contract.

I'm unclear what, if any, rights I have regarding obtaining a copy of the 2012 cardholder agreement; and how/if those rights change if I'm being sued.
That was my concern related to calling them.
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Arbitration / Re: Summons by Gurstel in Arizona Asking for Assistance
« Last post by TM97 on Yesterday at 09:32:56 PM »
It does not say that a lawsuit cannot be USED as an initial communication.   The ACT states that a lawsuit is NOT an initial communication.   

You were contacted and they did not identify themselves?  They weren't supposed to.

Do you live together?  Did they call your cell phone or a landline used by both of you?

In regard to them telling YOU she owed a debt, they should not have done that if you're not married.

It would depend upon the number and frequency of calls.  Do you have case law?

In regard to calls after JAMS, was she the one who was contacted?  Is she representing herself?  If so, they can contact her because she's acting as her own attorney.  Attorneys are supposed to contact each other during lawsuits.

We live together.  We have different phones. 

Is case law necessary for FDCPA?  I didn't read that.  Only that proven number and frequency mattered in harassment.  It was excessive - multiple times a day for a few weeks. 

Yes, she was contacted, and yes, she is pro se.  Are attorneys allowed to contact without identifying themselves, leaving no messages, and multiple times?  Again, it appears to be harassment instead of a legitimate attempt by the attorney to discuss the situation. 
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