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Friday, July 18, 2008

Reader mail:  Americas Servicing Company balance not going down

Re: my mortgage is with American Servicing Company HELP ME PLEASE

I have a home and the loan is with American Servicing Company. I have had the loan since 2002 the loan amount we took out was 127,000.00 6 years later I owe 126,900.00

HELP ME PLEASE

I cant do this I feel like they have been stealing from me for 6 years. My credit is not good enough to refinance and I feel like I am drowning.

Is there anything that can be done.

Please advise,

Best Regards ...

Whether anything can be done depends on WHY your principal balance hasn’t gone down.

Did you make your payments LATE?

Do you have negative amortization?

Although this isn’t a foreclosure, it all comes down to accounting as described in the links at dealing with foreclosure.

Learn about your rights under RESPA and order accounting and READ your loan docs.

I’m still waiting for the first person to email how grateful they are for the info and that they got their $1,000 check for statutory damages and/or a credit for fraudulent charges.

The information is there, PLEASE use it and even better, help others by publishing YOUR experiences and lawsuits.

I can’t volunteer my time to do the work for everybody and I don’t think it’s too much to ask that people either USE the information and many examples provided free of charge or that they PAY for PERSONAL services that will only benefit them. 

Nobody knows more about how to raise FICO scores than me.  CreditFactors has the world’s best resources for people who are willing and able to study credit and scores. 

The time I DO volunteer is dedicated to trying to make a difference for ALL.

Of course I know that many of the people who get screwed by banks can’t pay for professional help.  That’s the beauty of this system and why it works so well for the bankers.  It sucks, but that’s just how it is.

If you can’t afford to pay for personal services or CreditFactors, ask the people who YOU helped over the years to loan you the money. They know that you’re a good person and that you’ll pay them back.  And I’ll be glad to help free of charge at the subscriber forum.

I just said NO to a neighbor who asked me to volunteer my time and I didn’t like doing it, but my day has only 24 hours.

Wednesday, July 16, 2008

Minnesota AG Lori Swanson sues notorious collector Afni

YES!!!

July 15, 2008

MINNESOTA ATTORNEY GENERAL LORI SWANSON FILES SUIT AGAINST AFNI INC., AN ILLINOIS DEBT COLLECTION AGENCY

Minnesota Attorney General Lori Swanson today filed a lawsuit in Hennepin County District Court against AFNI, Inc., an Illinois debt collection agency, for attempting to collect debts from Minnesota citizens who stated they did not actually owe the debts and for failing to substantiate debt that consumers stated they did not owe.

The lawsuit alleges that AFNI used unfair collection techniques to attempt to collect debts that Minnesota consumers stated they did not believe they owe, and that AFNI did not adequately verify the validity of debts to ensure it was collecting the debt from the right people. As a result, AFNI repeatedly contacted Minnesota consumers in an attempt to collect debts, some up to ten years old, that in some cases were not actually owed by the citizens.

“In this troubled economy, many people are struggling to pay their bills. Debt collectors are entitled to pursue payment of legitimate debts, but they must do so fairly and in compliance with the law,” Swanson said.

The lawsuit alleges that AFNI continued collection efforts, rather than verify the legitimacy of the debt, after citizens informed AFNI that it was attempting to collect the debt from the wrong person. In response to AFNI’s requests, Minnesota consumers sometimes provided private information, including social security numbers and police reports of identity theft, to prove that AFNI was collecting the debt from the wrong person, but that even after being provided with this requested information, AFNI sometimes continued its collection efforts.

AFNI also sometimes reported invalid “debts” to credit bureaus without verifying that the debts were actually owed by the citizen and did not take the action necessary to remove the debts from consumers’ credit reports.

The Minnesota Attorney General’s Office has published a Debt Collection Fact Sheet which offers tips for consumers who are contacted by collection agencies. The Attorney General’s Office provides the following tips in dealing with debt collectors:

Consumers have the right to dispute all or part of a debt if they believe that it is not owed. Once the debt is disputed, collectors must stop trying to collect the debt until the debt collector provides proof of the debt;

Collectors must inform consumers of their right to request verification of a given debt in writing within 30 days;
If a consumer tells a collector it has the wrong person and he/she does not owe the debt, the burden of proof shifts back on the collector to verify the debt; and

Collectors may not use false, deceptive, or misleading statements to collect a debt;
AFNI, Inc. is a private debt collector headquartered in Illinois that has operations throughout the country and is engaged in the business of debt collection.

Consumers who believe that they were taken advantage of by AFNI, or another debt collector, may file a complaint with the Minnesota Attorney General’s Office by calling 1-800-657-3787 or 651-296-3353. Consumers may also download a Consumer Complaint Form by clicking here and returning the completed form to the Attorney General’s Office at: 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2131.

Afni recently demanded more information from a client instead of properly validating the debt.  Sending a notice with the amount owed and the name of the original creditor is NOT validation.

What’s NOT in the press release:

*** Afni usually reports the account as disputed to the credit bureaus as required by the FDCPA, but since FICO scores IGNORE the dispute notice, FICO score continue to be destroyed.

*** PAYING a collection reported to the credit bureaus as such will NOT increase FICO scores. While many people would just settle the accounts to make them go away, doing so would result in often much lower FICO scores.

*** Because collections are rated by FICO scores according to the DATE ASSIGNED, even very OLD collections can lower FICO scores by over 60 points.

Just about every 2nd client has an old Afni collection and I sure wish the so-called consumer advocate attorneys did their jobs. With Afni headquartered in Illinois, I don’t understand why Dan Edelman hasn’t filed a class action.  On second thought, it’s probably not profitable enough due to the FDCPA class action damages restrictions.

I applaud AG Lori Swanson.

I’ve had CreditFactors subscribers post that her office assisted with the resolution of complaints about creditors and collectors and that rarely happens in any other state. 

From her bio:

… In 2006, Ms. Swanson served as Chair of the Consumer Advisory Council to the Federal Reserve Board of Governors in Washington D.C. The Consumer Advisory Council, established by Congress in 1976, advises the Chairman of the Federal Reserve Board and the Board of Governors in consumer protection matters, including predatory lending, mortgage, banking, credit card marketing practices, credit scoring and credit bureau reporting, fraud and identity theft, and financial privacy. Ms. Swanson served as Vice-Chair of the Council in 2005 and a member in 2004. In 2007, Swanson testified in front of the Board in Washington D.C., urging it to take action to protect homeowners from predatory mortgage lending practices that lead to default, foreclosure, and economic turmoil. ...

It doesn’t look like anybody listened to her.

I should send her an open letter about the Afni credit reporting implication, but due to the lack of donations, I doubt I’ll get to it.  Been extremely busy with the Focus appeal (will post shortly) and since I’m driving my nephew to the airport tonight, I’ll be taking a break from building and catch up on the many projects and suits.

Friday, July 11, 2008

Looking for recordings to play to collectors

I’m TRYING to work on a court filing and CONTINUALLY the phone rings.  It’s probably WaMu, some 800 number from a collection department.

On 6/30 I talked with WaMu rep Goodwin for 1.5 hours.  I started a posting on this call, but haven’t had time yet to finish it.

The original creditor can harass me all they want since I live in Arizona and there is no law protecting me.  They figure if they make it impossible for me to work, I’ll set up a payment arrangement. 

I’ve notified them in writing that I won’t pay and I advised them on the phone to PLEASE sue me (I’d really like to conduct discovery), but to let me do my work and stop calling me.

Their auto dialers just won’t quit until I talk to them.

And I’m done explaining myself over and over and over.

A few days ago I got so pissed off, I called that woman every swear word I know.  Unfortunately, I only know a few 4 letter words, but they actually didn’t call for a day.

Since being polite and reasonable doesn’t work, I just had the idea to get some recordings to play to them.  It would be great to have a library for people to select recordings to play to them.  I hate being abusive, but having to talk to these idiots is too aggravating.

The recordings could be educational or just plain mean. 

It would be cool to have a variety of recordings.  I once had a neighbor who loved to “rip you a new asshole.” Her tirades would have been PERFECT.  Seems like there should be some good rants on youtube or one could also use excerpts from movies.  Please post or email links.

Of course it would be coolest to have some recordings about collections, with lots of pauses, so they start talking and maybe don’t even realize that it’s a recording.  That could be very funny.

Any other ideas?  Let me know.  And next time you get angry and/or creative, let it all out and post or send me the recording.

Wednesday, July 09, 2008

Trans Union motion to dismiss and email with attorney Donald Bradley, Musick, Peeler & Garrett LLP

I posted the TU motion to dismiss:

6/26/08 TU Motion to Dismiss

I haven’t had time yet to scan and redact their discovery responses, but I got essentially NOTHING but objections.

Here’s the email correspondence with TU attorney Donald Bradley:

Sent: Tuesday, July 08, 2008 1:55 PM
To: Bradley, Donald
Subject: Baker v. Trans Union - discovery issues, extension

Mr. Bradley,

I’d like to know whether you’ll agree to an extension to respond to your motion to dismiss until after I have substantive Trans Union discovery responses and we need to schedule a telephone call to discuss the objections and whatever issues.

I’m available this week after 1 PM, please let me know what works for you,

Christine Baker

Attorney Bradley then gave me legal advice:

Ms. Baker, I usually am agreeable to reasonable extensions, but here I have a hard time understanding the reason for your request.  Trans Union’s motion to dismiss is a pleading motion.  Therefore, discovery has no bearing on the issues the judge is deciding.  In fact, if you were to submit any materials from discovery in an opposition, the judge would disregard them. 

That said, I am willing to discuss your request further.  I also am available generally in the afternoons this week to discuss discovery issues.  Please let me know if and when you would like to talk.

Donald E Bradley
Attorney

Musick, Peeler & Garrett LLP
650 Town Center Drive, Suite 1200
Costa Mesa, CA 92626

My response:

Mr. Bradley,

Please let me know if I can call you tomorrow at 1 PM regarding the discovery issues and whether you’ll agree to an extension until 7/25.  If I don’t have substantive discovery responses by then, I will let the court decide whether discovery is relevant to your motion to dismiss.

I haven’t time to deal with discovery and litigation issues since my nephew is visiting until the 17th to help build my house.

Christine Baker

Attorney Bradley declined my request for extension:

I will be available at 1 pm tomorrow.  At this point, I cannot grant your extension request, though we can certainly discuss it further tomorrow if you like.

Donald E Bradley
Attorney
Musick, Peeler & Garrett LLP

It is AMAZING what scum I’m dealing with.  He’s right there with Focus lawyer Cynthya Fulton.

The Trans Union liars have screwed me so many times, I’ve learned a lot and I will obviously request my extension and I’ve NEVER had a judge decline it.  After all, that’s grounds for appeal and they all know that I’ll appeal.

And if discovery can’t be considered to decide a motion to dismiss, what the hell is it for?  My requests for admissions to Trans Union should be deemed admitted since they failed to answer within 30 days.

Unless TU starts to cooperate, discovery and the bad faith TU objections will be a large part of my objection to the motion to dismiss and I might have to file a motion to compel.

9th circuit FDCPA opinion: Reichert v. National Credit System

An EXCELLENT decision by the 9th circuit court of appeals. 

Bona Fide Error Defense Requires Bona Fide Procedures, Ninth Circuit Holds

The Ninth Circuit today upheld summary judgment for a debtor against a debt collection agency under the Fair Debt Collection Practices Act.  The agency had purported to verify to the debtor that he owed, in addition to an amount due under a residential lease, a $225 fee for the landlord’s cost of having a lawyer write a demand letter.  But the lease allowed recovery of such a fee only if the landlord sued.  Oops.

The debt collector invoked the bona fide error defense under section 1692k(c) of the FDCPA.  It asserted, in a declaration, that the landlord had always given it accurate information in the past and that it therefore reasonably relied on the false information about the landlord’s entitlement to tack on the fee. 

The Ninth Circuit rejected the defense.  It noted that the statute requires proof that “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” Reliance on a creditor to get the numbers right doesn’t raise a fact issue that the agency maintained “procedures reasonably adapted to avoid” a mistake in the creditor’s representations.  “The procedures themselves must be explained, along with the manner in which they were adapted to avoid the error.” Reichert v. Nat’l Credit Systems, Inc., No. 06-15503, slip op. at 8 (9th Cir. July 7, 2008).

Collectors always rely on the bona fide error defense and I sure wish I had this opinion a year ago at the Focus Receivables settlement conference.

Which reminds me, I have to update on the Focus appeal.  Scumbag liar/lawyer Cynthia Fulton filed a motion to dismiss and falsely stated that she served me electronically.  The 9th circuit appeals court electronic filing system is still being developed and I was VERY lucky they didn’t dismiss my case since I didn’t oppose the motion I didn’t receive until AFTER the court denied it.

I’ve asked the court to revoke Fulton’s privilege to practice in the appeals court and have to pick up her response at the post-office, will update shortly.

It is such a struggle.  The attorney for Reichert was Deepak Gupta from Washington D.C., so I believe he is the Public Citizen attorney:

Deepak Gupta is a staff attorney at Public Citizen Litigation Group in Washington, DC, where his practice focuses on consumer and constitutional litigation.

And I’ll try to get the actual filings from the district court in Reichert v. National Credit System for posting at CreditFactors.  Unfortunately, as I found out when I tried to get the Focus motion to dismiss, the appeals court does not mail filings, not even for if you pay 50 cents/page for copying plus postage and I sure can’t afford to hire a legal service in San Francisco to get the briefs. 

Here is the opinion:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2202ACCF90C8382B8825747F00577E69/$file/0615503.pdf