We will cover this later in the course, but in the meantime, get used to some of these terms.
This International Commercial Law basically shows that a debt is considered discharged if the debt collector / original “Creditor” fails to reply and rebut your Affidavit of a Zero Balance. This is yet another process we use to demand proof of any authentic debt, which the banks/debt collector never properly respond to.
(1) A debtor may sign a statement indicating what he believes to be the aggregate amount of unpaid indebtedness as of a specified date and may send it to the secured party with a request that the statement be approved or corrected and returned to the debtor. When the security agreement or any other record kept by the secured party identifies the collateral a debtor may similarly request the secured party to approve or correct a list of the collateral.
(2) The secured party must comply with such a request within two weeks after receipt by sending a written correction or approval. If the secured party claims a security interest in all of a particular type of collateral owned by the debtor he may indicate that fact in his reply and need not approve or correct an itemized list of such collateral. If the secured
party without reasonable excuse fails to comply he is liable for any loss caused to the debtor thereby; and if the debtor has properly included in his request a good faith statement of the obligation or a list of the collateral or both the secured party may claim a security interest only as shown in the statement against persons misled by his failure to
comply. If he no longer has an interest in the obligation or collateral at the time the request is received he must disclose the name and address of any successor in interest known to him and he is liable for any loss caused to the debtor as a result of failure to disclose. A successor in interest is not subject to this section until a request is received by
(3) A debtor is entitled to such a statement once every six months without charge. The secured party may require payment of a charge not exceeding $10 for each additional statement furnished.
Fair Debt Collection Practices Act and the Duty of a Debt Collector
to Validate a Debt when Demand is Made:
More public law to support consumers and our efforts at validating the debt:
Notice it lists unfair practices. They may NOT call third parties, make false threats, or use fake identities, among other things.
EACH VIOLATION can result in a charge of $1000.00 to the collection agency. If there are, therefore, multiple violations that you can document, then the charges could escalate quickly.
You can document this by providing witnesses or sworn affidavits in court. You can also get caller ID information from the phone company to show how many times they called, etc., specifically if it is after you have sent them written notice to stop contact except to tell you they are suing. Just remember to make all communications in writing, certified mail, return receipt requested, then attach the returned card to the copy of the letter you sent and kept. The idea is to make a paper trail of violations.
I once had a debt collector who was ignoring these warnings, so to get him to stop I read him poetry whenever he called and refused to say anything else. Eventually, he slammed the phone down in disgust and never called again. I knew there were monetary damages that could be collected, but did not know how to enforce it then.
Now, I know that you can either go to court or you can use a non judicial administrative process and place the resulting commercial lien on them yourself. You can do the same thing.
And remember, most of this is not valid anyway because, for one thing, they can’t produce the original document you signed for the loan. There is also the fact that you legally don’t owe the money anyway. But, that is beyond the scope of this discussion.
Just suffice it to say that most debts can be discharged with an Acceptance 4 Value, which we will discuss later in this course.
But you probably won’t have to go that far. Your notices to the credit bureau should discharge most of the debt, and direct letters to any collection agencies should get them to cease. Once you prove this is a fraud, they will usually just stop anyway.
To be really sure of success, you should already have your UCC financing statement in place, which we will cover soon in this course.
Watch the bottom of this part for some forms you can order to help with this part of the process.
§ 809. Validation of debts [15 USC 1692g]
(a) Within five days after the initial communication with a consumer in connection with the collection of any debt [this starts with your letter to the credit bureau], a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing –
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the
name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
Tacit Acquiescence is Acceptance:
This explains to you how we get the companies to “Agree” with our new contract that the debt is settled/discharged/zeroed out:
Definition of “Tacit Acquiescence”: Conduct recognizing the existence of a transaction and intended to permit the transaction to be carried into effect; a tacit agreement; consent inferred from silence.
For example, a new beer company is concerned that the proposed label for its beer might infringe on the TRADEMARK of its competitor. It submits the label to its competitor’s general counsel, who does not object to its use. The new company files an application in the Patent and Trademark Office to register the label as its trademark and starts to use the label on the market. The competitor does not file any objection in the Patent Office. Several years later, the competitor sues the new company for infringing on its trademark and demands an accounting of the new
company’s profits for the years it has been using the label. A court will refuse the accounting, since by its acquiescence the competitor tacitly approved the use of the label. The competitor, however, might be entitled to an Injunction barring the new company from further use of its
trademark if it is so similar to the competitor’s label as to amount to an infringement.
Similarly, the Internal Revenue Service (IRS) may acquiesce or refuse to acquiesce to an adverse ruling by the U . S . TAX COURT or another lower federal court. The IRS is not bound to change its policies due to an adverse ruling by a federal court with the exception of the U.S. Supreme Court.
The chief counsel of the IRS may determine that the commissioner of the IRS should acquiesce to an adverse decision, however, thus adopting the ruling as the policy of the IRS. The decision whether to acquiesce to an adverse ruling is published by the Internal Revenue Service as an
Action on Decision.
Acquiescence is not the same as Laches, a failure to do what the law requires to protect one’s rights, under circumstances misleading or prejudicing the person being sued. Acquiescence relates to inaction during the performance of an act. In the example given above, the failure of the competitor’s general counsel to object to the use of the label and to the registration of the label as a trademark in the Patent and Trademark Office is acquiescence. Failure to sue the company until after several years had elapsed from the first time the label had been used is laches.
Contracts Can Move & “Holding Your Contract”:
You have already probably received “New Terms” for your credit card, or Notices of new terms for collecting unemployment amounts or social security amounts, etc. Any contract can change and this is supported and agreed by the other party if the other party does not respond in order to re-negotiate those proposed new terms. Within 72 hours (actually 10
days – for mail to go to and fro), a new contract is agreed upon if you fail to respond. However our process is allowed to change old contracts using another concept called “Nunc pro tunc” Latin for “Now For Then”. Any contract can move or be changed. The following audio is a great example; although it is lengthy it really helps to understand this concept:
Basically, we just want you to understand that we are moving the contract from what was once an agreed upon obligation (because of our conduct – you were paying it weren’t you?!), to now being an unsubstantiated or frivolous claim that has been rebutted by law.
End of Part 4
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