You are on page 1of 5

Proper Responses

Lots of folks out there are asking lots of questions on how to respond to different correspondences they receive from various agencies. I would like to cover some of the most frequently asked questions, and go over correct responses. #1 Responding to the Banks Letters and calls asking for payment. If you are engaging the creditor in administrative process, the most common mistake folks are making is asking for a Validation or Debt or a verification of Debt pursuant to the Fair Debt Collection Practice Act. I have been given permission from one of our students to use the following excerpts from a letter. Dear Mr. Blank, Your correspondence dated June 14, 2002 has been forwarded to my office for answer. In your said correspondence, you have asked for Citibank to provide a verification of alleged debt by affidavit. Please note Citibank is not under any obligation to respond to such request as the Fair Debt Collection Practices Act does not apply Original Creditors. I assure you that Citibank has complied with the terms of the Credit Card Agreement, and as such, is legally entitled to payment. If you chose to ignore this obligation, Citibank will exercise its rights to pursue lawful remedy to recover this debt. Sincerely Mr. J. Davis - Corporate Counsel Ok, how many people out there have tried asking the bank to make a verification or validation of debt? Did it work? Did you get any benefit of future evidence in case they take you to court? Probably not. Funny, I once heard that if they can get you asking the wrong questions they don’t have to worry about answers. You can see why most folks are getting ran over or ignored, and or referring the debt to Attorney’s. If you are going to send correspondence to a bank, by all means at least ask the right questions. What you would actually want the bank to respond to is a request for assurance of due performance. And please let me explain why. Under Uniform Commercial Code Section 2-609 (Section 1) we find, and I quote “ A contract [for sale] imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable, suspend any performance for which he has not already received the agreed return. (Section 3) “Acceptance of any improper delivery or payment does not prejudice the aggrieved party’s right to demand adequate assurance of due performance.”

Lets relate this to the bank. he may make his offer to depend upon the due performance of such condition.” UCC 3-603(b): “If tender of payment of an obligation to pay an instrument is made to a person entitled to enforce the instrument and the tender is refused. and as such.” Taken from State Code : “When a debtor is entitled to the performance of a condition precedent to.(Section 4) “After receipt of a justified demand. Dan says oh. is Dan is not under obligation. performance on his part. I can claim damage. as there was no tender of consideration from me. let’s use this agreement. Now after two weeks and my house isn’t painted. but Accounts receivables will go up. and is going to give you evidence in court that you offered to pay the debt. if you paint my house I wont beat the crap out of you. thus making all assets . I have tendered a consideration. Now if I paid Dan up front $500. Using Tom Shauff’s materials there are seven elements that you want the bank to answer #1 Did the bank loan their money as adequate consideration to purchase the borrowers agreement? #2 Did the bank accept something of value from the borrower. tell the judge. to the extent of the amount of the tender. failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract. Under the Uniform commercial code a contract without consideration is facially void. if they would just give you the legally required assurance of due performance. Dan says sure. They accept an asset from you called a note. well Dan. um. In court you could also. Cash may go down. can I go to court and try to enforce the contract? No and the reason. of the obligation of an endorser or accommodation party having a right or recourse with respect to the obligation to which the tender relates. And I say. I’ll think about it. if he does not perform. I approach Dan and say “Dan will you paint my house. that you conditionally accept their offer to pay. and I mysteriously haven’t seen Dan around. If they loan their money. that funded the loan? #3 Did the bank record the agreement as both an asset and a liability? #4 Does the Bank Follow Generally Accepted Accounting Principles and the Federal Reserve Policies and Procedures? #5 Is it the intent of the contract that the one who funds the loan is to be repaid? #6 Was Full Disclosure given to the borrow as to who was to fund the loan? #7 Is it the Banks intent to deny equal protection to the borrow? Now why are these elements important? #1 Did the bank loan their money to purchase the contract.” A correctly written letter to a Bank will meet each of the above two elements. they must substitute an equal asset for an equal asset. that there is no controversy for him to hear. or concurrent with. there is discharge. To help explain consideration. what will you give me. In order for them to own the note. if they would just provide what you are legally entitled to.

as an unauthorized loan. which actually is a statement against them. a number where you can call them back at. – This is a tricky question. So he cleverly said give unto Caesar that which is Caesars – which will be eternal damnation and destruction. Basically they was to use the laws that can be construed against you. but I am digressing. then . which is your love. it shows lack of consideration. He was asked if it was correct to pay tribute to Caesar. First rule of phone calls. and to holler at you. and if he said No. then we know they owe us the value of the note. Never ever refuse to make payment. They will have to say Yes. as they get the most pain for the buck. If you funded loan then they agree they should pay you. devotion. Phone Calls Be courteous. #3 Did the bank record the note as both an asset and a liability? Again if we can get them to admit that they recorded the note as a liability. and use its value to purchase the note. If they answer No. always be willing to make payment as soon as you get Assurance of Due Performance.D. If you get mad every time you hear a creditor’s name. He knew if he said Yes. #2 Did the bank accept something of value from the borrower. #5 Is it the intent of the contract that the one who funds the loan is to be repaid Here is another trick question. then it is null and void #7 Is it the Banks intent to deny equal protection to the borrow? They must say no. If they are entitled to repayment. in control. If this is true. then again. will remaining silent or perpetrate a fraudulent material concealment against you. then why would you be denied repayment. and obedience.equal. then we know what the bookkeeping entries are based on mandatory compliance with these two legal principles. If they answer Yes. #4 Does the Bank Follow GAAP & FRP&P. Please keep in mind that it is unlawful for them to use profane or vulgar language with you. and don’t show emotion. but in actuality there intent is to deny you equal protection. or if you see their number on the caller I. If they steal the note from us. you can actually have some fun with it. If the agreement or contract is construed to be outside the written form. he would be condemned by Gods law. always ask for there name and employee identification number. and as long as you are aware of it. they must record it as both an asset and a liability. then they have effectively created a painful association between them and your decision not to tender payment. I have heard a lot of preachers misstate the intent of that lesson. It is their tactic to elicit an emotional response from you. #6 Was Full Disclosure given to the borrow as to who was to fund the loan? In a contract there are consumer protection laws that require that all terms of the loan be disclosed in writing. Now Jesus found himself once in a situation such as this. and who their supervisor is. and not affecting liabilities at all.. This is a clever and effective mental game. If you can get them upset. and give unto the Lord that which is the Lords. now they are in trouble for breaking the law. he would be in violation of Caesar’s edict. that funded the loan? We are asking did they take an asset from us.

Stearn 128 F. Responding to Collectors. Law Offices of David J. is disputed.“Upon acting upon a validation notice by disputing the debt. and you find that there behavior is unlawful according to Federal Law. Take a marker in large print and write across the face of the original documents “Refused Without Dishonor – Not a Verification. If you don’t have the stomach for this.” Be law the following statement must appear on the initial correspondence or within 5 days after the initial correspondence: This debt will be assumed valid by this office unless you the debtor consumer within 30 days after the receipt of this notice disputes. the validity of the debt or some portion thereof. Jenkins. and this include Judges and Attorneys. and if you make written request to this office within 30 days from the receipt of this notice. and most campaigns last 3-6 weeks.” If you would like to make copies of the original before you send them back. or any portion thereof. 514 US 291 FDCPA applies to lawyers and judges engaged in debt collection. Third parties are subject to the Fair Debt Collection Practices Act. I don’t conduct business over the phone. we will obtain a verification of the debt and a copy of the verification will be mailed to you.inform them that your spouse is on the other phone recording the conversation. 501 . If it has been longer than the time to respond. If they know that they are not getting under your skin. You should see some of the crap they are sending my student. regarding acceptance. If you get something from them that look like copies of statements. Matinez v. include the refused original with your letter of fault. and asking for more information. It’s actually very entertaining.3e 500. by all means. If you keep them it is your tacit acceptance. And at last. I have a student who has kept the attorney from filing a summons for 4 1/2 months by refusing their presentments. Make sure you mention there nonresponsive correspondence in your fault letter. If the creditor named is not the original creditor. a lot of you folks have requested validation. then the harassment has lost its effectiveness. you must not keep them. This is the one and only case that you would ever part with an original copy of anything. I can hear light bulbs going on right now. a copy of the judgment will be provided upon request. Call them back repeatedly asking them questions. If the debt is based on a judgment. a consumer is under no obligation to respond to the complaint. Ok. Additionally a 1986 senate report 99-405 included attorney’s as well as judges in the prohibitions. the name of the original creditor will be mailed to you. concerning your loan. Keep in mind that there is a court case that states that they can file a summons within the . but what do you do when you get something from them that is not verification? Here is where a lot of folks make the mistakes. I have here a court case Heintz v. This should start to make sense to some of the UCC gurus and procedure veterans. and hang up. or computer printouts. in writing. If you notify this office within 30 days of the receipt of this notice that the debt. Eventually the calls will stop. then simply be polite and say.

and that is fine. If you would like to alert the judge that the debt is disputed. who all of a sudden has incredible powers. Ok Monogram Credit Card Bank versus Joe Goodguy from Michigan. the next thing you get from court is the attorney’s motion for summary judgment. If you fail to rebut or build a defense. um. That would be a subject for another call. what is this. I have asked for a verification of this debt and to date have not obtained one. I’ve heard it said that a building inspector is a builder who couldn’t make it in the trade. “Counselor. The Judge say. The Judge or the court clerk is under absolutely no obligation to answer. I’ll have to get back with you on that. If you receive a summons. Well. If you do not place anything of evidentiary value in front of him. If you want to let the Judge know within your pleadings that you have created an estopple. . they cannot proceed without somehow getting you to agree with a presentment of verification. My Goodguy. Where do we get judges? The same place we get building inspectors. but according to the act and case law.initial 30 day period. do not send a validation of debt to the Judge. he cannot rule in your favor. It went simply something like this: Ok what do we have hear. nor do they have the authority to answer on behalf of the bank. lets say the same about a Judge. and attach a copy of the request for verification.” Judge looks at the Attorney and says. including the proof of service and green card to the debt collector. you do intend to get this man his verification?” Attorney stammers and says. He doesn’t really know much about law. I’m going to schedule this out for another 90 days. fine. You got the incompetent attorney. The judges jurisdiction is created by a sufficiency of the pleadings. so he knows not to proceed. The court is moved by court rules. Some folks are experiencing judges who don’t know that they cannot proceed. Estopple is a legal word for a bar or to prevent. “well your honor. The correct way to respond to a summons is to look at the 3 to 6 points that the attorney has listed in the complaint. and that is the reason why we submit petitions. It is your duty to inform the Judge of how to behave in your case. then do so in your answer brief. by all means do so. Next. and we will leave it as such. do you own bank some money? And Joe quickly states. if you intend to challenge jurisdiction. One of our listeners had a 1. well. You must rebut these claims. I’m not sure. and barely enough on how to do his job. your honor. and within these rebuttals you must lay groundwork for your defense. Keep in mind that you create a box for the Judge to operate within by showing him the correct case law and procedures he is supposed to make decisions by. Some folks will make a special appearance on their initial filing. um.5-minute pre-trial hearing.