Fighting Foreclosure with FDCPA Some of you have asked for some of the stuff we have used in relation

to fighting summary judgment, reason to believe, the definitions clause in the FCRA etc. I have put some of the information, case law and language we have used below: REASON TO BELIEVE.

1. In the affidavits submitted by Joe Smith, affiant claims to be personally familiar with XYZs collection procedures from 2009 to the present. He further states he is familiar with XYZs files and records regarding collection accounts The legal definition of the term familiar taken from Blacks Law Dictionary, Revised 4th Edition is: a. FAMILIAR: The word is equivalent to the word know Smiley v. Lenane, 363 Ill. 66, 1 N.E.2d 213, 216. b. KNOW: To have knowledge; to possess information, instruction or wisdom. State v Ransberger, 106 Mo. 135, 17 S.W. 290, Horne v Lewis, 160 Ga. 824, 129 S.E. 95. 2. The issue of reason to believe is clearly defined by Judge Sonia Sotomayor in Miller v Wolpoff & Abramson, LLP, 2d Cir., No. 02-7017, Feb.25, 2003, The case did not involve the FCRA, or permissible purpose under the FCRA however the case does address the issue of reason to believe. a. The affidavits submitted by Defendants in the case indicate they reviewed no more than very limited information before collection action such as; Mr. Millers full name, social security number, current address, telephone number and the Lord & Taylor account number, the amount of the debt and a notation that Mr. Miller was an attorney. The Court held that the information reviewed would not enable a determination of whether Mr. Miller was in bankruptcy, whether information in the record was inconsistent or incomplete, whether Miller was or was not obligated to pay the debt, or whether Miller was the correct debtor. The Court ruled that the information reviewed by W&A did not entitle them to summary judgment because it could not conclude that the

information in Plaintiffs file was adequate to make these kinds of judgments. In addition the Court ruled that the information supplied above to UC & S partner Mitchell Slamowitz was too insufficient to support the conclusion as a matter of law that any professional judgment was exercised before collection efforts.. b. In regard to the standard of review by the Defendants, Judge Sotomayor stated; On this undeveloped record, however, it suffices for us to hold that merely being told by a client that a debt is overdue is not enough. See Nielsen v Dickerson, 307 F.3d 623,638 (7th Cir.2002). She further states; These affidavits, however, lack sufficient detail to permit the district court or us to determine that their review was sufficient as a matter of law. As Judge Sotomayor stated, the conclusory language used in the affidavits did not adequately describe what information Abramson reviewed to exercise his independent professional judgment.

3. XYZ rests its entire defense on the premise of reason to believe. The language of the FCRA does not explicitly define that term however upon a close analysis one can discover its meaning and thus the intent of Congress in using it by consulting the definitions within Blacks Law 4th Edition which fit the situation; a. REASON: an inducement, motive, or ground for action as in the phrase reasons for an appeal. Miller v Miller, 8 Johns. (N.Y.) 77. b. REASONABLE: Thinking, speaking, or acting according to the dictates of reason; not immoderate or excessive, being synonymous with rational; honest; equitable; fair; suitable; moderate; tolerable. Cass v State, 124 Tex.Cr.R. 208, 61 S.W.2d 500. c. REASONABLE AND PROBABLE CAUSE: It is a suspicion founded upon circumstances sufficiently strong to warrant reasonable man in belief that charge is true. Murphy v Murray, 74 Cal.App. 726, 241 P. 938, 940 d. REASONABLE ACT: Such as may fairly, justly, and reasonably be required of a party. e. BELIEF: A conviction of the truth of a proposition, existing subjectively in the mind, and induced by argument, persuasion or proof addressed to the judgment. Keller v. State, 102 Ga. 506, 31 S.E. 92. Knowledge is an assurance of a fact or proposition founded on perception by the senses, or intuition; while belief is an assurance gained by evidence, and from other persons. Brooks v. Sessoms, 47 Ga. App. 554, 171 S.E. 222, 224 f. BREACH OF DUTY: In a general sense, any violation or omission of a legal or moral duty. More particularly, the neglect or failure to fulfill in a just and proper manner the duties of an office or fiduciary employment. Every violation by a trustee of a duty which equity lays upon him, whether willful and fraudulent, or done through negligence or arising through mere oversight or forgetfulness, is a breach of duty. Hivick v. Hemme, 118 Okl. 167, 247 P. 692, 693.

4. Defendant has cited a number of cases in an effort to support the doctrine of reason to believe to establish the existence of their claim to a permissible purpose in obtaining Plaintiffs credit report in 2009. None of the cases cited establish the definition and fact existence of a reasonable belief in this case: a. Huertas v Galaxy Asset Management, 641 F. 3d 28, (3rd Cir. 2011) (section 1681 b(3)(A) Defendant makes the statement; NCO had a permissible purpose regardless of whether the debt is later disputed or determined to be invalid. In the Huertas decision the court recognized that Huertas filings indicated that he had previously filed bankruptcy but that it was unclear to the District Court whether Huertas was alleging that the defendants had attempted to collect a debt extinguished by bankruptcy proceedings. The District Court allowed Huertas to amend his complaint to assert such a theory however Huertas did not file an amended complaint within the time period given and explained later the debt had in fact not been discharged in bankruptcy. It is clear by the District Courts actions in allowing Huertas to assert the debt had been extinguished prior to the Defendants collection efforts that such a fact would have established an arguable theory to counter a Motion to Dismiss. Appellant, Huertas based his case on the question of time barred debt which was erroneous. The debt at issue had belonged to Huertas and he did not refute that point. Nowhere in the Appellate Courts decision does the court state the collector would have had a permissible purpose regardless of whether the debt is later disputed or determined to be invalid. The duty to have procedures in place to avoid errors of collection efforts on invalid information was not addressed by the Court. Neither was the theory of reason to believe. b. Miller v Wolpoff & Abramson, LLP, 309 Fed. Appx. 40, 2009 WL 270034, at *3 (7th Cir. Mar. 19, 2009) obtaining a consumer report for use in collecting a debt owed by the consumer is a permissible purpose In this case Mr. Miller never stated he did not owe the debt nor did he show that there was no reason to believe on the part of W & A that there was in a legitimate account to collect or that the account was in fact connected to Miller. c. Robinson v Greystone Alliance, LLC,2011 WL 2601573, at *3 (D.Md. June 29, 2011) Debt collection is a permissible purpose for obtaining a credit report under the FCRA As long as the debt collector has reason to believe that the consumer owes the debt, the debt collector may permissibly obtain the consumers credit report without violating the FCRA Plaintiff, Robinson, in that case, made no attempt to argue the Motion for Summary Judgment, no attempt to bring forth any evidence or argument to support his claim or that Greystone did not have reason to believe that the debt was valid. In the alternative, Greystone provided nothing to substantiate their

claim of a reasonable belief either. The Court in fact, had nothing but Robinsons original pleading and Greystones claim they had reason to believe to go on. That is not the situation in this case as Plaintiff, William Carter will show. d. Smith v John P. Frye, P.C., 2011 WL 748363, at *3 N.D.Ill. Feb. 24, 2011, obtaining a credit report in connection with collection of a debt is permissible under the FCRA Again this is a case like Robinson v Greystone where a pro se Plaintiff dropped the ball and failed to follow procedure or support his own position. The Court had no other choice but to grant the summary judgment. Once again this is not the situation in this action as Plaintiff, William Carter will show. e. Adams v LexisNexis Risk & Information Analytics Group, Inc., 2010 WL 1931135 at *8 (D.N.J. May 12, 2010), Courts recognize that collection is a permissible purpose for obtaining a consumer report under the FCRA. (emphasis and quotation marks omitted). The essence of this case is not whether or not LexisNexis had a permissible purpose but if in fact their actions fell under the definition of a Credit Reporting Agency (CRA). In the absence of that determination Plaintiff could not put forth a claim of impermissible purpose. f. Thomas v United States Bank, N.A., 325 Fed. Appx. 592 (9th Cir. May 19, 2009), requesting a credit report with the intent to collect on a debt is among the permissible purposes listed in the FCRA 15 U.S.C. 1681b(a)(3)(A). This case is unpublished and Plaintiff is unable to locate it and therefore cannot address its content. Plaintiff does state the cited statute refers to collecting on an account which actually exists and does not state; intent to collect on a debt which may or may not exist.

DEFINITIONS CLAUSE OF THE FCRA UNDER FACTA

5. Defendant attempts to dismiss the plain language of the FAIR AND ACCURATE CREDIT TRANSACTION ACT OF 2003 (FACTA) enacted March 31, 2004 by citing Demaestri v. Asset Acceptance Capital Corp., 2012 WL 1229907 at *4 (D.Colo. March 14, 2012): a. granting the debt collectors motion to dismiss specifically finding the definition of account under the EFT irrelevant to the permissible purpose analysis. Plaintiff, Brian Demaestri failed in all issues to support his allegations even after specifically being given the opportunity to do so by the court. This case is not an

appellate decision and is a good example of how the courts have failed to address the specific changes in definitions in the FCRA made by the FACTA amendments. 6. When looking at the changes made to definitions in the FCRA by FACTA, the court must look at not only the plain language of the definition in the statute but must also follow the progression of cross references within FACTA to determine the exact meaning of its definitions: a. According to the ELECTRONIC CODE OF FEDERAL REGULATIONS, Title 12, part 1022 FAIR CREDIT REPORTING (Regulation V) the following terms are defined: i. 1022.3 (a) Act means the FCRA (15 U.S.C. 1681et seq. ii. 1022.71 (p) Open-end credit plan has the same meaning as in 15 U.S.C. 1602(i), as interpreted by the Bureau in Regulation Z (12 CFR part 1026) and the Official Interpretations to Regulation Z (Supplement I to 12 CFR part 1026). Which defines a Credit Card to be an Open-end credit plan. b. According to PUBLIC LAW 108-159- DEC. 4, 2003, FAIR AND ACCURATE CREDIT TRANSACTION ACT OF 2003 (FACTA), SEC. 111, AMENDMENT TO DEFINITIONS, Section 603 of the Fair Credit Reporting Act (15 U.S.C. 1681a), is amended by adding at the end the following: i. The term credit card has the same meaning as in 103 of the Truth in Lending Act. ii. The terms account and electronic fund transfer have the same meanings as in 903 of the Electronic Fund Transfer Act. c. According to 103(k) of the Truth in Lending Act, U.S.C. 1602 the definition of the term credit card means any card, plate, coupon book or other credit device existing for the purpose of obtaining money, property, labor, or services on credit. d. According to 903(2) of the Electronic Fund Transfer Act, U.S.C. 15 U.S.C. 1693, the term account means a demand deposit, savings deposit, or other asset account (other than an occasional or incidental credit balance in an open end credit plan as defined in section 103(i) of this Act), as described in regulations of the Board, (Board of Governors of the Federal Reserve System), established primarily for personal, family, or household purposes, but such term does not include an account held by a financial institution pursuant to a bona fide trust agreement;

7. Nowhere within the statute does it definitively state that credit cards are included in the newly defined use of the word account. As a matter of fact in plain language it states

(other than an occasional or incidental credit balance in an open end credit plan as defined in section 103(i) of this Act) which specifically excludes that type of account from the definition. Defendant claims the alleged account for which it has been established Plaintiff was not responsible, was a credit card account. As such and in looking to the plain language used in FACTA, it would not have afforded XYZ a reason to believe they had a permissible purpose to obtain Plaintiffs credit report. Plaintiff does not rely solely on this issue in his allegations. 8. The United States Supreme Court has stated very clearly that the judiciary must look to the plain language of the statutes to determine the intent of the legislators. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Conn. Natl Bank v. Germain 503 U.S. 249 (1992); the legislative purpose is expressed by the ordinary meaning of the words used. Richards et al. v. United States et al. 369 U.S. 1 (1962). 9. The fact that the Court granted the debt collectors motion to dismiss in Demaestri v. Asset Acceptance Capital Corp. (Id. 22), on the premise that the changes to the FCRA by FACTA is not applicable does not definitively establish that opinion as fact. Until there is an appellate decision on that issue it remains ripe for argument. STATUTE OF LIMITATIONS ON THE FDCPA 10. On October 18, 2012 Defendant, XYZ FINANCIAL SYSTEMS, (XYZ) filed a motion to dismiss the FDCPA claim included in Plaintiffs amended complaint filed October 1, 2012 on the grounds the claim is time barred by the statute of limitations. See Dkt. No. 37. Although many courts have held that the 1 yr statute of limitations applies to the FDCPA, others have held that the statute of limitations runs from the date of discovery.

See Mangum v Action Collection Service, Inc., 575 F. 3d 935 (9th Cir. 2009)..the court held that, because the FDCPA is silent on the issue, the court should apply the Ninth Circuits usual presumption that federal statutes of limitation begin to run on discovery of the injury. 11. Other cases which have held to the presumption of the 9th Circuit: Greenfield v Kluever & Platt, L.L.C., 2010 WI. 604830 (N.D. Ill. Feb. 16, 2010); Kelly v Wolpoff & Abramson, L.L.P., 2007 WI. 2381536 (D. Colo. Aug. 17, 2007); Shah v Collecto, Inc., 2005 WI. 2216242 (D. Md. Sept. 12, 2005).