Expert: Creditwrench - 7/22/2008

Question
QUESTION: I got behind with Citibank last year due to illness. Naturally they wouldn’t work with me and I gave up. I didn’t fool with their collection agency. Then in December 2007 I received a letter from their attorneys in our state (MS) demanding payment of $3632.88.  Here’s what has happened so far.
1. I sent a letter requesting a Validation of Debt.
2. Received copies of 12 months of statements
3. Received Summons and Complaint
4. Filed a graduated denial as a Response.
5. Received plaintiff’s Notice of Service of Written Discovery
6. Consulted w/attorney and given basically 4 options-pay in full, make them a settlement offer (it’s my understanding they don’t accept offers), Bankruptcy or go forward with a defense.
I’m kind of lost don’t know which way to turn. I just didn’t want to lie down and let them run over me. I was hoping they would back off when they realized they weren’t going to get a Default Judgment. I don’t have the funds to pay them. I feel like the odds are against me.
I’ve read an articles that said their contracts are invalid due to lack of mutual obligations and legal consideration. The attorney I spoke with said he was aware of that defense, but wasn’t familiar with any cases where it had worked locally.
Do you have any suggestions?


ANSWER: I'm sure you have read such articles as you describe. Such theories sound really great. Theories such as lack of mutual obligations and legal consideration sound good but won't stand up because they have no basis in law. What is legal consideration? Can you explain that one to me? Richard Cornforth who is a well respected legal researcher and a close friend of mine claims that no bank has authority to sue outside the state where they are domiciled so Discover (for instance) can't file a lawsuit against some one living in any state other than Delaware. The definitions section of Title 12 of the U.S. statutes says otherwise.

The number of schemes and scams and crackpot ideas will never stop and people will continue to fall for them as long as there is a dollar in their pockets. Government also has more than it's fair share of schemes and scams such as bankruptcy, IRS, the federal reserve, the banking system and many more with which to fleece the people while appearing to do them great miracles and help them eliminate their problems.

Yes, I am aware of most of the scams out there. I agree that our money is a sham and a fraud upon the people. It isn't money at all. In fact there really isn't even a definition for money or cash so how can there be any? Nobody has any money. All we have is Federal Reserve Notes which are by definition noting but worthless instruments of debt, fiat currency foisted upon us by our government through the Federal Reserve system. So what? Who cares about all that nonsense so long as it can be used to trick others into giving us what we need? Our daily bread, beer, computers, cars, gasoline to get to work and then to Wal-Mart. All those arguments about fiat money sound good but they are nonsense so long as we can buy what we want with them. If we have enough of them we can even wave them in the debt collector's face and he will take them and go away happily. So will the IRS.

So lets forget about all the nonsense arguments and get down to doing it the right way. Learn the law and know it better than the other guy and it will protect you. It isn't all that hard because the other guy just wants your FRNs and don't actually know the law any better than those who believe in the junk legal theories. The attorney was right when he said he didn't know of any that worked locally or anywhere for that matter.

You say you filed a graduated denial but didn't say how well it worked so I have to assume that it didn't which isn't surprising. So is that too nothing more than another junk legal theory? Depends on how you present it and what you do after that. There are no defenses that will work if the judge won't listen to them and most judges won't listen to anything that a defendant has to say no matter how well written or presented or how sound the legal theories behind them might be.

Why is that so? Simply because the judge knows that if the plaintiff didn't have something to complain about he wouldn't be there. The plaintiff is automatically believed to be correct in everything he claims unless the defendant can prove otherwise beyond a shadow of a doubt. Most can't do that and most are afraid to even try.

So what to do about it? How do you win against that kind of situation?
If you don't have an unbeatable defense such as statute of limitations or can prove that you already paid the debt or that you are not the person they think you are then most likely no defense will work no matter how good it might seem to be.

If the plaintiff wins almost every time in every court all across the land and almost no defense will work no matter how valid it might be or seem to be what can be done? Obviously the defendant must become the plaintiff in order to beat the crooked lawyer and the crooked judge who really aren't crooked at all even though we would like to believe that so we can have a neat excuse for why we lost.

We can't expect justice in the same court even if we do become the plaintiff because that "crooked" judge will just shoot us down again.
We have to switch courts on them as well by taking whoever we can to federal court where we can get a fair hearing and the justice we seek but only if we have a valid cause or causes of action and the proof to back them up. We cannot expect to win there either if we use the pet theories of such people as John Gliha of Ocala, Florida or Edward Godwin and his book about The Creature of Jekyll Island.

The only way to win is to know the law, know how the other person broke the law, be able to prove s/he broke the law and know how to present your argument in a court of law that will listen to your pleas if you can present your case and prove it's theories and facts.

So why bother to mess with local courts or even go play their games? You have to do that even knowing you are most likely to lose no matter what you do because that is one of the places they make their mistakes  and don't follow the law. They do all sorts of things in local courts that are wrong and you just have to be able to recognize what those errors are and how to use them to your advantage.

You have to know and understand causes of action, affidavits and how to spot phony affidavits. You have to know your rules of procedure and your rules of evidence or you have to get help from someone who does know them and most lawyers don't really know them all that well. They  know parts of them and use those parts that are beneficial to them and their clients and forget about the rest of them because they are not helpful to the case at hand. Some lawyers are much more knowledgeable than the average lawyer and they get paid much more money but even the cheap ones who don't know as much come with a very high price tag. If you can't afford even the cheap ones then you have to find someone to help you who might not be a lawyer and don't charge you so much money.

Its either that or just shut up and pay up however you can. Of course you can also run, moving from town to town or state to state as the homeless do or you can just hunker down and try to hide all your assets, don't use banks, work for yourself at odd jobs or whatever until they forget about you or can't find you anymore.

There are many different options available, most if not all leave something to be desired and most are totally unacceptable for one reason or another. Nobody wants to become homeless for example.

So what will you do? Your answer to that one will be interesting indeed but naturally I hope that you will learn to stand up and fight and learn how to do it the right way and become the plaintiff in a federal court. It isn't all that hard to do.






---------- FOLLOW-UP ----------

QUESTION: I think you told me what I aready knew, but didn't want to admit.

I've got one of the affidavits you mentioned. I don't know if it's phony or not. Can you give me some clues to look for?

What could I do in federal court? I really don't have the resources to do it right now.

What's your opinion on trying to settle with these devils? Would there be any way to reduce the loan shark interest and penalties they've packed on?

Thanks

Answer
First of all, I've just started a new egroup on Google. I'm going to post all the questions and answers to the group after I answer each one. That way people who wish to keep up with my answers can do so easily. The group will act as a newsletter that will come to the members by email. If you would like to keep up with all my answers you must ask to be invited to join by sending me an email telling me you want to be on the mailing list of questions and answers. You can get them in individual emails or in a daily or weekly digest. However you want them. It is up to you and you can pick and choose how you want them to come to you and you can unsubscribe at any time. The only way to get on the mailing list is to ask to be invited. To get on the list send an email to ceo@creditwrench.com and I'll put you on the list.

Now then, on to your question. I'll be glad to look over the affidavit for free to see if I can spot any errors and tell you what they are if any exist. You can scan it and send it to me or you can fax it to me at 405-684-9297 but you have to call me just before you fax so I can turn the fax machine on. Right now I prefer that you send it to me by email if you can.

The cost to file in federal court is $350. You might be able to file in Forma Pauperus and not have to pay that filing fee. You can always try and see if you qualify or not. You can file at any time up to a year from the time the violation occurred so that would give you lots of time to get the funds to file with.

I'd love to see you settle with them and I know you would too but they aren't going to like the settlement one little bit. What would you offer them to settle out of court? How about them paying you back that $350.00 filing fee just to start off with? How about them paying you attorney fees for the time and trouble you spend preparing your case against them in federal court? How much and hour? $100? $125? $150? How about them taking all remarks off your credit reports and signing an agreement that they will never again report it to any credit bureau? How about their dismissing or vacating that judgment they are going to win if they go to court? How much are they going to have to pay you to get you to just go away and leave them alone? $1000.00? $2000, $5000, How much will you demand? Those are the kinds of settlements you want and can easily get.

But that isn't what they have in mind, is it? (LOL) And it will get rid of all those outrageous fees, interest and whatever they have tacked on as well as all they claim you owe them.

Would I recommend you settle with them their way? I don't think so.

But that's up to you.