Tag Archives: foreclosure

August 28, 2022 · 9:49 PM

The Justice System has FAILED us!

(OP-ED)–The opinions expressed herein are that of the author’s only and should not be construed as legal advice.

It is unfortunate that the conservative thought process has to be jarred by liberalism … and just when we were starting to get ahead.

It’s even more unfortunate that the manner in which we conduct ourselves in the legal realm has been totally obliterated by the justice system, made up of elite oligarchs who only look out for their own pensions and care not about the people that can’t afford justice. These judges will listen to the banks before they listen to the people affected by the contract they signed.

My latest machination involves the affidavit that was issued by a “special agent” from the federal whatchamacallits, which was totally redacted by the justice department, which has sought to (indirectly) attack every Christian conservative in the name of liberalism. When one can forum shop for a judge to get a warrant signed … a warrant that would further divide America because of its very nature in attacking a former president who actually did produce positive results, (despite all of the attacks against him during his tenure in office), this justice system has failed us.

The higher elites in power have seen fit to find a Trump-hating judge to do their dirty-work in an attempt to keep Trump from running for office again. If the warrant is proven to be nothing more than hearsay, which I suspect it is, then the judge sitting on the Trump case is no better than the robed types that sit in foreclosure courts across the country, listening to banks’ attorneys, who don’t possess the note, say, “Take it from me, Your Honor, we own the note.” at face value and give the banks whatever they want, when in most cases, the lender (a REMIC trust), no longer even exists.

Foreclosure defense attorneys haven’t helped matters much. Half of them don’t even know how to argue a foreclosure matter or a forcible detainer action, half of them don’t understand that the REMIC’s investors may have been paid in full, which means the servicers are double and triple dipping on homeowners (borrowers) by claiming they represent the REMICs when they know too damned well, the REMICs are closed and were closed one year past their start-up date. These attorneys are also “officers of the court”. They know how to behave when in the “temple”. Singing Judas’s.

The attorneys that do know foreclosure defense are equally flustered because borrowers come to them, stating, “Hey, I’ve got a great case! You should represent me for free!” This kind of entitlement behavior, coupled with that of judges who just want to shove their size 9 (example) shoes up the foreclosure defense attorney’s ass every time he/she comes into court, has caused a number of the good attorneys to either stop doing foreclosure defense or quit practicing law altogether. Many wonder about the other half of the foreclosure defense attorneys and what makes them so special when they play “the delay game”. The judges know it. The attorneys know it. The borrowers don’t get it.

This is false hope. To think these attorneys can’t tell the court that the other side hasn’t proven it has standing to foreclose because the other side hasn’t proven the Plaintiff (and its investors) have been harmed, is beyond belief.

The simple question of … “If the house is sold Your Honor, who gets the proceeds?” goes right by the wayside. Or, in the alternative (as we know by example), you get a smart-ass judge that answers that question for the bank (or the servicer’s attorney), as “Pay me, I’ll figure it out.” This is when you know the court is corrupt because the judge has turned out to be an asshole.

Ever been to a rocket docket? I have. It’s pretty damned scary. Mar-A-Lago raid or no Mar-A-Lago raid, a whole courtroom of homeowners gets cleared out (totally foreclosed on) with maybe 2 cases held over for trial out of all of the 300 cases coming before that court on its weekly docket. The judges have been ordered by their superiors to “clear the docket”, no matter who they shit on. That, does not make them a great judge. In fact, it makes them a shitty judge. When a judge rules against a homeowner based on emotion and hearsay from the lender’s attorney and its fully-trained lying witness, you have bad justice.

This is why this go-round of foreclosures is going to be even tougher of a nut to crack … all because the justice system has been perverted by the entitled elite, the crooked banks whose noses are clear up the judges’ asses and the good ‘ol boy club (the Bar) who threatens attorneys with disbarment for standing up to a judge.

Any judge that will sign an affidavit based on hearsay and then allow the affiant’s name to be redacted from view of those whom he has accused, speaks ill of not only the affiant, but the prosecutor and the judge as well. Mar-A-Lago is only the tip of the iceberg. Trump is not in foreclosure. Trump has not been screwed over by the banks. The raid gave him impetus to run again because nearly 80+ million voters to attempted to return him to office a second time now feel disenfranchised. Judges won’t hear a majority of the fraudulent election claims and that puts the entire system into a quandary.

Here’s a final thought … what would happen if you wrote a check to the REMIC for the full amount you owed and made it a restrictive endorsement only to the REMIC? Chances are, it’d never get cashed because the REMIC no longer exists. A borrower in Florida did just that, twice, and his check (for attorney’s fees), paid to the REMIC itself using a restrictive indorsement, as directed by the court, still hasn’t gotten cashed. Makes you wonder why more folks haven’t used that tactic.

What would the failed justice system do to “fix” that to “out” the very entities that will screw them in the process?

The C & E on Steroids! is a must if you’re NOT in foreclosure YET, but you suspect some shady shit going on in the land records.

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April 22, 2022 · 10:16 PM

So you think you’re in default, eh?

(Op-Ed) — The author of this post is a paralegal that serves as a title consultant to trial attorneys in foreclosure matters and thus, this article is not intended to render legal advice, nor to be construed as such. It is intended for educational purposes only and is not guaranteed to produce any given legal outcome.

The author of this post will try to keep things simple without passing judgment.

There is no doubt here that we are collectively living in troubled times. The rash of foreclosures continues now that the eviction moratoriums have been lifted for the most part. Those who did not undertake a loan modification or request a forbearance (that was actually granted) are probably feeling the sting of communication by the mortgage loan servicers in their mailing out of late notices on unpaid and delinquent mortgage loans.

According to the terms of the mortgage or deed of trust (depending on which “state” you’re in), there is a specific section on Default. Understand that it’s the mortgage loan servicer’s obligation to collect the mortgage loan debt and route payments to the “lender”, no matter WHO that lender might be.

The problem with defaults, loan modifications and the like is that so many of the loans out there today are securitized through the MERS® System. Since the MERS® System was taken over by the same company that owns the New York Stock Exchange, the information coming out of this entity is scarce to non-existent.

Generally, if you miss a payment, the servicer is going to notify you by certified mail. You may have to sign for the letter. The biggest mistake that homeowners make is ignoring these letters, when in fact, this could be the very start of a long, drawn-out process where you can obtain a lot of useful and vital information that your attorney could use in a foreclosure defense posture, without having to pay gobs in legal fees.

What is a QWR?

That process is called a Qualified Written Request (QWR) under RESPA (the Real Estate Settlement Procedures Act) § 6. You can easily research this section of the law and discover that RESPA allows you to send a QWR to the servicer’s bona fide QWR address and ask the servicer to send you specific information, which is discussed below.

The author is going to include a sample QWR from the National Consumer Law Center; however, it comes with a caveat. If you want to delay the foreclosure while gathering evidence, it is suggested by many attorneys that you only request two or three documents at a time and just keep the requests coming. As soon as you get the set of documents you asked for, have another letter drafted, ready to go with another 3 to 4 document requests under the same set of statutes. This prolongs the servicer taking any action against you, while you set out to discover (rather than go through objectionable discovery in court against the servicer who’s trying to steal your home) all of the documents necessary to build a sustainable case.

qwr-sampleDownload

Several homeowners this author has talked to have utilized QWR’s to stop foreclosures. It was only when their attorneys told them it wasn’t doing any good to continue sending them … and the homeowners quit sending QWRs … that all of a sudden, the servicers foreclosed on them.

Why send a QWR?

Sending the servicer (at their official QWR address, not their main address) a QWR is a great way to get information from the lender’s mortgage loan servicer. Nine times out of ten, it’s the mortgage loan servicer that retains the law firm to foreclose and it’s the mortgage loan servicer whose employees falsify the assignments they use to create standing to steal your home.

Secondly, when asking intially, the following documents are key to asking for follow-up questions:

  1. An unredacted copy of the mortgage or deed of trust
  2. A copy of the note, showing all indorsements and allonges proving custody of the note
  3. A copy of the complete pay history of the loan, including escrows

Do NOT ask for the original note because it’s highly likely the servicer doesn’t have it. If your loan was securitized, it’s also highly likely, given what Judge Jennifer Bailey in Florida was told by the Florida Mortgage Bankers Association (in 2009), that your note was shredded after it was uploaded into the MERS® System.

exhibit-23_comments-of-the-florida-bankers-association-highlightedDownload

For those of you doubting Thomases out there, read page 4 of the foregoing letter to the judge … understand that the word “eliminated” is just what it is. The banks got rid of the original loan paperwork because they converted the note into a security. They converted a debt instrument into an equity instrument, which makes no sense at all. The foregoing letter was included as an exhibit in the Osceola County Forensic Examination conducted by the author and his team and attorney Allen D. West, Esq., released to the Clerk of the Circuit Court of Osceola County, Florida on December 30, 2014. Since then, subsequent Clerks have kept the examination report on the county’s website.

This is why asking to see the original note is ludicrous because it doesn’t exist in its purest form.

This is why you want to identify WHO the players are in your chain of title and compare what you get from the mortgage loan servicer’s collateral file with all of the other evidence you are able to obtain from a QWR versus the actual discovery within an expensive lawsuit (right out of the gate).

Day 91

Don’t be fooled by mortgage loan servicers whose employees ask you to be 90 days late on your mortgage loan before they’ll grant you a loan modification. On Day 91, the mortgage loan servicer and the trustee will file for insurance claims on the REMIC and get paid in full for the missing mortgage loan payments not made by the borrowers. If the investors in the REMIC are made whole with a payout by the insurance carriers, then who’s in default? The REMIC has no standing to pursue a foreclosure!

Once you’ve been able to ascertain the “players” in the sandbox, it will make things a lot simpler to identify the culprits and pursue some serious litigation against them.

Listen to Dave Krieger on The Power Hour, 11 a.m. – 1 p.m., Monday – Friday (Central Time) and don’t forget to watch his speech, streaming live on The Power Hour (thepowerhour.com) on Saturday, May 14, 2022, live from Clay Clark’s Reawaken America Tour at the Carolina Opry in Myrtle Beach, South Carolina at 11:15 a.m. Eastern Time.

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March 14, 2022 · 6:23 AM

Uptick In Foreclosures? Fraudulent Transfers?

(BREAKING NEWS) — The author of this post posits the following information for educational purposes only and any information contained herein should not be construed to be the rendering of legal advice. For legal advice, you should consult with an attorney that has won several foreclosure cases. NOTE: There are a lot of attorneys out there that think they can defeat a foreclosure; however, these people simply see a monthly annuity and have figured out a way to stall the inevitable.

Years ago, when this author wrote Clouded Titles (his second work, which followed The Credit Restoration Primer, now in its 5th edition), now in its Mayday Edition, he set up an alert in his Google system settings to detect any reference to the phrase Mortgage Electronic Registration Systems, Inc.

The reason for this is because back in 2007, while doing research on chains of title in his local land records, he discovered the widespread appearance of this electronic database throughout his local public record and this was the start of a 2-year quest into researching the sum, substance and function of what most in the legal profession refer to as MERS. After filling up 4 file drawers full of printed material from various articles, court cases and public records (including his own public record filings), this author decided that since there were no actual books out there describing the chicanery on Wall Street and how MERS was involved in it all, that the public needed to know the truth … and this is how Clouded Titles was born.

Thanks to the “alerts” set up in the Google search system, this author is able to monitor perceived upticks in the foreclosure markets, based on what is happening throughout the U.S. and the notices posted in various newspapers’ legal sections throughout the country.

What the author of this post has also noticed is that because the economy is stagnating, people are without incomes. As a result, the propensity to commit crimes against property by filing documents that purport to transfer title into the name of the perpetrator so the property could be listed and sold through nefarious means is also on the rise. Once the property is sold, the foreclosure starts. The author has seen evidence of an uptick in this area as well.

This is why it’s a good idea to check up on your public records involving your property every 3 months, just like you would check up on your credit reports to make sure they’re accurately being reported. County Clerks are paid to assist you in looking up your records if you don’t know how to do it. Many of the databases are online, so they are easily traceable via the county’s search engine. When you conduct a search, you need to be especially aware of any “assignments” of not only mortgages (or deeds of trust) that have been recorded in the public record that transfer an interest in any loan taken out against the property or to detect the insidious crime of property theft by fraudulent deed transfer.

If you suspect you’ve been “taken” in such a manner, the first thing you should do is to go to the County Clerk’s (Recorder, Register of Deeds, Auditor, etc.) office and obtain a certified copy of the suspect document. The second thing you should do is to take that suspect document to your county sheriff and file a formal criminal complaint against the party or parties allegedly effectuating the transfer.

Part of the problem with fraudulent transfers and assignments however, is that the goings-on behind the scenes within law enforcement appears well above the pay grade of the detectives working in the crimes against property unit. This was evidenced in the follow-up meeting with Osceola County, Florida detectives in 2015 (along with the County Attorney, who was obviously “in on it” with them), who couldn’t find any evidence of wrongdoing in the Report this author spent five months working on … and instead, chose to “shoot the messenger” instead. The County Attorney then proceeded to inquire who the forensic team members were that gleaned the public record looking for suspect documents. The information was not required to be provided under the Open Records Act laws, thus, the County Attorney came away from the meeting empty-handed. The detectives however, wanted to know who certified all of the 17 banker’s boxes of suspect documents delivered to the States’ Attorney in Florida’s 9th Circuit, who saw the files and the report as a “political hot potato” and wanted nothing to do with them. Law enforcement in Osceola County, Florida then began to harass and surveil a known member of the forensic team who lived in the county and who was an outspoken critic of the illicit foreclosures taking place in his county. A family member of the forensic team’s liaison was tasered and arrested as he was walking onto his front porch at 3:00 a.m. after being out with his cousin, was not drunk and was not disrespectful or disorderly against the arresting deputies (who were surveilling the home). The charges were eventually dropped. This is just one scenario that happens when one “tries to do the right thing”.

This presents us with another known problem with law enforcement: corruption. Unless your county sheriff is a “constitutional sheriff”, don’t expect your complaint or any potential investigation to go anywhere, especially after having researched the campaign donors to your local district attorney in the last election. This author would encourage you to research CSPOA.org and become a member and get the information necessary to further your campaign in either getting the sheriff on board or finding ways to get him/her ousted from public office.

This author also reminds you (at this juncture) that county sheriffs are bonded. Without a bond (due to forfeiture), they can’t hold office as a sheriff. This is why counties have Risk Managers. A Risk Manager is another word for “damage control”. This individual gets more crap thrown at them from both consumers and county officials as a result of their positions. This is why it’s become harder to find competent people willing to undertake the honest task of “doing the right thing” and getting consumers the information on who the agent is for the bond, along with their address, phone # and policy number.

If the county’s risk manager refuses to give you that information, send an Open Records Act Request under state statutes and demand the information. Once obtained, you may wish to consider filing a complaint against the bond of the individual that failed to do their constitutional duty to protect your rights under the law.

NOTE: This procedure can also be used against school boards as well (that treat parents like domestic terrorists for speaking out at school board meetings); however, that’s not the subject matter of this article so this author won’t dwell on that scenario at this time.

In closing, a genuine foreclosure has to be treated differently. This author would encourage the use of a Qualified Written Request (QWR) under RESPA § 6. Do not ask for originals of any documents because it’s highly likely they don’t exist. Ask for copies of the note and mortgage (or deed of trust); ask for all information contained in your collateral file; ask for copies of your escrow statements and pay histories. Space out your requests (don’t ask for all of it at once). Request it in two or three certified letters to the servicer’s specific QWR address. You might be surprised to learn that mortgage loan servicer error was responsible for the initiation of the foreclosure to begin with.

NOTE: A QWR is not discovery. A QWR is what this author would be doing if he found out every time that his mortgage loan had been transferred or sold. A QWR response can be used to custom-tailor litigation against the servicer and its employees. Above all, remember that the public record may contain damning information in the form of assignments that can be used to help custom-tailor a QWR request. QWR requests from subsequent servicers can also reveal missing documents that were never transferred to the new servicer in the collateral loan file.

Dave Krieger is a nationally-syndicated talk show host on The Power Hour, heard Monday-Friday from 11:00 a.m. to 1:00 Central Time; on AM and FM stations across the U.S. and on 7.490 mHz on the shortwave band worldwide. He also consults with attorneys and homeowners on foreclosure cases.

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February 26, 2022 · 12:43 PM

Vindication Comes In Small Packages

(BREAKING NEWS) — The author of this post is also the author of the Forensic Examination of the Osceola County, Florida public records. The Examination was conducted in July of 2014 by an 8-member team, with the information compiled and delivered to the Osceola County Clerk of the Circuit Court, Hon. Armando Ramirez (now retired) by the author of this post on December 30, 2014 by DK Consultants LLC of Texas. The examination was supervised by a bar-licensed attorney, Allen D. West, Esq. (Redondo Beach, California) and paid for out of Osceola County funds. The results are made a part of this post. This is a report, not an indictment; however, the author has been getting calls from attorneys and homeowners all over the U.S. who have downloaded this report and discovered similarities between the information contained in this report and their own legal scenarios. The author of this post serves as a consultant to homeowners and their attorneys in foreclosure and title matters.

NOTE: The report does not constitute legal advice and the exhibits that were attached to this report are voluminous; thus, any request by the readers of this post for viewing of the exhibits should be sent to cloudedtitles@gmail.com. Because some of the exhibits are NOT in PDF format, there may be a charge assessed for procurement of certain exhibits.

osceola-county-forensic-examinationDownload

The reason for the article on vindication is due to recent events occurring within a court case in the State of Kansas in the U.S. District Court, Wichita Division, where the Osceola County Forensic Examination was cited, under protest, with a motion to strike made by attorneys for the Bank of New York Mellon, which was denied by the Court. This means the Osceola County Forensic Examination sticks as evidence in the case. Needless to say, the lawyers for BONY Mellon were not happy. The Amended Complaint is shown below:

first-amended-complaint-doc-40Download

The interesting thing about court cases is that homeowners get discovery. The author of this post sees certain things he would have suggested been done differently. The author is expecting a call from chief counsel for the Plaintiffs. This attorney (at one time) was the U.S. Attorney for the District of Kansas, so he clearly understands the national gravity of the gravamen of this case.

This is not the author’s only audit of county land records. See below:

williamson-county-real-property-records-audit_january-29-2013Download

Ever since the 49 states attorneys general inked an agreement with the mortgage loan servicers, who were found to be the overseers of the suspect document manufacturing that most homeowners and their attorneys deem suspect, not soon after the ink was dry the servicers started up these fraudulent practices again. The only thing servicers understand is the threat of jail time. They have so much in their war chests they can fight multiple lawsuits in multiple venues. This worked in a case this author put together for an attorney in Florida, where the Lee County Circuit Court judge was directed (through a prayer in the pleadings) to order the Clerk of that Circuit Court to produce certified copies of the assignment of mortgage and power of attorney and submit it to the State’s Attorney for criminal referral and investigation. Soon after the counterclaim was filed, the homeowner’s attorney moved for depositions of the Defendants (the actual author, signer and notary of the assignment). This prompted a move by the servicer’s attorney to move for a settlement, which included a withdrawal of the counterclaim with prejudice. What scared the servicer and its attorney is that they faced implications as accessories to the fraudulent documents complained about. The actual complaint was only 11 pages, plus 6 pages of exhibits. Do you think a judge would actually be in favor of reading such a short complaint? Easily explained. Easy to get through. No bitching. Just stated facts supported by two publicly-recorded documents and citations of the law supporting the action and requests for criminal referral. THAT is what scared the other side into submission.

By virtue of the fact (Paragraph 67 of the Amended Complaint shown in this post) that the Osceola County Forensic Examination was cited and allowed to remain in the complaint (which didn’t go far enough (IMHO) in going after the actual perpetrators themselves) clearly demonstrates vindication for all the crap the author and his team took in bring the Forensic Examination to light. The Kansas Court chose to recognize the report’s value, even though the bank’s attorneys referred to it (similarly to what Florida attorney Matt Weidner referred to it as on an Orlando TV station interview) as, “not worth the paper it was printed on.”

Again, the similarities contained in the report and the assertions made of the suspect fraud contained within the records themselves was enough to convince a federal judge to allow the report to remain on the record. Again, the 758-page report is a “report”, not an indictment. It was a legitimate report, considered fully legitimate by the Clerk of the Circuit Court of Osceola County, Florida, to be published on his website during his tenure in office. That report and the attorney opinion letter accompanying that report is still on the Clerk’s website, even though the Clerk changed hands when Hon. Armando Ramirez (84) retired. The new Clerk, Kelvin Soto, kept the documents in place, including the warning about filing false documents that pops up on the website (osceolaclerk.com) when you access it, which the author of this post helped to draft. Whether the filing of fraudulent documents in that county’s records still continues would be the subject of another forensic examination.

This is one of the reasons that this post’s author and attorney Allen D. West, Esq. taught a class in Las Vegas on The C & E on Steroids! which contains a book and an 8-DVD educational set with accompanying notes and templates on how the author and attorney West constructed the actual declaratory relief complaint. There are only 18 copies left of this kit (hint, hint). This author will not reprint any more of them. Those who are serious about pursuing this option will entertain its legal value.

Every aggrieved homeowner wants to see the signers of these fraudulent documents “hung from the gallows”; however, this will not happen unless you actually make the signers and creators of these documents themselves actual targets. They will “sing for their supper” and rat out their supervisors if put in the hot seat. It’s a small price to pay to see justice done, isn’t it? If you want to see a potential criminal RICO action spawn out of something so trivial, then entertaining an option like this might be well worth your time, effort and expense.

Most people don’t care about a single homeowner’s foreclosure action; however, this case in chief is not that. The homeowners paid off their mortgage! It’s WHO they paid is what’s at issue. They may have paid the wrong party! They can’t even get a legitimate satisfaction of mortgage! A title company examiner claimed their recorded release was suspect! How can they have marketable title? No reasonable person would buy their home, knowing that the wrong party might have been paid and that another party could come back in the future and attempt foreclosure on that same property. Slander of title is an actual damage. A criminal referral within such a case is more than just a slap on the wrist to a mortgage loan servicer. It’s damning and could open a Pandora’s Box the likes of which the servicing industry has yet to see but is all to necessary to vindicate everyone whose mortgage loans were securitized.

The foreclosure mess created by the banks is still plaguing the courts. The political corruption within the court systems in America continues to be exposed with the challenge by homeowners of each of their foreclosure cases, even bringing forth corrupt justices who continually side with the banks despite the overwhelming evidence of suspect documents being offered. The number of lawsuits, according to L. Randall Wray, Professor of Economics at the University of Missouri-Kansas City (in his past article, “Memo to Banks: You are Toast”), has exposed the fact that “the banks are getting sued from here to Pluto by homeowners, soldiers and sailors, Fannie and Freddie, PIMCO, the NYFed, and just about anybody with access to a lawyer. And, increasingly, the banks are losing.”

Even though this article was published in 2011, the suits continue and banks don’t want to lose more cases. They would rather settle than create bad case law for themselves. Can you blame them for not wanting to go to jail in addition to pay out fines and restitution. The day of real judgment is coming.

Vindication, no matter how small, is still sweet.

Dave Krieger is also a national talk show host on The Power Hour, which airs Monday-Friday from 11:00 a.m. to 1:00 p.m. (Central Time) on radio stations across America, as well as rebroadcasted worldwide on shortwave (7.490 mHz) and streaming live on The Power Hour’s website. Programs are archived daily on the website.

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February 5, 2022 · 3:15 AM

The FDCPA, Debt Collection and Bona Fide Errors

(BREAKING NEWS) — The author of this post is a paralegal and consultant to attorneys regarding real property, foreclosure and consumer issues. The concepts contained within this post are for educational and research purposes only and should not be construed as legal advice. In the event one should find this material useful, it is highly recommended that one consult with an attorney who is not only well versed in these matters, but with an attorney who has a winning track record on debt collection issues, like the cases discussed herein.

Every so often, a debt collection case comes across my desk that contains multiple plaintiffs and thus warrants attention, especially because the federal appellate circuit reversed and remanded the cases back to the district courts from whence they came because the panel agreed that the federal district court erred in its 16-page ruling on particular facets of the cases in chief.

This particular case centers around what is termed “bona fide error” caused by the debt collector and/or its attorney(s). See the case below:

ewing-v-med-1-solutions-llc-7th-app-cir-no-21-1299-feb-2-2022Download

In this particular case, both Plaintiffs decisions were rendered by judges within the same division of the same district … the Southern District of Indiana, Indianapolis Division (including the Chief Judge). The cases were merged because of their similarities in arguments. Both cases were argued before the 7th Appellate Circuit Court of Appeals on December 14, 2021 and the ruling was issued on February 2, 2022. The backgrounds in each case are pretty self-explanatory.

In Ewing’s case, it took the debt collector two years to acknowledge that the alleged debtor disputed the debt collection claim. When Ewing looked at her credit report and saw the alleged debt was misrepresented, she decided that the misrepresentation of the debt under 15 U.S.C. § 1692e(8) was violated by the debt collector and filed suit. In Ewing’s case, as typical, the federal district judge ruled for the debt collector, who claimed that the error was unintentional, thus invoking the bona fide error as its affirmative defense.

In Webster’s case, she discovered an error on her credit report she did not believed she owed. Through counsel, a dispute notice was faxed to the debt collector. However, the dispute notice was faxed to a number the attorney thought was a viable fax number, which turned out not to be the case because the debt collector, on its own volition, decided to remove the fax number from its website and stopped checking its inbox for new disputes. Webster sued because the debt collector misrepresented the fact her account was in dispute, which in turn harmed her credit score. The debt collector of course, claimed it was excused from 15 U.S.C. 1692k(c) because of a bone fide error as its affirmative defense.

Both cases involved negative reporting by each debt collector on the consumer’s credit bureau reports, which was part of the issue discussed in both cases because each had a “published injury” (misrepresentation of the actual facts of the matter).

Significantly, both debt collectors raised a “standing issue” argument. Both claimed there was not sufficient enough of a “concrete injury in fact” (as outlined within the U.S Supreme Court) and alleged there was no case or controversy for the court to rule on.

The appellate court discussed the issue of what constitutes “a concrete injury”, bringing to bear several U.S. Supreme Court issues, including Spokeo, Inc. v. Robins, which this author brought forward to some degree in his FDCPA book (see the website for details by clicking this link). While the nation’s highest court generally rules within very narrow margins, the discussions within this case are quite lengthy in explaining the various “harms” and whether they constitute an injury in fact, a requirement for any federally-based debt collection action, whether tangible or intangible.

The cases then turned on the key issue here of “bona fide defense”, citing multiple cases, including the infamous Jerman v. Carlisle case (cited within). As the cases drew to their conclusions, the appellate court determined that the errors in both instances could have been avoided if reasonable procedures had been in place and thus disclosed and identified by the parties as reasonable. Such was not the case in either instance according to what this paralegal read (see Pages 15 and 16 of the ruling for the double whammy on both debt collectors).

And this is why we have appellate courts (because the district courts have a propensity to misinterpret the law as it is written, in this case, the Fair Debt Collection Practices Act. What most folks don’t realize when initiating these suits, are the following takeaways:

  1. A person filing an FDCPA suit has to have a legitimate “injury-in-fact”, whether tangible or intangible, that can easily be interpreted by the court;
  2. The injury-in-fact must be “concrete, particularized and actual or imminent” in order to stick;
  3. When examining case law, especially regarding the FDCPA, understand that these suits are normally brought in U.S. District Court in the district in which the Plaintiff resides because cases in controversy (many times) cross state lines;
  4. That an attorney bringing these claims needs to fully understand the principles discussed within the cited cases in this instance, which is why this author decided to bring this case forward for further discussion;
  5. There was no evidence that any state-based claims were brought forward in either instance, because the Plaintiffs’ attorneys knew that the debt collectors were out of state; thus, both claims were federal matters; and
  6. As noted in cases like Jerman, this author constantly sees the application of the bona fide error defense used affirmatively by debt collectors whenever possible because of the narrow ruling by the U.S. Supreme Court “walks a fine line” in the district courts, where district and circuit judges (like those judges in foreclosure cases) in most instances, rule on behalf of the defendant debt collector (bank, alleged lender) a majority of the time, which requires an appeal.

Despite the fact appeals can be costly, they are more effective in setting good case law, which is why this author chose to post THIS case to enhance one’s “learning curve” when it comes to understanding and recognizing when one has a case versus when one doesn’t.

As a footnote, one should be prepared to litigate this case to its final conclusion; thus, cases like this, which can turn on a dime, are not for the faint of heart and those without the budget to do so.

Listen to Dave Krieger on The Power Hour, Monday-Friday from 11:00 a.m – 1:00 p.m. Central Time.

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