Did a third party debt collector file a judgment against you?
A word about the courts here in the United States
We need to understand that we are not in a common-law venue but rather in an admiralty / merchant law venue and, of course, in merchant law, there is another word for defendant and that is debtor, which sounds like you have already been convicted.
So the old notion that you are innocent until proven guilty, at least when it comes to admiralty, is certainly not the case.
You're brought into court under a court approach to the whole problem called assumpsit. And a assumpsit is Latin, of course, is where we get our word assumption from, and literally what they're doing is they're presuming that you're guilty, which is not the old I'm innocent until proven guilty routine. And because of that and because you are characterized as the debtor, you are expected to lose. That is what is supposed to happen. The plaintiff is supposed to prevail.
Judgments entered where the court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside.
What if the claim brought against you is fraudulent?
What if, in fact, the claim brought by the lawyer who is suing you is a fraudulent claim? And that, I think, is the real issue because, you know, just because the court says the definitive judgment doesn't necessarily make it so.
In other words, NOT every judgment is a valid judgment and, in fact, when it comes to credit card debt and other unsecured debt, virtually every judgment is void. Why is it void? Well, let's take a quick look at a couple of items. The first one, regardless of what state you are in, there is a Code of Civil Procedure. Every state has one, and of course there are federal rules for civil procedure as well.
Well, here's the problem. There's no such thing as evidence without someone to testify; in other words, it's a competent fact witness. Competent what? Competent to testify. What would make someone competent to testify? How about if they have first-hand knowledge? Or another way of putting it is, can someone who does not have first-hand knowledge qualify as a competent witness? The answer is No.
So, let's do a quick review. Normally, if you are going to bring a claim and you're going to say this guy defaulted on his loan with the bank. The first thing you are going to enter into evidence is, where's the contract, where's the note? The note and the contract with your in-ink signature upon it is not optional it must be presented and entered into the record as evidence despite the way the courts handle things today.
Actually, according to evidentiary procedure, it is necessary. In fact, in most states, there's an actual statute in the rules of evidence that states that a copy of the contract is not good enough. It has to be an original. They have to be able to produce an original contract.
Now, there's a second reason why this is important, and that is, let's say you decide before you get into a big court battle you want to settle out of court. You say to the judge, Your Honor, we've negotiated and I've agreed to settle this dispute out of court. My only concern, Your Honor, is that I do not want to have this claim brought up against me again, and so, therefore, Your Honor, I'm sure you agree I am entitled to the note, that is to say the original note, that proves that their claim is true. I'm entitled to getting that note back. Moreover, I'm entitled to have that stamped “Paid in Full” or “Satisfied.”Now, once I have the original note back, Your Honor, no one else can come against me on this same claim, and you know what? That's only fair, because if you're going to pay your money, you're entitled to get something back for that money paid. Well, what happens if the bank can't produce the note? The answer is, where the complaining party cannot prove the existence of the note, then there is no note.
To recover on a promissory note, the plaintiff must prove: (1) the existence
of the note in question; (2) that the party sued signed the note; (3) that the
plaintiff is the owner or holder of the note in due course; and (4) that a
certain balance is due and owing on the note.
See: Prove existence of the note
The Remedy: Tacit Procuration
The remedy is to challenge the claim by asking some questions and making specific demands to the debt collector.
Tacit procuration is a commercial process.
An appeal is not necessary.
After the debt collector has failed to answer in 10 days, we file our affidavit of acceptance, agreement, and accord. An affidavit is a statement of the truth by you, in this case. What are we saying? We're saying, well, on such and such a date I sent off this tacit procreation with all these questions. He didn't respond, so he's agreed to stipulate all of the charges. And about a day later we file an affidavit of claim of lien.
It goes like this: I conditionally accept your offer to have me answer this question upon proof of claim that you have a valid judgment. Note: every unsecured credit card debt judgment is null and void on its face.
And then we, of course, we outline the fact that there had to be an original contract and note with an ink signature upon it, and there had to be a competent witness with first-hand knowledge.
There's no grounds for sanctions at this point, nor did the debt collector present any evidence or information, about the account, real estate, etc.
Second step that we take, is right along with those answers to interrogatories, we say to the debt collector, "We're ready to settle. We want to settle. We're not interested in fighting you and all these questions aren't really necessary considering the fact that we're ready to settle."
Now, needless to say, as you probably guessed, the settlement is conditional. And the way it goes is this: in the matter of your request for payment, and / or that I produce answers to information on absence, I hereby accept for value your presentment and conditionally agree to settle with you in full. What's the condition? Well, upon proof of claim that you have a lawful judgment that fully complies with all the requirements under the laws of (the state the judgment was given).
Now, you would substitute whatever state you're in, and of course, the United States. Then we went on to say the aforesaid proof required by law is a sufficiency of pleadings and includes the following: an original contract signed by (your name) and a sworn testimony of a competent witness with first-hand knowledge that the individual in law, say John Henry Doe, received consideration from XYZ Bank, which constituted a loan, a bank capitol (money) put at risk by the bank. That's what our condition is.
You cannot bring a lawsuit unless you have "Sufficiency of Pleadings."
Now, the reason that we could do that is a phrase that says, the aforesaid proof required by law is a "Sufficiency of Pleadings." You cannot even bring a lawsuit unless you have a sufficiency of pleadings, which is to say that unless you have that contract and unless you have that witness, you shouldn't be bringing a claim.
The fact of the matter is, lawyer's want you to believe that they have a judgment against you, but the truth is you don't lose until you give up.
Note: You're either going to try and convince the court to vacate the judgment or you're going to convince the opposing council it's time to pack it in and go find another victim. And that's really what you want to do. If you can do that, the debt collector can decide, that "this matter is satisfied" and we're going to move on. Thank you very much
You do not have to appeal fraud
There is such as a thing as an appeal. Everybody's heard of appealing a decision. But what you don't realize, probably, is that you do not have to appeal fraud. If there's a fraud that's taken place, and if they're defrauding you and using a court and the color of law to make that fraud happen, then do you have, in fact, any obligation? The answer is no, as long as you stay in honor.
Collecting From an Attorney
Good luck ever collecting from an attorney. And you know that's instead of waiting for him answer, we're going to go ahead and answer for him. Now here's how it reads, it says, "in pursuance of the biblical exhortation "to agree with an adversary quickly whilst you are in the way with him," which is Matthew 5:25, now listen to this," and considering the issues to be resolved in the above captioned matter, I hereby extend the opportunity for us to agree or disagree.
And since the proclivity (see definition below) of an adversary is to avoid answering per Proverbs 29:19, the following questions are answered on your behalf to preclude any stalemate from arising from your failure to respond, although you may wish to enter specific and detailed objections in the event we are not of one accord." Then we go ahead and start answering questions.
For Example: the first question is that on the day
of your admission to the bar, you did execute the attorney's oath to uphold
and support the constitution and laws of the
The consent judgment
If you know the law, you can press the matter and actually enforce your will and make sure it's recorded. What we do as soon as we do that is we start to bill the guy. And basically, it's a 90 day billing process. So you bill him once per month for three months. We give him ten more days as a grace period. And at the end of 100 days, guess what we have? We have a consent judgment. This is something that we do not need a judge to sign. We have a consent judgment as an operation of law. And we can take that to the bonding company that bonded this lawyer and virtually every debt collector out there has a bond.
What's a bond? It means that they put up the money and it's held by this third party, this bonding company, and it's there to take care of any damages that occur in the course of their doing business. Well guess what? Most folks don't know how to collect on a bond, but actually it's pretty easy. You can get the guy's bonding company to pay by simply presenting your consent judgment to them and generally speaking, they will pay.
Now, what if they don't? You have the option of getting the sheriff and having him go collect for you. And by the way, that's another issue that generally isn't a problem because sheriffs know and understand it's their duty to go collect for all sorts of people, and it's not that uncommon that they do it as a matter of course.
Question: Let's assume you've got an existing wage garnishment. Can you apply this process to undo that or minimize it or change it in any way?
Answer: Yes. Everything really depends on your starting point, on your perspective.The perspective, frankly, from most of the debt collector law firms involved in debt collection are frankly fairly unimaginative.
If you can turn the tables on them so that they're jumping to your tune, then you can achieve the satisfaction you are looking for. Here's how it works. Just not too long ago we had a client that came to us with a judgment in place and they were threatening him with sanctions from the court. In fact, they were doing worse than that. They had brought an action of a motion, and this is from of a judgment they had gotten some months ago, and the motion was that he be held in contempt of court, which is actually a step up from mere sanctions. And he came to me saying, what do I do with this? And I said, well, there's a couple of things we can do, but the most important thing that we want to do is get this lawyer to agree to mark your judgment as satisfied.
And his basic reaction to that was, pardon me? These guys hate my guts. Why would they ever want to do that when I'm certainly not going to pay them. I said, well, it all comes down to leverage. And the leverage in that particular case was a RICO suit.
What RICO stands for is Racketing Influence Corruption Organization. And RICO is title 42 and believe it or not, folks who are bringing people into court without proof and are claiming to represent XYZ Bank when in fact they don't represent the bank, they are simply representing themselves, they are conspiring and that is racketeering. They are conspiring to defraud you of money. They are using the United States mail, and that's mail fraud. They are bringing a fraud upon the court. And they are generally getting the court to aid and abet. And worse, they are getting the bank to aid and abet their fraud.
So that is definitely racketeering. What we did is we simply actually put together a real racketeering suit, a RICO suit, basically sent it off to the lawyer and we're expecting the lawyer is going to mark that account paid in full, full satisfaction for the following reasons. Number one, lawyers cannot defend themselves in a RICO suit. They have to engage outside council for a RICO suit. You are talking about typically upwards of $40 or $50 grand. That's out of their pocket. And that's whether they win or lose. So right there, that's a heck of a threat.
Secondly, think about it, if they lose a racketeering suit, that means they are convicted of racketeering. Are they going to be lawyers for much longer? No. Not a chance. So they are literally betting their whole career. Is that a smart bet? And the answer, of course, is no.
Now, we've already discussed the leverage you can get with a suit, a RICO suit. Another suit that we have that can be used very effectively is the Fair Debt Collections Practices (FDCPA) suit. That's another kind of leverage. Let's go back for just a moment to the tacit procreation. And let's see how that can be used in connection with a lien. Number one, it's a balancing act.
In other words, currently the scales are out of balance and they're weighing heavily against you because they have a lien against you or they are garnishing your wages or whatever.
What you need to do is think in terms of getting the scales back in balance, and the way you do that is by bringing an action against them. And if you complete your action, as I just suggested, within 100 days. Typically, they are trying to get a judgment against you for say $10,000 or $15,000 or maybe $20,000. What you're doing with the tacit procreation is a treble damages issue so that $20,000 on their side gets outweighed by your $60,000 claim. See what I'm saying?
"Offer plus acceptance equals contract"
And I want you to remember what I was saying a little while ago, earlier this evening, when I said I conditionally accept your offer to answer this question upon proof of claim you have a valid judgment. Who would ever think that a question about your money, about your bank accounts or whatever, is an offer? How about another one? Somebody writes to you and says, you owe XYZ Bank $10,000. Pay up. And it's from a debt collector. What's that? That's an offer.
Well, the acceptance could be, in the case of tacit procreation, their silence. Silence is acceptance. So in effect, what you're doing is you're putting an offer out to him with a tacit procreation. You're saying look, I think you're guilty of all these crimes by asking me these questions. I am going to answer for you.
Statement for clarification: It's offer and then counter offer, and we are turning the tables?
Answer: You just brought up an excellent point. In order to have a contract you only need an offer and acceptance. The first point you need note is that the party accepting, doing the acceptance, is the party who gets to dictate the terms.
You walk into any car dealership in this country and what do they constantly do to you? Make us an offer. Make us an offer. It's like a broken record. Why are they saying make us an offer? Because if you're the one that makes the offer, they're the ones that get to be the acceptor and that means they are the ones who get the dictate the terms, you see? So that's a big advantage.
Question: Is that why when they make us an offer we have to accept their terms and then make a counteroffer? It goes something like that?
Answer: Well now, you just brought up the issue of counteroffer. What we do when a lawyer sends his interrogatories and starts asking all sorts of questions about bank accounts, -- now that is his offer. Instead of accepting his offer and simply answering the questions, we did what is called a counteroffer, which was our conditional acceptance. In other words, we conditionally accept your offer to answer his questions upon proof of claim that you have a valid judgment. So now the ball is back in court.
The Courtroom is all about Commerce
What we've been talking about here -- sure we've been talking about lawsuits and what have you, but what we've really been talking about is commerce.
“I conditionally accept your offer to cite me for contempt of court and have me thrown in jail upon proof of claim that I'm doing anything other than exercising my rights to protect my property. Now the ball's back in his court. Go ahead. Prove up your claim. You think you've got me for contempt? Show me. Can you do that? You bet. Why? Because that courtroom is all about commerce. They're there to do business. So are you. Do you have a right to protect your business interests? Absolutely.
So, what are we really talking about? We're talking about gorilla warfare. What is the judge going to do to you? He tried to throw a monkey wrench into the works. He tried to scare you, but you didn't scare. You said, Judge, I conditionally accept your offer to cite me for contempt of court and have me thrown in jail upon proof of claim that I'm doing anything other than exercising my rights to protect my property. Now what's he going to say? That you don't have a right to protect your property? Give me a break. He isn't going to do that. He's going to figure out that you know what you're doing. And he's probably not going to mess around with you.
Question: You mentioned validation. What if you send them a request for validation and they send you back partial, like partial validation --
Answer: Okay. That's an excellent question. Let's make something clear for everybody here. Because I've gotten this question you wouldn't believe how many times. Typically, what happens is you send out your request for validation and I've had people come back to me and say, but they responded! They responded! I say, no they didn't. Oh yes they did.
Question: That's mail fraud, right? That's mail fraud.
Absolutely it's mail fraud. But
how do we know for a fact it's a lie?
I'll tell you how.
Because you go ask -- do a poll of the collection agents out there and you
say to them, do you collect for banks or do you buy up bank debt?
And 100% of them will say they buy bank debt.
I had a lawyer who was caught with his pants down just a couple of
days ago, last week. You know
what happened? The lady in
Question: Is tacit procuration good for student loans?
Answer: Yes. A student loan is typically an unsecured debt. Now, let me just say, in the case of credit card debt, it is not legal for the bank to sell your account. They can't do it. And the reason they can't do it is a credit card account is really a series of offers. Think about it. Because, see, the signature -- when we talk about signatures, it's the signature on the little slip that you sign when you go charging something, see what I'm saying? So it's actually a series of offers and a series of offers cannot be transferred. Can't be done. So could the bank legally sell that? No. They couldn't. So that, in itself, was a crime.
Definitions and legal terms:
Assumpsit (Latin: “he has undertaken”) In common law, an action to recover damages for breach of contract, especially an implied or quasi contract.
It developed in early English law as a form of recovery for the negligent performance of an undertaking (e.g., failing to protect from damage another's goods in one's care). Eventually, it came to cover broader claims regarding failure to keep a promise. It remains available as a contractual remedy in some U.S. jurisdictions.
ASSUMPSIT - Various Definitions
ASSUMPSIT - An undertaking either express or implied, to perform a parol
An express assumpsit is where one undertakes verbally or in writing, not under seal, or by matter of record, to perform an act, or to pa a sum of money to another.
An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent to what is useful to him. See Assent
Remedies, Practice. A form of action which may be defined to be an action for the recovery of damages for the non-performance of, a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine, and in numero, and may be upon a deed as well as upon any other contract. If differs from covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal.
It will be proper to consider this subject with reference,
1, to the contract upon which this action may be sustained;
2, the declaration
3, the plea;
4, the judgment.
Assumpsit lies to recover damages for the breach of all parol or simple contracts, whether written or not written express or implied; for the payment of money, or for the performance or omission of any other act. For example, to recover, money lent, paid, or had and received, to the use of the plaintiff; and in some cases, where money has been received by the defendant, in consequence of some tortious act to the plaintiff's property, the plaintiff may waive the tort, and sue the defendant in assumpsit. It is the proper remedy for work and labor done, and services rendered but such work, labor, or services, must be rendered at the request, express or implied, of the defendant for goods sold and delivered; for a breach of promise of marriage.
Assumpsit lies to recover the purchase money for land sold; and it lies, specially, upon wagers; upon foreign judgments; But it will not lie on a judgment obtained in a sister state. Assumpsit is the proper remedy upon an account stated. It will lie for a corporation. In England it does not lie against a corporation, unless by express authority of some legislative act but in this country it lies against a corporation aggregate, on an express or implied promise, in the same manner as against an individual.
The declaration must invariably disclose the consideration of the contract, the contract itself, and the breach of it; but in a declaration on a negotiable instrument under the statute of Anne, it is not requisite to, allege any consideration; and on a note expressed to have been given for value received, it is not necessary to aver a special consideration. The gist of this action is the promise, and it must be averred. Damages should be laid in a sufficient amount to cover the real amount of the claim.
The usual plea is non-assumpsit under which the defendant may give in evidence most matters of defense. When there are several defendants they cannot plead the general issue severally; nor the same plea in bar, severally. The plea of not guilty, in an action of assumpsit, is cured by verdict.
by: John Bouvier, Revised Sixth Edition, 1856
Remedies, Practice., A form of action which may be defined to be an action for the recovery of damages for the non-performance of, a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. 7 T. R. 351; 3 Johns. Cas. 60. This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine, and in numero, and may be upon a deed as well as upon any other contract. 1 h. Bl. 554; B. N. P. 167. It differs from covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal. See Covenant.
2. It will be proper to consider this subject with reference,
1, to the contract upon which this action may be sustained;
2, the declaration
3, the plea;
4, the judgment.
1. Assumpsit lies to recover damages for the breach of all parol or simple
contracts, whether written or not written express or implied; for the
payment of money, or for the performance or omission of any other act. For
example, to recover, money lent, paid, or had and received, to the use of
the plaintiff; and in some cases, where money has been received by the
defendant, in consequence of some tortious act to the plaintiff's property,
the plaintiff may waive the tort, and sue the defendant in assumpsit. 5
Pick. 285; 1 J. J. Marsh. 543 3 Watts, R. 277; 4 Binn. 374; 3 Dana, R. 552;
1 N. H. Rep. 151; 12 Pick. 120 4 Call. R. 461; 4 Pick. 452. It is the proper
remedy for work and labor done, and services rendered 1 Gill, 95; 8 S. & M.
397 2 Gilman, 1 3 Yeates, 250 9 Ala. 788 but such work, labor, or services,
must be rendered at the request, express or implied, of the defendant; 2
Rep. Cons. Ct. 848; 1 M'Cord, 22; 20 John. 28 11
2. The declaration must invariably disclose the consideration of the
contract, the contract itself, and the breach of it; Bac. Ab. h. t. F 5
Mass. 98; but in a declaration on a negotiable instrument under the statute
of Anne, it is not requisite to, allege any consideration; 2 Leigh, R. 198;
and on a note expressed to have been given for value received, it is not
necessary to aver a special consideration. 7 Johns. 321. See
3. The usual plea is non-assumpsit, (q. v.) under which the defendant may
give in evidence most matters of defense. Com. Dig. Pleader, 2 G 1. When
there are several defendants they cannot plead the general issue severally;
6. – 4. Judgment. Void Judgment in Assumpsit. Vide Bac. Ab. h. t.; Com. Dig. Action upon the Case upon Assumpsit; Dane's Ab. Index, h. t.; Viner's Ab. h. t.; 1 Chit. Pi. h. t.; Petersd. h. t.; Lawes PI. in Assumpsit the various Digests, h. t. Actions; Covenant; Debt; Indebitatus assumpsit; Padum Constitutiae pecuniae.
A natural propensity or inclination; predisposition.