can anyone answer a question for me please?

When you get served, answer the summons and neither confirm nor deny the debt without sufficient documentation. Make sure you also state that you sent a debt validation to united recovery systems and never got a response and then was sued.

Find out from the court house if there is a paper to file and Request production of documents. I would also serve Love Beal and Nixon Interrogatories. Search around on them there is a lot of dirt on this company. If you can find lawsuits against them, include it in the interrogatories and they will have to confirm or deny it. Check the BBB and see the rating they have. If it's a poor rating, print it up. You want to show the court they have a poor reputation and hopefully it will work in your favor. Most likely they do not have any documentation.

Original contact, Complete account history, license numbers of the person they are collecting for, if it is United Recovery Systems, Ask for whatever you think can help your case. If they can't produce these documents within the certain time frame, you can motion to dismiss, with prejudice.

Also ask how much they paid for the debt in question. Most likely they paid 8 cents on the dollar. So if they paid $160 for a $2,000 debt, They can only sue you for $160. It is a lot of legal terms involved, Volenti non fit injuria, unjust enrichment and contributory negligence.

You are basically saying that they take a risk by purchasing debt for pennies on the dollar with hopes to make their money back. Because of this risk they cannot sue someone for it. if the Volenti can't be proved then it's contributory negligence. Paying more than what they paid for the debt is unjust enrichment.

Most likely if you fight back they might dismiss the case themselves or they won't do anything for a while and let everything lapse then you can motion to dismiss.

I am not an attorney but this is what I would do.

well thank you soooooo much for answering those. That is very kind of you to inform me...

Love Beal & Nixon brought the suit in Nov. I was still waiting to hear from United recovery from thier first letter back in July. I have since sent another DV letter to them and sent it certified as well. The first letter I sent them was certified, however the green card was lost.

I guess, my question would also be, when I called Cap1, they told me that my account had been "sent" to love, beal & nixon....okay, so how did United have it back in July? And since I did ask for DV from United, how will that help me now with Love beal & nixon? Sorry I'm being so stupid...but I am very frustrated on why Cap 1 refused to work with me in the first place.

I know that this same lawyer filed in 2 days time in Tulsa co, over 400 suits for debt. that would qualify them as a collection agency wouldn't it? I bet so.

But if I do print out bad stuff about them....that really won't help because the suit will be the question of if I actaully owe it or not.

What about contract laws, if the contract from Cap 1 transfers to thier assignee, do the assignee have to be able to perform the same functions as cap1 bank does? Or is that a stupid question?

One more...really, I apprecaite your help...I honestly do. Do they have to disclose in the discovery process how much they paid for the debt, or will they attempt to use some weird loophole to not answer that? I want to word my documents correctly, as to make them show strict proof of me oweing them.....

Again, thank you....it's very nice to have help from a new friend!

would it be in my best interest to send a request to Cap1 asking for an account work up? When I called them, the lady I spoke with stated they no longer had the account, it had been sent to Love Beal & Nixon....so, cap1 can't give me the entire account info now?? weird....

OK what probably happened was originally it was sent to United and then United sent it back to Capital 1. Capital 1 then sold it again to Love Beal.

Regarding the contract, some states will require it if you question it. If they can't produce it, then they really have no proof you owe the debt. The debt collector has to abide to the Fair Debt Collection Practices Act and if your state has debt collection laws, them also.

Love Beal and Nixon IS a debt collector.


If you request production of documents they should have to tell you haow much they paid for the debt. Otherwise you can motion to compel. You want the agreement between Capital 1 an LB&N. If you bring up defenses that they only paid say, $60 for the debt and if they don't have a signed contract by you, then they can only sue you for the $60 and not attorney or collection fees. It is Unjust enrichment.

Research these terms on Wikipedia,,,,volenti non fit injuria,,,contributory negligence and unjust enrichment. You will see what I mean. The judge might ask you what they mean to test you so study them. It is the perfect defense against debt collectors.

Sending request to Cap 1 is useless. They have no control over the account anymore most likely and if they did you are in the middle of litigation so you can only contact their attorney.

Lastly you can research Love beal and nixon if you would like. I just say that people are afraid in court and get pushed around by this scum. You want to know their reputation and be able to show in court how the are conducting business at an unfair advantage.

hope this helps.

You should also countersue them for suing you when you have demanded validation from them. That is considered continued collection activity. By law they had to provide you with documentation before they sued you. You can do as suggested above, force them in court to validate, through discovery. You can force them to provide this information, or you can motion to dismiss.

Thank you Goldenbast, but I never had contact with Love Beal & Nixon before they filed a lawsuit. I have been waiting to hear back from United Recovery.

I also pulled my credit report yesterday and I have some collection agency on there for another account it shows the account with them as open. I've never heard of them before nor have had any contact with them, 'portfolio recovery associates'. It was from HSBC for 545.00, and it says on the report "transferred or sold to another agency" So, I guess I can't contact HSBC and pay them off, yeesh...this is such a mess.

Find out who they are representing..they may be representing United Recovery.

they say Cap1, and when I called Cap1, they said the account was "sent" to Love Beal & Nixon.

weird I ask for DV from United, then months later sued by LB&N with no letter of collections...nothing...I've saved all the letter from United and what I've mailed them cert. Maybe the judge will take that into consideration, but doubtful.

I reviewed my credit report, I have Portfolio recovery assoc. on there as well, they have been the ones calling my cell for the past two days and not leaving a message. (If I don't know the number, I don't answer) So, I wrote my DV letter to thier corporate address and sent it certified today on my lunch hour...hopefully that will help that matter.....

yeesh...all of this mess for less than 3000 I should just say screw it and try chapter 13....this is terrible!

this is what I found on the BBB about them:
Business Contact and Profile

Name: portfolio recovery associates, LLC
Phone: (757) 519-9300
Address: 140 Corporate Blvd.

Norfolk, VA 23502
Yahoo Map
Website: http://www.portfoliorecovery.com
Original Business Start Date: March 1996
Principal: Ms. Cynthia Robbins, Senior Associate General Counsel
Customer Contact: Ms. Judith Scott, General Counsel - (757) 519-9300
Incorporated: April 1996, DE
Employees: 1400
TOB Classification: Distressed Debt Purchaser <~~
BBB Accreditation: This organization is a BBB Accredited business.
Additional DBA Names: PRA III, LLC
Anchor Receivables Management

just weighing in.have been to court yet or is this still in the threatening legal action stage.if there is a summons answer it or show up.despite what some have been posting lately.going to court isn't such a bad thing if the CA won't work with you or validate.if there isn't yet,then you did the right thing by sending a DV letter.save those green slips for proof you sent them.i don't see where the judge will just rule in there favor.shazzers actually had a default judgement vacated and won against ARROW.a bottomfeeder collector.3,000.00 i would look into a consumer attorney and counterattack before CH13,but that's just me.

actaully Paul, I've not been served yet...but I know it's coming, It's listed on OSCN (our court thingy) with my name on it. I never had any previous contact with Love beal & Nixon prior to them filing suit...I think maybe they already knew I'd send a DV letter like I did to United recovery...they went straight for the throat....I have no idea how to defend it since I didn't get the opportunity to address it prior to a lawsuit....maybe the judge will consider that in this case...doubtful, but I am hopeful...LOL

Thank you for your input as well. I appreciate you taking time to talk with me about this.

there are a couple of ways to approach this.you can.

a)ask for validation during discovery as goldenbast advised or
b)respond before being served.that you never heard from this CA and want to prove they have rights to it.

i suggested the consumer attorney,because it does sound like these two places are connected and are attempting to get around the validation.this happens alot with bottomfeeders.there can be more than two that are intertwined playing collection ping pong with your debt.

thanks....I am looking into representation. How exactly can I respond before being served, just go to courthouse, get copies of the suit, then file my answers? Or am I wrong?

I'll be calling around to attorney's tomorrow to see if anyone can help. Thing is, I'm broke...my "welcome" mat just says "wel"....I work part time, not the 40 hours I used to last year. have a part time (cash) job on the weekends, but that is every now and then, nothing perm. if I had money like that I would have paid it off no prob.

I had an eye disease last year...cancer before that (which I can't do anything else because I can't afford the appointments)...no insurance and had to pay for surgery out of pocket...yea, that was a pretty penny...I just now am to the point I can make monthly payments...and whammo...smack with this stuff...ugh..

as one guest said file INTERROGATORIES.make them show something that entitles them to collect much less sue.you should be able to do this before the court date.by the way,you said you weren't served yet but know it's coming.sounds almost like they are trying to get a default judgement.just my .02.

I agree Paul they could be playing dirty. I would go to the court house as soon as possible and tell them you have not been served anything yet. And as I mentioned earlier get ready to serve them with interrogatories and request for production of documents.

I answered the Interrogatories, request for documents and request for admissions on the debt collector who is suing me for a debt that is not mine. I also sent my interrogatories and request for production of documents. It cost me $12.00 to mail it and they got it in a day. I mailed it Monday and got the green card back today.

I can't wait to see what they come up with now,lol.

Sphere, send Portfolio a DV letter, I did and they went away.

I mailed out my dv letter certified yesterday to Portfolio. Hopefully that will help. I have only recieved three calls on my cell from them, but compared the number with my credit report, so I went ahead and sent them the letter.

I got back my other green card from United Recovery stating that this is my second request for DV and they've not responded. I hope, they are dumb and send me something back saying they sold/transferred it to Love Beal & Nixon. they may not be though. Then maybe I can make Love Beal & Nixon prove in court they purchased the debt for xxx amount and go from there...or is that dumb?

Meanwhile, I have a really really stupid question. My credit reports show a certain amount from Cap1. I have a report from July and one from a few days ago. Okay, United recovery has a different amount on thier two letters they sent me. So, my guess is Love Beal & Nixon have a different amount as well....will that give me any "proof" they bought the debt...will that help me in court if I have two credit reports with the reported amount from Cap1 and that this lawfirm has a different amount? Or will they fix thier amount during proceedings?

Sorry, I know these are dumb questions....I really, really appreciate your help with this.

No, I still haven't been served yet. From what I can tell on OSCN, it's been taking them anywhere from 1 1/2 to 3 months to serve people, maybe cause they file so many per day....

if your CR shows both attempting collection on the same account.you should be able to point that out in court if it comes to that.keep your receipts from the DV letters a well.they will come in handy.you should also dispute both entries on your credit report as well.i know that is alot to absorb,but if these places are trying to railroad you which is what it sounds like.you should have all ducks in a row.

actaully, neither Love Beal & Nixon or United Recovery Shows on my CR. Only Portfolio for something else....ugh...but I show on the CR where United inquired on me...but nothing else.

Portfolio is the only weird one that actaully shows an open account with them. open 6/2008, balance date 11/2008.

But on both credit reports....the amount portfolio is after it shows on the original creditor as "account transferred or sold to another agency" sooo...that means a JDB got it?

more than likely.keep tabs on your CR to see if anything new pops up.

so here is something else...if I sent a check (payment in full) to the original creditor, and they cash it, then I can I sent copies of it being paid to these collection agencies to get them off my back? Or will a OC send the check back?

keep tabs with your bank on this.chances are the OC will send the payment back or not cash it.if they somehow cash it,then you can use that with the CA who has it now.

well, I was going to send a bank cashiers check, I don't really have a bank account to speak 3.23 does not count LOL...I thought it might be worth a try, plus wouldn't they if the accepted it, have to report it then as paid?

yes they would,especially if you send the payment with a specific account# attached.that would be no matter what form of payment was used.

Thanks Paul...you've been a big help!

I apprecaite all the help from people on here..you guys are the best!!!

I'll keep you updated as this thing evolves!

please do.we are here to help. :D 8)

okay...I'm sitting here trying to understand all the laws that might help my case....I ran across this report thingy...

FAILING TO SEND REQUIRED CONSUMER NOTICE: The fdcpa requires that debt
collectors send consumers a written notice that includes, among other things, the amount
of the debt, the name of the creditor to whom the debt is owed, and a statement that, if
within thirty days of receiving the notice the consumer disputes the debt in writing, the
collector will obtain verification of the debt and mail it to the consumer. Many 19
consumers who do not receive the notice are unaware that they must send their dispute in
writing if they wish to obtain verification of the debt. Last year, 3.1% of the FDCPA
complaints to the Commission, or 2,182 consumers, alleged that collectors did not
provide the required notice, down somewhat from 3.9% in 2006.

So, Love Beal & Nixon were under the law supposed to send me a letter...but I never got one from them....does that mean I can countersue on that one violation then? Or is that me pulling at the air???

since you haven't been formally served and you got the DV letter out.i would wait and if you are served use that to your advantage.when they can't validate during discovery,then you can countersue for the violation.it's best if you have a consumer attorney who works on a contingency basis for this.i wouldn't think about that until you are served.because you got the DV letter out,if they serve you now it's another violation.

yea but the DV letter went to United recovery...not Love beal & Nixon. I only know LB&N is sueing because my buddy found my name on OSCN. I think a pervious poster was correct that after I sent the 1st DV to United Recovery, they either sent it back to Cap1 or sent it to LB&N.

this is where I feel completely lost. I never have had any contact with LB&N, they just sued without contacting me or anything...I never got the Opportunity to send them a DV before the suit.

I'm sooooo Cornfused.

well then show your DV letters with receipts from UNITED RECOVERY,then request validation during discovery stating you never got anything from LB&N.i would ask your friend who tipped you off about this suit about how to proceed.filing interrogaties comes to mind.either works.

oh, he was just looking our friends, with OSCN, you can type in a name, and it pulls up tickets, divorces, lawsuit..etc. He was seeing if I had tickets or something and it said filed Nov 13th 2008. He's not a lawyer or anything. The public has access on that site...you can find out who's done what....
but he called and said there was something on there under my name....so I checked it, sure enough...Love Beal & Nixon....

I'm wondering if I should try to go to the courthouse and get a copy of the suit and then go home, work on my answers, maybe if I'm not served for a while, I'll have more time to get informed on what to do. Or, the day I'm served go file my answers right back so they know I'm staying on top of it.

I don't know...I'm so confused, angry...etc...

the lawyers I've talked to want around 1000 to help...I don't have that. I think I'm hung before it even gets started. I don't know what my affirmative answers will be, because if I use one I then have to prove it right?

this was filed on NOV 13TH and you haven't been served yet?i would go down to the courthouse and check and see what's going on.then get a copy of any papers you need to respond to this.that seems fishy that this was filed almost one month ago and you weren't informed or served at all.i would do that before planning my next move.

why would you pay them anything until this is resolved? Sounds like once that happens you would create a number of different problems for yourself, including, no leverage for getting it off your credit report because if you pay the debt it will only show paid but it will still show the deliquency.

yea. they usually take anywhere from 1 1/2 months to 3 motnhs to serve the summons, I don't know if we don't have enough process servers here in Tulsa or what....but all thier cases take a along time to get served. 9/10 times they are getting default judgements, I actaully have a printed copy of a suit that Im trying to understand how it works...

http://www.oscn.net/applications/ocisweb/GetCaseInformation.asp?submitted=true&viewtype=caseGeneral&casemasterID=217008&db=Canadian

NDMike25,
I wanted to pay my other creditors..not Love beal & Nixon. I wanted those other ones taken care off before I go to court over this one. I was hoping to relieve some of the stress this has caused by knowing those other debts are paid off and gone for good.

that link lets you look at the case documents...very rare on OSCN to let you see them in these type cases...I've spent many hours on there trying to find as many cases that Love Beal & Nixon have been defeated, most of thiers are defaults....

that's interesting.all the more reason to go to the court or clerk's office and find out everything about this.i have a feeling that they are looking for a default as well.try and beat them at this.

okay...I'll run by there tomorrow and get copies of the case. Hopefully that will buy me time to get my defenses figured out.

since I had no former contact, there wasn't a DV letter sent.

The amounts they want are probably different from the amount Cap1 shows on my credit report from 2 days ago.

Hopefully, if I keep snooping around here I can find something that will help.

=)

i would,it just might be you were meant to see that.it might have prevented a default from a bottomfeeder.

Hey Paul...

I spent most of my evening on the computer searching for answers to help me. And in the course of going through tons of printouts and letters, I actaully found a letter from Cambece Law office (from another matter) where I had mailed them a DV letter, and I know it wasn't sent certified and they actaully wrote me back and said the data was on microfiche or film and it could take time to retrieve those records. I found that interesting. I never noticed that before. What really surprised me was that I remember sending that DV letter to them and was upset that I didn't send it certified like I did the one for United recovery....and yet heard back from them anyway.

I just thought that was weird.

On another note....I'm trying to make an outline of what I need to do. So, correct me if I'm wrong here....

I get served
I answer summons with my answers ( I still don't know what defenses-and don't I have to provide specfic case references from my state?)
Then they'll send me Admissions/Inter.
and so I send them some as well...

do I then file a motion for discovery?
...I'm stuck.....

I've tried finding appropriate civil proceedure in Tulsa, OKla, however the only thing I can find is about process servers...

Anyone on this board from Tulsa that can lead me in the right direction? I work two jobs so it's hard for me to just run up to the courthouse

...and besides I always get handcuffed up there anyways...some lady using my info apparently has some kids she never made go to school, we have a law about that...anyways...any time I'm at the courthouse...I get handcuffed and have to wait for a few hours until they get it all fixed...it gets me PO'd cause you'd think they'd have this fixed by now....I usally end up mad telling them to call my Gyno & Cancer Dr's...I can't have kids....duh....anyways....

So, bottom line..I'm freaking out now. I read through tons of documents last night and it's such a mess....

any toughts...

well if you can get a case#or pending case#.you could have a friend go down and try to gleen any info on this for you.it is best to speak with a clerk or someone from the courthouse on this.

well, I imagine they will go for breech of contract...so I found this....I hope I'm on the right track here....

INTRODUCTORY NOTE ON INSTRUCTIONS FOR CONTRACT CASES
This Chapter containing the instructions for contract cases is organized into the following five subparts: 1) Formation of Contracts, 2) Interpretation, 3) Breach, 4) Defenses, and 5) Remedies. These instructions are intended to set out the general principles of the law of contracts, and many of them will need to be modified for particular types of contracts, such as contracts for the sale of goods, leases, construction contracts, and employment contracts.
As in other types of cases, the trial judge should begin the jury instructions in a contract case with the appropriate General Instructions in Chapters 1 through 3, and then select those instructions from this Chapter that are pertinent to the contested issues in the case. In most cases it will be necessary for the trial judge to give Instruction No. 2.1 in order to focus the attention of the jury on what is in dispute in the case and on the law that the jury will need to apply. The court should include, where necessary, an explanation of the alignment of the parties, particularly in a case involving an assignment, delegation, or a third party beneficiary. Following that the judge should give the following general Instruction on the elements of a claim for breach of contract:

















Instruction No. 23.1
ELEMENTS OF A CLAIM FOR BREACH OF CONTRACT
[Plaintiff] is required to prove by the greater weight of the evidence the following in order to recover on the claim for breach of contract against [Defendant]:
1. Formation of a contract between [Plaintiff] and [Defendant];
2. [Defendant] breached the contract by [state the way in which the plaintiff claims the breach occurred]; and
3. [Plaintiff] suffered damages as a direct result of the breach.
Comments
Although there are no Oklahoma cases listing the elements of a claim for breach of contract, the elements listed above are found in cases from other jurisdictions. See, e.g., Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 438 P.2d 146, 149 (1968) ("In stating a claim on contract, the pleader should allege the making of the contract, its terms, and the breach thereof, which must not be left to inference."); Gilomen v. Southwest Mo. Truck Ctr., 737 S.W.2d 499, 500-01 (Mo. App. 1987) ("To state a cause of action for breach of contract, a plaintiff must allege (a) the making and existence of a valid and enforceable contract between the plaintiff and the defendant, (b) the right of the plaintiff and the obligation of the defendant thereunder, (c) a violation thereof by the defendant, and (d) damages resulting to the plaintiff from the breach."). See also Cleland v. Stadt, 670 F. Supp. 814, 816 (N.D. Ill. 1987) ("In a contract action, the plaintiff must allege the formation of a contract, the terms of that contract, performance by plaintiff, breach by defendant, and damages."); Stration Group, Ltd. v. Sprayregen, 458 F. Supp. 1216, 1217 (S.D.N.Y. 1978) ("The elements essential to pleading a breach of contract claim are: (1) the making of an agreement; (2) due performance by plaintiff; (3) breach thereof by defendant; and (4) causing damage to the plaintiff.").




PART ONE --- FORMATION OF CONTRACTS

Introduction No. 23.2
FORMATION OF A CONTRACT
A contract is an agreement to do or not to do a certain thing.
In order to have a valid contract there must be:
1. An offer by one party,
2. An acceptance by the other, and
3. Each party must give something of value or promise to give something of value in exchange for what the other gives or promises.
Notes on Use
This Instruction introduces the other Instructions in this Part One on Formation of Contracts.
The second paragraph should be given only if the contract's existence is in issue. If the existence of the contract is not in issue, the judge should give only the first paragraph of this Instruction, identify the contract for the jury, and then give the appropriate Instructions from Parts Two through Five of this Chapter.
Comments
15 O.S. 1991 ???? 1 (1991) defines a contract as follows: "A contract is an agreement to do or not to do a certain thing." 15 O.S. 1991 ???? 2 lists the requisites of a contract as follows: "It is essential to the existence of a contract that there should be: 1. Parties capable of contracting. 2. Their consent. 3. A lawful object; and, 4. Sufficient cause or consideration." 15 O.S. 1991 ???? 51 sets out the essentials of consent as follows: "The consent of the parties to a contract must be: 1. Free. 2. Mutual; and, 3. Communicated by each to the other." See also Restatement (Second) of Contracts ???? 17 (1979) ("[T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.").
Although 15 O.S. 1991 ???? 2 provides that capacity and a lawful object are essential elements of a contract, they are omitted from Instruction No. 23.2, because ordinarily they will not be in dispute. 15 O.S. 1991 ???? 11 provides that all persons have the capacity to contract, except minors, mental incompetents, and prisoners.
Mutual consent is often, but not always, communicated through means of the exchange of an offer and acceptance. The requirement of an offer and acceptance was emphasized in National Outdoor Advertising Co. v. Kalkhurst, 418 P.2d 661, 664 (Okla. 1966), where the Oklahoma Supreme Court held: "It is an elementary rule of law in this jurisdiction that in order to constitute a contract there must be an offer on the part of one and an acceptance on the part of the other." See also Armstrong v. Guy H. James Const. Co., 402 P.2d 275, 277 (Okla. 1965) ("An offer becomes a binding promise and results in a contract only when it is accepted."); Horton Ins. Agency, Inc. v. Robinson, 824 P.2d 387, 400 (Okla. Ct. App. 1991) ("A valid and enforceable contract requires an offer, acceptance, and consideration.").

Instruction No. 23.3
FORM OF CONTRACTS
A contract may be written or oral.
A contract may be express or implied. An express contract is set out in words, either spoken or written. An implied contract is created by the acts or conduct of the parties. No particular form is required for words or conduct to create either an express or implied contract.
Notes on Use
The first paragraph should be used only when recovery is sought under an oral contract that is not covered by the Statute of Frauds, 15 O.S. 1991 ???? 136.
The second paragraph should be used only if a party is asserting that the agreement contains implied terms.
Comments
15 O.S. 1991 ???? 134 provides as follows for oral contracts: "All contracts may be oral, except such as are specially required by statute to be in writing."
The second paragraph is based on 15 O.S. 1991 ???????? 131-133. Section 131 provides: "A contract is either express or implied." Section 132 defines an express contract as follows: "An express contract is one, the terms of which are stated in words." Section 133 defines an implied contract as follows: "An implied contract is one, the existence and terms of which are manifested by conduct."

BREACH OF CONTRACT
A contract is breached or broken when a party does not do what [he/she/it] promised to do in the contract.
Notes on Use
This Instruction introduces the other Instructions dealing with breach, and it should be given when there is a jury question concerning whether a breach of contract has occurred.
Comments
Restatement (Second) of Contracts ???? 235 (1979) provides as follows: "(1) Full performance of a duty under a contract discharges the duty. (2) When performance of a duty under a contract is due any non-performance is a breach."

BREACH OF FIDUCIARY DUTY - ELEMENTS OF LIABILITY

In order for [Plaintiff] to recover from [Defendant] on [his/her] claim for breach of fiduciary duty, you must find that all of the following have been established:
1. A fiduciary relationship existed between [Plaintiff] and [Defendant] that created (a fiduciary duty)/(fiduciary duties) that [Defendant] owed to [Plaintiff];
2. [Defendant] breached the fiduciary duty/duties to [Plaintiff]; and
3. The breach of the fiduciary duty/duties was the direct cause of damages to [Plaintiff].
Notes on Use
Instructions 26.2 to 26.5, infra, should be used with this Instruction.

Committee Comments
This instruction is based on the following statement in FDIC v. Grant, 8 F. SupP.2d 1275, 1299 (N.D. Okla. 1998):
From a review of the authorities in Oklahoma, it appears that the four elements of an actionable breach of fiduciary duty claim are: (1) the existence of a fiduciary relationship, (2) a duty arising out of the fiduciary relationship, (3) a breach of the duty, and (4) damages proximately caused by the breach of duty.
The Instruction combines the first and second elements from the Grant case, because the existence of a fiduciary relationship will create one or more fiduciary duties as a matter of law.


Instruction No. 26.2
BREACH OF FIDUCIARY DUTY - EXISTENCE OF FIDUCIARY RELATIONSHIP

You are instructed that a fiduciary relationship existed in this case between [Plaintiff] and [Defendant].
OR
You are instructed that if you determine that [Specify Grounds for Fiduciary Relationship, e.g., [Defendant] was the [guardian, employee, partner, attorney, accountant, banker, physician, etc.] of [Plaintiff]], then a fiduciary relationship existed in this case between [Plaintiff] and [Defendant].
OR
You must determine whether a fiduciary relationship existed in this case between [Plaintiff] and [Defendant] based upon their relationship and the other circumstances in this case. A fiduciary relationship exists whenever trust and confidence are reasonably placed by one person in the integrity and loyalty of another, and the other person knowingly accepts that trust and confidence and then undertakes to act on behalf of the person.

Notes on Use
The first alternative should be used where the existence of a fiduciary relationship may be determined as a matter of law. Examples include relationship such as guardian and ward, attorney and client, principal and agent, and where a fiduciary relationship is created by statute. See Lowrance v. Patton, 1985 OK 95, 17, 710 P.2d 108, 111.
The second alternative should be used where the existence of a fiduciary relationship depends on a disputed factual issue. The trial court may need to modify this alternative to explain the disputed factual issue-e.g., by defining the requirements for a guardianship.
The third alternative should be used where the existence of a fiduciary relationship is a jury question and the fiduciary relationship does not fit into a well-defined category, such as the relationship of a guardian and ward.
Committee Comments
The criteria for a fiduciary relationship in the third alternative are taken from Lowrance v. Patton, 1985 OK 95, 17-18, 710 P.2d 108, 111-12; Sellers v. Sellers, 1967 OK 34, 21-22, 428 P.2d 230, 236; and Robertson v. Painewebber, Inc., 2000 OK CIV APP 17, 10-11, 998 P.2d 193, 198-99.

AFFIRMATIVE DEFENSE- WAIVER BY PLAINTIFF PRIOR TO [HIS/HER] COMPLETE PERFORMANCE



--------------------------------------------------------------------------------


[Defendant] is not liable to [Plaintiff] on [his/her] claim of deceit if the affirmative defense of waiver is established. This defense is established if you find both of the following:

1. After [Plaintiff] began the course of action contemplated by the parties to the transaction, but before that course of action was completed, [Plaintiff] learned what the actual facts were; and

2. Nonetheless, with full knowledge of the actual facts, [Plaintiff] thereafter continued the course of action contemplated by the transaction, when a reasonably careful person under the same or similar circumstances would not have done so.

Notes on Use



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If the plaintiff learned of the actual facts before taking any action in reliance, for example, entering into a contract with another person, then the plaintiff's claim must fail, not because of waiver but because of failure to meet the burden of proof on the issue of reliance

ELEMENTS OF A CLAIM FOR BREACH OF CONTRACT
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[Plaintiff] is required to prove by the greater weight of the evidence the following in order to recover on the claim for breach of contract against [Defendant]:

1. Formation of a contract between [Plaintiff] and [Defendant];

2. [Defendant] breached the contract by [state the way in which the plaintiff claims the breach occurred]; and

3. [Plaintiff] suffered damages as a direct result of the breach.

Comments
-------------------------------------------------------------Although there are no Oklahoma cases listing the elements of a claim for breach of contract, the elements listed above are found in cases from other jurisdictions. See, e.g., Thompson v. Phillips Pipe Line Co., 200 Kan. 669, 438 P.2d 146, 149 (1968) ("In stating a claim on contract, the pleader should allege the making of the contract, its terms, and the breach thereof, which must not be left to inference."); Gilomen v. Southwest Mo. Truck Ctr., 737 S.W.2d 499, 500-01 (Mo. App. 1987) ("To state a cause of action for breach of contract, a plaintiff must allege (a) the making and existence of a valid and enforceable contract between the plaintiff and the defendant, (b) the right of the plaintiff and the obligation of the defendant thereunder, (c) a violation thereof by the defendant, and (d) damages resulting to the plaintiff from the breach."). See also Cleland v. Stadt, 670 F. Supp. 814, 816 (N.D. Ill. 1987) ("In a contract action, the plaintiff must allege the formation of a contract, the terms of that contract, performance by plaintiff, breach by defendant, and damages."); Stration Group, Ltd. v. Sprayregen, 458 F. Supp. 1216, 1217 (S.D.N.Y. 1978) ("The elements essential to pleading a breach of contract claim are: (1) the making of an agreement; (2) due performance by plaintiff; (3) breach thereof by defendant; and (4) causing damage to the plaintiff.").

Title 24. Debtor and Creditor
Chapter 2 - Assignments for the Benefit of Creditors
Section 31 - Assignment of Property Allowable, When - Preference - Effect
Cite as: O.S. ????, __ __


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An insolvent debtor may, in good faith, execute an assignment of property to one or more assignees, in trust towards the satisfaction of his creditors, in conformity to the provisions of this chapter; subject, however, to the provisions of the law relative to trusts and to fraudulent transfers, and to the restrictions imposed by law upon assignments by special partnerships, by corporations or by other specified classes of persons: Provided, that such assignment shall not be valid if it be upon or contain any trust or condition by which any creditor is to receive a preference or priority over any other creditor; but in such case the property of the insolvent shall become a trust fund to be administered in equity, in the district court, and shall inure to the benefit of all the creditors in proportion to their respective claims or demands.

Soooo...this means that the collector must have written proof that they have been assigned the debt? Am I reading this correctly?

So if I am, then I can ask for this proof of assignment in discovery?


Title 24. Debtor and Creditor
Chapter 2 - Assignments for the Benefit of Creditors
Section 35 - Requirements that Assignment Be Written, Signed, Acknowledged, Proved and Certified
Cite as: O.S. ????, __ __


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An assignment for the benefit of creditors must be in writing, subscribed by the assignor, or by his agent, thereto authorized in writing. It must be acknowledged, or proved and certified, in the mode prescribed by Sections 223 and 224.

you know...going over some cases that this particular "law" firm has filed on behalf of Cap1, most are Defaults...then you have these:

HASS, RUSSELL: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. THE DEFENDANT FAILED TO FILE A RESPONSE. THE COURT ACCEPTS AND ADOPTS THE ARGUMENT AND AUTHORITY SET OUT IN PLAINTIFF'S MOTION AND BRIEF FILED JULY 24, 2008. JUDGMENT TO PLAINTIFF FROM DEFENDANT IN THE AMOUNT OF $4,705.30 BEARING INTEREST AT 28.1%, COST, AND ATTORNEY FEES IN THE AMOUNT OF $200.00. ALL PER JOURNAL ENTRY TO BE SUBMITTED BY PLAINTIFF'S ATTORNEY WITHIN THIRTY (30) DAYS

Which I guess if you don't respond, bascially another type of default...

and they waste NO TIME in getting garnishments...some are filed within a week! Relentless...

Or they are dismissed due to the defedant not being served....

I'm not finding any that go beyond these types....so maybe there is some hope???

okay, so I called on my discover acct today...just to see what was up since on my CR it says Portfolio has it now...the lady I talked to, probably from india said that it was a very old, old acct (actually from 07) but she said it was charged off and a new buyer paid for it. So then I asked her, well, I need a copy of my last statement and a copy of the reciept from you and the buyer showing how much they paid for it. She said, we don't have those records anymore, the buyer does, you'll have to get it from them...So I was like...okay you sold something that was between yuor company and me and you are telling me I can't get a copy of it..since it's my information...she was like..well, it would have to be through thier office...they have everything now....

yeesh....I've never heard of that before. But portfolio already opened an "account" on my CR and I've never heard from them either....is that legal? I already mailed them a certified CR letter this week....

I still haven't been served regarding the Capital one suit...I've still been researching my defenses...but I'm sooo confused over what to put in which order.....

but I have another question. If they ask in admission and intter - where do you work? Do I have to put down where I work, or should I leave that one alone stating it has no information as to the complaint at hand....I'm so confused....

I've seen where it's easy to do your own work, then I've seen where people say no get a lawyer...well hell if I could afford a lawyer for everything...I'd never have any problems...but this is the real world and real people in the real world have familes, bills, etc.

I'm just not sure how to answer the summons correctly as to not open myself up ...and do you have to when putting your defenses on there, do you have to cite a specific state law/code/case???