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Please review 'holder in due course'

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  • Doug
    Please review the attached document.Comments below. I was going through some e mails and came across this. Was it ever answered? could someone give some input
    Message 1 of 4 , Jan 9, 2007
      Please review the attached document.Comments below. I was going through
      some e mails and came across this. Was it ever answered? could someone
      give some input ?

      Gary
      ----- Original Message -----
      From: Scott
      To: tips_and_tricks@yahoogroups.com
      Sent: Saturday, March 19, 2005 10:44 PM
      Subject: [tips_and_tricks] Summary Judgement


      Gary,
      I just recently went through a Federal Case that is similar in content
      as your dilemma. Mine was under the fair debt collections act over a
      vehicle that supposedly one company purchased the contract but, could
      not supply a document of sale or a contract of sale. Now whether it was
      the Complaint and summons and reference cases I wrote or the corruptness
      of the Judge and Magistrate, the case was dismissed, and my question
      regarding whether they were a holder of a contract in due course or a
      collection agency was never answered.

      I do know that there are many supreme court cases references that state
      if they can not produce the original signed contract then they are not
      the holders in due course and there is no contract to enforce.

      *** Did the debt collector allegedly purchase the contract as a
      defaulted contract? If so, I don't believe they can be a "holder in due
      course" as this has the advantage to the purchaser of receiving the
      contract free of any defects or claims by the other party, except for
      fraud in the original contract. This is why banks sell many loans as
      quickly as possible. If there are those who believe that banks sell the
      loans just to get the cash up front, then I ask those people to explain
      why those same banks purchase loans from others and have to wait for
      their money.

      *** A purchaser of a defaulted debt can be a "holder" but not a "holder
      in due course". Many times the alleged purchaser has no documentation
      showing they purchased the debt but, one of the things I have seen
      happen when a motion to dismiss has been filed is that the judge waits
      untill the purchaser can get the seller to send an affidavit of
      purchase. In one case the judge didn't rule on the motion to dismiss for
      5 months while the purchaser got the affidavit and then denied the motion.

      Through the requested input of Legal Bear, I will now switch to State
      Court and ask for a declaratory judgement as to just what are these
      people, a collection agency or a holder in due course. It will be
      interesting to see since I had request to view these documents in a
      registered letter and have never been shown any evidence that they have
      a contract that shows the sell of my contract with another firm. As
      other case references show you are only liable for what sums of money
      the new creditor had paid for your contract.

      *** If you can cite these cases where the new creditor can only collect
      what he paid for the account I would appreciate it. I have heard a
      number of people say this but have never seen any law or case cites to
      back it up and I haven't had any luck while searching for them. Somehow,
      I doubt they exist or those who are fighting the debt collectors would
      have long ago made those cases very public.

      Some where in the back of my mind is an alarm bell going off that says
      you have the right to first purchase of your contract prior to an offer
      being made to someone else. I know this is true since I had a boat burn
      down to the deck and was offered first right to salvage and buy out on
      reduce contract. I can not tell you the case sites that would tell you
      these things you will have to go out and do your research.

      Good **** and keep us posted as to your progress, I for one would be
      interested to see what unfolds.

      The case I mentioned was not mine personally, it was one I was helping
      on for some months after meeting the people involed through a group like
      this. I haven't heard anything for a long while now. I'll try to contact
      them and see what has happened.


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    • gary
      Here is the definition and conditions for being a holder in due course from the UCC. Pay special attention to section (c). This can be found at
      Message 2 of 4 , Jan 9, 2007
        Here is the definition and conditions for being a "holder in due course"
        from the UCC. Pay special attention to section (c). This can be found at
        http://www.law.cornell.edu/ucc/3/3-302.html

        Gary
        § 3-302. HOLDER IN DUE COURSE.
        a.. (a) Subject to subsection (c) and Section 3-106(d), "holder in due
        course" means the holder of an instrument if:
        a.. (1) the instrument when issued or negotiated to the holder does not
        bear such apparent evidence of forgery or alteration or is not otherwise so
        irregular or incomplete as to call into question its authenticity; and
        b.. (2) the holder took the instrument (i) for value, (ii) in good
        faith, (iii) without notice that the instrument is overdue or has been
        dishonored or that there is an uncured default with respect to payment of
        another instrument issued as part of the same series, (iv) without notice
        that the instrument contains an unauthorized signature or has been altered,
        (v) without notice of any claim to the instrument described in Section
        3-306, and (vi) without notice that any party has a defense or claim in
        recoupment described in Section 3-305(a).
        b.. (b) Notice of discharge of a party, other than discharge in an
        insolvency proceeding, is not notice of a defense under subsection (a), but
        discharge is effective against a person who became a holder in due course
        with notice of the discharge. Public filing or recording of a document does
        not of itself constitute notice of a defense, claim in recoupment, or claim
        to the instrument.
        c.. (c) Except to the extent a transferor or predecessor in interest has
        rights as a holder in due course, a person does not acquire rights of a
        holder in due course of an instrument taken (i) by legal process or by
        purchase in an execution, bankruptcy, or creditor's sale or similar
        proceeding, (ii) by purchase as part of a bulk transaction not in ordinary
        course of business of the transferor, or (iii) as the successor in interest
        to an estate or other organization.
        d.. (d) If, under Section 3-303(a)(1), the promise of performance that is
        the consideration for an instrument has been partially performed, the holder
        may assert rights as a holder in due course of the instrument only to the
        fraction of the amount payable under the instrument equal to the value of
        the partial performance divided by the value of the promised performance.
        e.. (e) If (i) the person entitled to enforce an instrument has only a
        security interest in the instrument and (ii) the person obliged to pay the
        instrument has a defense, claim in recoupment, or claim to the instrument
        that may be asserted against the person who granted the security interest,
        the person entitled to enforce the instrument may assert rights as a holder
        in due course only to an amount payable under the instrument which, at the
        time of enforcement of the instrument, does not exceed the amount of the
        unpaid obligation secured.
        f.. (f) To be effective, notice must be received at a time and in a manner
        that gives a reasonable opportunity to act on it.
        g.. (g) This section is subject to any law limiting status as a holder in
        due course in particular classes of transactions.
        ----- Original Message -----
        From: "Doug" <rudi2396@...>
        To: <tips_and_tricks@yahoogroups.com>
        Sent: Tuesday, January 09, 2007 11:53 AM
        Subject: [tips_and_tricks] Please review 'holder in due course'


        > Please review the attached document.Comments below. I was going through
        > some e mails and came across this. Was it ever answered? could someone
        > give some input ?
      • Scott
        Gary, I never did hear anything back on my email except for you currently. I have not pursued this any further. The vehicle was stolen, and recovered.
        Message 3 of 4 , Jan 11, 2007
          Gary,
          I never did hear anything back on my email except for you currently. I
          have not pursued this any further. The vehicle was stolen, and recovered.
          Improperly handled by the Police Station and Tow Truck Company so, I sued
          them in District of Adams Count Court. I lost this case due to my
          inexperience in court at the time but, it was a close one as the judge said,
          after he re-wrote all of my 27 jury instructions under COCOA (Colorado Organized Crime Control Act; state civil RICO), muddy the
          jury's minds and then confused them. The jury was out for 5 1/2 hours.
          When the judge re-wrote the jury instructions he left out the two parts of
          the CRS law that would convict the Defendants of Motor Vehicle Thief. With
          out a doubt everyone in the court was convinced that the vehicle was mine
          however, the judge told the jury they had to rule based upon the jury
          instructions not what they felt was right. It was an Eye opening experience
          since I had never been in a court battle before, however I learned a
          tremendous amount about how the procedures worked and exactly what I should
          of been doing and not doing etc. And the judge complimented me on how well
          I was prepared for trail and all the politeness and professional behavior.
          His last comments were he had district Attorneys who did not do as well as I
          had done. So butter the bum Pro Se and alter the case jury instruction and
          give it to the old boys club. It will never happen again now that I know
          what to do.

          I have a business to run and it was either file an appeal and loose my
          company or attend to my company and let the case go. When I went down to
          pick up the jury instruction books after the case ended the judges paralegal
          told me the judge wanted to know if I was going to file an appeal, and she
          told me the judge was very impressed with how I handle myself and the case.
          It was a busy 3 day court case. Started out battling with three defendant
          attorneys, two of which represented the city and police department and the
          other represented the tow truck company.

          In short the tow truck company attorney offered me the vehicle free of any
          other charges after the case except for the tow fee which I tried to pay in
          the first place. They asked for attorneys fee's and the judge told them
          flat out no. So the vehicle is gone I did not want it, it require a new
          transmission and I had already purchase two other vehicles, so I let it go.
          If the Debt collector from the Federal Case wants it let him go get it.

          Something I could use on the Fed case and take to the Denver District, that
          came out in the District case on the vehicle thief, was that the original
          lender could not be located and was presumed out of business, the state
          Secretary's office and DMV shown a lien on file with the original lenders as
          the lien holder not the supposed purchaser of the contract. To answer
          your question the loan was not in default at the time of supposed purchase
          of the contract. In fact the company I leased the vehicle to when sent a
          bill from the new supposed purchaser, had paid several monthly payments
          before I found out about the change and sent off the fair debt collections
          questionnaire, in which it was never answered.

          In short Gary the court systems are so overloaded they rubber stamp most
          cases out of Federal Court on dismissed to have to file an appeal which most
          don't, do to the cost so, it lowers the case files they have to deal with
          yearly. And then there is the corruption inside that is just a bag of
          garbage with these people. It cost a lot of money either way you go to
          fight these people. I spent enough money on the District Court case that I
          could of purchased two new vehicles, but it was fun and interesting to learn
          exactly how our court systems work in this country.

          I still have my goldwing which was a part of this loan that had been paid
          off but the lien has never been removed from the secretary of states files
          since it is in the original lenders name and they can not be found. I
          originally pulled out the loan to help build my credit which that backfired
          so, I paid cash for my new truck and lexa.

          I doubt I will proceed further with any of this since I learned what I
          originally wanted to find out and I would rather focus my attention on the
          corporations I am running, money in not money out is my motto.
          Thank you for responding to my email
          Sincerely
          Scott Williams
          Denver, Colorado
        • Michael Noonan
          Do not, for an instant, neglect to determine what is being used as evidence to enable a person to make the claim of holder in due course. For example, is a
          Message 4 of 4 , Jan 11, 2007
            Do not, for an instant, neglect to determine what is
            being used as evidence to enable a person to make the
            claim of holder in due course.

            For example, is a copy of an agreement or note being
            used as the evidence, AKA hearsay evidence, which you
            should learn how to properly rebut.

            Just like knowing how to demand the proper oath prior
            to proceeding, demand the proper evidence of substance
            over the evidence of form so often used.

            Cheers!



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