Credit Card Collections Suit - Does Alleged Assignee Have The Right To Sue?

[Bosco]

An "assignment" is the transfer of contractual rights to another. If a debt is said to be "sold", what they are selling is the right to collect the debt. Aka, assignment.

You know, after a handful of years of dealing with credit matters and a year of Business Law classes under my belt, I got a pretty good idea of what the difference between an assignment and sale, so thanks. Just an FYI, the "ownership" part is what matters. An assignment transfers rights, not ownership. A sale transfers both.

That said, I'll wait to see if this OP comes back and re-visits the thread.

 

[tranquility]

You know, after a handful of years of dealing with credit matters and a year of Business Law classes under my belt, I got a pretty good idea of what the difference between an assignment and sale, so thanks. Just an FYI, the "ownership" part is what matters. An assignment transfers rights, not ownership. A sale transfers both.

That said, I'll wait to see if this OP comes back and re-visits the thread.

Um, no. Maybe you should take another year of "business law". Or, maybe a year of property law and a year of contract law would be better. At least you won't say such silly things. In property law you'll find that the concept of "ownership" is more fluid than you might think. The usual model is a bundle of sticks where each stick is a right. Ownership involves holding the stick you want for the purpose you desire. In contracts, you will find that if I am assigned a right, it is mine. Now, we may, depending on our purposes, distinguish between an assignment and a sale. But, in terms of a contract as here, there is no definitional difference. Now, if our contract for assignment says I can get it back in a year, that would be different from a "sale". But if the assignment was forever, it could also be called a sale.

Just FYI.

Info edit:
Of course, some may say that in an assignment for collection there remains an "ownership" in the hands of the assignor. But, that would be a situation where the assignor merely gave up the right to another for collection activity and not the right to collect. (As the assignor expects to be paid eventually on collection.) But, the fact remains that all assignments may not be a sale, but all sales are an assignment.

 

[Bosco]

Um, no. Maybe you should take another year of "business law". Or, maybe a year of property law and a year of contract law would be better. At least you won't say such silly things. In property law you'll find that the concept of "ownership" is more fluid than you might think. The usual model is a bundle of sticks where each stick is a right. Ownership involves holding the stick you want for the purpose you desire. In contracts, you will find that if I am assigned a right, it is mine. Now, we may, depending on our purposes, distinguish between an assignment and a sale. But, in terms of a contract as here, there is no definitional difference. Now, if our contract for assignment says I can get it back in a year, that would be different from a "sale". But if the assignment was forever, it could also be called a sale.

Just FYI.

Property law is a completely different animal. You have to deal with fun things like easements and the like there.

That said, I'll cede the greater point on the ambiguity and technicality of the words. You're correct on that bolded part.

Even keeping that in mind, I'd still go for the countersuit. Even if it's weak and based on a technicality, the defendant would have the "least sophisticated consumer" principle and strict liability on their side. You still get the benefits I alluded to in my previous post, none of which require a win except for the part about taking a chunk out of the amount owed. That's just my opinion, however. The defendant is free to do what they wish.

You could also look at it from another perspective. The way CACH is wording their complaint makes it appear they are a direct assignee of WaMu, when they are actually a direct assignee of whichever creditor/JDB they purchased it from. I'd attack the chain of ownership too.

 

[Zigner]

You could also look at it from another perspective. The way CACH is wording their complaint makes it appear they are a direct assignee of WaMu, when they are actually a direct assignee of whichever creditor/JDB they purchased it from. I'd attack the chain of ownership too.

You sound like you might be getting it, then you fall back to this hogwash

 

[Bosco]

You sound like you might be getting it, then you fall back to this hogwash

Tell that to the many creditors (especially those dealing in mortgages) who have lost lawsuits because of chain of ownership issues.

 

[tranquility]

Property law is a completely different animal. You have to deal with fun things like easements and the like there.

That said, I'll cede the greater point on the ambiguity and technicality of the words. You're correct on that bolded part.

Even keeping that in mind, I'd still go for the countersuit. Even if it's weak and based on a technicality, the defendant would have the "least sophisticated consumer" principle and strict liability on their side. You still get the benefits I alluded to in my previous post, none of which require a win except for the part about taking a chunk out of the amount owed. That's just my opinion, however. The defendant is free to do what they wish.

You could also look at it from another perspective. The way CACH is wording their complaint makes it appear they are a direct assignee of WaMu, when they are actually a direct assignee of whichever creditor/JDB they purchased it from. I'd attack the chain of ownership too.

I had no problem or much knowledge about what you wrote beyond the legal concept mentioned as a premise to your argument. I corrected it. You tried to defend the error. As to the rest, I'll leave it to others. "Property law" is about property. Yes, there is a lot of real property issues involved. But, property is stuff, well, things, or, a, rights we can own or exercise; unless, on the other hand, maybe it could be.....all I'm really sure about is it has something to do with a handful of dirt.

 

[Bosco]

Also, looks like the SOL is expired after all.

A book account does not remain open indefinitely so that any payment towards the debt necessarily becomes an "entry" for purposes of the applicable limitations period. Instead, a book account like any open account becomes closed once the account creditor ceases to extend credit and there will be no further activity on the account other than the payments by a creditor towards the settled debt. (4) "While an `open' book account has been defined as `"[a]n account with one or more items unsettled,"' it also includes `"an account with dealings still continuing."' (Mercantile Trust Co. v. Doe (1914) 26 Cal. App. 246, 253 [146 P. 692].) By contrast, a `closed' account is, according to Black's Law Dictionary, one `to which no further additions can be made on either side....' Thus, it is clear that the `open' or `closed' nature of a book account turns not on the account balance per se, but on the parties' expectations of possible future transactions between them [on that account]." (Gross v. Recabaren (1988) 206 Cal. App.3d 771, 778 [253 Cal. Rptr. 820].)

http://whychat.5u.com/States/state-ca.html

 

[tranquility]

Also, looks like the SOL is expired after all.



http://whychat.5u.com/States/state-ca.html

The case cited where the quote was pulled (Gross v. Recabaren (1988) 206 Cal. App.3d 771) did not have to do with the SOL, but if a prior contract covered later services. There was an arbitration provision in a contract for services. (Surgery.) The surgeon removed some skin and was to be done. Later the patient came back for another surgery and then later another. There was an allegation of malpractice. Did there need to be arbitration?

Yes. (Which, while having nothing to do with the SOL, does seem the opposite result of what you are trying to claim.)

Always read the case. Never just use the summary--no matter who made it.

 

[Bosco]

The case cited where the quote was pulled (Gross v. Recabaren (1988) 206 Cal. App.3d 771) did not have to do with the SOL, but if a prior contract covered later services. There was an arbitration provision in a contract for services. (Surgery.) The surgeon removed some skin and was to be done. Later the patient came back for another surgery and then later another. There was an allegation of malpractice. Did there need to be arbitration?

Yes. (Which, while having nothing to do with the SOL, does seem the opposite result of what you are trying to claim.)

Always read the case. Never just use the summary--no matter who made it.

The quote is not from the Gross case. It is from RNC, Inc. v. Tsegeletos, which cites Gross.

Read the case

 

[tranquility]

The quote is not from the Gross case. It is from RNC, Inc. v. Tsegeletos, which cites Gross.

Read the case

When you quote from a case, it's good form to cite it. The majority of the portion you quoted was from the case listed. I think I understand why others may have had a problem with you. You don't like being wrong and rely on half-arguments to prove up what you think true. In this new case, you need to read it more carefully as it does not stand for the proposition you make it out to. There is a contact as a surety there as well. In this separate contract the additional payments did not toll the statute on the contract to guarantee payment. That deal was done and the creditor had 4 years to sue. However, with the debtor, payments and attempts to pay were made. On that, the court (in dicta as it was not the holding) said:

The actions at issue arose out of the failure of Skip Sports to pay its account with RNC. Any action against Skip Sports, therefore, was governed by Code of Civil Procedure section 337, providing that such action must be brought within four years. [2] It is settled that "the liability of a surety (in the absence of a different contractual provision) accrues at the same time as that of the principal, or upon default of the principal." (Bloom v. Bender (1957) 48 Cal. 2d 793, 799 [313 P.2d 568].)fn. 2 It is further settled that "a payment by a principal debtor will not operate to toll the statute of limitations as to a guarantor." (Purdy v. Maree (1939) 31 Cal. App. 2d 125, 127 [87 P.2d 390].)

[1b] The instant controversy arises from the different interpretations given by the parties to the relationship between RNC and Skip Sports after December 1980. The guarantors argue that Skip Sports defaulted on its debt no later than December 1980. From this it follows that the cause of action accrued against Skip Sports, and the guarantors, as of December 1980, and that the later payments by Skip Sports could have done no more than toll the statute of limitations as to the principal debtor. It follows that RNC was required to file its action against the guarantors no later than December 1984.

Info edit:
I think I'll finish here and let others argue things I am not fluent in. One thing I might mention is that my credit cards have choice of law provisions. I wonder if the OPs did?

 

[Bosco]

When you quote from a case, it's good form to cite it.

I quoted from the webpage where the citation was taken, along with other relevant information. I figured that would be sufficient. My apologies for your confusion.

The majority of the portion you quoted was from the case listed. I think I understand why others may have had a problem with you. You don't like being wrong and rely on half-arguments to prove up what you think true. In this new case, you need to read it more carefully as it does not stand for the proposition you make it out to. There is a contact as a surety there as well. In this separate contract the additional payments did not toll the statute on the contract to guarantee payment. That deal was done and the creditor had 4 years to sue. However, with the debtor, payments and attempts to pay were made. On that, the court (in dicta as it was not the holding) said:

None of that is relevant as far as I can see. The SOL in CA is either 2 or 4 years, and §337(3) is for "a mutual, open and current account." That, obviously, eliminates charged off accounts, and it's the only one that contains the "last item" provision.

Even the Court's webpage says as much.

Personal injury: Two years from the injury. If the injury was not discovered right away, then it is 1 year from the date the injury was discovered.
Breach of a written contract: Four years from the date the contract was broken.
Breach of an oral contract: Two years from the date the contract was broken.
Property damage: Three years from the date the damage occurred.
Claims against government agencies: You must file a claim with the agency within 6 months (for some cases, 1 year) of the incident. If the claim is denied, you can then file your lawsuit in court and the regular statute of limitations applies.

http://www.courts.ca.gov/9618.htm

The RNC case is just confirmation that payments do not restart the SOL on a charged off account.

Info edit:
I think I'll finish here and let others argue things I am not fluent in. One thing I might mention is that my credit cards have choice of law provisions. I wonder if the OPs did?

It's possible, but they'd have to produce the agreement. Even then, California's borrowing statute, as I am understanding it, permits the court to apply CA law even in the presence of a choice of law agreement.