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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33911
Experience:  Began practicing law in 1992
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Customer Question

Submitted: 2 years ago.
Category: Legal
Expert:  Dwayne B. replied 2 years ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

No, there are capacities in which they can sue other than just owning the debt. As an example, their contract with the lender may require/allow them to act as an agenct of the lender and bring the lawsuit.

What you probably want to do is do discovery and determine in what capacity they are bringing the lawsuit. There are also a couple of inexpensive ebooks that you may find helpful:

Please note, these books are not just collections of forms, they teach you the basics behind the law as well as the concepts. That is much more helpful than just a form.

Customer: replied 2 years ago.
I have reason to believe (through the amounts they are seeking that they are trying to sue for both loans at the same time; i.e. I took out a loan with NCT (while attending NAU) and a second loan with JP Morgan (while attending Gateway Community). The sum total for both loans is reflecting what they are asking for in their Compliant, but the loans while view separately show very different amounts. Are they legally able to sue for two different loans and have my wages Garnished for both even though they are suing for only one lender? How do I know that if they get their judgement they won't come back later and claim a second judgment for the other loan?
Expert:  Dwayne B. replied 2 years ago.

It is possible for them to sue for the two separate loans and combine them in their request for one judgment. However, it should be clear in the pleadings they filed that it is two separate loans they are suing for as well as the appropriate information on each since that will affect pre-judgment interest, etc. You can file what is known as a special exception to their pleading and ask them to be more specific and, in addition, you can use the discovery process to tie them down on the specifics.

Customer: replied 2 years ago.
Thank you and I have one last question. Can I file a Motion to Dismiss with Prejudice if I prove they are being dishonest in their collection of two debts at once. The Fair Debt Collections Act says that Lawers and Banks are not held under the same law per se but they do have to comply with the honest and fair part of the law according to my research
Customer: replied 2 years ago.
I believe it may be helpful for me to speak with you over the phone if you think I can actually file a Motion to Dismiss
Expert:  Dwayne B. replied 2 years ago.

You can file it but that really isn't grounds for dismissal. The FDCPA allows for monetary damages but really isn't the basis for an outright dismissal of the Plaintiff's cause of action. Also, if you are not in federal court then as soon as you mention the FDCPA the other side is likely going to remove your case to federal court.

I'm sorry, I don't do telephone calls.

Expert:  Dwayne B. replied 2 years ago.

But, as I said, you can file a Motion to Dismiss but it is really wasted effort at this point.

Expert:  Dwayne B. replied 2 years ago.

You would be better to do your discovery and if it turns out they can't prove they have any authority on which to bring the lawsuit then you can move to dismiss on a lack of standing basis or you can file a Motion for Summary Judgment. The book I recommended above points out several mistakes the debt collectors often make and that you can take advantage of.

Customer: replied 2 years ago.
Ok thanks for your time; so in your opinion am I going to end up being force to pay even if I can prove that they Plaintiff is not being honest with regards ***** ***** complaint? it seems they are showing a lack of standing in their knowledge of my loan and I have reason to believe (even if they are collecting for the Plaintiff that they can come back later and sue me for a second time filing under the loan they actually did establish with me while going to NAU)
Customer: replied 2 years ago.
You have been VERY helpful! thank you!
Expert:  Dwayne B. replied 2 years ago.

If they can prove (or you fail to disprove) they have a right to collect and you actually owe the money then at some point they will likely get a judgment against you. However, most third party collection agencies can't prove 1) they have the right to collect, 2) that you owe the debt, or 3) the correct amount of the debt. They must prove all of these and you can poke hols in their case by using discovery.

Customer: replied 2 years ago.
What you are telling me is very helpful; do you have legal codes or statutes I can reference for the court to see I know what I am talking about? will the ebooks you recommend give those codes?
Expert:  Dwayne B. replied 2 years ago.

However, most people lose their cases because they don't really understand what they are doing and they read things on the internet that are not correct. There are a lot of websites that encourage you to try all these "tricks" that are "guaranteed" to make the other side dismiss their case because it will become too much trouble for them to handle but those sites are just BS. If you do things the correct way, using the law as it is meant to be used, then you have a decent chance of beating them because they don't have the documentation to prove their case.

The only books I recommend are the ones from the website I gave you above and the ones from NOLO Press. NOLO's books are good, they just put too much useless information in there that you have to weed through to get to the good stuff. The other website offers a streamlined process without a lot of extra material so it's easier to find the point they are trying to make.

Expert:  Dwayne B. replied 2 years ago.

There are so many codes, statutes and case law that could apply that it's impossible to prove them. Those books tell you how to find what you want. Understanding why you are doing something and how the law works greatly improves your chances as opposed to just getting a form or a statute.

Customer: replied 2 years ago.
Ok thanks for your time; this has really helped!
Expert:  Dwayne B. replied 2 years ago.

You're very welcome.

Best wishes to you and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I receive credit for my work.