Consumer complaint received 2021-02-06
Company: Bernhardt and Strawser, P.A.
State: NC
Product: Debt collection
Sub-product: Auto debt
Issue: Written notification about debt
Sub-issue: Notification didn't disclose it was an attempt to collect a debt

Complaint:
Pursuant to N.C. Uniform Commercial Code 25-1-304 every contract implies good faith and fair dealing between the parties to it. This implied covenant provides " that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. In the debt collection context, breach of the covenant of good faith & fair dealing may be applied to the actions of the original creditor or the debt collector. In regards to the original creditor 's actions, it may be applied where the facts indicate the creditor acted in an unfair, misleading, sneaky, or extremely advantageous manner. 

I XXXX XXXX have attached to this complaint a affidavit and exhibits of witnessed XXXX XXXX XXXX XXXX and debt collectors Bernheardt and Strawser, PA and XXXX XXXX XXXX violations of Federal and State law with Unconscionable, Unfair, and Deceptive Debt Collection Practices with Unfair and Deceptive Trade Practices as Debt servicer posting as Original Creditor for convenience of debt collection activities. Title 15 USC Chapter 41 1641 ( g ) Notice of new creditor ( 1 ) In general In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including ( A ) the identity, address, telephone number of the new creditor ; ( B ) the date of transfer ; ( C ) how to reach an agent or party having authority to act on behalf of the new creditor ; ( D ) the location of the place where transfer of interest in the debt is recorded ; and ( E ) any other relevant information regarding the new creditor. I never received a notice of New Creditor changing from the listed creditor on the Installment Contract if XXXX is not a debt servicer and debt collection agency. 


Under the Consumer Credit Protection Act Title 15 USC Chapter 41 1641 ( f ) any treatment of the SERVICER of the XXXX XXXX XXXX Intangible Obligation as an OWNER of the XXXX XXXX XXXX Intangible Obligation would be in violation of Federal Statute. As this assignment to XXXX XXXX XXXX, XXXX, a Michigan Limited Liability Company would be in violation of Federal Statute if XXXX was not the OWNER of the XXXX XXXX XXXX Intangible Obligation, XXXXs  claim of rights to the XXXX XXXX XXXX Intangible Obligation is either a fraudulent claim or XXXX  actions under the claim of ownership are in violation of Federal Law. 
15 USC Chapter 41 1641 ( f ) Treatment of servicer ( 1 ) In general A servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as an assignee of such obligation for purposes of this section unless the servicer is or was the owner of the obligation. ( 2 ) Servicer not treated as owner on basis of assignment for administrative convenience ; A servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as the owner of the obligation for purposes of this section on the basis of an assignment of the obligation from the creditor or another assignee to the servicer solely for the administrative convenience of the servicer in servicing the obligation. Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation. 
North Carolina Law provides the following regarding securitized assets acquired by True sale assignment without recourse without disclosure to the consumer as maker or investor ; N.C.G.S. 53-426. Waiver of equity of redemption. ( a ) Notwithstanding any other provision of law, except to the extent otherwise set forth in the transaction documents relating to a securitization, all of the following apply : ( 1 ) Any property, assets, or rights purported to be transferred, in whole or in part, in a securitization or in connection with a securitization are considered no longer the property, assets, or rights of the transferor, to the extent purported to be transferred. Under UCC Article 9 accounting record requests have failed, no proof of possession has been provided. No proof of non e-signed note has been provided given the note can not be negotiated electronically by law. No response to Rule 36 Request for Admissions, no signed affidavit regarding XXXX scouting for the has been returned, and my Affidavit has been unrebutted. There is no issue regarding the material facts, yet despite terminating security interest un TILA, Dodd Frank, and Regulation Z due to fraudulent concealment and inducement XXXX and agents file a frivolous action XXXX county. 
No 1692 ( g ) validation has been provided and collection has not ceased. 
15 U.S. Code 1692e with several false and misleading representations as owner, not debt servicer, not debt collector despite registration, false representation as holder in due course by possession or control, false representation of character and amount after security termination with fraud tolled TILA rescission, use of false representation or deceptive means to collect or attempt to collect the alleged debt, XXXX XXXX did disclose in initial communication with consumer this is an attempt to collect a debt. 
15 U.S. Code 1692f affidavit and exhibits contains several unfair practices and unconscionable means to collect after terminating security interest.

15 U.S. Code 1692j TDAF is not the true party of interest as documents allude and many exhibits attached show deceptive forms. 

No UCC 9-210 accounting requests have been provided for compliance. 
Promissory Note ( Intangible eNote / Intangible Payment Obligation ) = An electronic transferrable record ( created during securitization ) and signed in accordance with ESIGN Act that commits the maker ( Account Debtor or Intangible Obligor ) to pay a specified sum on demand in accordance with a contract NOT governed by UCC Article 3 to an Intangible Obligee. Transferrable records are governed by UCC Article 8 and the Security Interests securing transferrable records are governed by UCC Article 9.

Security Interest ( Intangible to UCC Article 8 eNote ) = Intangible Obligations ( created during securitization by an Account Debtor ) are routinely swapped for another Intangible Obligation ( Certificates ), and as being a Transferable Record such transaction would fall under governance of UCC 8. For this Certificate Intangible to be secured by an Intangible Account Debtor 's Personal Property, the negotiation of the Intangible Obligation must be in compliance with UCC 8 as it applies to Transferable Records. As to the Personal Property securing the Transferable Record, UCC 9 would provide governing law.

The purpose of the Retail Installment Contract document is to simply memorialize the purported sale of the XXXX XXXX XXXX Tangible Promissory Note and the acquiring of rights ; it does not cause the sale nor the acquiring of rights. The sale is to be done in accordance with statutory requirement of law N.C.G.S. UCC 25-7-501, which has not happened. The acquiring of rights is to be done in accordance with statutory requirement of law N.C.G.S. UCC 25-3-203, which has not happened.

N.C.G.S. UCC 25-7-501. Form of negotiation and requirements of due negotiation ( A ) The following rules apply to a negotiable tangible document of title : ( 1 ) If the document 's original terms run to the order of a named person, the document is negotiated by the named person 's indorsement and delivery ( emphasis added ) N.C.G.S. UCC 25-3-203 ( D ). Transfer of instrument ; rights acquired by transfer ( D ) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur, the transferee of that instrument obtains no rights under this chapter, and the transferee of that instrument has only the rights of a partial assignee. 
N.C.G.S. 25-9-102. Definitions and index of definitions - UCC 9-102 ( A ) As used in this chapter, unless the context requires otherwise : ( 3 ) " Account debtor '' means a person who is obligated on an account, chattel paper, or general intangible. " Account debtor '' does not include a person who is obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper. ( emphasis added ) The FTC Act and Dodd-Frank generally prohibit deceptive and unfair practices, and both the FTC and CFPB have used this umbrella to punish creditors for unfair and deceptive debt collection issues even where they were not covered by the FDCPA. The FTC Acts general prohibition in absence of FDCPA coverage stating that even if the FDCPA doesnt apply, your collection activities are still covered by Section 5 of the FTC Acts general prohibition against deceptive or unfair practices. [ T ] he FTC has taken action under Section 5 when first-party creditors engage in other practices expressly prohibited by the FDCPA. In 2013, the Bureau issued Compliance Bulletin 2013-07, which clearly laid out its position : [ a ] lthough the FDCPA definition of debt collector does not include some persons who collect consumer debt, all covered persons and service providers must refrain from committing UDAAPs in violation of the Dodd-Frank Act. The North Carolina Fair Debt Collection Practices Act applies to any debt, including those claiming to be collecting their own debt.

Company public response: Company believes the complaint is the result of a misunderstanding
Company response to consumer: Closed with explanation