Consumer complaint received 2024-10-29
Product: Debt collection — Credit card debt
Issue: Communication tactics — You told them to stop contacting you, but they keep trying
Company: ENCORE CAPITAL GROUP INC. (GA)

{ Expressed date XX/XX/XXXX } This is a notice to follow up with my previous request for proof of the Bill of Sale and Assignment and whether MCM purchased the assignment for principal and legal purpose of bringing suit upon it. 

In order to obtain summary judgment a " drastic remedy '' the moving party " must first make a showing of entitlement to judgment as a matter of law, ... tendering evidentiary proof in admissible form. '' XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX Conclusory affidavits, or affidavits from persons who lack personal knowledge of the facts, will not suffice. XXXX XXXX, XXXX XXXX XXXX, XXXX. If the movant relies upon documentary evidence, in the form of business records, an evidentiary foundation for their consideration must be provided. XXXX XXXX, XXXX XXXX XXXX, XXXX. Mere submission of documents without authentication is inadequate. XXXX XXXX, XXXX XXXX XXXX, XXXX. 

In cases involving assigned debt claims, the movant faces several additional and particular burdens. Since an assignee stands in the shoes of the original creditor, the assignee must meet the same evidentiary standards as an original creditor. These include " an affidavit sufficient to tender to the Court the original agreement, as well as any revision thereto, and the affidavit must aver that the documents were mailed to the cardholder. '' XXXXXXXX XXXX XXXX XXXXXXXX. " The same affidavit typically advances copies of credit card statements which serve to evidence a buyer 's subsequent use of the credit card and acceptance of its terms. '' Id. If plaintiff 's lawsuit includes an " account stated '' claim, the plaintiff must " demonstrate mailing of the account '' or provide other proof of its receipt. Id. 
Employees and agents of the assignee typically can not provide such proof through their own affidavits since they lack personal knowledge of the assignor 's business and record-keeping practices. See XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX. Before an original creditor 's documents can be considered as proof " in admissible form, '' the documents must be properly authenticated by a knowledgeable individual. XXXX XXXX, XXXX XXXX XXXX, XXXX. 

Assigned debt claimants must submit satisfactory proof, in proper evidentiary form, to establish their rights as an assignee and the defendant 's lawful indebtedness to it under the law of assignment. " It is the assignee 's burden to prove the assignment. '' XXXX XXXX XXXX, XXXX. It must further prove that the defendant 's particular account was included in the assignment. Id. If plaintiff 's evidence respecting a particular account is contained in an electronic spreadsheet, any reproductions must satisfy applicable business record foundational requirements. See XXXX XXXX, XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX ( XXXX XXXX XXXX ). 
The plaintiff must also prove that the defendant was given notice of the assignment, including proof in evidentiary form of " the date defendant was notified of the assignment. '' See XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX  XXXX XXXX Absent such proof, the debtor can not be charged with breaching " a duty to pay the debt to the creditor 's assignee. '' XXXX XXXX XXXX XXXX XXXX, XXXX, quoting XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX ( XXXX ). 

XXXX 's failure to satisfy each of the foregoing requirements requires denial of its motion. See XXXX XXXX, XXXX XXXX XXXX, XXXX. 

Furthermore, MCM stated in their previous response on XX/XX/XXXX, Consumers are sometimes unclear as to what the term charge off means for a debt. You provided your information to the original creditor. When a creditor " charges off '' an account, it means that the creditor no longer believes the consumer will pay the bill and has written the debt off of its books. Often, they then sell the debt. Please note that the underlying promissory obligation remains valid, due, and owing. 

But the significance of the " Charge off '' is not explained. In some circumstances, a " charge off '' may trigger an obligation to issue an IRS form 1099-C to the debtor, which is treatable as income. Absent clarification of the " charge off, '' the bank 's ability to " assign '' the " charged off '' debt is open to question. XXXX, XXXX. XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX, decision dated XX/XX/XXXX ( XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX, XXXX XXXX XXXX ( XXXX XXXX XXXX XXXX XXXXXXXX ), quoting In re XXXX, XXXX XXXX XXXX, XXXX ( XXXX XXXX XXXXXXXX XXXX ) [ " The actual ( or at least potential ) tax consequences of the form make it inequitable to allow the [ creditor ] to enforce its claims against the debtors. '' ] I XXXX XXXX, consumer has not received a form 1099-c I must remind MCM acts or omissions by repeated telephone calls has caused me a massive amount of harm, fear, and anger, by calling in inconvenient times, times of prayer, and also times Im at work causing me to have to leave my work area to answer your calls to tell MCM to stop calling, causing me to get fired!, also having to use {$15.00} ( USD ), to change my number in fear MCM will continue unlawful conduct to collect a debt, these acts is a violation of TCPA and Violation of Georgia code XXXX Furthermore, the pre-legal notification sent to me, violate the Fair Debt Collection Practices Act ( FDCPA ), particularly 15 U.S.C. 1692e ( 5 ). Your notice, which demands payment and threatens to transfer my account to a lawyer for review and possible legal action, is a misleading and deceptive representation. I have taken this notice as a direct threat, causing me undue stress and emotional distress, making it hard for me to sleep and think. 

According to the ruling in *XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX the FDCPA does not define what constitutes a " threat. '' However, XXXX XXXX XXXX defines a " threat '' as a communicated intent to inflict harm or loss. Additionally, the Federal Trade Commission ( FTC ) and federal courts have consistently held that falsely representing that unpaid debts would be referred to a lawyer for immediate legal action is a deceptive practice ( *XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX ). A reasonable jury could easily find your use of these threats to recommend legal action to be a violation of 15 U.S.C. 1692e ( 5 ). The FDCPA, 15 U.S.C. 1692-1692p, establishes a general prohibition against the use of false, deceptive, or misleading representations or means in connection with the collection of any debt. 

I demand Equitable relief in amount {$1000.00} pursuant to 15 U.S.C. 1692XXXX for MCM violations of the FDCPA 15 U.S.C. 1692e ( 5 ). 

I demand equitable relief in amount {$1000.00} pursuant to and violation of Telephone Consumer Protection act ( TCPA ) and Georgia Code XXXX I demand a response with equatable relief within XXXX business days, failure to comply with the provided information I shall take these factual allegations to federal court Thank you.