Failure To File Proper Paperwork A Stumbling Block For Plaintiffs In Credit Card Suits As Well As Mortgage Foreclosures
In Erie, Pennsylvania, the Erie Times News recently ran a story on how some individual consumers are fighting back against large finance companies in debt lawsuits:
- [A] recent ruling in Erie County Court, as well as rulings in U.S. Bankruptcy Court in Erie and in Pittsburgh, show how judges are forcing credit-card companies, banks and mortgage companies to play by the rules, even as those corporations are desperate to collect on debts in these desperate times.
- The fine print -- all those regulations enumerated in tiny words in credit-card contracts and mortgages -- apply not only to you, the consumer. The banks and credit-card companies must follow them too. And, with the help of vigilant judges, "they are starting to," said Erie lawyer Lori R. Miller.
***
- Erie County Judge Shad Connelly, citing Pennsylvania law, agreed with Miller and threw out a suit over a claimed debt of $21,305, including more than $3,000 in interest, on a Bank One credit card. Connelly said the plaintiff, a debt-collection company called Unifund CCR Partners, failed to file the proper paperwork(1) and filed an amended version of its suit too late.(2)
For more, including how two bankruptcy judges in Erie and Pittsburgh are holding lenders feet to the fire in home foreclosure actions, see In some area debt cases, small print has yielded big help.
(1) Among the documents lacking, Connelly said, were a complete list of the dates and merchants for the disputed charges; the contract or credit agreement that Anderson would have received with the disputed credit card; and the appropriate documentation showing how Unifund purchased Anderson's claimed debt from another company, First USA Platinum.
(2) Reportedly, Judge Connelly gave Unifund a chance to file a corrected suit, though attorney Anderson could argue that any new civil action violates the four-year statute of limitations in her case.
2 comments:
Asta Funding (Palisades Collecctions) agreement with subserver Unifund:
SCHEDULE 1
SERVICING FEE SCHEDULE
Servicing Fees relating to Receivables (a) with respect to which the Servicer has not engaged a Subservicer or (b) under the W&A Subservicing Agreement:
CLASS OF RECEIVABLE
PERCENTAGE
Receivables directly being serviced by the Servicer or a Subservicer; provided, for the purposes of clarification, that any Receivable subserviced by a vendor under a Subservicing Agreement, will not be deemed to be directly serviced by the Servicer or a Subservicer
24
%
All Bankrupt Receivables
50
%
All Receivables outside of the related statute of limitations
50
%
All other Receivables
30
%
Notwithstanding the foregoing, the Servicer will undertake reasonable best efforts to reduce the fee paid to the Subservicer under the W&A Subservicing Agreement by 4%, to the extent W&A utilizes information obtained by the Servicer in connection with the Unifund Servicing Agreement, and, in connection therewith, reduce the corresponding Servicing Fee by such amount.
Servicing Fees relating to Receivables under the Unifund Subservicing Agreement:
•
35% of gross collections (as defined in the master servicing agreement, dated as of March 28, 2008, between the Servicer and Unifund CCR Partners)
•
plus $275,000 per month through May 2009, inclusive
•
plus 3% of gross cash receipts (as defined in the management agreement), dated as of March 28, 2008, between the Servicer and Unifund CCR Partners) for the first $500,000,000 of gross cash receipts on all Receivables under this Servicing Agreement
•
plus 7% of gross cash receipts (as defined in the management agreement), dated as of March 28, 2008, between the Servicer and Unifund CCR Partners) thereafter on all Receivables under this Servicing Agreement
Servicing Fees relating to Receivables under the Allied Subservicing Agreement, the FMS Subservicing Agreement, the FMS Inc. Subservicing Agreement, the Penncro Subservicing Agreement, the Active Subservicing Agreement, the Constar Subservicing Agreement, the AC Subservicing Agreement and the Plaza Subservicing Agreement:
•
50% of gross cash receipts
Servicing Fees relating to Receivables under the TRAKAmerica Subservicing Agreement:
•
For Receivables identified as “recalls”: 32% of gross cash receipts or
•
For Receivables identified as “Telecom accounts”: 30% of gross cash receipts for a six-month trial period or
•
For all other Receivables, 30% of gross cash receipts plus
•
For all Receivables (a) for which a judgment has been rendered within the preceding three years or (b) for which suit had been filed in the preceding twelve months that is in post judgment enforcement, in each case to the extent such Receivable has been closed or recalled from the Subservicer for reasons unrelated to the Subservicer’s breach of or failure to perform under the Subservicing Agreement before payments or promises for payments have been made, a 5% non-contingent fee payable upon such closing or recall
Gross cash receipts for each Receivable means, for each Subservicing Agreement other than the W&A Subservicing Agreement and the Unifund Servicing Agreement, gross collections on such Receivable net, in the case of the TRAKAmerica Subservicing Agreement, court costs.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.1 Servicer to Act as Servicer of Receivables. The Servicer shall service, manage and administer the Receivables on behalf of the Borrower and the Collateral Agent (for the benefit of the Secured Parties) and shall have full power and authority, acting alone and/or through Subservicers as provided in Section 4.01 , to do any and all things that it may deem reasonably necessary or desirable in connection with such servicing and administration and that do not violate any of the material terms of this Servicing Agreement or the Accepted Servicing Practices. Consistent with the terms of this Servicing Agreement and the Accepted Servicing Practices, the Servicer may waive, modify or vary any term of any Receivable or consent to the postponement of strict compliance with any such term or in any manner, grant indulgence to any Obligor under a Receivable if, in the Servicer’s reasonable determination, such waiver, modification, postponement or indulgence is not adverse to the interests of the Borrower, the Collateral Agent or any of the Secured Parties. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Borrower is hereby authorized and empowered by the Borrower when the Servicer believes it appropriate in its best judgment to execute and deliver, on behalf of the Borrower, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Receivables.
The Servicer shall service, manage and administer the Receivables in accordance with applicable law, including the Fair Debt Collection Practices Act of 1968, as amended, and comparable state statutes, and by employing such procedures (including collection procedures) and degree of care, in each case as are customarily employed by the Servicer in servicing, managing and administering contracts owned or serviced by the Servicer comparable to the Receivables. The Servicer shall take all actions that are necessary or desirable to maintain continuous perfection of security interests granted by the Obligors in any collateral securing the Receivables, including, but not limited to, recording, registering, giving notice, obtaining consents, filing, re-recording, re-registering and refiling security agreements, financing
statements, continuation statements, notices, recordings or communications with court or other instruments as are necessary to maintain the security interest granted by the Obligors under the respective Receivables or as are required to perfect any Transfer of the Receivable Assets. The Servicer shall comply at all times in all material respects with the Accepted Servicing Practices and shall not take any action to impair the Collateral Agent’s security interest in any Receivable or related collateral, if any, except to the extent allowed under this Servicing Agreement, consistent with Accepted Servicing Practices or required by law.
The Servicer shall, at its expense, make, procure, execute and deliver such financing statement or statements, or amendments thereof or supplements thereto, or other instruments, certificates and supplemental writings, and do and deliver all acts, things, writings and assurances as necessary in order to comply with the UCC, or any other applicable law, to preserve and protect the security interest granted under the Transaction Documents and the priority of such security interest.
The Servicer may perform any of its duties pursuant to this Servicing Agreement, including those delegated to it pursuant to this Servicing Agreement, through Subservicers appointed by the Servicer, including Affiliates of the Servicer; provided , that, in each such delegation to a Subservicer: (i) such Subservicing Agreement shall be entered into in accordance with Section 4.01 ; and (ii) the Administrator, the Lender and the Collateral Agent shall have the right to look solely to the Servicer for performance. Notwithstanding any such delegation of a duty, the Servicer shall remain obligated and liable for the performance of such duty as if the Servicer were performing such duty. No later than June 30, 2008, each Subservicer shall agree in writing, to the extent not provided for in a Subservicing Agreement, to the following terms, in form reasonably acceptable to the Administrator: (i) following the termination of the servicing by the Servicer hereunder, the Collateral Agent may, at its option, (y) become, or appoint, an assignee under such Subservicing Agreement or (z) after no more than thirty (30) days prior written notice to the Subservicer, terminate the Subservicer under the related Subservicing Agreement (other than under the W&A Subservicing Agreement, except in connection with a Subservicer Termination Event (as defined therein), or under the Unifund Subservicing Agreement, except in connection with a Servicer Event of Default (as defined therein)) with respect to the Receivables other than Exempted Receivables, (ii) the Subservicer shall deposit all Collections received by such Subservicer directly into the Collection Account or an account designated in writing by the Administrator to the Servicer and the Subservicer, and the Subservicer will not, without the prior written consent of the Administrator, follow the instructions of the Servicer with respect to the depositing of Collections, (iii) the Subservicer will, upon the request of the Collateral Agent, deliver to the Collateral Agent information with respect to the Receivables as reasonably requested and (iv) the Subservicer shall agree to provide the Administrator with the same audit and inspection rights provided to the Servicer and its lenders under the related Subservicing Agreement.
The Servicer may take such actions as are necessary to discharge its duties as the Servicer in accordance with this Servicing Agreement, including the power to execute and deliver on behalf of the Borrower such instruments and documents as may be customary, necessary or desirable in connection with the performance of the Servicer’s duties under this Servicing Agreement (including consents, waivers and discharges relating to the Receivables and related collateral, if any, and such instruments or documents as may be necessary to effect liquidation of
ARTICLE IV
SUBSERVICERS
Section 4.1 Subservicing Agreements Between Servicer and the Subservicers. The Servicer, with the prior written consent of the Administrator (if such Subservicing Agreement is with a Subservicer other than each Subservicer listed on Schedule 2 hereto, as amended or supplemented from time to time with the prior written consent of the Administrator), may enter into Subservicing Agreements with one or more Subservicers for the servicing and administration of some or all of the Receivables. References in this Servicing Agreement to actions taken or to be taken by the Servicer in servicing the Receivables include actions taken or to be taken by a Subservicer on behalf of the Servicer. Each Subservicing Agreement shall provide for each Subservicer to service the related Receivables in accordance with Accepted Servicing Practices; provided, that no Subservicing Agreement shall provide for the servicing of Receivables on terms and conditions that would result in the failure of the Servicer to comply with the terms and conditions of this Servicing Agreement (including the modifications set forth on Schedule 2 hereto, as may be amended from time to time) in any material respect. Each Subservicer may hire third party vendors, provided that such Subservicers remain at all times in compliance with the related Subservicing Agreement. The Servicer hereby acknowledges that it is holding the Receivable Files and any other items of the Collateral in its possession from time to time for the related Receivables as bailee of Borrower and the Collateral Agent (for the benefit of the Secured Parties) in accordance with Section 3.03 .
Section 4.2 Obligation of Servicer. Notwithstanding any Subservicing Agreement, any of the provisions of this Servicing Agreement relating to agreements or arrangements between the Servicer or a Subservicer or reference to actions taken through a Subservicer or otherwise, the Servicer shall remain obligated to the Borrower and the Collateral Agent for the servicing, managing and administering of the Receivables in accordance with the provisions of Section 3.01 without diminution of such obligation or liability by virtue of such Subservicing Agreements or arrangements or by virtue of indemnification from a Subservicer and to the same extent and under the same terms and conditions as if the Servicer alone were servicing, managing and administering the Receivables. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Servicing Agreement shall be deemed to limit or modify such indemnification.
Section 4.3 No Contractual Relationship Between a Subservicer and Borrower or Collateral Agent. Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Receivables involving a Subservicer in its capacity as such and not as an originator shall be deemed to be between a Subservicer and the Servicer alone and the Borrower and the Collateral Agent shall not be deemed parties thereto and shall have no claims, rights, obligations, duties or liabilities with respect to a Subservicer except as set forth in Section 4.04 .
Section 4.4 Assumption or Termination of Subservicing Agreement by Collateral Agent. In the event the Servicer shall for any reason no longer be the servicer of the Receivables (including by reason of a Servicer Termination Event), the successor Servicer shall, at the direction of the Administrator, in accordance with Section 3.01 : (i) assume all of the rights and obligations of the Servicer under one or more Subservicing Agreements that may have been entered into by giving notice of such assumption to the related Subservicer or Subservicers within ten (10) Business Days of the termination of the Servicer as servicer of the Receivables or (ii) except with respect to Exempted Receivables, terminate all of the rights and obligations of any Subservicer under the related Subservicing Agreement. Upon the giving of such notice, the successor Servicer shall be deemed to have assumed all of the Servicer’s interest therein and to have replaced the Servicer as a party to the Subservicing Agreement to the same extent as if the Subservicing Agreement had been assigned to the assuming party except that the Servicer and the Subservicer, if any, shall not thereby be relieved of any accrued liability or obligations under the Subservicing Agreement and the Subservicer, if any, shall not be relieved of any liability or obligation to the Servicer that survives the assignment or termination of the Subservicing Agreement.
The predecessor Servicer shall, upon request of the successor Servicer (at the expense of the predecessor Servicer), deliver to the assuming party all documents and records relating to the Subservicing Agreement and the Receivables then being serviced and an accounting of amounts collected and held by it and otherwise use its best efforts to effect the orderly and efficient transfer of the Subservicing Agreement to the assuming party.
ARTICLE V
SERVICER TERMINATION EVENT
Section 5.1 Servicer Termination Event. “Servicer Termination Event,” wherever used herein, means any one of the following events:
(i) the Servicer shall fail, or fail to cause any Subservicer, to deposit all amounts required to be deposited in the Collection Account by the Servicer or Subservicer when required to be deposited under this Servicing Agreement and such failure shall continue unremedied for 1 Business Day after the Servicer has knowledge or notice thereof, other than with respect to administrative errors not to exceed $10,000 of Collections in any Collection Period for which such grace period shall be 5 Business Days after the Servicer has knowledge or notice thereof; or
(ii) the Servicer shall fail to observe or perform in any material respect any other of the covenants or agreements on the part of the Servicer contained in this Servicing
Agreement or any other Transaction Document to which it is a party and such failure shall continue unremedied for a period of twenty (20) days after the Servicer has knowledge or notice thereof;
(iii) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or appointing a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer;
(iv) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of, or relating to, the Servicer or of, or relating to, all or substantially all of the property of the Servicer;
(v) the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of, or commence a voluntary case under, any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vi) the Servicer shall have breached any of the representations and warranties set forth in Section 2.01 in any material respect and the Servicer shall have failed to cure such breach within ten (10) days of its receipt of a notice of such breach;
(vii) a Change in Control shall have occurred with respect to the Servicer (if Palisades Collection is the Servicer);
(viii) (a) the amendment of any Subservicing Agreement without the prior written consent of the Administrator or (b) the Servicer or Borrower enters into a new Subservicing Agreement with respect to the Receivables without the written consent of the Administrator;
(ix) an Event of Default (as defined in the Loan Agreement) has occurred under such facility which has not been waived prior to termination of the rights of the Servicer under this Servicing Agreement; or
(x) a Termination Event shall have occurred under the Receivables Financing Agreement.
If a Servicer Termination Event shall occur (which has not been waived), then, and in each and every such case, the Administrator may, by notice in writing to the Servicer (with a copy to the Borrower and the Collateral Agent), terminate all of the rights and obligations of the Servicer under this Servicing Agreement and in and to the Servicer’s interest in and to the
Receivables and the proceeds thereof (except with respect to a Subservicer’s right to collect Exempted Receivables pursuant to the applicable Subservicing Agreement or as otherwise set forth on Schedule 2 hereto), subject to compensation, rights of reimbursement, indemnity and limitation on liability to which the Servicer is then entitled, and the Servicer shall immediately provide each Subservicer with a copy of such notice. Such notice shall specify, to the extent possible, the timing and method of transition to a successor Servicer. On and after the receipt by the Servicer of such written notice and upon the effective date of the transfer to the new Servicer specified in such notice, all authority and power of the Servicer under this Servicing Agreement, whether with respect to the Receivables or otherwise, shall pass to and be vested in the successor Servicer appointed pursuant to Section 5.02 ; provided , however , that the successor Servicer shall not (i) be liable with respect to prior actions or omissions of the predecessor Servicer or (ii) be required to make advances pursuant to the terms of this Servicing Agreement; and, without limitation, such Person is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Receivables and related documents, or otherwise. The Servicer agrees to cooperate with such responsibilities and rights hereunder, including, without limitation, the transfer to such party for administration by it of all cash amounts that shall at the time be credited to the Collection Account or thereafter be received with respect to the Receivables. If the Servicer is terminated pursuant to this Section 5.01 , then the Servicer shall bear all of the costs and expenses of transferring the duties and obligations of the Servicer to a successor Servicer; provided , however , that if the Servicer fails to bear all such costs and expenses the successor Servicer shall be entitled to reimbursement from amounts realized on the related collateral, if any, by retention of such amounts prior to the distribution of any Collections from the Collection Account in accordance with Section 4.2 of the Receivables Financing Agreement.
Section 5.2 Appointment of Successor. On and after the time the Servicer receives a notice of termination pursuant to Section 5.01 , the Administrator may appoint (and provide written notice of such appointment to the Collateral Agent) a successor Servicer, and such appointee shall be the successor in all respects to the Servicer in its capacity as the Servicer under this Servicing Agreement and the Receivables Financing Agreement; provided , however , that the successor Servicer shall not (i) be liable with respect to prior actions or omissions of the predecessor Servicer or (ii) be required to make advances pursuant to the terms of this Servicing Agreement. As compensation therefor, the successor Servicer shall be entitled to all funds relating to the Receivables that the Servicer would have been entitled to receive if the Servicer had continued to act hereunder; provided , however , the Administrator may approve such additional amounts based upon servicing bids obtained thereby.
Section 5.3 Term of Servicer. Upon 30 days prior written notice, the Servicer may be removed by the Borrower (with the prior written consent of the Administrator), such removal to become effective upon the approval of a successor Servicer by the Administrator and the acceptance of such appointment by such Servicer; provided that such successor Servicer shall assume the obligations provided for in Section 4.04 .
Ultimately, there is one man and his three sons that are responsible for inflicting finical pain and suffering on over one million families in America: Bernard D. Zises (Ben) and Sons Jay, Selig and Seymour. Ben and his sons ran Integrated Resources, a real estate investment trust. Small-time investors put their life savings into a scheme that let the investor use a tax depreciation on commercial real estate, and at the same time, get capital gains when the investment matured and was sold. The company was privately held by the Zises family.
But, they got wind of pending changes to the tax laws that would put them out of business. So, what’s a nice Jewish family to do? How about go public and sell the business to a couple of thousand suckers! Yeah, they can get their good friend Michael Milken to sell securities in Integrated Resources, just before the company becomes completely worthless. Bernard Zises and his three sons became filthy rich, and investors were out $995 million dollars.
Ben, what would your Mother Fanny, Father Samuel, and older brother Louis say to you if they could see you today? Would brothers and sisters Sidney, Rose, Ida, Peppie and David be ashamed to meet you again? You are about to meet them all again, and for eternity. Will you have to explain yourself and the suffering you have caused? Did your wife Ruth have to explain for you already when she met her maker? Ben, have you been a good human being? Did you leave the world a better place than when you entered it? What will the ghostly members of the basketball team from Thomas Jefferson High School, or your spirited alum of Long Island University have to say:”….guilty, of crimes against humanity”?
But, you sons have done so much better than you at inflicting finical pain and suffering. They have a very good teacher, Dad. Your son Seymour runs Forest Hill Capital a.k.a. Family Management Corp. where he has lost millions of investor’s money by investing with Bernie Madoff. I’ll bet Seymour figured out an angle to end up with the money as a result of this suffering too.
Better yet, all three sons are the founding principles of Unifund CCR partners, a vicious collection agency. This year, Unifund will sue 160,000 families for credit card debt. Many families will be sued for cards they never owned. Even more will be sued, and never know about it until their wages are garnished, their bank account is cleaned out or the Sheriff sells the family home. This is an exceptionally profitable business. A face value account of say $8000 can be bought for less than $400, and yield a default judgment in excess of $20,000. And, since the tax laws treat purchased debit proceeds the same as loss recovery mitigation, the profits are mostly not reportable and tax free! Woopie!!!!
The industry is full of illegal activity all the way up to the corporate management level. Unifund has a contract with Asta Funding a.k.a. Palisades Collections that rewards Unifund CCR Partners with a premium commission for collecting “…outside the relative statute of limitations”.
I am sure the Zises Brothers have multiple offshore accounts in the Cayman Islands, Jersey, Isle of Man, Isle of White and various South China Sea banks. They must be using their accounts with the Israeli Discount Bank on 5th avenue, which has a branch in the Cayman Islands, as a vehicle to get the unreported Unifund proceeds out of the country.
Ben, I think there are a lot of people that want their money back. The first thing they should do is to send you a demand letter:
Bernard D. Zises
72 Estates Ter N.
Manhasset, NY 11030
(516) 484-0887
Or
Bernard D. Zises
2201 Christy Ln
Oldsmar, FL 34677
(727) 789-4211.
If you cannot find him there, try the house of his son Seymour:
Seymour W. Zises
1016 5th Ave.
New York, NY 10028
(212) 535-7734
Or
Seymour W. Zises
71 Jefferson Blvd
Atlantic Beach, NY 11509
(516) 239-3576
If you cannot find him there, try the house of his son Jay:
Jay H. Zises
965 5th Ave., #10B
New York, NY
(212) 879-0212
Or
Jay H. Zises
639 Ocean Rd
Bridgehampton, NY 11932
(631) 537-5628
Or
Jay H. Zises
106 Old Orchard Rd
Palm Beach, FL 33480
(561) 588-9700
If you cannot find him there, try the house of his son Selig:
Selig A. Zises
988 5th Ave., #9
New York, NY
(212) 772-6460
(212) 593-6700
Or
Selig A. Zises
760 Sagg Main St
Sagaponack, NY 11962
(631) 537-0537
Or
Selig A. Zises
3035 Countryside Blvd #35B
Clearwater, FL 34621
(813)796-8922
Such a nice family.
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