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Testimony of facts XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, CA XXXX LEND SMART XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, CA XXXX I Declare under penalty of perjury under the laws of the state of California that the statements below are true and correct. Commenced on XX/XX/XXXX. The representation are true and correct, and contain no material omissions of fact to the best of my knowledge and belief.
LendSmart and in particular XXXX XXXX has admitted superfluously that I have, on numerous occasions contacted their office to clarify the lack of any contract I have with them. That is partially true as there were numerous discrepancies that caused alarm in there correspondence to me including the wrong name being put on the presentment as well as the balance fluctuating throughout the time of my dealings with LendSmart.
There was never a prefunding phone call as they put on the record with the CFPB. I was already in my vehicle at the time of the call they did place to me. LendSmarts initial contact was to inform me that they were the bank for XXXX XXXX XXXX and that all payments should be made to them per the contract I signed with XXXX XXXX XXXX.
The following month I began getting correspondence from LendSmart without any mention of XXXX XXXX XXXX being party to the contract they themselves referred me to examine.
Exhibit ( A ) 1-10 WHEREAS FDCPA 807 False or misleading representations states : that a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section : ( 9 ) The use or distribution of any written communication which simulates or is falsely represented to be document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
( 10 ) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
( 11 ) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with legal action.
After the initial contacted, I contacted XXXX XXXX XXXX on XX/XX/XXXX who informed me that they did not bank with LendSmart but in fact they sold my Retail Installment Sales Contract to them in return for the value of the principle of said contract. Exhibit ( C ) This would make them a third party to the contract in place and not the creditor. I informed XXXX XXXX that they did not have my permission to contact me being a 3rd party collection agent and requested she send me a copy of a signed loan agreement I had with them.
WHEREAS FDCPA 805 Communication in connection with debt collection ( A ) Communication with the consumer generally Without the prior consent of the consumer given directly to the debt collector or the express permission of the court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt ( B ) Communication with third parties Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
This is why they stated in there CFPB response that I told them I had an attorney when I said no such thing!
WHEREAS FDCPA 803 Definitions states that ( 4 ) The term creditor means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collections of such debt for another.
( 6 ) The term debt collector means any person who uses any instrumentality of interstate commerce or the mail in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause ( F ) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.
It was at that point I began written correspondance with LendSmart requesting the contract that I have with them. If they claimed to be the bank that financed an alleged loan for my vehicle they should have a copy of the application signed by myself requesting said loan to be issued to XXXX XXXX XXXX for the purchase of my vehicle.
There was also a discrepancy in the amounts they claimed I owed on the correspondence sent by Lendsmart and the contract I had with XXXX XXXX XXXX that needed to be addressed.
As I waited on that response I sent them a request for the companies Taxpayer Identification Number and Certification ( W-9 ) Exhibit ( C ) Retal Installment Sales Contract AMOUNT FINANCED {$10000.00} Exhibit ( A-1 ) Presentment from Lendsmart BALANCE AS OF XX/XX/XXXX {$10000.00} Exhibit ( B ) Copy Request for Taxpayer Identification XX/XX/XXXX Dear LendSmart, Enclosed is Form W-9, Request for Taxpayer Identification Number and Certification.
IRS regulations require that we issue 1099 forms to certain companies and individuals. In order to accurately prepare these forms, the IRS requires that we obtain and maintain form W-9 for all of our vendors. This letter is to request that you complete and return the enclosed Form W-9. Failure to provide your Social Security Number or EIN may result in the delay of future payments or backup withholding 's.
Please return the W-9 Form even if you are exempt from backup withholding within ( 5 ) days of receipt. Please make sure that the form is complete, legible and correct. Failure to respond in a timely manner may subject you to a 100 % withholding on future payments. Enclosed are general instructions for completing the W-9.
Tips for accurately completing form : Line 1 or 2 : Name to enter if selecting : Individual/sole proprietor or single-member LLC Enter your individual name as shown on your 1040 line 1. You may enter your business or doing business as ( DBA ) name on line 2.
C-Corporation , S-Corporation, Partnership , Trust/estate or Limited liability company Enter name as shown on the business tax return ( 1120, 1120S, 1065, 1041 ).
Part 1 : Taxpayer Identification Number ( TIN ) If Individual/sole proprietor or single-member LLC box is checked, enter Social security number If any other classification boxes are checked, enter Employer identification number Please return the completed form to either the address, FAX number or email below : XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, California XXXX XXXX ] XXXX : XXXX OR XXXX : Thank you for your cooperation in providing us with this information.
Sincerely, XXXX XXXX XXXX Enclosure W-9 All correspondence and requests for accounting where within my right to request due to the obvious amount discrepancies and can not be considered harassment being that LendSmart claimed that I owed them money.
WHEREAS harassment is defined by 15 U.S Code 1692d as the use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person and the use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
When I told them that I contacted XXXX XXXX XXXX who informed me of the sale of the contract they then claimed to have purchased the contract from XXXX XXXX XXXX I spoke to a XXXX XXXX. After that my account was transferred to a XXXX XXXX for collection. As shown in Exhibit ( A ) 1-10 none of their correspondence stated that they where a debt collector attempting to collect a debt which is in complete violation of the FDCPA.
WHEREAS FDCPA 807 False or misleading representations ( 10 ) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
( 11 ) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
In LendSmXXXX response to the CFPB they claim to have sent me every document I requested they send me and attempted to use my own complaint as proof of this fraudulent statement. The document I submitted as an attachment is the YELLOW copy of the Retail Installment Sales Contract given to me upon completion of the transaction with XXXX XXXX XXXX. It is not possible that they would have that copy to send to me being that it was given directly to me by the salesman at XXXX XXXX XXXX.
They never responded to the request for accounting or Request for Taxpayer Identification Number and Certification or Request for Accounting at all other than a phone call placed by XXXX XXXX XXXX asking me why I was requesting those document. My response was to tell him to respond via mail as the request was made via mail. Request was sent XX/XX/XXXX.
WHEREAS UCC 9-210 Request for Accounting ; Request Regarding List of Collateral or Statement of Accounting states : ( 2 ) " Request for an accounting '' means a record authenticated by a debtor requesting that the recipient provide an accounting of the unpaid obligations secured by collateral and reasonably identifying the transaction or relationship that is the subject of the request.
( 3 ) " Request regarding a list of collateral '' means a record authenticated by a debtor requesting that the recipient approve or correct a list of what the debtor believes to be the collateral securing an obligation and reasonably identifying the transaction or relationship that is the subject of the request.
( 4 ) " Request regarding a statement of account '' means a record authenticated by a debtor requesting that the recipient approve or correct a statement indicating what the debtor believes to be the aggregate amount of unpaid obligations secured by collateral as of a specified date and reasonably identifying the transaction or relationship that is the subject of the request.
( D ) [ Request regarding list of collateral ; no interest claimed. ] A person that receives a request regarding a list of collateral, claims no interest in the collateral when it receives the request, and claimed an interest in the collateral at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record : ( 1 ) disclaiming any interest in the collateral; and ( 2 ) if known to the recipient, providing the name and mailing address of any assignee of or successor to the recipient 's interest in the collateral.
( e ) [ Request for accounting or regarding statement of account ; no interest in obligation claimed. ] A person that receives a request for an accounting or a request regarding a statement of account, claims no interest in the obligations when it receives the request, and claimed an interest in the obligations at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record : ( 1 ) disclaiming any interest in the obligations; and ( 2 ) if known to the recipient, providing the name and mailing address of any assignee of or successor to the recipient 's interest in the obligations.
In Lendsmarts response to the CFPB they also claim that after over a year of continued harassment, they repossessed my vehicle. As shown in my Exhibits and under false pretense I made payments to LendSmart while in correspondence with them.
The first vehicle payment was made XX/XX/XXXX with the last one being made XX/XX/XXXX. My vehicle was stolen by Lendsmart XX/XX/XXXX less than a year after I purchased it which my evidence shows that it is exactly one day after the payment is due giving them no legal reason to steal my vehicle.
Exhibit ( A ) 1-10 WHEREAS FDCPA 808 Unfair practices A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section : ( 6 ) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if ( A ) There is no present right to possession of the property claimed as collateral through an enforceable security interest ( B ) There is no present intention to take possession of the property ; or ( C ) The property is exempt by law from such dispossession or disablement Exhibit ( D ) UCC 11 showing that there was never a lien on me or my vehicle.
WHEREAS 18 U.S Code 1341 Frauds and swindles states that : whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency ( as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5122 ) ), or affects a financial institution, such person shall be fined not more than {>= $1,000,000} or imprisoned not more than 30 years, or both.
WHEREAS 18 U.S Code 1038 False information and hoaxes ( A ) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully ( 1 ) falsifies, conceals, or covers up by any trick, scheme, or device a material fact ; ( 2 ) makes any materially false, fictitious, or fraudulent statement or representation ; or ( 3 ) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry ; shall be fined under this title, imprisoned not more than 5 years WHEREAS the CFPB is an independent bureau within the Federal Reserve System and the Federal Reserve System is required to report to the executive branch and the congressional officials of the federal government. Any false statements made to the CFPB would justify the above definitions and U.S Codes and constitute fraud and should be punished as fraud under the law.
If LendSmarts reasoning for stealing my vehicle is that I harassed them by requesting that discrepancies be addressed in my dealings with them then it is obvious that they acted illegally being that I was within my legal rights to do everything that I did in respectively corresponding with them to address those discrepancies. One day is not enough cause for a collection agent to steal collateral to a contract they werent party to. As I have shown, there where no liens from LendSmart against me that would give them any rights to steal my vehicle. Therefore my previous request to the CFPB for the return of the cost of my vehicle as well as the penalty assessed is still within my legal rights to request. Corporations shouldnt be allowed to bully consumers due to their assumption of the lack of the ability to take this to a court of competent jurisdiction to address potential fraud and FDCPA violation.
I do hope that the attorney that was retained by LendSmart Understands this correspondence as it was claimed that I lacked understanding in the clear legal violations I have spelled out in this final attempt to come to a resolution through the CFPB. I await their response with hope of understanding on their part that I may not have to use their own words against them in judicial jurisdiction.
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I Declare under penalty of perjury under the laws of the state of California that the statements below are true and correct. Commenced on XX/XX/XXXX. The representation are true and correct, and contain no material omissions of fact to the best of my knowledge and belief.
There have been numerous attempts at corresponding with LendSmart to produce the contract I have with you. Your company has never responded to those requests, nor have you provided any evidence showing that I ever had a contract with LendSmart or XXXX XXXX. In fact, your corresponding answer to the CFPB shows that you claim to have bought the contract from XXXX XXXX XXXX and began to fraudulently extort money from me claiming that I owed LendSmart.
Whereas a contract is a agreement between parties, creating mutual obligations that are enforceable by law and consideration is the foundation of all contracts. There was never any consideration between me and LendSmart or XXXX XXXX. Neither LendSmart nor XXXX XXXX gave anything to myself that binds me to any contract with them.
Whereas in Exhibit ( A ) the contract that I had with XXXX XXXX XXXX shows that I provided XXXX XXXX XXXX with a Promise to Pay aka promissory note and they provided me with a personal vehicle, the XXXX XXXX XXXX XXXX. Both parties in that contract provided verifiable consideration creating the contract between me and XXXX XXXX XXXX.
Nowhere on this contract is LendSmart or XXXX XXXX mentioned Whereas in the corresponding answer that LendSmart gave on the record with the CFPB they purchased that contract from XXXX XXXX XXXX as an outside party to the original contract making LendSmart a debt collector and not the original creditor. The debt collector according to the FTCPA may not uses any false, deceptive, or misleading representation or means in connection with the collection of any debt 807. False or misleading representation : ( 4 ) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
Whereas according to 15 US Code 1692j Exhibit ( B ) which was presented to LendSmart in initial correspondence with them, it is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other then the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating. I have no contract with LendSmart or XXXX XXXX.
Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 1692k of this title for failure to comply with a provision of this chapter.
15 US Code 1692k Civil liability ( a ) Amount of damages Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of ( 1 ) any actual damage sustained by such person as a result of such failure ; ( 2 ) ( A ) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding {$1000.00} ; or ( B ) in the case of a class action, ( i ) such amount for each named plaintiff as could be recovered under subparagraph ( A ), and ( ii ) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of {$500000.00} or 1 per centum of the net worth of the debt collector ; and ( 3 ) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorneys fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs.
( b ) Factors considered by court In determining the amount of liability in any action under subsection ( a ), the court shall consider, among other relevant factors ( 1 ) in any individual action under subsection ( a ) ( 2 ) ( A ), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or ( 2 ) in any class action under subsection ( a ) ( 2 ) ( B ), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collectors noncompliance was intentional.
Whereas since XX/XX/XXXX I have corresponded with LendSmart that I was in dispute that I owed LendSmart anything and stated on the record via notarized document that I never had any contract with them and asked for them to present me with whatever contract they claim that I had with them yet they continued to report the fraud to my credit report and continue to do so until this date. FDCPA 807 False or misleading representation : ( 8 ) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
( 10 ) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
( 12 ) The false representation or implication that accounts have been turned over to innocent purchasers for value.
Nowhere on this document is XXXX XXXX XXXX mentioned as the original creditor Whereas when asked to validate the contract I have with LendSmart they failed to present that contract within the 5 days from the initial communication and in fact called me via telephone claiming to be the creditor when in fact according to Exhibit ( A ) the original creditor on the contract is XXXX XXXX XXXX. XXXX Validation of debts : ( a ) Notice of debt ; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing -- ( 1 ) the amount of the debt ; ( 2 ) the name of the creditor to whom the debt is owed ; Whereas according to the FDCPA 811 Legal actions by debt collectors : ( A ) VENUES Any debt collector who brings any legal action on a debt against any consumer shall -- ( 1 ) in the case of an action to enforce an interest in real property securing the consumer 's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located ; or ( 2 ) in the case of an action not described in paragraph ( 1 ), bring such action only in the judicial district or similar legal entity -- I have never been seen in court for this matter nor has LendSmart ever took any legal or judicial action against me to justify the stealing of my vehicle.
Whereas LendSmart or XXXX XXXX XXXX is not who was listed as the creditor when my vehicle was stolen. It was shown as a XXXX XXXX whom I have no contract with nor have I ever had a contract with.
Exhibit ( C ) Exhibit ( D )
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