In The District Court of Woodward County
State of Oklahoma
Capital One Bank, )
)
Plaintiff and defendant on )
Counterclaim, )
)
Vs. ) CS-2006-80
)
Alvin D. Craighead, )
)
Defendant and plaintiff on )
Counterclaim. )
Answer and counterclaim
Answer
1. I, Alvin D. Craighead, deny and dispute that Capital One Bank. has standing to
sue in the state courts of Oklahoma and demand strict proof.
2. I, Alvin D. Craighead, deny and dispute that Capital One Bank entered any
form of contract with Alvin D. Craighead and demand strict proof.
3. I, Alvin D. Craighead, deny and dispute that Alvin D. Craighead presently has a
sum due and owing Capital One Bank and demand strict proof.
4. I, Alvin D. Craighead, deny and dispute that Love, Beal & Nixon, P.C. has
delegated authority to act for and on behalf of Capital One Bank and demand strict proof.
Complaint (compulsory counterclaim)
Love, Beal & Nixon, P.C. is a debt buying organization engaged in the illicit
business of attempting to collect unlawful debts in violation of 18 U.S.C 1341 and
1962.
Who? Love, Beal & Nixon, P.C.
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Did what? Committed fraud, mail fraud, and extortion.
When? Circa July 25th 2006 and continuing.
Where? From Oklahoma City Oklahoma and visiting the fraud by United States Mail
Service into Woodward County, Oklahoma.
How? By preparing documents which both Capital One Bank and William L. Nixon, Jr.
a.k.a. Nix-o-Billy, knew were false and uttered the false documents through the United
States Mail Service with the intention that Alvin D. Craighead rely on the false
documents to the detriment of loosing in excess of $2,637.61.
What laws were violated? 18 U.S.C 1341 and 1962; O.S. Title 21, Chapter 19,
554 and Oklahoma Statutes Title 21. Crimes and Punishments, Chapter 13, Section 453.
Who is the victim? Alvin D. Craighead.
What are the damages? Not less than three times $2,637.61 plus three times the damages
to the property interests of Alvin D. Craighead under authority of 18 U.S.C.
1964(a)&(c).
How the debt buying racket works
Many lawyers are engaged in the illicit business of debt buying, to wit: (1).
Banks make consumer loans on unilateral installment contracts of adhesion such as are
credit card member agreements. (2). As the superior party in a unilateral contract cannot
sue for breach of contract, the banks file insurance claims on non-performing accounts
and collect insurance on the accounts. Although the bank still was an actionable damage
in pursuing a theory of on an open account, the matter would require: (a). subrogation
to the insurer, and (b). proof via authenticated evidence and testimony of every single
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transaction to show a deficit; so, banks charge-off and sell evidence of debt to attorneys
in the illicit business of debt buying for a typical six cents on the dollar. (3). Since
installment contracts, such as are credit card contracts, are not negotiable instruments and
cannot be sold for value under holder-in-due-course theories of law, what ever debt had
inured is extinguished along with the contract itself when sold. (4). Attorneys in the illicit
business of debt buying then use trickery, deceit, and harassment has tools to extort sums
from persons no longer subject to lawful prosecution or liable for the extinguished debt.
Memorandum of law in demonstrating the reality of the debt-buying racket
Attorney General Erases $3.5 million from Debt Purchaser's Portfolio August 19, 2005
Attorney General (West Virginia) Darrell McGraw announced today that his
office has entered into a settlement agreement with Midland Credit Management, Inc.
("Midland") of San Diego, California resulting in the cancellation of more than $3.5
million in credit card debt allegedly owed by approximately 3,500 West Virginia
consumers. Midland had previously purchased the charged-off accounts for
collection from Cross Country Bank of Wilmington, Delaware.
Attorney General McGraw's office began investigating Midland in 2004 after
receiving complaints from West Virginia consumers who had been sued or contacted
by Midland to collect debts originally owed to Cross Country Bank. Cross Country
Bank is a credit card bank that markets high interest credit cards to consumers with bad
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credit histories. McGraw's office settled its lawsuit against Cross County Bank on June
21, 2005.
McGraw's office questioned the propriety of collecting the accounts based upon
the same concerns that led to his lawsuit against Cross Country Bank. As a result of these
concerns, the Attorney General requested that Midland close all of the accounts with a
zero balance and notify credit bureaus to delete all references to the account from
consumers' credit records. Midland agreed to do so in the settlement McGraws office
announced today.
Attorney General McGraw stated, "I commend Midland for promptly doing the
right thing after we brought our concerns about these accounts to its attention. As a result
of our agreement with Midland, approximately 3,536 West Virginia consumers have been
relieved of all further obligations to pay $3,548,539.80 in credit card debt. Because the
accounts have also been deleted from credit records, consumers will no longer be denied
access to new credit as a result of these accounts."
Source: Attorney General Press Release
Challenges for Collecting Purchased Debt
James M. McNeile
Cohen McNeile Pappas & Shuttleworth P.C., Leawood, Kansas
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All of us know it is more difficult to collect purchased debt than originated debt
by using the traditional legal collection approach. The difficulties from a lawyers
perspective lie manly in problems of proof. A creditor that originates debt has access to
the documentation that courts require attorneys to introduce as evidence in order to obtain
a judgment. Many debt purchasers either do not have access to the source documents or
can only obtain those documents at great cost. How then can debt purchasers utilize the
court system to collect debts that are legally due and valid? Ken Gelhaus reports that in
New York the problems of collecting on purchased debt have increased greatly in the last
year. At one time in New York, court clerks entered a default judgment on claims for
"sums certain" without running the papers past a judge for review and signature. In recent
months, however, clerks are refusing to do so and requiring that a judge's order granting
default judgment be obtained.
In on of his recent cases, Ken reports that he applied for a default judgment using
the affidavit of an officer of the purchasing plaintiff. The affidavit, although able to
reference the date of the purchase of the debt and the balance purchased, was deficient in
that it did not include any actual business records of the originating creditor. The court
found that the affidavit of the debt purchaser was insufficient and conclusory. The court
suggested the debt purchaser furnish a copy of the assignment or contract assigning the
claims, along with a copy of any statement or record clearly demonstrating the
calculation and the amount of the claim. If monthly statements were furnished to the
defendant, copies of the most recently sent statements should be annexed. Reliable and
factual information concerning the claim is required.
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Even if we as attorneys include such items, they are business records of the
originating creditor, not the purchasing plaintiff. At least in New York, these business
records would have no probative value, because no one at the purchasing plaintiff has
personal knowledge of the creation, maintenance, issuance, and tracking of the
statements. In the eyes of the court, such affidavits are hearsay and therefore not
admissible.
A purchasing plaintiff is unable to swear to the authenticity of the originating or
source documents of a credit transaction because they do not have personal knowledge of
the events which transpired at that period of time in the life of the credit agreement. The
original cardholder agreement, any correspondence, and monthly statements issued by the
original credit grantor are not admissible as the purchasing plaintiffs business records, as
the purchasing plaintiff has no personal knowledge of how those records were created or
maintained.
How then can the purchasing plaintiff's counsel obtain a judgment for their client
in the face of a court's refusal to grant judgment on a legitimate debt purchased by a
third-party? The obvious answer is to obtain the affidavit of the originating creditor and
annex the documents of the originating creditor to their affidavit. The originating creditor
would have actual and personal knowledge of the events which led to the creation of the
debt, as well as the events which lead to the sale of the debt. A second alternative would
be to attempt to obtain a novation of the original credit agreement, which might be
accomplished by either obtaining a signed statement from the debtor agreeing to pay the
balance owed. Alternatively, if the debtor refuses to sign such a statement, the purchaser
could send monthly statements which, if not objected to by the debtor, might be
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introduced by way of the purchasing plaintiff's affidavit, indicating that no objection had
been made to the statements of account. Therefore, the debtors are estopped from denying
the existence of the balance.
Absent a willingness by debt sellers to sign a business records affidavit as to the
origination and sale of the account, or a novation by the purchasing plaintiff of the
original debt, lawyers will be increasingly hard pressed to obtain judgments for legitimate
debts purchased by debt buyers. If purchasing plaintiffs wish to continue to be able to use
the court system to enforce their purchased debt, it is going to be increasingly necessary
for documentation to be readily available for their counsel and the courts.
Notice: The NARCA Newsletter is a publication of the Association of Retail
Collection Attorneys with headquarters at 1620 I Street, NW Ste 615, in Washington,
D.C. 20006 -- Telephone 800-633-6069 or 202-861-0706. An appearance of an advertiser
in this publication does not constitute an endorsement.
ILLINOIS CREDITOR S BAR ASSOCIATION
BOARD MEETING MINUTES
APRIL 22, 2002
1.) Approval of minutes of prior meeting. Subsequent meetings are set for 5/20 and 6/17
2.) Approval of Treasurers Report
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$1980 has been collected in additional membership fees. These checks have been
forwarded on to William Hunter (as of 4/21/02). Treasurers report is approved.
3.) Committees
A. Membership See list for names of those who have not paid their dues.
We probably need to send out another statement to these members. It seems like a lot of
fairly solid people are on the list, and it may be that these people do not realize its due
now. We then need to see what is going on with these people, and at the next meeting let s
set up a cutoff date.
Leigh Ann should put out a general call to remind members on the listserve. Mention in
this that a statement is going out, that people need to watch for it, that they should advise
us of new address. Also be sure to put on the envelopes address correction requested.
B. Education
We currently have one article from Scott Alexander for the next newsletter. Does anyone
have any additional information to include?
Scott Alexander has another one or two in the hopper.
Steve Fink will try to set up a seminar for doing a discussion of claims buying. Ira
and Eric to discuss. We need to set up a date for this, probably in September. Not a
brownbag, a longer seminar.
C. Legislation
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We are working hard on Senate Bill 39 ( Revival of Judgment) and it should go out with
the committee conference report. We have support from Lang and Silverstein. No
opposition, and it should, we hope, get passed in May.
Homestead changes are in Rules committee, we hope it stays bottled up there. We are
not aware of anyone trying to push it, but we are watching it.
D. Technological: Average 300 hits a month on Website. Try to get to website and tell us
what happened. SMA to send note again.
Barry Lowe to talk to Lexis about giving ICBA some sort of group deal
E. Membership. Eric Ferleger to look into finding out what would be involved in
reprinting the brochure.
4.) Old business
Everything we do we should send to the Law Bulletin. They have a column on page 3 of
the paper which will print anything we send them. They want content. Also Chicago
Bar Association and Illinois State Bar News, which will also publish everything.
Consensus of opinion is that Leigh Ann should use her judgment to use the most cost
effective printer
5. New business
Leigh-Ann Thompson is requesting a list of the new board members so she can distribute
a press release to the appropriate newspapers and include the list in the annual directory.
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Here is that list, all have been added to ICBA Board Listserve. Leigh-ann, use the
listserve list when sending out board mailings.
Larry Taliana President, Cindy M. Johnson : Exec. VP-SMA secretary, Bill Hunter:
Treasurer, Technology: Barry Lowe, Steve Fink: Education, Membership: Eric Ferleger,
Legislation: Robert Markoff, At Large: Fred Blitt, Ira Leibsker, Michael Polk, Michael
Matek, Lou Freedman, Laurie Blitztein, Bruce Menkes, Ken Wake, Rob Becker, Lori
Blitstein
The next board meeting is scheduled for Monday, May 20. Subsequent is June 17.
Minutes of the ICBA meeting of March 3, 2002
1. Our annual meeting was preceded by an exciting series of presentations and
discussions between our members, and Lynn Esp, Dan Konicek, and Bruce Menkes, on
topics relating to human relations and Fair debt. The excellent presentations were
accompanied by dynamic discussion with our members and guests. We all enjoyed the
excellent lunch, and we thank Steve Fink for having organized this successful affair.
2. Subsequently we had our meeting, in which we discussed extending the time for
presentation and approval of the next board of directors and officers. The presentation
will be made by e-mail to the board in approximately 10 days and then presented at our
next meeting in April.
3. We heard a moving farewell from our present President Lou Freedman, and comments
from our incoming president Larry Taliana. Mr. Taliana suggested that we do a seminar
on office procedures and office software. Discussion ensued.
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4. We decided to schedule our next two meetings for April 22, and May 20. Having
previously agreed to try to have a social event in connection with our meetings every
three months, it was agreed to have a get together on May 20, and Fred Blitt agreed to
organize the party.
Note: Since the ICBA is the Illinois Creditors Bar Association
Since attorneys are barred from profiting from any litigation in which they are the
legal representative, # 5 is of great interest.
MINUTES OF THE 10/21/02 MEETING OF THE ICBA BOARD
1. Minutes read and approved.
2. Treasurer's report: No changes from August, Figures for website maintenance
discussed. Bill Hunter received bill from Leigh Anne, and this was discussed. Treasurer
will take care of paying these bills, as we have now a healthy balance. A written report
was distributed and the treasurer's report as a while was unanimously accepted.
3. General discussion was had regarding executive director and the services required of
the position. We need bills to go out to members for dues.
4. Newsletter. We need to double check on Newsletter status, and the newsletter should
have a note about past due membership dues, specifically, that after 1/31/03, past due
members risk being cut off from the list serve and newsletters. There should put a case
note on Dickerson case, with an active link to the case. There are at least five articles in
the hopper, which could go in the newsletter.
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5. We are suggesting a 1/20/03-projected date for the debt-buying seminar, and for
our monthly meeting. The date is a Monday.
6. Tech: we are getting a discount of a significant amount because we are using a new
server, which is also faster. We are looking for an offer from Lexis, but they are now
negotiating with the Illinois State Bar Assn. Offer would be about 123/month for the
Illinois Library. General discussion on competing benefits of Westlaw.
We need a new president's letter on the website. There needs to be a general revamp of
the website content.
7. Bylaws: continue discussion to next meeting of changes to by laws.
8. Health Insurance: general discussion. Cindy Johnson has picked up some possible
agencies and will start a discussion with them. Some discussion of MSA (Medical
Savings Accounts) was had.
9. Northern District is going to allow electronic filing in January for bankruptcy. It
might set up a situation where you may not have written notice yet while the bankruptcy
is going, although good faith ignorance would probably be a defense to stay violations.
Proofs of claims could also be filed electronically. In Southern District, the tryout district,
they bar paper filings for major filers. You can walk the filings in and they will put it on
electronically, but won't accept mailings or fed ex, etc.
10. Legislative-- Congratulations to Mr. Markoff on success of revival
bill -- which should be prominently mentioned in the newsletter. We should put out an
email regarding supporting our representatives who helped us out on the Revival
legislation.
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Next meetings: 11/18 and 12/16, and 1/ 21/03, with a possible social after the February
meeting. 10 people attended this evening's social at Coogan's, and a good time was had
by all.
Florida Attorney General Charlie Crist filed a suit this week against Ellis Crosby
& Associates, a Jacksonville, Fla.-based collections agency and its owner over allegations
they repeatedly threatened consumers and imposed illegal fees for owed debts.
The agency and its owner are charged with victimizing more than 120 consumers
through multiple violations of the federal Fair Debt Collection Practices Act and Florida's
Consumer Collections Practices Act.
The investigation was initiated when the Attorney General's Economic Crimes
Division received numerous complaints about the collections agency from the Better
Business Bureau. The complaints alleged that the company was using aggressive and
illegal tactics to collect on its accounts, including posing as law enforcement officers or
attorneys, threatening arrest by military police and collecting illegal fees greater than the
original amount owed. Several complaints even alleged that individuals with the
company represented themselves as lawyers with the Attorney General's Office.
"Few words could adequately describe the appalling nature of the tactics used
against these citizens," said Crist. "People facing the pressure of paying a debt should not
also endure fabricated threats and intimidation. The predatory nature of these actions
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demands our immediate attention, and the victims deserve immediate relief from these
attacks."
According to the Attorney General's Office, further investigations revealed that
Crosby, 27, of Ponte Vedra, specifically trained and instructed his employees to use the
malicious tactics. Among the victims was Anna Massey of Jacksonville, who was
contacted by an employee of Ellis Crosby claiming to have a videotape of her husband
cashing a bad check. The company told Mrs. Massey that the police were on their way to
her home to arrest her husband Billy. Although Mr. Massey tried to explain to the
company that he was not the individual with the debt, the company continued to harass
him and his wife, demanding personal identification information and immediate payment
of the debt. The intimidation tactics stopped only when Mr. Massey threatened to contact
authorities.
The Florida-based company also targeted victims in other states, the Attorney
General's Office said. Chris Williams of Ohio was contacted by the company regarding a
payday loan of $200, demanding immediate payment of $989.42. The company
threatened arrest if the payment was not received, informing Ms. Williams - who was
eight months pregnant at the time - that she should know "they don't give very good
prenatal care in jail," according to the complaint.
To date, the Attorney General's Office said it has received more than 120
complaints about the company, and more complaints continue to come in on a regular
basis. Because the company is continuing its improper practices, the Attorney General's
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Office said it is seeking an expedited hearing to impose an immediate temporary
injunction to halt the unlawful activity.
The ACA International's Ethics and Professional Responsibility Committee
suspended Ellis Crosby & Associates' membership earlier this month after an
investigation into the agency's collections practices.
2005-08-26
O.S. Title 21, Chapter 19, 554, Attorney Buying Evidence of Debt-
Misleading Court. Every attorney who either directly or indirectly buys or is
interested in buying any evidence of debt or thing in action with intent to bring suit
thereon is guilty of a misdemeanor. Any attorney who in any proceeding before any
court of a justice of the peace or police judge or other inferior court in which he
appears as attorney, willfully misstates any proposition or seeks to mislead the court
in any matter of law is guilty of a misdemeanor and on any trial therefore the state
shall only be held to prove to the court that the cause was pending, that the
defendant appeared as an attorney in the action, and showing what the legal
statement was, wherein it is not the law. If the defense be that the act was not willful
the burden shall be on the defendant to prove that he did not know that there was
error in his statement of law.
Any person guilty of falsely preparing any book, paper, record, instrument
in writing, or other matter or thing, with intent to produce it, or allow it to be
produced as genuine upon any trial, proceeding or inquiry whatever, authorized by
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law, SHALL BE GUILTY OF A FELONY. Oklahoma Statutes Title 21. Crimes and
Punishments, Chapter 13, Section 453.
Prepared and submitted by: _________________________________________
Alvin D. Craighead
Rt. 1, Box 870
Mutual, Oklahoma 73853
(580) 922-3276
Certificate of mailing
I, Alvin D. Craighead, certify that November ____, 2006, I mailed a true and correct copy
of the above and foregoing answer and counterclaim to: William L. Nixon, Jr., P.O. Box
32738, Oklahoma City, Oklahoma 73123.
_______________________________
Alvin D. Craighead
Copies to:
Alberto R. Gonzales, Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Consumer Response Center
Federal Trade Commission
Washington, D.C. 20580
And
Governor Brad Henry
2300 North Lincoln, Room 212
Oklahoma City, Oklahoma 73105
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