Debt

Disputing a debt won’t make it go away

Posted on by Kenneth Ballard / 0 Comment

Of all things regarding “debt relief” that piss me off, none do so more than false advertising and demonstrably false claims. I’ve addressed a lot of claims from “debt relief” programs in the past and the false claims they make, such as “you have a right to settle your debt for a fraction of what you owe”.

So let’s tackle this one from “American Debt Enders” and their “Debt Dispute” program. I just saw an ad for it today, but looking at Archive.org, this appears to have been around since October 2014, first called their “Credit Shield Program” (or “Alternative Debt Relief”) before changing the name to “Debt Dispute” in March 2016. The latest incarnation of the program (as of this writing) says this:

This approach to debt relief requires debt collectors to provide proof that a debt is 100% Legal, Collectable, Valid and Verified, or Cease Collection Efforts!

Debt Dispute is not a “Debt Settlement” program, modification, or negotiation.

At least they removed the claim about their program being “FTC Approved” (yes, they actually claimed that), but kept the idea that their program “requires debt collectors to prove that a debt is 100% legal, collectable, valid and verified”.

So you sign up, hand them notices from debt collectors, and they’ll make those debts go away or you owe them nothing? Yeah, no. As we’ll see going through the fanciful claims they make, they are promising a lot that just isn’t possible, making demonstrably false and wildly misleading claims.

* * * * *

So I spent a little time going through their website to figure out how this program works. Up front it’s apparent this program is only for debts that have only just fallen into collections and for which you are still within 30 days from receiving first communication from the collection agency:1Credit Restoration and Debt Dispute – American Debt Enders

When a consumer enrolls in the Dispute Program, they give authorization for a representative to communicate on their behalf… Because the client has appointed the authorized representative to do so, the representative will put together a dispute under various laws that pertain to the collection of debt. The authorized representative will serve it as a notice on the debt collector within the 30 day dispute time frame as stipulated in the Fair Debt Collection Practices Act.

So… basically they’re just sending a letter to the creditor within the 30-day time frame. Okay… So if you’re outside the 30-day statutory time frame, I guess you’re out of luck with this program. But do you really need to hire a firm like this to dispute your debts with your creditors? No. It just takes understanding your rights plus a little initiative, and keeping your expectations in check.

The dispute is witnessed by a notary and sent to the debt collector registered U.S. Mail return receipt requested, also done by a notary, to ensure proper record of the dispute by a state official. This process is known as a notary presentment. The entire process takes between 18 and 24 months to complete. The cost is about half of the cost of any debt settlement program.

Notaries aren’t state officials, for one. And notary presentment is unnecessary here. It is added expense with zero additional benefit. USPS Certified Mail® with Return Receipt is what’s generally recommended and all you need. In other words, you can easily do on your own what they’re going through a notary to do.

And just given that they say this program is available only for those still within the 30-day statutory time period, has anyone actually taken advantage of this program? I’m very much doubting that.

* * * * *

American Debt Enders explains their dispute program through a two-part article series. Before going into those articles, there’s something I want to point out. The two articles were written in May 2016. About 18 months after they first started offering their “Debt Dispute” program. Keep that in mind given the wild claims they make in those articles.

The first of the two parts doesn’t really provide any elaboration on the program, though at the end they do say this:

The following information must appear on all notices for collection sent to a consumer. “…unless you dispute this debt within 30 days of receipt of this letter, we’ll assume the debt is valid.” Please notice the word Assume. If all debts were valid without assumption than their [sic] would be no need for any laws governing the rules for dispute.

Federal law is what allows them to assume the debt is valid if you don’t dispute it within the 30-day statutory period.215 USC § 1692g(a)(3) – “a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;” Federal law also provides that the failure to dispute the debt cannot be construed as an admission of liability.315 USC § 1692g(c) – “The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.”

This implies a burden of proof and who has it. If you dispute the debt within the 30-day period, Federal law puts the onus on the debt collector to demonstrate the debt is valid and the amount claimed is correct, while also declaring they must cease all collection activities while attempting to validate the debt. After that 30-day statutory period, the burden of proof falls to the debtor to demonstrate that the debt is not valid (paid off, forgiven, wrong person, etc.) or the amount claimed to be owed is not correct. But the debt collector no longer has a statutory obligation to stop collection activities.

This is why it’s important to get a debt dispute to the debt collector within the statutory time period. It puts the burden of proof on the debt collector, and keeps your options open for further disputing the debt even after they’ve returned validation.

Moving on.

Can I get harassing creditor phone calls to stop. The answer is yes. Again, a well crafted dispute program will have this aspect as part of the program. However, we can tell little Johny to play nice in the sandbox and even punish him if he does not, but he still may not listen. Some people actually benefit in cash and large sums of it, if the creditor continues to call after you have followed the law and told them to stop. Again, a well crafted dispute program will have this as part of its program.

It’s actually a simple written letter you need to get them to stop calling you. You don’t need a “well crafted debt dispute program” to invoke that. Indeed my letter template includes it. Now while it’s possible they’ll ignore your written request, they open themselves up to liability doing that, under both Federal and State law. And debt collectors have time and again been successfully held liable through the Court.

Bear in mind that such liability does not erase the debt they’re trying to collect.

What happens if the debt collector simply says go jump in a lake, and ignores your requests for verification? This is an excellent question and one which is often asked. If the creditor does not respond, they have in fact violated your rights and invalidated the debt themselves. This is a home run for you.

If the debt collector does not respond to validation, they have not violated your rights in the least unless they attempt to continue collection while there is an unresolved debt dispute in play.

It’ll also be rare that a debt collector will not return validation. Bear in mind as well that there is no statutory time limit to how long they have to return validation. So they haven’t “invalidated the debt themselves”. The law only requires they cease collection activities while the dispute has yet to be resolved.

And it is possible the validation request will cause a debt collector to not bother. It’s most likely to happen with debt accounts that have been passed between several debt buyers, since that increases the likelihood even the original creditor no longer has record of it. It actually happened with one account I had a long while ago. Where instead of validating the debt, the debt buyer sold it off to someone else – yes, they can do that under the law.

And it hopped between a couple debt buyers, each one not returning validation when I disputed, before one of the buyers actually bought back the account and initiated communication on it as if they had never seen it before. So I had to remind them in writing that I’d already disputed the debt. Never heard from them again. And I don’t believe the account went anywhere after that either as I don’t recall ever receiving any communication from them or anyone else about it.

But if you’re talking about a debt that has newly fallen into collections, expect them to return validation.

What happens if the debt collector provides proof of the debt, and their right to collect it? While this is a rare occurrence, you are not charged any fee for the work done on your behalf for that debt, and your assigned attorney will come to a settlement on that debt.

Rare, my ass. It’s happened nearly every time I’ve exercised validation.

Do not delude your readers and prospects into thinking that sending a §1692g validation request will almost always result in never hearing from the debt collector again. To say such is absolute bullshit and may qualify as fraud given the services you offer, even despite your “100% guarantee”.

What Happens If I get sued? Sometimes debt collectors do not respond and they may even be as bold as to file a lawsuit against you. Because this action and many other actions against you are violations of federal law, we have an organization that will assist you in holding the debt collector responsible which usually results in the suit being dropped and the alleged debt forgiven. The aforementioned process is done outside of court through notification and negotiation.

The lawsuit or any other collection activity is a violation of Federal law only if it interferes with a debtor’s statutory right to debt validation. But once they file a lawsuit and the debtor is served with the summons and complaint, everything to dispose of that lawsuit must occur through the Court, contrary to your assertions.

There are a few details here that many don’t realize. First the lawsuit to enforce the debt will be filed with your creditor as the plaintiff, not the debt collector – e.g. Capitol One Bank v. Kenneth Ballard4Case No. 09CY-CV13306, Missouri 7th Judicial District (2009). This was when one of my creditors sued me.. This means if you believe the debt collector violated your rights under the Fair Debt Collection Practices Act, you must file that lawsuit separately naming the debt collector specifically as the defendant. Your answer to the lawsuit cannot allege Federal or State law violations by the debt collector since the debt collector is not the plaintiff.

Many are quick to dismiss, or flat out ignore, that the debt collector and the creditor they represent also have rights under the law, including the right to the Court to enforce the debt. And FDCPA violations by a debt collector do not bar a lawsuit by or on behalf of the creditor to enforce the debt. Too many think otherwise. And too many articles say otherwise, in one way or another, with it all generally boiling down to FDCPA violations voiding debts. One article I encountered even said that a “small clerical error is enough to get your debt completely erased.” No it isn’t.

Now is it possible to get a judgment against a debt collector that surpasses the amount attempting to be collected? Yes. But don’t bank on it. It typically requires some rather egregious conduct.

On top of any actual damages (demonstrable losses such as lost wages, reimbursements for injuries such as “psychological distress”, etc.)515 USC §1692k(a)(1) – “any actual damage sustained by such person as a result of such failure [to comply with the FDCPA]”, statutory damages are capped at $1,000615 USC §1692k(a)(2)(A) – “in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000”, depending on some details about the violation(s) in question715 USC §1692k(b)(1) – “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional”. You’re not getting anything at all if the alleged violation was not intentional and resulted from a bona fide error815 USC § 1692k(c) – “A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” regardless of any losses or injuries sustained, or was conduct performed in good faith based on any advisory opinion or publication by the CFPB915 USC §1692k(e) – “No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Bureau, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.”. And even if there is a pattern of misconduct for which a United States District Court awards damages, those damages are unlikely to be enough to overtake the debt, and your lawyer is more likely to win out on it than you, since plaintiffs aren’t supposed to profit through a lawsuit.

So this means if a debt collector does turn around and sue you rather than responding to the dispute, you’re entitled to reimbursement of all losses associated with that, which does not include the amount the debt collector alleged is owed, which can get rather costly for them. But that doesn’t stop the lawsuit from continuing. And, again, you’re entitled to nothing if the debt collector can show their actions were the result of a bona fide error.

And if the debtor has someone representing them to the debt collectors, violations of the FDCPA actionable through the Court are unlikely to occur since they shouldn’t be talking to the debtor directly. That is, unless whomever is representing the debtor tries to stonewall discussions, in which case the debt collector has every right under the law to seek them out.1015 USC §1692c(a)(2) – “if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer;”

As such, I very highly doubt “the suit being dropped and the alleged debt forgiven” is a common outcome. I’d be surprised, actually, if it’s happened at all.

Bear in mind, too, that the Supreme Court of the United States ruled in 2017 that the statutory definition of “debt collector” does not apply to debt buyers, and so debt buyers are immune to most (if not all) of the provisions of the Fair Debt Collection Practices Act. And you have one calendar year from the date of the alleged FDCPA violation to file a lawsuit.1115 USC § 1692k(d) – “An action to enforce any liability created by this subchapter may be brought…within one year from the date on which the violation occurs.”12“That language [of §1692k(d)] unambiguously sets the date of the violation as the event that starts the one-year limitations period.”, Rotkiske v. Klemm, 589 US ____ (2019)

* * * * *

Time to inject some reality back into this. So what happens when an account falls into collections?

The collection firm will initiate contact with you. They may try calling you first, but you will always receive notice in the mail pursuant to 15 USC § 1692g(a). Once you receive that written notice, you have 30 calendar days to exercise your statutory right of debt validation. Note: 30 calendar days to postmark the dispute letter. This is your chance to dispute the debt either in part or in full. And you should always dispute the entirety of the debt initially. You can always dispute the exact amount further. Send the dispute letter via USPS Certified Mail with a Return Receipt.

After they receive the dispute, they must cease collection efforts until they resolve the dispute by providing documentation that proves the debt is real and the amount claimed (or some portion thereof) is valid. And what they must provide to validate the debt isn’t much and has already been clarified by United States District13“No provision of the FDCPA has been found which would require a debt collector independently to investigate the merit of the debt, except to obtain verification, or to investigate the accounting principles of the creditor, or to keep detailed files.” —Azar v. Hayter, 874 F.Supp. 1314 at 1317 (N.D. Florida, 1995) and Circuit14“[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. Consistent with the legislative history, verification is only intended to “eliminate the … problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt.” (internal citations removed) —Chaudhry v. Gallerizzo, 174 F. 3d 394 at 406 (4th Cir., 1999) Courts.

There are three outcomes possible from a validation request:

  1. you never hear from the collector again,
  2. the collector provides documentation showing the entire originally-claimed amount is valid, or
  3. the collector provides documentation showing only part of the originally-claimed amount is valid.

Again, there is no statutory time limit to how long the debt collector has to return validation. And how quickly they return with validation will depend on several factors.

If they come back with (2), then you can negotiate payments on the amount, or decide to try to dispute the amount further, countering with any documentation you have. And, again, contrary to what American Debt Enders falsely asserts, it isn’t “rare” this happens.

But what if they come back with (3)?

Obviously the debt collector may only collect what they’ve validated. But American Debt Enders implies they cannot collect any of it – “provide proof that a debt is 100% Legal, Collectable, Valid and Verified, or Cease Collection Efforts!”. That they must validate the entire originally-claimed amount and cannot collect any lesser portion thereof even if they can show the lesser amount is valid.

And that is not true.

* * * * *

If you fail to dispute the debt within the statutory time frame, the debt collector can take that as reason to believe the entire claimed amount is valid and they have found and contacted the right person. So if you’ve fallen outside the statutory time limit and want to dispute the debt, can you still do so? Absolutely. What you lose, however, is the statutory obligations the debt collector return validation and cease collection activities while validating the debt.

Now if you believe the amount the debt collector claims you owe is higher than the amount you actually owe, then you can certainly try to dispute the amount further by providing documentation to that effect. After all, you should never pay more on a debt than what you actually owe according to the contract.

But if the amount the debt collector original claims isn’t correct, is the collector now barred from collecting any of the amount claimed? Absolutely not. The amount that is demonstrated to be owed is the amount they will attempt to collect.

And that is where American Debt Enders strays into false advertising.

A debt collector is not required to cease collection efforts on the entire debt if they cannot demonstrate the validity of 100% of the amount originally claimed. They must cease collection efforts on what cannot be validated, but can continue collection efforts on the remainder. This is why it’s important to dispute the debt in its entirety up front as noted above. But disputing the debt in its entirety does not mean the debt collector must then validate the entire amount or none of it is in play.

* * * * *

American Debt Enders also seems to gloss over is the fact a debt collector always has the right to take you to Court.

Well they don’t entirely gloss over it. They do get the terms horribly wrong, though: “Provision for an Attorney in your State to answer a subpoena if you are served one from any of your creditors.”

Where they say “subpoena”, they clearly mean a “summons” or “lawsuit”. Now it isn’t uncommon for lawsuits to be improperly served. But contrary to what they claim in another article on their website,

First, the [summons or lawsuit] problem. Not to worry. Did you know that most [summons or lawsuits] can be discharged without you ever going to court! Yes, because most are improperly served it is an easy matter to discharge them. So, you can solve this problem by making a free phone call to a consumer advocate who is knowledgeable in this area.

there is no way to get rid of that without going to Court.

Since, for starters, “going to Court” doesn’t mean just being in front of a judge. There’s a lot more that occurs at Court that doesn’t involve a judge and courtroom. In fact, most of what happens at Court doesn’t involved a judge and courtroom.

Second, you can’t get rid of anything from the Court served to you, whether a subpoena or summons, without you or someone representing you going to the Court to provide some kind of answer to it. When I was demonstrably improperly served in a case of mistaken identity for a foreclosure, an “affidavit of identity” was my “answer” to the summons.

Once your creditor takes you to Court, your options shrink dramatically. The only way you’re getting away from that lawsuit is if you don’t actually owe the alleged debt. You can certainly dispute the validity of the debt, especially if you’ve failed to get them to accept documentation showing you owe only part of what is claimed. But whatever part is shown to be valid and still outstanding is what you’ll ultimately owe, including Court costs and attorneys fees, with a Court judgment backing it up.

* * * * *

So how to wrap this up…

Let me put it this way: anyone who tries to sell you on a program that promises to just magically make your debts go away is lying to you. As such, American Debt Enders is lying to you. That they once claimed their program is “FTC Approved” shows they are not above making fraudulent claims to reel people in.

Their “debt dispute” program won’t do what they claim. That the program is only available to those still within the 30-day statutory time frame dictated by Federal law also makes me wonder if anyone has actually taken advantage of that program. Since by the time most are seeking out debt relief programs, they’re likely well beyond that statutory time period.

So, yeah… If you have actually been through their “debt dispute” program, I’d love to hear from you. But be prepared to provide documentation as I’m not going to accept mere assertion. Since given everything I know about debt collections and the laws governing it, along with my own experience with debt collectors, there is no possible way the claims that American Debt Enders makes can come to fruition.

Going through their “debt dispute” program, or any debt relief program, won’t result in your debts just magically disappearing. And anyone who tries to tell you that theirs will is selling snake oil.

* * * * *

Update – February 2021: American Debt Enders appears to have gutted their site. The page for their Debt Dispute Program is now little more than a bunch of nonsensical text. It’s possible they’re in the middle of revamping their website, but it’s definitely clear they’ve realized their original claims were far outside reality.

Of course that makes me wonder if this article is the reason they’ve shifted their site so much. It’s possible, or they were contacted by regulatory agencies. Or someone within the organization wised up and realized they were putting out false promises. Whatever the case, hopefully they won’t try to, at least, publicly claim to be able to make your debt go away merely by issuing a §1692g validation request.

Correction to previous update: I looked around their site a little bit more, and they’re making much the same claims as before. It was under the page called “Credit Restoration“, not “Debt Dispute”. (The latter is the above screenshot.) They’ve removed much of the problematic and fanciful claims.

They retain the limitation that the program is only available “within the 30 day dispute time frame as stipulated in the Fair Debt Collection Practices Act,” meaning it’s largely worthless to those who typically seek out credit counseling. And they still keep the overall implication that they can make your debts go away through a simple §1692g validation request.

I think I need to write a separate follow-up to this.

References[+]

Solicitations

Contributed content

Posted on by Kenneth Ballard / 0 Comment

There are two things about this site I’d hope were obvious to anyone who’s actually looked at it: 1. It’s a personal blog that 2. is pretty heavy with political and opinion content. Which means that I can readily tell in most situations that someone sending me a solicitation has not actually looked at my site, despite always claiming to have done so.

So being that this is, again, a personal blog where yours truly posts opinions (and personal projects), it should be quite obvious that soliciting me to actually write for this suite is fruitless. But I guess something being obvious isn’t always obvious enough. Such as with Rebecca Schmidt: (site link not in original e-mail)

Hello Kenneth,

My name is Rebecca and I’m writing because I’d like to contribute something to your site.

I currently write for Her Aspiration, where we put out information to help and give people relationship advice and dating advice.

Based on what I’ve seen of your site, I think it could be valuable to your readers. It would also give you a boost to your audience, since I’m certain my followers would come to your site and start a conversation there. This could work out for both of us and lead to exciting opportunities down the road. I would like to check if you do link placements into existing articles as well? As I am open to get more articles and link placements with you as we go along.

If this sounds appealing to you, I’d love to have a conversation about how we could make it work. Look forward to hearing from you.

Best wishes,
Rebecca

“Based on what I’ve seen of your site”? Probably none of it.

Especially since, I’ve already explicitly said I won’t post content contributed from others since it would go against the title and modus operandi of this site, not to mention the domain name. So now I’ll make it explicit again: I will never post content to this site contributed by someone else.

Photography

Should you avoid full-frame lenses on APS-C cameras? Yes and no.

Posted on by Kenneth Ballard / 0 Comment

It seems there’s been this back and forth over whether it’s better to use full-frame glass on APS-C (crop sensor) cameras. Obviously the answer is No. Where you have the option, use APS-C glass. That’s why they make glass specific for APS-C cameras.

But there needs to be a lot of emphasis on “where you have the option”. Because the options are a lot thinner than many seem to realize. Let me explain.

I have a Nikon D7200, which is a DX (APS-C) camera. And if you look at Nikon’s website at what lenses are available, the DX selection is paltry. Only four (4) primes are listed:

  • 10.5mm f/2.8
  • 35mm f/1.8
  • 40mm f/2.8
  • 85mm f/3.5

There’s a LOT missing from this list, starting with the 50mm prime, which is a popular lens. So your only option is a 50mm FX prime lens – equivalent to a 75mm focal length on a Nikon DX. And I own the 50mm f/1.8 FX lens and recently acquired the f/1.4. And if you wanted a faster aperture than f/3.5 on the 85mm prime (and who wouldn’t?), you need to go FX to get the f/1.8, which is nearly 2-stops faster, or even all the way to an f/1.4. (Nikon makes an 85mm f/2.8, but it’s manual focus only.)

Canon has only 1 APS-C DSLR prime that isn’t a macro lens: 24mm f/2.8.

Third party isn’t much better. Sigma makes only two APS-C primes: 4.5mm f/2.8 fish-eye and 30mm f/1.4 “Art”. Tamron doesn’t make any APS-C primes at all. Same with Yongnuo. Samyang makes a handful, but they’re all very short focal lengths.

The picture is better for zooms. Somewhat. You have more options, but those options aren’t great. And the better options are all, you guessed it, full-frame glass.

The typical Nikon DX kit lenses are the 18-55mm f/3.5-5.6 and 70-300mm f/4.5-6.3. There’s also the 55-200mm f/4-5.6 and 55-300mm f/4.5-5.6, and other 18-Xmm zooms at f/3.5-5.6. The only options faster than f/3.5 are the 16-80mm f/2.8-4 (shy of 1100 USD) and 17-55mm f/2.8 (~1500 USD). Canon’s APS-C zoom lens selection is similar to Nikon’s, though Nikon has a few more options. Third party provides better options for Canon, but similar options for Nikon to what is already available from Nikon.

The ever-popular 70-200mm f/2.8 isn’t available in APS-C. Same with the 24-70mm f/2.8, another very popular lens.

So to get better apertures (faster glass is typically better glass), FX/full-frame is your only option. Same if you want to zoom out further than 300mm, with the exception of Tamron’s 18-400mm “one lens to rule them all” APS-C zoom. I have a Sigma 150-600mm “C” for wildlife photography (I don’t photograph sports all that much). You won’t find APS-C glass at those focal ranges.

So I don’t really understand why this topic keeps coming up.

Obviously where DX/APS-C options are available, go that route as you’ll get better images with an APS-C body, provided you’re willing to live with the limitations – primarily in apertures. But don’t limit yourself to only APS-C options or you’ll limit your options substantially.

Contrary to what seems to be popular belief, you can get sharp results with full-frame glass on an APS-C body. My 50mm FX prime is my favorite lens. But where you have a similar APS-C option available, such as the aforementioned Nikon 35mm f/1.8, you’ll get better results compared to trying to use the full-frame option. But where you don’t have the option (again, Nikon 50mm f/1.8), or the full-frame option provides better apertures (35mm f/1.4 or 70-200mm f/2.8), don’t lose sleep over it or think you’re going to end up getting terrible results.

And, if we’re being honest, that’s the unintended implication of saying to not use full-frame glass on APS-C bodies. That doing so will lead to bad results despite the fact that APS-C options are actually relatively few, and getting better glass almost-always means going with full-frame glass even with an APS-C body.

Life

Stop screwing over your regulars

Posted on by Kenneth Ballard / 0 Comment

For nearly the last 4 years, I’ve been a consistent regular patron at Fazoli’s, specifically the location off Shawnee Mission and Quivira in the Kansas City metro. Going with that, I’ve participated in the Fazoli’s reward program since they introduced it in 2017.

The original reward program was simple. 1 point for every dollar spent (before tax). Every 50 points earned you a $5 redemption code for $5 off (before tax) your ticket, regardless of what you bought. Occasionally there were additional rewards as well – e.g. free brownie or $2 off $15 or more. It wasn’t unusual for me to bank the points to take $10 off less frequently instead of redeeming the $5 whenever that was available.

Today, November 23, 2019, Fazoli’s introduced a revamp to the program. And it’s not an improvement. Indeed it actually makes things worse, and shows that Fazoli’s is not above screwing over their regulars. Points now earn you free items off the menu. And all the points are set to that Fazoli’s comes out ahead.

  • 25 points – Free small soft drink (normally $1.99)
  • 75 points – Free spaghetti with meat sauce (normally $6.49)
  • 100 points – Free chicken fettuccine (normally $7.99)

Previously I would’ve been able to spend $50 in store to get $5 off the spaghetti or fettuccine, or $100 to take $10 off my combined lunch/dinner ticket with my wife.

Also it would’ve been nice to have the option to redeem points the I had BEFORE the change the same way as previous. I had 110 points banked, and I would’ve been redeeming that for $10 off on my next lunch or dinner visit to the restaurant. Now I can only redeem part of that for either free spaghetti (provided it’ll still apply for marinara sauce since my wife doesn’t like the meat sauce) or chicken fettuccine.

I wonder how many other regulars were similarly screwed over, also losing banked up points in similar fashion.

If Fazoli’s was losing money with their previous rewards program, they could’ve downgraded it from $1 per point to something like $2 per point. And I would’ve understood if they put out a public statement to that effect.

Instead they’ve chosen to screw over their regulars by devaluing the points we’ve earned on the previous rewards program.

Whomever came up with the idea to revamp their rewards program in this fashion needs to lose their job.

Crime/Politics

On Jeffrey Epstein

Posted on by Kenneth Ballard / 0 Comment

I’ll say this up front: I don’t believe Jeffrey Epstein was murdered.

When Epstein’s death was announced, a lot of people presumed he had been. And they had a lot of reasonable factors leading to that conclusion.

  • He allegedly had “dirt” on some very high-profile people
  • He was a convicted, registered sex offender
  • The circumstances around his death are filled with a lot of gaps

And when I first learned of his death, I readily assumed he was killed in prison due to his sex offender status. A lot of people would’ve probably loved to have gotten their hands on him. Then the reports clarified that it appeared Epstein committed suicide.

There seems to be a massive failure of logic around all of this. I observed such on Facebook when I wrote this comment:

The one thing that kind of pisses me off about this whole ordeal is how everyone is saying there is no possible way Epstein committed suicide *because* he had dirt on high-profile individuals. It’s as if everyone has just cast basic logic to the wind…

That he had dirt on high-profile individuals says nothing about whether his death was suicide or homicide. But everyone is treating it as if suicide is impossible with this individual.

What actual evidence is there he was murdered to the exclusion of the conclusion he committed suicide? If one is being honest, right now there isn’t any. I’ve yet to see anything conclusive offered that excludes suicide.

Many point to the fractures in Epstein’s neck and the assertions that such fractures mean he was killed. Except as others have pointed out, that doesn’t exclude suicide. And the pathologist saying it is does was hired by Epstein’s attorneys to oversee the autopsy. That the pathologist also said he’d never seen neck fractures in any suicide by hanging doesn’t mean Epstein didn’t kill himself. It means only he’d never seen neck fractures in a suicide by hanging.

The medical examiner said it was suicide. But that isn’t the only reason to believe it to be suicide. His prior suicide attempt adds to this. The idea that Epstein didn’t look suicidal is also immaterial.

And the reason many say he couldn’t have killed himself I believe is also yet another reason he actually did: he was a marked man. Basically he was dead regardless. Whether he was killed in prison for being a sex offender, assassinated before he could spill whatever beans he allegedly had, or he committed suicide, he was likely not going to live much longer.

Then there’s also the fact he likely knew he was never again leaving prison this time except as a corpse. So hastening that was likely on his mind when he made his first suicide attempt.

This isn’t as unfathomable as many seem to believe. Suicide attempts and completed suicides among the prison population are also alarmingly common compared to the general population, also lending credence to his death being a suicide.

His death being convenient to those on whom he allegedly had dirt does not rule out suicide.

What rules out suicide and rules in homicide is evidence demonstrating that someone else killed Epstein. Not insinuation or assertion. And so far, all I’ve seen is just the assertion that he didn’t kill himself, that suicide is impossible because he allegedly had dirt on some high profile individuals.

To be sure, it absolutely is possible he was murdered. But without conclusive evidence, I believe it to be more likely he committed suicide.

Electoral College

Winner-take-all is not unconstitutional

Posted on by Kenneth Ballard / 0 Comment

Article: Winner-take-all presidential elections: Unconstitutional and unfair to voters in 48 states

I’ve openly advocated for the Nebraska/Maine model for the Electoral College, believing it to be a more fair representation of votes across the country. Even going so far as to conduct a math experiment showing this in practice. Somewhat. My experiment more favored a proportional distribution compared to district distribution of votes. I showed that if that model had been universal, the landslide Electoral College victories of the 20th century wouldn’t have nearly been such a landslide. But it also wouldn’t have changed the outcome: the winner would still be the winner.

I know that getting the Nebraska/Maine model universally across the country is wishful thinking. As much as I’d love to see it happen, if California isn’t willing to adopt it, no other State will follow suit.

But a recent article by Bill Weld and Sanford Levinson, linked above, is going so far as to say that the current “winner take all” model for how States award Electoral Votes is unconstitutional. Sorry, but not even close.

And they assert such through three arguments:

  1. Winner-take-all is anti-democratic;
  2. Millions of votes translate into zero; and
  3. Red state or blue, voters would benefit

The United States is not a democracy. I really despise how often I need to reassert that.

As such being “anti-democratic” is actually the point. The President is to be appointed by the States, not by popular vote. The States just have a bit of latitude in determining how that should happen. Though all States present that question to the People via popular vote, despite being under no obligation to do so under the Constitution.1Article II § 3 of the Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”

That isn’t to say there aren’t any limitations on how the States can award those votes. And that is why, I’ve argued, the National Popular Vote Interstate Compact (NPVIC) is unconstitutional. If a State turns to the People therein to determine how to award the Electoral Votes, then they must not award them in such fashion that is obviously contrary to how those people vote.

And the NPVIC would force that. Had that Compact been in effect in 2004, it would’ve forced the member “blue States” to award their votes to George W. Bush despite the people in those States voting for John Kerry. Something those pushing the NPVIC seem to forget. Do they believe a Republican candidate hasn’t won the popular vote since 1988?

Winner-take-all is not contrary to how the people vote. It’s the name of the game with all Federal and State elections, actually, in which, routinely, “millions of votes translate into zero”. Specifically with the House of Representatives. So why not argue for Representatives to also be elected proportional to the vote rather than via congressional districts?

As I’ve argued in a separate article, proportional award of the Electoral Votes would more accurately represent the popular vote in a State. It would also allow third party candidates to win Electoral Votes where they otherwise would lose out – such as the significant number of votes Ross Perot won in 1992 and 1996, and again with Gary Johnson in 2016. It would also be more in line to how both Democrats and Republicans award delegates in their primaries.

But since “winner take all” doesn’t run contrary to how the People vote, it isn’t unconstitutional.

References[+]

Movies/Politics

“Representation”

Posted on by Kenneth Ballard / 0 Comment

And here’s the original tweet:

And no one is saying it isn’t.

But can we stop acting like gay “representation” in entertainment is something new this decade? And I mean that for everyone.

Will & Grace in it’s initial run from 1998 to 2005 was a rather popular show. Will is a gay man, and so is Jack, one of Will and Grace’s friends. But it wasn’t a show all about Will and Jack being gay and how much they love (or don’t) that they’re gay. It was just one aspect of who they were. They aren’t token gay characters – especially since you can’t really build a multi-season television show around that. They are believable, charming, funny characters for whom being homosexual was just one part of who they were, not the entirety of who they are.

Many other shows as well over the years have had gay characters in one vein or another.

Roseanne had several during its initial run. I believe that show was the first on broadcast television to have recurring gay and bisexual characters: Leon Carp and Nancy Bartlett, respectively. The show was very open about homosexuality and portraying homosexuals as otherwise ordinary people. Imagine that!

The show was the first production to feature a gay wedding in the episode “December Bride“, which aired in 1995, in which Leon marries his fiance Scott (played by Fred Willard), who would become another recurring character on the show with both being good family friends to the Connors. It also showed a rather creative way in which Scott gets some pro revenge on one of Roseanne’s restaurant patrons.

Leon and Roseanne had a contentious relationship at first – Leon was previously Roseanne’s boss – before they eventually become good friends and business partners in Roseanne’s restaurant. Nancy had long been one of Roseanne’s best friends.

The Practice ran from 1997 to 2004 with a diverse recurring cast, and an even more diverse guest lineup across its eight (8) seasons. John Larroquette played Joey Heric, a character who appeared several times in the show’s lineup. His lovers also had a rather… interestingly alarming tendency to end up dead. Heric was also gay. He was a deranged psychopath who delighted in manipulating the legal system to get away with murder. But he was also gay.

It is possible to have a compelling narrative around gay characters merely for those characters being gay. The Simpsons managed to do just that with the episode called “Homer’s Phobia” in 1997. And the Roseanne episode “Don’t Ask, Don’t Tell” from 1994 also accomplished this. But those were also singular episodes, though, not entire series runs.

What about movies? Aside from movies that happened to have gay characters – Gypsy 83 starring Sara Rue comes to mind (kind of a niche film) – were there any movies centered around gay characters merely for them being gay? And by that, I don’t mean film festival movies, but movies starring A-list celebs? Absolutely.

Readily coming to mind is a movie from 1997. Yes, 1997. Kevin Kline starred as Howard Brackett in In & Out. (See it at Amazon Prime, YouTube) Howard was engaged to Emily (played by Joan Cusack), ready to be married, until his life and his town were turned upside down when he was “outed” at the Oscars on national television by Cameron Drake, a celebrity actor from their town. Drake had just won the Oscar for Best Actor for portraying a gay man in the US Army who is dishonorably discharged for that (this was before DADT). And as part of his “thank you speech”, he mentioned Howard and declared him to be gay.

Eventually Howard comes to realize he is gay and comes to terms with his sexuality, coming out at the altar of all places, after being “helped” along by Peter Malloy, a reporter who is also gay played by Tom Selleck. Howard also loses his job due to coming out. Upon learning that at graduation, when they’re surprised Howard isn’t named “Teacher of the Year”, the student body and local community come together in protest to support Howard.

Remember that movie was made in 1997. It’s a very good movie and I highly recommend it. I remember sneaking out to see it as well during high school. I forget what I told my dad I actually intended to do, but he handed me $10 and I went to see it at the local theater in small town Iowa. And everyone in the theater found the movie absolutely hilarious as well. No one as far as I could tell took any issue with the movie being centered around a gay man. No one took issue with Kline’s gay kiss with Tom Selleck.

So, in all seriousness, can we stop acting like gay “representation” in entertainment only started this decade?

* * * * *

Now one can say all they want that an author shouldn’t need a reason to make a character gay, black, trans, or pink with purple polka-dots that change color when rain approaches. And they would be right. What’s needed, though, is a relevant and compelling narrative reason to bring up their sexuality at all. See the aforementioned examples above.

In other words a character being gay or another minority isn’t a story unto itself. We need a compelling narrative around or about the character.

One ready example is Miles Morales, a black-Latino Spider-Man featured in Spider-Man: Into the Spider-Verse, which saw great box-office success. Morales also isn’t just a “black Spider-Man”, Peter Parker with darker skin but otherwise nothing new to offer. He’s a fleshed-out character in his own right. Unfortunately we likely won’t have Miles Morales in a live-action MCU movie anytime soon, though I’m hoping the sequel to Far From Home brings him in.

Speaking of Spider-Man, though, the new MJ – Michele Jones – is also not a biracial version of the previous MJ – Mary Jane Watson. She’s a new character in her own right with her own narrative.

Also from Marvel is Big Hero 6, which features a diverse cast of teenagers working as a team, each with their own personalities and quirks. The Pixar film based on the comics also saw great box-office success.

And no mention of Marvel would be complete without mentioning Nick Fury, since it plays into the new controversy regarding Ariel in the upcoming live-action The Little Mermaid. The original Nick Fury was white. In the Ultimate Marvel universe, he’s heavily adapted after Samuel L. Jackson. Likely the reason that adaptation of Fury was adopted in the MCU. But SLJ’s version of Nick Fury isn’t just a carbon copy of the original Fury with black skin. He’s a new, compelling character. And, arguably, a lot more bad-ass than the original. Because it’s Samuel L. Jackson, so why would he NOT be?

But let’s get back to homosexuality and making characters gay just so one can claim a movie or television show has a gay character.

“How to Get Away with Murder” is another show with a diverse recurring and very diverse guest cast. And recurring character Connor Walsh is gay. Very, very overtly so, actually. But he isn’t just a “token gay character”, a character that exists just to say there’s a gay character. Unlike previously-mentioned characters, his sexuality is actually a very important part of his narrative. As in several instances he cleverly uses it to his advantage, taking advantage of a couple other gay men to get what he needs. And breaking up Michelle’s engagement as well. (Oops!)

Again, though, it seems a lot of people are insisting on making characters gay or what have you for literally no reason except “representation”. Even with characters whose sexuality bears no relevance to the narrative.

Which brings me to Albus Dumbledore. Why did Rowling never mention in the books that he’s gay? It isn’t relevant. Just as it wouldn’t be relevant if Rowling wanted to declare McGonagall to be bisexual. Or say that any of Ron Weasley’s brothers are gay or bi or transsexual. Hermione and Ginny could’ve been a thing at one point for all we know. But almost all of those details would more distract from the narrative than add to it.

Which is what makes Hikaru Sulu’s sexuality in Star Trek Beyond a little nerve-wracking. It was put there merely because George Takei publicly stated he’s gay. No, seriously, that’s the only reason that happened. So they just presumed that Sulu must be gay as well merely because George Takei is gay. But it’s an otherwise irrelevant detail. And there is also no narrative indicator of it throughout the entirety of the original series, including the original movies, hence the backlash to it being included.

This would be like Sara Gilbert trying to assert Darlene Connor as a lesbian in the aforementioned Roseanne merely due to Gilbert being a lesbian. Except that would be worse since it would run counter to the established storyline rather than there being no narrative reason to believe it.

At least David Hyde Pierce hasn’t tried asserting his character of Niles Crane on Frasier as gay. If he were to try, he’d face a significant backlash as such would run counter to everything in the entire 11 seasons of the show. Including one episode where Niles overtly says he is not gay, declining the advances of a gay ski instructor. Indeed his entire run as the character shows how brilliant an actor he can be, as corroborated by being nominated for a Primetime Emmy for Best Supporting Actor every year he played the character. And winning 4 times.

Worst still than that with Frasier would be if Dan Butler tried to retroactively declare his character “Bulldog” Brisco to be gay merely because Butler is gay. Again, it would run completely counter to the character, as anyone who’s familiar with the show would readily say.

And Frasier had its share of gay characters as well through its 11 season run. I’ve already mentioned the gay ski instructor. There was also Lilith’s husband, Brian, who ran off with another man, so she sleeps with Niles to reassert her femininity. But also look for the episode that guest-starred Patrick Stewart. And there was also another episode in which Frasier questions his sexuality following a series of gay erotic dreams.

* * * * *

“But, representation!”

Here’s the thing about writing fiction in general: don’t show what is not relevant. Meaning don’t show a person getting romantically involved with another character unless and until it’s relevant to the narrative.

I think what really has the “representation!” crowd’s panties in a bunch is presumption. That if the reader is not told or outright shown a character is gay, they fear the audience will presume the character is straight. Seriously?

Let me ask this: did anyone really presume that Sherlock Holmes was straight? The original character, not the adaptation portrayed by Robert Downey, Jr.

“But what about Irene Adler?” one may ask in protest, trying to assert that Adler shows that Holmes is straight. Not quite. Here is Watson’s description of Holmes and his fascination with Adler in “A Scandal in Bohemia”:

To Sherlock Holmes she is always the woman. I have seldom heard him mention her under any other name. In his eyes she eclipses and predominates the whole of her sex. It was not that he felt any emotion akin to love for Irene Adler. All emotions, and that one particularly, were abhorrent to his cold, precise but admirably balanced mind. He was, I take it, the most perfect reasoning and observing machine that the world has seen, but as a lover he would have placed himself in a false position. He never spoke of the softer passions, save with a gibe and a sneer. They were admirable things for the observer — excellent for drawing the veil from men’s motives and actions. But for the trained reasoner to admit such intrusions into his own delicate and finely adjusted temperament was to introduce a distracting factor which might throw a doubt upon all his mental results.

Adler is the only woman to outsmart him. Holmes readily presumes most people he encounters to be intellectually inferior to him. He undoubtedly thought such of Adler. Yet she managed to outsmart him, outwit him. For that he has forever respected her. His fascination with her was never romantic, but always intellectual. She was the woman.

To take their connection and assert that Holmes is undoubtedly heterosexual requires reading well beyond what is evident in the storyline. Indeed Watson’s description of Holmes places him, if he must be labeled, as asexual. He also rarely shows really any emotion, believing it to inhibit his reasoning ability.

And there are numerous other characters for whom we can say their sexuality is largely irrelevant and for which there is also no narrative indicator in any direction. Palpatine comes to mind. He lusts only for power. Most of the Jedi neuter or spay themselves with the Force (and some probably literally so) so who knows what kind of mixed bag existed there. The same with most of the officers in the various Star Trek renditions. This includes Hikaru Sulu.

In all the above cases, their sexuality largely didn’t matter since it doesn’t serve any particular narrative. If someone wants to presume those characters are all straight, gay, or bisexual, that’s their prerogative. But there isn’t anything in the narrative they can use to support such a presumption.

Again, the pushback isn’t about having gay or lesbian characters since, again, there have been plenty over the years that have been very well-received by audiences. I’ve already demonstrated plenty of examples above. The pushback is about having a gay or lesbian character without any substance, or making a character gay or lesbian overtly for no narrative reason. Or taking an established character and making that character gay or bisexual either for no narrative reason or in contradiction to all established narrative.

Yes we know that homosexuals exist. And homosexuals have been portrayed in television and other media for the last several decades, if not longer, without issue. There are and have been many well-received gay and lesbian characters over the years.

It is in recent years, however, where people seem to think this is only a recent phenomenon.

At the same time, if “representation” really concerns you, make new, compelling characters who are also homo or bisexual rather than insisting on changing or “rebooting” established characters with the sexuality or other minority status of your choice.

Democrat platform/Economics/Free speech and press/Health care/Second Amendment/Socialism

Once a government…

Posted on by Kenneth Ballard / 0 Comment

A friend of mine recently tagged me on Facebook to ask my opinion on this. Below is my response with some enhancements and additions.

* * * * *

Quoting for accessibility:

  • Once a government provides you with basic utilities –
    • The government can then decide when to turn them on and off.
  • Once a government pays for all your education –
    • The government can then control the education and career you get to have.
  • Once a government provides you with food
    • The government can then decide how much or if you get to eat.
  • Once a government pays for your housing –
    • The government can then control where you can live.
  • Once a government pays for your healthcare and medicine
    • The government can control whether or not you are valuable enough to allow to live.
  • Once a government gets you to agree to gun control
    • You have NO way to prevent that government from doing everything listed above

* * * * *

A government big enough to give you everything you want, is a government big enough to take away everything that you have.

— Paul Harvey, “Remember These Things“, 1952

“Once government provides you with basic utilities -“

I live in a county where the county provides the water and electricity. Right now they can’t cut off utilities for anything except failure to pay. But there is nothing except diligence by voters stopping them from instituting other… conditions on your utilities. It’s one of the reasons off-grid power (solar panels with battery backups) is growing in popularity in places where counties control the basic utilities.

“Once the government pays for all your education -“

We already see this to an extent. With the education, not yet the career. The government controls the curriculum. We saw this with the introduction of “common core”, which was introduced by government fiat without any kind of say by the teachers and parents, and in some instances against any protest.

Which it’s rather interesting how the left pushes back against the right’s badly-veiled attempts to get creationism in public schools, yet largely didn’t push back against “common core” when it was introduced… while Obama was in office.

Until they saw what that meant.

At which point it was largely too late to do anything.

“Once government provides you with food -“

All you have to do is look at the SNAP program. Plus we had rationing by government fiat “for the war effort” during the Second World War. Many New Deal programs also instituted massive controls over the American economy for the explicit purpose of bringing the Great Depression to an end.

Except there is consensus among economists that the New Deal programs prolonged the Great Depression. That’s why when those programs were ended after the War, we had massive prosperity going into the 1950s after a short stint with another depression immediately after the war. Yes, contrary to what people have been led to believe, the Second World War didn’t actually end the Great Depression. It just pushed it to the side.

“Once the government pays for your housing -“

Section 8 housing already falls within this.

When you have a choice over where to live, landlords will compete for your money. Most renters can get up and leave most any month, so a lot of landlords will do what they can to keep you there. Because vacant apartments and homes are cash sinks. The landlord is responsible for utilities and upkeep when no one is living there, and they have no income from rent to offset the mortgage, property insurance, and property taxes.

With Section 8, however, while vacant apartments pose the same issue to the property, how much they get for each apartment is also controlled by the government. Who can live there is also controlled by the government – there is an income CAP at such complexes, because if you make too much, you don’t qualify for the Section 8 assistance.

But everything I’ve read about Section 8 housing also shows it to be “bottom of the barrel” in terms of quality, because the complex knows that those who live there largely don’t have any other choice. So there’s no need to compete with other Section 8 complexes for residents.

And that’s largely the crux of giving the government so much control over our lives: it takes away our choices. And without choices, you don’t really have any freedom.

“Once a government pays for your healthcare and medicine -“

And this is happening in countries with universal health care. Proponents of “health care as a right” don’t want to talk about that reality because they seem to think they can tax the rich enough that everyone else will be prosperous and everyone will get whatever care they need regardless of the cost.

Which shows they don’t understand wealth as a concept, nor do they understand the basic realities of economics.

There are numerous horror stories about universal health care. Much the same horror stories with private health insurance – grandma not getting her medicine, kind of stuff – only it’s patients being left to die in hospitals so the beds will be freed up, surgeries being denied or massively delayed, and other forms of rationing such as wait lists to see a doctor, and so on. At least in the United States, you’ll get care if you need it, even if it’s at an emergency room – where I ended up back in March (with the premium to go with it) when I had that dental abscess flare into massive swelling in my jaw and cheek. And there are charities and foundations and other forms of financial aid to help with the cost. And, yes, crowdfunding as well.

Whatever care is *necessary* to your wellbeing, you can get it in the US, and the hospitals and clinics will help you figure out how to cover the cost later. If you need prescription meds and can’t afford it, the manufacturers have programs where you can get your medicine at reduced or no out-of-pocket cost, either through a local pharmacy or directly from them (with some exceptions as required by law, e.g. opiates).

One thing to bear in mind with so-called “universal” health care and “health care as a right”: he who pays the piper calls the tune. And while many would consider the idea the government should decide who gets to continue living is far-fetched, it also isn’t new.

And I think it would be a good thing to make everybody come before a properly-appointed board – just as he might come before the income tax commissioners – and, say, every 5 years or every 7 years, just put him there and say, “Sir or Madam, now will you be kind enough to justify your existence?”

If you can’t justify your existence, if you’re not pulling your weight in the social boat, if you’re not producing as much as you consume, or perhaps a little more, then, clearly, we cannot use the big organization of our society for the purpose of keeping you alive because your life does not benefit us and it can’t be of very much use to yourself.

— George Bernard Shaw, playwright and Fabian socialist

“Once a government gets you to agree to gun control -“

Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote.

— Marvin Simkin in his article “Individual Rights”, 1992-01-12

Majority rule will only work if you’re considering individual rights. You can’t have five wolves and one sheep vote on what they want to have for supper.

— Larry Flynt

While democracy is five wolves and a sheep voting on what to have for dinner, a well-armed sheep can contest that vote. Whether the sheep prevails is immaterial. What matters is whether the sheep has the ability to do so. Not having that ability means a 0% chance of prevailing. And it seems that a lot of people on the left want everyone else (who doesn’t agree with them lock step) left without the ability to contest.

With self defense, a firearm is the ultimate equalizer. It can stop a confrontation that is escalating from escalating further. It gives a 125lb, 5′-tall woman power to defend herself against a 6′-tall, 250lb man. It gives an older man the ability to prevail against a younger, stronger, more agile person who initiated a violent confrontation.

Rifles gave the Colonists the power to fight off what was then perceived as the most powerful military in the world. Which is why the first task of that military, which directly led to the Revolution, was seizing arms from those colonists.

Until the late 19th century in the United States, the People had the same firepower as the government. There was no distinction between civilian and military weaponry “meant for the battlefield”. It was only going into the 20th century that there started to be a power disparity in that regard that only grew from there. Even in the 19th century, private merchant vessels had cannons to ward off pirates. Today… not even cruise liners have armed security, and most who sail their own yachts also don’t keep arms onboard. Granted the saltwater air over the open ocean would wreak havoc on the steel in most firearms, but there are ways to combat that. After all they needed that kind of protection for the cannons and cannonballs.

Now the First and Second World Wars drove a massive arms race in which the United States ultimately won the checkered flag. But in the United States while war drove advancements in arms, those advancements eventually made it to private hands. And with personal arms (rifles, pistols, etc.), this has still held true. But not with everything else.

Instead the only thing that would keep the “everything else” from being turned on the People of the United States are the military officers in charge of that “everything else”. Officers who take an oath to the Constitution of the United States, not the government. But as we saw during the Second World War, even military officers aren’t immune from the kind of brainwashing that could push them to turn their firepower on the people they are supposed to be defending from tyranny, not installing tyranny over.

Double jeopardy/Due process

Mississippi man facing 7th trial on same charges

Posted on by Kenneth Ballard / 0 Comment

The Ninth Amendment to the Constitution of the United States is quite simple in its language:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

It is arguably the most overlooked Amendment to the Constitution. But it is also the most important in my opinion. I’ve argued here that even if the Second Amendment were repealed, the Ninth Amendment would still preserve a right to keep and bear arms. Removing the enumeration of it from the Constitution doesn’t erase the right.

And it is the Amendment that has been cited whenever the Supreme Court of the United States “finds” rights, such as the right to privacy inherent to several other protections the Supreme Court has afforded the People.

Among the enumerated rights in the Constitution is the protection against double jeopardy. But the trade-off on this protection is the Courts declaration of when jeopardy “attaches”. And generally it’s accepted that jeopardy attaches when a jury renders a verdict. But jeopardy is nullified if the conviction is overturned and a new trial ordered.

Which is why a man in Mississippi is currently facing a 7th trial on the same charges. I wish I was making that up.

49 year-old Curtis Flowers is facing his 7th trial on capital murder charges. His most recent conviction was overturned by the Supreme Court of the United States, citing racial bias in the jury selection.1Flowers v. Mississippi, 588 US ___ (2019) Trials four and five ended in hung juries.

One could definitely argue that, even though jeopardy technically hasn’t attached to Flowers, the Constitution does not allow what appears to be seemingly endless attempts to get a conviction that sticks. While the Constitution specifically calls out double jeopardy in the Fifth Amendment, the Ninth Amendment surely protects a right against endless attempts to get a conviction.

Right now Flowers is trying to get the indictment quashed while also trying to secure bail, saying there should be a limit to “oppressive retrials”. And I agree. Six tries is beyond too many. This man has been in and out of jail, on trial and not for 20 years. At what point do the Courts say that enough is enough and quash an indictment with prejudice? Flowers’ case should become precedent on that mark.

Update: The Mississippi Attorney General filed motion to dismiss the indictment against Flowers, and the Fifth Circuit District of Mississippi dismissed the indictment with prejudice on September 4, 2020. This is, in effect, an acquittal as this indictment cannot be later revived.

References[+]

Debt

So close to getting it right

Posted on by Kenneth Ballard / 0 Comment

Article: What’s the Statute of Limitations on Credit Card Debt?

A lot of articles get debt collection wrong in some way or another. I’ve yet to find an article that gets the facts completely correct that I didn’t also write. And so too is that the case with the article above discussing the statute of limitations. Which is a topic even the United States Federal government, specifically the Consumer Financial Protection Bureau, got horribly wrong.

Why do these writers insist on telling debtors to ask debt collectors whether a debt is still within the statute of limitations?

First the statute of limitations is the maximum amount of time a creditor has to pursue a debt through the Court. That is all. It doesn’t mean they cannot come after you outside Court for the debt. The only way to stop that is to send them a letter – yes, it must be in writing – telling them to stop contacting you.

So how long is the statute of limitations? Well, that depends. I’ve typically said the statute of limitations depends on the resident State of the debtor. That is… not entirely true. And the article linked above reminded me of one particular concept in contract law that slipped from my mind because it typically isn’t something we need to worry about.

The duration of the statute depends on which state is identified in the contract or the state you live in, and the type of debt in question.

“depends on which state is defined in the contract” brings up the concept of contract jurisdiction and the jurisdiction clause. This clause provides for which State’s laws shall control the contract terms along with the specific Court that shall have original jurisdiction for any claims arising under it. As an example, here’s a jursidiction clause from a photography agreement I’ve written:

This agreement shall be governed by the laws of the State of Kansas and Johnson County therein, and the laws of the United States of America where applicable. The Parties submit to the jurisdiction of the Johnson County District Court, Tenth Judicial District of Kansas, for adjudication of any disputes and/or claims arising under this agreement.

The Parties submit to the jurisdiction of the United States District Court for the District of Kansas for any claims arising under any statute of the United States Code, including, but not limited to, any claims regarding copyright.

Most of the time, the jurisdiction of the contract will be the Court of competent jurisdiction over the party accepting the offer in the contract. When I lived in Clarke County, Iowa, for example, any contracts I signed to which I was accepting an offer would likely state such. It tends to make things much easier on both parties. For example if you sign a contract for any kind of remodeling or construction on a home, that work must abide by the building codes for where the work is taking place, so that will generally be the stated jurisdiction of the contract.

But any jurisdiction statement is still subject to the law where the contract was enacted.

For credit contracts, however, any jurisdiction statement is overridden by Federal law, specifically 15 USC § 1692i(a), which provides that any legal action – again, the jurisdiction for enforcing the contract – must be brought in the Court over which the contract was signed (where you lived when you opened the credit account), or the Court over which the debtor resides at the time of the lawsuit.

So if you live in New Hampshire and the credit contract tries to stipulate that all actions under that contract shall be enforced by a Court in Hawaii, that clause is unenforceable under Federal law unless you lived in Hawaii when you signed the credit contract. Not to mention that clause would likely also be unenforceable under Hawaii law since you live in New Hampshire, so Hawaii wouldn’t have jurisdiction over you with regard to the ongoing enforcement of the contract.

Not saying such doesn’t happen. There’ve likely been shady creditors who’ve tried to do that. But the vast, vast, vast majority of debt collection lawsuits are filed where the debtor lives, since having the judgment through that Court opens up enforcement options. As an example from my history, I used to have a credit card with CapitalOne. I lived in Polk County, Iowa, when I opened the account. And it fell into collections while living there as well. But I lived in Clay County, Missouri, when they sued me, and they sued me through the Missouri 7th Judicial District Court in Clay County.

But with regard to the statute of limitations, which laws control? That depends on where the creditor seeks to enforce the contract. Again Federal law gives them only two options: where you lived when you opened the credit account, and where you live when they file the lawsuit. So when it comes to the statute of limitations, those are the only two controlling options, contrary to the article:

Check your original agreement for language specifying a choice of state law or “governing law” that might apply to your debt. Although courts are not bound to this choice, it may impact which statute of limitations that courts may consider in their decision.

“Governing law” is another name for the jurisdiction clause I mentioned earlier.

A Court cannot enforce laws outside its jurisdiction. The contract cannot override that. A contract legally cannot state that the parties will seek to enforce the contract in Kansas while its “governing law” will be Florida, for example, since Kansas Courts cannot apply Florida’s laws. They can only enforce and apply Kansas law since it is under Kansas law the Kansas Courts are established.

The article goes on to talk about debt re-aging and how to avoid it. This is where my earlier question comes in: why do these writers insist on the debtor asking the creditor if a debt is time-barred?

The Federal Trade Commission’s Fair Debt Collection Practices Act requires a debt collector to respond honestly when asked whether a debt is time-barred. A debt collector can contact you about the debt but might not mention that the debt is time-barred or might choose not to answer you.

Or they may choose to say “I don’t know” since they likely can’t really know. Answering that question would require knowing the entire payment history of the debt, something the collector may not have readily available.

Beyond that, an expired statute of limitations is an affirmative defense to a lawsuit, to be raised by the defendant to the lawsuit at Court. It means literally nothing outside of Court. No, seriously, it doesn’t. As the above-linked article states, correctly, nothing in law stops a debt collector from continuing to pursue a time-barred debt outside Court. Nothing, that is, except you telling them in writing to stop contacting you.

So let’s say you have a time-barred debt, and the collector is threatening to sue you. The article writer suggests… filing a complaint with the FTC.

You can submit a complaint to the FTC regarding unfair debt collection practices, such as if the collector threatens to sue you for a time-barred debt.

Ugh…

Here’s the thing about filing a complaint with the Federal government: nothing will come of it unless they get a lot of complaints about one company. So there really isn’t much of a point. They won’t act on singular complaints, and likely won’t act on any complaints if they all come from one State with the company also being located within that State since that may fall outside their jurisdiction. Remember the Constitution grants the Federal government only the power to regulate interstate commerce.

Instead you’re better off just telling the debt collector to stop contacting you. Don’t tell them you think the debt is time-barred. Don’t tell them you know the debt is time-barred. Just tell them only to stop contacting you without any reason. Once you’re certain the debt is time-barred, that is. Since the burden will be on you if you’re sued to prove it to the Court. Meaning if the creditor can show the debt has been re-aged or that your records aren’t accurate and the debt isn’t time-barred due to a payment you forgot you made, you’re sunk, and you’ve got a judgment against you now as well.

Navigate the waters of the statute of limitations carefully. If you’re absolutely certain the debt is time-barred, then proceed forth in telling the debt collectors to go away, as you’ll have your legal defense ready should they sue. Otherwise, proceed carefully by exercising your legal right to debt validation.