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  1. RetiredinVA: The whole point of the post is that carriers do NOT have a secured interest in the phone.
  2. http://www.phonearena.com/news/All-major-US-carriers-agree-to-build-a-database-of-stolen-phones-to-prevent-theft_id28936 The creation of the stolen phone database.
  3. BTW, when I spoke to a TMobile rep about this common database I was informed that a phone where there is an outstanding unpaid/overdue balance is deemed to be fraudulently obtained and thus the carrier has the right to add it to the database of "stolen" phones. This was not the intention of the FCC when creating the database. The database has now been re-purposed to collect debts or brick phones bought by innocent third parties for value in the ordinary course of business. This arena is ripe for a class action suit. Clearly someone in bankruptcy did not fraudulently obtain his phone. He took a loan for it and had the loan was discharged. The carrier is out the outstanding balance due on the phone. Period. This goes to highlight the bad faith on the carrier's part in using the database--there clearly was no fraud here. If carriers want to turn their unsecured loans into secured loans they should just create a secured interest in them by filing the requisite UCC-1 with the state and amending their loan agreements accordingly to reflect that the cell phone is a secured asset and the carrier has a secured interest in it. The solution they use now- re-purposing the common database- is flat out wrong and innocent third parties are paying the price for it.
  4. adjusterjack, While your analysis is good I see it a different way. I am being respectful here, not a flame response so please don't take it this way. TMobile does not have a "secured" interest in the phone under the UCC. There is no language in the customer agreement that creates a "secured" interest, nor have they filed the requisite UCC-1 with the state to "publish" the lien.The TMobile debt was discharged in Bk. The cell phone should have been listed as an asset on the Bk asset sheet of the debtor and made available to ALL unsecured creditors (or permitted to be kept by the debtor by the Court). By blacklisting the telephone, which should have been listed as an asset, they have effectively created an unrecorded "lien" on the phone and made the asset unavailable to be sold to pay off other unsecured creditors. Again, this comes back to TMobile and other service providers creating a "constructive lien" on the asset, not the person. Basic UCC first year law school law provides that a bona fide purchaser of goods in the ordinary course of business who is unaware of the claim of another party obtains clean title. It is TMobile's right to refuse to do business with an individual. However, when they refuse to do business with an asset (the cell phone) because their is an outstanding balance owed by a prior purchaser, they are creating a "secured lien" where none exists. This matter is made even worse when they refuse to let the subsequent purchaser payoff the outstanding balance to release the claim. (Yes, I understand the laws about disclosure of financing arrangements to third parties, but why do you enforce one set of rules and refuse to abide by others.) The case is highlighted even more so when TMobile and other carriers refuse to do business with a cell phone where another carrier, not they themselves, have an unpaid balance. So, as one writer above provides, he bought an unlocked cellphone from a third party that had been purchased from AT&T and AT&T had an unsecured outstanding loan due on the phone to the original purchaser, not a subsequent bona fide purchaser for value, but TMobile refused to do business with the phone and the subsequent purchaser until the AT&T balance was paid. All cell phone providers have a shared database that all carriers input information relating to ESN/IEME numbers of cell phones with outstanding balances and one provider will not give service to a phone that has an outstanding balance with ANOTHER provider. Carriers determine that an unsecured loan was made vs the cellphone by accessing this common shared database This is an industry practice to collect debts and they are all in collusion. They each respect the others debts as their own and refuse to do business with the CELLPHONE, not just the individual that was the original purchaser who took out the unsecured loan. This is a constructive secured lien and is illegal under the law. BTW when I told this to the TMobile rep he said, "You should just buy your phone from TMobile, not from anybody else."
  5. I have attempted to do research on this and believe I have an answer but I guess I need case law to back me up and cannot find it. Facts: Bought used Nokia Lumia cell phone ("handset") on EBay for approximately $250 in mid November 2013 from seller in another state (Idaho). I live in NY. Checked that phone was not stolen and took it to T-Mobile for service a day or so later. Used handset successfully for six weeks on T-Mobile when suddenly on December 26, 2013- six weeks later- T-Mobile "blacklisted" the handset. Blacklisting an EIME means that neither I nor anyone I may sell the handset to can use the phone on T-Mobile. The phone is only able to be used on T-Mobile by design. Thus this "blacklisting" renders the handset useless for its primary function-- as a cell phone and thereby diminishes its value to me and diminishes my ability to re-sell the phone in the secondary market. Calls to T-Mobile reveal the handset was owned by two other people, the original owner and a subsequent purchaser who never used/registered the phone (the EBay seller I bought the handset from who appears to sell other used and new cell phone items thus potentially qualifying him as a "merchant"). T-Mobile advised me that the EIME (the handset's unique serial number- EIME is what carrier's use to identify a telephone) was originally registered to the unnamed original owner who purchased the handset with a financing arrangement typical of those offered by T-Mobile and every other carrier. The the unnamed original handset owner had stopped paying his bill for the handset in accordance with the original owner's agreement with T-Mobile. T-Mobile would not tell me when the original owner stopped paying his bill. (This may be regulated by privacy laws.) T-Mobile admitted that if I had called them and asked if there was a lien or unpaid balance remaining on the handset that T-Mobile would not have provided that information to a subsequent potential or actual purchaser. Thus, I, nor anybody else, could not have been "on notice" that an interest was held by T-Mobile. I had no knowledge that there was an outstanding balance on the telephone and do not know the identity of the original owner or his original state. T-Mobile advised that it would not let me pay the amount of the unpaid bill-- I figured this would be cheaper than buying a new handset. In fact, T-Mobile would not even disclose to me the amount of the unpaid balance. Throughout the conversations with multiple T-Mobile reps during this lengthy call, I was advised to try and get in contact with the original owner and get them to pay the outstanding debt, essentially turning me into T-Mobile's debt collector. Prior to the call with T-Mobile I did basic legal research (very rudimentary..) and believed, correctly or not, that the UCC governed this transaction and that in NYS clean title passes to a subsequent buyer for value who is without knowledge of the original interest of T-Mobile. (UCC 2-403) After explaining this to the T-Mobile rep and going on about the difference between buying a used car where there is a title and a handset where there is no title revealing a lienholder, the T-Mobile rep spoke to more managers who advised that although they personally believed it was bad policy and wrong, they were sticking by T-Mobile's policy and not un-blacklisting the handset's EIME. I had to go to a T-Mobile store and buy a new handset for $500 to replace the one that they rendered useless by blacklisting. I understand the concept of "notice"- i.e. I need to have notice of the outstanding debt for them to be able to successfully assert their claim and I believe that T-Mobile fails badly here. They wouldn't disclose the existence of a debt even if I had called. The other issue I discovered is that I believe that T-Mobile has no "secured interest" in the handset. My wife and daughter bought IPhones from T-Mobile around the same time that I began using T-Mobile. I looked at the contract and all the paperwork that was given to them and nowhere in the contract is the handset referred to as collateral or does the contract mention that the handset is "secured" or that there is a secured interest in the handset- nothing remotely relating to this. The contract promises to repay and the purchaser does not at any point grant a security interest in the handset. The contract is merely a financing arrangement and not a security agreement. The blacklisting of the handset's IEME is what I have termed "constructive repossession" and intentional destruction of value of the handset even though they know it not in the original debtor's possession. If only $20 was left on the repayment, why are they blacklisting the handset? Additionally, T-Mobile was essentially "on notice" that the handset had a new subsequent owner (me) for six weeks before it blacklisted the handset. It had a duty to determine if it was blacklisting a subsequent bona fide purchaser and not the original owner. The T-Mobile rep stated that they don't care who owns the handset- a bill, with and undisclosed amount and uncurable by the subsequent purchaser, was due and they wanted their money. But they wanted it only from the original owner. This drives people to buy solely from T-Mobile and effectively kills the secondary market for handsets. OK, this has been a long enough fact pattern/analysis. Any help anybody can give is greatly appreciated. The T-Mobile rep stated that they field many calls like mine where subsequent purchasers of used handsets find out, surprise, that there is an undisclosed outstanding balance by the original owner and that no matter how many intervening owners there are, T-Mobile holds the outstanding balance against the EIME of the handset. I mentioned that that makes this a good class action case. He agreed but abided by his employer's policy. Again, thanks for your time and any help is appreciated.
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