[nov07]

Hi everyone,

I will try to be as succinct as possible with respect to the facts of my case. As the result of a lawsuit that was filed against me in New York, I sent the debt collection a demand for a Bill of Particulars. The debt collector that is suing me inherited the debt via assignment from a previous debt collector. Here is a breakdown of the responses I received to some of the questions posed in my demand:

1. The transfer rights to this debt was executed by assignment.
2. The debt collector claims that it mailed verification letters on several different occasions.
3. When I posed the question "Does there exist a verifiable, bona fide, original instrument between the debt collector and alleged debtor containing the alleged debtor's bona fide signature," the response was that "Discovery and investigation are on-going and continuing."
4. When I posed the question "Does evidence exist of verifiable external acts(s) verifiable he objective semblance of agreement between debt collector and alleged debtor," the response was "Objection. Request is vague and ambiguous. Without waiving said objection Plaintiff states that investigation and discovery are ongoing."

In an affidavit from the Records Custodian for the debt collector, the Records Custodian alleges that I made the payment on the account prior to the date that the Original Creditor charged- off the account; on or about August 23, 1999. On March 31, 2000, the Original Creditor charged off the unpaid balance as uncollectible. The Records Custodian claims that I made payments to the account after this date to the previous debt collector, with the last payment being made to the previous dent collector on October 8, 2002, in effect restarting the accrual date of calculation of the statute of limitations on the account. The current debt collector bought this debt on December 27, 2002. The debt collector attached a copy of what they have labeled their monthly account balance for this debt.

I was thinking of sending an additional demand for a Bill of Particulars where I would ask that the debt collector:

1. State if they have cancelled checks, cash receipts, etc. to sustain their claim that the last payment on the account was made to the previous debt collector on October 8, 2002. My thinking is that a copy of what they have labeled their monthly account balance for this debt is not sufficient in itself to prove that I made this payment(s). Is that correct?

2. Am I correct that the debt collector must provide a copy of the original contract with my signature, or at the minimum a copy of the account statements from the original creditor? If so, since this debt collector bought this debt from another debt collector who bought it from the original creditor, would they need to provide a signed contract with my signature, along with account statements from that debt collector as well?

3. Ask them to state whether the original contract states the following "debtor agrees to be responsible for payment of this debt to creditor OR ITS ASSIGNS."

4. Ask them via what method they sent the verification letters i.e. regular mail, certified mail, etc. I would like to see some proof that they actually sent me the verification letters they claimed they did, but I suppose they can just claim that they sent it to my address. However, am I correct in stating that failure to dispute a debt within the 30 day time frame does not mean that I agree with the validity of the debt, that is, failure to request validation is not an admission that the debt is valid, nor does it preclude the debt collector from proving that the debt is valid.

Any assistance you can provide would be greatly appreciated. Thank you.

[ScottGem]

1) The do not have to have cancelled checks nor would they. All they need is an account statement showing the payments.2) Yes you are correct3) You can ask but that's a fairly standard clause. Debt contracts are certainly a saleable commodity.4) Failure to respond to a summons within 30 days will usually result in a default judgement. You can motion to vacate but the judgement would stay in force until a judge's decision is made.P.S. Please don't ask questions via PM.3)

[nov07]

Hi ScottGem,

I'm sorry to have sent you a private message.

I have already answered the summons. My court date is scheduled in late November 2007. If I am understanding you correctly, you are saying that they need not provide cancelled checks, but rather their generated monthly account statement would suffice to prove that I made a payment to the previous debt collector that set the clock back in motion? Should I request that they produce an original contract signed by me?

Thank you and sorry again for the private message.

[ScottGem]

Yes definitely, they have to prove the debt exists, they have the right to collect it and that the SOL has not expired.

[nov07]

Ok, so since the account statements can be utilized as "proof of payment," would you suggest that I don't bother in requesting that they produce a cancelled check, cash receipt, etc?

Also, I was thinking of submitting an "Order to Show Cause" to the court requesting that the court compel the debt collector to answer the question of whether there exists, and they possess, the originally signed contract with the original creditor. My thought is that if I ask the court to compel them to answer the question of whether an original contract with the original creditor signed by me exists and is in their possession, I will:

1. Find out whether they possess the original contract with the original creditor signed by me in 1995.

2. If they don't have the contract, then I think I am correct in assuming that they cannot prove the debt exists; therefore, I would ask that the court dismiss the case.

Would you agree with this strategy? Thanks again!

[ScottGem]

What you are forgetting is that cancelled checks and receipts are the property of the payor not the payee.

Their answer would appear to be that they are still investigating. If they can't produce the proof by your hearing date, then it's a good chance the suit will be dismissed. But you appear tpo have already made the request for the info.

[nov07]

I haven't asked them to produce any cancelled checks or receipts. I was going to make that request, but it seems that you may be advising against that, rather, suggesting that I wait until the hearing date to see what, if any, proof of payment they may have to produce.

Thanks.