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Fighting_the_Deb · Sep 1, 2007, 07:14 PM

I have a very specific question about FDCPA. I'm trying to figure out if these creditors have violated the FDCPA in a major way.

I have an old cc debt, it has been in collection with several different law firms over the last few years. I finally decided to man-up to it, and replied to the last letter I had received and sent a validation of debt letter, as I have absolutely no records of the debt. I also sent the same letter to the collection agency, CACH. The only response I received was a letter from a local attorney's office with the standard, "you owe us this amount or else... you have 30 days to dispute". I disputed with another validation of debt letter within 3 days, and was then served with a "summons and complaint" with no further word from anyone.

Now, I know that once you have sent a letter seeking validation of the debt all collection activity must cease until proof has been provided, but by the literal reading of the FDCPA legal action can still be taken. I've read elsewhere that a judgement cannot be entered against you as that is considered debt collection activity. So, when I was served a summons and complaint, is that considered collection activity? Or is that they only cannot get a judgement against you?

A speedy response would be appreciated. I am due in court for a pre-trial on Thurs and am representing myself and am trying to be as prepared as possible.

Thanks for all your help!

Fighting_the_Deb · Sep 1, 2007, 07:47 PM

At what point in time does it become too late to file an notice of discovery? They sent me something just a couple of days ago that was supposed to be validation of the debt, but was more of less just a history of the account in collection in the last couple of years. As far as I can tell, they have absolutely nothing. So, should I just wait until the pre-trial and see what they have with them? Is it pointless to try and file a notice of discovery now?

5683HUGGS · Sep 17, 2007, 04:15 PM

What happened at the hearing 9/6? What happened since your last posted? Did you win?

sunny07 · Sep 17, 2007, 06:41 PM

Originally Posted by Fighting_the_Deb

At what point in time does it become too late to file an notice of discovery? They sent me something just a couple of days ago that was supposed to be validation of the debt, but was more of less just a history of the account in collection in the last couple of years. As far as I can tell, they have absolutely nothing. So, should I just wait until the pre-trial and see what they have with them? Is it pointless to try and file a notice of discovery now?

What happened at the court?

Fighting_the_Deb · Sep 18, 2007, 05:02 AM

I did go to the pretrial. It was a complete waste of time and getting nervous! I told the judge my name and that was all I said. She declared no discovery, and set a mediation date that is 9/25. I did talk to the lawyer, and he seemed nice enough, though I still don't trust him. He tried to intimidate me by telling me that I had run out of time to dispute the charges, as I only had 30 days after the charges were made to dispute them. I quickly informed him I was aware of that law, but that it was only in the case of fradulent charges and didn't apply to me. He offered to settle and asked me how much I would settle for. I told him only the original credit limit, since I had no proof of anything beyond that. He refused that amount. He asked what I needed to see as proof. I outlined everything I have sent them in writing several times and also was in my answer. He said that they had all that... then why haven't you given it to me? This is just a big run around. I''m getting tired of dealing with it, and am thinking of hiring a lawyer.

ScottGem · Sep 18, 2007, 05:44 AM

You are doing good. Did the lawyer say he will send the proofs prior to the hearing?

mr.yet · Sep 18, 2007, 05:52 AM

Originally Posted by Fighting_the_Deb

I did go to the pretrial. It was a complete waste of time and getting nervous! I told the judge my name and that was all I said. She declared no discovery, and set a mediation date that is 9/25. I did talk to the lawyer, and he seemed nice enough, though I still don't trust him. He tried to intimidate me by telling me that I had run out of time to dispute the charges, as I only had 30 days after the charges were made to dispute them. I quickly informed him I was aware of that law, but that it was only in the case of fradulent charges and didn't apply to me. He offered to settle and asked me how much I would settle for. I told him only the original credit limit, since I had no proof of anything beyond that. He refused that amount. He asked what I needed to see as proof. I outlined everything I have sent them in writing several times and also was in my answer. He said that they had all that..... then why haven't you given it to me?! This is just a big run around. I''m getting tired of dealing with it, and am thinking of hiring a lawyer.

You are doing just fine,:) now the mediation hearing, do not admit until they show proof of their alleged claim, they produce the original contract you signed and have provide all the information and document you have requested, nothing less. THey must provide validication of the alleged debt as requested.

sunny07 · Sep 18, 2007, 06:38 AM

Originally Posted by Fighting_the_Deb

I did go to the pretrial. It was a complete waste of time and getting nervous! I told the judge my name and that was all I said. She declared no discovery, and set a mediation date that is 9/25. I did talk to the lawyer, and he seemed nice enough, though I still don't trust him. He tried to intimidate me by telling me that I had run out of time to dispute the charges, as I only had 30 days after the charges were made to dispute them. I quickly informed him I was aware of that law, but that it was only in the case of fradulent charges and didn't apply to me. He offered to settle and asked me how much I would settle for. I told him only the original credit limit, since I had no proof of anything beyond that. He refused that amount. He asked what I needed to see as proof. I outlined everything I have sent them in writing several times and also was in my answer. He said that they had all that..... then why haven't you given it to me?! This is just a big run around. I''m getting tired of dealing with it, and am thinking of hiring a lawyer.

So, the lawyer from the collection agency actually showed up at court? Were they from your local area? Or from other state?

Fighting_the_Deb · Sep 18, 2007, 12:32 PM

The lawyer is from a local firm. He indicated he would have the documents I requested at the mediation. I have since sent them another letter in response to their supposed validation, saying that it is not adequate, seeing as how it has nothing but my name, current address, acct #, and SSN. It was supposed to be 16 pages (as numbered at the bottom) and I received only 4, so I put that in the letter too. Just trying to cover every base. :)

There is a court date set up too, in the likely event that no agreement is made. I'm just getting tired of all this JUNK!! It feels good to be doing well at it, but it's tiresome to do it all myself. Hence considering a lawyer.

sunny07 · Sep 18, 2007, 03:25 PM

Originally Posted by mr.yet

You are doing just fine,:) now the mediation hearing, do not admit until they show proof of their alleged claim, they produce the original contract you signed and have provide all the information and document you have requested, nothing less. THey must provide validication of the alleged debt as requested.

Mr.yet
I've been following the answers you've given to many people and it seemed to me that you are pretty much on the ball with these credit card law suit issues. What do you think the odds are to have out of state collection lawyer or their reps to show up in the court to fight their claim? I am in Ohio and they are located in KY. I guess it is about 3 or 4 hours away at the maximum. I just like to know how much I should prepare for my suit.

Fighting_the_Deb · Sep 25, 2007, 11:52 AM

Here's the UPDATE!

I went to the mediation hearing, and they actually had all the proof! I couldn't believe it. We discussed settlement options. I said I would pay half of the charge off amount. (Charge off amount was $1298, they were seeking $1856, credit limit was $400) He said that was lower than he was authorized to accept. I had a budget with me, which shows I have $20 left over ea month. He said I could sign an agreement for the $20/mo and then he could ask his clients to take the lump sum. I said no to that. I'm really pushing for the lump sum. But that means we have a court date set for the trial since no settlement was made today.

He said that now he would go about filing motions. One of which was a motion to ajudicate (I'm guessing that is what the word is... it was only spoken to me and I have no idea what he was talking about). What is that? He said it was something to allow the trial to be dismissed in his favor. How can they do that? Any ideas?:confused:

ScottGem · Sep 25, 2007, 12:09 PM

So he had a copy of the original contract signed by you? Did he have proof that he is an authorized representative of the creditor and the creditor is the current owner of the contract?

Basically what he's saying if that since he has proof that it is your debt, they have the right to collect it, and you are in default of payment on it, then you have no case against them. So, he's going to ask the judge for a default judgement, which they may get, since you have no real defense.

On the other hand, they may go ahead with the hearing and you can present your case that you can't pay it.

sunny07 · Sep 25, 2007, 01:18 PM

Originally Posted by Fighting_the_Deb

Here's the UPDATE!

I went to the mediation hearing, and they actually had all the proof! I couldn't believe it. We discussed settlement options. I said I would pay half of the charge off amount. (Charge off amount was $1298, they were seeking $1856, credit limit was $400) He said that was lower than he was authorized to accept. I had a budget with me, which shows I have $20 left over ea month. He said I could sign an agreement for the $20/mo and then he could ask his clients to take the lump sum. I said no to that. I'm really pushing for the lump sum. But that means we have a court date set for the trial since no settlement was made today.

He said that now he would go about filing motions. One of which was a motion to ajudicate (I'm guessing that is what the word is.... it was only spoken to me and I have no idea what he was talking about). What is that? He said it was something to allow the trial to be dismissed in his favor. How can they do that? Any ideas?:confused:

OMG! Did they really came up with an original signed application from the original creditor? I am stunned.. Can original creditor has right to your personal information, like SSN etc. when they sell their account to the debt collector?

ScottGem · Sep 25, 2007, 03:27 PM

When someone purchases a debt, what they are purchasing is the original contract. Of course what is turned over to them, is info like SSN, addresses, references etc.

sunny07 · Sep 25, 2007, 03:44 PM

Originally Posted by ScottGem

When someone purchases a debt, what they are purchasing is the original contract. Of course what is turned over to them, is info like SSN, addresses, references etc.

Do you think she or he would have better outcome if she/he had lawyer representing her/him?

ScottGem · Sep 25, 2007, 03:51 PM

Not in this case

Fighting_the_Deb · Sep 26, 2007, 04:10 AM

They had the entire history of the account in statements, and a signed statement saying that the debt had been turned over to CACH. He hasn't yet given me proof that he is able to collect the debt, though I have seen that they are licensed to do so in this state. The entire history of statements shows the APR that I agreed to, and the other terms that were applied to the amount owed. If I objected to anything that showed up on the statements I had 30 days to dispute it from the time I received the statements. I had already admitted that I did owe money (at the pretrial... my whole thing has been that I'm necessarily looking to get out of paying on a technicality, but that I have the right to see how they came up with the numbers) , but I had no proof that the account that they were citing was mine or how they came up with the end amount, so having the account history satisfied all the requirements of my defense.

I still haven't seen anything between the lawyer and CACH, except that they were able to come up with all this info, and that it was all dated recently.

I still have a motion to strike hearing next week for my counterclaim. So, that is my next task. He tried to discuss it some, but his idea was that we settle in mediation and drop the whole thing. I need to finish that, but I still can't find a definite answer on my main question, "Did they violate the FDCPA when they served me with a summons after I requested VOD?" And if so, who is that going against? The lawyers or the CA?

ScottGem · Sep 26, 2007, 05:59 AM

But did he have a copy of the original contract with your signature on it. Anyone could have opened the account. To prove YOU did they need the original contract.

emviet66 · Sep 28, 2007, 12:17 PM

SO WHAT HAPPENED FTD?? Did he have the original contract with your signature?? OmyGod.