[Smithm]

I live in Arkansas, I have a credit card that I can not pay back right now. My credit card company sold it to another collection company that now has severed me with court papers from here in Arkansas. My question is I never signed an agreement with this collection agency to pay them back. Is it my fought that they bought the bad debt? The CC company charged off the debt, then sold it, so they have been paid for it twice? This doesn't seem fair to me. Yes OK I know I owe someone but not this collection agency. Am I right and what will be my first step. Thank You for you help with this. :o

[stevetcg]

Charge off is an accounting term for tax purposes and has nothing to do with you or the validity or payment of the debt.

Yes, you do owe this collection agency.

[Smithm]

Explain please why I owe this collection agency that bought this debt from the company I had dealings with, why aren't they sueing me for the money? (the original company) I have NO contract with this collection company that if they buy my debt I will pay them for it. So where do they have the right to sue me from? I am aware that the term Charge off is an accounting term for tax purpose, it is so they can claim if off the amount that they are taxed each year, the same way we get to claim our interest paid in on a mortgage. So there is no loss to the company except their profit margin. Maybe I am not seeing something here, or maybe it is just another way of thinking about it.

[stevetcg]

Because the contract to the original debt holder is sold... it's the same thing if you got a mortgage and the mortgage holder sold it to another company (happens all the time).

The terms don't change, just who you write the check to does. That also gives them the right to sue you for it. Happens all the time. Sorry... just cause the original company doesn't want to deal with you anymore doesn't make the debt go away.

[stevetcg]

The other thing - you agreed to them being able to transfer the debt. Remember that statement about 10 pages long when you opened the account? I bet money that somewhere in there you were agreeing to let them assign the debt as they feel fit.

[DownUnder]

Yes you owe it,if you don't pay it they will sue
And if they get a judgement your wages could be garnished as well as any bank accounts you have. Just because it is written off doesn't mean you don't owe it or they can't try to collect it.

[Smithm]

Ok Well, can some look over my answer to their summons and let me know if there is more that I need? Thanks!



IN THE DISTRICT COURT OF --------, ARKANSAS


CACH, LLC


Plaintiff

vs.

MARY

Defendant
No. CV-

ANSWER, AFFIRMATIVE
DEFENSES AND COUNTER-CLAIMS




I. ANSWER
Defendant answer the complaint as follows:
1. Defendant denies the allegations contained in Paragraph 1 of the Complaint, as
Defendant is without information or knowledge sufficient to form an opinion as to
The truth and accuracy of alleged assignments and entitlements.

2. Defendant specifically admits to the allegations contained in Paragraph 2, filed here against her, with the knowledge that the defendant lives within the county of the proper Venue.

3. Defendant lacks knowledge about the truth and therefore denies allegations contained in Paragraph 3,4,5,6 Plaintiff has failed to provide Defendant with any kind of account numbers or documentation for alleged credit card debt. 4. Defendant denies the allegations contained in Paragraph 7, as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant . Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

5. Defendant specifically denies the allegations contained in paragraph 8, it may be of the Complaint filed herein against him/her and puts the Plaintiff to its strictest proof thereof.

6. Defendant denies the allegations contained in Paragraph 9, of the Complaint, as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

7. Defendant denies any alleged obligation to Plaintiff in Paragraph 10, as there is not, nor has there ever been any contact, by phone, mail, or any agreement, written, oral or implied between the Plaintiff and Defendant.

II. AFFIRMATIVE DEFENSES
Defendants other defenses are:
1. The Plaintiff failed to name the real party in interest.

2. The Plaintiff failed to state a claim upon which relief can be granted.

3. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

5. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's Complaint fails to allege whether the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

6. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

7. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

8. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff.

9. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference an account number in their Complaint.

10. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.
WHEREFORE, Defendant prays that the court take nothing of Plaintiff's Complaint by virtue and dismisses the complaint.

[stevetcg]

So you are sticking with the "they sold my debt" defense?

Unique.

And doomed to fail since they will simply produce the document that says that they could sell/buy the debt that you agreed with already.

Best of luck and let us know how it turns out.

[Smithm]

Mr. stevetcg, I don't understand if I am doing something wrong, I have read and read all over this site about how to do this, with lots of info from mr. yets telling people how and why to do this but when you answer my questions it is like I am doing something wrong. My case is a lot like most of the others. Can you tell me what the difference is and if I am doing something wrong? I am only a simple single mom trying to do the best I can. If they prove they own the debt I have no choice but to pay it, don't know how but I will, but I have been scamed by these kinds of groups before and I refuse to be taken advantage of again. Thanks!

[ScottGem]

Mr. stevetcg, I don't understand if I am doing something wrong, I have read and read all over this site about how to do this, with lots of info from mr. yets telling people how and why to do this but when you answer my questions it is like I am doing something wrong. My case is alot like most of the others. Can you tell me what the difference is and if I am doing something wrong? I am only a simple single mom trying to do the best I can. If they prove they own the debt I have no choice but to pay it, don't know how but I will, but I have been scamed by these kinds of groups before and I refuse to be taken advantage of again. Thanks!

Let me recap a bit.

1) A debt is a contract between you and another party whereby you are loaned money and agree to repay it. Almost all debt contracts include a clause allowing them to be sold to another party at the creditors discretion. Companies do this because they don't want to pay the costs of attempting to collect. Therefore, as long as the plaintiff can provide proof of the sale of the debt or their assignment to collect it, they have every right to collect on it.
2) A written off or charged off debt is a tax maneuver whereby the creditor can subtract the amount of the debt from income to reduce tax liability. This does not mean they get paid for the debt. If the debt is sold, the amount they received for it is then added to their gross income in its entirety. Nor does it have any affect on the debtor's obligation to pay the debt.

Your ONLY valid defense against this suit is that it isn't yours. Therefore, you are within your rights to answer the summons with a statement that you cannot affirm nor deny this debt until verification of the debt and the plaintiff's right to collect on it is received. But that is all you can do. If there are errors on the summons in terms of misspellings or incorrect address, etc. these can be easily corrected.

Once you file your answer to the summons, you send a copy to the plaintiff requesting verification of the debt and the plaintiff's right to collect on it. From there you wait for the verification and/or the court hearing.

Now, in a lot of these cases, the plaintiff cannot provide proof of the debt. If they don't, you ask for a dismissal at the hearing. If they do, they will obtain a judgment and use it to try to collect.

I think the problem with your earlier posts, is that you were taking positions that had no legal basis. Contracts for debt are sold all the time. Charge offs have no bearing on the obligation to pay.

You also mention being scammed. Not sure what that is about. Its true that a lot of these debt buying firms, purchase the debt for pennies on the dollar on the chance they can collect on it. And these firms tend to use questionable and draconian tactics to collect.

One last point. To answer the question posed in the subject. No its not your fault that the plaintiff purchased a bad debt. But it IS your fault that the debt went bad in the first place. I understand there may have been circumstances beyond your control, that cause you to renege on the debt. But renege you did. At that provides the opportunity to speculators to purchase that debt and try to collect on it.

[Smithm]

Thank you Mr. ScottGem, At first I was really upset about this then I started reading about this and I now understand a lot more. I just wanted a fair chance at this. The scam before was a collection company trying to collect from me a debt that belonged to a lady in Texas that had my same name, I fought and fought with these people that it was not me, all I want is for this group to prove to me that they own the debt now. They did not attach anything to the summons. If you read my earlier post with my Answer for the summons, does it look OK in your opion? Is there more I need to add? Thanks for you help!

[excon]

Hello S:

Let me offer another viewpoint. If you actually owe the money, you're really not doing yourself a favor by taking the tact you are. All it's going to do is cost you legal fees and more court costs. It's liable to DOUBLE what you owe now... And, if you have wages or other assets like bank accounts, you DON'T want them to get a judgment...

The BEST and CHEAPEST way for you to handle this, is to borrow the money and make a settlement offer. With cash in your hand, you can probably settle for HALF what you now owe.

Of course, you might be lucky, in that they might NOT be able to produce your contract in court... But, it's a hell of a gamble...

Now, you could be judgment proof, in that you don't have a job and you don't have assets, and your credit is already shot... Then fire away... But, if you're judgment proof, why even worry about these jerkoffs?

excon

[ScottGem]

The problem I have with your answer is that you are trying to play lawyer. If you are going into this pro se, then keep it simple. Just return the summons with a simple letter stating that:

I intend to defend against this suit since I have no proof that this suit is valid.

You then send a copy to the plaintiff with a request for verification of the debt and their right to collect. You can add, that, if they are able to verify, then you may be willing to discuss a settlement.

[DisabledinMD]

II. AFFIRMATIVE DEFENSES
Defendants other defenses are:
1. The Plaintiff failed to name the real party in interest.

2. The Plaintiff failed to state a claim upon which relief can be granted.

3. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

5. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

6. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

7. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

8. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff.

9. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference an account number in their Complaint.

10. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.
WHEREFORE, Defendant prays that the court take nothing of Plaintiff's Complaint by virtue and dismisses the complaint.

Where did you get these? Do you even understand what they mean. I know I don't! But a few I can figure out without a legal backround. I understand that one should be very careful as to what answers are given, or you can irritate the judge and the court. I'm not even sure these would even apply, are these even true? No. 3, you mean you never got a letter from debt collector? I find that hard to believe. Same thing with No. 6; you didn't get a letter saying that Creditor assigned debt to Plaintiff, and that Plaintiff was now collecting on their behalf? If you did receive letters, these are not true and correct. Nos. 8&9. Are you suggesting that the collector has been satisfied for the debt from the purchase by the collector, and that the debt collector is only entitled to the actual amount that they paid the creditor for it? Good luck with that defense!


The only reason I am commenting, is that it worries me that someone unfamiliar with what they are doing, comes along and copies and pastes this intending to use it as a defense, without knowing how it could actually hurt, rather than help them. If you are going to use Affirmative Defenses, you better make sure they are actual defenses that can be used, and that they truly apply to you.

[BiWiccanAndProud]

All right here is what I have to say and this is coming from a debt collector.

First side. If it is your debt then yes it is your fault. You DO owe that debt collection agency. You can't say "Oh well I got the card from this person and I owe them not you." NO! When a debt collection agency gets a debt they buy it they PAY for your debt! So now you owe them not the original creditor. It's like if Ricky borrows 5 bucks from Susie and Ricky's brother Rob pays Susie back the 5 bucks cause she needs it and Ricky doesn't have it. Now Ricky owes Rob 5 bucks. Get it? So yes you owe that debt and yes you should pay it! If this part sounds kind of angry I don't mean it to be I'm just hear that defense everyday and it drives me nuts.

However!! If this is not your debt!! You may not owe it. But there are diffences in this topic. If your SSN matches the one on file they can come after you unless you can prove that it is a case of fraud. Fraud meaning your identity was stolen or it was friendly fraud (friendly fraud being a relative got it out with your knowledge and never paid it back). But if you got the account out for the person it was for and you did it willingly. Your bad. You still owe it and it is up to you get get the person you got it out for to pay you back. For instance you pay it and they pay you back, or you call them and they put money in your acc to make payments. This is the same thing with divoce decrees, state law supersides a divorce decree. It is the same scenrio I put above for if you get out an acc for someone. No matter what the acc is still affecting you cause it is your SSN. Again though if it is fraud you can fight that.

If it is an acc you have previously paid off and you have documented proof you can fight it as well.

Point blank if you have physical proof you don't owe something you can fight it (minus divorce decrees). Otherwise you owe it.

[ScottGem]

Alright here is what I have to say and this is coming from a debt collector.
...
Point blank if you have physical proof you don't owe something you can fight it (minus divorce decrees). Otherwise you owe it.

First, not all collection agencies buy debt. Some work on contract to the original creditor. But even in that case, once assigned to collect the debt, you have to deal with the collector, the original creditor won't deal with you.

Second, it is almost impossible to prove you don't owe a debt. The only way you can is by having proof that it was paid. But the burden of proof is on the collector. They have to prove that you incurre3d the debt and didn't pay it.

[BiWiccanAndProud]

Second, it is almost impossible to prove you don't owe a debt. The only way you can is by having proof that it was paid. But the burden of proof is on the collector. They have to prove that you incurre3d the debt and didn't pay it.

Not really, as long as your social is on the account it is considered your debt unless you can prove otherwise. It is basically the debtor's responsibility to provide as much proof as possible. This is because when a company gets an acc they only get so much information. I know at my company (I don't know if it is the same with others) that if it is for a credit card or some sort of contract that we don't get the original copy of the contract so we can't exactly compare signitures. Like I said if you have physical proof you are good to go in proving it is not yours, otherwise you can dispute it with a letter stating the situation and the company does as much investigation as possible. Again! If your excuse is that you never used it and that a friend/relative/spouse used it, it does not matter it is in your name and so it is yours and it is up to you to get the person who used it to pay you back. Keep in mind more then likely the acc is affecting YOUR credit not the person who used it.

[ScottGem]

I don't know where you are getting your info, but its not at all correct. As I said the burden of proof is always on the plaintiff. The plaintiff has to show documentation that the defendant agreed to open the account. Just having an SSN is NOT enough. It may be enough for the collection agency to go after a person, but if it comes to court, as is the case with the OP, the plaintiff MUST show documentation that proves the defendant agreed to open the account

I do agree that if a person signs for the account but lets someone else use it they are still responsible.