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m.lm1947 · #17 09-29-2008, 08:42 AM

My cousin had filed a BK back in 2005 and it was discharged. I don't know if Arrow Financial was the original creditor, but the actual debt itself was included in the BK. Well now, 3 years later, Arrow financial is trying to collect on the debt that was discharged. She wasn't even aware that they were trying to collect again. Her employer had informed her of this because they run background checks(criminal, credit, etc.) every so often.

smo65d11 · #18 09-29-2008, 08:42 AM

But if they can't prove it's yours, why not go to court, countersue for your time, etc and collect from them?

Shazzers · #19 09-29-2008, 08:46 AM

That's exactly right, I plan on countersuing for sure, I just need to get all my ducks in a row first! This has been very time consuming for me, yet the Judge is allowing this to continue even though there has not been one shred of evidence that a debt ever existed in my name, go figure. :x

smo65d11 · #20 09-29-2008, 09:14 AM

well my fingers will be crossed for you, and hope that it works out in your favor.

Are you doing this all yourself or have you gotten an attorney or other debt advisor? I would assume that would cost a load, and might also give the judge the opinion that you have something to hide though?

#21 10-06-2008, 12:10 PM

Hello. I came across this forum when doing research on Arrow Financial Services. I wanted to share some info I found prior to reading this, and it might be of some help. Its regarding the appearance in court request without validating the debt. I can share the website it came from if need be.

When a collection agency responds to your request for validation with a summons to appear (meaning they are trying to get a judgment against you)

1/17/2002: These sneaky collection agencies are starting to catch on to the debt validation concept. (No doubt there is some kind of collection agency newsletter going around telling these folks about the whole process.) I've heard from my readers that some collection agencies are starting to respond to validation requests with summons to appear in court. There is precedent which says that a collection agency cannot even file suit against you if they haven't validated the debt within the initial 30 day period. If this happens to you, you may cite the case:

Spears vs. Brennan

The appeals court determined:

"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. Â§ 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears."

This means that you have an absolute defense in court to deny them judgment if they still have not validated the debt. Once you get your fdcpa dispute letter in, the collector cannot even get a judgment until they satisfy the FDCPA law. The appeals court overturned the default summary judgment in part because the collection agency lawyer did not meet the rules of the FDCPA.

This could be grounds for getting a default judgment vacated. It's also another violation of the FDCPA and you can collect $1,000 from them.

Hope this helps!

NASCAR_Devil · #22 10-08-2008, 05:37 AM

Quote:

Spears vs. Brennan

The appeals court determined:

"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. Â§ 1692g(b) when he obtained a default judgment against Spears (defendant) after Spears had notified Brennan in writing that the debt was being disputed and before Brennan had mailed verification of the debt to Spears."

I believe the above infers too much from the Spears opinion. I also think that the statement above adds things into the decision that aren't there.

Read the case very carefully. You'll notice that the undelying default judgment Brennan obtained against Spears was not affected. The summary judgment that was reversed was for a separate claim for fdcpa damages arising from Brennan's FDCPA violations.

The first sentence in the opinion confirms that the appeal does not address the default judgment in the small claims case;

[img]/forums/attachments//bsm1_267.jpg[/img]

The first quoted statement above that says the "appeals court overturned the default summary judgment" is not correct. The default judgment occurred in small claims court. Think about how the courts work; there can be no "default summary judgment" in the first place.

All that being said, we're back to where we started. An FDCPA violation is not a defense to a lawsuit and and neither does it create a procedural bar to the commencement or prosecution of an action. It only creates a separate cause of action which needs to be pursued on its own merit.

Shazzers · #23 10-08-2008, 06:25 AM

The fact is, Arrow Financial has NEVER produced ANY documents whatsoever that this is my debt, and have even admitted they have no documents available in regards to this debt. It's beyond me why a judge would let it go this far with no proof supporting this claim as well as an admission from the plaintiff. :?

goldenbast · #24 10-08-2008, 08:41 AM

Did you actually motion to dismiss? You should have gotten something from the court at least denying your dismissal...but courts won't just ignore motions. Also did you motion for discovery and ask for those documents..the CA can try to snake by saying at court that you never 'officially' asked for them in a motion.
I would countersue just on the solid violations such as updating your credit reports and continued collection practices..those are clear violations. Trust me..CAs look at things in a whole new light when they are in danger of having to pay out themselves.

You could cal the court and ask them what is the status of your motion to dismiss (if it actually was a motion you filed).
Also record the phone call with the lawyer if your state permits it, and if he asks you for anything relating to the debt itself, just reply with something like, "So you are attempting, yet again, to collect upon this debt despite the fact it is still under a debt validation demand?" Let him weasel out of that one, on tape. And if your state is two party, inform him that you are recording the call for your protection, and if he refuses, then simply say alright, then this call is over..I am sure the judge will find it interesting that you were unwilling to speak with me on record.

Shazzers · #25 10-08-2008, 08:48 AM

The court denied the motion for dismissal and said I needed to answer the interoggatorie, they set a date for pre-trial at the end of this month. And yes, I did request validation during discovery but Arrow replied that they have no such documents in their possession because the defendant is the one who received the statements. lol So yeah, they basically said they have nothing in hard copy proving I owe this bill, and it's on the record, but the judge STILL scheduled a pre-trial. :?

goldenbast · #26 10-08-2008, 08:56 AM

Hm that sucks. Did you answer them with 'insufficient information to agree or disagree' ?

I would deny having any such statements that you haven't the foggiest what they are talking about. Your response in court could be something along the lines of, "This company out of the blue starts demanding money on some account they allege I have, yet they have not one shred of proof to this claim. How can they determine that I do in fact owe them this money when they themselves have no documentation to this effect? Makes them look like they got the facts from the tooth fairy or something.

Shazzers · #27 10-08-2008, 08:59 AM

Oh yes, I'm not admitting to anything without proof, they (Arrow) have demanded statements, cancelled checks, etc. from me, but I have zilch. As if I am going to prove their case for them, hah!

goldenbast · #28 10-08-2008, 09:05 AM

Heh, on the notion you could also make them look real stupid, also bring up this: How did you even determine the amount you claim I owe without any sort of documentation?

At least you can answer those demands truthfully..you can't produce what you don't have. Seriously, how can they expect you to produce canceled checks or statements from an account that seems to not exist. Honestly, how can they respond to that without looking like morons. You might be able to really use that...they want statements or checks from what account exactly?

#29 10-09-2008, 12:22 PM

I have an entry on my CR for Arrow Financial for a credit card. I received a call from Enhanced Recovery Corp offering a settlement on this same debt, but their name does not appear on my CR. I did not respond to the settlement offer, but instead sent a validation letter to Arrow and ERC. After reading all these posts about Arrow, I'm really scared now. Will they respond to my validation request with a summons?

jj · #30 10-10-2008, 08:11 AM

the purpose of the pretrial I believe, in part to allow the judge to review what information exists. Bring what you have and let them bring what they do have (Or not).. it might be good to pay for a hour or two of time with a good attorney, to get some assistance with this.. also if you haven't already, their offer to talk is a good sign that they are interested in settling, even if you are not able to work out something I would at least respond so they can't argue that you ignored their attempt to work out a solution.

#31 10-24-2008, 10:37 AM

Good luck. AF are a*****s

Edited: Let's keep this "G" rated folks - ND

#32 10-28-2008, 12:33 PM

WHEN YOU GO TO COURT, DISPUTE THE ACCT AT THE PRE-TRIAL CONFERENCE, IT WILL BE SET FOR TRIAL AND IF THEY CAN NOT PROVIDE PROOF OF THE DEBT, THE CASE WILL BE DISMISSED. IF YOU FAIL TO APPEAR A DEFAULT JUDGMENT WILL BE FILED AGAINST YOU AND YOU WILL LOOSE ALL YOUR RIGHTS, HOWEVER, IF THEY HAVE NO PROOF THE CASE WILL BE DISMISSED AND YOU WILL NEVER HAVE TO RE-PAY THE DEBT.
WHATEVER YOU DO, NEVER SAY IN COURT THAT IT IS YOUR DEBT, OR YOU LOOSE. THE BURDEN OF PROOF IS ALWAYS ON THE PLAINTIFF AND NEVER ON THE DEFENDANT.