| Message |
Author |
 Posted: Mon May 05, 2008 5:40 am |
|
|
hiya shaz, lets see if we can get you through this mess.
To be honest, the very first place I would start is to file a motion with the court IMMEDIATELY, to dismiss this case with prejudice, on the grounds that it is an unlawful complaint. I would point out the validation request that you sent, mention the fact that they never replied to this request, and then state that section 809(b) of the FDCPA specifically prohibits any collection activity from taking place until they honor the request for validation. Showing that you asked for DV before they filed suit will prove this motion. It is simply illegal for them to file a suit in lieu of providing the DV you asked for, and any judge with even half a clue about the FDCPA wont have any choice but to uphold that law--thats their job. This is a statute that doesnt lend itself to interpretation. honestly, I am seriously puzzled as to why this judge didnt simply dismiss their complaint to begin with, when you showed them this stuff last time. I would stress this point ASAP.
Additionally, I would stress to the court that you still have not received a summons for this complaint. I would mention that the court already had to overturn one judgment due to the plaintiff's refusal to follow the rules of civil procedure--and then I would point out that granting a default judgment a second time when you still have not been served a summons will only serve to create the same exact injustice that this court has already admitted with the last ruling was unacceptable. Point out that you have notified the judge that you have not received a summons and therefore have nothing to file an answer on. This will show that you didnt just sit back and wait for them to hand it to you--when you didnt get anything you contacted the judge's office asking for help on the issue. Could you have done more? Yes. But you arent supposed to be educated in the law the same way a lawyer is--since they go to school for 7 years to get that education, there is no excuse for an attorney violating the law.
I hope this makes sense. I would IMMEDIATELY file a motion for dismissal on this case--regardless of what this judge says, it is STILL the plaintiff's responsibility to ensure that the summons is served upon the defendant, and for the SECOND time this plaintiff has refused to do so. I would definitely stress these points in this motion. They have done a couple things wrong here--
1--violating the rules of civil procedure in your state by not serving you with the summons.
2--violating the FDCPA, section 809, because they got your DV letter, refused to answer it, and then filed suit without validating the debt to you.
|
|
skydivr7673
Debt Samaritan
Joined: 15 May 2007
Posts: 820
Debtcc Points: 350
|
|
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
| Posted: Thu May 08, 2008 2:35 pm |
|
|
Update! I just received a letter from the court in answer to my motion for dismissal and the CA's motion for a default judgment. Well, the judge denied the default judgment because there is no proof of services of a summons. Unfortunately the Judge overruled my motion to dismiss this case. He also [Judge] canceled the pre-trial which was scheduled for May 30th. He said if the Plaintiff fails to attempt service of the summons on me at my most recent address on or before June 18th, 2008 this matter will be dismissed. I can only hope they won't serve me, but I know they will. But it will give me more time to prepare. 
_________________
Online Complaints Ohio Attorney General
Online complaints: Federal Trade Commission.
Ohio Payday Loan Laws
Ohio Consumer Protection Law
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
| Posted: Thu May 08, 2008 3:00 pm |
|
|
ok, shaz, let me see if I remember this right. Isnt the SOL expired on this debt? Good to hear that this judge has a solid sense of the law and will not allow them to proceed illegally a second time! Now, if you want a hand putting this all together, I would be glad to help again. We knocked them down last time and we can do it for good this time!
|
|
skydivr7673
Debt Samaritan
Joined: 15 May 2007
Posts: 820
Debtcc Points: 350
|
|
|
| Posted: Thu May 08, 2008 3:41 pm |
|
|
Sweet! I look upon that as a minor victory for you, at least the judge seems aware of the previous chicanery on the part of the CA. Maybe they will decide to cut their losses and just let the matter drop.
June 18th is a little more than a month away, hopefully they will not get it together in time to serve you properly.
I'm rooting for you!
|
|
UnemployedRon
Joined: 13 Oct 2007
Posts: 631
Debtcc Points: 5434
|
|
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
|
|
| Posted: Fri May 09, 2008 8:53 pm |
|
|
We received a summons and did not respond. We never admitted to this alleged debt. Can we file for a dismissal?
_________________
Register today to cash in debtcc points.
|
|
LUCKY1
Guest
Debtcc Points: 100
|
|
|
| Posted: Sat May 10, 2008 5:28 am |
|
|
To my knowledge if you were properly served but they got a default judgment because you never filed an answer I don't think there is anything that can be done for you. My best advice at this point is to seek legal council.
_________________
Regards
JCEMT
Here is a list of resources for the community
Site TOS
|
|
JCEMT
Moderator
Joined: 10 Sep 2007
Posts: 2894
Debtcc Points: 26517
|
|
|
| Posted: Thu May 15, 2008 9:52 am |
|
|
Update !! I am now officially served! The only proof of the debt is attached as Exhibit A, an affidavit signed by THEIR account Manager stating that she is familar with the debt in favor of Arrow Financial. The said debt is within her knowledge true and correct and is truly due and unpaid.
Interestingly enough, in the complaint, Arrow claims that:
1.) They own the debt.
2.) The amount due. (outrageous interest and fees)
3.)Exhibit A (signed affidavit) is proof of said debt, and due to the fact that they are not the original creditor they do not have possession, custody or control of said records, copies were sent monthyly to the defendant, therefore, the defendant has custody or control, and said account records may be to voluminous.
4.) They also say I was notified but haven't paid the account.
5.) And, defendant is in default.
Plaintiff prays for judgment, for costs, statutary interest, blah blah blah.
This summons was filed by the Attorney of the plaintiff. Now, my next move would be my affirmative defense correct? Any suggestions or insight would be SO appreciated. 
_________________
Online Complaints Ohio Attorney General
Online complaints: Federal Trade Commission.
Ohio Payday Loan Laws
Ohio Consumer Protection Law
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
| Posted: Thu May 15, 2008 10:31 am |
|
|
Hey Shazz! I am someone you know. Try sending an email to Bud Hibbs about this. Tell him where you got his name! He very often will andwer you with advice within twenty four hours. It would seem to me the best thing to do is show up in court a challenge everything that they can produce especially that contrived affidavit. Keep doing your homework. You might even go to see a coulple of trials in the courthouse to get an idea what you are up against!
_________________
Register today to cash in debtcc points.
|
|
Guest
Debtcc Points: 100
|
|
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
| Posted: Thu May 15, 2008 10:47 am |
|
|
I got about the same from the suit against me from LVNV funding. Their attorney was sending me a paper with about 15 questions asking if I had possession of said documents and if I didn't they wanted to know who destroyed them and on which date. I have nothing and I told them nothing.
_________________
Register today to cash in debtcc points.
|
|
Guest
Debtcc Points: 100
|
|
|
| Posted: Thu May 15, 2008 3:51 pm |
|
|
| Quote: | Update !! I am now officially served! The only proof of the debt is attached as Exhibit A, an affidavit signed by THEIR account Manager stating that she is familar with the debt in favor of Arrow Financial. The said debt is within her knowledge true and correct and is truly due and unpaid.
Interestingly enough, in the complaint, Arrow claims that:
1.) They own the debt.
2.) The amount due. (outrageous interest and fees)
3.)Exhibit A (signed affidavit) is proof of said debt, and due to the fact that they are not the original creditor they do not have possession, custody or control of said records, copies were sent monthyly to the defendant, therefore, the defendant has custody or control, and said account records may be to voluminous.
4.) They also say I was notified but haven't paid the account.
5.) And, defendant is in default.
Plaintiff prays for judgment, for costs, statutary interest, blah blah blah.
This summons was filed by the Attorney of the plaintiff. Now, my next move would be my affirmative defense correct? Any suggestions or insight would be SO appreciated. |
Alright, shaz.....
here's the thing--their "proof" is inadmissable in court, but ONLY if you object to it! It is called 'hearsay'. What you need to do is challenge this "proof" and demand that the plaintiff produce said "witness"--the person who signed and swore to this affidavit. This is NOT legal validation of any debt, as the FDCPA is 100% clear on this. Take a look:
| Quote: | | If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. |
The federal law requires that proof of a debt come from the original creditor--they CANNOT send anything on their own letterhead and then claim that it is legal proof. For more on this one, you can reference this FTC letter on the matter:
http://www.cardreport.com/laws/fdcpa/ftc-opinion/wollman.html
This letter is key, as it explains in plain english that debt validation, in order to be legal, must be documentation that the CA obtains from the original creditor. It CANNOT be a statement that is prepared in-house, which is all that they are trying to pass off as legal validation. I do believe you've just won your case....
OK, here's how I would proceed. You need to file an answer, is that correct? Please--refresh my memory for a minute....you sent them DV letters by certified mail before and they never validated, is that right? If so, then I would file for immediate dismissal WITH PREJUDICE on the following grounds:
1--lawsuit was filed unlawfully, because they ignored your previous DV requests and then filed suit against you.
2--plaintiff has not proven their case in any way--the only proof they provided is hearsay, and it also violates section 809(b) of the FDCPA. (this is where I would include a copy of that Wollman letter that I linked to above, and state in your answer that the attached FTC letter emphasizes that proper validation must be documentation obtained from the OC, and not in-house by the CA. Unless they can produce this "witness" in court, and he/she can provide documentation from the original creditor confirming the "sworn statement", then that isnt proof or evidence of anything, except for them trying to get around the law. A side note here, that you may wish to point out in your defense, is that they stated that they dont have any documentation since they are not the OC. If you read section 809 of FDCPA, it is clear that that doesnt matter--they arent supposed to already have the documentation. They must get it from the OC, however, and in your case they dont have anything.
3--if the SOL is also a concern, then use that as grounds as well--expired SOL is an unbeatable defense so long as the SOL really has expired, but you need to invoke it. And in this case, the SOL being expired would really just be icing on the cake.
Then, I would even consider filing a countersuit, to be honest. They have put you through so much that if it were me, I would file suit against them, asking for $1000.00 for their FDCPA violation(ignoring DV requests repeatedly), and I would even consider asking the court for $5000.00 or more for actual damages. To support that, I would recount for the court the hell that they have put you through--the frivilous lawsuit, failure to have you served(illegal), improperly levying your bank account--or was that wage garnishment--also illegal. I would recount all the stress and so on that they put you through with illegal actions. IMO you actually stand a very good chance of getting that, especially if you have the opportunity to request a jury trial. I can just see a jury feeling your pain when you recount all this crap, and when you provide all the documentation you have that proves your DV requests, and their other illegal acts, I think you would win fairly easily.
If you would like help putting that in legal form, just message me and we will put it together this weekend.
|
|
skydivr7673
Debt Samaritan
Joined: 15 May 2007
Posts: 820
Debtcc Points: 350
|
|
|
|
|
| Posted: Thu May 15, 2008 6:18 pm |
|
|
Oh wow, I knew you would come through for me skydvr, I am so sick and tired of this CA I could just scream! But I won't. Anyway, to answer a few of your questions;
-It is within the SOL (unfortunately)
-I did send a validation letter
-In my affirmative defenses I stated that I had no documentation supporting this claim, so that is on the record.
-I even have a letter from their Attorney's, Javitch, Block & Rathbone in December of 2007, that they sent to my old address (my ex gave it to me), even after they KNEW my new address, I submitted it as evidence in this last motion I made as proof they are still not following the law.
YES! Help me, I will be forever in your debt! I swear!
_________________
Online Complaints Ohio Attorney General
Online complaints: Federal Trade Commission.
Ohio Payday Loan Laws
Ohio Consumer Protection Law
|
|
Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 2655
Debtcc Points: 19095
|
|
|
|
