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#17
06-08-2008, 08:45 AM
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You can't go to jail for a debt. Debts are civil matters, not criminal. Also you would use "I do not have a business relationship with Plaintiff (Plaintiff lacks standing.)" as your defense and serve them with requests for the previously mentioned documents.
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#18
06-08-2008, 08:48 AM
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If they try to present affidavits as their defense you can object to them as hearsay unless the person who signed the affidavits is present at the hearing.
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#19
06-08-2008, 08:49 AM
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If you lose, can they take something that belongs to your family even if their name is not on the debt? I live with a friend, but she had no involvement in this account.
Also,Where do I get these papers to serve them with requests? Does the court have it, or do I have to send them a letter of my own? Thanks JCEMT
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#20
06-08-2008, 08:52 AM
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There is generally a specific format that is required and differs somewhat from state to state. You can check your local court website to get that information. As to your first question, personal property that does not belong to you is certainly exempt.
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#21
06-08-2008, 09:40 AM
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Also, there is a complaint with this summons
First course of action: (1)Defendant resides in county which the actio is brought (2) Defendant used a card issused by the plaintiff's assignor (they name original creditor) (3) Defendant failed to make payments Second cause of action (1) Defendant accepted plaintiffs statements (2) Account stated between plaintiff and defendant How can I answer this, all three are true under first course of action. But under second cause, I never receieved statements from them, only one threatening to sue me, and I never stated anything to them.
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#22
06-08-2008, 11:35 AM
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Then your answer would be like this:
(1) Defendant does reside in county which the action is brought (2) Defendant does not have sufficient information to confirm or deny (3) Defendant does not have sufficient to confirm or deny. The reason for the way I answered 2 and 3 is because you are posing the question of did the CA actually get the account from the original creditor? Does the CA have any legal entitlement to the account in question? And is this your account? As to the second cause of action, I'm really uncertain. Perhaps skydver or someone else a little more versed in judicial proceedings will be able to chime in on this one.
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#25
06-08-2008, 07:10 PM
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Wonder if they could be referring to the Fair Debt Collection Practices Act or they are trying to collect.
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#28
06-08-2008, 09:01 PM
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hi guest....
ok, first, let's establish a bit of a timeline. You said that you got a letter that notified you of the 30 days in which you could respond. Then you said you got a summons not long after. The first question I have is "how long after"? If they sent you that letter and then moved on to sending you a summons within that 30 day period, they are then guilty of 'overshadowing'. By filing a case against you within that 30 days, they didnt afford you that entire 30 days to dispute the debt, and thats a violation of the fdcpa. OK, now, onto the answer. Your job at this point, even if you owe this debt, is to make them prove every claim they are making against you. Here is why I say that-- 1--they could be trying to get more money from you than you actually owe. 2--they might not even have the legal right to collect the debt in the first place, and if thats the case then paying them will NOT pay off this debt. Thats simply a form of theft and it happens a lot more often than you may think. You need to make them prove the debt is legitimate, the amount is legally correct, and that they have the legal right to collect it--either through ownership or assignment. If they cannot prove those three things in front of the court, your one and only response at that point would be to make a motion to the court to dismiss the case with prejudice. Next--how old is this debt? If it is beyond the statute of limitations for your state, then there is your answer in a nutshell. What state do you live in, by the way? I'm guessing that they filed this complaint in the county where you live, right? If the date of last payment is outside the statute of limitations, then the entire lawsuit would be null and void--but ONLY if you invoke "expired SOL" as your affirmative defense. The court itself will not bring it up for you--you would have to do that. So, let us know what state you live in and how old this debt is, and we will help you figure that part out and go from there. For now, the only other thing I will mention is that the information you would be looking for--the documentation that proves the account details--would be something that you request through discovery. I would file a motion with the court(as well as send a copy certified mail to the plaintiff) for discovery, listing the exact documentation youre requesting that they peovide. They are the ones who are making claim against you--so they are the ones with the burden of proof upon their shoulders. Make them prove every claim they have stated against you. But we'll get to that more once you reply and let us know your state/how old this debt is.
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#29
06-08-2008, 09:24 PM
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Hi Skydivr,
I am in New York. This account was opened in 2000. The last payments I made toward this account was probably 8 or 9 months ago to another collection agency. Fast forward to this year, I get a letter from this collection agency saying that I owe them money for this account, I never received anything from them prior, right after that,around May 4th, I get another letter from a law firm who is representing them telling me to make a payment on this account or I will be sued. On May 29th, I receive the summons. How do I request that they send information proving that they own this account? Do I tell the court when I answer, or do I send a letter to them myself? Also is it too late for me to do that, in other words, do I have any chance, since I had attempted to call the law firm, and ahouls I answer the first cause of action like JCEMT said in the above post? Thank you
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#30
06-08-2008, 09:47 PM
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hi again--
first off, do you still have all these letters? Especially the first one that came right before May 4? Please tell me that you do...If so, you have them on a fdcpa violation right there. Now, the attorney's letter--did that letter also have the same statement about "you have 30 days to dispute this debt...."? It should have, since it was sent to you by someone else, who is not an employee of the debt collector. The attorney in this case acted on its own as a debt collector because they engaged in a collection attempt--that is, they sent you a letter demanding payment or they would sue. You should check with an attorney in your state, but this whole lawsuit was improperly filed in my opinion. You see, the initial communication from ANY third party debt collector must either state that you have the 30 day window, or that third party must provide a statement of those rights to you within 5 days of initial communication. Who is the actual plaintiff listed on the summons? You may have TWO cases of overshadowing going on here....against both the CA and the attorney. As for requesting this information, sending a letter to the plaintiff yourself would be a waste of time. At this point you want to make sure that everything is done through the court, so that the court has a record of every word that goes between you and the plaintiff. The way you would request the documentation is called "motion for discovery". You need to check your state's rules of civil procedure to see the exact format required when requesting discovery, as there may be a specific form you must use. What is the date that you must answer by? We will do our best to get this all lined up for you before then. But please, get back to me about those letters, if you still have them and all. That may well put a whole different angle on things!
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#31
06-08-2008, 09:57 PM
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Sky,
I have the letter, that was the last letter that I received from the attorney prior to the summons. The letter basically told me to contact them immediately to pay, and at the bottom it said something to the effect of, no lawyer has reviewed this case. I'm not exact about that, but it was something like that. The plaintiff on the summons is the collection agency, but on the summons lists the attorney's firm. They filed this summons on 5/21, I received it the attorney's copy on 5/29, with the court copy on 5/31
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#32
06-08-2008, 10:26 PM
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do you happen to have the letter that the debt collector sent to you right before you got that attorney's letter? That one could prove interesting...
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