Being Sued By Collection Agency- Statute Questions

SOL of the state where the debt originally took place will be calculated. Have you asked the attorney to validate the debt? Get the specifics in writing so that you are confirmed that this debt actually exists and is within the SOL mark. Send the letter certified and don????????t make any payment agreement until you have the complete info.

I asked the attorney for proof of the debt and they told me that Midland Credit sent them a letter stating the above info. They have no contract or other paperwork. I still don't know how to respond to this. I asked the same question on another website and someone responded
"
If you have lived in the state more than 6 months they can go by your current residence. Credit card contracts are not tied to the state where you lived, but to you. Sorry, It sounds like they can try to collect based on Nevada law."

another response read:


"For the statute of limitations it is where you are currently living for Open Ended accounts, Credit Cards are considered open ended. For other types of debts such as where you have a signed contract for something like a Car. Then the company that extended the credit can select which one they want. In most cases they will select the state that has the longer SOL of the two.

So since you said "supposedly paid" several times. The first thing you need to do is in your answer to the suit is request proof of the payment they say you made in 2001. If they can not provide this then you would be outside of the SOL. If in fact you did make the payment then the SOL is not going to really work for you."


I contacted an attorney and they didn't seem to know the answer for sure. I just have no idea what to do here or who is right and I am running out of time to respond to this stupid summons.

Another question for anyone who has dealt with this kind of thing before- In the response to the court (it says I have 20 days to do this) what kind of response are they looking for? Can I send the response to the court stating that I want proof of the signed contract (which these people have already said they don't have) Can the response say that I want proof of this supposed payment in 2001? Or does the response have to be my defense? I'm sooooooo confused :( :?

Jamie just make SURE u answer the summons or they will get a default judgment on you! I had posted in another thread how to answer one.... let me see if i can find it so i don't have to post it again. But u do need to find out about the SOL cuz this can be one of ur defenses... try this and let me know if it works
http://www.debtconsolidationcare.com/forums/about6193-8.html
Good Luck,
Ang

Hi Jamie--

First, I am concerned about the complete lack of validation. The attorney you spoke with is not to be trusted--believe me, they know what validation means, and they also know full well that what midland sent is not proper validation. I would immediately demand proper validation. As Ang said, do not forget to file an answer--you do not want them getting a default judgment on what could well be not your account!

Second, you mentioned "supposedly"--do you actually know anything about this debt? Was it actually yours, or do you not know anything about it? I ask because it sounded in your post as if you knew nothing of the debt. In either case, you will want to send out a DV letter immediately. Don't let that lawyer snowball you with "this is what Midland sent us"....that is not even worth calling validation. They need to provide proof of the original agreement, which would prove it as your account, and they need to prove that they are authorized to collect on it. Without official documentation, they are spinning their wheels.

The validation becomes very important, as well, in the case of the statute of limitations. In many cases, credit agreements will specify that the laws of a particular state will govern the agreement. You might find such a clause in this agreement, and if so, this contract might have been subject to the law in a state where the SOL is already expired.

In your answer, I would dispute the debt. State that you asked for validation and were not given proper validation by any means. I wouls also be sure to mention that this debt is possibly out of SOL--SOL is only a defense if you use it. If you do not bring it up, then it goes out the window. on a side note, if there really is no proof of this debt, which is what it sounds like, I would also report this attorney to the bar association in his/her state. Taking you to court without possessing the necessary documentation amounts to a frivolous lawsuit, and there is no excuse for that. This lawyer should have been through the process enough times to know what is needed--the only thing I can think of is that they may be hoping you do not show up, and that way they will end up with a default judgment against you. As it sounds right now, and until they produce proper original documentation that proves you have this debt, they do not seem to have a chance if you show up. That is just my opinion, based on the little information you posted. Please keep that in mind, and consider everything. Keep us updated, we are here to help!

Thank you so much for your responses. You have been more helpful than the attorney that I contacted.

Ang- yes the link did work and I will use that to respond- very, very helpful- thank you!

Skydivr- Thanks so much for your detailed answers and suggestions. The reason that I say "supposedly" is because they are reffering to something that happened in 1998, claiming that I made a payment in '01 which dates back 6-9 years ago. During that time period I did have some credit problems- I don't deny that, but I have no recollection of this particular account what so ever, nor do I have any documentation on it. So while it is a possibility that it could be my debt, I don't know for sure.

The attorney's office has me talking to what I assume to be an assistant and she has mentioned repeatedly that they do not have the original contract, only a letter from Midland stating that I owe this money and when the debt was from etc. They wanted to fax me this letter, but my fax is broke and there is no time to wait for them to mail this to me so I just had her read to me what the letter says.

Once I file the response, what will happen? Is it possible that they will drop this suit? Tommorow, I will work on the response and try and post it on here so that perhaps you all can give me some pointers on if I did it right. Do I have to send a copy of my response to the attorney as well? And do I have to go to the courthouse to file this response? They sure leave people hanging with this stuff. Again, thank you so much FlyingCats, Ang, and Skydivr- you guys are great!

More than likey once u file ur answer they will go away! Hope so anyway, but file it with ur local courthouse and send a copy to them. Along with the summons answer send a debt validation letter, you can find one in the do it yourself part of this forum. Just re-word it to fit your case!
Personally, i think lots of these suits are hoping u don't answer and they get a default judgment! You have armed yourself with knowledge now use it in your battle and you will be pleasantly surprised how well it works!
Good Luck Jaime!
Ang
P.S. Make sure u send the summons answer and DV letter return reciept requested to the lawyer! You need this as proof.

Exactly Jamie! The answer on the summons should be very point blank, like what i showed u, u either agree or deny each question! Use the form i showed u to go by and make sure u bring it to the court house and file it there but also send the lawyer a copy of it with return reciept requested and include a debt validation letter in with it at same time just to save u the 6 bux! Send both of these together! Don't let the 20 days go by! They are counting on u NOT answering and they will win by default... that's what happened to me and it sux! Wish i had found this site before but we live n learn!
Hope this helps u a little bit,
Ang
P.S. Also as it tells u, do NOT go into any long explanations on ur answer, just simple to the point, yes or no's.... reread the one i sent for u! Also do NOT admit to owing this debt, dispute it, it's their burden to prove u do not urs to prove u don't!

Lawe Student or Texas Lawyer can answer this better than me-but I was under the impression that if you were going to bring up that this possibly is out of the SOL, you had to put that in the answer to your summons? You can talk to legal aid, or an attorney who has a free first visit to confirm anything you need to know- Good Luck-Keep us posted :D Karen

Yes Bossy you must put that in ur answer to teh summons!! Even if ur not sure of it, all they can do is object to it, i think anyway....
Someone who has a little more knowledge will more than likey be around soon with that answer but if not just sent either one of those 2 a PM and they will be more than happy to help u there!
Ang

Here is a copy of my answer that I am going to bring to the courthouse tommorow. I think I lost the formating when I transferred it over here, but you get the jist. Any suggestions are apreciated. Thanks

Defendant????????s Answer to Complaint

I
That the Plaintiff is a Corporation, incorporated under the laws of the United States and is qualified to transact business in interstate commerce and is an assignee of UICI/AFCA, HOUSEHOLD.

ANSWER: Defendant is without knowledge or information sufficient to form a belief as to the legal status of the Plaintiff.


II
That to the Plaintiff????????s knowledge, the Defendant(s), above named is/are individuals residing in the county of CLARK, State of Nevada.

ANSWER: Defendant admits the statement in Paragraph 2.



III
That to the Plaintiff????????s knowledge and belief the true names or capacities, whether individual, corporate, associate, or otherwise of the Defendant DOES I through X are unknown to the Plaintiff, who therefore sues said Defendant(s) by fictitious names. Plaintiff is informed and believes on such information and belief alleges that each of the fictitiously named Defendants is in some way responsible for the damages sustained by Plaintiff in this action.

ANSWER: Defendant denies using fictitious names.



IV
The Plaintiff and the Defendant(s) entered into an agreement wherein the Plaintiff agreed to provide the Defendant(s) with financial services in the form of credit services and pursuant to said agreement did provide said services to the Defendant(s) at the special instance and request of the Defendant(s). That the Defendant(s) defaulted in payment to the Plaintiff and that the following default in payment thereto, the balance due and owing from the Defendant(s) to the Plaintiff is in the sum of $2,053.71, plus interest accrued thereon at the mutually agreed upon contract rate per annum, or in the absence of contract interest, statutory interest, from the date of the last payment or the date the debt was incurred, whichever is sooner until this debt is paid in full.

ANSWER: Defendant denies the statements in Paragraph 4.



V
That the documents, writings, communications and activities between the parties constitute a contractual agreement between parties sufficient enough to bind the Defendants for the services rendered by the Plaintiff.

ANSWER: Defendant denies the statements in Paragraph 5.

VI
That the Defendant(s) benefited from the services provided by the Plaintiff and should be required to pay Plaintiff reasonable value for such services .

ANSWER: Defendant denies the statement in Paragraph 6.



VII
That the Defendant(s) accepted said services provided by the Plaintiff and was unjustly enriched by their failure to pay for the said services provided by the Plaintiff and should therefore be required to pay for said services.

ANSWER: Defendant denies the statement in Paragraph 7.


VIII
That although the demand has been made, the Defendant(s) have failed and continues to fail to make payment on said account; that there is now due and owing from the Defendant(s) to the Plaintiff the sum of $2,053.71, plus interest accrued thereon.

ANSWER: Defendant denies the statement in Paragraph 8.

IX
That it has become necessary for the Plaintiff to pursue this matter through the services of an attorney and that the counsel is entitled to a reasonable attorney????????s fee therefore.

WHEREFORE, Plaintiff prays for Judgment against the Defendant(s) as follows:

1. For the sum of $2,053.71, plus interest as set out above;
2. For reasonable attorney????????s fees;
3. For costs incurred or to be incurred;
4. For such other and further relief as to this Court may deem just and proper in the premises

ANSWER: Defendant denies allegations and therefore demands for payment.


AFFIRMATIVE DEFENSE:

I
THIS ACTION MUST BE DISMISSED AS UNTIMELY SINCE IT WAS NOT COMMENCED WITHIN THE APPLICABLE STATUTE OF LIMITATIONS. THE PLANTIFF WAS NOT ABLE TO PROVIDE THE DEFENDANT WITH POSITIVE PROOF THAT THERE WAS ACTIVITY ON SAID ACCOUNT IN 2001 WHEN IT WAS REQUESTED BY THE PLANTIFF. ACCORDING TO PLANTIFF, ACTIVITY PRIOR TO THIS OCCURRED IN 1998 OF WHICH DEFENDANT HAS NO KNOWLEDGE OF.


II
THIS ACTION MUST BE DISMISSED AS DEFENDANT REQUESTED VALIDATION OF THIS DEBT AND PROPER VALIDATION (I.E A CONTRACT OR OTHER AFFIRMATIVE PROOF OF OWNERSHIP) WAS NOT PROVIDED.

I just noticed that I made some mistakes about plantiff, defendant (got them confused) so consider it fixed.

I found this in the fair debt collection practice. See the part that I put in bold. Anyone know what that means in English?

???? 811. Legal actions by debt collectors [15 USC 1692i]

(a) Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

(b) Nothing in this title shall be construed to authorize the bringing of legal actions by debt collectors.

It simply means the suit has to be filed in the legal jurisdiction that YOU live in at the time the suit is filed.

Guest what that means in english is that they sue you in the location where you live in my opinion.

Jamie,
PM texaslawyer or lawstudent and ask them to look over it to make sure it is done correctly, although to me it looks good but i'm NO lawyer! Also, if u go to naca site and see if they have an atty locally who can help u with this. Also, u may be able to e-mail this to Bud Hibbs and see what they have to say about it! I just want you to make sure it's done properly or it can be thrown out! Bud Hibbs is awesome and answers emails very fast!
BTW... what state are u in? This may have already been mentioned, i just forgot! lol (old age)
Ang

Jamie- we are in the same sitituation. I am writing our response letter tomorrow. Thank you for asking all the questions I had.

about the quoted portion of the fdcpa, the location of suit is incorrect. The statute says:



http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#811

This means that they can either sue you where you currently reside, or they can choose to sue you in the jurisdiction where this credit agreement was originated. If you opened a credit card account in Florida, and then moved to Texas, they can then sue you in either location, at their discretion

If the debt collector comes to court with out the signed org. agreement for the debt could that help my defense