is this legal?

Make sure he shows up to the court date..boy will they be surprised, then inform the court that he was never served properly..if the lawyer filed that he was served...ooh boy...he up the creek. :)

Be sure to bring all the proof of on time payments and explain the arrangement..the judge I doubt would look to favorably on the CA for breaking the agreement.

Goldenblast is right-keep and bring all papers you have to court. So did the OC buy the account back, is that what you ar saying? If they have the account,contact them and ask them what this is all about. If these people don't have your account and are taking you to court--they will be in for a big surprise!!

Well the lawyer who is taking him to court sent him a form to sign that outlines an acceptable payment agreement, which i discussed over the phone with the original creditor. the form does say the date that i saw online in march for court, but in the form it doesn't say anything about going to court. they want a payment today and the form signed and returned to the original creditor today as well. he didn't sign it, i am planning on taking in the payment because that it what we have been doing but not the form... does that sound like a good idea?

Hi sarah--

Give me a little background, if you wouldnt mind. how often have you been paying them, and how many payments have been made since they filed the complaint with the court?

Since the OC is who's taking you to court, the fdcpa does not apply. That only applies to third party collectors, not the OC. So instead, you can focus in improper service. The laws are different in each state but there is usually a requirement for the plaintiff to show that they properly served summons on the defendant. What state do you live in? We can look up the rules of civil procedure for your state, as those laws are the ones you will need if they messed this up.

In a nutshell, violating the rules of civil procedure, which is what improper service violates, is often sufficient by itself to get a court case thrown out. Let me also ask you this--how old is this debt? This sounds to me an awful lot like a sneaky way of getting the SOL renewed. Let me explain what I mean--

SOL is statute of limitations. Every state has their own statute of limitations on debts. They are not supposed to bring suit against you if the SOL has expired on the debt. However, one way to get around that is to get the debtor to make a payment. Making a payment restarts the clock on the debt's SOL. So, if this is an old debt, the lawyer could have proposed this payment plan for the sole purpose of restarting the SOL, so they could sue you. May sound kinda wild but believe me stranger things have happened.

Let us know what state you live in, and if this is an old debt or not. We can go from there to get you as prepared as possible.

thanks for the reply... i live in maryland and we became late on payments in 04/07 (i think). Since then we became late by 3 payments but have continued making a monthly payment ever since (so kind of like we skipped 3 months).

we did get a letter in 07/07 that they sold the debt to a lawyer but if we made a payment they would buy it back... so i guess we have been making the monthly payments since last july then but never made up the 3 we missed... does that make sense?

online it says that they set a court date on 12/07/2007 and the court date is 03/18/2008, we have made decembers payment and i'm planning on taking them january's payment today.

here is what the form i received says:

lendmark in the district court of mc
address case #
plaintiff t/d date

husbands name
address
defendant

request for entry of consent judgement

mr./madam clerk:
please enter judgement by consent in the principal amount of $...., plus pre-judgement interest of $..., plus late fees of $.., plus attorney fees of $..., plus costs, plus post-judgement interest at contractual rate until 01/10/2010, legal rate thereafter, in favor of the plaintiff and against the defendant. Defendant agrees to pay attorneys for plaintiff consectutive monthly payments of $... beginning on 01/30/2008, and due on the last day of each and every month thereafter, until paid in full. Plaintiff agrees not to excute or levy against the defendant for as long as the defendant is in compliance with the terms as set out above.

a place for my husband to sign.

and attached is a sheet of the list of each amount they list in the letter

ok, a consent judgment is what they are trying to get now. This means they want your husband to agree to those terms, sign it, and then they will present it to the court. Personally, I would stay away from that, but thats just me.

At this point, it appears that a lawsuit has been brought against you improperly. The law you will need to look up is Maryland Rules of Civil Procedure. This code of laws governs the way a summons must be served and so on. In your state, I looked and found that a summons can either be served in person, left with someone of competent age at your residence, or sent by certified mail. So, this isnt something that you would have gotten and not known that something was happening. Did you change addresses or anything in the last year? If not, then they should have had no problem finding you.

I would send notice to the court in reference to this case, that you were never served summons and make motion for dismissal based on improper service. Also, when a summons is served, there is a requirement for the process server to provide proof of that service to the courts. The plaintiff has the burden on them to show that you were served summons in accordance with Maryland state law. Proof of service would pretty much have to have your signature on it because whether done in person or by certified mail someone had to sign for it.

I would send a certified letter to the court clerk's office on that, and I would do it soon. In the meantime, I would suggest that you make your payment as agreed.

Ok, well i'm not going to have him sign it yet... online it says that the trial date was set on 12/07/2007 and that a notice of trial/hearing was sent on 1/11/2007 and the interest worksheet was received on 1/25/2008. is the notice sent date they day they sent the summons because we never received it. and we have had the same address for 4 years, and that was before he opened this account so they do have his correct address. And when i write to the clerks office, what should i say? would someone mind putting an example here that i could work off of? Thanks a lot for all the help! i'll be researching the md laws on this one...