Explaination of FDCPA violations in counter claim
Date: Thu, 02/05/2009 - 13:14
COUNTER CLAIM
COUNT I
14. The complaint, the letter dated January 23, 2009 and the copy of letter dated November 12, 2008 along with all its attachments:
a. were false because defendant never received the original letter dated November 12, 2009, misleading and deceptive because plaintiff is trying to manipulate ownership and rights to this debt by using confusing and false statements prepared by someone else, and mischaracterized the status of debt by claiming the amount of $1860.81 due to original creditor on 11/26/04 and showing on a statement that the amount of $1860.81 is due to the original creditor on 4/11/07. and this is in violation of 15 USC 1692e.
b. contained unfairly and unconscionable sought amounts not authorized by a valid agreement or permitted by law. The plaintiff has stated that this alleged account was opened in 2001 and yet seeks amounts of interest, fees and cost as provided in an agreement that has a copyright of 2003. This is a violation of 15 U.S.C. 1692f.
c. the defendant has been injured thereby.
WHEREFORE, the defendant asks the court for judgment:
a. dismissing the complaint herein,
b. in favor of the defendant on the counterclaims:
I. for actual damages
II. for costs and disbursements of this action,
III. for statutory damages in an amount up to $1000 per 15 U.S.C 1692k.
IV. such other and different relief as the court finds proper.
I feel like I'm talking to myself here but I think its helping m
I feel like I'm talking to myself here but I think its helping me anyway...lol I'm starting to wonder if filing a counter claim only enables to collection agency to amend his complaint the way he wants it.
Looks pretty good here also. It is too bad you couldn't get them
Looks pretty good here also. It is too bad you couldn't get them on more violations but all it takes is 1.
I just went today to court, I filed a motion to dismiss against a debt collector. I said that they where unlicensed to collect in my state and the attorney had the nerve to say that they where a debt buyer,lol. The funny thing is the attorney submitted evidence which totally contradicts what he said in that they indeed do need to be licensed if they are a debt buyer.
I also got them on a few other things such as they first said it was a Emerge credit card opened in 1999 with an interest rate of 18%. Now they have a credit card agreement from Providian with a copyright date of 2000, dated November 2000 so I guess they went into the future and brought back a contract to sign in 1999.
I also got them on a few other things like the attorney went to file a motion for default saying I didn't answer the interrogatories. I showed my evidence that I did and the judge questioned him on it and he stuttered a bit and said they got it but where unhappy with my answers,lol
So I got them on a bunch of things and each time I caught him on lying. I now have to wait for the judges decision as she is going to review all the information. Either way I really don't care, my income is exempt and I have no assets. I plan on filing Chapter 7 within the next 3 months anyway.
Best of luck to you.
Not trying to be a PITA, but...I stopped reading when I got to:
Not trying to be a PITA, but...I stopped reading when I got to: "a. were false because defendant never received the original letter dated November 12, 2009, misleading and deceptive because plaintiff is trying "
Nov. 12, 2009? Better change that, IMO. (I'm a VERY slow reader, and not many errors get by me. ;) One error, and I lose all concentration.)
In know, I've made revisions to it sense then...lol this better
In know, I've made revisions to it sense then...lol this better?
a. were false, misleading, deceptive and mischaracterzed the status of the alleged debt. False, because defendant never received the original letter dated November 12, 2009; misleading and deceptive because plaintiff is trying to manipulate ownership and rights to this debt by using confusing and false statements prepared by someone else; and mischaracterized the status of debt by claiming the amount of $1860.81 due to original creditor on 11/26/04 and trying to collect on a statement, allegedly from the original creditor, for that same amount $1860.81 said to be owed on 4/11/07. This and the use of any busniess, company, or organization name other than the true name of the debt collectors business to try and collect on a debt is a violation of 15 USC 1692e.
No you may want to change the year from 2009 to November 2008.
No you may want to change the year from 2009 to November 2008.
I was just informed by an attorney that FDCPA violations are exc
I was just informed by an attorney that FDCPA violations are excluded after lawsuit has been filed. So, now the only thing I can see that might be a violation of FDCPA is the fact that I never recieved any notice of a right to have the debt validated. Is this a violation?
it is a violation, but it will be hard to prove that they didnt
it is a violation, but it will be hard to prove that they didnt send you a letter---they are claiming that they did. All they need to show as far as I recall is that they have a system in place to send those letters out to people when they first contact them. Just as they have no way to prove that they actually sent you the letter, you have no way to prove that you didnt receive the letter. It will be your word against theirs and the judge will likely have to throw that argument out because of it.
The reason why FDCPA violations can get excluded is because FDCPA violations are not allowed to have anything to do with the issue of if you really owe the debt or not. If they violated the FDCPA by not allowing you to get validation, for example, it can only affect the court case as much as it being dismissed without prejudice. They can be forced to follow the law, but it will not have any bearing on the lawsuit against you otherwise. The things you need to worry about for that revolve around defending against the complaint against you, not so much in trying to put in a complaint against them. Doing that will not get you off the hook of their complaint.
The whole thing about statements prepared by someone else is kinda a two-edged sword....on one hand, youre claiming that they are violating the FDCPA, but on the other hand, when they use data furnished by the original creditor, youre complaining that they are using statements prepared by someone else. In order to properly validate a debt they MUST do exactly that--the details MUST come from the original creditor. I think, without at all trying to insult you here, that if you go to court with this, the judge will not be on your side.
If the debt collector doesn't have the ORIGIONAL SIGNED CONTRACT
If the debt collector doesn't have the ORIGIONAL SIGNED CONTRACT / CREDIT CARD APPLICATION then they can't prove anything!!!!!! I was taken to court for a debt I couldn't confirm. The debt collector had a faxed copy of a copy of a monthy credit card bill. But no signature agreeing to pay! SO I WON!!!! Also, if its on your credit report you can file claim against them for providing unvarified debt to credit reporting agency. Check out THE FAIR CREDIT REPORTING ACT. ss 623. Good luck