PLEASE HELP - SCARED AND FREAKING OUT!!!
Date: Sat, 08/22/2009 - 12:30
OK, background: 1st Resolution claims I owe them $7044 from a debt that was first delinquent 6/2003 according to Equifax. I lived in Virginia at that time (3 year SOL), currently live in MA (6 year SOL). Sent a DV back in 2007, was sent a copy of a filled out credit card application with a number hand written on top, along with a letter saying my account was being transferred to a legal office. Just today I receive a summons from the local district court directing me to send the law firm and the court my answer to the complaint. The summons does not contain any info as to what the complaint is, just has 1st Res. address v. me, the civil action #, and says I am "hereby summoned and required" to serve the lawyer a copy of my answer to the complaint. I HAVEN"T RECEIVED A COMPLAINT! Just this summons!
So now, my questions: 1) As far as I can tell, 1st Res. isn't licensed to collect in MA.
2) Even if they can collect in MA, if Equifax says the debt was first delinquent in 6/2003, MA's 6 year SOL covers me, correct?
3) When I answer this, how do I do it if there isn't a spelled out complaint? There's nothing on this piece of paper saying I owe money, much less an amount. It just says I need to send an answer.
4) SHould I do any sort of counter-claim? Would that help or hurt me?
5) Finally, if I don't send my answer in a specific format will it get thrown out? Does the district court expect a standard format?
This is what I've come up with so far as an answer, despite me not having the actual complaint:
Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the Complaint, and based on that denies generally and specifically any allegation contained therein.
Affirmative Defense:
1. Any collection or cause of action and complaint is barred by the applicable statute of limitations for Massachusetts.
2. The plaintiff is not authorized or licensed to collect in the state of Massachusetts.
3. Plaintiff's damages are limited to real or actual damages only.
4. Plaintiff’s damages are the result of acts or omissions committed by Plaintiff.
5. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits.
6. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits.
The defendant moves the court as follows:
To dismiss the action in its entirety and that judgment be entered against Plaintiff in the amount of $1,000 plus attorney fees and court costs.
1. Dismiss the action because the Plaintiff is not licensed to collect in the state of Massachusetts.
2. Dismiss the action because Plaintiff has not provided information for the complaint.
It really doesnt matter if First Resolution is licensed in your
It really doesnt matter if First Resolution is licensed in your state....it is the attorney who is collecting their behalf that has to be licensed.
On the state's website, I found a list of licensed debt collecto
On the state's website, I found a list of licensed debt collectors, neither 1st res nor the name of the attorney on my summons is listed. For this to be legal, wouldn't one of them need to be on this list of debt collectors?
first things first--take a deep breath and try to calm down....a
first things first--take a deep breath and try to calm down....all the panic in the world wont solve anything, right?
OK, now, lets take this one step at a time. The statute of limitations depends on the type of debt usually...in MA, you are correct that both oral and written contracts carry a 6 year SOL. Be careful here--while debt collectors love to claim that a credit card account is a "written contract" when it suits them, it is in reality generally considered to be an open account instead. Now, looking around a bit, I didnt see anything different in your state's SOL requirements for an open account, so perhaps the 6 year written contract statute is it.
Now, you said there is no complaint, but you were able to see that there's an entry on your Equifax. I can only assume that the entry was put on there by the same debt collector thats now suing you, is that correct? Otherwise, how would you know its the same debt? You need to keep a copy of that credit report handy as it is now evidence....ESPECIALLY if First Resolution is the one that reported the 2003 delinquent date to Equifax! They may now try to claim a later date of delinquency so that they can still try to get the judgment, but you have it in black and white, so print out that copy and keep it handy.
Next, contact the court clerk's office where this case has been filed. Inform them that you intend to defend against the allegations but you do not have a complaint with which to file an answer. They should be able to help you get a copy of it.
OK, assuming that all is legitimate and that you have gotten that far, its time for you to file the answer. As a general rule, I typically recommend that people deny any and all claims pertaining to the actual debt itself that the plaintiff has made on their complaint. In your case, the SOL is going to be your affirmative defense, meaning you have to state "expired SOL" for it to mean something in this case. The court wont automatically dismiss the case due to SOL, you have to bring SOl up in order for the court to consider it. So, you can deny the specific paragraph statements, one at a time, and then put down something like this:
Quote:
AFFIRMATIVE DEFENSE Defendant hereby asserts that, even by plaintiff's own written admission, the applicable statute of limitations for this debt has expired. Plaintiff is currently reporting this debt on defendant's Equifax credit report with a delinquency date of June 2003, which would mean that the statute of limitations expired on this account in June 2009. Due to this, defendant moves for dismissal with prejudice on the plaintiff's complaint. |
Aside from that, any claims relating to them being licensed or not being licensed would have to be something you take up with your state secretary of state's office, or whatever state office handles those requirements. If they are trying to collect and are not licensed, then there isnt anything in it for you--the state would have the option to take action against them for it. But I would definitely file that complaint anyways--they deserve it if they are acting illegally.
As for a counterclaim, its hard to say based on what you have said so far. You mentioned that they sent you validation in the form of a "filled out credit application"--was it your handwriting on it? Was your signature on it? If not, then they didnt provide you with anything. I would guess that you dont still have that application that they sent you--if you did, it woud be evidence if you chose to file a counterclaim. At this point, I would probably say to focus more on getting this case dismissed than filing a counterclaim. All of the things you mentioned in your answer about the licensing, the accord and satisfaction, all of that you can basically throw out the window because none of it will apply to this case. The judge will be faced with one question to answer, and only one question--you have been accused of owing this money....do you actually owe it? Thats it--nothing else will do anything but distract from that. And you dont want to try to distract the court--it could lose you your case. Stick with "expired SOL" and move for dismissal WITH PREJUDICE.
One more thing--the attorney in many states does not need to be licensed as a debt collector, being an attorney often satisfies the requirement within that state.
If theres a specific format or a form you need to use to file the answer, the court clerks office will be able to tell you. They can offer that kind of help, but not legal advice.
Keep this in mind, the SOL is an affirmative defense, meaning as long as it is true, the plaintiff doesnt have any way to counter it. Once the SOL is past, then there is nothing they can do except for lying about it--and if they are the ones that put this on your credit report, it will not look good for them to lie about it. Also, even if they arent the ones that reported it, then the original creditor is probably the one that did, and their info would usually be considered more reliable.
Thank you for the replies so far. Another question I have: what
Thank you for the replies so far. Another question I have: what does this mean - "commenced only within six years next after the cause of action accrues"?? My Equifax states date of first delinquency is 6/2003, is that the "cause of action" or is it when it finally was written off?
The "cause of action" is generally when the delinquency occurs.
The "cause of action" is generally when the delinquency occurs. In this case 6/03. Have you made a payment since 5/03?
OK, finally got a copy of the complaint. It's just 3 bullets: 1-
OK, finally got a copy of the complaint. It's just 3 bullets: 1- the name 1st Res, assignee of unifund..assignee of Chase..
* does this mean they are the 3rd people to own this?
2) my name and address - my address is slightly incorrect, I live in the REAR and it is addressed to the house in front of me.
3) defendant owes Plaintiff the sum of $7044 for unpaid balance due for money loaned to defendant by plaintiff's assignor on a credit card balance.
THEREFORE, plaintiff demands judgment against defendant in sum of $7044 plus interest thereon from 2/05/08, date of demand and the costs of this action.
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Sooooo, my question is, how best do I answer? I know deny the sum, and I'm assuming correct my address.
How/when do I introduce my living in VA in 2003, and how do I prove residence at the time?
Do I simply state "lived in VA, VA statutes apply, out of SOL" and/or do I state it is out of SOL for my current residence of MA?
To answer the last posters question, I have zero knowledge about this account, if it's mine when I paid them last or anything. My Equifax report shows it being in first default (30 days late) in june 2003, but 1st Res debt collector says I paid in november of 2003. Why would they claim that if they didn't have something to back that up? Why would Equifax show last payment as 5/2003 and being 30 days late in june 2003?
It seems like the more information I'm finding the more question
It seems like the more information I'm finding the more questions I have. Now another question: I did find a single statement from the OC dated 6/17/03 - 7/16/03 which states I'm $100 past due. This is proof I had my virginia address in July 03. On both my credit report and in a letter from 1st Res, they state the last payment was made 11/03. I have no record of this so I can't prove otherwise. Virginia's SOL states:"4. In actions upon any unwritten contract, express or implied, within three years.
8.01-249. When cause of action shall be deemed to accrue in certain personal actions.
The cause of action in the actions herein listed shall be deemed to accrue as follows:
8. In actions on an open account, from
the later of the last payment or last charge for goods or services rendered on the account"
Does this mean that if I did pay them in Nov, the SOL is started from then, and not from the date of first delinquency??? If so, I think I'm screwed. I'm almost wondering whether I should just try to settle for $1000 or something like that?
Have they sent you the chain of ownership? (Proof of who all own
Have they sent you the chain of ownership? (Proof of who all owned it before them)
Personally, I wouldn't even THINK about making a deal with them. And, I certainly wouldn't send them anything that might incriminate me.
UNIFUND is a real PITA!
Good luck!
1st Res. sent me a bill of sale supposedly showing the transfer
1st Res. sent me a bill of sale supposedly showing the transfer from Chase to Unifund. If 1st Res is an assignee of Unifund, wouldn't I need to see a bill of sale from Unifund to 1st Res? Or are they one and the same? I'm switching between feeling confident that I can win and feeling like I'm going to lose, have a judgement against me, have my truck seized, and be getting a ride to work by hitching. Tell me there are people who have successfully fought and won debt collector law suits?
I have won against UNIFUND, but...only with the help of an attor
I have won against UNIFUND, but...only with the help of an attorney.
I would tell them you want the sale/purchase paper from UNIFUND. Do you know how much each paid for your account/alleged debt? TRUST me, Chase didn't just transfer that to UNIFUND for free. Unifund PURCHASED it.
It is a DAUNTING task to go it alone. It literally consumed me, till I finally broke down & borrowed money from a friend to hire an attorney.
Have you looked at the NACA site to see if there is a Consumer attorney in your state? I found my attorney there, and I've never met him. It was all done electronically.
Good luck.
Buckeye - Thank you for that idea, I will look there first thing
Buckeye - Thank you for that idea, I will look there first thing tomorrow. I know every attorney will be different, but about how much did it cost you in the end?
It cost me NOTHING! UNIFUND had to pay my attorney fees. ;) G
It cost me NOTHING! UNIFUND had to pay my attorney fees. ;)
Good luck!