Threatened with lawsuit MJ Scott

Send him a cease and desist letter stating the debt is past the SOL. Send it certified witha return receipt requested. He cannot sue you if it's past SOL. That's a scare tactic to try to collect.

Send a SOL letter, out of statute and cease and desist and inform them they best remove it from the CRA's and follow up with the CRA's. If they try to sue which I highly doubt then the SOL is your defense. Make sure you send the letter CMRRR! It can only be reaged if you make any payments on the account. Look through this site for the letters and tailor them to your needs. They can always sell it to another and they will and try to get you to pay up but seeing its SOL they can NOT sue for it, but they can always try. The out of statute is your defense, its time barred for being sued
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Don't do that!! He can use the letter to perhaps issue a 1099...sending a SOL letter basically states it is your debt.

Simply send a cease & desist letter, doesn't need anything in the letter except to cease & desist all further contact. It can be as easy as:

I am writing to inform you that from the moment you receive this letter, you are to cease & desist ALL contact with me.

Have you checked your credit report to see if it is reporting? If it is, there are things you can do to fight it and perhaps get it off...if the account is in fact 8 years old then it is obsolete and the CRAs will remove it...unless the CA re-aged the account..then DV is in order.

Quote:

Okay, found this reply here. Thanks so much for the assitance! Truly! Hope it helps others, too. Okay, so I see that this is the only stmnt I should make in my letter. One question though...sorry, I do not know what "DV" stand for. I am going to have someone check my credit report for me. But from what I understood about two years ago, it was being re-aged by collection agencies who bought the old debt acct. How can they get away with doing this when it is so old? Anyway, thank for you all the advice!

This is a copy of what I am planning to send. Is this all I need right now?

[COLOR=#333333]Date: Jan. 25, 2011[/COLOR]
[COLOR=#333333][FONT=Arial][/FONT][/COLOR][COLOR=#333333]Re: Your letter dated Jan. 18, 2011[/COLOR]
[COLOR=#333333]Account No.: XXXXX[/COLOR]
[COLOR=#333333][FONT=Arial][/FONT][/COLOR][COLOR=#333333]Subj: Cease and Desist[/COLOR]
[COLOR=#333333] [/COLOR]
[COLOR=#333333] [/COLOR]
[COLOR=#333333] [/COLOR]
[COLOR=#333333]Mr. Scott,[/COLOR]
[COLOR=#333333]I am writing to inform you that from the moment you receive this letter, you are to cease & desist ALL contact with me.[/COLOR]
[COLOR=#333333] [/COLOR]
[COLOR=#333333]SDill[/COLOR]

NOPE....

Do NOT send this letter. Goldenbast is very knowledgeable, but in this case, I would not go this route at all. Here's the thing--this attorney debt collector has a long history of acting illegally. So, for one thing, sending this letter might not stop them from further contact anyways. Second, they might use this as a reason to file a lawsuit. True, they would be illegally suing you, but the key here is to keep the upper hand.

Is this the very first contact you have had from this debt collector about this debt? If so, I would send them this:

[QUOTE][COLOR=#333333]Date: Jan. 25, 2011[/COLOR]
[COLOR=#333333]Re: Your letter dated Jan. 18, 2011[/COLOR]
[COLOR=#333333]Account No.: XXXXX


To Whom it May Concern:

I am in receipt of your letter dated 18 January, 2011. This letter shall serve as notice to you that I hereby dispute your claims regarding this debt and, in accordance with section 809 of the Fair Debt Collection Practices Act(FDCPA), I request that you properly validate the alleged debt. As I am sure you are aware, the FDCPA prohibits any further collection activity on your part until such time that you provide me with proper, legal debt validation. At this time, I also inform you that, pursuant to Texas State Laws, you have 30 days from date of receipt of this letter to provide said validation to me. If, after that 30 days, you have been unable to validate the debt properly, Texas law prohibits any further collection activity, including filing a lawsuit. I thank you for your cooperation.

Respectfully,

(name)
(address)[/COLOR][/QUOTE]

See, by disputing their claims, you force them to validate or stop all contact anyways. And, heres the thing---if they break the laws now, you have a comparably easy time proving it. Plus, you have the added benefit of being able to make a case against a 1099 being issued--it can be argued that issuing a 1099 can be considered collection activity, which is prohibited once they get this letter.

I would send that letter certified, return receipt requested. And then, I would do your research....go read up on the FDCPA and especially the Texas Finance Code, I believe it is called. They are already breaking the FDCPA and I believe also the TFC by threatening to sue you on a debt outside the SOL.
[COLOR=#333333]

[/COLOR]

Okay, I just had my ex-husband look at my credit report. He said the card was opened about the 6 -8 years ago. My last pmt to them was 10/06. The acct charged off 07/07. So the last pmt was made over four years ago and the acct went into default. But they charged it off 07 of '07...so is it past the SOL then? Does it go by last pmt or charged off date? I am eagerly awaiting responses because I am going to the post office to mail my letter immediately upon hearing what I should do. And again, THANK YOU!!!

Charge off is different then last payment date....do you remember making a payment in 06? SOL goes by last payment.

Sending the Debt Validation (DV) letter is a road you can use as well, especially with the fact you are from Texas..HOWEVER you need to read texas statutes....and don't mix FDCPA with Texas law...you should do either or, not both because should you need to sue, you can sue in your JP court and if you add in federal laws they can try to remove the case to federal court...but using texas law only works with items reporting on your credit report, it is under 392.202 You really need to be savvy with Texas law to invoke the rights.

You see, with Texas law you are challenging the account on the credit reports, not the underlying debt itself.

Also you can use 392.203:
(2) collecting or attempting to collect interest or a
charge, fee, or expense incidental to the obligation unless the
interest or incidental charge, fee, or expense is expressly
authorized by the agreement creating the obligation or legally
chargeable to the consumer;

According to Texas law they can't add any fees unless it says so in the contract.

There are other parts of the code you could use as well. I am also from Texas and have used this code to excellent effect, including suing these violating companies and WINNING.

Also there is chapter 17 of texas buisness and commerce code...basically if they are in violation of these rights then not only can you sue for each violation (not less than $100 per violation and no cap) but then it is considered a deceptive trade practice and you can TREBLE the damages.

I will post a letter I used so you can see what it looks like.

Sample letter (this is one I actually used)

Dear Clark County Collections:

I reviewed my Experian and Equifax credit reports and discovered the above referenced account on them both. Not recognizing this account, I called your office and spoke with a Colleen Parker in regards to this alleged debt and your company had no solid documentation and refused my numerous requests for validation despite my rights under Texas law. I have recorded that conversation and was permissible with no notice to your office as is allowed under Texas laws Please be aware that this account is under my maiden name of XXXXXXXXXXXXX.

You are reporting an original balance of $276 with a total due of $351.

I looked up your company with the Texas Secretary of State and your company does not carry the mandatory bond to be able to legally collect in the state of Texas.

Texas Finance Code:
?? 392.001. BOND REQUIREMENT. (a) A third-party debt collector or credit bureau may not engage in debt collection unless the third-party debt collector or credit bureau has obtained a surety bond issued by a surety company authorized to do business in this state as prescribed by this section. A copy of the bond must be filed with the secretary of state.

If you company does in fact carry a bond, I will need to see proof of this bond as well as the name of the surety company and a bond number.

If you provide the required information on the bond, then I demand the following:

Per the Texas Finance Code ??392.202. I am disputing the accuracy of this item. According to the above referenced Texas statue you must cease any and all collection activity and respond to this letter in 30 days with proper validation, or you must delete this item from any and all credit reporting agencies you reported this inaccurate information to and permanently cease all collection attempts.

Please be advised that I am requesting proper validation, not verification. I already know you allege I owe this debt. I need proper documentation from the original creditor that I wrote these alleged checks such as copies of each check and I also need documentation that you are legally able to collect this debt on behalf of the original creditor or that you have bought the account. I am also entitled to a breakdown of monies owed and proof that any and all charges and interest fees are legal in the state of Texas.

Nothing in this letter authorizes a hard or soft pull of my credit report. Since you originally placed this information on my credit report in the first place, you should have all the information you need just using the above mentioned ref number that you used to place this derogatory item. Any pulling of my report will be considered non-permissible and in violation of my rights.

I am advising you now that it is inconvenient to receive any telephone calls from your office. Should you need to correspond with me, it will be in writing via United States Postal Service at the above listed address.

I am giving you notice now, according to Texas Business and Commerce Code, chapter 17, that if you don't provide me with proper validation that this act causes me and will continue to cause me mental anguish and detrimentally affect the health of my credit as well as you unlawfully attempting to collect an alleged debt without the required surety bond. By this code I can and will take you to court and seek damages under Texas code that can be not more then $500 for each violation and under the above code can be trebled, as well as all reasonable costs incurred with taking this action.

Business & Commerce Code ?? 17.505. NOTICE; INSPECTION. (a)
This is a written notice to cure the violations listed below. You have 60 days before I will file suit.

1. Immediately discontinue all collection activity and remove the account from my Experian and Equifax credit reports as you carry no surety bond.
2. Provide me with validating documentation: namely copies of the alleged checks, proof that you are either authorized to collect on behalf of Raleys or that you have purchased this alleged debt from them. Documentation listing how you figured the extra monies owed of $75.00 (the difference between the original balance of $276.00 and the amount you say I owe of $351.00) and that said calculations are lawful under Texas law.
3. Discontinue all collection activities that includes but is not limited to reporting any information to the Credit Reporting Agencies of Experian, Transunion and Equifax, continued attempts to collect the alleged amount owed, verifying any information to the above named three credit reporting agencies.
4. If the above cannot be met within the 30 day time frame as governed by Texas law, you will then remove the account from Experian and Equifax and permanently discontinue all collection activity and will further not sell or transfer this debt as it is not validated.

Each of these violations carries penalties of not more then $500.00 each trebling of amount as allowed under Texas Business and Commerce Code ?? 17.50. RELIEF FOR CONSUMERS. This could total $2000.00 subject to trebling as listed above to a total of $6000.00 provided no other violations listed in #3 are made by your company, which could conceivably amount to $500 (subject to trebling) for each such violation that occurs and added to the above listed total in damages plus reasonable fees in bringing this suit.

I hope we can resolve this matter

Goldenbast

Great letter! I have to admit that now I am a little confused. So the letter referenced by skydiver7673, should I not use that letter since it references the FDCPA, thereby making it Federal, or is it safe to send that letter? I have it all ready to take to the post office and mail, but I do want to be sure I am sending the letter in correct format. I am understanding from reading here that since the date of last pmt was 10/06, then it should fall under the SOL, despite the charge-off date being 07/07.

I appreciate the responses and advice I am receiving here. I plan on keeping up with updates as this progresses (or hopefully dismisses) so that anyone else who might be getting such letters after the SOL will also know how to proceed. I think this site is great and I have found your replies to be very helpful.

I haven't mailed the letter today. At this point, I will mail it tomorrow. I am just wanting to make sure that I am sending the correct thing when sending the letter above that skydiver posted. I have it all ready to go and have my copy already, too. Looking forward to your replies.

wow, that is a MASSIVELY great letter! Like I said, goldenbast is VERY knowledgeable!!!

But I do have one question, golden....can they really have it removed to federal court? I do not see how....this is taken from the FDCPA, section 813:

[QUOTE](d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs[/QUOTE]I do not see how the debt collector could lawfully require that any action on FDCPA be moved to federal district court when the law itself allows for you to sue them either in federal district court, OR in any other court of competent jurisdiction. If the FDCPA specifically allows for this, how could they cry foul?

One could easily make a case that if a debt collector is allowed to sue for debt collection purposes in the state courts, that they MUST consider those courts to be of sufficiently competent jurisdiction.....no?

Hmm....I have heard of them getting it removed to federal court when federal statutes are invoked..but perhaps it is like the partial cease & desist, it depends on the judge. With that wording of the FDCPA it would seem you could challenge/object any motions to remove it to fed court.

If this is the case then Texas is like a goldmine....sheesh...you would HAVE to file in federal court because adding in federal violations would shoot you past the $10,000 limit REAL fast!

BUT remember that JP court is more informal than federal court and someone who is not up on all the laws would feel more secure suing in their own JP court..it is SO EASY. :)

But again, getting the best outcome in Texas court would necessitate you having a working knowledge of the statutes...for example if you want to use chapter 17 of the business and finance code, you HAVE to word your written notice just right and give them 60 days to remedy the problem.

It depends on how much work the OP is willing to put in to this. To make a solid Texas case it generally takes about 90 days. 30 days for the initial dispute, then if they ignore or don't properly validate you would send the letter with the written notice and they get 60 days from that. If they still ignore or violate, then you type up an ITS (intent to sue) letter and include a copy of the suit you will file and give them like 10 days before you file.....this way when it does get to court, you can easily show there was no bona fide error and that you gave the CA ample opportunity to correct the mistakes.

It is a big process and you do have to come up with the filing fee plus the fee to have them served, but you DO get it back if you win in court costs.

I am sorry that I am still confused. Please bear with me through this. Is the letter that Skydiver attached earlier the one that I should send? I am still waiting to hear back on that question so I will know if I should mail it out tomorrow. Again, sorry for any inconvenience. Just never had anything like this come up before and not sure how to proceed, so the help from both of you is great....just need to understand better.

Please let me know your opinions on the following...

This is the action I have decide to take. I am wanting to keep this updated here so that if anyone else would find themselves in a similar situation, they can see the steps I made and make their decisions. For a lay person such as myself, it can get very confusing. Since I was unclear as to whether I should make mention of the Federal codes that Skydiver named, I left them out. This is my modified letter, which I will be mailing today via USPS, CMRRR:

[COLOR=#333333]Date: Jan. 25, 2011[/COLOR][COLOR=black]
[/COLOR][COLOR=#333333]Re: Your letter dated Jan. 18, 2011[/COLOR][COLOR=black]
[/COLOR][COLOR=#333333]Your Account No.: XXXX

To Whom it May Concern:

I am in receipt of your letter dated January 18, 2011, which I received via U.S. Postal Service on January 25, 2011.[/COLOR]
[COLOR=#333333]This letter shall serve as notice to you that I hereby dispute your claims regarding this debt and I request that you properly validate the alleged debt. [/COLOR]
[COLOR=#333333]As I am sure you are aware, you are prohibited against any further collection activity until such time that you provide me with proper legal debt validation. At this time I also inform you that pursuant to Texas State Laws you have 30 days from date of receipt of this letter to provide said validation to me. If, after 30 days, you have been unable to validate the debt properly, Texas law prohibits any further collection activity, including filing a lawsuit.[/COLOR]
[COLOR=#333333]I thank you for your cooperation.

Respectfully,

[/COLOR]
[COLOR=#333333] [/COLOR]
[COLOR=#333333]
SDill
Now, I have also been searching the Tx A.G. website and came across more information and then I phoned their office this morning. After talking with them, I made the decision to also file a Complaint against Michael J. Scott, PC through their website. Following is the description I stated in my Complaint. (I uploaded and attached to my Complaint the letter I received from Mr. Scott as well as my response letter I just posted above.)[/COLOR]

*** Print This Page and Keep for Your Records *** [RIGHT]Consumer Protection Division
Complaint Form Report [RIGHT]Today's Date: 1-27-2011 12:59 pm
Date filed: 1-27-2011 12:58 am [/RIGHT]
Consumer's Information: Name: SDILL
Address: XXXX

City, State, Zip: XXXX
County: XXXX
Home Phone:
Work Phone:
Age: XXXX
Supporting documents will be sent by:
Business or individual complaint is filed against: Business: Michael J. Scott, PC
Address: 1120 Metrocrest Dr., Suite 100

City, State, Zip: Carrollton, 75006-5862
County: Dallas
Phone: 866-298-3155
Contact person at business: Michael J. Scott
Website:
E-mail address:
First contacted via: I received information in the mail
(other):
Solicitation in other language?
Where transaction took place: By mail
(other):
Transaction Date: 0-0-0000
Contract Signed? No
Original Amount: XXXXX
Amount paid: 0.00
Payment Method: Not Reported
Date of Payment: 0-0-0000
Complained to business? No
If so, when?
Business' response?
Have you contacted another agency or attorney about this complaint? No
Name and Address of agency or attorney?

What action was taken by this agency or attorney?


Description of complaint:
I have recieved a letter from Michael J. Scott, PC, stating "as you know, this law firm represents Capital One Bank in connection with the Account." In his letter to me, he threatens to file a lawsuit against me. I have no knowledge of who Mr. Scott is or that he represents Capital One Bank other than by a statement he makes in his letter. He informs me in his letter that I have 10 days to respond to his letter (dated 01/18/11, rec'd by me 01/25/11) or if he does not hear from me, he states: WE HAVE DECIDED TO FILE A LAWSUIT AGAINST YOU, and that "...the next correspondence you should expect to receive from us is a copy of the lawsuit." He further states "This matter can be settled" and gives me his options for such settlement, that I can either pay a stated amount in the letter, made payable to Michael J. Scott, or that I can make monthly paymets in the amount he states in his letter. I have no knowledge of who this person is or that he does in fact represent Capital One, and he is requesting I send payments made out to him. He is further threatening me with a lawsuit of a debt that has not been validated. I intend to also send him a letter requesting proper legal debt validation. Further, if this debt is found to be valid, it may be from an account that would have passed the Texas SOL (Statute of Limitations) for a lawsuit to be initiated, and if he is an attorney, as he states in the letter, he would know that it would be past the Texas SOL. I believe Mr. Scott's threat to institute a civil lawsuit on a possible account that would have exceeded Texas SOL constitutes a harassing behavior from Mr. Michael J. Scott, which is why I have also decided to file this complaint with the Texas A.G.'s office. I am attaching a copy of the letter I received by Mr. Michael J. Scott, PC, and the letter in which I intend to mail Certified Mail, Return Receipt Requested, in response to his letter to me which I received via U.S. Postal Service on 01/25/11.
[/RIGHT]

Here is information on a website that further promted my decision to file an official complaint with the TX AG's office:

FINANCE CODE
TITLE 5. PROTECTION OF CONSUMERS OF FINANCIAL SERVICES
CHAPTER 392. DEBT COLLECTION

SUBCHAPTER A. GENERAL PROVISIONS

SUBCHAPTER D. PROHIBITED DEBT COLLECTION METHODS

Sec. 392.301. THREATS OR COERCION. (a) In debt collection, a debt collector may not use threats, coercion, or attempts to coerce that employ any of the following practices:

(2) threatening to institute civil lawsuits or other judicial proceedings to collect a consumer debt; or

Here is something else for you--MJ Scott says "This law firm represents Capital One..."--and then he says in the same letter, "WE HAVE DECIDED TO FILE A LAWSUIT AGAINST YOU". well, here is the problem with that--if his firm represents Cap One, then Michael J. Scott CANNOT DECIDE TO FILE ANY LAWSUIT AGAINST ANYONE in this matter. That right is solely held by Capital One, if in fact they do even still own this debt. The one and only entity that has the legal right to file a lawsuit is the one that holds ownership of the debt. The most that a debt collector who is collecting because the creditor hired them to collect is make a recommendation to the creditor about suing. They cannot "decide to file a lawsuit" themselves in this matter.

Not sure about the TFC, but the FDCPA specifically prohibits this kind of deceptive practice. One more thing--from your posts it appears that this threat to file a lawsuit was in the first contact you have had from this debt collector(Scott). If so, then they are also guilty of "overshadowing". The FDCPA requires that you be allowed 30 days from date of initial communication in which to send a written notice of dispute. They cannot try to force you to pay "in ten days" or else like this. They are legally permitted to file a lawsuit in that 30 days, but not once the debt has been disputed in writing, and they cannot make this kind of "pay up now or else" threat.

Thank you, Skydiver! I appreciate hearing back from you. I have been so nervous. I mailed my response letter that I had posted CMRRR. And yes, you are correct in that it was the first communication I had from Mr. Scott. Here is someone sending me a letter on a very old account and telling me they are giving me 10 days from the date of the letter - not even date of receipt of letter - in which to respond and pay in full or else he is going to file a lawsuit. First, I don't even know who he is, and yet he's telling me to send the payment made out to him??? Who would do that? Not me. I will post again whenever I hear anything back on this. Not sure how long it will take to hear back on my Tx AG complaint, either, but I will definitely keep this site updated. I wonder...has anyone else filed with the TX AG against Mr. Scott? There are many complaints about his practices here on this site and it was very easy to fill out the online complaint form. Only takes about two minutes to complete the complaint. Thank you again. I appreciate the information that you mods share!

I was sued by mjs and due to be in court 2/2/11 he will sue but you need to make him prove everything he alleges in the suit ask for all doc.'s from OC in your discovery he will not have the doc.'s and he will nonsuit. I received a letter from the court last week (an order of dismissal without prejudice notice of nonsuit) I know that not the same as with prejudice, but if he had the proof I think he would not backed down. Fight hard and fight to the end.
Texas

Just was informed that he keeps calling my parents now. And this is after I filed the complaint with the AG's office!

I got a letter from MJS notice of intent to file civil law suit the same as you said. This letter was dated Jan. 18, 2011 and I have been getting calls. I replied to his letter February 2, 2011 and I got four letters from several other attorneys offering their service since MJS filed lawsuit against me 2/3/2011,since I have been unemployed for over two years. I cancelled my credit card with Capitol One in 2009 and my credit limit was $550.00. They are wanting me to pay $1404.35.

What can I do to deal with MJS quickly? I don't want a lawsuit or judgement against me.

Hurry please! Help!!

You have mentioned that MJS has already filed a lawsuit against you. In that case, you must have received a summons from the court. You should reply to that summons and inform them that you intend to pay the debt. You can seek a payment plan from them in order to pay off the debt.

Ignore post #23

NO, you file an answer to the law suit DENYING all and THEN you file your own discovery to compel them to produce all documents to prove they own the account and have the right to collect seeing Scott likes to break the law and not have proof he even owns it much less has the legal right to collect.

exactly anon99.i wouldn't advise what #23 advised ridiculous.

Thanks! 24 & 25 and NO! I have not received a court summons. I got a letter from 4 other lawyers offering their services to me stating that MJS had filed a lawsuit against me. I cancelled the credit card in 2009 and remain unemployed.
I wrote MJS of my status Feb 2,2011, on Feb 3, 2011 MJS files lawsuit.

What can I do to fight this?
Thanks!!24 &25!!!!

Ok so you got letters from other lawyers wanting to represent you in court? It sounds like there may be a court case filed, but perhaps you have not been served yet. You should contact your county court and check to see if there is something on you....then keep tabs in case they try to get sneaky and claim you were served.

yes check your court clerk's website,or go in person.alot of sits you can enter you as the defendent and if there is a case it will show up.

OK! Thanks! can't I fight this by sending certified letter to MJS?

It is too late for letters once you are sued. Now if I read correctly and you have been telling him you owe but can't pay, he has all that on file and will likely go for a summary judgement which means the facts are not in dispute. This is the second easiest win; the default is the easiest.I elected private arbitration with both my cases with him, which means he is not allowed to litigate. He sued anyways which violates FDCPA and TX law. From what I observed, sloppy, bigtime lawsuit mill, does not read his mail. If he did he would have seen that I said to change my address to the correct one as well as electing arbitration (he is serving a vacant apartment...also against the law if you know the new address.)

Personally I would rather face them in court than in arbitration...time and again it has been proven that the arbitrators favor the CAs and don't even follow the law. You have a much better chance in court, as is your right.

I am also being sued by Michael J Scott and I have looked for his Surety bond to practice debt collection in Texas. Does anyone have that information?

Well if he is just suing you and not the owner of the debt, than he doesn't need the surety bond. You need to find out who owns the debt.

you failed to notice this from the texas statutes


(b) Subsection (a) does not prevent a debt collector from:



it goes above the threatening to file civil suit

Only if the lawsuit is legal, or they intend to actually file suit. If they threaten it, they better have the legal capacity to do so and they had better do it in 30 days.

We are being sued by Michael scott for a capital one act that was only a limit of $500, but they say we owe, $1800. My husband got the papers yesterday, what do we do now?

The account may have been $500, but interest continues to accrue and when you are sued, court and legal cost are added in....those can add up to $1000 or more.

Do you have an valid defense? Try settling out of court or they will get their judgment.