Needing Help and/or input. Thanks

Ok there is no point in sending a validation letter since you have already been sued. Forget that for now. What you need to do is file your answer. Your answer will depend on what the summons says....it should have a numbered list with a bunch of statements. You want to agree/deny/insufficient information to agree or deny each statement.

you can type up what the summons says here and we can help you form an answer....just don't put your actual info such as your name and address (for your privacy protection).

You should call chase and find out if they still have your account because I don't think an assignee can sue you...it would have to be chase themselves.....

How old is this debt? I have seen some unethical CAs put 'assignee' even though the OC doesn't actually own the debt...its a tactic to make the suit seem more legit and intimidating.

When it gets to discovery you need to then ask for the validating documentation.

Wouldn't the Summons be considered "written notice" in this case? Then if Defendant sends a DV letter, the Plaintiff would be barred under the FDCPA from "collection activities" until verification / validation of the debt.

"According to the law, if you send the debt collector a letter stating that you do not owe some or all of the money within 30 days after you receive written notice of a debt, the collector must stop trying to collect until you’ve been given written verification of the debt, like a copy of the bill for the amount you supposedly owe. The collector can renew collection activities once you’ve gotten proof of the debt..."

(FTC Opinion)

http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm

I do agree that the complaint must be answered within the time allowed. I think a DV letter won't hurt, either.

Once its in court a DV letter has no standing whatsoever. You have to file a motion for discovery for the proof. A DV letter is ONLY for before lawsuits

Exactly what anon99 said above. Once a suit is filed, the debt validation letter won't work because the suit has already been started prior to the validation letter...they will simply ignore it without penalty. You need to get a DV out before suit is filed, then they can't file...but once filed it is filed.

You need to get the documentation during discovery. Watch out for affidavits..CAs love to produce these things and you need to object to it as hearsay unless the CA can bring the person in. Many times these people are totally fictitious, CAs have been caught pulling this tactic before.

Thank you all for your input, I was told by an attorney to go ahead and send the validation letter. He also said to go to court with my answer on the court date and request that further action be stopped until verification is provided. What disgust me the most is that they offered on there original letter that they would wait 30 days to file suit if a response wasn't received. Well, they only gave me 10 days when they filed suit. Goldenbast, I will answer like you suggested. Does the answer have to be formated like the petition?
Thanks

Yes it should be formatted just like the petition, you can use it as a template.

I am very surprised a lawyer told you to send the DV letter....is this a consumer attorney with debt experience? I have found (to my utter shock) that some consumer lawyers have no real knowledge of the debt collection laws...normally I always say to listen to the lawyer I mean duh..they went to school...but it is actually common knowledge to people who know debt laws that a DV will not be honored if a suit is already filed...I am floored he told you to do so anyhow...

I am also floored about him telling you to take your answer to court? Did he actually tell you to not file your answer and just take it to court?? Floored....you should file your answer to be on the safe side.

Below you will find the petition received. Also, Chase has written off the account but is still within SOL I believe.

IN THE DISTRICT COURT OF SEDGWICK COUNTY, KANSAS

OZARK CAPITAL CORPORATION )
ASSIGNEE OF )
CHASE BANK USA, N.A. )
)
Plaintiff, )
)Case No.
vs. )Court No.
)Chapter 61
)
)
)
)
Defendant(s). )


PETITION
COUNT I

COMES NOW Defendant and for its answer to counts I and II initiated by Plaintiff states:

1. Plaintiff issued to Defendant(s) a line of credit, which said line of credit was in

the form of a credit card.

2. At the time of the issuance of said credit card to the Defendant(s), Plaintiff

caused said credit card to be accompanied by a set of rules for the use of said card.

3. Defendant(s) by acceptance and use of said credit card and line of credit made

available to Defendant(s) thereby, agreed with Plaintiff to a aforesaid set of rules, and to pay it or

its assignee all sums of money representing credit advanced to Defendant(s) by any person

through use of said credit card.

4. Defendant(s) accepted credit through use of said credit card by the persons, or

firms, in the amounts set forth in Paragraph 6.

5. Plaintiff has paid valuable consideration to each of said issuers of credit to

Defendant(s) and that as consideration therefor each of said issuers of credit has assigned to

Plaintiff the rights to receive payment evidenced in each of the transactions making up the

balance due.

6. Plaintiff has made demand upon Defendant(s) for payment of each of said items,

but Defendant(s) fail(ed) to pay same or any part thereof, leaving a balance due in the sum of

$4,XXX.XX

7. Plaintiff is entitled to interest at the contract rate of 10% per annum, from and

after February 27, 2009.

COUNT II

1. Plaintiff incorporates each and every allegation of Count I as if fully set out

herein.

2. Plaintiff furnished Defendant with a statement of account setting forth the balance

claimed due and demanded payment of said account.

3. Defendant has not objected to the accuracy of the statement of account, but has

failed to pay the balance due.

4. Plaintiff is entitled to judgment in its behalf on the account stated.

WHEREFORE, Plaintiff prays judgment against Defendant(s) in the sum of $4,XXX.XX; for interest at the contract rate of 10% per annum, from and after Fefruary 27, 2009; for interest on any judgment rendered at the rate of 10% per annum; and costs




Berman and Rabin

When we fill out the answer should I list their counts first then my answer below? I have posted the petition and need help with my answers.

When should we file? Also, should we also file notice of appearance and motion for discovery?

Yes to all of those.

Ok I see that the plaintiff is actually Ozark and not chase, so this tells you you are dealing with a debt purchaser...if chase still owned the account they would be the ones suing, not Ozark. The assignee is basically just stating they have been transferred the debt though a legal sale.

File ASAP.

Ok here are some answers you can use:

(you don't have to make a copy of the statements, just list your responses like below)

Count I


COMES NOW Defendant and for its answer to counts I and II initiated by Plaintiff states:

1. Deny. Plaintiff never issued Defendant a credit card. (((I love how they state the plaintiff issued you a credit card...THEY are the plaintiff...so they are basically stating THEY issued you the card.)))

2. Deny. Defendant never received any such card or insert.

3. Deny. Defendant has never seen any such documentation.

4. Deny. Defendant never received a credit card from Plaintiff.

5. Deny. Defendant has no knowledge of Plaintiff purchasing valuable consideration. Plaintiff also failed to provide Defendant with a copy of the signed agreement giving Plaintiff the right to collect any monies as required by Fair Debt Collection Practices Act 808 (1).

6. Deny. Plaintiff sent defendant a dunning letter on XX-XX-XXXX. 10 days later Plaintiff files suit giving Defendant no time to verify the validity of said claims and denied Defendant the 30 days to dispute the alleged debt as required by federal law, Fair Debt Collection Practices Act 809 (a) (3) (4). Plaintiff has also failed to provide any contractual evidence that Defendant owes $XXXXXX.

7. Deny. Plaintiff failed to provide a copy of aformentioned contract, signed by the Defendant that entitles Plaintiff to any monies.

COUNT II

1. Without sufficient information to agree or deny as set forth above.

2. (((Before we answer this, we need some info...did Ozark send you a statement from Chase or was it simply something generated on their own letterhead? If they did send a statement from Chase, does the amount match what they say you owe?)))

3. Deny. As stated in COUNT I #6 Plaintiff failed to give Defendant time to dispute the validity of the alleged debt. Defendant does in fact dispute the validity of the alleged debt.

4. Deny. Plaintiff has offered the court no evidence that Defendant owes any monies to the Plaintiff.


WHEREFORE, Defendant prays dismissal of suit based on lack of evidence.


AFFIRMATIVE DEFENSES

1. The plaintiff/complainant fails to state a claim against the defendant upon which relief may be granted. ((((basically this means that they have have not been able to prove any real claim exists)))

2. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

3. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

6. Plaintiff???s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. ((basically means they have not proven they bought this account)))

7. Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff purposely filed suit 10 days after sending initial communication circumventing the Defendant's right to dispute the validity of the debt.

8. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

1. Plaintiff has violated Fair Debt Collection Practices Act 807 (2A) in that the Plaintiff has falsely represented the character and amount of the alleged debt by not providing any evidence that such a debt exists.

2. Plaintiff has violated Fair Debt Collection Practices Act 808 (1) in that Plaintiff has performed an unfair practice by attempting to collect an alleged debt without any contractual proof as required by sait statute.

3. Plaintiff has violated Fair Debt Collection Practices Act 809 by overshadowing the Defendant's right to dispute the validity of the debt and attempting to use the court as a means to force unlawful payment in total disregard of federal law.

4. Defendant seeks the court's dismissal of the Plaintiff's complaint with prejudice.

5. Defendant prays for $1000 in damages plus all court costs as provided by Fair Debt Collection Practices Act 813 (2A)




-------

Honestly? You should countersue...give them something to think about. I believe you can add a countersuit to your answer and I have supplied some suggestions....even if you ultimately don't win, you still give them pause for thought and your claims are backed by FDCPA....even if one of those counts gets turned down, there is still the others.

Did they attach any documentation to the suit, any affidavits? The above answers may need to be amended depending upon what all was included as evidence in the suit.

Thank you so much for your response, the petition did not have anything attached. No affidavits or statements, just the petition. What if there is evidence filed but not sent to me? We are planning to file this answer this afternoon.
To you question Count II #2, we have not received a statement, only the request for $ and there file number. No reference to acct # at all. It is on Berman and Rabin letterhead.

Question, do we file the notice of appearance and motion for discovery at the same time and on separate sheets. And if so, where can I get sample documents.
Thanks so much, you are a god send.

If there was any evidence filed it would have to be included in the initial petition.

Ooooooo so they LIED on an official court document???? In that summons it specifically states they provided you with a statement of accounts....so they did not do this? That is grounds for some more affirmative defenses AND countersuits....


give me a minute to research a few things and I will rewrite the answer you can use as a guidepost to your answer...ooh you should also get a copy of the FDCPA and attach it as evidence :twisted::twisted::twisted:, also attach a copy of the initial letter they sent as evidence.

As for appearance, yeah file that when you file the answer. As for discovery, you can wait a bit and see if they send you discovery....since they have no documentation of their own they may try to force you to do their work for them by asking YOU for production of documents. If you get this we can help you compose an answer to that and you can use the discovery they sent you as a template to send them one of your own. If they don't send you one soon then we can help you compose your own discovery.

Count I


COMES NOW Defendant and for its answer to counts I and II initiated by Plaintiff states:

1. Deny. Plaintiff never issued Defendant a credit card. (((I love how they state the plaintiff issued you a credit card...THEY are the plaintiff...so they are basically stating THEY issued you the card.)))

2. Deny. Defendant never received any such card or insert.

3. Deny. Defendant has never seen any such documentation.

4. Deny. Defendant never received a credit card from Plaintiff.

5. Deny. Defendant has no knowledge of Plaintiff purchasing valuable consideration. Plaintiff also failed to provide Defendant with a copy of the signed agreement giving Plaintiff the right to collect any monies as required by Fair Debt Collection Practices Act 808 (1).

6. Deny. Plaintiff sent defendant a dunning letter on XX-XX-XXXX. 10 days later Plaintiff files suit giving Defendant no time to verify the validity of said claims and denied Defendant the 30 days to dispute the alleged debt as required by federal law, Fair Debt Collection Practices Act 809 (a) (3) (4). Plaintiff has also failed to provide any contractual evidence that Defendant owes $XXXXXX.

7. Deny. Plaintiff failed to provide a copy of aformentioned contract, signed by the Defendant that entitles Plaintiff to any monies.

COUNT II

1. Without sufficient information to agree or deny as set forth above.

2. Deny. Plaintiff did not send Defendant any such statement of account and further did not even provide an account number for the alleged debt.

3. Deny. As stated in COUNT I #6 Plaintiff failed to give Defendant time to dispute the validity of the alleged debt. Defendant does in fact dispute the validity of the alleged debt.

4. Deny. Plaintiff has offered the court no evidence that Defendant owes any monies to the Plaintiff.


WHEREFORE, Defendant prays dismissal of suit based on lack of evidence.


AFFIRMATIVE DEFENSES

1. The plaintiff/complainant fails to state a claim against the defendant upon which relief may be granted. ((((basically this means that they have have not been able to prove any real claim exists)))

2. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

3. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

6. Plaintiff???s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. ((basically means they have not proven they bought this account)))

7. Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff purposely filed suit 10 days after sending initial communication circumventing the Defendant's right to dispute the validity of the debt. Further, Plaintiff states a false claim in Count II (2) in that no such statement was ever sent. The only communication from the Plaintiff was a letter dated XX-XX-XXXX and is included in this answer.

8. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

1. Plaintiff has violated Fair Debt Collection Practices Act 807 (2A) in that the Plaintiff has falsely represented the character and amount of the alleged debt by not providing any evidence that such a debt exists.

2. Plaintiff has violated Fair Debt Collection Practices Act 807 by purposely stating a falsehood on an official court document, namely that a statement has been provided when in fact it has not. This is done purely to misrepresent the alleged debt in question in order to secure a payment through collection activity.

3. Plaintiff has violated Fair Debt Collection Practices Act 808 (1) in that Plaintiff has performed an unfair practice by attempting to collect an alleged debt without any contractual proof as required by sait statute.

4. Plaintiff has violated Fair Debt Collection Practices Act 809 by overshadowing the Defendant's right to dispute the validity of the debt and attempting to use the court as a means to force unlawful payment in total disregard of federal law.

5. Defendant seeks the court's dismissal of the Plaintiff's complaint with prejudice.

6. Defendant prays for $1000 in damages plus all court costs as provided by Fair Debt Collection Practices Act 813 (2A)

We have not receive anything other than the letter from their attorney and the summons and petition.

Do they just file the evidence as part of the answer or is it separate?
Also, on Notice of appearance, do you have a sample?

It is usually filed with the summons....the fact it is not has a strong possibility that they have no documentation to provide otherwise they would have provided it.

What state and county are you in? I can look up your rules of civil procedure to get a template

Is the evidence submitted with the answer of do we file it separate?
Also, where can I get a sample of the Notice of Appearance?
Thanks so much. : )

Sorry I asked twice, didn't notice the page 2 button. We are in Sedgwick County, Kansas...Wichita

Since we are representing ourselves, to we need to file the Notice of Appearance. Since our Answer will be dated and entered today?

Is it small claims court?

Ok NVM I am reading your rules of civil procedure...it seems your case is a chapter 61 limited civil...I am still reading so stay tuned.

I could not find anything specific about the notice of appearance...perhaps you should ask the clerk when you go to file your answer, though I think all you need to do is file the answer. Be sure to send a copy of your answer to the plaintiff lawyer certified mail.

be sure to add this on the bottom of your answer:

On the site the court referred me to, http://www.kansasjudicialcouncil.org , they had the Answer formatted how they wanted it. Including in this document is what you have shown above. We have filed our Answer and Certificate of service along with the letter, post marked env. and the FDCPA document. We have also sent this answer to the attorney and Plaintiff via certified mail return receipt today. Our court appearance is tomorrow, what will happen at this first court appearance and what should we tell them?

Each state/county has court that is a little different so I am not sure what to expect, more than likely the judge will hear both sides and then determine where to go from there.

Make yourself a set of notes, bullet all the points you want to bring up to the judge. Get yourself a copy of the FDCPA and a highlighter so you can easily reference the particular sections you need. I will point them out below:

FDCPA - 807
(2) The false representation of-

(A) the character, amount, or legal status of any debt

This section you can use as both defense and part of your counterclaim. Without a shred of proof they can't prove any of the debt is genuine and therefore are misrepresenting the debt. You can also point out that even the summons is a mess....they file it like they are the card issuer (count I (1) (2)) then they file it like a debt purchaser (count I (5)). Not to mention they completely lie throughout the summons such as by you not disputing the debt, them sending you a statement, etc.

FDCPA - 808
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

809 (all)

Again you can point out that they purposely filed suit 10 days after sending you the letter to circumvent the law and force you to pay on a disputed debt.

Just be upfront and honest with the judge. You find all of this highly suspicious. You have yet to see one shred of proof in regards to this debt and you would like to use discovery to force them to prove this debt.

If the judge asks you if you have ever had a card, tell him the truth...yes you had a card, but the amount they claim you owe is not even remotely close to what you believe you owe and you have no proof they have the legal capacity to even be collecting upon this debt. If they purchased the debt you want to see proof of this.

Ok, We went to the first appearance today and they said it had already been set for pre-trial next month. I appreciate everyone's help on this and Especially Goldenbast. Our prayers are with you. I will keep you updated as things proceed.
Thanks again

I received an answer to the above counterclaims and this is their answer.
1. Denied
Affirmative Defense: Plaintiff's affirmatively pleads that Defendant's counterclaim fails to state a claim upon which relief can be granted against Plaintiff.
2. Denied
Affirmative Defense: Plaintiff affirmatively pleads that the Defendant failed to satisfy a condition precedent to the contract entered into between plaintiff and defendant.
3. Denied
Affirmative Defense: Defendant's counterclaim is barred for failure of consideration, estoppel, waiver, statute of frauds and laches.
4. Denied
Affirmative Defense: Defendant's claims are barred by Defendant's failure to perform its obligations under the contract entered into between Plaintiff and Defendant.
5. Denied
Affirmative Defense: Defendant's claims are barred by the doctrines of equitable estoppel or unclean hands.
6. Denied
Affirmative Defense: Plaintiff incorporates by reference all affirmative defenses contained in K.S.A. 60-208 which may be determined to be applicable through the course of discovery or otherwise in this action.
7. Plaintiff asserts that affimative defenses or recoupment and/or set-off in the amount of Defendant's credit card account balance with Plaintiff of $XXXX.XX
8. Plaintiff asserts that they are defined as a "creditor" attempting to collect its owns debts and not a "debt collector" pursuant to the Fair Debt Collection Practices Act and, thus, the Fair Debt Collection Practices Act does not apply to the Plaintiff.
Wherefore, Plaintiff prays that Defendant takes nothing by virtue of their Counterclaim, for dismissal of Defendant's Counterclaim, and for such further and other relief as the Court deems just and equitable.

Please let me know your thoughts. Thanks

Also, The court requires a pretrial statement to be supplied before court next Tues.
Here is what it says, any help on my entries would be greatly appreciated.


CIVIL DEPARTMENT

__________________________
Plaintiff
vs.
Case No. _____
__________________________
Defendant
PRETRIAL STATEMENT
The parties and/or counsel after conference state to the Court:
1. The issues of fact and law to be decided by the Court are:
A. ___________________________________________________
B. ___________________________________________________
C. ___________________________________________________
2. As to these issues their contentions are:
Plaintiff's Contentions Defendant's Contentions
A. _________________________ __________________________
B. _________________________ __________________________
C. _________________________ __________________________
3. They have disclosed to each other the identity of the witnesses on the unresolved issues.
4. They agree that the following exhibits may be admitted and marked as exhibits:
________________________________________________________
________________________________________________________
________________________________________________________
5. Settlement has been discussed.
Estimated trial time____________________
Record requested: Yes___ No___
Date: _______________________
___________________________
Plaintiff and/or Counsel
____________________________
Defendant and/or Counsel

Thanks

Wow they are really grasping at straws with those affirmative defenses heh! Ok make yourself some more bullted notes, I am going to go through why their affirmative defences don't work, you would bring this up at court.

1: Defendant stated the claim very clearly: FDCPA 807 (2) (A) was violated when plaintiff filed suit without any proof of the alleged debt, clearly misrepresenting the character and amount of the debt. The proof of this claim lies in the suit itself as plaintiff provided no exhibits to substantiate their claim of monies owed. ((You can reference FDCPA 807 (2a) and even show the judge your highlighted copy.

2: Defendant could not have failed to satisfy any conditions of a contract that does not exist.

3: Failure of Consideration and Estoppel does not apply here as there was no contract between the plaintiff and the defendant. Statute of Frauds does not pertain to this claim as no contract is needed to violate the Fair Debt Collection Practices Act. Waiver does not apply as defendant did not relinquish any rights nor act inconsistently with claiming this right. Laches did not occur as defendant only became aware of the alleged debt when plaintiff sent a letter dated (XX-XX-XXXX). (have a copy in case judge wants to see).

4: There is no contract between the plaintiff and the defendant.

5: There is no doctrines of equitable estoppel in this case as defendant has acted in accordance with the law. Doctrine of Unclean hands does not apply to this case as defendant is innocent of any wrongdoing.

7: Defendant has never had a credit card with the plaintiff and plaintiff exhibits no proof of any monies owed.

8: Plaintiff admits to being a assignee of Chase Bank, which opens credit card accounts. Plaintiff has further admitted in their claims count I #5 that they had in fact purchased this alleged account from the original issuer and therefor are defined as a debt collector pursuant to FDCPA 803, and not as a creditor.

------------------------------------

As I said, this whole suit is sloppy and contradictory...make sure you point this out to the judge: First they claim to have a contract between them and you, that THEY issued you credit, THEN they claim they bought the account. Which is it? Point this out to the judge. :)

Ok the pretrial statement.

Looks pretty straight forward, hope others come and offer some suggestions.

1: issues of fact and law: Well I am guessing this wants to know the summary of what is going on?

a: If Defendant is obligated to the Plaintiff for the amount claimed.
b: If Plaintiff is guilty of violating the FDCPA.

2. Defendants contentions:

a: Contends that no monies are owed to Plaintiff due to lack of contractual proof.
b: Contends that Plaintiff violated the FDCPA.

4. Exhibits

a: Exhibit 1: Dunning letter from the Plaintiff to the Defendant.
b: Exhibit 2: Copy of the FDCPA

Here is what the ROCP say about this questionnaire:

rule 207:

(b) Pre-Trial Questionnaire. At least one (1) week before the pre-trial conference, counsel for each party shall complete a pre-trial questionnaire and mail a copy thereof to the Presiding Judge of the Civil Department and to all other counsel. The originals of the pre-trial questionnaire shall be filed with the Clerk of the District Court only if the parties fail to file an agreed Pre-Trial Order before the holding of a formal conference. A suggested form for the pre-trial questionnaire is attached to this rule. Its use is recommended to the bar.

So it looks like you need to send a copy to the lawyer? I would add in the certificate of service as well....I doubt either of you will agree to #5...you wouldn't agree to any settlement in their favor and would accept a settlement for them to pay you, but I doubt they will agree to that...so #5 is a moot point heh.

Well I guess technically settlement HAS been discussed if you call the lawyer and ask them to settle for hmm... $750 and permanent closure of the account and removal of any and all credit report listings...that is a gracious 75% of what you are suing them for. :):) I bet that would make the lawyer spit nails!!!

Hello again...back with an update. Well, we went to the 2nd appearance and a representative here in Wichita showed up for the attorney in KC. (Funny... she is a bankruptcy attorney) She said they would be sending a questionnaire. They postponed for 60 days with the court date coming up next month. In the meantime, we have received a questionnaire from Ozark and old Chase statements from 07 - 09 . We also received another document with my wifes name as defendant but someone else's name in the body copy concerning Citi. (mistake in editing, I guess) We still have nothing such as an agreement or that they own the dept in question. I would like to the post the questions for some input on how to answer. Thanks

Post the questions..sounds like discovery so make sure you whip up your own set of questions and demands for documentation.

On those statements, does the final statement reflect the amount they are suing for?

On the document with the wrong name..what was the content?

Ok...here we go.
1. We received the first packet 4/18 with a letter stating that the balance now is over 6K with statements included dated 3/13. Balance does not match last statement.
2. In the same packet we recieved the First Set of Production of Documents stating that the plaintiff supplied it first set on 3/10 within 30 days of date of service but certificate of mailing gives a date of 4/19 ???
In the first set of production of documents statement, it has Ozark / Chase as Plaintiff, wife as Defendant but the first line goes as follows:
Comes now Citibank (South Dakota) hereinafter plaintiff??? When did Citibank buy Chase??? In the statement, they are requesting all our documents of proof... statements, correspondence, evidence, etc.
3. On 4/21 recieved the First set of Interrogatories and First request for admissions to defendant. On the First set of Interrogatories Notice of Service has a different name as Defendant in body. ...it has been submitted its FS of I numbered for answer by defendant, different name in accordance....
Giving us 14 days to reply.
On the First set of Interrogatories to Defendant document. It reads same as 2. above. Citibank and to be answered by another different name.
Interrogatories
1. State name and address of all persons answering.
2. Identify each person with knowledge of debt.
a) Name and address
b) relationship
c) general nature of persons knowledge of debt listing last 4 digits from statement.
3. State financial basis for your denial of allegation in plaintiffs petition
4. Explain if and how you notified plaintiff of a dispute or error regarding information you recieved on a monthly cc statement. If your allege the you did notify Plaintiff of a dispute please state
a) When you notified Plaintiff of dispute
b) Explain you dispute as to any charge on your monthly cc statement.
c) State who you spoke to regarding the dispute
5. Did you make payments to the Plaintiff on cc # (last 4 digits) If yes, identify all payments you delivered
6. Identify any reason you believe would justify not paying ($ original amount) on cc (last 4)
7.Do you claim that Plaintiff made any misrepresentations regarding you cc
If so state
a) Date
b) content of such misrepresentation
c) verbal or written
d) the party making the misrep
e) identify documents of evidence
8. Has Defendant communicated with any employee of Plaintiff regarding cc # If so state
a)Date
b) Content
c) written or verbal
d) parties
e) Identify document of confirmation
9. Do you claim that Plaintiff has violated the FDCPA. If so,
a) date
b) Why
c) Identify documents of evidence.
10. List names address tele and content of testimony of any person whom you intend to call at trial along with a summary of their testimony.

Last document "Plaintiffs First Request for Admissions to Defendant.
All names correct. 14 days to respond.
Request 1: Defendant applied for and received a credit card from Chase Bank.
Response:
Request 2: The Chase Bank cc was assigned to plaintiff for value.
Request 3: The monthly cc statement attached hereto as Exhibit A are accurate
Request 4: From the time the account was opened, Defendant received monthly statements from Plaintiff showing the amount of charges incurred for that monthly period, along with any payments or credits to the account, and specifying the monthly installment the due and owing.
Request 5: Plaintiff has provided the Defendant with verification and/or validation of the debt.
Request 6: Defendant has not, since the account was opened, notified plaintiff of a dispute or error regarding any information sent out in a monthly statement.
Request 7: Plaintiff has not violated the FDCPA
Request 8: The Defendant is not entitled to any damages pursuant to the FDCPA
Request 9: The Defendant's counterclaim filed in this matter should be dismissed with prejudice
Request 10: Plaintiff has made demand upon Defendant for payment of balance due, but the $ (original balance) remains due and unpaid.

Sorry to make it so long but I wanted to get as much info as possible to get the full scope.
Thanks again for your help!!!!

Also, the amount on the last statement matches the amount in the first set of production of documents buy not the amount in letter from Berman and Rabin dated 4/13

Also note that in 2009 we received a letter from another DC for this same account. We have pulled the Transunion CR and this above account shows a 0 balance and a charge off. Is this evidence that we do not owe Chase??? We would like to take care of this but have received no proof that the debt is owned by Ozark. Except for facsimile copy's, not originals.

We also have a transunion cr that shows 0 balance from Chase but is shown as a charge off and purchased by another lender. In 2009 we received a letter from another DC by a different name but the amount was the same. We would like to get it taken care of but if Ozark can't provide an agreement or proof of ownership, are they allowed to collect???

Ok you do not want to mention chase at all...even if it shows a zero balance and a charge off, all that means is that the original creditor closed the open account and either sold it or sent it to collections......does not mean you don't owe.

Let me go over all you have typed and I will get back to you tonight or tomorrow.

Ok answers:

1. state your name
2. [COLOR=Red] Defendant objects to the Interrogatories to the extent that it seeks information that is not within his possession, custody and/or control.[/COLOR]
3. Defendant denies the allegations in their entirety based on not proving this debt exists.
4. Defendant was not given a chance to dispute anything. Defendant has no knowledge of these 'statements'.
5. Defendant has never made a payment to Plaintiff.
6. Defendant has no knowledge of said card.
7. Yes:
a: ((put date you received the first letter)
b: Plaintiff informed Defendant that XXXX monies were due and owed.
c: written
d: Ozark
e: There are no documents of evidence.
8: No (if you did not speak to anyone, otherwise name who you spoke too),.
9: Yes.
a: ((date of suit))
b.

b: Plaintiff has violated Fair Debt Collection Practices Act 807 (2A) in that the Plaintiff has falsely represented the character and amount of the alleged debt by not providing any evidence that such a debt exists.

Plaintiff has violated Fair Debt Collection Practices Act 808 (1) in that Plaintiff has performed an unfair practice by attempting to collect an alleged debt without any contractual proof as required by sait statute.

Plaintiff has violated Fair Debt Collection Practices Act 809 by overshadowing the Defendant's right to dispute the validity of the debt and attempting to use the court as a means to force unlawful payment in total disregard of federal law.

10: Defendant will not be calling any witnesses.

Last document:

1. Defendant objects to this interrogatory on the grounds that it is overly broad and unduly burdensome to the extent it seeks information that is not within the current knowledge, possession, custody or control of the Defendant.
2. Defendant objects to this interrogatory on the grounds that it is overly broad and unduly burdensome to the extent it seeks information that is not within the current knowledge, possession, custody or control of the Defendant.
3. Defendant does not recognize the statements and further the statements do not reflect the amount Plaintiff claims are due and owing.
4. Defendant objects to this interrogatory on the grounds that it is overly broad and unduly burdensome to the extent it seeks information that is not within the current knowledge, possession, custody or control of the Defendant.
5. Defendant disagrees as Plaintiff has shown no validation.
6. Defendant disagrees and was never given the opportunity to dispute the alleged debt.
7. Defendant disagrees. The Plaintiff has violated the FDCPA numerous times.
8. Defendant disagrees and is in fact owed $1000 in violations by Plaintiff.
9. Defendant disagrees. The defendant's counterclaim should be granted.
10. Plaintiff did send one letter. Defendant disputes the account entirely.

Now you need to type up your own set...just follow the format of what they sent you and ask for ALL statements, signed agreement/contract, proof of assignment, etc.

Point out to the judge just how sloppy these people are.....using wrong names in the documents, etc.

I love how they dedicated a good portion of the interrogatories to denying the FDCPA violations and are even trying to get you to admit that! what nerve:)

Thanks for your input Goldenbast. We have submitted documents to the court and sent copies to the plaintiff and their attorney. Working on our set of interragatories for them. Could you give a little more input on how to word the document to them.
Thanks again.

Hi! Ok...basically you want some vital information. You shouldn't ask for everything under the kitchen sink because the judge will be more inclined to not sustain any objections to your interrogatories if you are specific.

ok you will just format it exactly like they did for you.

INSTRUCTIONS
a. These Interrogatories are continuing in character so as to require you to file supplementary answers if you obtain further or different information before trial.
b. Where name and identity of a person is required, please state full name, home address and also business address, if known.
c. Where knowledge or information in possession of a party is requested, such request includes knowledge of the party's agents, representatives, and unless privileged, his attorney's. When answer is made by corporate defendant, state the name, address and title of persons supplying the information and making the affidavit, and announce the source of his or her information.
d. The pronoun "you" refers to the party to whom the Interrogatories are addressed and the parties mentioned in clause (d).
e. "Identify" when referring to an individual, corporation, or other entity shall mean to set forth the name and telephone number, and if a corporation or other entity, its principle place of business, or if an individual, the present or last known home address, his or her job title or titles, by whom employed and address of the place of employment.

Production of Documents

1. Contract signed by Defendant
2. Agreement signed by Defendant
3. All statements
3. Proof of Assignment

Interrogatories

1. Identify the person or persons answering these interrogatories. Include their business address, business phone number, and title within the Plaintiff’s Organization.
2. Identify all persons known to you who have knowledge of facts relevant to this case, including but not limited to all persons interviewed by you, by your counsel, or by any person cooperating with you in the defense of this action, and state the subject matter of testimony, giving a brief description thereof, for each person you may call as a witness in this case.
3. State your full name, your business purpose, (e.g. Creditor, Lender, Collection Agency, etc.) and your form of Business organization (e.g. corporation, partnership, sole proprietorship, etc.)
4. Identify all documents or other tangible evidence that support your contention that the Defendant, for valuable consideration received, entered into a contract promising to pay the Plaintiff or the Plaintiff’s assignor.
5. In regards to the contract or agreement alleged in this action, please state the following:
A) Terms of the contract or agreement
B) Credit limit or amount financed in the alleged contract or agreement.
C) Date and monetary value of any credit transactions alleged to be executed on the contract or agreement
D) Date and monetary value of any valuable consideration received on the contract or agreement
E) Date and monetary value of any payments or credits alleged to be executed on the contract or agreement.
6. If the alleged subject of this action is a contract or agreement originating between the Defendant and a party not subject to this action, state the following:
A) Creditor name
B) Creditor Address
C) Creditor account or reference number for the subject of this action
D) State all facts in support of your contention that the alleged contract or agreement was transferred or assigned to the Plaintiffs
E) Identify all witnesses with evidence in support of your contention that the alleged contract or agreement was transferred or assigned to the Plaintiffs
F) Identify all documents or other tangible evidence that support your contention that the alleged contract or agreement was transferred or assigned to the Plaintiffs
7. For each person who has had any involvement in any manner in any efforts on your behalf to collect or attempt to collect any debt(s) purportedly owing by Defendant, state his/her name, position, work address and telephone numbers, and the nature and purpose of his/her involvement.
8. Describe each action taken, the nature, contents and subject matter of each discussion or conversation held, and the time, place and the date of each such action or conversation; and identify all documents relevant, related to or reflecting said involvement of each such person.
9. Identify each person who has had any contact or communication on your behalf with said persons or entities regarding Defendant or Defendant’s purported debt(s), state when, how, where, and with whom said contact or communication occurred and in detail and with particularity the substance thereof.
10. Describe all collection activities, which you were authorized to perform by the creditor, and identify the terms of the agreement between the creditor(s) and you pursuant to which you sought to collect this account.
11. To the extent not previously done, identify all documents relevant, related to, or reflecting any aspect of any efforts undertaken by you to collect any debt(s) from Defendant, or to any debt(s) purportedly owed by Defendant to you or to the underlying creditor(s).
12. State all facts in support of your contention that the Defendant, for valuable consideration received, entered into a contract promising to pay the Plaintiff.
13. Identify all witnesses with evidence in support of your contention that the Defendant, for valuable consideration received, entered into a contract promising to pay the Plaintiff.
14. Identify the names, addresses, and telephone numbers of all persons who have supplied any information contained in Plaintiff’s Claim.
15. Identify all documents that the Plaintiff’s collectively intent to rely upon as a defense in this Counter-Claim.
16. State all actions taken to verify the accuracy and completeness of the accounts reported and state your procedures designed to assure the maximum possible accuracy of the information reported by you, the Plaintiff.
17. State all the facts that show that the complaint fails to state a claim upon which relief may be granted, that Defendants claims fail and are barred against Plaintiff by the doctrine of unclean hands and that there has been a failure to comply with pertinent provisions of the <> Code of Civil Procedure.
18. Describe the interest rate, how it was compounded and any and all other monies added on such as collection fees and provide documentation that allows for these extra fees and/or interest.

ADMISSIONS

1. Plaintiff is a “debt collector” under the definitions of the FDCPA.
2. Plaintiff does not have a copy of any contract showing Defendant owes the money sought in the complaint.
3. Plaintiff cannot state which date (or dates) the contract sued upon was entered into.
4. Plaintiff cannot state in detail what goods or services were allegedly provided to the Defendant.
5. Plaintiff cannot identify the specific charges represented by the balance sought in the complaint.
6. Plaintiff has no documentation, which would prove Defendant received any of the services or items, which are represented in the balance sought in this action.
7 Plaintiff send Defendant a collection letter dated XX-XX-XX.
8. The collection letter stated "<<>>"
9. Plaintiff filed suit on XX-XX-XXXX, giving Defendant no time to lodge a dispute.
10. Plaintiff represented the amount owed on Complaint dated XX-XX-XXXX as being the sum of $XXXXXXX.
11. Plaintiff sent Defendant a collection letter included with the Interrogatories and production of documents dated XX-XX-XXXX and represented the amount due and owing is $XXXXX <<>>.


I have more I can do..but have to stop..I will continue this tonight...also I was looking over your situation and you mentioned the statement they sent you was dated 3/13...of this year??? When did you stop using the credit card in question? That statement makes it seem like the account is still in an open status....does it show any purchases? I'm really curious about this...

Also I'm trying to track down how many admissions/interrogatories you can send..I saw it but can't recall.

Goldenbast,
We had already sent the documents before I received this last post, basically what we sent was asking for agreement, all statements, and assignment but I did not include instructions or admissions. When I send these documents, do I also file the whole document with the court. I went in to do it and they said they only needed proof of service, maybe I was in the wrong part of courthouse. I am confused. Also, today we received a Motion for Summary Judgement and also a Memorandum in Support of Motion for Summary Statement. Basically saying that they didnt receive the documents. I sent. Arrggg. I am losing it. Can you help me again. I can upload all the verbage later tonight. Can I scan and post JPG Images?
Thnx

When you sent in your responses did you file the certificate of service with the court?

You will need to file your answer to the motion for sj..please do post the verbiage of the documents.

You can also file an amended set of discovery so you can get the admissions and interrogatories sent to them...just be sure to file the certificate of service with the court since it seems that is what they want.

Yes I did.

Here is the first document: Motion for Summary Judgement

MOTION FOR SUMMARY JUDGMENT
COMES NOW the Plaintiff, by and through its attorney of record, pursuant to K.S.A. 61-29l2(h) which incorporates K.S.A. 60-256 and amendments thereto, and moves this Court to enter summary judgment in favor of Plaintiff and against Defendant. That in accordance with K.S.A. 60-256(c), ...there is no genuine issue as to any material fact and that Plaintiff is entitled to judgment as a matter of law."
WHEREFORE, Plaintiff requests that the Court grant its Motion for Summary Judgment;that the costs of this action be assessed against the Defendant; and for such other and further reliefas the Court deems just and equitable.

I posted my second document: Memorandum in Support of Motion for Summary Judgement.

Site told me that a moderator much view first. Included with the Memorandum is the Blank Request for admissions that they sent earlier along with the fax statement copies.