Oh my gosh, something fishy is going on!

DOLLARSandSINCE, I do NOT have the documents they are requesting, it is not my responsibility to furnish thier evidence for them. That would be like me suing you for 100 bucks, I lose the contract, I take you to court, and I tell the court, hey, I don't have anything in writing to prove I loaned him money but he does! Make him prove it Judge, make him will ya!!?? :?

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okay your here,have you checked with the court about this?as
me and dollars were throwing around,we don't think you really
have to give your SS# unless the court says you have to,so i
would check on that.plus i would really look into something,the
great admins here couldn't recomend someone,cause lord knows
if after all is said and done there's a delay or another court date.i for one would lose my mind.

Well, I don't see why I should have to supply them with my personal information, and I am NOT going to. I checked online and the only thing that is showing is the next court date (Aug., 22), but there is nothing in the docket that reads anything about discovery. I do know it takes them forever to update the county website, so I will check again in a few days, meanwhile, I'm going to begin answering this, but I still think it's a stall tactic, and I also think it's a huge waste of court time because I will NOT supply them with incriminating evidence against myself, I mean sheesh! :shock:

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Shazz....that was just for the SS#. Not anything else. Just trying to get up to speed on the thread here.

Can you post the requests? W/o being too specific?

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Can't you file a countersuit for filing a frivilous lawsuit since they stated they have no proof that this is a valid claim? It is possible the judge is trying to give you a little time yo make a counter claim that he can award to you.
Years ago I had a civil suit that I did on my own and the judge gave me a lot of help, like looking at me when I should object to something that was said. And when I was in the hallway during a recess the baliff walked by and told me where my weakness was.

Hiya Cellullar, how have you been? Well, don't know, maybe that might be something looking into though, I think I will research that tonight and see what I can come up with. I am wondering though, can you file a countersuit while a case is still pendning, or do you have to wait until a judgment has been made?

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Well, I suppose there is only one way to find out and that is to call the clerk of courts and ask them if I MUST respond to these requests. It's all so redundant for heavens sakes, I've already responded that I can't affirm or deny this claim as there are no documents supporting this claim. :?

Pretty sure that a response will be necessary. Still researching. You are in OH, Correct?

Yes, I am in Ohio!

I don't know if you are required to fill out this document but the court should tell you if it is required or not. If Nacar is right then you might have to fill it out. What really bothers me is they are specifically asking for the SS# which they should already have. I could see them taking what you provided and updating everything to make it look like they had it all along. I somewhat like Nascars response because you are limiting their use of personal information plus you are not actually furnishing it right away. You make them jump through some more hoops to get it. What I really want to know is why can you just not agree to respond to that question or divulge that piece of information? I am going to borrow some of your response Nascar.

Due to the confidential and/or commercially sensitive nature of the documents requested, Defendant will not supply sensitive documents to plaintiff without court order. Defendant will however validate the accuracy of the equivalent document when supplied by plaintiff and/or Defendant will furnish confidential document to the court to validate accuracies and or discrepancies.

You might need to work on it some but something along those lines. I don't know if you can do this but want I am trying to do is say you will look at the number they have on file and verify that it is not yours as opposed to just handing yours over.

Just remember that regardless of what you answer lack of knowledge is for answering the complaint ONLY. Answering an admission with a "lack of knowledge" response is legal suicide as it is IMPROPER, and they will motion the court to deem the admission to be admitted, they will motion for summary judgemnet, and you will LOSE!

The only three proper answers in many cases is:

Defendant denies Plaintiff's request for admission number whatever.

Defendant admits Plaintiff's request for admission number whatever.

Defendant admits in part and denies in part Plaintiff's request for admission number whatever. (explain which part is being admitted or denied... note seldom used).

Now that's a fantastic idea! In the first place, this is the most rediculous lawsuit I have ever been a part of (not that this is common practice for me, although it seems so lately). And secondly, I have already had a garnishment overturned, a judgment vacated, and they admitted they did not have any documents supporting this because they aren't the OC, plus they as much as said that I have all that documentation because the bills were sent to me. How lame was that? And that statement came from an Attorney?????? :?

Have you started reviewing OH's Rules of Civil Procedure?

http://www.sconet.state.oh.us/rules/

Maybe you could just keep the SS# question simple then and answer it

Defendant denies Plaintiff's request for admission number whatever.

I have a million links at home for the civil procedure, but thanks, and I am sure I will bookmark that one as well. I have already decided I'm not giving my SS#, unless I am forced to do so, I simply won't. When I get home I will look over the documents again and try to post some of the admissions and questions they sent to me. This CA is determined to TRY and get money from me that they shouldn't, and actually, there is none to get!

or i would answer like

plaintiff has said information.

again it is RIDICULOUS that this piece of garbage company is
actually asking for this this far into it.i wouldn't give it unless forced to by the court.

I would also start working on your counter-claims if they have violated any fdcpa, FCRA or OH statute. I just glossed over the little details on the thread so not sure if you have any or not.

You should make up a similar document with a bunch of BS questions on it and file it with the court and with the CA so they have to answer the same crap starting with the SS# they have on file.

Well, I have a pretty thick file on them, so I'm planning to go through it the next few days to see what I can come up with.

damn, shaz--this is STILL going on? wow...just wow...

For those who havent seen the whole story here, this is a basic summary:

1--shazzers posted that a CA had a default judgment against her and was trying to garnish her wages--illegally, it turns out.
2--we helped her to get the wage garnishment stopped in its tracks, and then we helped her to convince the judge to vacate the judgment due to improper service--she was never served a summons.

3--Judge orders the whole lawsuit to simply start over, and shaz had to fight just to get a summons so she could file an answer. Again, the CA didnt provide the summons like they were supposed to, so Shaz had to fight to get it.

4--Shaz had sent a DV letter prior to any suit being filed in the first place, which should have been enough to kill the whole thing because the CA ignored her DV letter entirely. But the judge let it continue anyways. So she requested DV thru discovery, and they admitted they had nothing at all to base their allegations on.

So, now that shaz has had to jump thru all these hoops, this still isnt over...this goes to show what kind of people we are dealing with these days, folks...

OK, shaz, tell you one thing I would do immediately. It may or may not do any good but I would do it anyways. I would contact the bar association in the state that this lawyer practices in, and file a detailed formal complaint. I would mention the following things specifically:

1--ignoring a DV request, thereby violating the fdcpa when they filed the lawsuit.
2--ignoring Ohio Rules of Civil Procedure by trying to sneak a default judgment in when they didnt have you served as the law requires.
3--if they were at all involved with the garnishment attempt, mention it because it was illegally done.
4--mention their admission that they have absolutely zero proof of their allegations against you, yet they sued you anyways. This is considered a frivolous lawsuit, and bar associations tend to frown upon those.

this is really sad--these people have broken the laws so many different ways by now, I cannot understand why the judge has let this continue on all this time. Failure to have you served twice, failure to abide by the FDCPA, failure to bring forth even a shred of evidence or proof of their claim against you...I dont know what to say about that.

I would check with the court clerk's office about this interrogatories notice. Also, check the whole docket--if there is an entry for the first summons where they submitted proof of service, include that tidbit when you contact the bar association, that amounts to perjury in a court of law if they told the court that they did serve the summons properly.

I've been busy all over the place with work lately but I will keep checking in on this--let me know if there is anything else I can help with and I will do whatever I can!

Hiya sky, good to hear from you again! I am so befuddled about this entire ordeal! I am going to call the court house today to verify this discovery, then I am going to do as you said and file a formal complaint. To my knowledge, these Attorneys are supposedly licensed in Ohio. Do you think I could go ahead a file a countersuit against these Attorneys/Arrow Financial for filing a frivolous lawsuit? I wonder if there would be an Attorney ANYwhere that would be willing to take this case now, on a contingency basis. I called several and went in for consultations in the midst of this, but no one seemed interested. Maybe I am assuming too much but, it seems with all the evidence I have this is pretty much an open and shut case. Anyway, I may shoot you an email today after I do some checking, sky! Thanks for the reply!!

i never thought of the bar assocaition.good call skydiver.

This one may be problematic based on case law and FTC opinion:

Ah shucks nascardevil, ya went and bursted my bubble!! Well, at least I know for certain they were acting within the law, and I won't look like a fool making statements in a law suit that they violated the FDCP by suing me in the midst of valiadation. However, it still doesn't excuse the fact that not once during this entire law suit have they produced any tangible evidence proving I owe them this debt, and even admitted so.

I was looking at the docket on this case that I printed out shortly after the judgment was vacated. Interestingly enough this is how it reads: (keep in mind the judgment was vacated due to improper service.

2/22/07 Complaint Filed
2/26/07 Summons issued by certified mail.
3/19/07 Summons returned unclaimed.
4/6/07 Summons reissued by certificate mail?
5/23/07 Motion for default
5/25/07 Judgment to the plaintiff against the defendant in the sum of $xxxx.xx plus interest at 8% per annum and costs.

What exactly does "certificate mail" mean?

I don't understand how a judge could grant a default judgment with out asking if the defendant had been served. In this case if the question was aksed then they should have responded that they sent service via certified mail and it was returned unsigned. At that point the judge should have said improper service or no service and required them to serve properly as opposed to just granting a default judgment. I bet the lied about the 4/6/07 service. It might be worth pulling the court clerk notes to read exactly what happened in the court room. I would think the judge would at least have to cover the basics including service before granting a default judgment if the defendant does not show up.

Well, I called the court house, at first they couldn't find my case at all! Then she asked me to read off the numbers again, she still couldn't find it. So she asked if I had some other paper work with the case number on it, so I pulled that and we discovered they (the CA's Attorney) had the wrong freakin case number on it, one number difference!! Anyway, it was explained to me that according to Ohio State codes (I can't remember the numbers) states that a CA has to send a certified summons first, and if it is returned unclaimed, they have to send out another one USPS, and apparently it's assumed it was received, so that's why they got the default judgment against me the first time!! Sooooooo, now I need to answer these interrogatories within 28 days. The thing is, the questions which are asking me to provide documentation which I don't have. Also, it's asking me to admit that I had a credit card blah blah blah, and admit I used it, and admit everything basically. So, how does a person answer in a situation like this?? If I totally deny it, I will be lying, if I admit it they WIN!!

Shazzers, llw posted an interesting thread earlier:

http://www.debtconsolidationcare.com/collection-agencies/about49584.html

I don't know if there is anything in there that will help you, but there is a section about lawsuits. . .

hang on a second there--I think that the part that nascar posted was misrepresented. The quote he posted clearly says "CONTINUING legal action is not a fdcpa violation...." It doesnt say that INITIATING that legal action isnt. The way that is written, it could be that the person tried to stop legal action by sending a DV letter. The FDCPA is quite clear that ANY collection efforts are illegal if they take place while ignoring a timely DV request. The FTC opinion letters also echo this, if i remember right. There is no provision within the FDCPA that allows legal action while prohibiting any other "collection activity". It is quite easy to argue that filing a lawsuit is nothing other than collection activity--their sole purpose in doing so is to get paid. It's also kind of difficult for me to agree with what nascar posted because of the specific wording of the law itself--it actually says that a debt collector "must cease collection of the debt" if a DV letter is sent and received within that 30 day period. There is no way to "cease collection of the debt" if youre filing a lawsuit to collect on the debt. That is continuing collection efforts, it is most certainly NOT "ceasing collection of the debt".

Legal action is not a collection activity

Hmm, both interpretations sound reasonable to me. I wonder if it would depend on the judge?

it would depend on what is legal in your state ---very simple --either ignore---- deny ----or make arrangements to pay less than what they say you owe ---yes? or no? or pay consolidation to take care of the mess they say they will?

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I know what you mean Ron. And yes, this is the same CA that filed a complaint which clearly said "Complaint For Money", that in itself is attempting to collect a debt, it always clearly states on the complaint I received "This is an attempt to collect a debt". Well, HELLO, if that isn't violating the FDCP I don't know what is????!! Basically, if it's true that a legal action is not considered an attempt to collect a debt, then I need to go back to school and relearn simple grammar. :shock:

I REALLY feel totally ignored by the justice system. What IF this actually is NOT my debt? What IF this is a case of mistaken identity? What IF I am an innocent victim of a greedy CA who is bound and determined to get a judgment against me that is totally unjust? The burden of proof is on the CA, NOT me. And this CA has admitted in court documents they do NOT have ANY documents supporting this claim??!! And the months continue to go by, and I continue to go through turmoil wondering when the execution is going to take place. With all the evidence I have, you would think there would be a freakin Attorney out there somewhere who would be willing to take this case on a contingency basis. For crap sakes, I've done all the work up until now, all it would take is an Attorney's knowledge and experience to sue that heck out of this CA and most likely win! This is just very frustrating to me, I don't understand why a judge would allow this to continue KNOWING there is NO evidence available by the CA and admittedly so!! :shock:

I've seen case law go both ways on whether a summons is considered initial contact. I'll try and find the cases.

Shazzers, I am definitely in your corner on this one and have thought to myself every point you are making.

What you are going through is a travesty of the justice system!

If this attorney has already 'fessed up that he has no documentation to support his claim against you, then he needs to be told to "go away" (not necessarily exactly the way I would word it) by the judge. I am honestly stunned that this has gone on for so long!

Then trying to make you prove their case for them, by requesting you to supply the evidence they should already posses, really gripes my @$$!

I said it before, and I'll say it again: I would pull a "Mark Fuhrman" on them so fast their heads would spin!

Have you thought about going to a news channel with your story? Not sure if you would want the publicity or not, but some local news stations would cover this type of story. It might not hurt to get your story out in the public.

Just a thought.

One of our local stations ran a story about this electrician guy parking his work van out in front of his house. Some "Gladys Crabits" busybody called the city and complained and they wrote him a ticket. Never mind there were several other work vans in the same neighborhood parked on the street just like his. For some reason, they singled him and his van out as a law-breaker.

That story made the old biddy and the city look stupid, as far as I was concerned.

Shazzers, Ron is right- check with your local stations to see who may be interested. We have one news station that has a segment every day that deals with all sorts of things.

I have seen them get involved and the people have gotten justice. When the media gets ahold of something, they don't let go!! Good luck to you,keep us posted..karen :D

My resources are exhausted at this point. I am following the law to the letter, but this CA is not. After all, if they were, they would NOT have gotten a judgment vacated, nor would they have gotten a garnishment attempt abolished. They even admitted in their response to my discovery request for validation they did not have possession of such documents the Plaintiff did! Well so what!! And what if I did have possession of such documents? Is it my duty to prove their case for them? I think not. I do not understand why the judge even allowed another pre-trial under these circumstances. The CA admitted they had no evidence, all they could produce was a freakin affidavit signed by one of their employees that said they were familiar with this debt. Ummmmmmmm, yeah right, I objected (per skydvr's advice) to that evidence as hearsay. I need a long vacation. lol

You do need a vacation! I don't understnad the judge either. Since when did you have to prove THEIR case?! The whole thing stinks!!..karen

[quote=nascardevil]Legal action is not a collection activity[/quote]

How so, not?

Would you be so kind as to substantiate your assertion that initiating a suit for collection does not constitute 'collection activity' under the meaning of the fdcpa? Granted, I'm not an attorney, but that makes no sense whatever.

Great to see you back Unc, have missed all your input..

I posted a reply to this in here this morning, for some reason it isnt showing up here so I will post it again.
????
It most definitely is collection activity. The case law that nascar mentioned is not valid in this case, because it refers to a completely different situation than yours, shaz. here, take a look---nascar posted about Acosta v. Campbell. well, looking at that case, this is what we find(I found this on myfaircredit forums):

??Doc. No. 175-2 ???? 4. Also on July 16, 2003, the Law Office-located in Broward County in south Florida-filed the foreclosure suit by mail against Acosta in Seminole County in central Florida. Doc. No. 175-2 ???? 5, McSurdy Aff. The Law Office actually mailed the package containing the foreclosure suit on July 11, 2003 (Doc. No. 175-2 ???? 6 & Ex. A), and it was filed by the Seminole County Clerk a few business days later on July 16, 2003. It is undisputed that Plaintiff was served with the summons and complaint in the foreclosure suit on July 24, 2003. See Doc. No. 103-7, Ex. DD-17. On August 12, 2003, Acosta filed an answer to the foreclosure complaint and sent a letter to the Law Office asserting his rights under the fdcpa. Id. ???? 100. Plaintiff eventually filed suit in this Court on May 21, 2004. Doc. No. 1. ??
The plaintiff claimed that the defendant's lawyer filed the foreclosure paperwork on the same day that they received his DV request. If they had done so after getting his request, then it would be a different story, but they didnt--in fact, they had already mailed off the foreclosure paperwork a few days before receiving his DV letter. Plaintiff contended that they violated the FDCPA by filing legal action once they received his DV letter. The ONLY reason why this was dismissed was because defendant was able to prove that they actually initiated the legal action days before they got his letter. As we all know, a DV letter cannot stop legal action that has already been initiated, but it CAN and WILL, legally speaking, stop the CA from initiating legal action.
Also with regard to this case, I found this in the same place:

Simply put, if legal action is not at all to be considered as "collection effort" under the FDCPA, then the circuit court ruling that I just posted would not have ever had to take place--they would have simply said "legal action is not collection effort, so it doesnt matter if the DV letter was received before the filing or not." but they didnt---they made the clear distinction between filing before and filing after receipt of a DV request.
I did some more research on this one, and found another case to back this up--Anderson v. Frederick J. Hanna & Associates. Looking at this case, we find the following:
????
The text in red tells the whole story there--the debt collector was found to be liable for initiating legal action after receiving and ignoring a DV request from the debtor. It also needs to be mentioned that the Acosta v. Campbell case also has another snag--it was a mortgage foreclosure. This is a security interest issue, and the only party that was subject to the FDCPA was the law office that the mortgage company hired, as the OC was the lender in question. Security interest situations like a mortgage on real property are not considered debt collection issues, generally speaking.
sorry for making that so long, but the case law is there to back you up shaz--they did violate the FDCPA by initiating legal action after they got (and ignored) your DV letter.

Wow skydvr, nice find, and I will definitely use this with my response. I still believe I have a clear cut case to counter sue this CA, it's just going to require that I put my thinking cap on and figure out how to go about this, I need to make sure I have all my i's dotted and t's crossed. :shock: :? :lol:

Good find. I hadn't seen the Anderson Case. I'm at home today so don't have all my bookmarks handy. I'm going back thru this thread since I obviousl missed something here. I think my confusion may be originating from the fdcpa amendment which states that a lawsuit does not constitute an "initial communication," thereby triggering FDCPA validation notice requirment.

A close read of the statute shows that the amended section only applies to subsection (a), not (b) which addresses debtors rights to validation. The debtor's 1692g(b) rights have not been affected.

I honestly don't know how a court will rule in your case on the fdcpa violation. I always thought a CA could bring a suit at any time even if they ignored your request for validation but I could be wrong. If they can't it seems like to me they would be deadlocked from ever suing as long as a person kept disputing the CA's validation attempts in a timley manner.

The goal here is to get them for multiple violations. I think you can only be paid for one FDCPA violation but the FCRA violations stack. If you can make a solid case that they violated the FDCPA by ignoring the DV and continued the collections by filing a lawsuit then I think you can also win on multiple FCRA violations. If you haven't done so you might consider pulling all 3 credit reports and see if they are still reporting because if you win on the FDCPA violation then it should be a slam dunk on 3 FCRA violations. Basically they are not allowed to report negative information while the debt is in dispute and I bet they are. That would be 4k worth of violations so far.

I would like to know the steps that need to be taken to file a countersuit in this case aswell. In this case the suit has already been filed twice so I am not sure how you make a counterclaim.

If you don't mind posting the affidavit they sent you then I would like to see that aswell. I am just curious about what kind of questions they are asking you besides your SS#.