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Help! Complaint received by Apothaker & Associates

Date: Fri, 12/24/2010 - 01:14
Submitted by E C on Fri, 12/24/2010 - 01:14
Posts: 3
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:confused:

I need some legal assistance for my next DIY legal step. (I'm not a lawyer, don't have a lot of money, and try to do a lot of things myself.) I'm not trying to completely avoid a debt, but can't afford to pay 13k (or even a settlement of 4k) right now because I'm in active home foreclosure and am trying to keep my house through loan modification. Also, I was recently laid off. Apothaker & Associates (AA) chose the absolute wrong time to file a suit against me. I'm either trying to stall until I can make a settlement of 4-5k, or just plain defer this issue for several months so I can land back on my feet and see where I am at that point. I tried free lawyer consults, but they won't touch me knowing I'm in active home foreclosure and can't afford their 2500 retainers. So I'm resorting to "Google Law". ;) I've read and read, and created my own case filing account at the local district court.

BACKGROUND: I opened a sole-proprietorship account with AMEX in 2006, never converted to LLC, accrued 13k business expenses, business died in 2008, account charged off in 2009. (It's still well within SOL.) I think Apothaker & Associates (AA) bought the debt, but I don't know for sure if they are REPRESENTING AMEX or if they are just COLLECTING for a party that bought the debt from AMEX. (Debt may have bounced around by now.)

AA harassed me at my work number (before I was laid off.) I made the mistake of getting smart with AA on the phone one day and told them to "cease and desist". Immediately after, they filed a COMPLAINT in my local court. (NOT a summons.)

I was served the COMPLAINT by AA in October:[INDENT]
[LIST=1]
  • Plaintiff is AMEX FSB
  • Defendant is (me)
  • Plaintiff (AMEX FSB) issued (me) account 123
  • Defendant (me) accepted and used
  • account is in default and has unpaid balance 13k
  • all credits applied to account are in exhibit A
  • although demanded, Defendant failed to make payment of due amount

    [/INDENT]Exhibit A only contains:[INDENT]

    • Defendant's name (me)
    • Account ending in (4 digits)
    • Balance due: 13k

    [/INDENT]Note: I don't think Exhibit A is sufficient validation!!! :o

    Anyway, in November I filed a MOTION TO DISMISS, based on:[INDENT]
    [LIST=1]
  • no relationship with AA
  • no proof of assignment (standing)
  • no verification of debt ownership
  • no verification that amount went into default
  • no verification of SOL
  • no verification of debt amount

    [/INDENT]The court ordered AA to reply, which they did in December. They filed the following:[INDENT]

    • Plaintiff's (AA) RESPONSE to Defendant's (me) MOTION TO DISMISS

    [/INDENT][INDENT][INDENT]
    [LIST=1]
  • denied
  • denied
  • admitted
  • denied
  • admitted
  • admitted

    [/INDENT][/INDENT][INDENT]

    • BRIEF

      • provided facts/procedural background: that I applied for AMEX and accrued 13k debt
      • legal argument:Plaintiff is original creditor and no assignment of standing is required to prove ownership of Defendants account. Defendant has not cited any statutory or case law which calls into question Plaintiffs standing to bring suit.
      • Defendant did not request validation or verification, therefore Plaintiff is not required to provide any information mentioned in Defendant's motion to dismiss


    • AFFIDAVIT of Service

    [/INDENT]Okay, so here's where I am at NOW. I'm planning to:[INDENT]

    • using certified-return-receipt, mail a request to AA to validate the debt
    • file a RESPONSE to Plaintiff's RESPONSE to my MOTION TO DISMISS that validation has been sent
    • file an ANSWER/RESPONSE to Plaintiff's COMPLAINT, using variation of my original arguments in motion for dismissal, and most importantly questioning the validity of Exhibit A as lack of verification and validation
    • file a BRIEF with some verbiage to support my ANSWER/RESPONSE
    • file all necessary affidavits that all documents were mailed CRR to Plaintiff (AA)

    [/INDENT]Am I on the right track here? Should I be directing this to AA or to AMEX??? Do I need to file a counter-claim against AA to make them wonder if they want to engage in legal back-and-forth with me over the long haul?

    I'm a tad confused as to the next best approach here. :(

    Each set of responses buys me 20 days, which will get me through to tax return season; but I need to know if I'm going about this wrong. I do expect this may end up in court eventually; but there's also the chance that AA gives up after they are forced to validate documents they don't fully have. Also, I'm wondering if my hardship situation will help me -- from what I have read, it would only help a judge consider how severe a punishment to deal me, because if I owe, then I owe.

    Sorry to be so long-winded. :rolleyes: I could really use a good mind to help me sort this mess. THANKS!!! :)

    -E C


    • I was a bit surprised by the lack of response on this forum. Not sure if it was either nobody succeeded in the same situation, or if the lawyers on this site didn't want to dive into the question. Nonetheless, I decided to follow up my own account with my own resolution, with the hope that it helps someone else in the same situation. It saved me over $13,000, and that's something.

    Four months later, and I believe it's safe to say that this issue seems closed. As a result of the sequence of steps I last took in February 2011, it strongly appears that, by now, Apothaker will NOT be pursuing this debt any further. (And if they do, I'll be ready for them.)

    Essentially, the burden of proof has been placed squarely on Apothaker, who ceased further legal pursuit once my answer/response to their complaint was made.

    I am not a lawyer, nor have I taken any formal legal training. But if you invest the hours it takes to learn how to fight properly, it will be worth your time to save yourself money and stress.

    I noticed that a ton of complaints in my county alone have been filed by Apothaker on behalf of AMEX over the past few months. (It's amazing how much information is public, once you have the tools to search civil cases yourself.) So, I'm thinking this information may help a few out there who choose to take advantage of this approach. If you owe between $4,000 to $30,000, you are in a good debt range to fight the claim. If you owe less, you might as well settle, or pay the small amount; and if you owe more, they may continue to come after you since it's worth their time. But, this advice is still for anyone.

    If you oppose this advice, save your hate if you have anything to say about how not paying back a debt is wrong and how avoiding paying back is sneaky. What's sneaky to me is how financial institutions sought vulnerable college students and enticed them with high interest rates to go along with high credit limits, or how corporations drove interest rates through the roof to the point of negative amortization where you could only afford to pay the interest and remain in the same monthly debt hole, and how credit card companies received tax forgiveness by selling bad accounts to legal offices specializing on capitalizing in debt collection by harassing hard-working individuals in a financial bind trying to dig their way out by constantly reaching them at their office phones and phoning family relatives and neighbors. If it was legal to create a financial mess, then there's nothing wrong with following the same laws to get out of a financial mess.

    Steps to keep in mind if you are in the same legal battle:

    [LIST=1]

  • If you can't tolerate the collector's phone calls anymore, tell them to "cease and desist" (buys you ~10 days), and then follow up with a cease and desist letter (good for years, I think.) They hate this. Note, however, that this will prevent them from contacting you for a settlement offer, too. Think it through. (You can always rescind a cease and desist, if you choose later.)
  • Get a free legal consultation. These are typically 30 minutes long, and you may not get much advice other than that you are screwed if the debt is legitimate. (Not necessarily true!) You aren't going to get a free lawyer, and they won't touch you if you were in a foreclosure like I was (because they know you can't pay them.) But you can get pointers on the timeframes for your county. Don't leave a session without understanding your general options and your timeframe for responding.
  • If this fight isn't for you, then pay the debt -- or negotiate/settle for a lower amount. But, if you aren't going to pay a debt claim that hasn't been legally proven, then you MUST fight. You stand to lose time and energy, so weigh that against the money they're seeking from you. If you do NOT fight the complaint, then they win automatically by DEFAULT, and reserve the right to tack on legal charges and penalties, and to take it directly from your bank account. So, if you owed $10,000, the court may end up awarding them $15,000 or more... and they can garnish wages, take from your account, etc. Avoid a judgment against you by fighting it or settling it.
  • Follow every legal timeline/deadline. And if you miss a deadline, try to protect your rights anyway, since courts can get behind with queued paperwork and you may still get lucky.
  • Read, read, read. Search the web for the following topics:

    • How to read a civil court summons (so you understand the charge against you)
    • Civil Procedure Flow Chart (so you can visualize the flow of your complaint)
    • List of Affirmative Defenses (so you can arm yourself with possible defenses against the charge against you)
    • Propria Persona v. Pro Se (very important to know how you want to represent yourself in your legal submissions.)


  • If you are lucky, your county has a method of filing legal paperwork online. If you are a defendant, this access if FREE. (Plaintiff has to pay to submit claims; but since you are defending yourself, it's free to you -- unless you counter-sue, which is an advanced option that you can later choose to take.) Create yourself a new account, and you now have the same authority to submit legal documents as lawyers do. Powerful stuff, and very convenient! Rather than waste your time driving to the courthouse, you can submit electronic documents from home 24x7 -- even when the courthouse is physically CLOSED.
  • If your online account lets you view other court cases filed in the same county ("case search" access), take a look at a lot of those. This gives you a real feel for wording used in other official documents. Also, learn what cover sheets they typically request, since you may have to submit a county-approved cover sheet with every submission.
  • If you can't use online submission, be prepared to mail everything using certified return receipt. Allow yourself extra time. Keep copies of everything.
  • As a first response (before your Answer), it doesn't hurt to file a Motion To Dismiss, if allowed in your state/district. It creates extra work for the legal plaintiff (softens their attack), and it also buys you some extra time (a couple of weeks) since you are pushing back the ticking clock by filing this motion. It also lets you test the waters by seeing how quickly the plaintiff responds, and how strong their response is. Finally, it lets you test how strong your arguments are that the claim is illegitimate, and lets you get comfortable with submitting a legal document.
  • Take your time drafting your Answer/Response. This is the big one. If done right and if submitted on time, you won't be hearing from the plaintiff again.



    With those tips, there's some prep-work on your part. But it's worth it. After you check out that information, the following will make better sense:


    Draft/submit your Answer.

    [LIST=1]
  • In the first sentence, introduce yourself, then proceed to the first section.
    [LIST=1]
  • Ex: Here comes defendant John Victim, in propria persona, and answers plaintiff's claim as follows:


  • In the first section, summarize your response. For each charge against you, "admit" or "deny" the numbered charge. Don't lie, but remember that any questionable charge has to be proven by the plaintiff. Deny if there are reasonable grounds for denial. You also have the option to respond to a charge with "lack sufficient information"; which often is interpreted as "deny". Ex:
    [LIST=1]
  • Admitted.
  • Denied.
  • Lack Sufficient Information. Plaintiff failed to provide full account number.


  • Prompt the court to act, based on your response. Ex:
    [LIST=1]
  • Therefore, defendant requests that this court find for the defendant and against the plaintiff that the defendant is not indebted to the plaintiff at all.


  • In the second section, list EVERY affirmative defense applicable to your case. Use your list from your research. (Hint: there are about 30 defenses to choose from, although only 5 might apply to your case, or for your state/county.) Also, throw in this one, since I like it:

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


  • Sign, seal, deliver. Make sure to send copy to Plaintiff, and include your Certificate of Service (proves you sent a copy to the complaining party [and to the court, if you didn't file online.])
  • Sleep again. Plaintiff will respond in 5-10 days, and then it's pretty much a quiet wait for weeks or even months. You may never hear from them again at this point.


    In my case, after I submitted the Answer, the plaintiff was forced to respond (using Reply to New Matter) to some of the points I brought up in my Answer. This was additional work for the plaintiff, which serves their asses right for making me lose sleep over a situation where I didn't have any money to provide (was going through foreclosure) and they dropped the hammer on me anyway. Now, they are on their heels, and won't be touching me anymore, because they know it will cost them more to fight me in court than to walk away.

    Remember: they have to prove every charge. Are they the original account holder entitled to collect this debt? Did they include a full account number in their claim? Did they include a signed contract as an exhibit in their complaint? Did they include an itemized list of expenses and interest charges? If not, then chances are they don't have any idea where the original binding documents are, and therefore can't move beyond a simple claim to you -- in hopes that you do nothing and then they can collect without any effort. (They usually wouldn't include this in a complaint -- but would have to eventually furnish this to prove their case against you if you fight back. Chances are slim that they have all of this.) I don't care if they had a sheriff hand-deliver a summons at your front door, with only a partial account number and a summary amount of money due -- they have NOTHING on you without an original contract signature page and an itemized list of expenses and interest, and so you HAVE to fight it. What do you have to lose? That's right -- nothing but time and effort on your part to prepare yourself and fight back and regain your sanity.

    I'm reserving the full contents of my Answer, since I'm still within the legal clock; but you can find samples on the internet.

    Follow the advice above, and you have a strong fighting chance.

    Good luck.

    E C


    • Submitted by E C on Sat, 06/25/2011 - 10:10

    E C

    ( Posts: 3 | Credits: )