Being sued by Asset Acceptance, Bidna & Keys

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"to my understanding they need to provide you with the documents to prove the debt, even if you know is a valid debt. I don't know the SOL. "

I'm in California. The statute of limitations is 4 years. The account defaulted in 2003. I have never paid this CA anything. There is absolutely no proof unless they falsify documents (which I've heard they have done-the nerve).

I take back what I posted about the demurrer after reading the definition of "neither accepting nor denying the claim". I completely deny this.

Help anyone?

Since you are past the SOL you could dispute the entry with the ther major CRAs and DV and CD the collection agency at the same time. That will force the CA to validate if they want to continue to report. When they attempt to validate with garbage like a past statment only and no real proof like a signed contract dispute it again. Dispute everything including the balance and DV them again. If they affirm the debt with the 3 CRAs after the disputes then at that point they violated the FCRA and the fdcpa. You could either sue and or dispute again. Be prepared to site the SOL as a defense if they sue or counter sue.

Thank you DollarsandSince.

I know what CRA and DV mean, but what does "CD the collection agency" mean?

Sorry, trying to get hip with the jargon in this forum.

Thanks much.

CD means cease and desist

Here are some threads about Asset Acceptance:

http://www.debtconsolidationcare.com/forums/about3349.html

http://www.debtconsolidationcare.com/assetacceptancellc/index.html

You can also do a search by typing their name into the search box at the upper right corner of the screen.

You will need to answer the summons regardless. If you're going to use the Affirmative Defense of SOL, then you will need to prove when the last payment was made on the account. Do you have records to back that up? Here are some sample answers. These were based on CA's RCP. PM me for more info:

"to my understanding they need to provide you with the documents to prove the debt, even if you know is a valid debt. I don't know the SOL."

In the litigation context, the defendant will have to ask for the documents in discovery. That means preparing a document request in proper legal form.

Also, why would anyone want to dispute the existence of a debt that you know is valid? That????????s just lying, which is never a good idea and especially bad in court. You may have other defenses or strategies, but only a lawyer trained and experienced in debtor/creditor law????????and licensed to practice in your state????????can review your legal position and then advise you about your legal rights.

The amateur route suggested here is likely to cost you dearly in the end.

"Since you are past the SOL you could dispute the entry with the ther major CRAs and DV and CD the collection agency at the same time."

Sorry, no. The debtor has already been sued, so one way or another the matter is going to get resolved in court. If a judgment is entered for the creditor, the debtor will have a major????????indeed, a much worse????????legal problem, regardless of what letters the creditor or credit agencies receive.

Realize that California law may or may not even apply to you, depending on whether the underlying agreement contains a choice-of-law provision. Either way, some credit card agreements extend the statute of limitations, and state laws vary about how these extensions apply. IOW, you can????????t always tell just by looking at the agreement: sometimes the extensions are enforceable; sometimes not. Again, you need a trained and experienced lawyer to look into this for you.

In short, there are just no cookie-cutter answers here.

"You will need to answer the summons regardless. If you're going to use the Affirmative Defense of SOL, then you will need to prove when the last payment was made on the account. Do you have records to back that up? Here are some sample answers."

You don't answer a summons: you answer a complaint. As an attorney who has written and reviewed hundreds of answers, I assure you that filing the ungrammatical and legally insufficient text supplied here is only going to cause the debtor further trouble. You do not want to piss off the judge. (Are you aware, folks, that a plaintiff can demurrer (i.e. try to throw out) to a legally insufficient answer?) If you file papers that only delay the proceedings, you will expose yourself to further costs and possibly even sanctions. That means punishment for wasting everyone????????s time.

Your best course of action is to consult with a lawyer. Have you checked with the county bar association to see if legal aid is available? Also, some county courts have a lawyer on staff who can look over your case free of charge and help you to the right legal forms. Santa Clara County, for instance, has excellent legal self-help online. Also, head to the local law library and check out the Nolo Press offerings: they are uniformly outstanding and have the legal forms on disk. The law library will also have the legal forms you need.

You might also look for a solo practitioner in your area, perhaps a bright young one that a friend or relative might be able to recommend. Most good lawyers will give you a free consultation that can help steer you in the right direction. Perhaps you can work out some kind of contingency agreement based on the amount the lawyer saves you. The credibility, training and skill that an attorney will bring to your case will probably save you hundreds (and possibly thousands) of dollars in the end.

Finally, avoid referrals to or from any unlicensed ???????settlement company,??????? or ???????debt consolidation company.??????? Ditto referrals to a lawyer from any entity that isn????????t officially certified with the state bar to perform this function, regardless of what the referral service calls itself. Whether licensed or not, avoid any lawyer that does business with a referral service that isn????????t certified: It????????s a red flag that the lawyer doesn????????t care about ethics, and that????????s never in the client????????s best interest.

Best of luck to you.

How can an agreement override state law? I was always told that you cannot agree to violate the law.

If California law states the SOL is 4 years, how can anything short of a court order override that?

Federal Law states that a debtor must be sued in the jurisdiction of the debtor's residence or the place the contract was executed.

How can an agreement change federal law?

Perhaps this is frustrating, and I don't mean to condescend, but these aren't the right questions. In particular, the statute has absolutely nothing at all to do with federal law governing jurisdiction. Furthermore I was speaking of "choice of law" rather than jurisdiction, which might sound similar but are actually often entirely separate legal issues.

If it makes you feel any better, frankly much of American law simply doesn't make sense. It's confusing and must be memorized and constantly relearned as the law changes. That's why this country has so many lawyers. (And it's also why the cookie cutter approach often seen in online forums makes such...lousy cookies.)

BTW, if you must know the proper question, it's this: how can parties to a written contract legally agree to a longer statute of limitations? One answer: waiver. In effect, the debtor may promise in writing not to assert the statute as a defense, and that additional promise may be enforceable. Complicating matters, some states limit the ability of the parties to make such a promise. This is just one of many reasons you need to study the contract in light of all the applicable statutes and case law authorities, state and federal. Thought experiments or "reasoning it out" or just plain BS won't do.

IOW, if you want to know your legal rights, and if you want to be able to assert them confidently to a judge in his or her own language, you need to see a lawyer. You won't (and can't) find anything but a very general answer online, and in many instances even the general answer is simply wrong.

This may or may not be what you wish, but in any event it's the truth.

What about it DOLLARSandSINCE and nascardevil, you guys are the experts. Is CalLawyer right about this?

CalLawyer has made several valid points. My post above with responses to complaints was never meant to be legal advice, only a roadmap. Always check that your responses adhere to the Rules of Civil Procedure for the jurisdiction that is governing the proceeding. He is also correct on the statute of limitations issue. It can vary from state to state but in Texas, only a written statement from the consumer can reset the SOL once it has expired. From personal experience, I have gone Pro Se twice and have had both dismissed, 1 with and 1 w/o prejudice, so I beleive that anyone can represent themselves against a JDB. It takes a lot of research and time to do. If you do not feel it is something you can handle then try to find a NACA attorney in your area. Personally, I would fight them myself.

Nascar, I'm sorry but it's disingenuous to say that you were only suggesting a road map: You told the debtor what to do and gave her a form. You're not licensed to choose forms or give out legal advice, but that's not even my issue.

The real problem here is that you (and many others) give advice and forms that totally miss the mark. And that can only cause grief.

Unfortunately, I could point out hundreds of examples here, but this Saturday night is too beautiful and I'm gonna go grab a beer. So I'll leave it at this:

Folks, if you can't pay a debt as agreed, that's a legal problem. Find yourself a lawyer with training and experience in debtor-creditor law. Most offer free consultations. Check the attorney's license and references (the BBB is worthless), and make sure you know what it'll cost. If you do this, I think you'll see it's not only cheaper than this crazy debt settlement industry, but you'll receive far more professional advice and representation.

If you just can't bring yourself to hire a lawyer for whatever reason, head to your public library and read the excellent materials published by Nolo press.

Good luck to you all.

I have to respectfully disagree. I am far far from a lawyer, yet I was able to handle a situation just fine and did it all on my own, taking a CA to court and winning. I think the main point here is that this CA may not be able to provide a signed contract. I do agree that a signed contract would pretty much have the consumer by the..er..jewels depending upon the wording, but to just simply say that no one can do it on thier own without a lawyer is just as bad as giving wrong legal advice as well. :)

Ok I just want back and read the first few posts....according to the OP there are no documents that this CA seems to be hedging and dragging it's feet...they may be simply trying for the quick default judgement...regardless I would think that you can force the issue by using discovery on your own and demanding the documentation, when they can't provide, motion to dismiss based on no proof.

Sorry my response was to the fourth post not the OP post. I did not realize the fourth post was the OP. In the fourth post he said he was past the SOL. I did not realize he had received a summons. You would want to answer the summons and request the items listed on the DV letter. Callawyer is correct in that sending a DV and CD to the CA after you received a summons would be pointless.



The only advice Callawyer gave was to hire a lawyer. I think most people already know that hiring a lawyer when you are headed to court is definitely the best route but it is also not always possible. There is nothing in that advice to really be right or wrong about. I am far from being an expert in law. I have had decent luck at personal debt settlement in the past. If I were going to court it would depend on how much I was being sued for compared to how much a lawyer was going to cost me to determine if I hired one or not. In general I would always advise that someone seek a lawyer depending on the stake. If you have a large debt or risk losing a large sum of money then I would certainly consult one. I do somewhat disagree with Callawyer though. In many cases it just isn????????t cost effective to hire a lawyer for a full defense. Either the person can????????t afford one or the dollar amount is to low that it would cost you more to hire the lawyer then it would to show up in small claims. I would certainly search out any free legal help that is available. This forum was set up primarily to help people deal with CA????????s and their abusive practices but it is also a great place to find info if you are headed to court without the comfort of a lawyer for what ever reason.



You are not disputing the existence of a debt , it is the validity that you are disputing whether it is because of a lack of contractual evidence, SOL, wrong person or for whatever reason . When a debt has passed through the hands of a number of JDBs it generally gets boiled down to maybe some old statements with a name and address at best. They repeatedly call and ignore request for validation and cease comm letters. They violate the fdcpa and the FCRA all the time. Then they turn around and serve a person at the wrong address and lie about proper service. These are just some of the reasons why someone would dispute a debt is valid.



I never read about the ability to change the SOL but I would think it would be pretty tough to make an extension of the SOL stick when most JDBs can????????t produce a signed contract to begin with. How exactly are you going to prove that a person signed an agreement to waive the SOL when you can????????t produce that signed agreement. I would only worry about this if the party you were in a dispute with actually came up with a contract. Also, if they have a copy of the signed contract you are probably going to lose anyway unless the debt is not valid for some other reason. At that point it would probably be best to settle.



Maybe it would make you feel better if every anonymous poster put in their sig that they are not lawyers but based on their personal experiences their responses are how they would handle the given situation. Giving a person a sample filled out response to a complaint is not equivalent to providing legal advice and it certainly would not get one in legal trouble for practicing law without a license. It would be different if he took the actually document from the OP, filled it out, signed it and submitted it for him.

Well it is really late here and I am very tired. I am sure I will review this tomorrow and find something messed up so I might respond again then.

"I think the main point here is that this CA may not be able to provide a signed contract."

We don't even know what kind of debt this is, and there are many ways to prove the existence of a contract other than a piece of paper. You are betting that the other side is represented by idiots.

Of course all this is beside the point: a debtor has been sued. She needs legal advice or, failing that, at least a decent self-help book. The advice here might work, or it might piss off the judge and result in sanctions and an adverse judgment. I've seen both.

"Maybe it would make you feel better if every anonymous poster put in their sig that they are not lawyers but based on their personal experiences their responses are how they would handle the given situation."

Not at all. Telling of experiences is saying, "when I did abc, xyz happened." The posts here were and are very direct in dispensing legal advice.

You need to ask the proper questions and examine the documents to even begin advising the debtor here. People can lose their homes in these situations. It's a shame you don't realize how much harm you're risking.

Guest, aka CalLawyer, aka WhatTheF, as I said in another thread, if you are so worried about incorrect advice being dispensed, why don't you become a member and give people some REAL legal advice, instead of just criticizing others who are doing their best to help someone who is in desperate need of help?

And here's the answer posted elsewhere:

Because first, it's unethical for a lawyer to dispense legal advice without reviewing the client's file and speaking with her in a confidential setting. Second, I????????ve spent many hours staffing local pro bono clinics, which is the proper place to help people, and I routinely give out free advice to people in these situations: all they have to do is call. And third, genuine advice isn't the true purpose of this place.

Look at this thing critically Alias: why would this board be so slow on a weekend, just when other forums all over the 'net are going gangbusters? Why don't these boards point debtors to the wealth of low and no-cost legal aid available in most U.S. cities, or the best self-help books and forms all available for free at the local library or on county court websites? Alias, who calls you back when you sign up for the consultations offered here, who pays their salaries, and where does the money come from?

Sorry, I'm not paid (other than being able to cash in points, as everyone else on this board can also do). I wish I was, because then I wouldn't be in the financial trouble that I'm in.

And again, as also posted elsewhere,



Go away, troll!

Let me ask you this Shill (as I am quite curious) regarding the pro bono clinics. How are they funded, and are they private non profit entities or are they state/county funded? Are you referring to legal aid?

AFAIK, the largest in the U.S. is the Legal Services Corporation, which is a non-profit funded by Congress. I'd post a link but...well, funny that they won't let you do that.

LSC is one source of "legal aid," if I understand your meaning, and i's a good place to start. Also as I've suggested elsewhere, most lawyers will provide a free consultation, Nolo Press publishes absolutely top-notch legal self-help books, and many county courts maintain websites and often even full-time staff to assist pro se litigants.

Hope this helps.

Quote:

Dollars,

I've covered almost all of this already and there's really no point in rehashing it. If you wish to continue imagining debtor-creditor law as it's presented here, of course that's your prerogative. I'm just sorry that your advice may harm others even more than it will yourself. I urge anyone in legal trouble to seek out either a trained, experienced and licensed lawyer, a pro bono legal clinic, county court self-help resources, or the free self-help publications from Nolo Press that I've already suggested.

Regarding the unauthorized practice of law or UPL, please google 'california "unauthorized practice of law" court of appeal' without the outside ' but with the inside quotes. The top link will be the LA prosecutor's manual on UPL. Read it all, it won't take long, but place special emphasis on the definition of UPL in section A2.

Then come back and explain how that broad definition applies here.

Quote:

Please tell me what court in California provides a "full-time staff to assist pro-se litigants". The ones I dealt with say they are not allowed to give legal advice (they won't even tell you if you are filing the proper pawerwork). The do have a small claim advisor who is provided by the State Bar (I believe).

I am being sued, personally, by an individual for his failure to fulfill a contract with my employer and he was charged the default fee. I asked the court how to reslove this and they said they cannot help to contact the advisor (by phone M-F 1-3pm) or see a lawyer. That is the level of help the 'FULL-TIME staff gives.

Quote:

Quote:

Dollars,

I advised you, for your own good, to read a brief manuscript regarding our central dispute: indeed, one of the critical issues regarding this site, namely UPL. If you wish to read it we might have a worthwhile and even enjoyable conversation. Until then you are wasting my time.

I have no doubt that some members here are genuinely debtors in need. Provably however, some are not: the Internet makes fraud appear all to easy. Nevertheless, specific and credible information about who owns and controls this site and how he illegally profits at debtors' expense is out there for all those who care to see. Open your eyes: I promise you'll be amazed.

Cellular, I know it must be frustrating, but the non-lawyers you spoke with who declined to give legal advice were simply doing the right thing. If you feel they just aren't helping, I'd go to the Legal Services Corporation website and find a local pro bono office. Also try the county bar association referral service, and take advantage of a free (or low cost) consultation. (When I worked for a large firm, we had pro bono nights when anyone could talk to a lawyer for nothing.) Finally, have you read the Nolo materials that I've suggested? Really excellent and highly recommended: Nolo is an outstanding organization with a long history of helping people with their legal problems. Use it.

Finally, know that this is a very complex area of law. It's very confusing and often nonsensical. Take it one step at a time.

Best of luck to you.

"Maybe you should post it line by line and interpret it for me and the others and show how it applies to an internet forum."

Dollars, no interpretation needed: "California????????s Supreme Court and courts of appeals have knowingly crafted a broad definition of law practice . . . . t includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending [sic] in a court of law." See LA Unauthorized Practice of Law Manual for Prosecutors (cited earlier).

For application of UPL principles to lay advice over the Internet, see Shari Claire Lewis, "Beware the Unauthorized Practice of Law in Cyberspace," New York Law Journal (June 6, 2007), discussing the successful prosecution and conviction of non-lawyer Henry Ihejirika, In Re Reynoso, 477 F.3d 1117 (9th Cir. 2007).

BTW, I meant to mention earlier that, contrary to Dollars, proving a contract without a signed contract is actually often pretty easy. The action is called an "account stated" and relies on one or more undisputed invoices, such as those for credit card debt.

Best wishes, and please be careful out there.