Debit collector suing in small claims (LGW in Mass)

hi and welcome!

OK, there are several issues at play here. I'll take them one at a time.

First, you said this is an old debt--how old are we talking? It is possible that the debt is too old for them to sue you over. There's a thing called statute of limitations in ever state--in MA, the SOL is 6 years for credit card debts. So, if this debt became delinquent more than 6 years before they filed this lawsuit, you need to answer with "expired SOL" as an affirmative defense. Let me know about how old this debt is and we will put that together if need be.

Next, I would not motion for change of venue. I would simply motion for dismissal due to improper venue. If the plaintiff listed your correct address on the court documents, then there is no way that they filed it in the wrong county by mistake. This is a common trick that many debt collectors use to try to sue people without giving them sufficient time to prepare.

Third, how did you learn of the lawsuit? Were you served a summons? If so, how were you served? Did the summons have a complaint attached to it? The complaint is what you will need to answer.

OK, when it comes to requesting validation, it is generally too late to do that once they sue. However, you are still entitled to the same proof--it is now going to be done differently because they have sued you though. One BIG difference--you NEVER want to ask them for VERIFICATION--you ALWAYS want VALIDATION.

OK, get back to us on those questions and I will be happy to help put together what you need for this. Depending on this account, they may have to drop the whole thing altogether.

The debit is still with-in the SOL as it's from late 2009.

As for the motion to change venue. I assume you are correct as it's possible I could win on that because the clerk admitted they should have never accepted my case. If by chance I did get it dismissed would they be able to then make a new claim in the correct district or would I have won by default?

As far as how I was notified. I've never received any sort of certified mailing and it's possible I may have missed prior letters as I get a lot of junk mail in my PO Box, but I've yet to sign for anything that was certified, nor have I been officially served with anything. (I assume they don't serve for small claims)

I simply received a letter from the clerks office (did not sign for it) with a notice from the court stating I was being sued and was given the date of the hearing with a brief description of the case.

I received it the day before I had to go out of state for a week, so I've had very little time to look into this matter. (essentially yesterday & today)

When you say "validation, it is generally too late to do that once they sue". How can it be too late if I only found out about this lawsuit less than 30 days prior to the hearing?

Shouldn't I be afforded some sort of protection in that regard? Seems I should have been notified by certified mail or served some sort of official paperwork with a receipt. Otherwise what would stop them from claiming they tried to contact (but didn't) and then be awarded a default?

Collection notices and court summons if your state allows service by mail are sent via regular mail, not certified.

Anyone else have any suggestions?

I'm sending out my validation request letter today. I'm requesting they provide all the typical stuff and will most likely drive over to the district court house and file a motion for dismissal on ground they broke the FDCPA when they filed the claim out side my district.

How much are they suing you for?

Roughly 2,200, however I was right around $1.5k when I could no longer pay. The credit card company piled on about $500+ extra in fees & interest in about 6 months prior to them putting the loan as defaulted.

Not to mention it was actually lower than the 1,500 but I tried to keep up with it and other bills at the time, so had some slow pays and they of course piled on lots of fees. I think it was closer to $1k when I first started having problems.

I wouldn't have a issue trying to work something out on the original debit amount but it's pretty ridiculous to pay amount double the original debit due to fees.

I was self employed at the time and took a hard hit with the economy which eventually caused me to shut down my business. I tried to get them to freeze account and lower the interest and fees, on this one as well as 2 other cards I had with other companies, prior to when I stopped paying but none were interested in working with me, but rather just wanted to do what CC companies do and farm out excessive fees & interest.

as a side note, I sent my validation letter today, so I'll see if they respond. I'm probably going to have to take off work tomorrow and go try to file a motion to dismiss on the venue issue.

If that doesn't work I'll have to then see about getting a change of venue or at the very least a postponement as the 20th is not far away added to this Monday is a legal holiday.

I do have 1 more question..

I talked to the Clerk of Court today to ask a few questions about submitting the motion to dismiss. I asked if it was denied would I still then be able to file for a change of venue and she said I could do both at the same time.

My question is, if I do both at the same time is the judge more likely to not dismiss and rather just decide to opt for the change of venue or does he have to decide on the dismissal first?

ie.. is it better to see if it gets dismissed then if it doesn't file for a change of venue or possible postponement?

From what you have said, it appears that they never sent you a formal collection (dunning) notice, which was required within 5 days of their initial communication with you. If they did not, then you were not formally advised, as required under FDCPA 809(a), of your rights to request debt validation. So you definately still have the right to file a timely DV request under FDCPA 809(b), as you never had a 30-day period running against you. The statute places no time limit on a timely request for debt validation unless a collection notice advising you of your DV rights has been sent.

You have that right, and neither the debt collector or the court can deny you that right by failure of the debt collector to meet their statutory obligations to provide you notice thereof.

Send a DV letter. When you do that, send a concurrent motion to the court, explaining the plaintiff's lack of compliance with FDCPA 809(a), tht your Dv letter now places them under a cease collection bar, and asking for a continuance until they have provided the requested debt validation. I have seen numerous court decisions on such motions that interpret that the cease communications bar under FDCPA 809(b) must be lifted by the provision of debt validation before the legal proceedings can continue.

Rustle the chains......

I believe the court date has already passed, so DVing is pointless right now.

You need to file only for the dismissal and once it's dismissed, then send the DV request right away.

No, court date is on the 20th of this month, as per OP's first post. Even so, I agree that handling the dismissal first is a good way to go on this one. Once the dismissal is secured, then DV ASAP.

Do to getting scarce on time I filed two motions.. One for dismissal and one for a change of venue. The Clerk told me she didn't think I would get a dismissal based on the wrong venue but I have a new date that I will be able to argue the motions on which is pushed back to mid November.

If nothing else getting things slowed down a bit and pushed back was my primary goal and that was a success. I now have a bit of breathing room and will be able to figure things out a bit better.

As far as my DV's.. I've sent 3 to them so far.. I first sent one via normal mail.. 1 by certified mail requiring a receipt and also included one with the motion for dismissal.

I assume the one sent via normal mail is just my word vs theirs.. however they can not deny getting the one sent with the motions as the clerk sent it. If they refuse the certified mailing then I assume that's more ground for dismissal as they will have refused 3 separate attempts at validation.

I assume they were trying to play the time game being the original date was on the 20th.. Now that it's been pushed back I wonder if they wioll answer my DV.

I am working a second angle already for dismissal in which I included the grounds of it in the dismissal for improper venue. From what I can find these lawyers are "not" licensed in the state of Mass as debt collector which is required by state regulation.

With-in my DV I also requested proof that they are legally able to collect this debt and requested their debt collection lic #. I think these guys are trying to hide behind the "working as a client aspect" however on their own written communication with me they specifically state they are debt collectors working to collect a debt.

Also I dug up a few industry letter by the division of banks whom regulate the Mas debt collection licensing and they specifficly state that they consider lawyers whom are in the busisses of collecting debt regardless if it's for a client or not are considered debt collectors and required to be licensed.

I dunno how well that argument will work but I'd think at the very least I should be entitled to proof that they can legally collect.

You didn't listen. We were trying to help prevent you having to go to court at all. Hence the suggestion to motion for dismissal only (on the grounds of improper service).

That way, it will get dismissed and you can DV them before they have an opportunity to file a new case. Once they're DVed, they have to stop all collection efforts, which includes filing a suit.

Quote:

With last Monday being a holiday I had only 1 day which was the 11th to go file my motions as I have to work wed,thur & fri of this week and it's impossible for me to get to Boston & back on a work day.

I couldn't wait around on answers because TBH this topic was dead for several days with no replies.

I went with the best idea I could go with at that time and at the very least I got things slowed down. Which means if they do not validate the debit then I will also be able to request dismissal on those grounds.

As far as going with the argument that they didn't contact me prior to this.. I have no way to prove they did or didn't, so it would be my word vs theirs if I understand correctly what you are saying.

As for the DV.. I have to wait to see if they refuse the certified mailing and also ignore the copy that was with the motions I filed. I can't act on them not answering until it's clear they aren't going to answer. At least that's my understanding of the process.

As for them not being required to provide a license number.. Shouldn't I be able to request proof, that they have a right to collect debt in my state? Seems if they are trying to sue me over a debt, I should have the right to know if they are working legally.

Otherwise what would be the purpose of the debit collection laws in Mass that are there to help protect consumers if they didn't have to prove they are legal. In reguard to the Federal law there is no regulation that states they need a license but here as a state regulation in Mass there is one.

DV's are ignored after the summons is issused and the courts become involved....it is too late for them. It doesnt slow anything down. You can request the information further along in discovery but it will not stop or slow down a court case.

it's a small claims case..as far as I know there is no discovery process only a date to show up in court.

Quote:

Well I have looked it up and they are not listed on the Mass govt site as being licensed. Hence the reason I was requesting that they provide me with their license number to prove that they are a legal debt collector with-in the state.

This is why I was going with the secondary idea of challenging their legal ability to collect the debt. This of course is using State regulations and not FDCPA at that point.

I think you'll still be fine. The judge will likely change the venue, which will buy you time.

In court, they will have to prove that you owe the debt and prove the amount, period. You'll likely be able to win this thing, especially if they don't respond to your DV.

I would print out a copy of your license search showing no hits for this agency and take that to court with you too. Make sure you take your cert mail return receipt too so you can prove they received your request and ignored it.

I'm hoping they DO respond to your DV with the BS that normally gets sent so you can take that to court too and show the judge that they've not been able to prove to you that you owe this debt :)

I'm hoping that will be the case. I'm also wondering if these guys will even show up in my district court, if I get the venue changed. I kinda suspect they are just trying to buy in bulk and get easy wins by default from people that don't show up.

Well I figured I would update this.. I was scheduled to show up in court this Thursday for my motion for dismissal as well as my motion for change of venue.

I just received a letter today from the attorney whom was suing me with a notice of voluntary dismissal which is great but leaves me feeling a little uncertain.

I'm wondering what should I do next, if they asked for a dismissal does that mean they can still sue me at a later date?

They never answered my DV either, should I send another DV and then request that they cease and desist or should I wait to see to see what happens next?

I honestly wasn't expecting this, I thought maybe I could beat them in court but never expected them to dismiss it voluntarily.

first check with the court as this seems odd that they would send that two days before.besides that should have come from the court not them.check with them to see if that is true then the court will confirm it.if the court says no such action was filed then they were trying to get you not to show up.sorry but i trust no collector as you stated they failed to respond to you in any way.why now?check with the court on this.

Yea I certainly plan to check with the court tomorrow. The letter was dated the 10th I just didn't get it til today as I use a PO Box and normally only check it once or twice a week.

The first thing I thought as well is it seems like maybe they were trying to get me to not show up. I also thought it should come from the court as well. The only thing I can figure, is that they sent out a copy to me the same day they went or sent it to the court, so I just haven't received the one from the court yet.

If it is a sham I think it would seriously hurt any case they may have had as sending something like this on their letter head with the attorneys signature would surely be against the law.

bottomfeeding JDB'S use this tactic alot,and for the most part it works.just if the court clerk says there was no dismissal filed bring that letter with you.it will help you in your case.btw chances are if the dismissal wasn't filed the actual attorney won't be there.sometimes they send someone just to be there as there are most likely more than one case for that day and time,and they most likely sent those to all defendents.seen this on the forum before in threads.just check and confirm and let us know what you find out.

Well if it turns out to be a scam letter trying to get me to not show up, I will pursue any legal complaints I can make including making a formal complaint to the state bar and the state attorney's office.

I will absolutely not let something like that slide by, so I guess I will see what the clerks office says tomorrow. I understand how scummy these types are but I'd be surprised they would risk their legal practice with a tactic such as this for a relatively small amount.

Ok I just called the Clerk's office and confirmed that it was indeed dismissed by the Plaintiff.

I'm wondering what I should do now. Can they refile another lawsuit at any time? Should I do anything about the DV situation in which they failed to respond? (ie send another or maybe send a C&D being they failed to respond to the DV?)

i hate for you to be a pest but contact the clerk again and as if the dismissal was with or without prejudice.if it was without prejudice then yes they can attempt to sue again.now ask the clerk about you motioning to dismiss with prejudice as then nobody can sue on this again.try that,and if they say you can't do that then resend your DV letter again certified mail again.then save the receipt.it will come in handy later.

I just looked at the letter again and the 2nd page says it was dismissed "without prejudice". Are you saying I should contact the clerk to ask them to change it to "with prejudice"?

If so, do you have a suggestion as to what reason I could ask for this? Should I ask on the grounds that I had a motion for dismissal based on the improper venue?

As for the DV, I still have my receipt for the 1st one I sent them and I included a copy of it in my motion for dismissal on the grounds of improper venue. I kinda figured it would be sneaky way to slip it in there and have it included with the official court records so there was no way they could claim it wasn't received. Meaning I already have two forums of proof that I've sent it to them but it was never replied to.

still check with court to confirm that.if it was with prejudice then neither they or anybody can sue on it again.confirm that.if that is the case send this place A C&D as they tried to sue but in fact can't validate.that is wht they voluntarily dismissed it.i would again C&D them and deal with the next JDB.that is if the court confirms"with prejudice".

editing the above post.. I meant to say it was without prejudice.. meaning they can sue again if they wanted.

let the court clerk know what you want to do.i don't think it matters on the venue as the court date would have proceeded.bottomline is this attorney couldn't prove their case and wasted your time.in fact PM skydiver on this he can help you on how to proceed better than i can with the motion to file and how to file it.

Few occupations are as maligned as debt collectors these days. Granted, given the behavior of some in the profession, that damage is self-inflicted. Grievances against the market filed with the Federal Trade Commission are at an all-time-high. Suits from the FTC are also increasing. I found this here: Debt collector complaints surge along with FTC lawsuits

i saw that and couldn't be happier.you see the "bad apples"grew out.meaning that these bottomfeeders as we call them were getting results violating the FDCPA which does exist for a reason.alot of businesses were starting to use these bottomfeeders to collect just when this site and others like it starting picking up steam.the days when an anonymous creep can just use "scare tactics"over the phone and get the same results as say three years ago are waning.again couldn't be happier.if a collector does their business right they have nothing to worry about do they?those suits are against bottomfeeders and in my humble opinion that isn't nearly enough as the boiler rooms overseas need to be shutdown.nuff said.