Misrepresenting the "Principal Amount.", Is this a

Dan--
First, welcome to the forums!
Second, how exactly did this not even get to court? I am curious what you said in your answer that caused this to go right to judgment.
OK, as for the letter for settlement, I would not write that letter because they will ignore it. At least for the time being, they have the court's blessing to collect twice as much as you are proposing. They wont pay any attention to a letter suggesting that they take only half of what the judge just told them that they are entitled to take from you.
Now, I dont have experience in motion to reconsider, but anything's worth a try. But you need to show solid evidence in order to have a chance at anything. Depending on what your answer to the court was, you might not have a chance at all. Based on what you said, the court did not require them to validate any part of this debt. I am guessing that maybe in your answer you admitted that the debt is yours and you maybe admitted the amount as well?
There is a statute, part of the fdcpa, which does not allow any CA to increase the balance owed by any amount unless that increase was one of the conditions you agreed to in the original credit agreement. That might just be your way in. Perhaps you can consider suing them for FDCPA violations, and the two of you might work out a deal that way. For example, they are claiming that the debt is actually twice the amount that you have found it to truthfully be. This is a violation of the FDCPA in two ways:
1--violation of section 807(2)(A)--
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2--attempted violation of section 808(1):
????
This is, of course, only true if there is no provision in the original credit contract that allows the extra charges to be added to your balance. You need to verify that against the original agreement before you do anything else. If the original agreement has no clause that allows the addition of these charges, and you get nowhere with the motion to reconsider or motion to vacate, I would simply sue them for FDCPA violations and when the settlement phase begins, work a deal. Once you put the evidence on the table their violation would become clear. At that point, I would also make it known to the court that their violation caused an improper judgment against you. When you are trying to work out a settlement before it gets to the judge, I would force their hand--either we work this out the way I want to do it or the judge will get his hands on this. Period. How much was the judgment for, if I may ask?

Because I used standard boilerplate responses without actually saying, "No, I dont own this debt." I never ADMITTED to the debt, I just said that I had no proof therefore I cannot confirm nor deny. I also attacked the plaintiff saying that they weren't the real party in question...and so on and so forth.
On hindsight, I should have said, "I have never owned a debt with this merchant for the principal amount of $1616" but at that time I wasn't absolutely positive since I didnt think I had any way of getting my original purchase.
And to be honest, I stumbled...but, I never expressly admitted to owing anything in my answer.
They got it on the grounds that there were no, "Meritorious Responses."
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"no meritorious responses" sounds like a BS thing to me, to be honest. But like I said, I dont have experience in what you are going through.

It is this simple--I would file motion to vacate because the plaintiff never once proved anything about their case! A judgment was handed down without one shred of proof. You were never given the opportunity to file for discovery and to get validation of the debt. You were also not afforded the opportunity to dispute any portion of the debt.

Here is another question--what state do you live in? It is possible that this is even outside the statute of limitations, and if it is, then you can add that to your list of things.

Let me ask you this---did the CA contact you at all before this went to court, or did they just sue? If they contacted you at all, what correspondence did you have with them?

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I've spent a good time reading about Georgia's "Arbitration Code" tonight and it does seem like I could easily vacate this judgment.

If they state that I made no meritorious defenses on my answer...meaning there was nothing I said that could lead to a trial, I can easily say that I just didn't have any proof to make a decision one way or another. All I could do was question as to whether I was the real party they were going after and if CACH was really representing Amazon.com

The plaintiff only offered two sections in the complaint. The first being where I lived and which court I am under jurisdiction. The second being what I pasted above. Considering I have used an amazon.com credit account, and the amount they were asking for sounded wrong, I couldn't make a sound affirmative defense because of the lack of information in their complaint.

Then I can bring up the fact that I have since found evidence pertaining to an amazon.com credit account I used and it does indeed contradict with what they are saying I owe as the principal amount.

I can then throw in how I feel that I haven't had my due process.

I can then throw in how the judge never read my memo before she made her judgment.

:) I feel like there's light at the end of this tunnel after all.

I just need to get this judgment vacated, then I'll make a settlement offer if the judge reopens the case.

But of course, I need to see what the judge does with my notice to reconsider. Considering one of the reasons is HER FAULT, I'm hoping she will reverse the judgment order based on that.

OK, Dan, here are some other things for you to consider here--

1--the CA broke the fdcpa in this process. The law requires them to send you notice within five days of initial communication to inform you of your rights under the law. You were never afforded the opportunity to excercise your rights and you were never even informed of them!

2--the court at that point is supposed to ensure that the plaintiff has sufficient reason to be bringing suit against you. This was not done. As long as you answer the summons, they are obligated at that point to hear both sides out and to make a determination on the evidence. There was no evidence. The court never gave you the chance to file for discovery and force the plaintiff to prove their allegation against you. This is, as you said, a lack of due process. You were not allowed to have your day in court, to challenge your accuser. In effect, the plaintiff made an allegation and won with nothing more than that, simply because someone didnt feel that your answer was worded strongly enough, or something?!? That makes no earthly sense to me at all. I have never heard of such a thing as "no meritorious responses" because at the end of the day it is still upon the plaintiff to carry the burden of proof.

3--Under the FDCPA, a consumer is entitled to dispute the debt "or any portion thereof". You were not afforded this right which cannot be taken away by the court. This is where validation is key and their rush to judgment did not allow you the opportunity to confirm the amount. This ld directly to the problem you now have.

4--Plaintiff did not follow the FDCPA because the dollar amount claimed is inexplicably twice that of the actual principal balance.

So, you have at least two violations of the FDCPA by this plaintiff in bringing this lawsuit against you. If you need help with any letters or documentation let me know and I will help you put it together.

Jon

Not to mention the FCRA violations. You could easily file a counter claim for $4k in statutory damages.

Couldn't this be used as ammunition to settle? Couldnt I put into the terms that I will not pursue fdcpa or FCRA violations in court if they agree to settle? Sure there's been a judgment, but if they are bright enough and realize that I can prove them wrong (they have the evidence I found), then it would be in their best interest to settle rather than have me reopen this case.

One of the things I did mention in the "Memorandum in opposition of the pleadings" I had filed that the judge had overlooked during judgment is that they had not properly exercised their burden of proof. Now my motion to reconsider was based on two things. The purchase history I found that disproves their principal amount and the fact that the Judge's assistant said they had not see the memorandum in opposition of the pleadings. Once she sees the memo, she should see where I've said that they had not come up with any proof, thus they have not exercised their burden of proof. I think that carries a bit of weight.

So far, I haven't seen the motion hit the docket yet, but I'm sure the plaintiff has received it by now with a copy of the evidence found.

Oh, and just so you understand how I came to find that the judge overlooked that memo, I had mentioned it in a phone message I had left on her assistants phone asking about whether or not my memo was actually considered in the judgment...and since it was a memo, they had not seen it during the one motion briefing they had. I was called a told this on the phone. I assistant had asked me to send the evidence directly to their office, but I didnt want to risk Ex Parte, so I just filed it as a motion to reconsider and sent everything through that. (yes, this is overly complictated. :) )

Oops, the above message was mine. I didnt realize I wasnt logged in.

I can't say much that anyone else here hasn't said already. But in terms of the way open accounts ammortize the interest ---

On a credit card/open-ended account, the balance compounds monthly. That means that any interest/fees they charge each month compound onto and become a part of the new principle balance.

For them to represent your entire balance as "principle" may not really be a false representation - since it is commonly accepted pratice for open-ended accounts not to distinguish between principle and interest.

Now if your contract was a simple interest L4 or 78ths C4 method, then they would have to distinguish between principle and accrued interest, as in those methods the interest never compounds.

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You are correct there. Whatever way they categorize your balance, whether it be principle or interest, they still should be able to explain its calculation.

IE they should be able to go back to day one and show all the monthly statements thereafter, with breakdown of charges/interest/fees/payments that make up your current balance.

Do go after them on these grounds. I wasn't saying your case has no merit, just that making a big deal over them considering your entire balance as "principle" shouldn't be your primary focus.

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Here is my answer to their complaint...the complaint is included in this answer. I am also including my memorandum...both of these are word docs. I just want you to see what was originally filed.

Since this is all public information anyways, I dont see why I shouldnt do this.

Another thing I forgot to mention:

When I talked to the judges assistant and learned that there was indeed an order filed, I asked based on what ground? They didnt have any proof. She mentioned that the Plaintiff had given them an affidavit of some sort.

This means they were probably granted a stipulated judgment. A stipulated judgment is a judgment which both sides agree to have entered. If the agreement is not followed, the plaintiff can file an affidavit of default wherein the judgment can be entered without notice to the defendant(s).

The problem here is, they never showed me any credit card agreement. They never proved that I agreed to anything

Also, the correct term was, "Meritorious Defenses."

I believe there is a state law that says if there seems to be no reason to bring this case into court due because of no "Meritorious Defenses" in the answer, then it can be decided on the pleadings. The plaintiff used my answer as evidence in that case, calling it, "Exhibit A."

Also, can the fdcpa violation about not contacting me 5 days before serving me be valid if they had the wrong address? They did send the notice of service to the wrong address. My address was correct at two of the three big credit bureaus at the time of service.

I also may have received phone calls from them, but they never announced who they were, and I never call people who don't tell me who they are or who they represent. I don't answer numbers that I do not recognize either.

Personally I would have mentioned more in the motion to reconsider, but that was probably done before you had all the knowledge that you have now. I would have mentioned the plaintiff's failure to disclose the defendant's rights to dispute within five days of initial communication. This is a big point because there are two chances, generally, to get validation. One is when they send you that notice of your right ot dispute, and the second is if you get sued--when you file for discovery to make them prove their allegations. You were deprived of the first because they never informed you about your rights and you were deprived of the second because the court didnt even give you a single opportunity to have due process. I would have mentioned that because it is a convincing argument to re-open the case and throw out the hasty judgment.

I would also make sure to countersue if this goes back to court, or to file your own suit if it doesnt. Yes, you may be able to get them to settle but that isnt the point--what you want to do first and foremost is to get the judgment removed because it will stick with your credit report. Even if you settle the court will place that judgment on your credit file and the CA cannot remove it. If you have any opportunity to say or state anything else to the court, I would mention that the CA has violated the fdcpa by failing to inform you of your right to dispute and that as a direct result of that failure you were not aware that you even had such a right. Also, since the very first contact you had with this CA was when you learned that they had already filed suit against you, you were not afforded any other opportunity to request validation of their claims.

Man, I cannot believe that. I see an answer that says "Defendant has no evidence or knowledge of these allegations so he denies them" and they said that THAT was not a meritorious defense? Even if you offer NO affirmative defense at that point and only deny their statements, court is STILL supposed to be about the plaintiff meeting the burden of proof. I cannot believe that a judge actually did this....

I think I still have two chances.

If the motion to reconsider fails, I'll file a motion to vacate based on what we've talked about. If that fails, I'll file a motion to appeal. This means the superior court gets to take a look at this case. If the judge is incompetent (actually the judge who was looking at this case has a local TV show here in Atlanta...lol) then the Superior court should easily see all the errors made in this case and require a do-over. I might get my hand slapped for not handling everything as well as I should have, but I'll take that as long as it gets this case back into the system.

I believe that I have at least an 80% shot of getting this vacated since, as you said, it feels like the court was trying to make a hasty decision...I'll definitely point that out and the facts supporting it.

The weird thing is, this case was decided two weeks ago, but I still haven't received a notice of judgment. The judge's assistant said they would hold the notice until they considered the memo. So maybe that is working in my favor. In the mean time I can still prepare case to vacate so that I can file it ASAP if I need to.

dont forget the countersuit as well--you have them a couple of ways...

1--failure to disclose consumer's rights within 5 days of initial communication in writing or otherwise

2--misrepresentation of the amount owed on the debt

That's $2000 worth of bargaining chips that you legitimately have because they were idiots and couldnt follow the law. If you get another shot at it I would definitely file a countersuit and we can help you prepare the evidence you will need for it.

Thanks! Oh, I'll definitely file a countersuit...

As far as the misrepresentation of the amount...thats because they didn't acutally say what the principal amount $1616 included? Is this just on technicalities at this point? I have no proof as to the late fees or interest so all I can prove is my original purchase.

Again, they had the wrong address at the time they served me and I do not remember receiving any mail from them in regards to this account.

So, if we divided this up in a task list:

1. Wait for Judgment Notice
2. File Motion to Vacate

if 2 is successful:

1. Send new answer with claims and counter claims along with what I'm seeking in damages due to violations.

if 2 is unsuccessful:

File a motion to appeal.