lawsuit in short

[isd]

Hi Condensed lawsuit. Hope someone has had similar experience and can lend a hand.
I rec'd complaint from WWR for Disc. Bank in Nov. 2011. I answered with denials and countered with harassment, genuine issue of material fact and failure to state claim.

A little background: I dont' remember this account.
Disc. started calling Sept.2010. I took one call telling them I didn't know what they were talking about and then never took another call. They started calling constantly (although hard to know what constitutes harassment), then the robo calls.
Calls abruptley stopped apprx. Jan. 2011.
Rec'd letter from WWR Aug.18, 2011 saying lawsuit being filed, contact them to settle, if they get a judgment the steps they will take to collect and I should be receiving official papers soon. Also the mini miranda. Attached was the complaint regarding debt, "exh.A' is a boilerplate cc agreement, "Exh. B' is statement with my name and info, last 4 #ers of acct., says -0- balance due, $xxx min. amt due., internal charge off amount and thats it.
Also attached is Affidavit dated June 2011 (5 Months before being served) and affiant states she knows all about debt and "Exh A" is true and accurate statement of due and owing". Exh a is the boilerplate cc agreement with no amount or identifiers, not a statement.
I am served on Dec. 13, 2011. I answer denying all their points, w/ counter complaint stating harassment, genuine issue of material facts and failure to state claim.
I rec'd a Mot. for Summ. Disp. which I guess is their answer to my complaint, Maybe? Don't know.
Receive pretrial statement, I reaffirm what I said in complaint with specifity.
I also rec'd their pretrial statement, pretty standard although they stated they were bringing the complaint, a "series" of cc statements, affidavit and payment records.
THEY BROUGHT NOTHING TO PRE-TRIAL!!!
Back to the Mot. Summ. Disp., it also indicated that their pleading contain a "series" of cc statements (again they do not), but the kicker is they say "Now comes the Plaintiff, Capital One", dumbies, I thought Discover Bank was suing me. LOL
So, at pretrial on Feb. 9, 2012, the judge won't hear me on FDCPA because we are in state court. Asks them how long to get their documents and sets us for 30 days of discovery, mediation is set for 4 days after completion of discovery and trial date is in April.
I am trying to get my req. for disc. to them tomorrow.
So thats pretty much it in a nutshell although I should say I never requested DV. I never filed an affidavit against their affidavit or to their Mot. Summ Disp.
But I feel they never gave me 30 days, they have numerous errors, omissions and inaccuracies.
I hope this helps me in regards to not filing my own affidavit, my own Mot Summ Disp and objection to theirs.
(G) Affidavits; Hearing.
(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.
(a) Unless a different period is set by the court,
(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and
(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.
(b) If the court sets a different time for filing and serving a motion or a response, its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.
(c) A copy of a motion or response (including brief and any affidavits) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten.

Anyhooos...I really could use some imput regarding what I have don and need to do. Any help would be greatly appreciated. Thanks in advance for your help.

[BV80]

So, at pretrial on Feb. 9, 2012, the judge won't hear me on FDCPA because we are in state court. Asks them how long to get their documents and sets us for 30 days of discovery, mediation is set for 4 days after completion of discovery and trial date is in April.

Even if you weren't in state court, you wouldn't have an FDCPA claim. Discover Bank is not liable under the FDCPA, because they're not debt collectors.

You stated you don't remember the account. Did you ever have an account with Discover at any time? Did you send discovery requests, and request copies of credit card statements?

[Coltfan1972]

FYI a state court can hear FDCPA claims. Many, including myself have sued in state court for FDCPA claims. However, as pointed out, the reason in your case is because Discover does not have to comply with the FDCPA.

[isd]

You know, this is obviously my first on. I thought I would be able to nail them on all the mistakes they have in all of their paperwork. I know its not fraud, but it sure would confuse the least sophisticated consumer. FDCPA might not apply to them but as a consumer, it sure as h*** better apply to me in some way.
REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981, 445.252 Prohibited acts. Sec. 2. A regulated person shall not commit 1 or more of the following acts: (a) Communicating with a debtor in a misleading or deceptive manner
(e)Making an inaccurate, misleading, untrue, or deceptive statement or claim

Act 162 of 1995, 445.1862, Public Law 90-321, 15 U.S.C. 1601 to 1667e, "We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540 (1995)

There is a few more things similar to these. Thought i was on the right track.

Could there be a lack of standing because it says DISCOVER BANK c/o DB servacing Corporation vs Me?

[BV80]

Originally Posted by isd

You know, this is obviously my first on. I thought I would be able to nail them on all the mistakes they have in all of their paperwork. I know its not fraud, but it sure would confuse the least sophisticated consumer. FDCPA might not apply to them but as a consumer, it sure as h*** better apply to me in some way.
REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981, 445.252 Prohibited acts. Sec. 2. A regulated person shall not commit 1 or more of the following acts: (a) Communicating with a debtor in a misleading or deceptive manner
(e)Making an inaccurate, misleading, untrue, or deceptive statement or claim

Act 162 of 1995, 445.1862, Public Law 90-321, 15 U.S.C. 1601 to 1667e, "We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540 (1995)

There is a few more things similar to these. Thought i was on the right track.

Could there be a lack of standing because it says DISCOVER BANK c/o DB servacing Corporation vs Me?

I think you're confusing the FDCPA (federal statute) with the Michigan debt collection act (state law). They cannot be held liable under the FDCPA. However, if they have violated the MI debt collection act, it appears they could be held liable under MI law. If you're referring to mistakes in the Complaint, I'm not sure the court would view those as "violations". It might depend on the mistakes.

Regarding lack of standing, that won't work. DV Servicing Corp. is part of Discover Bank. They service the accounts for Discover.

[Coltfan1972]

Originally Posted by isd

We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.

The bold is your huge problem. The FDCPA assumes, no matter what your true level of knowledge of the law is, you're the least sophisicated consumer, an incredibily low threshold, basically one step above the village idiot.

What you quoted gives the benefit of the doubt to the other side. All the difference in the world.

[usagi555]

Originally Posted by isd

You know, this is obviously my first on. I thought I would be able to nail them on all the mistakes they have in all of their paperwork. I know its not fraud, but it sure would confuse the least sophisticated consumer. FDCPA might not apply to them but as a consumer, it sure as h*** better apply to me in some way.
REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981, 445.252 Prohibited acts. Sec. 2. A regulated person shall not commit 1 or more of the following acts: (a) Communicating with a debtor in a misleading or deceptive manner
(e)Making an inaccurate, misleading, untrue, or deceptive statement or claim

Act 162 of 1995, 445.1862, Public Law 90-321, 15 U.S.C. 1601 to 1667e, "We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540 (1995)

There is a few more things similar to these. Thought i was on the right track.

Could there be a lack of standing because it says DISCOVER BANK c/o DB servacing Corporation vs Me?

You're going to have to settle down and face the fact that this is not going to go away through anything but time and effort. You are going to have to nail Discover on the reliability of its evidence. That is not as simple as pointing out a few errors, though those could help tremendously if they were the right kinds of errors and they were also errors made by Discover and not their hired cockroaches (DC attorneys.) There is a major difference between a minor clerical error and an error that indicates that their software was not properly tested for bugs.

But don't give up! Many of us were where you are now at one point, scared and looking at dead ends, hoping they would go somewhere.

Now then, you need to document everything that the lawyers do. If they do win, you will probably be able to recoup some of your losses because they'll have a hard time not violating something.

[isd]

Coltfan - o, suggestions on getting Judge to listen to FDCPA?

We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.

Please explain why this does not favor me

[usagi555]

Originally Posted by isd

Coltfan - o, suggestions on getting Judge to listen to FDCPA?

We must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.

Please explain why this does not favor me

So what if the attorneys violated the FDCPA? That has absolutely no bearing on whether or not you owe the debt. You can lose a CC case, then come back and sue the attorneys for their violations and win. You can win a CC case, then come back and sue the attorneys for their violations and win. It simply is 100% not relevant as to whether or not you owe the debt. You need to forget about using the FDCPA as a defense in any way, shape or form, because it is a 100% offensive statute. If you are using the FDCPA, they'll be calling you the plaintiff.

[usctrojanalum]

Whether or not the attorneys who represent Discover violated the FDCPA, has no bearings on the merits of your case.

If you feel you have an actionable claim against the attorneys, you can sue them separately for the violations.

[luke48]

Originally Posted by Coltfan1972

The bold is your huge problem. The FDCPA assumes, no matter what your true level of knowledge of the law is, you're the least sophisicated consumer, an incredibily low threshold, basically one step above the village idiot.

What you quoted gives the benefit of the doubt to the other side. All the difference in the world.

Coltfan1972,

What is purpose of fdcpa, if consumers have no protection in state law? I am fighting a case in arkansas, it is a waste of time to do anything?

[Coltfan1972]

Originally Posted by luke48

Coltfan1972,

What is purpose of fdcpa, if consumers have no protection in state law? I am fighting a case in arkansas, it is a waste of time to do anything?

I have no idea what you're talking about. All we were saying was the FDCPA is not a defense to the underlying debt.

I've sued in Arkansas courts (Pulaski Circuit, small claims (2)) and am a few days away from filing a federal suit for another agency breaking Arkansas state law, therefore an FDCPA violation (like a per se violation).

Arkansas collection laws "mirrors" the FDCPA. We don't have a seperate state law (at least one with with a private right of action) that addresses collections.

We have the state board of collection agencies and their laws, but those don't have a private right of action associated with the. Part of the reason I'm going federal this time but using the fact they broke the law in Arkansas and that triggered the federal law violation.

You just can't say you no longer owe the debt just because a party violated the FDCPA. You sue or countersue that party. If an atty for the 3rd party collector violates the FDCPA, then you go after the atty in a seperate lawsuit.

From my soon to be filed federal suit-

The existence or validity of the underlying debt is not material in an FDCPA action. See, McCartney v First City Bank, 970 F.2d45 (5th Cir. 1992).

[BTO429]

You need to forget the FDCPA and attack the vality of the evidence they have offered.

They produced an affidavit, who was the affidavit from, did that person work for the collection agency or the OC. If the person that wrote the affidavit is not in court to testify for the accurateness of it then you motion the court to strike the affidavit. When they show up for court and present the affidavit you ask if the person that signed the affidavit is in court if the answer is no you motion to strike. The reason; you can not cross examine a piece of paper only the person whom signed it, if no one can testify to its validity it becomes hearsay at that time.

You ask for them to provide copies of everything they have for evidence to you during discovery. If they try to produce other evidence later that they did not give to you during discovery you motion to strike it.

there are ways to fight even if FDCPA and state laws do not pertain to them.

[luke48]

Originally Posted by BTO429

You need to forget the FDCPA and attack the vality of the evidence they have offered.

They produced an affidavit, who was the affidavit from, did that person work for the collection agency or the OC. If the person that wrote the affidavit is not in court to testify for the accurateness of it then you motion the court to strike the affidavit. When they show up for court and present the affidavit you ask if the person that signed the affidavit is in court if the answer is no you motion to strike. The reason; you can not cross examine a piece of paper only the person whom signed it, if no one can testify to its validity it becomes hearsay at that time.

You ask for them to provide copies of everything they have for evidence to you during discovery. If they try to produce other evidence later that they did not give to you during discovery you motion to strike it.

there are ways to fight even if FDCPA and state laws do not pertain to them.

Thanks bto429,

That is what I have done is filed a motion to strike their affidivant. They responded with the account is prima facile, which is laughable because the last 4 digits is all that is listed and does not correspond to any of my records. Also ark code 16-45-104 given states that affidivant is valid unless defendant denies under oath the correctness of account. So.... Do I have to wait till court to make a sworn statement denying this, eBven though I have already denied this account in my answer to complaint? Also, little fuzzy on how to prepare a subpeona for the supposed Affiant on this affidivant, any links available on that?

[Coltfan1972]

It's prima facie and they are correct, their claims are prima facie evidence. It's a very, very low standard. It means if you don't counter their arguments is it more likely they are right than wrong.

You're right about the affidavit law. However, as you correctly pointed out you have to dispute it under oath Disputing the law suit and disputing are independent of one another. You can't do a blanket denial and rest on that denial or they will get summary judgement.

You have to attack each piece of evidence as you learn about it or come in possession of it. You'll want to file your own counter affidavit, under oath.

Has the judge ruled on your motion to strike the affidavit?
What court are you in and who is the law firm suing you?
How much are you being sued for and who allegedly owns the debt that has hired the law firm?

[luke48]

Originally Posted by Coltfan1972

It's prima facie and they are correct, their claims are prima facie evidence. It's a very, very low standard. It means if you don't counter their arguments is it more likely they are right than wrong.

You're right about the affidavit law. However, as you correctly pointed out you have to dispute it under oath Disputing the law suit and disputing are independent of one another. You can't do a blanket denial and rest on that denial or they will get summary judgement.

You have to attack each piece of evidence as you learn about it or come in possession of it. You'll want to file your own counter affidavit, under oath.

Has the judge ruled on your motion to strike the affidavit?
What court are you in and who is the law firm suing you?
How much are you being sued for and who allegedly owns the debt that has hired the law firm?

Okay, Thanks ColtFan1972,

I am not sure how to file a counter affidavit, but will work on that. No, the judge has not ruled on my motion to strike.

District Court of Faulkner Cty. Hosto, Buchan and Prater is the atty suing me.The amount is around $4K.

I did make some calls and finally realized that FIA sold my debt to NCO Financial, which then contracted with Hosto attys here in AR. Astounding they can claim FIA is plaintiff, when they sold it!