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stick&rudder

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stick&rudder last won the day on December 31 2015

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  1. Is there anything in the court filings that would show that they were aware of the more recent address? Sometimes, they will actually list out an address in their complaint, stating that you live at such and such, and therefore venue is proper. Or, do you have any correspondence between you and the debt collector(or their attorney in this case) that shows they knew you no longer lived at that old address? If they ever sent you a collection letter, or the law firm ever sent you notice that they represent the JDB? I can see them claiming that it was a bona fide error because that address is listed as your address on one of the debts. But it's still sloppy at the very least on their part and probably intentional, though you would need to show that it was intentional. And that's the rub on this one. I'd fix it as they did this on purpose to get a default judgment. But that is just my guess and I am not a lawyer. Should it weigh in court? Probably not. The FTC could take forever and at the end of the day still come back with no legit response either way. Also, often times, you won't be told of whatever findings or action those agencies take. Probably would have been better if you filed a counter claim alleging FDCPA violation, but again, you need to make sure you are ironclad in your proof on that. The articles are not going to cut it, the law is. If you think you can prove that they knew this was a wrong address for you, then that would be the thing to do. Just comes down to how you can prove that they knew. You do have three documents from the hospital, two of which show a different address, and are later than the first. That may be enough right there. Or, it may not. Depends on how the court chooses to interpret the law. Is it a violation? Yes. But proving it is the deciding factor. The common term is bona fide error, and it gets JDBs out of hot water all the time. To overcome it, you need to show that it was not error at all, but intentional. Sometimes that is easy. Others, difficult. Depends on what else has happened regarding addresses. A JDB will have a hard time claiming bona fide error in a situation like this if they had been sending you letters to your most recent address for 6 months, then sued you, and had you served at an address from 10 years ago. That's why I asked if you have had any correspodence with them at a more recent address, especially by mail. Coupla things. First, speedy trial is for criminal cases, not for civil cases. Each state does have its own laws concerning cases that have gone on too long. My state carries a 3 year time limit. That means that either party in the case must have taken some legitimate action to further the case within 3 years. of the most recent action. If neither side has done this, then the court MUST consider the case abandoned and dismiss it. Your state laws should show you what that limit is for you. You have two defenses that I can see right now. First is improper service, because they falsely claimed to have personally served you. Second is that you said these debts do not even exist, that this was some billing error. Understand though, if you raise improper service, the court will likely not throw their case out completely, but instead courts often will simply hit the reset button, and the plaintiff will have to have you properly served. But your second defense should take care of all of that, depending on what you have as proof. First, what exactly happened? What makes this an error? And what do you have that proves it? I'm only asking because sometimes "proof" does not actually prove what we think it does. Second, you can request that their case be dismissed, though it's probably unlikely. You can request sanctions against the attorney for the false service, but the attorney is probably not the best target in this. A process server would have filled out the proof of service, and that is your likely target in this. If you can show that there's no possible way that you could have been personally served at that address and time, then you can go after the process server in many states. Some states require a process server to keep a bond on file with that state, and you can pursue a money judgment by going after the process server. Some states seem to care more about this than others, so your mileage may vary. Can you go after the lawyer and the JDB? Sure. Does it mean that you should? Not necessarily. The attorney is bound by rules of professional conduct in each state. But that attorney would have had to KNOWINGLY use the wrong address. That points you back to what you can prove about the use of that address. Look at the original complaint. There is often a page showing what addresses should be used to effect service. What do they have listed there? Wheels up, Stick
  2. Well, when you have more than 200 calls, recorded, when you've constantly been telling them that you revoked their consent to call and their response has always been, "we can call you anyways, we dont need your consent, and these calls will continue until you pay up, no matter what you think or say", I'm pushing for that judge's discretion. If it is supposed to be reserved for the most willful, intentional cases, well, then, I think that this one certainly qualifies. This JDB has no doubt been very deliberate in its choice to continue harassing me all this time, even though there is no debt for them to collect. And even when I have repeatedly said they do not have my permission or consent to continue this, they flaunt it in my face that they WILL continue regardless of what I think. If ever there was a case that was appropriate for $1500, I'd say this is it. Wheels up, Stick
  3. You can disagree all you like, clydesmom, but that does not change the letter of the law. Claiming that a debt has gone undisputed when it HAS been disputed is mischaracterizing the status of the debt. You dont have to like it for it to be the truth. Can you provide case law examples where a similar situation happened and the court sided with the JDB, who ignored a legit dispute that was timely? Please let us know when you can. In the meantime, I'll rely on what the law actually says in lieu of what you do not like, thanks. Simply telling me you dont agree does not change the status of what I posted. Another thought, the wording of the LAW makes it a violation, NOT THE COURT. The court ONLY INTERPRETS that law. If the LAW says it is a violation, then it IS one. The court's only job at that point is to make sure that you have sufficient evidence to prove your claim. If the COURT had the say that you pretend they did, there would be no need for appeals courts that address solely matters of law when the trial courts get it wrong. If you go to court, as example, and you can show that the JDB violated FDCPA, the court HAS NO LEGAL AUTHORITY to overrule the law. Again, the appeals level is the check to make sure that if the court does overstep that authority, that justice still gets served. NO COURT has the ability to MAKE law, clydesmom. Remember that next time you want to get all caps with someone and try to tell them how everything works, please. It's something, we have seen you tell people before that something is a violation, but now that someone else says something you don't like, you claim that ONLY A COURT can call something a violation. I was not aware that you were a court of law. They could, but then they would have committed a different violation--flat out lying. They already told the OP in writing that he never responded to their demand letter. If they now try to claim that he DID but that there was some extenuating circumstance that permits them to proceed while ignoring it, then they would have made two contradicting claims on the matter. They already played this one way, they would not look too bright trying to play it the opposite way now. COULD they do what you said? Sure. Would not look very good for them if they tried to claim both that he NEVER responded, and then that he DID respond, all at the same time, and to the same demand letter. Wheels up, Stick
  4. As I recall there are two general violations for cell phone calls. First is autodialers. Second would be using prerecorded messages. They need express consent to call a cell phone using either. In my most recent situation, I just record the calls(legal in my state so I do it every time lol) and I got the reps on the phone to admit that they use autodialer systems. Got it on the digital recording. Brought it to an attorney, he laughed at it. He thought it was funny that it seemed so casual that these violations were happening, and the reps were so willing to discuss it. But be careful, express consent for a debt collector is very different than for a telemarketer. If you gave the company your number, it appears to be enough to show express consent. One way to protect yourself in that situation is that you can revoke consent at any time, and you do not even need to do it in writing. I recorded one call where I stated to the JDB, "I hereby revoke any and all consent that your company may have ever had at any time to call my cell phone using auto-dialing systems or prerecorded messages." Attorney said this was sufficient to show that I revoked consent. The JDB did not care, and continued calling me for over 1 year, every couple days, sometimes multiple times per day. At last count, we are approaching 200 phone calls after I revoked any consent they may have had. And all for a debt that does not even exist anymore, lol, how funny is that? This one will most likely end in settlement, but it should still be a nice one. Wheels up, Stick
  5. I thought it was $500 per call unless you can show that their calls were intentional. then, it jumps to $1500 per violation. Wheels up, Stick
  6. Are you sure? Last I knew, each individual CA stood on its own. This is because your DV against one debt collector cannot be made to stand against a totally separate debt collector. Case in point, CACH hires JDB#1 to collect from you. You send a DV to #1. They return the file to CACH. CACH then hires #2 to collect, and your DV to #1 has zero effect on #2. Since the DV is not transferable like that, how can the 30 day notice be? Guys, this has gotten more complicated than it needs to. There is no reason to debate in this thread whether or not Pezzuto ever validated the debt because they STATE that they did not. They claimed in the second letter that the OP never responded to them, so they assume the debt is valid. That all by itself proves the violation, because OP has records to show the certified mail he sent to them. He sent a DV, certified mail, he can prove they signed for it, then they later claim he never disputed anything. THAT is the violation. Does not matter if they included that info in the first letter, clydesmom, because they state in simple terms that they assume it's valid because they claim he never responded. As an aside, some of you need to stop switching personalities. Some weeks ago, I was getting ripped in here because I said that a JDB's initial letter already contained the needed elements to satisfy validation, and you guys chewed into me claiming that it did not matter, that they MUST respond after a DV is sent out. Now, in THIS thread, youre saying the opposite. The July 6 letter is probably the demand letter they speak of. Vicarious liability only applies to CACH being liable for the agents it hires. CACH hires Pezzuto to collect. Pezzuto ignores a dispute notice and keeps trying to collect. CACH CAN be held vicariously liable in that sense, correct? Sounds like you already have a paper trail. You can show that they received your dispute, then claimed you never sent one. That should be sufficient to prove the violations with respect to Pezzuto. The problem is, you keep saying this when the example in question IS illegal. Sure, we get it, bad behavior is not always illegal behavior, but why do you insist on repeating this over and over again every time we ARE talking about something that was illegal? That helps no one. Not the point. DC attorney says that he never disputed, and so they assume the debt is valid. He did dispute, and can prove that they are aware of it. Whether or not they send standard information aside from that changes nothing about that being a violation. Again, not the point. Debt collectors are not permitted by FDCPA to misrepresent the amount, character, or status of a debt. DISPUTED is a status. They are not allowed to claim it's not disputed when it was. Hence, violation. Whatever they sent after is irrelevant with respect to this one point. Not necessarily true. First, FDCPA gives you only one year from when the violations occurred. After that the time to sue over that violation has run out. Wait too long, and you end up with nothing. But we also do not know how much this debt is. If it's a smaller amount, then FDCPA violations might be enough leverage to make them go away. Wheels up, Stick
  7. Howdy, Not so sure you can go after him in this way, at least, not sure that you can in a way that would get you anywhere. You can sue anyone, really, in civil court, over any kind of dispute. Does not mean that you will win your case. What it sounds like you are saying to me is that your ex spouse intentionally used this unlicensed tax preparer, is that correct? If your ex did this with any intention to get money that he had no right to, then you can sue your ex directly. At the end of the day, he would be the one who committed fraud and benefited from the money. Your ex can also be reported to the IRS for tax fraud, and they very well might arrest him for this. Wheels up, Stick
  8. OK, first thing's first. Your answer can simply deny each claim they make about you owing them the debt. You said that you have documentation showing that the debts were created through hospital error. Now would be the time to get that proof ready. By the way, what kind of documentation do you have that shows this? You can respond to each point that they listed in the complaint. I would affirm only the statements that are true, such as you being a resident of whatever county, and so on. Is the county where this was filed the same county you lived in in Colorado just before you left the state? If not, then you have an additional defense. Obviously, if they stated you lived at the address where service was supposedly performed, then you would deny that one. It might be easier if you posted up for us to see the complaint. Affirmative defenses, this is key. You MUST state affirmative defenses at the time you respond. If you do not, you might not be able to use them later. You have one affirmative defense already, and that is improper service. You would just state something like this: Defendant claims the affirmative defense of improper service. Plaintiff claims to have personally served defendant at (state complete address here). Defendant has not lived at this address since (year), and could not possibly have been served personally at this address. At the time of the Defendant's visit to (hospital), which is the subject of this lawsuit, Defendant lived at (correct address). Plaintiff, by its claim to now be the holder of the alleged debt, should no doubt be aware of the Defendant's more recent address as listed on hospital paperwork, and yet still claims personal service at an address that has not been valid in __ years. I tend to get wordy, so tailor that to suit you. The important part is that you are claiming improper service because they lied about having personally served you. And, while a process server actually does the serving, the truth is that the plaintiff supplies the address(es) that are to be used to attempt service. The plaintiff either had to know that this was an incorrect address, or else they do not have any paperwork whatsoever about this supposed debt in their possession because as you say, the paperwork shows a more recent address. Then, if you were last living in a different county in Colorado than where they filed the suit, you could also state the affirmative defense of improper venue. Is your defense bulletproof? I don't know. It would depend on what proof you have showing that the debt was created in error. If you get the case dismissed for improper service, they can just serve you at the proper address, which would now be a little tough, since they would have to start off in your current location, in a different state. But as mentioned, you were in CO when this started, so CO is the correct place for the time being. Clydesmom is correct on this one. They do not have to send you anything or offer you a chance to dispute anything before suing. Pre-judgment interest, if allowed, should be stated in the agreement that you would have signed at the hospital to be responsible to pay the costs of service. If you have a signed agreement that does not permit interest to be charged, then generally they cannot add interest. But they CAN add collection costs, and most likely that agreement you signed would allow for that. In this case, it does, because the unethical things that he's alleging took place are also illegal. It is not ethical to falsify process service claims, or for the JDB to provide old addresses when they should know that those are old addresses. It's also not legal for those things to occur. It violates FDCPA as well as state rules of procedure. And in many places, he could go after the process server for filing a false proof of service with the court. That's fraud upon the court. And if he can show that the JDB had a hand in it, which would probably not be that hard in this situation to do, then he can make a case for fraud upon the court by them intentionally trying to get a default judgment through dishonest means. I agree, unethical does not always mean illegal. But in these instances, it does. Clydesmom again is correct, though the 6 months really does not come into play. Once you move, and are no longer physically a resident of that state, then it would be improper venue for a debt collector to file a lawsuit. But since you were still living there when it was filed, as said, then the lawsuit is in the proper venue. Well, it's in the proper venue as long as it is in the proper county. How is he skating on thin ice? Granted, we have yet to see the proof he's got that this debt was erroneously created, but he said he has documentation to show that the debt is an error. If he has what he says he's got, then there is no thin ice. Even if the court were to ignore the fraudulent "personal service" nonsense, if he has documentation to show that this debt was really nothing more than a billing error, then that would make his defense pretty solid, would it not? Wheels up, Stick
  9. Did you ever agree to owing any money on this account? They are claiming to the court that you agreed previously with the plaintiff that you owed them this money. They state that "business transactions"took place. did you have any business communication with the plaintiff before the lawsuit was filed? Wheels up, Stick
  10. TCPA is a "per violation" law. You will want to get a subpoena for your phone records when this goes to court. Cell phone companies often do not show you all the calls that came to your phone on the monthly bill, especially if they called and you never answered the call. It's important to note that TCPA does not require you to answer the call for the call to be a violation. Wheels up, Stick
  11. Howdy, First, how can you prove your allegations? If you can prove, for example, that they sent you a letter at your current address, and then attempted service at a different address at a later time than the letter came, then you would have potential proof. Did they claim that you were personally served at that address? If so, you could also have a complaint against the process server. But a lot of info that could help to determine what the answers are is missing from your post. Did you ever file any answer or take any other action in the court? Did you ever check the docket to see what they claimed about service being served? Did you live in Colorado when the lawsuit was first filed? These are things that will clarify what they have done and what you should do next. Wheels up, Stick
  12. Howdy, There are two statute periods for a debt. One is for how long it can be reported on your credit report. The other is how long they can sue you over it. They are not always the same, you need to check your state's laws on debt statute of limitations to know. What state are you from? If your state's SOL period has already expired, then you need to find a way to document what they said to you on the phone. They cannot tell you that they will sue you if the SOL has expired, it violates the FDCPA and you can sue them for $1000 for that. But you need to be able to prove that they said this to you. It all hinges on what state you are in. Wheels up, Stick
  13. This might help: http://www.sado.org/fees/2007-04-05%20Def%20Motion%20for%20Summary%20Disposition.pdf Whenever I am looking for examples of a legal motion or document, I always type "sample summary disposition", and thats how I found this example. Wheels up, Stick
  14. There is no real average or ballpark. Every case is different. Sometimes, you have a counter claim that you can at the least use as leverage, and at most offset or even outpace their original claim. Sometimes, a case never sees the inside of a courtroom because the parties settle it first. Suppose you end up having a really good counter claim. You might find an attorney who would take the case on contingency and then apply the leverage to the debt collector to make them settle. Also, you might have a case where certain defenses are enough to stop their complaint cold. Wheels up, Stick
  15. Technically, you could walk away from this with more than $2000 in your pocket, because while FDCPA is $1000 no matter how many times they violate, FCRA is per violation. Three entries on your credit reports means three separate violations. However, the only way you can take private action is to dispute these entries through the credit bureaus. You mentioned that you did that,so after the results from each bureau come back, if they all three verify, you might be in luck for more. FCRA allows $1000 per violation if I remember correctly. Wheels up, Stick
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