RHE

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  1. Claim A plaintiff is OC Discover Card (Delaware) for ~$7K from 2014-2015 (status: first court hearing tomorrow), account closed 2016. SOL appears to be 6 yrs. Credit report says status is "In Collections/Charge-off", and remarks say "Charged off as bad debt. Account information disputed by consumer, meets FCRA requirements." Claim B is JDB Calvary for OC Citibank for ~$6K (status: garnishment judgement set aside, hearing in ~1 month). Credit report says account status is "open", remarks "Account information disputed by consumer, meets FCRA requirements". SOL unclear. My correspondence has been repeated attempts to resolve with offers of compromise at the 10%-15% level. Response has counter offering ~90% while garnishment was in effect, no counter offer since garnishment was quashed and money ordered returned.
  2. Need some advice on a topic I raised here before. Lawfirm "LF" is counsel for two separate CC debt claims, A and B. On claim A, they filed a Complaint, I filed an Answer, and it's set for hearing tomorrow. I've been seeking to negotiate an offer in compromise, but no agreement so far. I don't have an atty, but I am seeking one last minute - absolutely don't wan t to be in court pro se. Claim B failed to provide proper service to me, got a default judgment without my knowing, and I only found out about it after my employer notified me of garnishment. They garnished several checks before I filed a motion to set aside the judgment that was granted, and LF had to return all the money and the judgement was vacated and set for hearing in about a month. So now I'm facing both claim A and B, with a hearing on A this week, and B end of July. I'm seeking to settle both out of court via offers in compromise, but LF is unwilling to settle for less than ~90+% of the disputed amounts. So, I'm wondering: Should I get an attorney? How can I buy more time for negotiation? Should I share with LF litigation atty documents that show how I got into this mess (huge alimony & child support awards that took most all my income) in hopes of them seeing I'm in a hard spot to offer more? Totally worried a second garnishment might get me fired. What can I do? Other advice?
  3. So, an update on this situation, and a request for more input ... M&J is the attorney for two of my CC debts, the first is the content of this thread. On that one, they filed a Complaint, I filed an Answer in time 3 weeks ago, and I haven't received or heard more about yet. On the second CC debt represented by M&J, unbeknownst to me, the creditor has received a default judgement of $5600+ (I was not served). I learned about it from my employer notifying me of a very hefty garnishment of my check in an amount that will take me under ($1300/paycheck). Now, M&J's first-line debt negotiator says he can no longer speak to me, saying I have to talk to what appears to be one of their contract attorneys, who I've been unable to reach today. I am hoping for agreement on an offer-in-compromise, and an agreement to make some sustainable level of payments on that OIC, which cannot be nearly as much as they want ($300/month for one of them). I had a financially devastating set of financial losses, and have possibly 3-4 more of these likely lining up to come at me, and beginning to think about bankruptcy just to be able to pay the rent. Just looking for advice before I speak with their attorney ...
  4. It is an interesting question as to what extent a company can, after availing themselves of the business & legal conveniences of Delaware law, then opt out of selected laws such as the 3-year SOL through a cardmember agreement.
  5. Agreed, precedence of contract vs "borrowing laws" & "conflicts of laws" appears to be the question. Based on a very novice, superficial review of case law, I suspect the latter wins. Question: Can one amend one's filed Answer (i.e., file a modifed answer) the day after filing the Answer in Colorado?
  6. CO Rev Stat § 13-80-110 (2016): "If a cause of action arises in another state or territory or in a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign country by reason of lapse of time, the cause of action shall not be maintained in this state." I'm no lawyer, but I'm inclined to interpret this to mean that it doesn't matter what the Cardmember Agreement says, it cannot override the law, and that the shorter SOL of the states involved is what applies. Thoughts?
  7. Discover's Cardmember Agreement states: "This agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply without regard to that state's conflicts of laws principles or its 'borrowing statute.'" Does this term of the CA take precedence over SOL laws?
  8. BV80: From a variety of sources online.
  9. Thank you all for these very helpful and informative responses and resources. I want to avoid a default judgment, and hope to negotiate an offer in compromise. Since none of the debt buyer Affirmative Defenses apply, what is important to include in my Answer as Affirmative Defense to the creditor? What else do I need to know?
  10. Summary: I'm being sued by debt collector, and I need guidance on Answer in response to Complaint by 5/2/2019. Questions at the very bottom. Thank you. 1. Who is the named plaintiff in the suit? Discover Card 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) M&J LLP asserting they are attorneys for Plaintiff Discover Bank 3. How much are you being sued for? ~$7K (I have several other similarly sized credit card debts I anticipate similar Complaints for) 4. Who is the original creditor? (if not the Plaintiff) Discover Bank 5. How do you know you are being sued? (You were served, right?) Served a Summons & Complaint April 2019 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes, I think so. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? I previously wrote them sometime in 2016 with an offer-in-compromise of 10% of outstanding balance, and again with the same offer after receiving Summons in April 2019. I have never received a response. They called recently, and left a call-back message, but I have not returned the call. I have since learned that I don't know if they are legitimately entitled to anything due to various Affirmative Defense reasons. 9. What state and county do you live in? El Paso County, Colorado 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Last Pay Date - Oct 2015 11. What is the SOL on the debt? To find out: 6 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Summons/Complaint for Money Due - Dated 3/19/2019 Served Summons/Complaint - April 2019? Not sure exactly. Complaint Answer Due - 5/7/2019 (but I'll be out of state and so must file by EOB 5/2/2019) 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. Debt was "Charged off as bad debt. Profit and loss write-off” by Discover in April 2016 (per my credit report). 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I must respond to Complaint by 5/7/2019. Complaint: “1. Venue is proper as Defendant resides ... 2. The amounts the Plaintiff claims from the Defendant are $xxxx which represent the liquidated balance of the Defendant’s credit car account owed by Plaintiff, less credits of $xx, plus court costs. 3. The Plaintiff’s claim arises from the Defendant’s failure to pay the liquidated balance due on credit card account xxx as required by cardholder agreement. The Plaintiff claims the right to recover from the Defendant under one or more of the following legal theories: Breach of Contract, Liquidated Debt arising out of a Contract under C.R.S 5-3-304, or Unjust Enrichment. 4. The Plaintiff request interest on any judgment entered on the Plaintiff’s claims in this case to accrue at the rate of 8% per annum compounded annually fro the date of the judgment, pursuant to C.R.S. 5-12-102. 5. The Defendant is not a minor ... 6. The Plaintiff does not demand a trial by jury.” 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent: a copy of the Complaint; the last credit card statement before the account was closed; a stock fine-print copy of the Cardmember Agreement (no signatures); an ANSWER form; their contact information & payment information. I've since learned I need to file an Answer by 5/7/2019, with admit, deny, or lack of knowledge for each of their numbered allegations (but I'll be out of state and so must file by EOB 5/2/2019). Here's my draft response: I. ANSWER In answer to paragraph 1, Defendant admits he resides at the stated address, but lacks knowledge to admit or deny the allegation of whether this is the proper venue, and therefore Defendant denies the allegations. In answer to paragraph 2, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations. In answer to paragraph 3, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations. In answer to paragraph 4, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations. In answer to paragraph 5, Defendant admits the allegations. In answer to paragraph 6, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations. II. AFFIRMATIVE DEFENSES Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited. Plaintiff has failed to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action. Plaintiff has knowingly filed the claim without presenting any applicable original signed contract. Insufficient Specificity. Plaintiff has failed to provide the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items Defendant can admit and what items he can contest. Failure of Consideration. No exchange of money or goods occurred between the Plaintiff and the Defendant, therefore, defendant cites Failure of Consideration. Repudiation. Plaintiff is not named in any alleged signed agreement that is purported to have been entered into between Defendant and Plaintiff. Lack of Privity. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff. Plaintiff's complaint violates the Statute of Frauds. There is no contract or agreement in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for a debt. Scienti et volenti non fit injuria. Plaintiff claims to have purchased the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages. Laches. Plaintiff waited too long to file this lawsuit, making if difficult or impossible for Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed. My questions: 1. What am I missing? 2. What have I added that doesn't apply? 3. M&J is listed as attorney's for the plaintiff. How is that different from a debt collector who bought the debt? 3. What if anything should I say regarding a jury trial? 4. The Cardmember Agreement provides for arbitration. What if anything should I say about that? 5. Other thoughts/advice?
  11. Deleting my post to instead post in fresh thread since it's new topic.