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Andyt293 last won the day on February 27 2011

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About Andyt293

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  1. Do not write the court. It is a waste of time and will not affect the outcome of your case. Your only required communication with the court is your notice to defend. Magisterial District Court is VERY informal. There is no stenographer and the only written account (not record) of testimony is whatever notes the "judge" writes on a scrap of paper. Show up, deny everything, question everything the lawyer says and object to anything that you feel is testimony. Question affadavits. Bring up the wrong address as an issue. Do everything you can to bring a cloud over the proceedings. Be assertive and respectfully demand dismissal with prejudice.
  2. Put the Constable issue aside for a minute. He served you, you responded to the Magistrate and informed the office of your intent to defend. Now it is time to defend. First and foremost. You need to show up at the hearing. There is a 50/50 chance that the LVNV lawyer may not show up. If you both fail to show for the hearing LVNV will get an automatic default judgment against you. If you show up and the LVNV lawyer fails to show then you can request dismissal with prejudice (Inform the Magistrate that you never lived in the county, are not aware of the company, et cetera). If the lawyer for LVNV shows up, then you can bring up the wrong address, deny any knowledge of LVNV and ask the lawyer (in court) lots of questions. Remember, the lawyer cannot testify for his client. Emphasis added here. I would not, repeat not talk to the lawyer before the hearing unless you are willing to work out some kind of payment. Again, you may get lucky and not even have a lawyer show up. LVNV is so used to getting default judgments that they are poorly prepared when someone shows up to fight.
  3. My experience has been 100% positive in regards to electing arbitration in a DV letter. My last encounter was with a law firm representing LVNV who bought the debt from Chase. I received a phone call from a "non-lawyer" who attempted to collect a debt. I told him once I received their letter that I would respond with a letter disputing the amount of the debt and that I was electing arbitration. The collector informed me that the letter had already been sent. Sure enough, I received their dunning letter the next day and called the firm back to obtain their fax number as it was not listed on the letter. I gave my case file and was informed that the account was already sent back to LVNV. I know that they are some members on this board who feel that electing arbitration in a DV letter is like admitting to the debt, but I disagree. My feeling is that there is nothing wrong with coupling a general denial of the debt with a specific demand for arbitration. Unfortunately because far too many people do not understand their rights or have the wherewithal to fight back, it is easier for a collection agency to go on to their next victim than to respond to a fight.
  4. This has been my experience as well. I've sent out intent to sue letters that get usually get ignored, but once I file a civil complaint in my state's version of small claims court, I quickly receive a phone call from an attorney looking to settle.
  5. Chase is really screwed up right now. Lots of internal problems with record keeping. My "account" First Heritage Bank was sold by Chase to LVNV Funding who sent a collection law firm after me. That was a fun conversation considering I never had a First Heritage account ever. In desperation, the collector finally said, well did you some kind of Chase account? From First Premier, or WaMu or Provident? I had to put the phone down for a minute I was laughing so hard. Finally I said, tell you what, you figure out what company I supposedly owe money to and get back to me. So, I would follow all of the very good advice given above and deny everything. Question everything and make them jump through hoops. If they bring up ADR again, say sure, lets go through JAMS.
  6. So with that language, a person could live in say West Virginia (5 year SOL), and assert that a Chase Card has a SOL of three years (Delaware law), Capital One has a SOL of three years (Virginia law), etc. Concur?
  7. Debt validation letters and the FDCPA for that matter have no bearing on original creditors such as Chase. I don't see you having much of a claim against the collection agency if you sent a DV letter to Chase.
  8. Perhaps filing a motion to dismiss based on VA Sol. Check around and see if you can find a Cap One agreement. I'm pretty sure it states VA law shall prevail. I know there was a similar case in Pennsylvania.
  9. File the suit. When Global's hired gun attorney calls you, you will have a litany of violations to share with him. State your case calmly and in an organized manner as if you were in court. "Global violated the FDCPA by doing this, this and this." If you do that, two things will happen; you will get a check for about $750 plus your court costs and you will never here from Capital One again. Or you can file multiple lawsuits which will be vigorously defended and eventually consolidated into one case and you will still only end up with $1000.00 I'm a little pigs get fed, big pigs get slaughtered kind of guy. True Story. I recently sent out an Intent to Sue letter to a collection agency masquerading as a hospital billing office. Received a phone call from in house counsel about an hour ago. I pointed out several instances of what I felt were violations of various statutes; FDCPA, TCPA, State laws you name it. Company is definitely operating in the gray area. After a great deal of back and forth (no yelling or arguing, just making our respective points), counsel sighed and said "How about I send you $700 to go away?" I could have stuck to my guns and pursued the matter and had my name attached to case law but for what purpose? I would be out a lot of time and would only be $1500 richer instead of $700. These companies are not going to change the way they do business until more people go after them. And when they die, it will not be from one mortal blow, but instead it will be from a thousand paper cuts. Be one of those paper cuts.
  10. Some great reading. Law Firm Letterhead Can Imply Threat, Magistrate Rules Shannon P. Duffy The Legal Intelligencer June 18, 2010 Sometimes a letter can be deemed misleading just because it came from a lawyer. A federal magistrate judge in the Middle District of Pennsylvania has ruled that lawyers who act as debt collectors cannot use their law firm letterhead for collection letters unless a lawyer has reviewed the file and the firm is truly poised to file a lawsuit. U.S. Magistrate Judge Andrew J. Smyser ruled that two letters from a New York lawyer amounted to clear violations of the Fair Debt Collection Practices Act because the use of law firm letterhead gave the false impression that a lawyer was working on the case and planning to sue. "The least sophisticated consumer would be likely to believe upon receiving a communication from an attorney for the lender that the debt collection process has entered into a phase where the lender through its attorney will begin to use procedures established by law and known to attorneys to collect the debt," Smyser wrote in his 22-page opinion in Lesher v. Law Offices of Mitchell N. Kay. "A law firm's letter does bear an implied threat of litigation, and does connote that it is a communication from an attorney," Smyser wrote. Smyser rejected the argument that the letter could not be deemed misleading under the FDCPA because it included a sentence that explicitly said: "At this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account." Instead, Smyser said, "in our view, that language does not mitigate the impression of potential legal action." Smyser granted summary judgment in favor of plaintiff Darwin Lesher on two of his FDCPA claims. By statute, the remedy for such claims is a $1,000 award to the plaintiff and an award of attorney fees. Lesher is represented by Deanna Saracco, a sole practitioner in Enola, Pa., and Laurence J. Rosen of Krevsky & Rosen in Harrisburg, Pa. In an interview, Rosen said that he and Saracco have not yet filed their fee petition. According to the suit, Lesher took out a home equity loan from Washington Mutual and fell behind on his payments. He now disputes the debt and how it was calculated. Washington Mutual referred Lesher's file to attorney Mitchell Kay who sent letters to Lesher on his law firm's letterhead in January and February 2009. The suit alleged that the use of law firm letterhead to collect consumer debts -- when there has not been attorney involvement or attorney review before collection letters are sent to consumers -- is a violation of §1692e(3) and (5). It also alleged a violation of §1692g on the grounds that Kay's collection letter created a false sense of heightened urgency and intimidation, and that there had not been a meaningful review of the plaintiff's account. In court papers, Kay's lawyer, Joann Needleman of Maurice & Needleman in Philadelphia, argued that Lesher's lawyers were making too much of the use of law firm letterhead and ignored significant case law that instructs judges to consider the entire communication. "Plaintiff's entire case is based on the notion that no matter how innocuous or benign the substance of the letter, an implied threat of litigation will exist because the letter came from an attorney. Plaintiff provides this court with no legal support for this proposition, and ... fails to point to anything in the substance of either of the defendant's letters which would violate Section 1692e(5) by suggesting such a threat," Needleman wrote. Needleman urged Smyser to adopt the reasoning of the 2005 decision in Greco v. Trauner Cohen & Thomas from the 2nd U.S. Circuit Court of Appeals which held that a collection letter from a lawyer is not misleading if it contains a statement that no attorney has yet reviewed the account. In that decision, Needleman said, the 2nd Circuit held that such language -- which was also included in Kay's letters -- was adequate to dispel a possible inference of the debtor that a particularized analysis had caused the attorney to have decided to pursue a collection process through litigation. But Smyser found that case law from the 3rd Circuit says a debt collection letter is deceptive where it can be reasonably read to have two or more different meanings, one of which is inaccurate. In Rosenau v. Unifund Corp., the 3rd Circuit applied the least sophisticated debtor standard in holding that a letter that closed with "Unifund Legal Department" in place of a signature could be read also falsely implying that it was from an attorney. Refusing to apply the 2nd Circuit case, Smyser concluded that the use of law firm letterhead created a deceptive meaning. "Although an attorney may be acting solely in the capacity of a debt collector and may not be communicating any explicit representation of a future course of action, when the attorney acting as a debt collector uses law firm letterhead the attorney acting as a debt collector plainly is communicating to the debtor in his or her capacity as an attorney," Smyser wrote. "Therefore, since it is an attorney's communication, the implication is not avoidable that a threat of litigation is being presented to the debtor," Smyser wrote. The least-sophisticated consumer, Smyser said, "would be likely to believe that the law firm is acting as an attorney for the lender in communicating with the consumer concerning the loan." Such a consumer, Smyser said, "is reasonably expected to believe that a law firm is comprised of attorneys and that it does legal work." In the context of a debt, Smyser said, the fact that a letter comes from an attorney has "a particular well-known and well-understood effect."
  11. Was the letter signed by an attorney or a non-attorney employee of the law firm? Some very interesting reading here:
  12. Sue Global and forget about paying Capital One. If you send Global a letter, you will receive a letter in turn from Cap One explaining that they received your correspondence and need more information from you (like your account number). File a complaint in small claims court and wait for a phone call from an attorney who will have no idea what is going on except that you are suing his client. Explain to the attorney about the FDCPA violations and ask for money in exchange for withdrawing the civil complaint. Took me about two weeks to settle. Can't say for how much , but everytime I see a Cap One ad I think about the plane tickets to Florida I bought for my family recently.
  13. The lesson here is always show up for court. Good job Mezzy.
  14. A couple of points here. There will not be anything on file at the courthouse. OP is being sued at the District Justice level; Pennsylvania's version of small claims court. Capital One is going this route more and more because it is a very inexpensive way to file complaints. For about $95 you can file a complaint seeking a judgments up to $8000. The "clerk" you spoke to was actually a secretary. The wife, daughter or niece of a politician who got her job through connections. She has no legal training. The "judge" in fact, probably only has about six weeks of legal training. Filing sworn denials, motions for summary judgment, dismissal etc. are a waste of time. A junk debt buyer (JDB) like LVNV files suits and complaints like this all the time betting the odds that defendants won't show up resulting in a slam dunk judgment. Your best bet is to show up, explain that the debt is past the statute of limitations and ask for a dismissal with prejudice. You can also bring up the matter of standing and whether or not LVNV owns the debt.The good news is that these hearings are very informal and there is no written record of your testimony. Don't be intimidated at this hearing. Stand your ground and fight. The worst thing that can happen at this level is that you get a judgment against you. Then you can go to the courthouse and file an appeal. It costs about $80 and if you can't afford that, you can file paperwork to have fee waived. At that point the lawyers for LVNV would have to draft a formal civil complaint and start all over as if there was never a case filed at the DJ level. At this point you can do a sworn denial, etc. You might even have a counter claim of Fair Debt Collection Practices Act violations here in that LVNV is filing suit after the SOL is past. Good luck.