USofA

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  1. Perhaps I did not make myself clear. Under the FDCPA there is never injunctive relief for a consumer. That is limited to States and the FTC. However, the law says and those cases back up that if you timely DV the debt collection attorney must suspend the suit. If they do not, then they have violated the FDCPA and created a new cause of action. I agree that you can not force a judge to throw out a suit because you have timely DV'ed and they continue to prosecute, but I have personally brought this up in a motion to continue, had the motion granted by the judge until such time as the Plaintiff
  2. Additionally in In re Martinez, 266 B.R. 523 (B.S.D. Fla.), aff’d, 271 B.R. 696 (S.D. Fla. 2001), aff’d, 311 F.3d 1272 (11th Cir. 2002), the court found that the summons and complaint overshadowed the validation notice in an FDCPA suit.
  3. You want case law? How about Romea v. Heiberger & Assocs, 1998 WL 35112, 97 Civ. 3014 (S.D.N.Y. 1998); Soho Tribeca Space Corp. v. Mills,N.Y.L.J., May 13, 1998 at 28, col. 6 (N.Y. Civ. Ct. May 13, 1998); Dearie v. Hunter, N.Y.L.J., Jul. 8, 1998 at 31, col. 3 (N.Y. Civ. Ct. Jul. 8, 1998) All three of these stop the suit because of debt validation problems created when notice of the suit started the 30 day clock and defendants requested validation. I believe that now we can put an end to the URBAN MYTH and accept the case law.
  4. After you file answer and motion to dismiss, if it is dismissed you can think about sueing the attorney. But first you must determine if the attorney is a debt collector. If he does not do a signifigant amount of business collecting debts he is not covered by the Fair Debt Collection Practices Act.
  5. If you do not have any witnesses, you would state that there. As for the comment to say "Defendant is without sufficient knowledge as to make any statement regarding this question", I would caution you against that type of answer to an interrogatory. Fed Rules Civil Proc and most state Rules of Civil Proc do not provide for this type of answer without an assertion that you have made a reasonable attempt to get the information. Finally, that answer would not apply. If you used an answer like that, the other party could file a motion for a more complete answer or to compel you to answer. If
  6. As for filing a dispute in TX, under the TX Fin Code, If you dispute they must respond within 30 days. And all disputes are timely, you are limited to the first 30 days after initial communications. Also, you do not need to do anything other than say you dispute. If you file in state court, you can file claims under both the FDCPA and TX Fin Code. If you file in Federal Court (the best place to file) you can also claim the TX violations under supplemental jurisdiction. In addition, besides by violating the TX code they have violated the FDCPA.
  7. No, its not useless. If you DV they have to stop their case until they provide validation. If they do not, you can counter sue for FDCPA violations. Never EVER, Under ANY circumstance, do you want to give up any rights to a creditor that is sueing you. To say otherwise is just plain bad advice. In other words, You have a right to discovery. You contend that they dont have evidence, so why bother requesting discovery—they won't have any of the documents. That would be just as foolish as saying give up your right to DV a CA. (if within the first 30 days of initial communications). USofA
  8. Just so you know, the rules you are quoting are for service of motions and other documents after the initial personal service. you need to look up the rules for personal service for your state
  9. I would claim that NH SOL has run and that the case is time barred. I would quote the above case as precident. Good Luck
  10. here is how i would proceed. Send them another copy of your responses to their diecovery requests with some form of delivery confirmation or signature required. File the certificate of service for this second reply with the court. Prepare and file a response to their Motion for Saummary Judgment. Address every argument in their motion. Include that you answered their discovery requests on XX/XX/XX. Include copy of your response and certificate of service as exhibits. Remind the court that under the common law post office rule, an item mailed is presumed received by the recipient. File a resp
  11. If they want to refile, they only have one month to do so. The last payment was 2/9/3 so the SOL would normally be up now. However, it may be tolled (paused) for the time that the previous case was at bar. Just add the time that it was tolled to the expiration on 2/10/08 and you get a new SOL that expires in May. After that date, it is SOL (5 years on written) and any attempt to file is a violation of the FDCPA you can counterclaim for.
  12. Under the FDCPA they would have to sue you in MA. The suit can not be filed in NH. However, that said, under the terms of the contract, the MA court would have to proceed under NH law for substantive matters. Statute of Limitations is considered procedural in most states so in most states, even when important foriegn law, the statute of limitations would be the local SOL. In laymen's terms, in most, if not all, states you must use the local courts statute of limitations. None of that, however, precludes you from raising the SOL in NH as a defense and you may be lucky and get it ruled two late
  13. Start reading the rules of civil procedure for your local court. Take advantage of the fact that you know what is coming. Also, time to start preparing your counter claim USofA
  14. I would get ready to go it alone. It is not that difficult. If you get a summons, begin to prepare your "Answer" to the complaint. With your answer you can file a counter-claim for violations of the FDCPA. Your first Cause of Action (COA) is for failing to cease collection efforts when you requested the validation of the debt within 30 days of the initial communications. Second COA is for false and misleading statements. They include the date on the letter.With a little more details, I am sure we can dig up other technical violations. Legal action is a dance. And a mental game. By filing a cou
  15. Just a few thoughts. The FDCPA has a one year statute of limitations, so any violations (there are many) would have to be within the last year to file any action. However, that said, the SSCRA tolls the SOL so you dont count the time in service. So if you were on Active Duty when they filed the false affidavit, you have one year after discharge to take legal action Under the SSCRA, is there a right to void a default judgment entered if certain conditions are met. They include 90 days after leaving active duty to reopen the judgment if you have not made any appearance, pro se or with an attorne