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trial date 7/22/03 HELP!!!


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I am intimidated by this trial thing. I wrote a letter to the CA and the attorney representing them stating the sol has expired. (original debt 11 years ago) I advised them they are breaking several laws and threatened that unless they drop the case I would sue. I was hoping this would provoke them to drop, but as of today, I have heard nothing.

What do I need to bring to court with me and what can I expect? I am afraid I'll lose even though I know the debt is way past the 5 year sol for my state.

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I just won over a CA in court a couple of weeks ago.

Make copies of EVERYTHING that has to do with your account and your state's SOL. Run off a copy of the Truth in Lending act that states credit cards are open accounts, as the other lawyer will undoubtedly say it's a written contract. You have to teach the judges in a lot of cases.

Check to make sure that the CA is licensed in your state if they have to be. Contact the state and get it in writing if they are not. Most CAs depend on a third party to make sure they are licensed in each state, and a lot of times are not.

Make copies of everything that you can. Check over the original filing and make sure its your account. Make the CA prove that it's your account they are collecting with a signature of when the account was opened, and proof they indeed bought the account from the OC. If you have anything with dates on it, take it. If you have a hard copy of something, they have to have a hard copy to disprove it. Make them prove EVERYTHING with paper. Most accounts are bought in bulk and the CA rarely has proof that it is indeed your account.

Don't be intimidated. The lawyer is going to be cocky and figure you aren't going to show. Keep things simple and to the point for the judge. Ask the lawyer to prove whatever he says with something in writing with your signature.

Good luck, and relax. Have a little fun with it. :wink:

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Keep it short, simple and to the one or two points that you can hammer them with. Most of the time you only get 6-8 minutes to make your case.

Be prepared and don't let them intimidate you. They are lower than pond scum and they don't know squat about the laws.

Make sure you can support your points WITH LAW (FCRA/FDCPA and any applicable state law) and have copies for the judge/commissioner, etc.

I had a bunch of violations against EQ when I took them on, but only had time to really argue 2 items. I actually took some Inderal (lowers your blood pressure and is used by snipers/professional shooters to control their breathing) to get calm! LOL!

I won part of the suit (re-insertion of bogus addresses), but lost on another (tradeline deletion) that eventually came off.

HTH

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I am afraid I'll lose even though I know the debt is way past the 5 year sol for my state.

If you are certain that the SOL has elapsed on this debt, then I would seriously consider filing an FDCPA counterclaim against the attorney personally for violating section 807 (2)(A) the false representation of the character, amount, or legal status of any debt..

I just did this in a suit and it was dropped IMMEDIATELY.

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I am afraid I'll lose even though I know the debt is way past the 5 year sol for my state.

This is an ABSOLUTE defense, they CANNOT legally sue you and win if the SOL has run, they are counting on you to not know this. It is your responsibility to bring it to the judges attention but if it's run, that means it's a time-barred debt and they cannot win.

Listen to Wert though and prepare accordingly, he's recently been to court and won and did AWESOME.

Hi,

I have appear soon, too. Where could I find printable FCRA law?

There's TONS- you just need to be a little more specific

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Thank you for all your wonderful advice. I really appreciate it.

The reason this is so disturbing, is that I have the "original" last bill from the creditor, showing the date I last paid. I have credit bureau reports for every year for the last 5 years which shows the date of last activity from the original creditor and the upteen collection agencies that had the acct. I wrote not only to the ca but the attorney representing them with this information but alas the case still has not been dropped.

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Contacting the attorney ahead of time is a waste of time.

They hope you won't show up for court so they win. Also, a lot of judges aren't up on credit law. You have to teach them. Again, make copies of everything and keep it simple.

Good luck

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I am intimidated by this trial thing. I wrote a letter to the CA and the attorney representing them stating the sol has expired. (original debt 11 years ago) I advised them they are breaking several laws and threatened that unless they drop the case I would sue. I was hoping this would provoke them to drop, but as of today, I have heard nothing.

What do I need to bring to court with me and what can I expect? I am afraid I'll lose even though I know the debt is way past the 5 year sol for my state.

Going to court can definitely be a blood pressure raising experience, but you can do certain things in advance to boost your confidence and soothe your nerves. My first three suits against CAs were just heard, and even though I prevailed in all three cases, my anxiety level was still beyond description.

1) Decide the MAIN points you're going to argue; 2) collect and chronologically assemble all evidence relating to those points (including photocopies of envelopes showing postmarks); 3) find and photocopy the statute(s) that apply to each particular point (make sure to use a highlighter to amplify the applicable verbiage; 4) head to court.

I also recommend doing some research on the judge(s) of that particular court division (length of time on the bench, political affiliation, general reputation, etc.). This helps you in your approach to him/her, and approach carries a lot of weight.

As for your individual case, the SOL seems to be the most obvious defense. But take heed.... if you have done ANYTHING to RESET the SOL, that defense won't usually be available to you.

The lawyer's suing AFTER the SOL has run is certainly an FDCPA issue; however, one must wonder why he/she sued anyway and didn't address your concerns about the SOL. Perhaps he/she feels that you've done something to reset it, and that it's not applicable as a result?

Did you send them ANY money at any time after the SOL ran?

If it were me in your case, that would be the only hurdle I'd worry about.

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I am intimidated by this trial thing. I wrote a letter to the CA and the attorney representing them stating the sol has expired. (original debt 11 years ago) I advised them they are breaking several laws and threatened that unless they drop the case I would sue. I was hoping this would provoke them to drop, but as of today, I have heard nothing.

What do I need to bring to court with me and what can I expect? I am afraid I'll lose even though I know the debt is way past the 5 year sol for my state.

Going to court can definitely be a blood pressure raising experience, but you can do certain things in advance to boost your confidence and soothe your nerves. My first three suits against CAs were just heard, and even though I prevailed in all three cases, my anxiety level was still beyond description.

1) Decide the MAIN points you're going to argue; 2) collect and chronologically assemble all evidence relating to those points (including photocopies of envelopes showing postmarks); 3) find and photocopy the statute(s) that apply to each particular point (make sure to use a highlighter to amplify the applicable verbiage; 4) head to court.

I also recommend doing some research on the judge(s) of that particular court division (length of time on the bench, political affiliation, general reputation, etc.). This helps you in your approach to him/her, and approach carries a lot of weight.

As for your individual case, the SOL seems to be the most obvious defense. But take heed.... if you have done ANYTHING to RESET the SOL, that defense won't usually be available to you.

The lawyer's suing AFTER the SOL has run is certainly an FDCPA issue; however, one must wonder why he/she sued anyway and didn't address your concerns about the SOL. Perhaps he/she feels that you've done something to reset it, and that it's not applicable as a result?

Did you send them ANY money at any time after the SOL ran?

If it were me in your case, that would be the only hurdle I'd worry about.

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I know for a fact that the sol has not been reset. I have never made arrangements for this debt to be paid. I have never made a payment. And I have never had a judgement placed against me with regard to this debt.

About 3-4 other collection agencies had this acct and about 2 other attorney's offices had this account. I have pulled my credit bureaus every 7-8 months for the last 5 years and know there have been no judgements.

I explained this all in the letter I wrote to the attorney and the ca. But they still want to go to trial. This debt went into default in 92. I pulled my credit bureau in 98. The date of last activity shows 12/92 from both the ca and the oc. I made copies of this and will present this to the judge. I also have the original bill from 3/93 from oc showing 3 late pymnts that I have made copies of. Thus proving original date of last activity. I made copies of the SOL in my state and will make copies of the Truth in Lending Act.

Hopefully, this will be all the proof the judge needs

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I explained this all in the letter I wrote to the attorney and the ca. But they still want to go to trial.

They don't really want to go to trial unless they have a death wish. What they want is to intimidate you into paying or settlement. If the SOL is up, like Swede said it's an absolute defense. Trust me, if you file a countersuit against the CA and the counsel as I mentioned above...and they still don't drop the suit, you will walk away with cash in your pocket.

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They are fully aware that I will not settle or pay a dime to them. In the letter I sent to the ca & the attorney, I warned them that I would file suit against and listed the sections they had violated in the FDCPA. Unfortunately, trial is on the 22nd, not enough time to file suit right now. As I understand I have a year. When I walk out of that courtroom on Tuesday, I will have the paperwork neccessary to file suit. They are fully aware of all this and still want to proceed with trial. I just dont get it. They know I am not going to settle, they know I am filing a suit against them and still they want a fight. Good grief!!!

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Wow, I guess the 22nd is right around the corner!

Why they would press trial on a time barred debt, even after your letters and the threat of suit, is baffling. The only thing that I can think of is that if this is in small claims they may be relying on the ignorance of the small claims judge. The standards for evidence in small claims are much lower than in a court of record. In some states the small claims justice/magistrate isn't even required to have a law degree (so you can imagine what goes on).

But even in the event that the CA and their counsel should pull some monkey business....and you should lose....all is not lost. You simply appeal and clobber them silly in a court of record.

Definately let us know what happened..... Good luck!

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I am not totally sure this is small claims. The summons came from civil case in the Associate circuit of court.

You have me concerned about "if I lose". If everything I read is correct, the judge will need to dismiss this "time barred collection". I know what I have and can back up everything I say.

I spoke with a friend of mine at Midland, she stated the only legal way they could sue me was if I made pymnt or a judgement was rendered. This would reset the sol. I have made no pymnts and all 3 credit bureaus show no judgement over the last 5 years. They will need to show me written proof if they say otherwise.

Court is tommarrow..Im nervous but pretty confident in my defense. I will let you know what happens.

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Went to court today...The Judge dismissed based upon the fact the other guys attorney did not show up. This is a good thing. The only bad thing is that they can start this process all over again if they choose.

I made the DA mad though. My court time was 10:00am. I show up at 9:25am. I watched the DA go back and forth between the clerks and the Judge. He leaves the courtroom at 9:56am. Finally the Judge asks who I am. I exchange information. He had to ask the clerk to get the file again. When the clerk gave him the file, he stated they needed to contact the DA. It took another 10 mins for him to come back into the court. He told me in a very loud voice that he called me 3 times. He kept telling the judge he did not like this. This was not good. He was standing at the judges bench when he called me right before he left(which is a bold face lie). Anyway, the judge just smiled and stated I was there all the time. When the Judge dismissed the case I followed the Da out, He made sure not to leave the doors open and stomped out. Oh Well.....the dumb a-- walked right by me when he left the first time.

The judge advised me that when this happens again, I should hire an attorney to present my evidence. I just smiled and said thank you. The burden of proof was on the plaintiff, not on me. All I had to do was show my evidence proving my claim. Which to me, was just copies of my evidence. I really did not care for this judge or the DA for that matter. I guess in my state you are guilty until proven innocent.

Next step...taking the plaintiff to court. My question is this: Who do I sue? The attorney who represented the CA or the Ca? I am still thouroughly confused about how much I can sue for. Is it for each offense or just $1000.00 period? And perhaps, I should follow the judges advise and hire a lawyer. Obviously, this judge does not like dealing with the average person.

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Way to go Insider!

You can sue both the CA and the counsel. Usually suing one or the other will suffice. When you sue for FDCPA violations you may be entitled to recover:

1. statutory damages of up to $1,000 per incident.

2. actual damages

3. attorney's fees

If you can find an attorney who will take your case on a contingency, you should definately consider it (or do it anyway :) ).

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Congratulations Insider! Way to stand up for yourself. You did not say who the CA was but there is a Consumer Law Firm in Chicago that you can check out. If they can't represent you, maybe they can suggest someone in your state.

Our practice focuses almost exclusively on Consumer Protection and Class Action Law. Edelman, Combs & Latturner, LLC has won many cases on behalf of consumers, and has helped define important consumer protection statutes, including the Illinois Consumer Fraud Act, the federal Truth in Lending Act, Home Ownership & Equity Protection Act, Fair Debt Collection Practices Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Fair Housing Act, Real Estate Settlement Procedures Act, Racketeer Influenced and Corrupt Organizations Act ("RICO"), Electronic Funds Transfer Act, and Credit Repair Organizations Act, among others.

Here is a link to the list of CA's that are going after: http://www.edcombs.com/FSL5CS/Custom/TOCSpecial.asp

There is contact page where you can shoot a quick message to them. I have seen others say they have even gotten responses on the weekend.

If that doesn't work, the direct link is www.edcombs.com.

Goodluck and keep us posted.

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Way to go Insider!

You can sue both the CA and the counsel. Usually suing one or the other will suffice. When you sue for FDCPA violations you may be entitled to recover:

1. statutory damages of up to $1,000 per incident.

2. actual damages

3. attorney's fees

If you can find an attorney who will take your case on a contingency, you should definately consider it (or do it anyway :) ).

Way to go insider! :)

One important correction to what cybercrusader said:

Statutory damages for FDCPA violations is up to $1000 per ACTION, not per incident.

Best of luck to you insider. I hope you kick their (so deserving) butts.

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One important correction to what cybercrusader said:

Statutory damages for FDCPA violations is up to $1000 per ACTION, not per incident.

Well, excuuuuuuuuse meeeeeeeeeeeee!!!! :) j/k

Yes, absolutely DO NOT want to mislead anybody. What I meant was you're entitled to statutory damages of up to $1,000 per incidence with a CA (i.e, NOT PER VIOLATION). I know this because I just went through the ringer with a CA and paid to get my training wheels removed.. :)

But thanks, Nolo, I'm glad and I can always count on that eagle eye of yours!!!!!

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