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Your Opinions on Settlment


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<blockquote>Originally posted by ShamrockGal

can you explain yourself a bit more?

</blockquote>

What, not enough information for you?

:)

I deleted my original post because I thought I might have put in the wrong section, but then never re-posted. I'll try again.

Essentially, a CA (who I NEVER heard of)sued me in small claims. I asked for sufficient validation and never got it. I appeared in court (by myself) and pleaded my case. Nevertheless a judgment was entered against me.

I appealed the judgment and hired a consumer protection attorney to represent me. Since this is now a trial de novo, the CA filed another complaint. Of, course now the amount is double the original suit (Mind you, I still have yet to receive sufficient validation. During the small claims hearing I got an excerpt of my credit report and some bogus affidavit which is essentially meaningless, as their so called validation).

My attorney filed a two page list of Preliminary Objections that pretty much ripped the complaint a new "you know what". We are making a motion to dismiss the entire complaint on the grounds that it lacks specific averments of dates, amounts and evidence (essentially, because the complaint is so vague and boilerplate, we do not even know what issues to raise, ie, statute of limitations and so forth).

Now, the CA wants to settle for 10% of the original amount. WHAT A SHOCK!! That amount doesn't even cover their attorney's fees as listed in the complaint. However, I am NOT settling because they have not provided any shred of evidence that prooves this is my debt. The truth is, I've had several accounts with OC and I believe that they were all paid.

It is obvious that CA doesn't have one iota of evidence or documentation to tie me to this debt. They know it, my attorney knows it, and of course, so do I. The only jerk who didn't realize it was the small claims judge.

Anyway, I am told that it is still possible to tie me to the debt, if it is in fact mine. It is a long shot, but it is possible. At this point, we are ignoring the settlement offer and are awaiting requests for production.

They are obviously squirming because they don't have the proof or the legal leg to stand on.

Your thoughts?

C>

[Edit by cybercrusader on Sunday, April 20, 2003 @ 09:28 AM]

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Thanks for the link, Bingo.

We are not even at the point of filing a counterclaim for FDCPA violations because we don't have a clue what issues are involved. If they can produce evidence, then we will assert SOL and FDCPA violations.

I think this attorney is worth his weight in gold, by the way. I was very pleased with the Preliminary Objections that he filed. He picked up on items in the complaint and attached exhibits that were excellent.

It's my opinion (and his) that the attorney for the CA does not have much experience in a court of record. It's apparent that they sued me because of a string of successes in small claims with magistrates that really don't have clue about FDCPA.

C>

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If I understand your post, you are saying this CA is suing w/o validation, am I right? If so, go to the FTC website and look for the LeFevre- Wollman Letter (http://www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm in the opinions section. Also, the Spears vs. Brennan in the Court of Appeals of Indiana (http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html. Both of these relate directly to your defense.

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Yes, retmar, I am being sued despite asking for validation.

Thank you for the references, but I have already used both of those documents when I went before the magistrate in small claims. They didn't do me any good because the magistrate is a non-attorney with only six weeks of training on how to be a judge.

FDCPA, FCRA, proper validation, ceasing collection efforts, etc, etc. is great, but before the small claims magistrate (who essentially deals with petty crimes and parking tickets) it's all about personal opinions and who he or she "feels" should win.

There's no question that my rights have been blatantly violated. The violations will be asserted at the appropriate time. At this point it's a game of 5 card draw. I've got three aces and they've got a kangaroo straight (nothing). My only conern is if they draw the wild card.

I am just weighing the cost to make it all go away versus the cost to fight it to the end. After all, attorneys aren't cheap and there are no legal guarantees.

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<blockquote>Originally posted by kb9tbq

cybercrusader

Have you spoke with your lawyer about if this case can be moved up to a higher court?

Do you still have the ability to appeal the case later & move up to higher court?

</blockquote>

I'm not sure I understand what you mean. Higher than where it is now? Right now I am the appellant. I appealed the small claims judgment. I believe I can appeal this judgment also (if it gets that far), but then we are talking more costs.

I'm also think (not 100% sure) that I can't file a seperate suit, but must counterclaim as part of this one.

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<blockquote>Originally posted by cybercrusader

<blockquote>Originally posted by ShamrockGal

can you explain yourself a bit more?

</blockquote>

What, not enough information for you?

:)

I deleted my original post because I thought I might have put in the wrong section, but then never re-posted. I'll try again.

Essentially, a CA (who I NEVER heard of)sued me in small claims. I asked for sufficient validation and never got it. I appeared in court (by myself) and pleaded my case. Nevertheless a judgment was entered against me.

I appealed the judgment and hired a consumer protection attorney to represent me. Since this is now a trial de novo, the CA filed another complaint. Of, course now the amount is double the original suit (Mind you, I still have yet to receive sufficient validation. During the small claims hearing I got an excerpt of my credit report and some bogus affidavit which is essentially meaningless, as their so called validation).

My attorney filed a two page list of Preliminary Objections that pretty much ripped the complaint a new "you know what". We are making a motion to dismiss the entire complaint on the grounds that it lacks specific averments of dates, amounts and evidence (essentially, because the complaint is so vague and boilerplate, we do not even know what issues to raise, ie, statute of limitations and so forth).

Now, the CA wants to settle for 10% of the original amount. WHAT A SHOCK!! That amount doesn't even cover their attorney's fees as listed in the complaint. However, I am NOT settling because they have not provided any shred of evidence that prooves this is my debt. The truth is, I've had several accounts with OC and I believe that they were all paid.

It is obvious that CA doesn't have one iota of evidence or documentation to tie me to this debt. They know it, my attorney knows it, and of course, so do I. The only jerk who didn't realize it was the small claims judge.

Anyway, I am told that it is still possible to tie me to the debt, if it is in fact mine. It is a long shot, but it is possible. At this point, we are ignoring the settlement offer and are awaiting requests for production.

They are obviously squirming because they don't have the proof or the legal leg to stand on.

Your thoughts?

C>

[Edit by cybercrusader on Sunday, April 20, 2003 @ 09:28 AM]

</blockquote>

I'm strapped for time, but here are some quick notes I want to share .....

* Validation. This is an FDCPA thing, and the lack thereof is an FDCPA issue. As for a LEGAL ACTION TO COLLECT A DEBT, the CA needn't prove anything to you...they only have to prove it to the judge's satisfaction.

The fact they didn't send you validation would help your case is establishing the fact that you were given no basis from which to make your payment/nonpayment decision, but that's it.

* Legal actions for collection of debts, and FDCPA violation actions, are two different things. Just as the existence of a debt itself is n/a to an FDCPA proceeding, evidence of an FDCPA violation is n/a to a debt-collection suit.

If the CA files suit after your DV request and before providing you with validation, it is "continued collection activity" under the FDCPA. However, that doesn't negate their suit. They can still sue you for the amount alleged, and you would have to sue them for the FDCPA violation in a separate action, initiated by you.

In short, an FDCPA violation can not be asserted as a defense to a collection suit -- because it deals with the collection *process* itself, and not the existence of a debt.

* Small claims is not a "court of record," which I think you already said it's not. This is a KEY reason why many suits are first brought in small claims. Since it's not a court of record, the litigants can use small claims strictly as a "fact-finding" process, and once the facts are on the table (and assuming the someone is unsatisfied with the judgement), they can proceed to Circuit and have a trial de novo (brand new trial) using the facts that were unveiled in small claims.

* The 10% settlement?? They realize they don't have a chance and are just wanting to put the matter behind them and save money. They probably read your attorney's response and just threw their hands up. BUT... what they are REALLY hoping is that you'll take the settlement at face-value and leave them with the option of further collecting the remaining 90%, which may include selling or assigning it to another CA. This lets them get more money, absent having to deal with a lawsuit. Insist on a 1099-C.

......... later

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