cybercrusader Posted January 15, 2003 Report Share Posted January 15, 2003 I have a court hearing (small claims) coming up soon. A CA is suing me for a debt that has not been properly validated (they sent me a copy of my credit report as proof in addition to some bogus Affidavit saying that the original agreement is missing but the debt is mine and the owner of the CA will testify to that fact.) The validation they sent me is clearly a joke. On top of that there are FOUR different debt amounts on four different documents provided to me by the CA (I suppose they will close their eyes and pick a number). Anyway, I am trying to formulate reponses to the judges questions and I am stuck on the most important: "Is this your debt", or "Do you have an unpaid account with such and such bank with this account number?". The debt is possibly mine, but I am not 100% sure because I have had several accounts with the OC. I am definately not sure as to how they arrived at the debt amount. I certainly do not want to mislead the magistrate. However, I am concerned that if I admit directly that this debt could be mine, my defense may be in jeapordy altogether (I am told that this particular magistrate is difficult).Any suggestions? Link to comment Share on other sites More sharing options...
bingo Posted January 15, 2003 Report Share Posted January 15, 2003 It sounds like "I don't know because I've received nothing that would properly validate the account" would be a very truthful answer. Link to comment Share on other sites More sharing options...
kimber6337 Posted January 16, 2003 Report Share Posted January 16, 2003 I agree with bingo - and the owner of the CA going in there and saying that YES that is your debt isn't going to fly either. I would take copies of the FCRA along with you to court and present stating WHAT they should give you as validation, along with 4 entries for 4 different amounts they've tagged you with. Link to comment Share on other sites More sharing options...
LadynRed Posted January 16, 2003 Report Share Posted January 16, 2003 Take along the the FDCPA, with the section(s) pertaining to validation highlighted (take sevearl copies). I'd also take along copies of the Wollman Opinion letter, the Spears v. Brennan case, and any other Opinion letters for cases that will suppport your case as to what MUST be provided to prove the debt is yours. Link to comment Share on other sites More sharing options...
life Posted January 17, 2003 Report Share Posted January 17, 2003 Is the debt yours?I was thiking along the lines of this yes your honor the debt is mine but the reason i'm here today is becasue the company failed to properly valadate the debt and if there is anything else wrong wrong anmounts , dates, etc..Go at it from that angel...So that is why i'm requessting it to be removed from my hisroty Link to comment Share on other sites More sharing options...
cookiemnster Posted January 17, 2003 Report Share Posted January 17, 2003 <blockquote>Originally posted by lifeIs the debt yours?I was thiking along the lines of this yes your honor the debt is mine but the reason i'm here today is becasue the company failed to properly valadate the debt and if there is anything else wrong wrong anmounts , dates, etc..Go at it from that angel...So that is why i'm requessting it to be removed from my hisroty</blockquote>from what I've heard that's not an angle you want to go at it from. As soon as you say "yes, your honor" he's going to say "well then you need to pay it" and possibly label your suit as frivolous and order you to pay the CA's expenses. I've always thought "I don't know for sure, your honor, they've kept refusing to show me documentation so that I can figure out if it is or not." Link to comment Share on other sites More sharing options...
bingo Posted January 17, 2003 Report Share Posted January 17, 2003 I agree with Cookiemnster. If you're going to admit it, be sure you bring your checkbook. Link to comment Share on other sites More sharing options...
cybercrusader Posted January 17, 2003 Author Report Share Posted January 17, 2003 Thanks for all the suggestions.I am not 100% sure the debt is mine. Yes, the account number looks familiar, but I don't have copies of any statements or records because I lost them in a basement flood several years ago (TRUE! However, I won't say that to the magistrate because it sounds like such a cliche.)Anyway, I agree that if I admit the debt is mine, the judgment will be pretty much automatic assuming they can provide valid proof of claim in court. Frankly, I can't believe that a CA is going to show up in court with the documents they sent me. The magistrate should dismiss it, at least in my opinion.In today's day and age, anybody can get a hold of your credit report, draw up an affidavit and say you owe them the money. (Unless they show up in court with something other than they've provided to me).If they are relying on my credit report for validation, they are going to lose because there are 13 inaccuracies, 2 accounts that don't belong to me(including one from the OC) and the best of all: ONE OF THE CREDIT CARDS WAS ISSUED TO ME (according to the report) WHEN I WAS SEVEN YEARS OLD! On top of this I have the CA documents with 4 materially different debt amountsI believe I have plenty of firepower. The only thing that concerns me is how hard the magistrate is going to press on the question of "Is this debt yours" (ie, "Did you make payments on this account?", Do you have an unpaid debt with such and such OC?, and so on.) If you think about it, that's a pretty tough line of questioning that can't always be answered with "I'm not sure because they never gave me proper validation"If I formulate a good answer to those questions, the case goes in my favor.C> Link to comment Share on other sites More sharing options...
bingo Posted January 17, 2003 Report Share Posted January 17, 2003 If that's all they have and you show up, I'd be shocked if the CA didn't move for a dismissal. They may well be hoping you just won't show and they get a default judgment.The only other thing I could add is evidence has a way of appearing mysteriously. If you had 4 accounts with the OC odds are good they can find some account statements and/or copies of checks you wrote to the OC. Not Wollman type validation but it would meet any sort of minimum evidentiary standards. I'd be thinking along the lines that they may produce something. Link to comment Share on other sites More sharing options...
cybercrusader Posted January 17, 2003 Author Report Share Posted January 17, 2003 <blockquote>Originally posted by bingoIf that's all they have and you show up, I'd be shocked if the CA didn't move for a dismissal. They may well be hoping you just won't show and they get a default judgment.The only other thing I could add is evidence has a way of appearing mysteriously. If you had 4 accounts with the OC odds are good they can find some account statements and/or copies of checks you wrote to the OC. Not Wollman type validation but it would meet any sort of minimum evidentiary standards. I'd be thinking along the lines that they may produce something. </blockquote>I had three accounts with OC, but they are all with seperate CA's. I have heard from the others, but not from this CA until the suit. The disparity between the amounts they claim is the debt is mind-boggling (this goes for all accounts).I have been requesting a complete accounting for over two years now and never got a response from anyone. The debts move from CA to CA like there's no tomorrow.If they can in fact prove the debt is mine, I still have a right to an accounting as to how the debt went from $5,000 (not the real amounts) to $12,000 then back to $7,500, don't I? C> Link to comment Share on other sites More sharing options...
bingo Posted January 17, 2003 Report Share Posted January 17, 2003 Sure, they'll have to prove how they arrived at the amount owed. Keep something in mind. If they do show some tabulations as to how a bottom line figure was determined and you don't agree the burden of proof will shift to you to show the judge where they are wrong. Link to comment Share on other sites More sharing options...
wohlfie3 Posted January 17, 2003 Report Share Posted January 17, 2003 NEVER! NEVER! NEVER! admit to the debt being yours. The judge will have to rule against you if you do. As you have stated, you are not sure because there is alot of confustion with 4 different accounts. First of all, is this CA allowed to take you to court. Is this an assigned debt to a CA or an original creditor CA? Only the original creditor is allowed to take you to court. This information is posted under debt settlement. How old is the debt? If they cannot prove the amount, how can they prove when it was opened, etc? It is the CA's responsiblity to prove to the judge that you are indeed the person who owes this debt. Is this the first appearance before the judge after receiving the summons??? If so, he will only ask you if the debt is yours, (answer no) and if you would like to have a hearing. (answer yes)Your credit report should not be able to be used by a CA. This breaches privacy issues. Your credit report is not a public document!!! Link to comment Share on other sites More sharing options...
kimber6337 Posted January 17, 2003 Report Share Posted January 17, 2003 {{{Lisa}}} Good to see you again! Link to comment Share on other sites More sharing options...
cybercrusader Posted January 17, 2003 Author Report Share Posted January 17, 2003 <blockquote>Originally posted by wohlfie3NEVER! NEVER! NEVER! admit to the debt being yours. The judge will have to rule against you if you do. As you have stated, you are not sure because there is alot of confustion with 4 different accounts. First of all, is this CA allowed to take you to court. Is this an assigned debt to a CA or an original creditor CA? Only the original creditor is allowed to take you to court. </blockquote>The assignment vs. purchase issue is another source of confusion. I hear what you're saying regarding the fact that only OC's are entitled to file suit. In my case the facts are purposely muddled. On the complaint it clearly says, "UPAYUS, INC. AS ASSIGNEE OF SUPERBANK." On the validation document they sent me it clearly says: "AT THE TIME OF PURCHASE THE FOLLOWING INFORMATION IS ACCURATE..."In my state (as others I suppose) it's a crime for a CA to represent a creditor in a legal action except in the case of an assignment of the debts from OC to CA, AND if the legal action is brought by an attorney. The attorney in this case works as an employee of the CA.I guess I am to assume this is an assignment but I wouldn't put anything past this CA. As far as CA pulling my credit report and sending it to me a proof of validation, I was under the impression that the CA is entitled, but only if they can proove the debt is valid. Does anyone know where I can find this issue in caselaw or opinion? [Edit by cybercrusader on Friday, January 17, 2003 @ 03:15 PM] [Edit by cybercrusader on Friday, January 17, 2003 @ 03:17 PM] Link to comment Share on other sites More sharing options...
admin Posted January 18, 2003 Report Share Posted January 18, 2003 Yep, I'd respond exactly as cookiemonster did. Link to comment Share on other sites More sharing options...
sharpenu Posted January 19, 2003 Report Share Posted January 19, 2003 First, it is up to the CA to prove it is yours, not your job to prove it isn't. Second, the owner of the CA CANNOT testify that the account is yours, because he doesn't have PERSONAL knowledge of the account. His testimony is hearsay. If he doesn't have it in writing, it never happened. Link to comment Share on other sites More sharing options...
cybercrusader Posted January 19, 2003 Author Report Share Posted January 19, 2003 <blockquote>Originally posted by sharpenuFirst, it is up to the CA to prove it is yours, not your job to prove it isn't. Second, the owner of the CA CANNOT testify that the account is yours, because he doesn't have PERSONAL knowledge of the account. His testimony is hearsay. If he doesn't have it in writing, it never happened.</blockquote>Very interesting because in this meaningless affidavit they sent as validation, the owner says he has PERSONAL KNOWLEDGE that the account is mine.I read in another one of your posts the law regarding disclosure. Can you elaborate on that? I'm concerned that the CA is going to show up in court with info they had but never sent me. Since I requested validation (and they are suing me at the same time) they must cease collection efforts.I believe that they are very much aware of this but are waiting for court to pull the trigger. Link to comment Share on other sites More sharing options...
cybercrusader Posted January 19, 2003 Author Report Share Posted January 19, 2003 I think I just found the answer to my own question [Edit by cybercrusader on Sunday, January 19, 2003 @ 10:18 PM] Link to comment Share on other sites More sharing options...
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