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I've been served...now what?


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I was just served with a summons. I have 20 days to send a written answer to the plantiff's attorney.

This is for an old credit card debt. The CA (NCO)is trying to collect $5500. About a year ago, I disputed this with the credit bureau's and it was removed from my report. It still is not on the 3 credit reports, but they continue to try and collect. This is my account, but basically, it is so old I don't think they have the signed agreement/contract to prove it is mine. I have not made any payments since '97 or '98...The account was charged off in 1999.

Today, I sent a validation request to the collection agency.

What do I do about the summons? What should my answer say? I can't afford to hire a lawyer and this legal stuff is all new to me.

Am I correct in assuming if they can't provide the signed agreement then they have no proof it's mine??

I also have a question about the sol...in MN it is 6 years. I've looked on my past credit reports from when this account was listed. The last date of activity is different on all of them! Why is this, and how do I find the 'real' last date of activity to figure out if the sol is up??

I would appreciate any advice, I'm a little overwhelmed!!

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THe date you last paid should be about 180 days prior to the chargeoff date. CC's must chargeoffed at the 180 day mark from the date of continious default. But, 6 months from 1999 still doesn't get you past the SOL.

They really don't need a signed contract to prove its your debt. Charge slips with your signature and some monthly statements could be plenty. All they need is the preponderance of the evidence. If a judge feels one side or the other is 51% right then that's how they'll rule.

I'd suggest a general denial that it's your debt and see what they can prove.

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Thanks, Bingo!

I just found one of my credit reports from march of 2000 which lists the debt from the original creditor (not the ca) with a last date of activity of 6/97...which would make the sol up in june of this year....I'm certain I haven't made any payments since then. What I don't understand is why the last date of activity is different on each credit report I pull??

Also, in my answer to the complaint, should I flat out deny the statements in the complaint, or state that I do not know if the statements are true or not?

If anyone is interested, I found a pretty good website that explains how to write an answer to a complaint:

http://www.nwjustice.org/docs/205.html#205e

Do I have to list my defenses in the answer, or can I just deny that their statements are true?

Another thing I found while looking back at some of my old credit reports is that NCO group had reported the debt twice-with 2 different account numbers (although very similar) but the same amount owed. This isn't legal is it?

Again, none of this is currently on my credit report-and hasn't been for about a year-so maybe it doesn't even matter.

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Hopefully others will have a better idea but, I think for sure I'd just totally deny all of the allegations.

I wonder about including an SOL defense? If you do that, it's an affirmative defense and they'd have to prove you were wrong. If they didn't have documentation {and they sure might not} you'd win.

As I say, hopefully others can jump in with better thoughts.

BTW, what does that 2000 report show as chargeoff date?

[Edit by bingo on Monday, March 17, 2003 @ 05:40 PM]

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I'm not sure about the charge off date on the 2000 report...this is how it reads:

UNVL BK NA

#account

phone #

02/98 5 01/98 5 05/99 9

CHARGE OFF

Then there are a bunch of colums that list the balance, last date of activity, etc...

What are the dates above "charge off"? Are those charge off dates, or something else?

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You should go to the NW web site address given above on the proper form to answer the complaint. It typically can be a one page letter answering the allegations. You may just state you need documentation on how the charges and eggregious lawyer fees were computed. The idea here is to make the lawyer on behalf of the creditor document to you how they arrived at what they have arrived at rather than do nothing and let them score an easy win. The lawyers know how to game the system to their advantage and usually prevail. For what it's worth I've being having a little fun with Discover Bank in that they've only sent me (and thousands of others) HallMark Cards over a period of several months with no statements and therefore unable to obtain accurate accounting of what is rightly owed. They sued within 30 days of chargeoff and the Sheriff delivered the summons for which an answer was filed on the 20th day. That same afternoon the law office was in the court house about ready to present (clock-in) to the clerk a form for judicial signature seeking a default judgment for non compliance having not responded in the alloted 20 days which they lost track of apparently due to delayed service. Imagine their surprise when I appeared flashing the Answer! My case has been bouncing back and forth since like a ping-pong ball due to missteps and the lawyers are starting to steam. Discover Bank meanwhile recently again requested the card destroyed and returned to them and they were instructed that if they really wanted it back they would need to send the Sheriff. (After all the card is no longer valid and do they really think former customers proudly carry around their prestigious brand image? I don't think so!) I happen to be a very good friend of the Sheriff in this county and he says unless they pay a service fee, he won't be sending any deputies. You will need to decide how you long to delay the judicial process so as to buy time in the event you intend to file bankruptcy or settle the debt somehow. Most often someone will contact you prior to pre-trial or trial to settle, but often that settlement will include attorney's fees and additional interest. IMO, it is not a good idea to state you cannot pay or that the debt isn't yours because it will cost you credibility with the court who believe it or not sometimes sympathize with the defendants as they have in my case.

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I decided to make sure that the collection agency that had me served is even licensed in my state (MN). I checked on the MN Dept of Commerce web site, and tried to look it up. The collection agency named on my summons is NCO Portfolio Management. They are not listed as being licensed in MN, however, NCO group is. According to what I found online, “NCO Portfolio is a 63% owned subsidary of NCO Group”. So, my question is, does NCO Group’s license cover its subsidiaries, or does each individual entity need its own license? The way I’m understanding this is that the company named as plantiff on my summons is not licensed in my state, and therefore not able to sue me for the debt. Is this correct? Can I simply use this as a defense and win?

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You could go that route but I think I would start doing a validation now and site the text of the FDCPA that states that you can request validation at any time ((or that your non response does not mean you give up yer right to validate)

Validation could be the way to go on this one.. when you get before the judge tell them you have a problem with the amounts and you want a full accounting history on the account and the original card agreement.

Tell them you would need to see proof of all the debt and what they say you owe.

Just my 2 pennies

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Generally if they've assigned the case to a lawyer admitted in your state, that is all that is needed to prevail. Lawsuits in assigned collections are undertaken on behalf of the OC, not the collection agency. Debt buyers often threaten to sue to get people to pay up, and they often do. As to obtaining an accounting, generally after the Answer is filed, Interrogatories are sent to the defendant demanding the reasons for challenge, name of lawyer who will be representing the case, etc. (Actual procedures vary by state). Oftentimes the accounting request is granted prior to the time the matter even gets to pre-trial discussion. If all efforts fail, the end result is a judgment for the Plantiff. Often all it takes is one lawsuit as a reason for people to file for bankruptcy protection.

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