Sign in to follow this  
cybercrusader

Response from Collection Agent

Recommended Posts

I gotta agree Ironman. That CA lawyer took chickenchit and turned it into salad. Imagine what he does with someone who dosen't really know what their doing?

Share this post


Link to post
Share on other sites

<blockquote>Originally posted by IronMan

The attorney did a good job of diverting the judge. As much as I hate to say it, the bastard did a slick tactic.

But.....

You could have objected to the fact that your credit report is inadmissable as evidence on it's face. The facts being argued are not all the items in your credit report, just what they are reporting.

</blockquote>

Trust me, if I could go back and change it I would. Chalk it up to courtroom inexperience. I should have stayed home and instead fought on appeal for a reversal of summary judgment just like spears v. brennan.

C>

Share this post


Link to post
Share on other sites

<blockquote>Originally posted by bingo

I gotta agree Ironman. That CA lawyer took chickenchit and turned it into salad. Imagine what he does with someone who dosen't really know what their doing?

</blockquote>

I laughed my rear off when I read that. Believe me Bingo, I had no idea what I was doing either. Baptism by fire. I think it was all going my way until the CR.

C>

[Edit by cybercrusader on Sunday, February 9, 2003 @ 08:58 PM]

Share this post


Link to post
Share on other sites

I commend you for posting your battles with this ca for all to read. SO many seem to believe the FDCPA is a magic bullet. They don't realize that once the venue shifts from writing letters to the courtroom it's a different animal. In court, it isn't about a Wollman letter punchlist it's all about minimum evidentiary standards and as you discovered, they can really be minimal. Good luck with your appeal.

Share this post


Link to post
Share on other sites

Hi! You guys seem knowledgeable..here goes...

Got summons for an old debt (past six years) last month. Sent the CA and their lawyer debt validation letter immediately. Sent answer to court stating that I have no knowledge of the acct. with this creditor or CA(which is true) and that I sent the DV letter to the creditor and attached a copy of letter. Also stated that I requested signed contract/agreement to prove ownership and evidence that CA has legal authority to collect the debt. Thats it. Nothing on SOL since I thought I would use it if they are able to prove acct. is mine. Can these clowns use a CR as evidence. FCRA does not list using this as evidence under permissible purposes and there is a whole slew of issues relating to this account for which I am planning to sue CA later. Any comment or thoughts on how to tackle my day in court?

Share this post


Link to post
Share on other sites

I would suggest seeing if you can amend your filing and use the SOL argument. Don't save itfor the last minute. ANd, do some home work. If this is a cc debt, the Truth In Lending Act defines a cc as an open account {per Reg Z}. CA lawyers will try and tell the judge that it is a written account that typically has a longer SOL. You need to refute that argument.

They should not be allowed to enter a credit report as evidence but if you enter it, then it's fair game. I've a lawyer friend that says if he feels the need to get a credit report {to search for assets or ownership} he subponeas it.{THis is to prepare for trial}.

Share this post


Link to post
Share on other sites

<blockquote>Originally posted by georgiaboy

Cyber, ive got to ask,, was the Affidavit a sworn affidavit, and was it notorized??

</blockquote>

It was notarized by the attorney/employee of CA and it affirmed a set of facts regarding the alleged debt. It was on CA stationery with no date.

Meaningless, in my opinion, unless the debt is purchased by CA pursuant to this affidavit. Even still, if you read the case I quoted earlier in the thread, the appellants did not dispute the validity of the debt, only the right to enforce.

C>

Share this post


Link to post
Share on other sites

By the way, my new attorney was amuzed but not surprised that I lost. In a higher court (with a real judge) this would have been a 15 minute deal. No hard evidence, no judgment. End of story. Next.

The CA walked into court with basically a prayer. In fact the affidavit was a hail mary. Also, as others alluded to earlier, the credit report was used as a diversion.

In PA small claims is the worst place to argue a FDCPA issue. I'm shocked to know that when magistrates are elected they're only given a six-week course in how to be a judge. Can you fricken imagine? Many attorneys don't even know all this debt business.

Share this post


Link to post
Share on other sites

Captioner, you may not have to worry about that at all.

If the CA did purchase this old debt, which it sounds like they did, they probably have no standing in the court to bring about any action anyway. File a counter-claim for their failure to comply with the FDCPA and FCRA and maybe your own state's credit law if they don't respond properly.

I'd first see if they are even capable of doing anything legally before worrying too much. In California, assignees cannot do ANYTHING as far as legal action.

Check your Code of Civil Procedure and Rules of Court for your state. Look for assignees, joinder of parties, or real party(ies) of interest to get leads.

Good Luck!

[Edit by IronMan on Monday, February 10, 2003 @ 11:42 PM]

Share this post


Link to post
Share on other sites

Ironman, thanks..the CA has hired a local area lawyer but thankfully, I have never talked to these clowns either. So I can tell the Judge with a straight face I don't know what they are talking about and let them prove it. Isn't the burden of proof of on them? I do have the TILA, FCRA (to prove CR cannot be used as evidence), FDCPA and also articles that say more than one-third of the CR's are inaccurate. And mine really is. I am going to take a motion to dismiss with me or should I file it before hand, for lack of evidence of ownership?

Share this post


Link to post
Share on other sites

Hold on a second. The FCRA does not say a credit report can't be used as evidence. There is an opinion letter from the FTC that says it is not a PP to pull a credit report to prepare for trial. Also, a small claims court judge may well allow anything to come in. The structure is less formal and more free wheeling. If you enter your credit report the other side has every right to use it against you.

The SOL is an affirmative defense. Speak with a lawyer about amending your filing and prehaps request a summary judgment and end it before it gets started.

Share this post


Link to post
Share on other sites

NEVER, NEVER, EVER admit your credit report as evidence (and for cross-examination) in small claims court especially if it has derogs. As I learned the hard way, this will taint a traffic court judge against you no matter how many FTC opinion letters or cases you quote or bring with you.

Pound the fact that they've given NOTHING and let them introduce it (which I belive is another FCRA offense).

The other thing I'd like to point out is something that my atty brought to my attention yesterday. The scum bag CA only introduced my credit report from Trans Union. If you look at the other reports from other agencies, THERE IS NO DEBT OR IT'S LISTED AS ZERO!

The point is if they want to play games with the credit report, make sure you pull all three seperately and forget those tri-merge reports.

C>

[Edit by cybercrusader on Tuesday, February 11, 2003 @ 07:12 AM]

Share this post


Link to post
Share on other sites

Bingo, FCRA does not state CR cannot be used as evidence but it is not listed under permissible purposes. Cyber, I have all three reports and if CA tries to use it and judge allows it, it would be a slam dunk to prove how inaccurate they are. Also on the question of SOL, if I bring it up it would imply that I accept it as my debt and I am disputing that fact. Let them prove it first. Also, should I have motion to dismiss handy or should I file it prior to court date?

Share this post


Link to post
Share on other sites

<blockquote>Originally posted by captioner

Cyber, I have all three reports and if CA tries to use it and judge allows it, it would be a slam dunk to prove how inaccurate they are. </blockquote>

That's what I thought too. Perhaps on appeal, but in small claims I'm starting to see that anything goes.

Share this post


Link to post
Share on other sites

Captioner:

In your answer to the summons (Plaintiff's Claim and Order to Defendant) you will state your affirmative defenses to answer their complaint and then state your merits for your motion(s) or counter-claim(s). The judge will hear their complaint first then he/she should hear yours. Have your ammo ready. The violations are strict-liability statutes.

If opposing attorney or judge tries to use inappropriate jurisdiction for your violations complaint, you can explain that it is appropriate because you (petitioner) reside within the jurisdiction of the court (county and district) and is where the cause of action arose. Should be sufficient enough. Check your state's rules of court.

Make sure you bring and copy as much as you can and file it for judge beforehand. Judge needs to see authority so he/she can make a proper ruling. Make sure to provide applicable case law and statutes for judge. Use Highlight marker (flouresent green) to highlight specifics for judge and organize it! Judge will appreciate the extra effort, believe me. The extra half-hour or so in detail will pay off immensely.

After you file your initial answer, any other paperwork you need to file, go to courthouse about 2 weeks / 1 week prior to court date and find out if your file has been sent to judge's chambers or is in the proper division. If your case is on the calendar, then go directly to the courtroom (either early AM or IMMEDIATELY AFTER lunch before afternoon session) and give it to the judge's clerk directly. It's sure to be seen by judge.

Sometimes if issue(s) require further research, judge may ask parties to stipulate and submit responses to the court by a certain date. Then a decision will be made. That's how my BIG case went and I won.

Good Luck!

Share this post


Link to post
Share on other sites

IronMan - Thanks, Good Stuff! Here are some questions I have:

<blockquote>Originally posted by IronMan

Captioner:

In your answer to the summons (Plaintiff's Claim and Order to Defendant) you will state your affirmative defenses to answer their complaint and then state your merits for your motion(s) or counter-claim(s). The judge will hear their complaint first then he/she should hear yours. Have your ammo ready. The violations are strict-liability statutes.

</blockquote>

I sent in my reply a couple of days ago - My answer was that I was not aware of this alleged debt and have requested the plaintiff evidence to prove ownership of debt and thier authority to collect . I attached a copy of the DV letter and information request that I sent to the Plaintiff and evidence of their receipt. Is that the right start?

<blockquote>Originally posted by IronMan

If opposing attorney or judge tries to use inappropriate jurisdiction for your violations complaint, you can explain that it is appropriate because you (petitioner) reside within the jurisdiction of the court (county and district) and is where the cause of action arose. Should be sufficient enough. Check your state's rules of court.

</blockquote>

Can you explaing inappropriate jurisidction please? Are you talking about plaintiff authority to collect? They have hired a local lawyer.

<blockquote>Originally posted by IronMan

After you file your initial answer, any other paperwork you need to file, go to courthouse about 2 weeks / 1 week prior to court date and find out if your file has been sent to judge's chambers or is in the proper division. If your case is on the calendar, then go directly to the courtroom (either early AM or IMMEDIATELY AFTER lunch before afternoon session) and give it to the judge's clerk directly. It's sure to be seen by judge.

</blockquote>

SO far I have not received anything from the plaintiff's side, so is there anything for me to do? I am waiting to see what they have before I can possibly dispute it.

<blockquote>Originally posted by IronMan

Make sure to provide applicable case law and statutes for judge.

</blockquote>

I have located the state website and the statutes, can you tell which statute I should be looking for and where do I look for case law?

Again your help is appreciated!!!

Share this post


Link to post
Share on other sites

Here is an update..i got from the plaintiff' lawyer a signed credit card application, but it is not under the creditor name stated in the lawsuit and a statement with my name with late charges but no payment. Will this stand in court? Have they validated beyond doubt? ALso, the amount in complaint is around $200 more than the amount in the last statement. Thanks for your help.

Share this post


Link to post
Share on other sites

Did the bank the credit application came from sell their cc portfoilio or, was the bank purchased by the creditor that is suing? Is there a reason the name could be different?

Share this post


Link to post
Share on other sites

correction..this is a store card, maybe the creditor was the underwriting entity?? I am not sure but does this entail full validation, of the dozen or so items I requested, they provided one...also, there is no agreement notice saying that this debt was signed over to or purchased by the Plaintiff...should I reply to this letter or wait till my court date...

Share this post


Link to post
Share on other sites

I guess I don't understand why you're making a complicated issue out of this when you have a timebarred defense.

Why not respond you've no recollection of the account and in any event, the SOL has run? Just never admit it is yours. If they produce any proof it's been so long ago you've forgotten about the account. But, you'll have that SOL defense on record. Had you responded with the SOL the other side may well have dropped the case by now.

Are you absolutely able to prove the SOL has tolled? Because, if you introduce it the burden of proof will shift to you.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this