bozemanbound Posted November 16, 2004 Report Share Posted November 16, 2004 I recently received a summons from a junk debt buyer. I filed my answers with the court and sent the atty. a copy of my filed answers. In my answers I stated that I was without sufficient information and left the plaintiff to his proof. (The summons did not contain any supporting paperwork or proof of this alleged debt) In my affirmative defenses I stated that this company is not a licensed collection agency in the state of Indiana, has not applied to Sec. of State to conduct a collection agency, and it that this company conduction a collection agency is unlawful, as required by the proper Indiana Codes.(Went on to list each code) In my final affirmative defense I state that this company has failed to comply with The FDCPA, never received a dunning letter. I denied that the plaintiff is entitled to requested relief and requested that the complaints be dismissed.Today in the mail I received a motion for summary judgement from the atty. How do I answer? What I about my answers? What about my request for dismissal? I have not received anything from the courts except a mailer that shows that I filed my answers with them. How can they ask for a summary judgement without any proof. (no account numbers, no statements, nothing)?Sorry for being so long Link to comment Share on other sites More sharing options...
Leadhead Posted November 16, 2004 Report Share Posted November 16, 2004 What exactly does the Summ Judgment say? Link to comment Share on other sites More sharing options...
bozemanbound Posted November 16, 2004 Author Report Share Posted November 16, 2004 The summary judgement reads:Motion for Summary Judgement Pursuant to Trial Rule 56Comes now Plaintiff, by counsel, Atty X, and respectfully moves the court to grant summary judgement pursuant to Trial Rule 56 in its favor and against Defendants Link to comment Share on other sites More sharing options...
bluealex915 Posted November 16, 2004 Report Share Posted November 16, 2004 Hello,I am in Utah and went through the same exact thing with a medical bill. The attorney for the plaintiff asked for a summary judgement because he stated that there was no " material fact " of a defense by me. I responded to the motion for summary judgment by a " memorandum of opposition to the plaintiff's motion for summary judgement ". In my memorandum I requested debt validation, I quoted the FDCPA and what was required to prove that this debt was valid. I also requested that if no debt validation could be produced that I have an opportunity to represent myself in front of the court and present my evidence and testimony. Even after all of this the judge still granted the plaintiff the judgment, I was pissed off. The freaking plaintiff never produced any contract with my name on it or anything. The judge basically took the plaintiff's word for it.Anyway, what I did next was file a motion to dismiss or vacate. This really pissed the plaintiff's attorney off. He replied with his own memorandum of opposition to my motion and stated " this is just a simple collections case ". The A-hole then asked the judge for an additional 750.00 dollars on top of the original amount for having to take the time to respond to my motion.It sounds to me like they never validated the debt under the FDCPA standard. If the debt could not be validated then they are not legally entilted to squat!!On top of that they are breaking the law by attempting to collect on a debt when they are not licensed or bonded in your state. In Utah if a collection agency does this I belive it is a class c or b misdemeanor under the Utah code.I think you have got them on some violations, I really do. Good luck to you and don't be intimidated by these guy's. Just do your homework and back up what you tell them. One last thing, you might have some FCRA violations in there if they reported the unvalidated debt to any CRA, check it out. Once you put your case together you may want to file a counter suit. I am no lawyer by any means but I have learned from going through what you are right now.I am sure other, more knowledgable members will chime in and give you some really good advice.Good Luck.............................. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted November 16, 2004 Report Share Posted November 16, 2004 One thing you ill want to check is if they are authorized to do business in your state. Most states do not allow an out-of-towner to use the state courts if they aren't bucking up. Check with your Sec of State or corporations bureau. If they aren't licensed to do business in the state ( soemthing quite different from being a licensed collection agency), you have a legal capacity defense. If they do not have a license as a collection agency, notify the AG in your state of that fact, along with the the department that licenses collection agencies. Make sure they know this company buys purported debt and is trying to colect it. They should be estopped from doing so if they are not licensed. A failure to be licensed does not mean they cannot try to collect. It is an administrative problem for a bureaucrat. Link to comment Share on other sites More sharing options...
LadynRed Posted November 16, 2004 Report Share Posted November 16, 2004 A list of PROPER affirmative defenses can be found here:http://www.legalhelp.org/affirmative_diffense.htmHow you worded your defenses and what you used as a basis can make a huge difference.A motion for summary judgment is basically standard operating procedure in these types of cases. They are basically saying to the court that you've presented nothing to disprove their claim and the court should grant judgment in their favor.You can file your own motion to object to their MSJ and then go from there. Link to comment Share on other sites More sharing options...
Guest Posted November 17, 2004 Report Share Posted November 17, 2004 Contact the Attorney Generals office immediately as well as the Secretary of State of Indiana and tell them about these people.They are pretty good about coming down hard on those types of folks.Make sure you tell them that you are being sued and it needs to be done ASAP.Good luck,. Link to comment Share on other sites More sharing options...
bozemanbound Posted November 17, 2004 Author Report Share Posted November 17, 2004 Thank you all for the great info, I have been working away on this and was doing some more research at the Sec. of State website. This collection agency that is suing me is registered with the state, but not registered with the state to do business as an collection agency, I paid the online fee to get the full business background report. This company is owned by the atty. suing me in this case. Does anyone have any thoughts on this? Link to comment Share on other sites More sharing options...
Recovering Attorney Posted November 18, 2004 Report Share Posted November 18, 2004 Based on what you said, they can probably still bring teh action. If they are not liocensed as a collection agency, I would get on the horn ot the AG and the licensing people, and maybe even the State Bar or grievance committee. Let someone know this man is operating improperly. May not stop the lawsuit, but if you give him a little pain,... Link to comment Share on other sites More sharing options...
bozemanbound Posted November 22, 2004 Author Report Share Posted November 22, 2004 Update Went to file amended answers and first discovery on Friday, checked my mail first and received a letter from atty with a Designation by Plaintiff of Record of Which its motion for summary judgement is based, it read that plantiff, by counsel, designates the portion of the record upon which they base their motion for summary judgement against defendants1. Affidavit of Debt2. Request for AdmissionsShould I not have received both of these, has anyone delt with these before.Thanks again for all of the help Link to comment Share on other sites More sharing options...
Recovering Attorney Posted November 22, 2004 Report Share Posted November 22, 2004 you should have received them, yes, probably 30+ days ago Link to comment Share on other sites More sharing options...
dixiedrifter Posted November 23, 2004 Report Share Posted November 23, 2004 Yup, that is what happened. You got slammed on the requests for admissions.Any request for admission that is not timely or properly answered is deemed admitted.The attorney probably went sneaking around and did a sewer service of the motions behind your back... in other words, they lied and told the court they served you, but didn'tAlways check with the court frequently for new filings!Also, you should have filed a motion to strike the affidavit of debt based on it being hearsay. Link to comment Share on other sites More sharing options...
Leadhead Posted November 23, 2004 Report Share Posted November 23, 2004 Always check with the court frequently for new filings!Most courts don't require discovery requests to be filed when it is sent out. When I sent discovery to a defendant in a recent suit I filed, I sent it to the defendant without any notice to the court. However, I did send it CMRRR. Link to comment Share on other sites More sharing options...
calawyer Posted November 23, 2004 Report Share Posted November 23, 2004 A law professor of mine used to call a summary judgment motion a "yeah but" motion. In other words, a party looks at your complaint or answer and says, "yeah but you are wrong about your facts". If attacking the complaint, a defendant just needs to show that one element of a claim is missing or that all elements of a defense are present. If a plaintiff is seeking summary judgment, she must usually prove the claim (affidavit of debt?) and show that each defense is no good (requests for admission?)If all material facts are not in dispute, the court may be able to grant summary judgment. If there is a dispute (ie plaintiff says the light was green, defendant says the light was red), normally the case must go to trial. Link to comment Share on other sites More sharing options...
bozemanbound Posted December 13, 2004 Author Report Share Posted December 13, 2004 I just wanted to update what went on during my summary Judgement motion hearing last Friday. When the judge called the docket number I assumed that the man next to me was the attorney. Well, it turns out that it was some guy who had completed law school but had not passed the bar. He started to say that I had not responded to any of their demands but before he could finish the judge said if you say anything else I will have to report you and the attorney who is suing me to the state bar comission. He then rescheduled the hearing for Jan. 14th. I assume that the attorney did not expect me to show up. Any ideas, on what I should do next? Link to comment Share on other sites More sharing options...
Guest Posted December 13, 2004 Report Share Posted December 13, 2004 Contact the Attorney General for the state of Indiana immediately and speak to them about this.I would also call the Indiana Bar Association as well as start looking around for an attorney to maybe handle this.I think you have alot of violations here of the FDCPA and Indiana law is VERY clear that to SUE as a collection agency in the state you have to be registered as a collection agency. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted December 13, 2004 Report Share Posted December 13, 2004 well, let's get back to the issue: did you get the Request for Admissions and Affidavit, as they say you did? That will be important. Like Calawyer says, summary judgment looks for disputed facts. A general denial that you owe the money may not survive in teh face of sworn testimony. You will play up your defenses with the judge, in particular the right of this company to bring the action to begin with. Tell the judge you need discovery to prove your defenses, and to probe the claim. Since this is a junk debt buyer, they typically try to collect more than what they paid for it, and more than what they are entitled to. They will have to substantiate their claim against you, and that cannot be had by an affidavit, but best by sworn testimony subject to your cross-examation. Unless you have a sold defense to the underlying debt ( like SOL), you want to impart to the judge that you are hopeful discovery will allow theparties to find a settlement. Link to comment Share on other sites More sharing options...
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