goodgirl008 Posted January 6, 2005 Report Share Posted January 6, 2005 I sent a DV letter to Wolpoff (representing MBNA) on Dec. 7, 2004. I was going to send a follow-up letter tomorrow, since I hadn't heard back from them. Well last night I got served with a Civil Citation saying I'm being sued by them. Is this right, can they still serve me, even though I sent them a DV letter and haven't received anything from them other than the citation? Please offer any advice.thanks a bunch! Link to comment Share on other sites More sharing options...
Guest Posted January 6, 2005 Report Share Posted January 6, 2005 You now have them on a violation.You must make sure to file an answer.if it was me.. I would immediately file a countersuit for violation of the FDCPA and ask the court for 1000 for damages.Deny any knowledge of the debt,There are many here who can help with answers and affirmative defenses better than I ..Good luck Link to comment Share on other sites More sharing options...
admin Posted January 6, 2005 Report Share Posted January 6, 2005 There is case law supporting both sides, that you can and that you can't. It's a good thing that you did DV, no matter what though. They will still have to cough up the same documentation at court.What exactly did the civil suit say? Link to comment Share on other sites More sharing options...
Recovering Attorney Posted January 6, 2005 Report Share Posted January 6, 2005 You will want to check the complaint, or teh summons, or any paper associated with it, for a notation within the body that " This is an attempt to collect a debt." Also, did you send the DV within the 30 days from first contact ( letter)? Did you send it to W&A or a CA? If there is a violation, it is likely against W&A and/or the CA. You will need to bring a separate action. Do answer the complaint. If you need help. let us know. Link to comment Share on other sites More sharing options...
goodgirl008 Posted January 6, 2005 Author Report Share Posted January 6, 2005 It says: YOU HAVE BEEN SUED. You may employ and attorney. If you or your attorney do not file a written answer with the CLERK who issued this citation by 10am on the Monday next following the expiration of 20 days after you were served this citation and petition, a default judgement may be taken against you.You are hereby commanded to appear by filing a written answer to the PALINTIFF'S ORIGINAL PETITION TO CONFIRM ARBITRATION AWARD at or on before 10am etc, etc....Then they provided a copy of the Arbitraion Award against me back in June of 2004. I did get a letter of this arbitration from the National Arbitraion Forum, and sent them a response letter and said at the time that they could contact my lawyer. (at the time I considered bankruptcy, until I found this board). Well apparently my letter did not make it to the Forum on time and they awarded a default judgement against me, the lawyer I consulted with at the time, said that since this was not enforced in a court of law, that I could settle on my own, since that's what I really want to do. Anyways, like I said I found this board and have been reading and posting to it, so I sent Wolpoff the DV letter....and now they have served me saying that I have not responsed to their Arbitration Award in the 90 days, so I am being sued now? Wouldn't the DV also serve as a response to any of their letters. In the Civil County Court papers, it says on the ARBITRATION AGREEMENT STATED: Plaintiff sues Defendent (my name) for confirmation and enforcement of an arbitration award entered against defendent, which entered into on June 3, 2004. As of this date, Dec. 20, 2004 the defendent has not paid the plaintiff the amount as so agreed upon, nor has the defendent objected to the entry of the arbitraion decision. blah, blah, blah.....The Defendent has allowed 90 days to pass since Defendent received notice of arbitraion award without disputing the award...... Link to comment Share on other sites More sharing options...
LadynRed Posted January 6, 2005 Report Share Posted January 6, 2005 Since they already have the Arbitration award from their lapdogs , the NAF, what they are doing now is trying to get the award turned into a judgment thru civil court that can be eforced thru all the usual legal means. You're already on a slippery slope since they have the award in hand, but that doesn't mean you can't fight them and win. Link to comment Share on other sites More sharing options...
goodgirl008 Posted January 7, 2005 Author Report Share Posted January 7, 2005 So what should I do now? I need to respond to the Citation, but I am not sure if I that means following up with a second DV letter. If not, then I am not sure how to respond to the citation, what information do I give them? Link to comment Share on other sites More sharing options...
admin Posted January 7, 2005 Report Share Posted January 7, 2005 Look at the thread "If you're suing or being sued". You must answer the complaint (there is a questionnaire that goes along with it). How to answer it can be found in thre thread I mentioned. You must answer it on time. Link to comment Share on other sites More sharing options...
goodgirl008 Posted January 7, 2005 Author Report Share Posted January 7, 2005 So a 2nd or follow up DV letter to the first DV letter would not qualify as a response to the Citation I received? Link to comment Share on other sites More sharing options...
Recovering Attorney Posted January 7, 2005 Report Share Posted January 7, 2005 Absolutely not. It sounds like they have an arbitration award against you already. I don't know how much $$ this is or what you have to lose, but you might want to talk to a lawyer soon. Link to comment Share on other sites More sharing options...
goodgirl008 Posted January 7, 2005 Author Report Share Posted January 7, 2005 I will respond to the citation. The amount that the NAF awarded to the Plaintiff was $9400.00, even though the initial debt was for $7500.00. After sending my response letter, do I wait to see what there response is to that, or can I offer a settlement in my response. I am trying to settle with other creditors as well.thanks to all for the advice you all have offered, I don't feel so alone in my troubles anymore!.. Link to comment Share on other sites More sharing options...
ghacorp Posted January 7, 2005 Report Share Posted January 7, 2005 I have the same situation with W&A. DV requested, ignored, then filed suit. It is not known whether the suit was filed prior to the DV or afterwards. Most people don't realize that in some jurisdictions it can take up to six months to be served. W&A apparently has a knack for doing this and my case is a non-arbitration case brought on behalf of UNIFUND, a debt buyer. I expect the issue will addressed at trial scheduled for April. I am not worried in the least because there are numerous provable violations and there is no way validation could occur. The real risk is a judge agreeing to a default based on a statement from their custodian of records or perhaps placing the burden of proof on me that I am not the responsible party. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted January 7, 2005 Report Share Posted January 7, 2005 gha, what defenses did you raise in your answer? Common defenses are SOL ( late), lack of personal jurisdiction ( didn't get served). lack of legal capacity ( Unifund has no authorization to do business in your state) and failure to state cause of action ( lack of origianl documentation, failure to show how they came by the debt, etc)If by "violations" you mean FDCPA violations by W&A for failing to answer your DV, then you must bring a separate action against them. Their behavior in collecting the debt has no bearin gon whether or not you owe Unifund anything. There is case law addressing the propriety of serving legal process and not answering a DV. You may want to look for it. Link to comment Share on other sites More sharing options...
LadynRed Posted January 7, 2005 Report Share Posted January 7, 2005 I DV'd W&A last month, they got it on 12/28. Yesterday I get a 'settlement offer' in the mail !! One of those laughable 'our client is willing to settle for 75%' , pay us a lump sum by 1/27/05 !! These scumbags just never stop, they think they can ignore the law that says 'cease all collection activity until they validate' !!! Dirtbags... we'll see what they do next. 75% is no deal, I dont' have any cash laying around anyway and there's no way for me to 'get' any either. I don't THINK they can arbitrate this one, IF its the account I think it is, it was opened and closed long before these arbitration clauses got going. The whole problem is, I really CAN"T identify which FUSA account they're after -- I had two, and the paltry info they sent in the first demand letter made it impossible to know which account they are after. The amounts were even close on the 2 accounts, so I really do NOT know which one they have. They will get nothing from me.. if they sue I'll file BK in a NY minute ! Link to comment Share on other sites More sharing options...
ghacorp Posted January 7, 2005 Report Share Posted January 7, 2005 RA, As I recall, I anwsered with counterclaims on FDCPA violations ranging from failure to validate to doctrine of unclean hands. None of the parties were holders in due course and SOL was not an affirmative defense. I expect to receive Interrogatories soon in order to meet the April trial date. The suit was originally filed in 2003, however the plaintiff has been slow moving and has motioned the court for additional time to get their act together. They offered to dismiss the case after the Answer was filed if I would be willing to sign off on ID theft. Quite frankly I am getting the impression the local attorney affiliate is a nice guy and doesn't seem to want to knock heads with me on behalf of W&A. Shoot, I was only one who bothered to show up for the pre trial conference, yet the trial date had already been set by the court. I do however have proof they were requested to DV well in advance of the filing date. Link to comment Share on other sites More sharing options...
goodgirl008 Posted January 11, 2005 Author Report Share Posted January 11, 2005 In my response the the Civil Citation, could I just offer a settlement instead of dragging this thing out more and incurring more interest on the outragiouse debt I already owe? I could borrow money from family to pay and get this thing out of my hair, since my only other alternative at this point would be to file bankruptcy. Link to comment Share on other sites More sharing options...
LadynRed Posted January 11, 2005 Report Share Posted January 11, 2005 No. A settlement offer is NOT something you include in your formal Answer. Answer the allegations with affirm, deny, or lack sufficient knowledge and get it filed before the deadline. If you want to try to settle, contact the attorney and see if you can work it out, but make sure you get ANY agreement in writing. If they won't entertain settlement talks before court, its 99% certain the judge will send you to try to come to an agreement BEFORE you actually go before the judge for arguments. Take your WRITTEN settlement offer with you - at least 2 copies, one for you, one for the lawyer and make sure it gets SIGNED. Link to comment Share on other sites More sharing options...
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