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UPDATE to current suit with MBNA


razorack
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I have an update to my current lawsuit against myself with Rausch, Sturm, Israel & Hornick, S.C. the firm allegedly representing MBNA.

As most of you are aware I have been served with a Summons and Complaint , which Chase, Divemedic and DocDon looked at and I have posted the final answer, w/ counter claims, Brief and Support. I will post that in the lawyers section when done posting this.

When this first started and I was getting phone calls from CA, I came to this board and began my schooling.

I at first made an offer CA explaining what my budget was, and in that letter, told them I could only afford $75.00 per month, they of course did not respond.

So not knowing better at the time I called and asked if they were accepting my offer. They told me that they could not due to OC's guidelines and could take nothing less than payments that would pay this off in 10 months.

I then followed up with a letter making another offer in writing offering $75.00 per month with my budget outlined and included a money order for $75.00, staing that if they cashed the money order they were accepting my payment plan and that I would make this payment every month.

They did not respond and finally served me the Summons and Complaint. Well in the summons and complaint the 2nd paragraph states that Defendant has refused to pay, LIE, obviously.

This is an out and out lie, and to prove this I have all green cards, and low and behold, my wife yesterday checked with the post office and the money order made out to the CA has been cashed.

We have the green card showing they got it, it was made out to them, it had my account number with the CA on it and we have requested copies from the US Postal Service as we used a US Postal Service Money Order.

My question is this, I am on my way to court and filed my answers this past Monday and Proof of Mailing. Isn't the CA lying to the court in the complaint and should I not file for immediate dismissal on the grounds, the CA has lied to the court and accepted my payment plan. If not what should I do. The letter I sent is here:

Dear Sir or Madam:

I am not disputing this debt however, given my current financial situation, I am unable pay the amount you are requesting.

I am able to make monthly payments on this account to your company in the amount of $ 75.00. I promise to mail payments on the 15th of the month until my account is paid.

As a show of my good faith, please find enclosed my payment in the amount of $75.00. Please note that accepting (cashing) this payment constitutes a payment agreement between us according to the terms outlined above.

If you refuse my offer I expect the enclosed payment along with written confirmation that you refuse my "good faith" offer to resolve this issue be returned to my above address.

In accordance with the Fair Debt Collection Practice Act, Section 805©: Ceasing communication, please do not contact me again accept for the following reasons and then, only by official mail:

1. to advise me that further efforts are being terminated;

2. to notify me that you may invoke specified remedies;

3. to notify me that you intend to invoke a specified remedy.

If my financial situation improves, and I am able to increase my payment, I will contact you immediately.

Thank you for understanding.

Sincerely,

XxxX xxxxxx

So what is lying to the court in a complaint and filing a complaint against me stating I have refused to pay considered, when they got a payment, cashed the payment, thus agreeing to my offer of payments.

Will the court allow the to get away with this if I don't raise the issue.

How should I handle this will in court? Should I ask for immediate dismissal and if so on what grounds?

Please read my Answer I filed this past monday in the Lawyer section titled: Final Answer MBNA.

Thanks for your help,

razorack--

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Actually YES a creditor is within their legal rights to refuse payments or take enforcement action if less than the minimum amount required is remitted. Legally they ARE within their rights! This prevents debtors from claiming they can only afford a dollar or two when in fact they hold high paying jobs, own expensive cars and homes, etc. What YOU should consider at this juncture is credit counseling whereby the creditor may still deal with you even though they have filed suit for recovery. MBNA is one such institution that would rather have their money as opposed to suing people truly down on their luck and losing it all in bankruptcy court. Bar in mind that if banks allowed debtors to send in only what they wanted to or felt they could COMFORTABLY afford their executives would NOT be making millions of dollars a year in salary and stock options and the lenders would probably be bankrupt! Demonstrate to them that you are indeed poor beyond belief and I think they would be willing to work something out with you!

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I am not sure you understand my question. I understand everything you stated, I was asking something completely different than what you answered.

I know what they can and cannot do. I was aksing if I had a case for dismissal due to the fact that they cashed a money order which was sent to them with a letter that stated if they cashed the money order that they were accepting my payment plan, and then filed a compaint stating in the complaint that I had refused to pay, in other words they have lied to the courts in their complaint. I wanted to know if this was grounds for a dismissal on the basis they have lied to the courts in their complaint, and if I should file a motion for summary judgement.

razorack--

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