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Lawyers dirty tricks AGAIN


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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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First of all, it's never a good idea to send that letter on the terms that you did. You basically said "I'm sending you some money...don't ever contact me again or I'll sue you"...they had no choice but to file against you.

I don't know if that 'agreement' would have too much standing. They don't have to agree to any kind of payment plan if they don't want to - and you didn't give them a chance to negotiate because you outline the cease communication. I would think that would be like putting a restrictive endorsement on a check ('cashing this check constitues payment in full", etc)...it doesn't always work that way. And it's not mandatory for companies to take them most of the time. (Some states make it so)

I would bring the issue up in court just to show you attempted payment arrangements to score points with the judge...but that's about all I personally see.

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Again thank you for your advice or should I say thoughts, :)

Do I have the right to bring up other violations that they have made since the DV, things like continued collections and other issues, and if so what form would I need ot do I just keep track and bring up in court.

I have ben talking to another gentlemen who is here is Michigan and is 2 -3 steps ahead of me with this same law firm and MBNA. He is awaiting a Judges ruling on very similar case in another Circuit Court a few miles away, so I am very anxious to see how it goes for him.

Anything else you can think of that I should be doing at this point or should add to my counter claims and or answer that I filed.

You are awesome thank you for tkaing your time to talk to me.

razorack--

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If you knew you had all the other violations already, why didn't you counterclaim them? You JUST filed them, right?

You can always go back and amend your answers/counters if you want. Check your local rules on exactly how to do that, though. Make sure you don't have to ask permission of the Court first.

:D

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