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Cap 1 suit


tootired
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Posted this in another forum, then realized it should have probably been in here:

Hi,

I need some advice on how to handle my situation. Here is the history:

I was contacted by Zarzaur & Schwartz on behalf of Cap 1 with a balance of $6800. I immediately DV'd them after reading on this board and they sent a single sheet on Cap 1 letterhead stating that I owed $5914.80 (no breakdown of how). Then I also received another letter from Zarzaur stating I owed $6359.00. They also never reported as disputed on my credit. Now I have received a notice of lawsuit that I have to answer by next Friday (the 6th). The balance on the complaint I received said $5914.80 plus interest and fees. I did call them to see what they said and the rep said if I "agreed" to the debt she would send me a Letter of Consent Judgement and the lawsuit would be dropped and they would break up the payments over 21 months. Or I could settle immediately by paying $5500.

What exactly is that letter - is it a judgement? And, if could I possibly get them to settle for less than that if I resend them the original DV and proof that the account was never listed as in dispute?

Thanks!

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What exactly is that letter - is it a judgement?

Pretty much, yes. If you sign it, you are GIVING them the judgment and it WILL be recorded against you. By signing the 'consent' and agreeing to their payment plan, they are agreeing to take your payments and NOT use the courts to enforce collection on the judgment. However, if you are EVER late or fail to pay on schedule, the judgment goes into full force and you're likely to find bank accounts levied and possible wage garnishment proceedings started.

What they sent you is NOT proof of the debt in any way as there is no accounting of how they ARRIVED at the alleged number they say you owe. and there's nothing with your signature on it.

How old is this debt ? When did you last pay the ORIGINAL creditor ? What state are you in ??

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The debt is not that old. The last time I paid the OC (which is Cap 1) was in August of 04. They turned it over to Zarzaur and Schwartz. I am in Alabama. I pulled my Transunion credit report today just to make sure it was not listed as in dispute and it wasn't. Also, the balance listed on my credit report is now $7,059. So now there are four different balances I have seen. If I can get a favorable settlement (around $3000) I will borrow the money from my parents to pay it. I'm not trying to get out of paying it - I just want to get a fair amount. Should I send the papers showing all the different amounts to them as well as a copy of the credit report and DV letter and offer to pay them what I can?

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You DV them and tell the lawyers that you consider their actions violative of the FDCPA and you may sue them - the lawyers- for their transgressions. Looks like they are lumping in attorney's fees without specifying them. PM me with teh complaint language and I can suggest how to answer it. You will be best served by DV'ing them and answering the complaint ( DV alone won't stop the lawsuit)

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Yes, DO NOT agree to or sign any "consent to judgment". If there is ever to be a judgment at LEAST make them go to court and get it like men.

DO NOT ever admit verbally or in writing to any debt owed in any of your negotiations. Doing so sinks your own boat by default.

The COLLECTION ATTY's are DEBT COLLECTORS as far as FDCPA is concerned. So they were/are bound by the 30 day timely validation prohibitions, etc, etc.

So you timely DV'd them, and they did not provide what any trier of fact would veiw as "validation or verification" in response. So the Lawsuit IS continuing collection activity. The lawsuit is ALSO threatening to take legal action that they are not entitled by law to take (since they were REQUIRED to suspend collection activity until validation). Also the "lumpsum" claim without breakdown could be considered false/misleading statement about the amount and ststus of a debt. A least sophisticated consumer OR household biull payer might be MISLED into just paying the invoice as if it were an invoice for actual charges made by the consumer. They also didn't alter your CR TL to reflect "disputed" status.

So Violations:

FDCPA continued collection activity, both communications in the form of the second letter AND the summons for suit.

FDCPA threatening taking legal action not allowed to be taken due to the above prohibition. The summons IS the threat.

FDCPA false/misleading information about a debt in that the lumpsum does NOT correctly inform the consumer about the amount and character of the alleged debt.

Clearly enough for the $1K full penalty for FDCPA.

FCRA failure to report debt in "dispute" on your CR's. Which constitutes false/misleading information about the status of a debt. $1K PER violation, so per CRA and if they are actually REPORTING... actively filing a report on the TL each month, each time they do so with the false information it is a violation.

FCRA... anything ELSE wrong, incorrect about the TL on your CR's? Nail them on every single individual item of information that is not true/accurate... $1K per violation.

SO you look like you have at least some counterclaims to mitigate the amount of the debt if they were to get a judgment.

Further, did the LAWFIRM obtain your credit report? It would be listed under "inquiries", if so you need to subpeona the CRA it is on and obtain the certifications provided by the atty for accessing your report. If they did NOT provide the correct certifications for permissible pupose access, then you have another FCRA violations AND both state and federal CRIMINAL violations for procuring a consumer CR under false pretense.

Also, edit your post to remove the "I OWE" part, and NEVER EVER do that again.... the walls have eyes.

Noone here will "judge" you, we've all been there. SO no need to tell us you aren't trying to be a deadbeat (as the collectors call us all).

If you can, scan in the dunning letter and the summons...REMOVE using Paint all personal acct numbers, names, etc.... and we can help you further. The miranda's o the dunning letter, the Crap1 response letter, etc could all have MORE violations in them but they need to be studied directly.

________

Vaporgenie Vaporizer

Edited by uwackme
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Hey thanks so much for your answer and offer to help on my problem with Zarzaur and CAP 1 suit. I have scanned in my files but I'm not sure how to get them on the forum. I can also email them to you if that would help. I'm really stressed about all of this. As you can see in the files, they sent me the first letter on June 7 and I DV'd them on June 10. They sent another letter on June 21 and then I got the green card back where they signed for the DV letter on June 28. The next thing I got was the letter dated September 23 with the "Statement of Account" from CAP 1. I know I should have sent them another letter at that time stating that it wasn't correct validation but on September 16 my ex-husband and father of my two children allegedly committed suicide and that was such a tragic and devastating loss that I didn't do anything for awhile except deal with it (it's not over, the investigation is still on-going). So, then I received phone calls and now the Complaint. I don't have any money. To settle, my current husband has agreed to take a hardship withdrawal from his retirement account just so this will be taken care of. We have alot of legal issues left with my ex-husband's death and I have to focus on that. Any help you could provide would be appreciated. I have typed up an settlement offer letter that I can enclose as well. I'm sure it needs to be reworded.

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You will have to get some education on the civil proceedures for the court this is being brought in. There are example's of basic answers on the forum, use the search forum... answers and counterclaims... for example wording.

Question is whether your ruls are strict or loose. Strict would require you to get everything ready now... answer thier claim formally with all affirmative defenses, and counterclaims layed out. Loose would allow you to file a simple answer and amend to add specifics defenses, and counterclaims later.

Depending on the rules, you will want to either use a basic answer simply denying thier claims, and stating you do not recall and have been given insufficient information by plaintiff to even form an opinion about thier claims.

Also file a Motion for Summary Dismissal on the grounds they are violating the FDCPA prohibition on continued collection's activity pending thier providing you formal debt validation in accordance with FDCPA.

Im sorry Im not Jedi enough to have all the statute cites on the tip of my fingers, but the forum is full of examples citing the exact statute sections for each violation.

You'll need to read this ENTIRE forum and the entire collections forum, and I'd suggest also reading over on AoC for information as well.

If you dont feel up to it, and it is a complex task going ProSe in court, then yes hire a lawyer.

On the FDCPA and FCRA violations THEY... assuming you prevail... will be on the hook for YOUR legal costs. And you have such a rock solid set of violations that you should be able to find a lawyer to take you on, maybe even on contigency or for a very small up front payment.

On the documents, once scanned in, use Paint (assuming you are on Windows here) and FUZZ out the acct numbers and names so your personal info is not in the open. Then find an image hosting website... thier are lots, for free. Upload the images to it, and then use the links provided by them along with the Img box above to insert the link to the images into your post. Once you do it, it'll be easy.

If you do decide to get lawyer help, use this resource to "package" the case as an easier sell when hunting for the lawyer.

Most likely the proper thing to do is once the answers are in and a hearing is scheduled, if faced with going to trial you will want to file a Motion to Transfer to Federal court. Since there are matters in your counterclaims clearly Federal, as well as this is a consumer debt covered by the Consumer Protection Act (FDCPA/FCRA are a subset) Federal jurisdiction is clear. The motion to transfer should easily be granted, but there IS a time limit to make the transfer motion, 30 days from the start of trial I believe....its in the FRCP.. Federal Rules of Civil Proceedure.

________

VOLCANO DIGITAL REVIEW

Edited by uwackme
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