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Advice, please -- being sued, any options?


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Hi, everyone: I just discovered this site today and as you can tell by my UserName I am an Idiot With Money.

I am inquiring bout a lawsuit in which I am a defendant and per the board's suggestions, have tried to answer the following questions as much as possible:

1. Who is suing you?

NCO Portfolio Management, Inc. as assignee of Cross Country Bank nka Applied Card Bank.

2. For how much?

$2,154.80 principal; $3,008.19 accrued interest, $680.00 attorney's fees - a grand total of $5,842.99, plus court costs.

3. Who is the original creditor?

Cross Country Bank (bastards).

4. How do you know you are being sued?

Served w/a Summons + Complaint today.

5. How were you served? Were you served?

I was at work, came home to find a card in my door, called the lady and met her to pick it up. Yes.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

I don't remember receiving anything from them. Of course, I probably did and threw it out. (Denial doesn't work, I've found.)

7. Where do you live?

Currently, Colorado. I opened this cc account when I lived in MO.

8. When is the last time you paid on this account?

Approx. 2000.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily).

Active, I assume. I have to appear in court in a couple of weeks OR file an Answer.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

No.

12. Did you receive an interrogatory (questionnaire) regarding the lawsuit? In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are.

No.

Basically, as background, I opened a loan-shark credit card account (as I refer to it), I got in over my head, asked the account be closed, so I could pay it off and they actually laughed at me. I quit making payments, because I was not able to keep up, moved away from MO in 2001, and haven't heard from them since, until this suit.

The embarrassement has me considering calling their attorney to try to negotiate a settlement, but due to working part-time, I would not be able to make large payments.

Is the best choice to let the court enter a judgment on me and have my wages garnished?

Any information and/or advice would be greatly appreciated. Frankly, I'm pretty scared at this point, and it's all new to me. . .

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Is the best choice to let the court enter a judgment on me and have my wages garnished?

Absolutely, positively NOT!!!!

I'm fairly new, but still, I've learned a lot in these few months. First thing: Never give up.

Make sure you find out the SOL (statue of limitations). Now, I don't know how it applies to your situation since you opened in one state and live in another, but someone here with much more experience can help you out with that one.

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They can legally choose which state, however, most judges like their own! :wink:

If you click the SOL link above,

CO 6 6 6 3 and

MO 5 10 10 5

The last column is "open-ended" accounts which is the category that a credit card falls into. YOU need to confirm the last payment on this account, but if you are correct that you defaulted in 2000, it is out of SOL in both states, so it doesn't matter which state they claim. In your answer, you MUST cite the affirmative defense of SOL and they will be SOL when the court dismisses the case!

Stay on top of this! It would be a complete waste to get a judgement of this size, by a default, when a simple SOL answer will wipe it out all together.

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According to my TransUnion credit report, the last date paid is 07/2001, which is most likely correct. I moved out-of-state a few months later that year, and am pretty sure I didn't make a payment since then. Does that mean it qualifies for SOL expiration?

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I would say CO would apply, though they might argue MO.

On the other hand they may not have a shred of evidence of the debt. What kinds of things did they send with the summons? What kind of response do they want?

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Here's what I was served with:

Summons (for June 19th)

Complaint

Copy of the Cross Country Bank Credit Card Agreement

Template form for Answer

Copy of contact info sheet from the attorney's office, with their phone number, etc.

1. On the agreement - is your signature on it?

2. With the template, I'd just write or type, see attached sheet. Use the template in the sticky, Forms, Affirmative Defenses, etc. to word your answer. Admit nothing unless they have provided proof, and demand proof if not given.

3. File your answer with the court and with the attorney.

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Forgot to answer that part. . .

As I understand it, I have 2 options:

(1) I appear in court on June 19th OR

(2) I file an answer with the court before that date.

The Answer form says:

1. The amount of damages claimed to be due the Plaintifss by the Complaint in this action is not due and owing for the following reasons:

OR

the Plaintiff is/are not entitled to possession of the property and the Defendant is/are entitled to retain possession for the following reasons:

OR

the injunctive releift requested by the Plaintiff should not be allowed for the following reasons:

2. (If applicable) The Defendant asserts the following counterclaim(s) or setoff(s) against the Plaintiffs:

3. (If applicable) The Defendant asserts the following crossclaims against ___________, named Defendant (you are limited by the jurisdiction of the court).

4. If a counterclaim is asserted above, you must check one of the following stmts:

* The amt of the counterclaim does not exceed the jurisdiction of the court.

* The amount of the counterclaim exceeds the jurisdication of the court, but I wish to limit my recovery to the juris of this court.

* The amount of the counterclaim exceeds the juris of this court, and I wish the case transferred to the Dist Ct.

Then, they ask if I do or do not want a jury trial.

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I'd still take a separate piece of paper to put your answer on. Those forms are pretty small.

The Answer form says:

1. The amount of damages claimed to be due the Plaintifss by the Complaint in this action is not due and owing for the following reasons:

OR

the Plaintiff is/are not entitled to possession of the property and the Defendant is/are entitled to retain possession for the following reasons:

OR

the injunctive releift requested by the Plaintiff should not be allowed for the following reasons:

We believe that amount of damages are not due becuase the Plaintiff lacks the legal capacity to sue. The Plaintiff lacks the legal capacity to sue for the following reasons:

1. The statute of limitations has past, per Colorado civil code (look it up).

2. The Defendent has no contract with NCO and has no monetary exchange with the Plaintiff

3. Even if the debt were valid, the Plaintiff has provided no proof that it is the assignee of the alleged original creditor, Cross Country Bank.

4. A copy of a standard agreement from Cross Country Bank is not proof of an agreement between alleged original creditor and Defendent.

(I've gotten you started here, you can cherry pick a few other ones from the "forms, affirmative defenses, etc.")

2. (If applicable) The Defendant asserts the following counterclaim(s) or setoff(s) against the Plaintiffs:

If you want to go this far, you can. Pick a few good applicable ones from the template in the sticky "forms, affirmative defenses, etc."

3. (If applicable) The Defendant asserts the following crossclaims against ___________, named Defendant (you are limited by the jurisdiction of the court).

4. If a counterclaim is asserted above, you must check one of the following stmts:

* The amt of the counterclaim does not exceed the jurisdiction of the court.

* The amount of the counterclaim exceeds the jurisdication of the court, but I wish to limit my recovery to the juris of this court.

* The amount of the counterclaim exceeds the juris of this court, and I wish the case transferred to the Dist Ct.

Then, they ask if I do or do not want a jury trial.

No, don't ask for one.

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Thanks very much for the help!

I am finding conflicting info on the SOL in CO. Is it not 6 years for cc debt?

Also, can I try the assignee portion (that I don't know if they are one), if my credit report no longer mentions CC Bank, but shows under "Original Creditor" "NCO/Assignee of XCntryBk"?

Is my best bet to call the attorney and try to negotiate a settlement for the principal amt of $2,154.80? I think I can pay this off over the next 3 mos.

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If the statute says 6 years, then that's what it is and you can't use it for a defense. But you have plenty of others.

Don't settle!! You don't know what they have - they may have ZERO and to me that's what it looks like. You can also file a motion (if Colorado procedures allow it) to ask for production of documents (or discovery, if that's what they call it) to see what they have.

Here's another thread you might want to read.

http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=44700

And don't call the attorney. You will only get abuse.

Best of luck!

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Here is the Self Help website for the CO courts. The courts run the site so you will find a wealth of info here. Do you know which type of court they filed in? District, County, or Small Claims?

Admni and Gibson are right you need to fight this with everything you got. This is not personal it is business. Make NCO work for the money.

Read up on the court procedures and read up on the rules of evidence. I have read a great deal on this site but I feel the rules of evidence are not pressed enough. For example in VA if they try to admit an agreement or bill of particulars as evidence without someone from Cross Country Bank vouching for them then it is hearsay. The premise behind the argument is that you can not cross-examine the custodian about the authenticity of the document. Another favorite of mine is affidavits. In VA, normally, you can not enter an affidavit as evidence without the original signer there. Usually affidavits and depositions are used to impeach a witness on cross or help refresh someone’s recollection on direct. The premise is that you can not cross-examine the affidavit.

I hope this helps get your juices flowing and prepares you for the ensuing battle.

=============================

Knowledge is power and power is everything

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OK.......

Take a moment and READ that agreement.......

In many credit card agreements, they cite that the laws of "state" will be the controlling laws.....

Cross Country bank is based in DE. from the same site you were shown above, DE has a 4 year SOL on open accounts. So it is 3 years fo CO, 4 years for DE (if the cc agreement sets DE as the controlling state.). USE their agreement against them!

Also, you might want to see the outcome of this:

http://www.ag.state.mn.us/consumer/PR/pr_CrossC_40303.htm

hmmmmm, this could get interesting!

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