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being sued by applied card bank


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I just have a quick question,

I answered a summons for a law suit for $1029 with an affirmative defence and counterclaim, and today i recieved a motion to dismiss couterclaim can someone explain what happens afer this? The law firm wants me to dismiss the claim against them because I sent my dv letter a few days after there so called collection letter so thats there defense!!! funny!! they say there defense is that the FDCPA doesnt apply to them since there just ACTING on behalf of the CA BUT on one of my letters it says they are a collection agency and this is an attempt to collect a dept doesnt that put them under the rules???? and even if my dv was late does that mean they dont have to validate and they get to sue me????

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You need to look up your state's code of civil procedure and find out what statute to cite and also a valid reason for objecting. There is an objection template in the forms/answers/counterclaims thread sticky above.

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I just have a quick question,

I answered a summons for a law suit for $1029 with an affirmative defence and counterclaim, and today i recieved a motion to dismiss couterclaim can someone explain what happens afer this? The law firm wants me to dismiss the claim against them because I sent my dv letter a few days after there so called collection letter so thats there defense!!! funny!! they say there defense is that the FDCPA doesnt apply to them since there just ACTING on behalf of the CA BUT on one of my letters it says they are a collection agency and this is an attempt to collect a dept doesnt that put them under the rules???? and even if my dv was late does that mean they dont have to validate and they get to sue me????

They're bullshitting you!! A Supreme Court ruling known as HEINTZ VS. JENKINS has already set the precedent that attorneys acting on behalf of debt collectors are subject to the FDCPA. Besides, as you say, their own letters state that they are debt collectors. I'd also recommend checking out their website, if they have one, and see if they describe themselves as debt collectors.

As far as the DV is concerned, I think that they are allowed to move to sue if you don't DV within 30 days of their initial communication. However, I'm not sure if they HAVE to DV after 30 days. The FDCPA section on DVing is very ambiguous to me when it comes to the 30-day period. I'm quite sure someone else on this website knows more than I do concerning that.

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yeah, just do what ADMIN says. They don't have anything else to go with. What was your counter-claim based on? Oh, and they ARE debt collectors, since they are attempting to collect a debt. Now, if they are attempting to collect on an active account that has not been sold or transfered by the OC (applied card bank) then you have no defense with FDCPA. However, if they sold the account to a JDB, then yeah, you have defense. But the OC doesn't have to abide by the FDCPA since they are the ones who gave you the money, so they can't be debt collectors if they gave you the money. Now, if ABC Collections was harrasing you, and telling you lies about what they could do to you, or threatening you with harm, then they could be held accountable by FDCPA. But the OC can hire attorneys, and can sue you. They can't do anything illegal, like threaten you, but they can call you over and over again. Most OC's wont' step outside the boundaries of the FDCPA though, for PR reasons. But, they aren't held to them.

Does any of that make sense?

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nope the debt was never sold, they are just actin on behalf of applied card bank. So i guess ill just shuffle papers back and forth until they get tired? lol. But how do I get rid of them if they dont actually have proof I even owe them money?

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Is Applied Card Bank using Mann-Bracken? If so they tend to settle rather than follow through with the suit. If you can afford to, send them (the law firm) a settlement offer of 30% if they drop the suit and delete the entry from your CR. It will probably be refused, so then offer 50%. They usually take 50% but sometimes won't delete.

Applied Card has been in deep do-do with several state AG's. Google them and you'll find plenty of law suits against them. Or google Cross Country Bank since they are one and the same.

As for suing for violations the law firm committed, that will depend on your state law. Here (WV) an attorney cannot be sued for acting as a debt collector unless you are in federal court or unless they own the debt.

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  • 1 month later...

I havent been keeping up with the board lately but i just wanted to let everyone know what happen with my suite. I was being sued by some attourneys from applied card bank, SO i answered a summons and they tried to have it dismissed (my counter claim that is)

when i went to court i was so nervous!!! the attourney asked if i wanted to settle before seein the judge and i played dumb!! i said no thanks and saw the judge. after they talked a bunch of mumble jumble talk she asked me if i had anything to say i told her all i asked for was for them to verify and they have not done so. she advised me that i cant sue the collection agency and who ever is telling me this stuff (the net) is wrong!! i said ok sure so i dont know all the legal formalities but i got the jist of it and it got me by!!

the judge threw out the case based on the attourneys not having proof!! she said for them to get me my stuff or leave me alone!! whooooooooooooo i win!!! tho i havent seen anything from them yet!!!

does anybody know what i can do from here? im so happy i won the case no money but atleast they didnt get any either and the attourney even paid for copies for me of the case!!

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this is how it reads

ORDER DISMISSING DEFENDANT/COUNTER-PLAINTIFFS COUTNER CLAIM AND ORDER STRIKING DEFENDANT/COUNTER PLAINTIFFS COUNTER CLAIM AS TO THIRD PARTY SHERMETA ADAMS & VON ALLEN PC

it is hereby ordered that defendant/counter plaintiffs claim fails to state a claim upon which relief may be granted.

it is hereby ordered that as a result of defendant counter plaintiffs failutre to state a claim upon which relief may be granted plaintiff counter defendant is entitled to relief as a matter of law.

it is hereby ordered that defendant counter plaintiffs claim is striken as to third party shermeta adams & von allmen pc

it is further ordered that the relief sought by plaintiff counter defendant applied card bank is hereby granted and the defendant counter plaintiff coutner claim is dismissed with prejudice and without costs or attorney fees to any party. this judgment resolves the last pending claim and closes this case.

ANYBODY CARE TO BREAK THIS DOWN PLEASE?

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Sorry, I agree with IHateCAs, it also looks to me like you lost: The relief (money damages) sought by Applied Card Bank was granted, and your claim against Shermeta Adams etc was striken (tossed out) with prejudice (barred from being filed again) without costs or atty fees to any party (eveyone pays their own fees/costs).

It also says that you failed to state a claim, meaning you had no valid legal basis for your countersuit (which can also apply if you have a valid reason, but did not word it properly).

BTW, an attorney acting as an agent for a debt collector IS a debt collector, and subject to the FDCPA. An attorney acting on behalf of an original creditor is usually a considered a debt collector, and most of their correspondence will say so.

Since the written judgment change so drastically from what you say happened in court, it's possible that you misunderstood the proceedings. Next step will be Applied attempting to collect on the judgment, which will include additional fees and interest, and said judgment probably -- but not definitely -- showing up on your credit reports. Just my opinion, but at this point you may want to arrange a payment schedule so they don't garnish wages bank accounts, or anything like that.

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Ok i just spoke with the courts she advised me that the case is not closed its pending and they over looked the papers to file the hearing for the initial suit against me duh!!! do i have any recourse ? .

the clerk said she would send a notice of hearing

also if i am going to settle what leverage do i have since the judge did tell them they needed to verify before they proceeded and they havent done so to date i just want to make sure i get the best deal possible. worse case thats my arguement in court!! they still havent done what the judge asked

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You might try consulting with a lawyer on this one....usually initial consults are cheap. There is much that seems to be confusing here.

If nothing else, maybe you can set up some kind of a payment schedule.

By law, in most states, the MAXIMUM they can garnish is 25% of your earnings.

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Sorry to confuse people, I orginally had a suite against me for $1029 from applied cark bank (shermata adams the lawyers acting for them). I had never been in any situation like this so from reading message boards the next step was to file an answer, so i filed it along with a counter claim, and let it go to court, thats how the counter claim was thrown out and I was under the impression the case was closed. but according to the courts the case is still open and no money judgement has been issued for the plaintiff.

so I now am waiting for the court clerks to send an appearance letter to finish out the suit for the $1029. it just looks as tho after we had that hearing to dismiss my counter claim everyone dropped the ball including the people who had the law suit against me and i think it was mainly because they hadnt provided me with any proof of owing them as the judge requested but non of this is in writting. but i figure if they thought they truly had a case they wouldnt have let the ball drop on there end right? or just maybe just thought i would let it go?

but i want to fight for my rights!!

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Ok, I'm out...a lot of contradictions here. You say no money judgement has been entered, but your 8/29 post sure looks like relief was granted to the plaintiff (Applied). You may wnat to consult an attorney, or at the very least the legal aid at your local court.

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