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HELP!! Hearing (?) on Oct. 12 & (Maybe) being sued by LVNV


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Hi all,

I just registered on this forum, though I've been reading the posts for a while as a guest. I have learned so much here. Thanks!!!

I am now dealing with a lawsuit...ugh, my neck muscles are SO in knots over this.

The hearing date on the lawsuit I explain below is supposedly this Thursday, Oct. 12 at 9am, so if you can provide any help on short notice, I'd greatly appreciate it. I didn't post before now because I just received the complaint a matter of days ago, and per the courts, this lawsuit hasn't even been filed yet. But per the courts today, the Plaintiff might have already filed, yet the courts don't have it in their computers (??). The lady at the courts got a little testy with me when I called today, though I was polite to her and was only seeking information in my case.

Anyway, here are the pertinent details:

--I completed the Credit Info Center lawsuit questionaire; scroll down further to see that

--per courts on Tues., 10/10, 1:15pm, lawsuit hasn't been filed yet (when I called courts on Fri. 10/6, they told me that lawsuit must be filed no later than 48 hrs before hearing date, so this would be 10/10 at 9am)

--courts told me to call back on Wed., 10/11 around 2 or 3pm to see if anything has been filed yet, because maybe it really has been filed but they don't have a record of it yet

--IF nothing has been filed, and nothing is filed before hearing on 10/12, I assume I don't file an Answer? Or what would I do about this lawsuit, if anything?

--However, I am trying to be proactive, given that I am in limbo as to whether there will or won't be a hearing on 10/12 at 9am, and given that I don't know whether lawsuit actually has or hasn't been filed.

--So in terms of filing an Answer or coming up with a strategy for dealing with this lawsuit, I have determined the following. It looks like, per what is on 2 of 3 of my major credit reports, my last payment to Bank of America was in Sept. 2003. I got the B of A credit card while I was living in North Carolina. I incurred all of the debt on the credit card when I lived in North Carolina. (I lived in NC for many years before that.) I have lived in Colorado for 2 years.

I have wondered whether I am under NC or CO jurisdiction for this debt, because even though I live in CO now, I got the credit card in NC, and all of the debt was incurred when I lived in NC. I called the Colorado Attorney General's office and spoke with someone with the State of Colorado Collection Agency Board. He asked me where the debt was incurred, and I said NC. He said I'm under the NC jurisdiction for this debt. (He said CO mainly deals with other types of debts, not credit cards that are issued by large national banks; they deal with things like local debts.)

So I called the NC Attorney General's office and spoke with someone. She, too, told me that I am under the NC jurisdiction for this debt. She said the SOL in NC is "3-4 years." (??) She said I should look at the time the account was charged off, and the SOL would be 3 yrs from the time it was charged off. (My comment: even though NC Atty Genl office told me this, I don't think it's correct--I've always heard that the SOL clock starts ticking on the date of my last payment. Am I correct in this?)

So in terms of this current lawsuit, I am thinking I should go ahead and assume that the lawsuit has been filed (though maybe it hasn't been), just so I can be prepared in case there is in fact a hearing on Thurs. 10/12 at 9am. So am I correct in concluding that I'm under the NC jurisdiction for the SOL and that the SOL has expired (as of Sept 2006) on this debt? If so, how should I answer the lawsuit? What should I say? Is filing the Answer form in writing sufficient, or do I need to also go to the court hearing and present any evidence? If so, what evidence?

What would be my exact verbage that I should write in my Answer, if I, for example, give the "SOL expired" defense? Would I need to provide any proof/evidence that the SOL has expired AND that I am under the NC SOL (not the CO SOL) for this debt? Also, I am familiar with that standard paragraph that say "The defendant is at this time without sufficient knowledge..."

Here is the Credit Info Center standard questionnaire, along with my info:

1. Who is suing you? LVNV Funding

2. For how much? $9431 (much higher than original debt)

3. Who is the original creditor?

Bank of America

4. How do you know you are being sued?

Summons & complaint (not in envelope) was left in my screen door handle.

Strangely, the documents are dated "June 22, 2006" yet I just received them a week ago, Oct. 2, 2006.

5. How were you served? Were you served?

Summons & complaint (not in envelope) was left in my screen door handle

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

None

7. Where do you live?

Colorado (BUT credit card was obtained when I lived in NC, and all of this debt was accumulated when I lived in NC); I have lived in CO for 2 years

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

Sept 2003

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).

SEE above info, where I explained all that.

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?

NO

12. Does your summons require a response? We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

"Failure to make payment on account with Plaintiff."

Attached to summons is form titled "Answer Under Simplified Civil Procedure (including counterclaim and cross claim"

I am supposed to complete that form and file it, on or before Oct 12 at 9am.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

None. All I received was Summons, Complaint, and Answer form. Summons and Complaint contained very basic info, mostly "boilerplate."

Thank you again SO MUCH!!

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If you were summoned to appear (with a date and time) before court, show up. It sounds like this was sent to you from a process server or the USPS man was trying to deliver a CMRRR letter but failed and instead gave filled out an absentee certified-notice.

The court that is hearing the case is printed on the summons, it should also have the address.

Complete the questionnaire and see if you can get in touch with a lawyer quickly tomorrow to review it (post it here and the responses to intend to come up with if you like).

Your defense for this will be improper jurisdiction (this should get it dismissed). Remind who is at the hearing that the plaintiffs have not provided you with any information regarding the debt, such as what the amount is for or that the debt is within the Statute of Limitations for NC, and that this suit should have been filed in NC, not here.

By the way, DV THE CA/JDB RIGHT NOW. Go search for a sample DV letter, ship it off CMRRR. You want them to validate the SOL date and profide proof after you get this dismissed on hearing. If they can't give you none, chances are that they won't be very convincing at proving anything should you countersue them for trying to collect on an out-of-SOL debt.

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You live in CO, so you get sued in CO. The SOL is a procedural rule, I would argue the CO SOL for contracts or the like applies, not NC's.

Spend a couple bucks and go see a lawyer tomorrow, someone who can give you a straight answer because they practice in the courts everyday. You will be way ahead if you do.

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If you were summoned to appear (with a date and time) before court, show up. It sounds like this was sent to you from a process server or the USPS man was trying to deliver a CMRRR letter but failed and instead gave filled out an absentee certified-notice.

The court that is hearing the case is printed on the summons, it should also have the address.

Complete the questionnaire and see if you can get in touch with a lawyer quickly tomorrow to review it (post it here and the responses to intend to come up with if you like).

Your defense for this will be improper jurisdiction (this should get it dismissed). Remind who is at the hearing that the plaintiffs have not provided you with any information regarding the debt, such as what the amount is for or that the debt is within the Statute of Limitations for NC, and that this suit should have been filed in NC, not here.

By the way, DV THE CA/JDB RIGHT NOW. Go search for a sample DV letter, ship it off CMRRR. You want them to validate the SOL date and profide proof after you get this dismissed on hearing. If they can't give you none, chances are that they won't be very convincing at proving anything should you countersue them for trying to collect on an out-of-SOL debt.

We have had this conversation before.. her venue is CO not NC.. doesnt matter if she opened up the card in NC or not. .. its like me going to Macy's in New York and opening up a card while shopping there.. and then continuing to use it there (which I do online).. it doesnt matter.. if she is sued that would require the CO judge to know NC laws.. not to mention the lawyers.. she is sued where she lives.. and the SOL in that state is 6 years.

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Today I called the county court to find out whether this lawsuit had been filed and whether there is a hearing or not tomorrow morning at 9 a.m.

Per the woman I spoke with, as of this afternoon, nothing has been filed by the plaintiff, yet a plaintiff must file a lawsuit at least 48 hrs before a hearing date. And the "summons and complaint" I received specified a court hearing of Oct. 12 at 9 a.m. (I am putting "summons and complaint" and "lawsuit" in quotes because there is no real summons, complaint, or lawsuit.)

So the woman at the court told me that there will not be a hearing tomorrow at 9 a.m., and thus I do not need to be at court at that time. Also, she said I cannot file an Answer, because there is no case number, because there is no case, and there is no case for me to Answer.

She said the plaintiff would need to serve me again, if they want to have a case.

So that is a relief, though it is all quite weird, too--that I would receive a summons and complaint on Oct. 2 that was dated June 22, that I would receive this paperwork listing a court hearing, yet the plaintiff didn't even file the lawsuit, etc.

Here is my next question. I was reading on the Colorado Atty General's Web site here:

http://www.ago.state.co.us/CADC/BrochureEnglish.cfm

It says the following, under the fair debt collection practices:

"PROHIBITED COLLECTION PRACTICES

A debt collector may not:

Misrepresent that papers are legal documents when they are not or that papers are not legal documents when in fact they are."

Correct me if I'm wrong, but when the collection agency/law firm delivered a summons/complaint to me, yet didn't file that with the courts (also see my original post at the beginning of this thread), didn't they violate the collection practice that I just quoted? If they did, what should I do? Report this to the CO Atty Genl's office?

Thanks for all your help and great tips!!!

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Are you sure that the courthouse you contacted is the one where the suit was supposedly filed?

If you are, and the CA simulated process, that is a violation of the FDCPA. I would get a lawyer and sue them. Now. This is a guaranteed win. They cannot claim an error defense, they cannot claim any defense at all. You will win, they will pay you lots of money, and they will pay for your attorney.

Read "prohibited practices" under the FDCPA.

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Are you sure that the courthouse you contacted is the one where the suit was supposedly filed?

If you are, and the CA simulated process, that is a violation of the FDCPA. I would get a lawyer and sue them. Now. This is a guaranteed win. They cannot claim an error defense, they cannot claim any defense at all. You will win, they will pay you lots of money, and they will pay for your attorney.

Read "prohibited practices" under the FDCPA.

Yes, the (county) courthouse that I contacted is the same one where the suit was supposedly filed; it's the court that's listed on the "summons and complaint" I received.

Thanks for the tip, and I will find a lawyer about this. Any tips on how to find a lawyer in my area who specializes in this type of law? (There are lots of bankruptcy attys, of course, but I can't seem to locate one who specializes in debt or consumer law.) Wow, what you said is amazing. When you say lots of money, do you mean thousands?

Thanks again, all, and I'll keep you posted on what happens next.

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