collection agency filed an appeal

[jackid723]

Hi Everyone! I would just like to introduce myself, my name is Jacki, and I really need some help. I was sued by a collection agency a month ago that was representing a credit card of mine, I won the lawsuit because the collection agency had nothing with my signature on it to prove the debt was mine. These people are ruthless, they call me names, threathened me originally by saying they personally knew the magistrate, and many other violations of the FDCPA. Needless to say, the last payment on this account was October 2002, more than 4 years ago, they said SOL doesn't matter. They have filed an appeal against the judges decision and now I don't know what to do? If anyone one has any suggestions, I would love to hear from you.

Thanks,

Jacki

[LadynRed]

The SOL most certainly DOES matter and you need to stick to your guns and don't let these thugs intimidate you. You can counter their appeal and I most certainly would do so. What EXACTLY did the judge rule the first time around ? When was the lawsuit FILED and had the SOL already expired ??

[June]

I am not an attorney nor an expert. But you may need to timely respond to their Appeal by following the rules of appellate procedure in the state of PA. The CA will most likely lose again, unless the Judge's decision is "clearly erroneous?"

It appears that the losing CA is acting in bad faith, and may be trying to get you (pro se) on some procedural defect during the appellate review. I am not sure how that may work for the thugs.

The Experts here may weigh in soon.

[jackid723]

The original lawsuit was filed on January 24th, 2007 and the court date was February 8, 2007. The last payment that I made on this account was October, 2002 and have never promised to pay or paid on this credit card since then. The judge ruled for me stating that the collection agency had nothing bearing my signature, therefore, there wasn't any way to prove that the debt was mine. I also received a letter from this company on Dec. 28th, 2006, to which I replied saying I wanted proof of the debt, and the proof I received was a civil complaint on January 24th. The company had 30 days to appeal and I received an appeal certified that said the appeal was filed on March 12, 2007. What happens now? Do they have so much time to file another civil complaint?? I'm very confused.

Jacki

[June]

The facts as you say:

1) The last payment October 2002.

2) SOL expired October 2006.

3) Letter from this company on Dec. 28th, 2006

Rather than wanting proof of the alleged debt, this is when you should have informed the thugs that the alleged debt is without SOL, and bother you no more !!! I NEVER ask for DV on an Out-of-Statute debt.

4) The original lawsuit was filed on January 24th, 2007

The losers filed their lawsuit 90+ days late. You should have informed the court.

5) The court date was February 8, 2007.

The thugs had 30 days from February 8, 2007 to file, or 30 days from the date the Judge signed and entered the Order. I'm not sure here !

7) The appeal was filed on March 12, 2007.

They had until March 8, 2007, or 30 days from the date the Judge signed and entered the Order. I'm not sure here. They may be late again, by 4 days

You had stated that the Judge's decision is based upon "no contract bearing your signature." Was the SOL mentioned during the court hearing?

They lose again, because IF their fraudulent appeal is considered as timely, they still have "no contract bearing your signature."

What happens now? Do they have so much time to file another civil complaint?? I'm very confused.

I am too. But I know that they cannot just file another civil action. They must file a timely Appeal, where they were dissatisfied with the judgment. This case should have never gone to court anyway.

The Experts may help you later.

[jackid723]

Would you believe I did send them a letter stating that the SOL was expired and to not contact me anymore and they responded with a civil complaint!!! I explained to the judge that the SOL was expired and he told me that the SOL is renewed every time the debt is sold, isn't that ridiculous, but I didn't want to argue with him, so I was satisfied with the fact that he ruled in my favor anyway. Do you need to respond to a notice of appeal?? I thought you only had to respond once an actual complaint is filed, this whole process is confusing, I guess the CA are hoping you'll get confused and make a mistake so they win anyway. I believe that's a part of their little games they play.

I also contacted the prothonotary's office where the appeal was filed and they said that because the 30th day fell on Saturday the 10th that they had until March 12th to file the appeal, I still feel that they had until Friday, March 9th but that office is insisting the 12th.

[Tazjeepcj7]

What evidence did the plaintiff provide at trial? I assume on appeal the plaintiff will not be able to introduce new evidence.

[jackid723]

The only evidence they had was a signed affidavit from the original creditor, which is citibank, that the debt was mine. I believe they filed an appeal because they are trying to scratch up something with my signature on it. I'm assuming that if they had anything else it would have been presented at the first hearing?

[divemedic]

You need to work up a fed lawsuit for FDCPA violations.

[June]

Would you believe I did send them a letter stating that the SOL was expired and to not contact me anymore and they responded with a civil complaint!!!

They are such idiots. It worked for me.

I explained to the judge that the SOL was expired and he told me that the SOL is renewed every time the debt is sold, isn't that ridiculous, but I didn't want to argue with him, so I was satisfied with the fact that he ruled in my favor anyway.

The Judge is 100% psychotic or a liar. That would mean that consumers could be forever sued on alleged debts (everytime they were allegedly "sold") even on debts that are 10, 20 or 30 years old. That's outrageous !!! I would not have argued with the nut either.

Do you need to respond to a notice of appeal??

I do not know. Since you mentioned it, there may be their Notice of Appeal, and then their Appellant Brief. I am not sure. No doubt the CA wants to confuse you and win on some legal technicality, if such exists in the Appellate court. They do play games.

I also contacted the prothonotary's office where the appeal was filed and they said that because the 30th day fell on Saturday the 10th that they had until March 12th to file the appeal, I still feel that they had until Friday, March 9th but that office is insisting the 12th.

Huh? From the Thursday, February 8, 2006 court hearing, their 30th day fell on Thursday, March 8, 2007, NOT Saturday, March 10th (unless the order was signed on Saturday, February 10, 2007). For the court's record, I would file my own Notice and call it (something) like:

"Appellee Objection to Appellant's Notice of Appeal Notice" making the court take Judicial Notice that the Appellant's appeal is untimely. Rather than sit and wait for their brief to be filed or do nothing.

As far as I am concerned, they all are crooks. From the OCs, CRAs, CAs, JDBs, court clerks, and Judges' clerks, especially when dealing with the least sophisticated consumers or pro se litigants. If they were required by law to provide us with FREE attorneys (as with criminal law) a lot of their nonsense would cease or nonexistant.

Note: These are just my little comments. Hopefully the Experts may be more helpful.

[Tazjeepcj7]

I wonder if you can appeal the judges ruling on SOL at the same time the CA appeals his ruling on the plaintiff's lack of evidence...

[IHateCAs]

I wonder if you can appeal the judges ruling on SOL at the same time the CA appeals his ruling on the plaintiff's lack of evidence...

If the judge didn't rule on it, you can't introduce new issues at appeal.

[June]

JACKID723, I certainly would cite the SOL and lack of evidence in an Objection Notice (if filed) and the Appellee Brief. That's for sure! I would not remain completely silent on the issue. You are pro se, and you are not held to the same standards as the #*$!& CA and their attorney.

[jackid723]

What I am trying to figure out is how do you prove that the SOL on a credit card has expired. The original creditor on my debt doesn't even have my account listed on my credit report anymore. The information the CA is reporting is very confusing and inaccurate. The collection agency has very much different information than I do, of course it is all wrong.

[nascar]

If the judge didn't rule on it, you can't introduce new issues at appeal.

That's right. Geez people, you know you can't retry the case on appeal. If the CA is appealing the judges ruling on the signature, that's all there is. If you try to raise another issue, you're going to lose.

[IHateCAs]

That's right. Geez people, you know you can't retry the case on appeal. If the CA is appealing the judges ruling on the signature, that's all there is. If you try to raise another issue, you're going to lose.

Although it sounds like he raised SOL as an affirmative defense at some hearing. So assuming it appears on the record, you can also appeal the lower court's ruling on SOL (which was patently absurd) and both appeals will be heard by the appeals court.

[jackid723]

Basically the CA needs to come up with a signature on something or I will win the appeal, and I never signed an application with the original creditor, I applied for the credit card online originally. I'm not sure how long the original creditor would hold on to signed receipts, therefore I don't see how the CA can win this appeal.

[June]

What I am trying to figure out is how do you prove that the SOL on a credit card has expired. The original creditor on my debt doesn't even have my account listed on my credit report anymore. The information the CA is reporting is very confusing and inaccurate. The collection agency has very much different information than I do, of course it is all wrong.

Do you have any old credit reports? Look there.

Not only did the CA need a contract bearing your signature, the CA is required to Validate the alleged debt they are suing on. The CA had absolutely no paperwork in the lower court. The CA cannot just produce a contract with your signature and (bam) win on Appeals. I don't think so!

Was a court reporter present at the hearing?

[June]

Basically the CA needs to come up with a signature on something or I will win the appeal, and I never signed an application with the original creditor, I applied for the credit card online originally. I'm not sure how long the original creditor would hold on to signed receipts, therefore I don't see how the CA can win this appeal.

Unless I am missing something, which I may very well be. I think the CA needs to show the Appellate court that the Judge's ruling is not correct, where the CA had no contract or failed to prove their case.

Without a contract, the clerk, not the judge, would have thrown out my case. End of discussion. No case. No appeals.

I don't see how the CA can even file for an appeal. What are they thinking? How is the attorney going to prove (on paper) that the judge's decision is "clearly erroneously." It's ridiculous! Sure wish you had an attorney to get attorney fees and costs.

Don't worry about paperwork from the OC. It is fairly safe to now assume that the OC has no paperwork on the alleged debt, otherwise the CA's attorney would have presented the evidence in the lower court.

[nascar]

Basically the CA needs to come up with a signature on something or I will win the appeal

No, that's not how it works. New evidence with your signature is not admissible on appeal. Remember, no new evidence.

What the court will be asked to rule on is whether a contract can be formed in the absence of a signature and the answer to that question is "yes". So, you need to be prepared to defend against that. You need to come up with a compelling reason why a valid contract was not formed by your performance (performance being evidence of your use of the card).

Regarding the SOL question, if the judge ruled that the SOL did not apply based upon the evidence, that's within his discretion and you're out of luck. If he failed to rule on it at all, and should have; well, that's an error. BUT, that is not the issue on appeal. The CA certainly isn't going to raise it. The only way you can get the SOL issue before the court is to file a cross-appeal yourself. Then you could assert that the judge made an error in not considering the SOL. Otherwise, you're wasting your time.

[IHateCAs]

Regarding the SOL question, if the judge ruled that the SOL did not apply based upon the evidence, that's within his discretion and you're out of luck.

Based on the comments made by OP, I think the judge was out of his mind and that's being nice. He sounds like a collector on the phone. "Yeah SOL extends everytime the debt is re-sold". I don't think anything was ruled on based on the evidence presented, just some judge making up some law he thinks exists.

So how did you answer the lawsuit anyway? Just show up for the hearing and deny everything and say SOL or did you have a written answer? You definitely need to cross-appeal like nascar mentioned.

[Recovering Attorney]

Judges at the lower court level try to " do good" so whatever he said about the SOL is irrelevant. He was probably hoping the two of you could work out a compromise. Anyway, filing a notice of appeal does not perfect the appeal, they still have to compile the record and submit a brief and serve it on you. Lots of times a loser files a notice of appeal so you don't lose rights, but may decide not to continue.

You may not need to do anything regarding the appeal. They have to argue the judge made a mistake of law.

If they do come back with a new lawsuit and all sorts of paperwork, argue teh SOL, res judicata and Another Action Pending as defenses.

[jackid723]

Thank you everyone for all of your help, my mind is a little more at ease now, I am not a deadbeat that doesn't pay my bills like the CA said to me I just ran into some financial difficulty a few years ago and am really being haunted by it now. What I am still trying to find out is if I have to answer to a notice of appeal or do I just sit back and wait for a new suit to be filed. They filed the appeal 12 minutes before the deadline so I am assuming they are just biding time to put a new case together? Is there a time limit on the appeal, or do they have forever to build a new case?