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Once you're in court, DV'ing is useless (Really!)

80 posts in this topic

I am currently in court to contest the registration of a judgment based on an arbitration hearing in Minnesota (I live in NC). They claim they served me notice of the hearing but I don't remember such an event, and the UPS receipt is a pretty vague digital signature (with the delivery address backed out).

Anyway, I am now in court, and they claim the debt is from an MBNA account, yet cite an account number that doesn't match the MBNA account I had in the past.

This account, I paid off with a debt consolidation loan in 7/2005. The bank loan was handled by a reputable local law firm, and thus I have copies of the canceled check, the last statement with payoff amount, and a letter instructing MBNA that this was payment in full and to close the account. I also have a copy of my 6/2005 credit report showing only ONE MBNA account open.

Now, when I looked up my credit report, I find the account number they list, but it is listed as a BoA charge off. This is weird, since the account # begins with a "3", which is an Amex number.

I went to the local BoA main branch, and got their loan manager to dig into it for me, and he shows original MBNA account as paid off (they bought MBNA in 2005), BUT that there was "activity" after the payoff date. In fact, a print out under the original MBNA account number (beginning "5", meaning a MasterCard) has a number of anomalies:

The middle two digits of my SSN are off one digit (a "5" instead of a "9".

The account has no close date and shows a statement being sent out as of this month, with a $4,600 credit line.

The account does show an expiration date of 11/2005.

How can an account have no close date, yet have a six year old expiration date, yet claim that a current statement has been sent, and that the account is active with a $4,600 credit line ALL ON THE SAME PAGE?

Is this kind of evidence of no use in court because I "lost" in arbitration? I think any reasonable person would question the validity of this debt.

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The default judgment against me was vacated last week, and the case has been restored to calendar. Is it possible to request discovery now that the default judgment has been vacated?

My case is in New York State.

Thanks.

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I am in Lane County, Oregon and I am having trouble finding two forms that I need for this exact scenario.

I have been served a filed lawsuit with request to respond. I am working on my answer. The forms I cannot find are "Request for Admissions" and "Request for Productions". The courthouse does not have these forms.

Any help?

Thanks for posting this. I was scared ****less to even respond because the "plaintiff" is Captial One but the "debt collector" is suttell and hammer and they are not real lawyers so I don't trust who I'm dealing with. CO charged off my account a year ago.

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Have come across this thread and since I have recently researched this topic, I wanted to share some information that may justify raising a DV argument in response to a Complaint, at least in certain scenarios. Any comments are welcome.

Specifically, in this situation Plaintiff ignored a DV letter and filed a Complaint. The Complaint did not attach any documents and was not specific in it's breach of contract claim (and alternatively it's unjust enrichment claim). It did not specify the date the credit card was issued, for what amount etc... It just generically stated that a credit card was opened and was breached.

One possible response is to file a Motion to Dismiss claiming the complaint is insufficient. Mass. like most states has adapted the post-Twombly standard and a bare notice pleading is no longer sufficient. Defendant is not a proper party to the action and has filed an ID theft claim.

In conjunction w/ this claim, the lack of response to DV could be raised. Especially in light of the fact that the one of the primary reasons for the FDCPA was to prevent the recurring problem of debt collectors dunning the wrong person. Aside from Spears v. Brennan, there is some additional case law supporting that the absence of proper validation of a debt, when requested prior to litigation, is indeed a bar to further litigation.

Several courts have adapted Heinz v. Jenkins to determine that litigation is a collection activity and therefore cannot continue until a debt is sufficiently satisfied. If the debtor requests proof of the debt, the law requires the collector to suspend any efforts, through litigation or otherwise, to collect the debt, Bartlett v. Heibel, 128 F.3d 497, 501 (7th Cir. 1997). A litigation attorney is bound by Section 1692g(B) to cease collection efforts until a debt is verified, and as a result that cessation is to be imposed de facto on the client creditor as well, Bank of New York v. Barclay, 2004 Ohio 1217 (Ohio App., 2004)

Additionally, Massachusetts has recently updated its debt collection laws and it defines with much more specificity than the FDCPA, what is required for validation, which includes a signed contract/application and complete account ledger (Mass. 940 CMR 7.08) (note: Mass. is also the first state in the nation to require original creditors to comply w/ these laws).

So in this scenario, it could very well be worth it to raise DV argument. It may not get the Complaint totally thrown out initially, but it can prompt the Court to require the Plaintiff to amend the Complaint w/ the Contract/Application. The Complaint is barebones with no proof that the Defendant is liable. The Defendant has claimed ID theft and the request for validation has not been satisfied. Even the most creditor friendly courts would have to take some pause before allowing this matter to continue without at least the Plaintiff providing a copy of a contract authenticated by a legitimate affidavit. If the Plaintiff cannot provide the contract then the Complaint would be subject to dismissal.

The prospects for having the case dismissed seems to make raising the DV claim worth the effort. Any comments would be appreciated.

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This is a hot topic!  Before I post my good news and ask for advice on how to proceed.... (Hey, Big Sister!!!!  It's almost over!!!!  YAY)  I was so angry at what the JDC was trying to do to me that I started screaming.  I didn't care and still don't what the JDC said had to happen.  I told the Judge in cort that they are a bunch of lieing vicious snakes that have proven nothing.  They even lied under oath.  

 

But in keeping with this topic, in every document I wrote and/or turned in, I screamed they never proved a thing....and even though we'd been through court-appointed arbitration and LOST... I kept screaming.  I sent more paperwork than I thought humanly possible.  I kept pushing.  Respectfully to the judge and with pure contempt to the attorney.  I refused to accept the, loss...I told the judge and the attorney I would not stop until I got JAMS as the agreement said.  I refused to accept I owed them even a penny and demanded DV.   

 

In the end, the judge threw out the court-appointed arbitration.  And in my complaints to JAMS, I demanded DV.  

 

I got what I wanted.  So, from my standpoint, you can demand DV or anything for that matter, at any point in time.  I speak from experience.

 

Good luck to you that need DV.  Keep screaming for it.  Get mad.  And fix it!!!!

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