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Dispute After Being sued -Does This Make Sense?


charlanyc
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I just received a summons for an LVNV debt I'm not aware of. One of the complaints in the summons is that I didnt "object" to the debt.

The first letter I received was a settlement letter (25 days ago) that did not notify me of my right to dispute within 30 days ( I will mention this is in counterclaim). I'm working on my answer now.

My question: Does it make sense to still send my standard 30 day, dispute letter ?

My thinking is that it won't hurt and at least I did officially dispute ...

Any thoughts would be greatly appreciated!

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Thank you both for your responses!

I wasnt thinking of DV, but more along the lines of a 30 day dispute letter.

I spoke to an Attorney today who helps Pro Ses. He said not to bother with the dispute letter at this point. I asked him about discovery because its has been suggested to me on another forum.

He said that discovery is rarely used in NY Civil Court but it can be used. Either way, The Plaintiff will have to show and prove. :) He said that I could easily request a "Bill of Particulars" if I wanted.

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Here's the sticky for the DV letter, you may want to read it even if you think this is not what you want to do.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=266614

In whatever letter you choose to write, I'd ask for assignment (bill of sale). We've had a discussion about Bill of Particulars in the past on this forum and the conclusion that I remember is that this is more for some type of wholesale business. Generally, if the CA has documentation from the OC, such as a last account statement, it will be accepted as prima facie (seems to be real). You can still attack this prima facie, but I'd go with the easier solution. The few CA's I have dealt with did not have assignment. I argued my case. 2 have been dismissed and I expect a third to also be dismissed shortly.

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Thanks for the reply! You got 2 cases dismissed already?!! This is so encouraging and part of the reason why I visit this forum everyday. I want

to stay focused on winning my 2 cases and hearing success stories really helps.

I will be asking for assignment and I mentioned it in my answer (which seemed to impress the pro se Attorney )

The NY Civil courts pass out a booklet which mentions Bill of Particulars.

maybe it varies by state? :confused:

Here's the info for anyone else who may be looking for help:

WHAT IS A DEMAND FOR BILL OR PARTICULARS?

A demand for a Bill of Particulars is a list of written questions from one party to another

asking for details (i.e., particulars) about a claim or defense. Although a Demand for a Bill of

Particulars technically is not discovery, it can be used to get information about a claim or

defense. To make a Demand for A Bill of Particulars write the name of your case and its index

number on top of a page and make a list of questions as to the items about which you want more

details. Each question should be separately numbered. Mail a copy of the Demand to the other

side, preferably by regular first class mail with a certificate of mailing. The certificate of mailing

can be used to prove the date you mailed the Demand. File the original Demand for a Bill of

Particulars with the Court, along with the affidavit of service. Keep a copy of the Demand for a

Bill of Particulars and affidavit of service for your records.

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Yea, it looks like Bill of Particulars is different in your state than mine.

Particulars technically is not discovery, it can be used to get information about a claim or

This is the most important listing. With all states you have a certain etiquette to be followed. The pro ser generally, but not always, is allowed some leeway. The bona-finde lawyer, on the other hand, is usually required to dot all of his i's and cross all of his t's.

Let me add that it was no "cake walk". If the Court feels that you do owe the Bad Debt then it may pressure you to fess up. Be prepared to deny the stated account in whatever way you can without speaking a mistruth. I simply said that I do not recognize the papers the CA had submitted as authentic.

In today's computer age dumpster divers are stealing identities and creating forms which will give them ill-gotten gains. Without an affidavit from the OC to the CA directly assigning the Bad Debt to the CA it cannot be assumed that the Bad Debt is real without undue prejudice against the Defendant.

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Your are mixing your apples with oranges. Assisgnment is the authority to collect. The amount of the Bad Debt and whether it is accurate or not is an entirely different issue.

However, the CA, and possibly the Court, may also mix their fruit endeavoring to get this action out of the way so they can go have coffee together. Never forget that they are colleagues.

In my cases they both returned to the Bad Debt itself time after time. When they did I simply said I did not recognize as ligitimate whatever paperwork they were refering to.

Specifically, the CA should submit some sort of affidavit from the oc which corroborates the amount in the CA's claim. An affiadavit from the CA itself supporting its own claim is meaningless.

Check out this thread.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=267133

If I remember correctly, the general opinion of the posters thought that a last statement of account from the OC submitted to the Court by the CA as verification was prima facie.

In one of my cases that was dismissed the CA had proffered to the Court such a last statement. The Court ruled that the CA did not provide assignment. In this action we did not even discuss the Bad Debt itself.

Having a claim dismissed depends upon several factors. The Court is probably the most important. Secondly is your ability to persuade.

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However, the CA, and possibly the Court, may also mix their fruit endeavoring to get this action out of the way so they can go have coffee together. Never forget that they are colleagues.

You are so right! I noticed this behavior when I had a judgement vacated (another case).

Thanks again for your help!!

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You can still attack this prima facie, but I'd go with the easier solution.

Last question. ;) I just want to be sure that I'm clear... What's the "easier solution" ? Sending discovery before trial? In your case, you sent a timely DV. I wasn't able to.

I'm not the fastest poster on the forum and you got one in on me.
That is okay! All of your posts have been extremely helpful.:notworthy:
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Original post by: charlanyc

Last question. I just want to be sure that I'm clear... What's the "easier solution" ? Sending discovery before trial? In your case, you sent a timely DV. I wasn't able to.

I have had my best personal results respectfully demanding assignment in my case, in my county, and with the Court I was in front of. Each action, although appearing the same, may have a different result depending upon the case, the county, and the Court.

I think that anyone on this forum would tell you to prepare for any contingency. Unless you have had personal experience with a particular Court, you don' know how it will respond to your presentation.

If you have any time at all, research the cases in your county in what ever court you will be appearing in and see what other litigants have done. Go to your Courts On Line and type in either the lawyer for the CA's name or the CA's name and narrow it down to your county.

It sounds to me like you are in small claims court. Discovery usually is not allowed unless the Court specifically gives permission by way of motion from one of the parties. I tried and was turned down. I, myself, would not waste another minute of my time trying again.

You should be able to file Counterclaims with your Appearance and Answer. If you have already filed your Answer, check your Rules. You are probably allowed a certain amount of time to amend. There is a sticky that shows you a basic format. Your state format may differ. Considering that you are in small claims and are pro se, I doubt if the Court will require that you dot all of your i's and cross all of your t's.

Read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

Don't confuse Affirmative Defenses with Counterclaims like I first did. Keep paging past the Affirmative Defenses and you'll eventually find the Counterclaims.

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:)++Lecasbas-

That post helped me draft my counterclaim and answer.

This is civil court :)

If you have any time at all, research the cases in your county in what ever court you will be appearing in and see what other litigants have done. Go to your Courts On Line and type in either the lawyer for the CA's name or the CA's name and narrow it down to your county./QUOTE]

I tried to do this but didnt find much information...most of the cases had no motions and I'm assuming that I was looking at alot of default judgments. I'll spend some more time there

this weekend.

Thanks again! You make everything so clear and much easier to understand. :D

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Original post by: charlanyc

That post helped me draft my counterclaim and answer.

Good. Keep in mind that they threw everything in the mix, including the kitchen sink. If you can make it fit in your situation, put it in. The more the merrier just make sure you can articulate each and every one when the Court calls upon you to do so.

This is civil court

What other courts do you have, then? In our county the small claims has limit of $5,000 for damages. A litigant must submit the petition to District Court if the damages are higher. We have the same Rules for both and it's sometimes hard to discern what a person can do in one and not the other.

I tried to do this but didnt find much information...most of the cases had no motions and I'm assuming that I was looking at alot of default judgments. I'll spend some more time there

this weekend.

In my research, the lion's share of actions were defaults and eventual bankruptcies. A paltry few had some motions and an occasional dismissal due to non sevice because they couldn't find the debtor.

But, this gives you an ideal of what is going on in your county...the lawyer and judges involved and how they respond, among other things.

I looked for dismissals favoring the Defendant. I did not find any in my county. You search may bear some fruit. You could jump around to the counties next to you. If you find something, the clerk's office would'nt be so far away to get copies of the case.

Thanks again! You make everything so clear and much easier to understand.

Only because I am still in your shoes. I had 2 dismissed but I have more coming. I hope you understood what I said in my previous post...what works good for me may not work good for you but it did work for me so it could work for you. Research...research...research.

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  • 1 month later...

Just to follow up in case others are in the same situation.

I did not file a Bill of Particulars or ask for Discovery. I attacked the assignment, and issues with the summons/complaint and affidavit.

I filed a Motion to Dismiss and my case was dismissed on consent! :D

Of course that also dismisses my counterclaim, but that's okay!

Thanks again Lecasbas!

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I just received a summons for an LVNV debt I'm not aware of. One of the complaints in the summons is that I didnt "object" to the debt.

The first letter I received was a settlement letter (25 days ago) that did not notify me of my right to dispute within 30 days ( I will mention this is in counterclaim). I'm working on my answer now.

My question: Does it make sense to still send my standard 30 day, dispute letter ?

My thinking is that it won't hurt and at least I did officially dispute ...

Any thoughts would be greatly appreciated!

I am receiving letters from an attorney on behalf of LVNV. I have been ignoring them (yes, I'm in denial but trying to snap out of it!).

I have gotten the advice to send a general denial back to the attorney disputing the claim (haven't acted yet as I am afraid of provoking a law suit).

In hindsight would you have sent the letter of denial after getting the first notice (prior to the suit)?

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I am receiving letters from an attorney on behalf of LVNV. I have been ignoring them (yes, I'm in denial but trying to snap out of it!).

I have gotten the advice to send a general denial back to the attorney disputing the claim (haven't acted yet as I am afraid of provoking a law suit).

In hindsight would you have sent the letter of denial after getting the first notice (prior to the suit)?

Yes, I would have sent the letter, but I never received a dunning letter from the attorney or LVNV. From what I have heard LVNV rarely contacts or sends dunning letters themselves.

I know how you feel- I used to have anxiety issues when it came to debt collectors. :( Now that I've been sued, I'm over it! Sending that letter is the best thing you can do as the Lawyer still must adhere to the laws. Whats the amount of the alleged debt ?

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Thanks for your advice. Hearing that you are feeling better is also quite encouraging. :)

The amount they are currently trying to collect is a little over $1000. I know they bought another of my um, 'alleged' debts which is over $2000 (haven't heard anything of late on that one though).

Another helpful soul here suggested I send a letter to the attorney simply stating I know nothing about the debt they are trying to collect. Would this be your advice?

I am SO ready to break this paralysis and finally take care of my mess!

Thanks again and congrats on your success.

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Okay- I just read your other post. They will sue for $1000+ debts so be prepared. It sounds like you aren't sure what they debt is for. Remember that they are responsible for proving that you owe what they say you owe. Don't assume that because you had an account with a XYZ creditor at one time, that this is the same account or that they can still collect on it. This is the mistake I've made in the past.

If the dispute letter is giving you a headache, Discovery definitely will! Don't worry about discovery now. Send them a decent dispute/validation letter- its not something you can mess up or do the wrong way like filing court documents and motions.

Also, check your local civil court website periodically to make sure no cases have been filed against you.

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Send them a decent dispute/validation letter- its not something you can mess up or do the wrong way like filing court documents and motions.

Thank you so much for your help. I think I just needed an extra nudge to move forward!

Are you saying I should send the dispute letter to the attorney or to LVNV (or both). Should I keep it simple as was earlier suggested or should I go for a full on 'you must validate' type letter?

Your time is much appreciated.

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You must send all documents/communications to the Attorney.

If the second debt is not being handled by the attorney's office, then send that letter to LVNV.

I would send a full validation letter. Then if they do choose to sue you, you will bring up the fact that they failed to validate and that you have previously disputed the debt.

Make copies of the letter .

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You must send all documents/communications to the Attorney.

If the second debt is not being handled by the attorney's office, then send that letter to LVNV.

I would send a full validation letter. Then if they do choose to sue you, you will bring up the fact that they failed to validate and that you have previously disputed the debt.

Make copies of the letter .

Thanks again for your help (and to Bigtime!). Sent of the DV letters yesterday so we'll see what happens.

Sorry for hijacking your thread by the way. :oops:

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