Jen16226

Served by Commonwealth's lawyers

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I honestly didn't think it would get this far so fast, but it has.

OK......my hubby has an old First Usa CC debt. Date of Last payment was March 30, 2003.

Credit reports show May beginning delinquent.

Sold to Unifund CCR Partners June 2005.

My husband and I were married this summer and he travels. I had never opened his mail before, so when a collection letter came from Commonwealth Financial in October, I did open it and I did DV them. Never received anything.

They in turn sent it to a lawyer. I then DV'd them. Never received anything.

Today, we received the summons.

Exhibit A- Bill of sale Unifund and Chase.

Exhibit B- More Bill of sale Unifund

Exhibit C- Some credit card terms of use. It does state First USa in the body, however the date on the bottom of it is dated 3-13-2007.

Exhibit D- Either the lawyer or Commonwealth uses Debtmaster Enterprise software and has included a copy of a printout of his account. Their date of last payment is showing November-30-2003 which is wrong.

The date of entry (the stamp from the sheriff's office) is showing Nov. 16th, but we were only served today. We have 20 days to answer.

We can not afford a lawyer, so it really is up to us(me in wife talk) to deal with this.

Could someone please help me with how I answer this?

Please?

Pretty please?

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1. Who is suing you? Commonwealth Financial/ASSIGNEE of Unifund CCR Partners

2. For how much?24,739.25

3. Who is the original creditor?First USA which was bought by Chase Manhatten

4. How do you know you are being sued?Served summons

5. How were you served? Were you served?Yes by sheriff

6. What was your correspondence (if any) with the people suing you before you think you were being sued?DV'd Commonwealth, rcvd correspondance from their lawyer, DV'd them...all within a month of each other

7. Where do you live?Pennsylvania

8. When is the last time you paid on this account?March 30, 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).Civil casenumber given on summons

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)yes

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. yes

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Did not receive a questionairre......they state he received open ended credit. They show debt was sold to Unifund. They state breach of obligation under agreement...agreement they attached is for online banking NOT a credit card and is dated March 2007. They state 24,739 owed but only provide a printout of their computer screen.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? No statement from OC attached. Also attached to said docs above is an affidavit from Commonwealth Financial.

14. What is the SOL on the debt? 4 years

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I'm not a lawyer and this is not meant to be legal advice. It's just enough to get you into trouble :)

You'll want to do some research on the Google for "how to answer a lawsuit". Here's a sample: http://www.washingtonlawhelp.org/documents/1387410205EN.pdf?stateabbrev=/WA/

There is a sample form on page 9 of the Answer and Affirmative Defenses.

Now, before you think that's enough to go on, it's not. Make sure you know the Rules of Civil Procedure (RCP) in your locale. If you don't, get help from an attorney.

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They fudged the date of last payment on purpose because the statute of limitations (SoL) in PA is 4 years. If you have an old credit report that shows the first delinquency date you can challenge the limitation they had to sue and accuse them of perjury.

The SoL starts from the date of last payment. If it was March or May of 2003 they missed their opportunity by several months. By fudging a last payment date of November 30, 2003 they gave themselves the 15 days they needed to squeek in under the SoL.

Gather your proof, and challenge them.

Also challenge the credit card agreement and how you could be bound to one dated 4 years after the account was charged off.

A couple more things: You may need a lawyer after all. Unless you have a power of attorney you probably cannot represent him even though you are his wife because the debt predates your marriage. Ask an attorney. The initial consult is usually free. Also under the Fair Debt Collection Practices Act it is illegal for a collector to use any deceptive means to collect and fudging the last payment date certainly qualifies as deception (of a court!). As such a lawyer will probably take your case at no charge to you. Due to the FDCPA counterclaim you attorney fees would be paid by the collector. The FDCPA is a strict liability law and that means all you have to do is prove they did it, their intent is irrelavent. Prove a violation and you get $1000 plus your attorney costs.

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Oh I am sure they fudged that date due to SOL.

Do you think I should get a copy of that last check he paid in 2003 as some sort of proof? Should I also show last years credit report where it shows delinquent as of May 2003?

Should I bring up the fact that the "user agreement" is not for a credit card, but for online banking? Also the fact that it is dated March 2007 and he had never applied for anything with their company at that date?

I am still going to call a lawyer later today for advice...I think I might know one that specialized in consumer law, but I would rather have all my ducks in a row.......then cross my fingers that we can counterclaim and they have to pay a lawyer!

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OK....another question as I am reading up on Chain of Custody.

It was a First USA credit card, Chase bought First Usa, Unifund bought the debt, commonwealth is the ASSIGNEE that is suing with the lawyer.

The affadavit is signed by Commonwealth, not Unifund. Unifund prodivded the bill of sale that they bought it.

Can I raise chain of custody issues too as a defense?

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A check will only show that payment made, it will not prove when the last payment was made. For that you need a copy of a credit report that reflects the last delinquency, which is usually 30 days after the last payment.

If you go to trial you can issue a discovery notice for their proof of the alleged Nov 30 payment. If they can't produce it, their case will fall apart.

Chain of custody can be an issue but if the SoL is past it is irrelavent. Save it as a fall back just in case you discover the Nov 30 payment really does exist.

One last thing: If you don't have a lawyer by the trial date, show up for court and file a motion for continuance because you need time to obtain counsel. Explain that due to mail delays around the Thanksgiving holiday you had only 10 days to locate a lawyer and that it wasn't sufficient time.

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OK....here is one more question.......

Is it considered overshadowing for the lawyer to file before the 30 days are up to answer them on their letter to him?

They did the whole mini miranda in their letter, I DV'd them within the 30 days and they filed suit but did not answer DV.

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Commonwealth will jump at the chance to sue anybody. Scumbags!! I'm not sure where you are located, but Commonwealth got a default judgement on me 3 years ago (before I knew anything). They kept calling my cell phone, I sent them several C&D letters to no avail. They kept harrassing me, so I called up a firm in Philly and they took the case (I didn't have to pay a dime). Commonwealth is settling out of court and has to pay my attorney fees and pay me for violations. The firm is called Francis & Mailman http://www.francisandmailman.com/ talk to them to see if you have a case and if they can help.

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Commonwealth is doing the exact same thing to me right now. They have changed the date of last payment, just as they have done to you. My last payment was Jan 2003 and they are stating it is Aug 2003. They also have offered the same exact "exhibits" that they have offered in your case. Which part of PA are you located? I am in Northwestern PA and I have talked to an attorney in Pittsburgh about my case.

They took me to small claims court and I won by default judgment, they didn't show. I put in a counterclaim and was awarded $3,000.00, they are now appealing it and that's where we're at right now.

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I am in western PA as well Shar.

Were they using Apple and Apple for your case too?

I work in my county's seat (Kittanning) so Legal Aid is right around the corner from me. I realized this last night. I am probably going to give them a call later today and go in to see if someone can help me by looking at the answer that I did last night. If not my other option is to call my old boss...his best friend is a REALLY good lawyer in Pgh and see if I can email him what I did so far for him to look at.....it will cost me $ but oh well.

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Another thing that I noticed last night was......the 2 Bill of Sales. I really read it and reread it and found something interesting. One was from Chase to Unifund in June 2005, the other was Unifund selling it to some of other company called "Ring the Bell, Inc." in September 2005. I am not sure what gives on that or what to make of it other than gee, should Unifund's name even be on there?

The other thing I am throwing in there is the fact (I read this up in the Being Sued Sticky Area) that Unifund can NOT be the assingee and the purchaser. Along with that, Chase sold all rights to this debt(As they are showing with the Bill of Sale dated June 2005) and took their tax right off. They have nothing to do with this other than Commonwealth trying to keep the Chase name on there to intimidate.

Is my thinking on that correct?

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I have found out who "Ring The Bell Inc." is........or their address anyway from their inc. filed with the state.....they just happen to have the address of 120 N Keyser Ave in Scranton.......same as Commonwealth. Imagine that!?!?

I have a call into legal aid that is up the street from me plus I emailed some stuff to my sister who is an investigator and can pull legal mumbo jumbo for me.

We will see.

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Yes, they are using Apple and Apple PC. I have contacted an attorney in the Pittsburgh area as well, his firm name is Morrow & Kross PC. I found him on the naca.net website. While he is 3 hours away from me, he is also the only one that I contacted that seemed to know what he's doing. He also didn't ask for a ridiculous retainer. He has told me that he has spoken with an attorney at Apple and Apple PC and that they have agreed to call it a draw (I drop my counter suit if they drop their suit against me). That works for me...although I haven't actually seen it yet, so that makes me a little nervous.

Maybe this attorney could help you as well.

The attorneys in my local area were no help, they were just trying to get me to claim bankruptcy or just didn't return my phone call. One of them told me the SOL on CC in PA is 6 years...it is 4 (was 6) and that one was supposedly the one to turn to for these types of cases. He also wanted me to claim bankruptcy.

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I have an appt with a lawyer here in Armstrong Cty on Tues. so we will see what happens. From what I have heard, he seems knowledgable.

I will update on Tues. what happened....if I don't like what I have heard from this guy, I will look your lawyer up.

THANKS!

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Well I hired a different attorney yesterday. I had gone to 1 and we talked, but he did not know enough about FDCPA and he said as much. Which I thought was great. So I then called another person that I had read up some things on his website. He knew his stuff. He was citing case law, etc as I was telling him about everything.

So I hired him and he is going to file a Preliminary Objection this week up here at my courthouse (every piece of paperwork they filed has to be thrown out) as well as file seperate suits against the other 2 for FDCPA Violations. :D

I probably could have had my hubby go in there and try to defend it himself, but I am the talker in the family. LOL Plus with his job he very wellmight not be here if and when there is any court date....he will be on the road from Jan to May. On top of that, the amount of money involved is just too much that I feel more comfortable getting a pro involved.

I will keep updating as we go along.

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