Just sued, here is everything

[careybsn]

Just a bit of background, I spent a lot of time negotiating with the collection agency on this because I think the interest charges are totally bogus on this deal. I offered them more than the principal and they refused to mark the account as paid, only settled.

So I basically stopped talking to them. I sent two DV letters and then this lawsuit was filed by a local attorney representing them.

I am looking for some background and I am more than willing to get a local attorney to help but haven't been able to find someone specializing in debt collection companies yet.

1. Who is suing you?

First Resolution Investment Corp

2. For how much?

$4,325.65 plus $2,649.85, which represents interest from the date of default through December 19, 2007, with interest accruing at the rate of 24.000% per annum. And reasonable attorney's fee of $648.84.

3. Who is the original creditor?

Chase Manhattan Bank USA, N.A.

4. How do you know you are being sued?

I received a summons (1/6/08) on Sunday stating as much.

5. How were you served? Were you served?

I was served by a woman who knocked on my door and was probably the nicest woman I ever encountered.

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

Started with telephone calls and was literally harassed by First Resolution.

I kept asking for DV but they would not do anything but harass because they said I'd missed my 30-day window.

After taking the advice of those on here I started limiting things to written correspondence. But before things started going in writing I offered them $4,750 to take care of the debt.

This was all over the phone. They refused to accept the payment and mark the debt as paid. They would only mark settled on the account with the credit agencies.

They kept pushing for more money in order to mark the account paid or to delete the account from my credit history.

At the advice of these forums I started preparing to send a written DV letter.

I then started receiving contact from a local law firm who had sued me before for another debt that I ended up paying back in February of '07.

I submitted DV requests to the law firm representing First Resolution and I sent a DV request directly to First Resolution on Nov. 5th.

I received a very basic response from the law firm saying that the debt was from First Resolution and the amount was about $7400.

I never received a response from First Resolution but both letters were sent return receipt and certified.

I did get a return receipt from First Resolution but no response to my DV request from them.

I left for Christmas on the 24th and returned from a business trip to Arizona on Feb 4th.

Was served with the summons on Feb 6th in the afternoon.

7. Where do you live?

Oklahoma

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

Oct 2005

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

I just received the summons and the attached petition.

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

I sent the DV letter to the original collection agency but I have not disputed the debt with the original creditor

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

Yes. With both the collection agency and the law firm.

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?

Yes. It says if no request will be made to the Court for a Judgement in this case until the expiration of 35 days after your receipt of this Petition and Summons.

But it says I am directed to file a written answer to the attached petition in the office of the court clerk within 35 days. I have to mail an answer to the attorney for the Plaintiff. Failure to respond will result in a default judgment being entered against me.

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

Just a petition detailing what I wrote in questions 2 and 3.

14. What is the SOL on the debt? To find out:

5 years written in OK, 3 years oral, 3 years promissory, 3 years open ended

[kevin3344]

It looks like this one is within SOL so I would settle before going to court. The judge will simply ask you "is this your debt?" and that will be that. 24% interest can accumulate pretty quickly, so their fees might be justified. Have you tried making payment arrangements with the atty?

[trueq]

It depends.

Can you stomach a fight?

If not, the advice to settle is very valid!.

If you like confrontation and are willing to challenge plaintiff's standing, subject matter jurisdiction, chain of custody, any possible FDCPA violations, and want to make them prove the debt up until it hurts....answer, counterclaim, file discovery, and motion the crap out of them.

and...

Demand a jury trial.

You also have to be willing to invest your time and may have to hire an attorney if you feel "over your head".

As you may have guessed, I like confrontation, but I also have the benefit of participating in class actions, and arbitrations as a witness and reading many of the briefs going back and forth between high-powered national law firms in those cases.

Local court is pretty unintimidating for me by comparison.

Vigorously defending yourself, even if guilty, is not a crime. It is a system our country has built. Most lawyers realize that if the facts make the client guilty, you attack the process. (Like the matters i suggested above)

Many consumer lawyers will tell you, "Its not about whether the debt is owed, its about the rule of law, and whether those rules are followed."

That statement, in legal terms, has W-I-D-E interpretation in terms of defense.

Only you can decide what level of fight you can stomach.

I'm not a lawyer and my life experience is substantially different than yours. Use my free speech on the subject at your own risk and peril!

[careybsn]

It looks like this one is within SOL so I would settle before going to court. The judge will simply ask you "is this your debt?" and that will be that. 24% interest can accumulate pretty quickly, so their fees might be justified. Have you tried making payment arrangements with the atty?

First off, I did a little more checking. Nov 04 is the last time I had paid on this account. Does that change anything?

But here is my question, how do I find about about this 24% interest? Didn't this company just buy my original $4,300 debt for pennies on the dollar and start adding ridiculous fees to it? Would a judge look at those interest charges as exorbitant when they are just fictional amounts anyway?

I have never understood why I can't just pay the $4,325.65 and be done with it.

These people are just after a bunch of money that is basically fictional in my mind. I look at it as though they are trying to steal money from my bank account and I'm really pissed about it.

I wanted to settle and I offered to pay them more than the $4,325.65 but they wouldn't deal.

I have the money and I am willing to just pay it all in one lump sum. Should that matter in negotiating with the attorney?

I just really don't see how they can ask for an additional $2,649.85 when the debt was $4,325 for years...

And it was always my thought that this is why First Resolution was so adamant about not validating the debt in the first place. They told me that it could take up to a year to validate the debt because I missed my 30-day window, etc., etc..

I always felt like they wouldn't validate the debt because they were asking for $7,000 when the only thing they could really ask for was $4,325..

In fact, on my credit report, the Chase Manhattan entry is still there and it is for $3,000.00 even.

Can anyone answer these questions for me? I really appreciate all the help so far.

[trueq]

The Fair Debt Collections Practices Act (FCPA) prohibits "[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law" and “[t]he false representation of . . . (A) the character, amount, or legal status of any debt; or ( any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt”. 15 U.S.C. §§1692f(1), 1692e(2).

In order for any valid amounts to be collected, you need to demand a copy of the contract, preferably signed. You cannot be charged for items not allowed in the contract or not allowed by state law.

If they do not have the contract, signed by you....well...

just put two and two together.

You need to be well versed on the law and stick up for yourelf in court. I can't claim to cover all aspects of law and procedure for you in a few days.

Just my suggestion

[kevin3344]

Nov 04 is the last time I had paid on this account.

This might be worth taking a look at, maybe you can use the SOL as your defense. I'm not a lawyer so I can't tell you but it's worth a shot.

[careybsn]

The Fair Debt Collections Practices Act (FCPA) prohibits "[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law" and “[t]he false representation of . . . (A) the character, amount, or legal status of any debt; or ( any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt”. 15 U.S.C. §§1692f(1), 1692e(2).

In order for any valid amounts to be collected, you need to demand a copy of the contract, preferably signed. You cannot be charged for items not allowed in the contract or not allowed by state law.

If they do not have the contract, signed by you....well...

just put two and two together.

You need to be well versed on the law and stick up for yourelf in court. I can't claim to cover all aspects of law and procedure for you in a few days.

Just my suggestion

So I wonder if I can put together a counter suit because they put an entry into my credit report saying that I owed $6,800+???

And they have ignored my DV letter and just sued away?

[andbowd]

Thanks for info. AB

[Tazjeepcj7]

You can try to make an argument that the plaintiff's interest calculation is in violation of state usury laws - I would think this would force the plaintiff to provide a copy of the contract. You would need to study up on your state usury laws.

http://www.lectlaw.com/files/ban02.htm

[mycorrado]

Is this a credit card debt?

Can someone chime in - are credit cards considered open accounts for SOL purposes? Oklahoma is 3 years SOL on open accounts,

http://www.bcsalliance.com/statute_of_limitations_on_debt.html

If so, it would appear you just need to raise an OUT of SOL defense and have a nice day.. check with a local attorney.