Being Sued by Unifund

[sara08]

1. Who is suing you?

Unifund CCR Partners

2. For how much?

7, 864.60 + 1297.31 in interest from date of default

3. Who is the original creditor?

First USA Bank??

4. How do you know you are being sued?

I received a summons on January 5, 2007.

5. How were you served? Were you served?

I was served at home.

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

I've never been contacted by Unifund, I recieved phone messages and letters from their attorney, Love, Beal & Nixon, but did not respond to them.

7. Where do you live?

Oklahoma

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

Before February 2005, charged off February 2007

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 have no idea, I called the courthouse and the clerk woman was very curt with me and told me to read the summons (oh, gee I hadn't thought to actually read the summons, ).

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

No.

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

No.

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?

The summons did require a response and I haven't answered it yet. The complaint reads as follows:

Comes now the Plaintiff and for cause of action against the Defendant alleges and states

1. The first paragraph simply says that unless I dispute this in 30 days, they assume its valid, yada yada.

2. First USA Bank, NA provided credit to the defendant on a written credit card account. The indebtedness arising therefrom has been duly assigned to to Unifund CCR Partners, plaintiff herein.

3. After all applicable credits, the defendant remains indebted to the plaintiff in the amount of $7, 864.60 + 1297.31 which represents interest from the date of default through December 16, 2007, with interest accruing at the rate of 6% per annum.

WHEREFORE, Plaintiff prays for judgment against the Defendant(s) in the sum of $7,864.60, with interest as set forth above, all court costs and a reasonable attorney's fee of $1297.31, and for such other and further relief as to this Court may seem equitable, just and proper.

I have not received an interrogatory.

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

Nothing, just whats in the petition, the name of the OC and amount

14. What is the SOL on the debt?

5 years on written contract, 3 on Revolving accounts, but most judges here go by 5, so I've heard.

There are a few questionable things about this suit, first LB&N have the same amount for the "interest" as attorney's fees, can they do that? Second, on my CR, Unifund has the same account number as Chase (First USA??), yet when I called Chase, they said that they sold it in February 2007, so that would make them the owners and not the assignee of the debt, correct? Do I have any chance at all if I challenge this? Should I agree to a settlement? I am a student and don't own a home, and have nothing that is garnishable. I could actually file ch 7 tomarrow if I wanted, but I want to avoid that. WWYD?

I'm very glad to have found this board! Thank you in advance!

[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).

After your answer and countrclaim...(I'd still go for a MTD first as well)

the plaintiff must prove:

(1) the existence of the note in question;

(2) that the party sued signed the note;

(3) that the plaintiff is the owner or holder of the note; and

(4) that a certain balance is due and owing on the note.

They may do the above in one of a few ways...

1.)By counsel testifying

2.) By affidavit of firsthand witness,

3.) By live witness

You simply have to remember the following...

Lack of first-hand knowledge = Lack of competence to testify

"OBJECTION! Counsel is testifying" should fly from your mouth everytime counsel attempts to testify, and they will!!!! The only way they can testify is if you don't object! So OBJECT early and often on alleged facts flying from their mouth. This scenerio will be especially prounounced if they do not bring a witness or an affidavit!!!

Affidavits (and subsequent exhibits) are inadmissable unless the person signing the affidavit is available to be cross-examined to Competence and firsthand knowledge!!! Object to it being submitted as fact befoe the court!!! The judge may over-rule, but you just secured solid grounds for appeal, because the judge errored.

Witness. Have your cross questions ready. Ask about things that may impair judgment on the job, drinking, drug use, (prescription and illegal), working conditions, job pressure, etc. Destroy witness creadibility. Ask about how records are kept, if they were soley responsible for alleged account, if not, who, computer procedures, audit procedures, how often are computers tested and audited for accuracy, etc, etc, There are many other things you need to ask.

I can't stress enough of needing to nip the "counsel testifying" issue in the bud!! Chances are, that's all they have!

If they have any other document evidence, object on the basis the document have not been authenticated!

If they have no facts on record, you win.

Court can rely on your affidavit of denial.

Court cases are won or lost far before trial. I suspect plaintiff is not close to proving any of it in your case, based on your short blurb. (unless you let important info out)

This is a simplistic view of your strategy and should not be relied on as all encompassing legal advice, get a lawyer if you want that. I'm just someone who likes to cause debt lawyers pain, I'm not even close to being a lawyer.

[cjtx]

I think their wording is unfortunate, but they mean $7,864.60 is the debt amount, including interest, and the rest is attorney's fees.

You have a right to make them prove that they own the debt and that the amount is correct.

[kevin3344]

Looks like this one is within SOL so I would settle. Offer 25% of the original debt or payments. You can wait until you go to court (the judge will probably offer you and the plaintiff to go into the hall and talk it over) but I wouldn't wait until then.

[sara08]

Thanks for all the great replys. Yes, I wanted to settle originally, but then I read alot of posts about Unifund being evil and not setttling for anything less than 80-85% If thats the case then, I probably have a better chance of challenging their right to collect, and going through discovery, right?

I've also heard that sometimes you have a better chance of getting a better "deal" in the courtroom than before trial, is that always the case? You would think that they would play nicer if you didn't drag them though court. I figure with 80%, whats the point, even if I lose I'm judgement proof?

I know that LB&N are not the shapest crayons in the box, but I don't know how together Unifund is, like record keeping. Is it true that they just buy a spredsheet with my name, ssn, and amount of debt? If thats the case, how come I keep hearing how sucessful they are? I'm just thinking outloud, but if anyone can clue me in on these guys, I'd really appreciate it.

[cjtx]

Like most JDBs, they file a large number of lawsuits and a large percentage of those cases are won by default because the defendant doesn't show up in court.

Sometimes the opposite happens. They file a bunch of cases and they don't even go to court. So if you show up and challenge the debt, you can win for want of prosecution and have the case dismissed if they don't show up.

From the moment you file an answer, your debt starts becoming less attractive to most JDBs and depending on the amount and whether or not you have them on some counterclaims, they may rather settle than spend a lot of money and resources when they can be making a lot of money winning cases by default.

As for your other question.... They buy a spreadsheet and in some cases your last billing statement before charge-off. Then someone who works for them will sign an affidavit saying they have personal knowledge of your account, which is not true because only an employee of the OC may really know/have access to all the details of your account. So at that point, you object to the affidavit because it's hearsay and their so-called evidence goes out the window.

[sara08]

I'm going to file my answer with court today, I have it typed up and it's ready to go. I've included three countersuits-do you think I should pull out all the guns at once by adding the countersuits, or build up the arsenal and amend my answer later? I can't decide!!!!