Being Sued by Asset Acceptance, LLC.

[chuckgst]

Hello everyone. My sister received a summons 2 days ago to appear for Pretrial Conference/Mediation. Below is the information.

1. Who is suing you?

Asset Acceptance, LLC

2. For how much?

$1050.26 plus $405.53 (prejudgement accrued interest.

3. Who is the original creditor?

Bank First

4. How do you know you are being sued?

Received SUmmons for Pretrial conference/Mediation

5. How were you served? Were you served?

process server

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

None

7. Where do you live?

Florida

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

She has no idea. The JDB says partial payment to OC was on or about 2/9/03

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).

Just received 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!)

No, it just says she has to appear in person

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

Assignment and Bill of salefrom one JDB to Asset Acceptance, Card Member agreement with no signature, Billing Stement from Asset Acceptance, LLC

14. What is the SOL on the debt?

4 or 5 years in Florida

I spoke with my sister and since I have a little bit of knowledge about this I agreed to help. Plus, she is my sister, how do you say no. Anyways, she said that she had no knowledge of the account. She was married to a low life scumbag for several years. During that time he opened several credit cards in her name and maxed them all out. He paid on some, but then stopped when she filed for divorce. Since the account is in her name only, he probably obtained a card in his name because they were married.

She also tole me that she never used the card even if she had one. So none of the sales slips would even have her name on it.

How should she proceed with this.

[Methuss]

Well first you need to have her pull her credit report or better still, find an old one that lists the first 30-day late that led up to the account being charged off. The last payment would be 30 days before that entry.

Asset Acceptance is known for fudging dates. If they have done so, you can answer that they have falsified their claim to the court.

Florida's statutue of limitations on open ended (credit card) accounts is 4 years. Which means a last pay date of 2/03 puts it well outside the statute.

If they are claiming it is a "written contract" then the statute of limitations is 5 years...expiring next month. Which is why I think they may have fudged the dates.

Your sister's first response should be to appear in court and assert a leveled defense. "I do not owe this debt as the 4 year statute of limitations on open-ended credit card acocunts has expired; and if this were considered a written account I do not owe this debt because the plaintiff has falsified the last payment date in their complaint. The actual last payment date was xx/xx/xx, and the 5 year statute of limitations on written contracts has expired."

If you want to assert a claim of identity theft...and YES you can do so if the low-life ex-husband opened the acocunt without her knowledge and using her name/ssn...then you file a police report for identity fraud, name the ex-husband as the perpetrator of the fraud, and bring that with you to court. In court you claim that the account was fraudulently opened in her name, show the police report and ask for their case to be dismissed with predjudice. It will help if you have copies of the divorce decree wherein it shows the account was not listed, ergo he was hiding it.

Then you file the police rpeort with the bureaus to have it permanently supressed from her credit file.

[chuckgst]

Could I go to court with her and speak on her behalf. I love my sister to death, but (how do I put this lightly) she is not the sharpest knife in the drawer. I know she would end up saying the wrong thing and get herself into trouble.

[cjtx]

She has to speak for herself, unless she has a lawyer.

But, you could write down what she has to say.

[chuckgst]

She has to speak for herself, unless she has a lawyer.

But, you could write down what she has to say.

That is what I figured.

She did pull her credit when she went through her divorce, so i will look at those and verify the date of last activity. I will also look to see if the Debt was listed in her divorce.

I will post back when I find out more

[Methuss]

Could I go to court with her and speak on her behalf. I love my sister to death, but (how do I put this lightly) she is not the sharpest knife in the drawer. I know she would end up saying the wrong thing and get herself into trouble.

You could speak for her by drawing up a limited power of attorney naming you as her attorney-in-fact in regards to this account. As long as you are not getting paid for it, you are generally ok. Family can represent family as long as you have written permission.

Where it gets ugly is if you charge for your time and are not in the bar...then you could get slapped for practicing law without a license.

[chuckgst]

You could speak for her by drawing up a limited power of attorney naming you as her attorney-in-fact in regards to this account. As long as you are not getting paid for it, you are generally ok. Family can represent family as long as you have written permission.

Where it gets ugly is if you charge for your time and are not in the bar...then you could get slapped for practicing law without a license.

I could do that. With her track record of paying debt I don't I would ever get paid for my services anyway:D.

[indeepdodo]

Statute of Limitations in Fl is 5 years for credit cards. Spoke with 3 different attnys and all said the courts are treating CCs as written accounts. Sorry for the bad news but it's better to know now than later.

[gator944]

Double check Ladynred's sticky in this heading: "FL 4 YEAR SOL - CASE LAW upholds it !!"

[chuckgst]

I have read the 4 year SOL thread and am currently using the Fernandez case in my own defense for a store credit card.

I did not receive one of the pages that my sister was served with. It has Count II - Account stated written.

Here is where I am confused. The OC was Bank First. The palintiff in this case is Asset Acceptance. They have listed under Count II.

21. Before the institution of this action. BANK FIRST and Defendant had business transactions between them, and they agreed to the resulting balance.

22. BANK FIRST rendered a statement to the Defendant and the Defendant did not object to the statement.

According to the Florida Rules of Civil Procedure:

FORM 1.933. ACCOUNT STATED

COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges:

1. This is an action for damages that (insert jurisdictional amount).

2. Before the institution of this action plaintiff and defendant had business transactions between them and on

.....(date)....., they agreed to the resulting balance.

3. Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the

statement.

4. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., on the account.

WHEREFORE plaintiff demands judgment for damages against defendant.

NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

They have everything on there, but according to 3. they are supposed to attach a copy of the statement. What they have is a statement from Asset Acceptance not Bank First.

They keep referring to agreements and documentation from Bank First, but nothing from Asset Acceptance. Even though eralier on in the Summons it says that Asset Acceptance purchased the account, for value.

From what I have heard about Asset Acceptance, I want to make sure that they have not messed this up in some way.

[indeepdodo]

If Bank One is a store CC you should be okay. That is all the sticky is referring to store cards not "traditional bank-issued cards. Good luck! I'm pulling for you!

[chuckgst]

If Bank One is a store CC you should be okay. That is all the sticky is referring to store cards not "traditional bank-issued cards. Good luck! I'm pulling for you!

I do not believe it is a store card.

[gator944]

Chuck,

The folks here have provided some amazing case law in reply to one of my threads. You can find it here: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=279988.

In my opinion, if they had more they would file more. Can't hurt to ask for it. Actually, it can only help your case to ask for it. Read my thread and how the amazing folks here have helped.

[ave3d]

I would love to know what happens with this one as I have a similar problem, but with an old Ballys account. Ballys is done with this and has moved on...they got their money years ago from the collection agency that bought it. Asset is suing me for the amount Ballys sold it for plus interest and fees. No one including me has a copy of the full contract either..so if you find a loop hole please share with me!

[trueq]

A competent, firsthand knowledge witness is needed to submit any of the alleged proof into evidence.

What is the liklihod they will find one for such an old account?

Move to strike all affidavits prepared by lawyers and "witnesses" without firsthand knowledge of your account!

[chuckgst]

So I went to court with my sister. The judge was very adiment about it being a pretrial conference and if you are denying the claim then a trial date will be set. He said that if you deny the claim that you will have 2 sentences to state why.

The judge would not allow me to speak for my sister, thank god I prepped her before hand. She stated that she denied the claim because the SOL had expired and that there is no assignment from the OC to the JDB.

The judge order trial to be set in April. I told my sster that unless they can provide an assignment from Bank First to Asset Acceptance then they have no legal grounds to collect the debt. The only thing that Asset has provided so far was a Bill of Sale from ine JDB to Asset. There is nothing from the OC.

The judge asked if there will be witnesses and the Plaintiff's Atty said that they will have 1. I wonder who that could be. Probably an employee of Asset, they will have no personal knowledge of the account.

Now we will sit and wait to see if Asset is going to provide a valid assignment.

[Nikro]

Hey! Another Bank First...imagine that.

He said that if you deny the claim that you will have 2 sentences to state why.

Sounds like a patient guy!

Here is my take:

They were shocked you showed--that's why they didnt come prepared.

Asset is a joke. They probably will not find the paper work they need. This thing has probably been sold and sold again. Do you know how many times out of curiosity? We are dealing with a Bank First account that has been sold 3 times.

I would bet this case will be dismissed w/o prej so close to the court date (probably the night before) you and your sister will have to waste your time going to the court just to find out it was dismissed--then you will get your dismissal in the mail from Asset 3 days later. Been here--done that.

^5 to your sister for standing up and stating her case in 2 sentences--it sounds like it was nerve wracking for her.

[Moneedshelp]

sounds like you all did a good job. File for discovery then you can see who the witness will be and request the documents that they have. that way you find out before the trial date.

good luck

[chuckgst]

Hey! Another Bank First...imagine that.

Do you know how many times out of curiosity? We are dealing with a Bank First account that has been sold 3 times.

Not sure how many times it was sold. I have only seen one document that states that it was sold to Asset from some other JDB. So I could only assume that Asset is the third owner.

[Nikro]

sounds like you all did a good job. File for discovery then you can see who the witness will be and request the documents that they have. that way you find out before the trial date.

good luck

If the case is going to be heard in April, is it possible there may not be time for discovery? Isn't there normally a 30 day response time on that?

[chuckgst]

I would bet this case will be dismissed w/o prej so close to the court date (probably the night before) you and your sister will have to waste your time going to the court just to find out it was dismissed--then you will get your dismissal in the mail from Asset 3 days later. Been here--done that.

You were almost dead on with your assessment. However, instead of receiving the voluntary dismissal w/o prejudice the night before trial, she received it yesterday.

Thank you all for your help.

[merrybucks]

She may not be done yet. Since it was dismissed without prejudice they can refile. Be prepared if they do.

[USofA]

If they want to refile, they only have one month to do so. The last payment was 2/9/3 so the SOL would normally be up now. However, it may be tolled (paused) for the time that the previous case was at bar. Just add the time that it was tolled to the expiration on 2/10/08 and you get a new SOL that expires in May. After that date, it is SOL (5 years on written) and any attempt to file is a violation of the FDCPA you can counterclaim for.

[chuckgst]

If they want to refile, they only have one month to do so. The last payment was 2/9/3 so the SOL would normally be up now. However, it may be tolled (paused) for the time that the previous case was at bar. Just add the time that it was tolled to the expiration on 2/10/08 and you get a new SOL that expires in May. After that date, it is SOL (5 years on written) and any attempt to file is a violation of the FDCPA you can counterclaim for.

Those were my thoughts exactly. I doubt very highly that they will refile.

[Focus2069]

just out of curiousity...if they sue...then drop the suit

does it come off your credit report automatically? or is that another "motion" to file?