Won the first one, second one coming?

[lrogers621]

1. Who is suing you?

Liberty Point Corp. is suing my wife.

2. For how much?

$1142.00 plus fees and interest

3. Who is the orginal creditor?

Chase

4. How do you know you are being sued?

Received citation

5. How were you served?

Constable at house.

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

None. As this was my wife's debt before marriage. Opened 10-1995, Married in 7-2002. She was diganosed with Alzheimer's in March of 04 with signs as early as 2- 03. All doctor supported.

7. Where do you live?

Texas

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

Unknown, as wife was paying her bills and taking care on her stuff and me the same. However, Libery Point says date of last activity was 03.29.04. And Credit reports obtained since the summons says same.

9. What is the status of your case?

Waiting to see if they produce the orginal contract. And they will sue again? They have until 03.28.08 00.00 for SOL.

10. Have you disputed the debt with the credit bureaus?

No. I did not pull her credit report until I got the summons at the house, when I found out they were suing her. Since the marriage and with the oncoming disease, I never felt the need to check her reports like I do mine as I knew that she would not need credit in the future.

11. Did you request debt validation before the suit was filed?

No. I requested it in my first and second letter to them. I treated the citation as first contact and resonded as if this was first contact.

12. Does summons require response?

Yes, I responded. Denied all 24 questions. Since I do not know anything about this debt and neither does my wife at this point. 54 years old with mild to moderate AD. Completely disabled.

13. What evidence did they send with the summons?

A generic credit agreement with no name, no date, no signature, no account no. etc.. And an affidavit from a lady in Virginia who is "duly qualified and authorized to make this affidavit". Stating that there is payment due. And that Liberty Point purchased this account.

14. What is the SOL on the debt?

4 years

OK, now to fill in what I have done. First letter to them 10.08.07 as soon as I received notice. Denied all claims and gave them copies of doctor's statements on my wife's condition. And in first letter ask them to supply docs. showing info. that I could investigate, i.e. last mo. statement, payment amt, check no. so I could "begin the investigative process." No response.

On 10.27.07 received letter from them wanting to settle this matter for a reduced balance.

Around 11.16.2007 received court date from JOP court. Court date 01.17.08.

On 11.26.07 I sent a more detailed letter requesting full validation. All of this sent CMRR. 01.09.08 they called I spoke to them explained every thing and that no settlement is possible as they have not proven that this account belongs to my wife.

Again they called 01.10.08 same thing. They said they would try to get the requested docs.

On 01.11.08 received letter from lawyer that they moved the court to dismiss without prejudice. So I called the lawyer and as I figured this is to wait out to see if they can get the docs. before 03.28.08 00.00.

IF they produce docs, what next? I have more time to prepare defense. Should I prepare discovery and ask questions about the affidavit and that person's roll at Chase? Do I do that with their next citation?

I also noticed that they did a hard pull on her credit report 2x in 06 on the EXP report. As I understand it FACTA says no to that since she was not applying for credit with them. Right? Should I bring this up in the defense?

Any defense advise out there? Her Teachers Retirement System income is disability retirement and is exempt as is her LTD insurance so bank account seizure is not possible. She has no assets. No savings and both of her checks are put into her own account and not co-mingled with any other funds or my money and is easy to trace. And our house is in a Trust.

Comments and / or help, advise, guidence. Thanks

[cjtx]

Illegal pulling of your report without permissible purpose is a counterclaim not a defense. If you decided to sue them, you could use it. Right there is $2,000 which is more than what they claim it's owed. You have several defenses but you will have time to worry about it if they sue you again.

Call the court and make sure the case was really dismissed. It's not unusual for collectors to lie about it so you won't show up in court for trial so they get a default judgment.

Assuming they really dismissed the case you are okay for now, and it's unlikely they will come back. It's not cost effective for them. Their time is better spent getting default judgments.

[lrogers621]

The pro se question. I can show up for my wife as "next friend" per rule 44 of Texas Rules of Civil Procedure? I can't testify, I submit affadavit for all my info. ? or what? anyone know how this will work? Thanks

[lrogers621]

Thanks cjtx. Was I correct, that is somewhere in the FACTA laws? If so, I will try to find. Can you recommend the right way to respond if I receive another summons ? Respond to the summons with defenses and add discovery questions? May I ask about the qualifications of the person swearing to the affidavit? What if they just send a copy of credit report? The defense there? Thanks

[lrogers621]

bump

[cjtx]

Yes, FACTA modified FCRA and now the issue of permissible purpose is limited to someone with whom there is a credit relationship, so CAs don't qualify.

This is just in general,

When you receive a summons, you either file a general denial or take it paragraph by paragraph and admit or deny the claims they are making. You may also state something like you don't have enough information to admit or deny, so you demand strict proof thereof. You can look for samples on how to respond to a summons using the search feature in this website.

After your answer to their claims, you state your affirmative defenses: like SOL, etc.

Then you state your counterclaims like their pulling of your credit report.

Finally, you list any relief you seek from the court.

A copy of your credit report doesn't prove they purchased the account from the OC. Otherwise anybody with a copy of your credit report could collect everything on it. That's what they need to show. Usually they do it by showing billing statements and their bill of purchase.

[flacorps]

The pro se question. I can show up for my wife as "next friend" per rule 44 of Texas Rules of Civil Procedure? I can't testify, I submit affadavit for all my info. ? or what? anyone know how this will work? Thanks

Key to answering that question would be the TX laws on husband & wife, durable powers of attorney (assuming one exists from when she was still mentally competent) and guardianship.

You might need to set up a guardianship at this point. Only a TX attorney with good elder law experience could tell you.

[lrogers621]

Recieved, 4 days before court date, a Plaintiff's Notice of Non-Suit and Order of Non-Suit for the judge to sign. Dismissed without prejudice.

Went to court house to confirm and the case was dismissed from the docket.

Should I do something? Like submit my own motion to dismiss with prejudice as the CA has had ample time since suit was filed to collect their documents to prove their case? Or just ride it out and see if they retreive the necessary docs. They have until 03.28.08 00.00 to file before SOL they claim. Thanks

[flacorps]

Once it's dismissed the court is unlikely to entertain a motion to change the nature of the dismissal.

Knowing the debtor is in the situation you described would be a powerful deterrent to future actions by the creditor.

[lrogers621]

Another question: upon pulling my wife's CR due to this action, besides discovering the hard pulls they did in 2006, which is now illegal, I noticed that they are also listed as a adverse account themselves. Like an orginal creditor on the CR.

Also, there are a couple of other CA's listed the same. Is this ok?? So you can have the OC as a bad credit line as well as the one or many CA's trying to collect one debt?? thanks

[brokeinok]

Yes both the OC and the CA can be on the report.

As for the lawsuit, you only have a couple of months for the SOL. I'd just wait them out. Seems like they probably pulled the case because they didn't have the docs to prove it and knew from your responses that you'd fight them. They like the easy default judgements.

[cjtx]

Yes both the OC and the CA can be on the report.

Only thing to watch out for is the OC must report a 0 balance. Otherwise you need to dispute it with the CRAs and the OC.

[lrogers621]

The OC does have a zero balance. If the CA has the right to be on the CR, why don't they have the right to pull the report??

[brokeinok]

Because any relationship you may have with their company in reference to the alleged debt is the result of their purchase of the debt from the OC. Permissible purpose requires that there be an underlying credit transaction for them to do a pull, since you never had a credit transaction with them, no permissible purpose exists..... unless, your credit card contract specifically states something to the effect of "OC conveys all writes under this contract/agreement to it's successors, assignees... yada, yada, yada.

the non-permissible pull doesn't usually work with the first JDB post OC, but once it's sold from JDB#1 to JDB#2, then that assignee thing become moot. the agreement gives the OC the right to assign to the person that buys the account from them, but since you never had a "contract" with the JDB#1 then they can't very well assign the right under the non-existent contract to JDB#2.... it's one of those lawyer things that they need to make as difficult as humanly possible.