Court Next Tuesday

[Tramagni]

1. Who is suing you?

Arrow Financial Services

2. For how much?

$3996.28

3. Who is the original creditor?

Washington Mutual (Providian)

4. How do you know you are being sued?

Received Summons from District Court

5. How were you served? Were you served?

Signed for letter at post office

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?

Pennsylvania

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

About 18 months ago

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!) 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.

The summons says:

"If you intend to enter a defense to this complaint, you should so notify this office immediately at the above telephone number

If you have a claim against the plaintiff which is within magisterial district jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five days before the date set for the hearing"

We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

"The above named plaintiff asks judgement against you for $3996.28 together with costs upon the following claim.

Unpaid balance of credit account #XXXXXX. After applying all known charges and payments t the account as of this date, the net balance is $3996.28. Plaintiff demands $3996.28 plus costs."

No questionaire was included with the summons.

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

An "Affidavit of Indebtedness"

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

4 years in Pennsylvania. This is well withing the SOL.

I read through as many posts as I could find relating to upcoming court appearances, but I still have some questions. Thanks for your patience.

I contacted a representative from Arrow Financial Services (today) to try to work out some kind of payment arrangement. The collection representative offered me a settlement of $3271.82 (they say I owe $3996.28). When I asked the representative if I could set up payment arrangements he told me that he could, but "that is what they will do in court anyway". He was obviously pushing for a lump sum settlement. I was hoping that I could settle the debt for less and avoid paying for a lawyer's court appearance. He also said that they are more likely to go to court than make a settlement since the court date is only a week away.

I'm not sure how to proceed.

Is there any possibility they would settle the debt for less money? What would be the best way to negotiate a lesser amount?

Should I forget about negotiating with the rep over the phone and try to work something out with the attorney before the hearing?

If I can't negotiate a settlement, should I answer the summons by filling out a complaint form?

Any advice would be greatly appreciated.

[x-ray]

Keep in mind, I am not a lawyer, but you could challenge the affidavit (it looks like this is all they have as evidence - Affidavit of Indebtedness)

Read: VII. COLLECTION PLAINTIFFS, PARTICULARLY DEBT BUYERS, OFTEN

CANNOT PROVE ANYTHING

http://www.edcombs.com/CM/Custom/collectiondefense.pdf

Possible Defenses:

1. This is not my debt. (plus/minus I am a victim of mistaken identity.)

Mistaken identity occurs when you have been confused with somebody else who has a similar name or other identifying information. Remember that the burden of proof is on the plaintiff to establish that you made or authorized each and every charge. You do not have to prove that the debt is not yours. If you can show the judge that the affidavit is not admissible, they do not have a case against you.

"It is the actual business records that constitute the evidence, not an opinion of the Plaintiff’s employee with questionable motivations and credentials, vaguely referring to them in the affidavit. A mere assertion of a fact, without any evidentiary basis, is insufficient. (Grullon v City of New York, 297 AD2d 261, 263 [1st Dept 2002]). When the affiant relies on documents, the documents relied upon must be annexed (Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d 714, 717 [1986]; Afco Credit Corp. v Mohr, 156 AD2d 287, 288 [1st Dept 1989]), and the affiant must establish an adequate evidentiary basis for them. Mere submission of documents without any identification or authentication is inadequate. (Higen Assocs. V Serge Elevator Co., 190 AD2d 712, 713 [2d Dept 1993])."

2. Dispute the Amount of the Debt

If you believe that the amount of the debt is incorrect, you have the right to dispute it. Remember that the plaintiff has the burden to prove that you owe the amount for which you have been sued. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract, and lawfully charged. You always have the right to insist that the plaintiff come up with your original contract, account statements, and even purchase receipts, to prove the amount of the debt.

3. No Business Relationship with the Plaintiff (lack of standing)

Because you never signed a contract directly with the debt buyer (Arrow Financial Services), you have the right to challenge the debt buyer's right to sue you (also known as "standing"). The plaintiff will not be able to prevail unless it can prove to the court that it owns your debt. To do this, the debt buyer will have to produce a contract of sale (also known as an "assignment") that mentions your debt specifically. If the debt buyer bought your debt from another debt buyer, it has to provide a chain of assignments going all the way back to the original creditor. If the debt buyer cannot or will not provide these documents, the court must dismiss the case.

4. The Plaintiff Is Not A Licensed Debt Collector (Check if they have a license in your state)

5. The Complaint Does Not Contain A License Number (If the is no license)

Every licensed debt collector is required to write its license number in the complaint. If the debt buyer fails to write the license number in the complaint, the complaint should be dismissed. However, the court may allow the debt buyer to amend the complaint to include a license number.

GL!

[Tramagni]

X-Ray,

Thanks for the information. I understand that you are not an attorney but if I decide to challenge the affidavit, would I do it in a written response to the summons, or would I bring it up at the hearing? Or both? I'm wondering because my district court requires me to file the complaint at least 5 days before the hearing. They do not say whether it is 5 business days or 5 calendar days, but I would do it tomorrow (Tuesday) to be safe.

Thanks again

[x-ray]

The answer can be a general denial. It can also contain any defenses you have to the claim. You may also assert any claims you may have against the plaintiff.

You (a defendant) may also have a claim against a plaintiff. This is called a

counterclaim. The counterclaim must be made in writing just like the complaint and the answer. Generally, a plaintiff is not required to reply in writing to a counterclaim. It is assumed that the allegations are denied.

[x-ray]

Keep in mind that you can have multiple defenses and multiple claims against the Plaintiff, the burden of proof is on the Plaintiff to establish that you made or authorized each and every charge. The key is to make it difficult for them to prove. It is your right to insist that the plaintiff come up with an original contract, account statements, and even purchase receipts, to prove the amount of the debt and to prove that it is your debt. Often (9 out of 10), they have only the affidavit and nothing else. Often the judge agrees that the affidavit is not admissible in court because you cannot cross-examine the affiant about the validity of the stated facts and affiant’s credentials, without the evidence the court must dismiss the case.

P.S. I hate to see you settle with these scumbags. They have bought your debt for a few pennies on a dollar (5-7 cents for a dollar of your debt) and will make quick and easy 2000% return on investment if you settle for what they demand.

[Tramagni]

I agree. I just did some web surfing to get a little more information on Arrow Financial Services. I found numerous complaints including accusations of lying, harassment, and even changing records in order to attempt to collect a debt.

I'll go down tomorrow and file the answer to the complaint. I'll file a general denial and push for proof of the debt, etc. at the hearing. I will have a few days before the hearing to go over my defense strategy. Thanks so much for your help. Feel free (please) to post any additional thoughts or suggestions. I'll let you know how I make out.

One more question.. if the case is dismissed can Arrow submit a new complaint at a later date or would they be more likely to give up and go after easier prey?

[x-ray]

They often (number one violation) make false statements in complaint and affidavits, etc., e.g., that affiant has personal knowledge of records establishing debt. They are lying. On average, an affiant spends a few minutes reviewing a folder (the folder could consist of one piece of paper with you name on it and nothing else), make false claims about "personal knowledge of records", and are paid for their false affidavits.

Typical violations in connection with collection litigation

1. False statements in complaint, affidavits, etc., e.g., that affiant has personal

knowledge of records establishing debt, that plaintiff is holder in due

course, etc. A debt collector’s misrepresentation in a pleading that it is a

subrogee was held to be actionable in Gearing v. Check Brokerage Corp.,

233 F.3d 469 (7th Cir. 2000). Filing false affidavits in state court collection

litigation is actionable. Todd v. Weltman, Weinberg & Reis Co., L.P.A.,

434 F.3d 432 (6th Cir. 2006); Delawder v. Platinum Financial, 1:04-cv-

680, 2005 U.S. Dist. LEXIS 40139 (S.D.Ohio March 1, 2005); Griffith v.

Javitch, Block & Rathbone, LLP, 1:04cv238 (S.D.Ohio, July 8, 2004);

Hartman v. Asset Acceptance Corp., No. 1:03-cv-113, 2004 U.S. Dist.

LEXIS 24845 (S.D.Ohio, Sept. 29, 2004); Gionis v. Javitch, Block &

Rathbone, 405 F. Supp. 2d 856 (S.D.Ohio. 2005); Blevins v. Hudson &

32

Keyse, Inc., 395 F. Supp. 2d 655 (S.D.Ohio 2004), later opinion, 395

F.Supp.2d 662 (S.D.Ohio 2004); Stolicker v. Muller, Muller, Richmond,

Harms, Meyers & Sgroi, P.C., 1:04cv733 (W.D.Mich., Sept. 8, 2005).

2. Suing or threatening to sue on time barred debts. Kimber v. Federal

Financial Corp., 668 F.Supp. 1480 (M.D.Ala. 1987); Goins v. JBC &

Assocs., P.C., 352 F. Supp. 2d 262 (D.Conn. 2005).

3. Failure to provide validation notice, 15 U.S.C. §1692g:

4. Adding unauthorized amounts to debts, e.g., attorney’s fees. Shula v.

Lawent, 359 F.3d 489 (7th Cir. 2004), aff’g, 01 C 4883, 2002 U.S. Dist.

LEXIS 24542 (N.D.Ill., Dec. 23, 2002).

5. Misrepresentation of components of debts

6. Proceeding with collection attempts after verification demanded if not

provided

[x-ray]

If the case is dismissed, you are done (no proof means no debt).