joeyjoe68 Posted April 9, 2008 Report Share Posted April 9, 2008 Does anyone have any info on a summons being the first contact from a creditor? I was reading the FDCPA and it states that A communication in the form of a formal pleading in acivil action shall not be treated as an initial communicationfor purposes of subsection (a).Am i wrong in assuming that this means that they wouldn't have to provide the information within 5 days as it states in (a)? Yet this would still be construed as first communication in all other aspects in regards to validation? Link to comment Share on other sites More sharing options...
LoveToGod Posted April 9, 2008 Report Share Posted April 9, 2008 Does anyone have any info on a summons being the first contact from a creditor? I was reading the FDCPA and it states that A communication in the form of a formal pleading in acivil action shall not be treated as an initial communicationfor purposes of subsection (a).Am i wrong in assuming that this means that they wouldn't have to provide the information within 5 days as it states in (a)? Yet this would still be construed as first communication in all other aspects in regards to validation?Is it from a collection agency? What is the SOL in your state and how old is this debt? Link to comment Share on other sites More sharing options...
confusedsoutherngirl Posted April 9, 2008 Report Share Posted April 9, 2008 the same thing has happened to me. I had no previous correspondence whatsoever and then the next thing I know I'm being served with a summons to appear at a pretrial conference. If it is legal to do that, it shouldn't be! Link to comment Share on other sites More sharing options...
swirlgirl Posted April 9, 2008 Report Share Posted April 9, 2008 Legally, an initial communication can be written or oral. So, did you ever get any phone calls? Did you move since the debt went into default? Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 9, 2008 Author Report Share Posted April 9, 2008 okay, i found this case regarding this matter. Thomas v. Law Firm of Simpson & Cybak, et al., No. 02-1113 (7th Cir. 12/20/04).After reading the entire case, the 7th Circuit court stated that a legal summons CAN be construed as initial contact. Link to comment Share on other sites More sharing options...
swirlgirl Posted April 9, 2008 Report Share Posted April 9, 2008 This sounds reasonable to me. It's the burden of the consumer to keep track of their debts and the periodically review their credit reports. If you lose track, you can't wind up getting sued. Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 9, 2008 Author Report Share Posted April 9, 2008 I agree....i believe this also disables a CA from just ignoring the rules and filing suit and then claiming they did send prior communication. It gives the consumer more protection.....and i for one am thankful for that Link to comment Share on other sites More sharing options...
Amerikaner83 Posted April 9, 2008 Report Share Posted April 9, 2008 Download and read the linked document. The WHOLE hting is a good read. It's from the Kansas Law Review, re: the challenge of communicating with the consumer without violalating FDCPA. There is a specific section regarding summons being initial communication".If I remember right, if it's doine right, without overshadowing, is the usual answer. Here's why: initial communication - dunning - 30 days to dispute. Summons - 20 days to Answer. the LSC (least sophisticated Consumer) might be tricked into thinking he has 30 days in which to repsond to the Summons, NOT the 20 as provided for in Federal RCP (overshadowing)It's a good read, albeit long:http://www.law.ku.edu/lawrev/GRIFFITH_FINAL.pdf Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 10, 2008 Author Report Share Posted April 10, 2008 oh good one, thanks.I dont think i need to worry about it much though....i was re-reading the dunning letter with the "offer" the attorney sent out a little bit after that and it clearly says in the letter "this is our second communication with you regarding this matter"......Now i still have a question regarding the stipulation dismissal he sent for me to sign......i still dont know whether to sign it and then as soon as i see it's filed to file my lawsuit or if i should file my suit now or if i should amend my answer to file the counter-claim that way........for some reason i can see this guy using the back page of the stip-dis wiht my signature and filing something else instead Link to comment Share on other sites More sharing options...
Amerikaner83 Posted April 10, 2008 Report Share Posted April 10, 2008 How strong are your counterclaims? If they are pretty strong, amend your Answer to include them. Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 10, 2008 Author Report Share Posted April 10, 2008 well i have them on failure to validate, continued collection activity, reporting to CRA's without marking account as disputed, and i think even the threatening to sue with the summons and a second letter threatening action if i dont so something by a certain date......the problem i have with the amended answer is how i am reading the nevada rules of civial procedure.....not quite clear on what exactly they mean i should do or how i should do it.......and if i amend, do i just send that back instead of the stip-dis? Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 10, 2008 Author Report Share Posted April 10, 2008 okay, here's what i am doing, I am sending back the stipulation dismissal to the attorney without a signature. I amended the stip-dis to include what i want in the order, which is basically what i would ask for in my suit. I am also sending the attorney a letter explaining the reasons for the amended motion and bascially letting him know that i DO have a strong enough case against them and him. Link to comment Share on other sites More sharing options...
Amerikaner83 Posted April 10, 2008 Report Share Posted April 10, 2008 allrighty then Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 10, 2008 Author Report Share Posted April 10, 2008 just going to see if i can get a read on whether or not they would settle without going to court is all. Link to comment Share on other sites More sharing options...
Amerikaner83 Posted April 10, 2008 Report Share Posted April 10, 2008 Honestly, it's all dependent on not only how strong your counterclaims are, but how strongly YOU present yourself to the opposing counsel. I don't think anyone here could give you an accurate feel or percentage of success...That aside, many CAs don't want to go to court over a small debt. Many CAs will settle out of court. Unless you're treading new legal theory or potential caselaw, you don't want to go to court either. Link to comment Share on other sites More sharing options...
joeyjoe68 Posted April 11, 2008 Author Report Share Posted April 11, 2008 i agree, if i can stay out of court then that would be great.I think i made a nice strong statement in my correspondence to the attorney. I very nicely let him know that my case against him and his client is strong enough to back up everything i have on him. i let him know through the writing that he isn't dealling with dummy on this one. I quoted just enough of the FDCPA, the FCRA, Nevada Law and case law so he knows i know what i talking about without giving him to much info. And i let him know that i have studied his cases that are in court at this moment and understand that he is nothing more than a default seeker, which he is. :twisted:time now to just wait and see how he responds to it. Link to comment Share on other sites More sharing options...
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