mahni

I just got served - CAP1

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The plaintiff only lists Capital One, no address or anything. There is a local law office listed of where to answer. I've been digging through the forums but am still muddy; I will come back and fill out the info that you need a little later this evening, but the basics are:

Cap1 - principal 865.29, interest 303.57, atty fees 141.89 and court costs 147.50

I have a lot more reading to do but have my daughter and her friend here at home right now, so I don't want to interrupt their day with this.

I am unemployed as well, so settling at this moment is out of the question, and the totals of my amounts don't even come to 5K so BK I'm thinking is not worth it.

They included a phone number for the attorney's office that the process server told me to call - I'm almost positive I shouldn't be calling. I just got served today so I still have 30 days but want to get this moving ASAP.

I appreciate all the help I have received thus far.

Funny note - there is a stamp on the front page that says Dec 28, 2008 10:03am, I'm wondering if that's when I have to appear.

BTW - I am in GA, the attorney is in a different county but they have filed in my county. Thanks

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Is this a summons from a court??? make sure you follow the courts rules about answering the summons in a timely matter so that you don't have a default jedgement against you. What court is it in? When is the court date?

As far as the date stamp- is it a notary mark- that someone goofed the date up-- I find it hard to believe you would be summoned to appear at 10:03 am.....

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Hi,

1. Be sure to answer the summons. From what I understand, you can just put down ""Defendant does not have sufficient information or recollection to deny or affirm the allegation. Defendant demands strict proof."

2. Send a DV letter to the attorney and cc the plaintiff. They probably won't answer, but you will have a paper trail to take into court showing that you tried to validate and resolve the matter.

3. Research the DOLA and the SOL for your state. You'll need to know if you can use the SOL as a possible defense.

4. Research any other additional defenses.

5. Since you know you can't settle, plan on going to the court date, even if the attorney tells you not to. You do not want a default judgment.

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You have been sued. Sending a validation request is useless. If you want something proved, you must do it through the discovery process. No judge is going to be impressed that you asked for validation after you were sued. Besides, validation is not "proof" of anything.

SOL in GA for a written agreement is 6 years. There are some who think credit cards are open accounts and thus the shorter 4 year SOL applies. That has not been my experience. Regardless, your state statutes will be definitive.

Typically, Capital One has very good records. They hardly ever have difficulty proving up the debt to the satisfaction of the judge.

GA does allow wage garnishment. You may be unemployed today but hopefully that is not a permanent situation.

To my thinking, you are at a crossroads.

If you decide to fight this to the bitter end, you are not likely to prevail given the basics. You will however drive up the cost for the law firm and Cap One. They may be able to add those additional expenses to your final judgment -- GA law and the judge will decide. For sure, you will buy some time but make it more difficult to negotiate a settlement later.

If you can borrow from family or otherwise raise some cash, you can try to settle this early. That would be the least expensive option.

The remaining choice is to try to negotiate a payment plan. If you talk to the law firm and you are willing to prove up your financial situation, they might be able and willing to set up a payment plan and give you a couple of months to get back to work before the first payment is due. You are going to get a lot of advice to stay off the phone and not talk to the law firm. That is your decision but I think you are unlikely to work out anything by mail.

Good luck whatever you decide.

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If you can borrow from family or otherwise raise some cash, you can try to settle this early.

The remaining choice is to try to negotiate a payment plan.

Borrow money from family? That is a line debt collectors use...hmmm. Bad idea - going into more debt to pay a debt is always a bad idea.

negotiating a payment plan on the other hand is an excellent idea. As was mentioned before, file your answer to the court but you may want to converse with the attorney to let them know your situation. They may work with you, they may not but it will be worth the effort.

Good luck!

StressPot

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You have been sued. Sending a validation request is useless. If you want something proved, you must do it through the discovery process. No judge is going to be impressed that you asked for validation after you were sued. Besides, validation is not "proof" of anything.

WHy do so many people say this?? Sending a validation request is NOT useless after you have been sued. If the OP has not received any communication from the plaintiff or attorney prior to this than validation is ABSOLUTELY a valid thing to do. The OP did not state if any communication had been received prior to this or not, but if not then the Thomas case backs up all of the validation after summons and what constitutes initial communication. Some people say the jury is still out on this matter, but it has worked and a precedent has been set regarding the matter. They sued her, they have five days to send her the information regarding her rights. SHe has thirty days to respond with a DV request. The case law states that if the attorney or plaintiff was to follow the law and send the dunning letter prior to this then the DV letter would be useless, but by suing without giving a defendant the chance to exercise their rights under the FDCPA just doesn't fly. So the question to the OP is, did you recieve ANY communication from the Plaintiff or attorney regarding this matter prior to this summons?

ALso make sure answer the summons timely to stop any chance of a default judgement against you. and finally, i would bet that the time stamp is an error and the action was filed on that date and time and you were just now located and served with the papers. You may want to check your states rules of civil procedure on the time limit to be served as well.

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I have been reading a lot of post from debtguy, I think the only thing that is missing is "collector" in his name.

My advice on this: Call a NACA attorney. Find one that is listed close to you. You need an attorney that knows the FDCPA laws. A lot do not.

Also, answer the summons.

Don't let debt guy scare you, I had a judgement against me for about $18,000 a few years back. Did not even know it. Found out about it when I was purchasing some property. After talking with the attorneys they settled for $3000. I got the $3000 after closing opn the deal.

As you can see, a judgement is not the end of the world. Just alittle more work to get done.

Give the board so more infomation and you will get help on this site too.

Not too much personal info though, debt collectors are on here also.8]

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WHy do so many people say this?? Sending a validation request is NOT useless after you have been sued. If the OP has not received any communication from the plaintiff or attorney prior to this than validation is ABSOLUTELY a valid thing to do.

You make a very good point! In my reading I have found that it gets complicated when looking at the FDCPA in terms of what amounts to validation.

A) Some (and mostly collectors at that) will argue that the letter of the law states that all they have to do is supply the consumer with the contact information of who owns the debt and the debt amount when presented with a dispute. State laws of course can augment this - In WA the debt amount has to be broken out, as per state law. You will find of course that CA's and JDB's don't care enough about the law to be complaint in a lot of cases. I tend to think this is because the fines on the books are too small to make it anything other then "the price of doing business" with these debt vultures.

B) Others will argue that the law means they must prove the debt is yours. I personally think they should be required by law to prove the debt is yours or drop it before it even gets to court.

My question is: What does case law support, A or B? I beleive it could support both depending on how the point is argued.

Once you get to court though, the most powerful tool you have IS "discovery". Discovery is the best way to challenge the alleged debt when it gets this far and is the only thing at this point that may hold enough weight in your defense.

I was told the FDCPA does not apply to a OC. So would it apply to the attorney for the oc? If trakamerica is involved would that then bring the FDCPA into play?

The FDCPA does not apply to the OC, you are correct. It does apply to the attorney if they act as something more then the court gopher they claim to be. Did the attorney send you a dunning or settlement letter prior to being sued? If yes, treat them as a 3rd party debt collector. There is, I believe, case law out there showing that attorney's can be held in check by the FDCPA as well. You can DV the attorney, but I would do so upon receiving collections attempts from his or her office. If the attorney in question just filed suit, I would personally pursue Discovery.

People in general give great advice on here, but in some cases (and with some people) the advice is generally one sided and tailored to benefit one side or the other.

MY best advice is three fold: Read, read and read some more! Use Google, and treat these forums like a good book. Read the good and the bad and try never to make an uninformed decision.

Good luck Mahni!

StressPot xdancex

Side Note: Not too much personal info though, debt collectors are on here also. Remember this - an attorney has already used printed postings from this forum to nail at least one consumer posting here - post personal information at your own risk!

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WHy do so many people say this??

Because it is dumb. The DV request is not going to stay or dismiss the lawsuit. The major risk of a DV is a false sense of security it gives a defendant who is clueless. Yes, you can send the DV but it is not going to help anything.

The correct response is either make it go away or prepare your answer and proceed to discovery.

Think about this for a second. If you DV, all you are going to get as a response is the name and address of Cap One. Does that really help you? I don't think so.

And, contrary to people who think they know better, borrowing to settle the debt makes sense if that is what it takes to prevent a judgment that is going to cost a whole lot more and create a lot more problems.

What is wrong with you guys? Either make it go away or dig in for a fight.

For the OP -- you need to think carefully what you are doing. You are getting a lot of advice here that basically says to tell the plaintiff to stick it. Fine, if you think you know what you are doing and you think you got the skills and motivation to make that work.

If you owe the debt and you think the plaintiff can prove it, hiring the best attorney in the word is not going to help. It is just going to add attorney fees to your burden.

If you don't owe it or you don't think the plaintiff can prove it, then hire an attorney or try to do it yourself. Just keep in mind that all the advisers you got going here are not going to do any of the heavy lifting for you -- they kibbutz but that is all. You got to put up the cash for a lawyer or you got to dig in quick and learn what it takes to be your own lawyer. It can be done. It is not nearly so easy as some of the folks here lead you to think.

Personally, I care not what the criticizers think of me. I am giving you advice that is practical and pragmatic. If you chose not to take it, that is perfectly fine. For your own self-interest, you need to carefully look at all dimensions of this problem.

I have been perfectly clear that my bias is to stay out of the courtroom as very little that is good comes from there. Good luck to you.

PS - In case I was not clear the first time -- Cap One keeps very good records and hardly ever has difficulty proving their case in court.

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WHy do so many people say this??

Because it is dumb. The DV request is not going to stay or dismiss the lawsuit. The major risk of a DV is a false sense of security it gives a defendant who is clueless. Yes, you can send the DV but it is not going to help anything.

The correct response is either make it go away or prepare your answer and proceed to discovery.

Think about this for a second. If you DV, all you are going to get as a response is the name and address of Cap One. Does that really help you? I don't think so.

And, contrary to people who think they know better, borrowing to settle the debt makes sense if that is what it takes to prevent a judgment that is going to cost a whole lot more and create a lot more problems.

What is wrong with you guys? Either make it go away or dig in for a fight.

For the OP -- you need to think carefully what you are doing. You are getting a lot of advice here that basically says to tell the plaintiff to stick it. Fine, if you think you know what you are doing and you think you got the skills and motivation to make that work.

If you owe the debt and you think the plaintiff can prove it, hiring the best attorney in the word is not going to help. It is just going to add attorney fees to your burden.

If you don't owe it or you don't think the plaintiff can prove it, then hire an attorney or try to do it yourself. Just keep in mind that all the advisers you got going here are not going to do any of the heavy lifting for you -- they kibbutz but that is all. You got to put up the cash for a lawyer or you got to dig in quick and learn what it takes to be your own lawyer. It can be done. It is not nearly so easy as some of the folks here lead you to think.

Personally, I care not what the criticizers think of me. I am giving you advice that is practical and pragmatic. If you chose not to take it, that is perfectly fine. For your own self-interest, you need to carefully look at all dimensions of this problem.

I have been perfectly clear that my bias is to stay out of the courtroom as very little that is good comes from there. Good luck to you.

PS - In case I was not clear the first time -- Cap One keeps very good records and hardly ever has difficulty proving their case in court.

Well by sending a DV you are starting the paper trail for violations. The case laws states that the Plaintiff should send out the dunning letter prior to filing the summons. That way it gives the consumer the right to DV and exercise their rights. I understand your desire to stay out of court, but if the plaintiff had the same desire they would send the dunning prior to the summons. Most of these collectors only send the summons because they are strictly going for the default. When a consmer answers the summons and sends Dv out then the tables turn because the plaintiff doesnt provide the proper documentation and then continues collection activity trhereby violating the consumers rights. And if you really think about it, if the collector sends the dunning and they get a response pr dv then they would already know that this consumer was aware of their rights and thereby would probably not file the case in the first place unless they could prove it. But the fact is that these people want to save as much money as possible and file the summons first. Most of the time it probably works because people dont do anything, but in some cases it back fires and gets them good. It happened to me and my case is about to go in front of judge. Thery were asking for a little over 1k and now the case has turned and their violations of the FDCPA and FCRA could cost them a whole lot more than they were asking from me, and why? because i answered the summons and SENT A DV to them immediately.

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Well by sending a DV you are starting the paper trail for violations. The case laws states that the Plaintiff should send out the dunning letter prior to filing the summons. That way it gives the consumer the right to DV and exercise their rights. I understand your desire to stay out of court, but if the plaintiff had the same desire they would send the dunning prior to the summons. Most of these collectors only send the summons because they are strictly going for the default. When a consmer answers the summons and sends Dv out then the tables turn because the plaintiff doesnt provide the proper documentation and then continues collection activity trhereby violating the consumers rights. And if you really think about it, if the collector sends the dunning and they get a response pr dv then they would already know that this consumer was aware of their rights and thereby would probably not file the case in the first place unless they could prove it. But the fact is that these people want to save as much money as possible and file the summons first. Most of the time it probably works because people dont do anything, but in some cases it back fires and gets them good. It happened to me and my case is about to go in front of judge. Thery were asking for a little over 1k and now the case has turned and their violations of the FDCPA and FCRA could cost them a whole lot more than they were asking from me, and why? because i answered the summons and SENT A DV to them immediately.

Ummm...no, you are not starting a paper trail for violations!! It's too late at this point. People, PLEASE get off this DV thing after you are sued. If a lawsuit was the first communication from a debt collector, then it MIGHT apply. Otherwise, it's a waste of your time.

However, I say go for Discovery. (also Answer the summons immediately!) Request Production of Documents along with filing your answer. Then you'll see what they have. You never, know they could have crappy records.

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PS - In case I was not clear the first time -- Cap One keeps very good records and hardly ever has difficulty proving their case in court.

Debt guy is 100% correct I was sued by CRAP1 and they had everything I ever sent them IE>Copies of Checks used for payments ,everything they ever sent me.IE>1st statement 2001 to the last 2003 and every contact in between. We got it all from them through discovery. They were awarded the charge off amount+interest,attorney fees,court costs and interest on the total judgment 11% annum + the nasty mark on my CR. If you decide to settle start with the charge off amount and go from there.Know of 2 others who settled before court for that amount. Get everything in righting.If you can have a attorney read over or even make your settlement offer for you.

my attorney charged me $150.00 to do this with discover card.

good luck

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Ummm...no, you are not starting a paper trail for violations!! It's too late at this point. People, PLEASE get off this DV thing after you are sued. If a lawsuit was the first communication from a debt collector, then it MIGHT apply. Otherwise, it's a waste of your time.

However, I say go for Discovery. (also Answer the summons immediately!) Request Production of Documents along with filing your answer. Then you'll see what they have. You never, know they could have crappy records.

you are correct only if it is the first communication, but YES it does apply. A violation is a violation no matter when it happens. I agree that if the summons is not the first contact then this is a moot point, but if it is then violations can and do happen. A plaintiff CANNOT just sue someone without prior contact and not face possible violations.

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A violation is a violation no matter when it happens. I agree that if the summons is not the first contact then this is a moot point, but if it is then violations can and do happen. A plaintiff CANNOT just sue someone without prior contact and not face possible violations.

Agreed. But even then, the case law is sketchy. I would not bother with the DV and just moved forward with the case. It's tiring enough - just focus on that.

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Agreed. But even then, the case law is sketchy. I would not bother with the DV and just moved forward with the case. It's tiring enough - just focus on that.

And i agree with you on this. Fighting the case and filing the correct papers is always the first priorty. But with as slow as the court system moves these days, it really isn't much work to send some letters CMRRR. Then should the violations happen you have something else to use in your case.

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Then should the violations happen you have something else to use in your case.

No, you don't. At best you have grounds for a separate cause of action. A violation is not grounds for a stay or dismissal of the instant case. Depending on the local RCP, one MIGHT be able to amend their case for a cross-claim -- but a cross-claim is a long durn ways from anything that is defensive in the primary case. If you prevail on the cross-claim, one could have some damages that could offset the ensuing judgment.

And, once the lawsuit is filed, violations of FDCPA are almost unheard of. The case is in court. Exactly what do you think the attorney for the Plaintiff is going to do that would be an FDCPA violation? Anything they do "wrong" will be an issue under the local rules of civil procedure and an issue that is immensely more valuable than some imagined FDCPA violation.

And, the lack of a dunning letter before filing suit is a highly questionable violation of the FDCPA and one unlikely to produce any meaningful result for the defendant.

This notion that a DV is an all-purpose weapon is way over-rated.

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This notion that a DV is an all-purpose weapon is way over-rated

Did i say it was an all purpose weapon?? I dont think i said that.

No, you don't. At best you have grounds for a separate cause of action. A violation is not grounds for a stay or dismissal of the instant case. Depending on the local RCP, one MIGHT be able to amend their case for a cross-claim -- but a cross-claim is a long durn ways from anything that is defensive in the primary case. If you prevail on the cross-claim, one could have some damages that could offset the ensuing judgment.

I dont believe i ever said it was a way to get a stay or dismissal either. But i did say that it could be used to negate the claims of the Plaintiff with a counter claim.

And, once the lawsuit is filed, violations of FDCPA are almost unheard of. The case is in court. Exactly what do you think the attorney for the Plaintiff is going to do that would be an FDCPA violation? Anything they do "wrong" will be an issue under the local rules of civil procedure and an issue that is immensely more valuable than some imagined FDCPA violation.

And as for what the attorney for the plaintiff is going to do that would be a violation.....well let me see, in my case he had one violation for not sending the letter within five days, he had another violation for continued collection activity by sending a settlement offer letter(which by the way stated in the letter that this was their "second communication regarding this matter" after i had sent a DV and recieved nothing and he committed a third violation for doing a hard pull of my report without my permission and with no purpose other than to hurt my report after i had requested the DV several times as well as asked for discovery and informed him of the violations. Thats THREE violations right there which were entered into my counter-claim and then there are the continued violations from the Plaintiff for continuously reporting the account on my reports with marking the account as disputed after the DV's and four seperate disputes with the CRA's and two letters to them informing them of the violations as well.

And, the lack of a dunning letter before filing suit is a highly questionable violation of the FDCPA and one unlikely to produce any meaningful result for the defendant.

Said like a true collector trying to skirt his responsibilities. Thomas v. Simpson states in part as follows:

The principal question remains, whether Simpson’s service

of a summons and complaint, filed in state court, was an

“initial communication” within the meaning of the FDCPA,

such that its service triggered an obligation to notify

Thomas of his validation rights within five days. Simpson

concedes that it is a debt collector as defined in § 1692a(6),

but argues that pleadings do not constitute “communications.”......

By its terms, as stated above, the FDCPA’s broad definition

of a “communication” encompasses the service of a

summons and complaint. When Simpson served the summons

and complaint, it conveyed information regarding

Thomas’s debt. The plain language of a statute “should be

conclusive ‘except in the rare cases [in which] the literal

application of a statute will produce a result demonstrably

at odds with the intentions of its drafters.’ ” Castellon-

Contreras v. INS, 45 F.3d 149, 153 (7th Cir. 1995) (quoting

United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242

(1989)). This is not such a case; rather, viewing the service

of a summons and a complaint as an “initial communication”

is consistent with the drafters’ intent.The statute was intended to “protect consumers from a

host of unfair, harassing, and deceptive debt collection practices.

. . .” S. Rep. No. 382, 95th Cong. 2d. Sess. 4, 1. Our

6 No. 02-1113

interpretation of the statute furthers this objective because

it helps ensure that debtors will be informed about their

validation rights and that debt collectors, knowing that they

are obliged to advise debtors of these rights, will investigate

claims before initiating litigation to collect debts. Defendants’

argument that state courts offer sufficient

protections to guard against abusive debt collection tactics

during litigation is unpersuasive. The FDCPA affords different

protections than state court; debt collectors who

violate its provisions may be subject to civil liability. See 15

U.S.C. § 1692k.

Furthermore, to except the service of pleadings from the

definition of “communication” would erode the § 1692g requirement

to inform debtors of their validation rights; debt

collectors could avoid their obligation to advise debtors of

their validation rights altogether by initiating litigation.

Such a loophole, creating an end-run around the validation

notice requirement, is inconsistent with the drafters’

intention of protecting debtors from “unfair, harassing, and

deceptive” collection tactics, especially because many

debtors cannot afford to hire attorneys to represent them in

collection actions. Congress was careful to except pleadings

from the definition of “communication” where it so intended.

Section 1692e(11) provides that a debt collector

must disclose in its initial communication with the debtor

that “the debt collector is attempting to collect a debt and

that any information obtained will be used for that purpose,”

except that the provision does “not apply to formal

pleading made in connection with a legal action.” 15

U.S.C. § 1692e(11). No such pleadings exception exists in

§ 1692g Defendants contend that we should ignore the FDCPA’s

plain language because deeming the service of a summons

and complaint an “initial communication” would interfere

with litigation by making debt collection lawsuits more

cumbersome for attorneys. In Heintz v. Jenkins, 514 U.S.

291 (1995), the Supreme Court considered and, in light of

the FDCPA’s plain language, rejected similar arguments.

The Court held that the FDCPA applies to lawyers who

regularly attempt to collect debts through litigation. Heintz,

514 U.S. at 292. In so holding, the Court considered

§ 1692c©, which prohibits debt collectors from communicating

with consumers if the consumer requests that the

debt collector cease communication. The Court recognized,

“it would be odd if the Act empowered a debt-owing consumer

to stop the ‘communications’ inherent in an ordinary

lawsuit and thereby cause an ordinary debt-collecting

lawsuit to grind to a halt.” Id. at 296. But the Court noted

that such a reading was unnecessary, as § 1692c© allows

communication to “notify the consumer that the debt collector

or creditor intends to invoke a specified remedy,” an

exception that could be read as allowing communications in

the form of court-related documents. The Court thought it

more prudent to read the § 1692c© exception that way

than to “create a far broader exception, for all litigating

attorneys,” given the absence of such an explicit exception

in the Act itself. Id. at 296-97. Thus, the Court’s opinion

suggests that to the extent that they can be ameliorated,

concerns about interfering with litigation are alone insufficient

to warrant ignoring the statute’s plain language.

Nonetheless, some of defendants’ concerns warrant further

discussion, as they claim our holding will create a host of

practical difficulties; however, these practical difficulties

can be overcome. Section 1692g(B) directs debt collectors to

cease their collection efforts if within 30 days of receiving

the debt validation notice, the consumer seeks verification

of the debt. Thus, a consumer could potentially halt a lawsuit

by requesting verification of the debt. This problem is

not insurmountable. A debt collector need not make the

summons and complaint its first communication with the

debtor; rather, it can have its initial communication with

the debtor upwards of 30 days before it intends to initiate

litigation. After the thirty-day verification period has expired,

the debt collector can then initiate litigation without

fear that the debtor will “interfere” with the suit by seeking

verification of the debt.

Sending the notice in advance also avoids other complications.

Some states prohibit the inclusion of other documents

with the summons and complaint. A debt collector avoids

running afoul of such a rule by sending the notice separately,

either in advance or within five days of the initial

communication. After all, the FDCPA does not require debt

collectors to notify debtors of their rights in the initial

communication itself. See 15 U.S.C. § 1692g(a)....

....Because we have concluded that the service of a summons

and complaint by a debt collector constitutes an “initial

communication” under the FDCPA, Thomas has stated a

viable claim for violation of 15 U.S.C. § 1692g

So a summons as first contact is THE SAME as a dunning letter and requires the same documentation and rights as a dunning letter. Therefore, along with filing an answer, a DV can and should be used in any case where the summons is first communication.

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Joey

You are missing my point. What I said and tried to support with logic was the premise that sending a DV after being sued is a waste of time -- even Admin agreed with me. You don't agree obviously. That is OK as it makes no difference to me. We just disagree and I will still express the opinion that your advice is dangerous. Having expressed that disagreement, others who read this are free to draw their own conclusions as is entirely proper.

Yes, I know all about Thomas. It is a court ruling that is controlling in only a narrow set of jurisdictions -- regardless it is widely adopted by the debt collection lawsuit mills as a safety measure.

I have no problem with Thomas as a principle. Thomas is the reason you see summons with the mini-miranda and the "right to DV language".

I thought then and I think now it is a oxymoron of the highest order.

Further, I think it harms consumers rather than protecting them because it gives a false sense of security to the uniformed and unsophisticated -- surely you will agree there are plenty of those types. If I had a nickel for every time I saw someone who had been sued and said "I sent the request for the DV" but through their ignorance did not file their answer because they sent the DV and through that was enough .... well, I would have a big pile of nickels on my desk. Most of those posters ended up hosed because of their ignorance and failure to follow the proper court procedure. Personally, I think they got snookered into that situation because of Thomas.

You may understand some of the nuances. Most of the noob posters here do not. You, like so many others on the forum, tend to state opinions as facts. That misleads rookie posters who don't know to challenge what they are told by those who are seemingly experts. I am not suggesting that you are doing anything intentional to mislead and it is obvious that your motive of helpfulness is genuine. You just forget to point out to the receiver of the information that there are counterarguments of which they should be aware so they can make an informed decision.

I am not perfect and I sometimes get carried away and forget. I try very hard to differentiate between facts and opinions. That is why my posts often say something like "blah, blah, blah but there are those who disagree with my conclusions", etc. I think we would all be more helpful if we tried to keep that in mind.

That is what I worry about and why I seem continually in conversations like this defending my comments. Often responders seem to think I have some goal of misinforming and misdirecting because I try to point out obvious errors in statements, conclusions and where there is more than one way to look at the situation. Opinions are not facts. There are very few things that are "hard-and-fast" "cut-and-dried" in the courtroom.

What you do or what the OP does is your or their business. I just want to see the decision made with all the facts in hand. A knowledgeable decision, even if dead wrong, is better than a lucky but uninformed decision.

Any attorney so dumb to violate FDCPA deserves to lose his license. But, then stupid never required a license. If I understood correctly, the personal scenario you described had nothing to do with a DV but an attorney who purported violated FDCPA all by himself. It is not clear how it turned out, but I hope you were happy.

Also, you really need to work on your snappy comebacks. Calling someone a collector because you disagree with what they had to say is a pretty lame way to express yourself and sounds a lot like a 6th grader on the playground. If that person where actually a collector they would hardly be offended. As for myself, I've been called things much worse. Sticks and stones.

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i have not been the only one who has stated that you sound alot like a collector or someone in the collection business.

Either way, i do agree that we will disagree.

I've never quite been able to figure out what a collector sounds like. Exactly what is it that a collector would say that differentiates?

I know. I've had this conversation before. Typically there is some interpretative difference of opinion. As best I can figure out I guess I offend people in that I don't exhibit the typical vituperative rhetoric and venom that is so common on the forum.

Somehow, to me, that just does not seem to be a reasonable basis to ignore the experience and observations of someone who puts in a lot of effort at explaining and holding hands. I am not reticent to defend my comments and I always try to explain how I got there. How can that not be helpful and positive?

I am retired. I have 30 plus years experience in banking, financial services and consulting. I've spend the majority of my life working around these issues in one way or another. I don't know it all and don't claim to -- I learn new things all the time. But, I know a lot and most of it learned the hard way.

I've spent untold millions of dollars on lawyers and untold hours in the courtroom (on both sides of the aisle). Some of that rubs off. It causes me to realize that very little that is good comes out of the courtroom and that it is mostly a good thing to avoid being there. It also causes me to look for practical and pragmatic solutions to problems. I understand that some people on the forum think it is major macho to to establish ones bona fides in fight to the death litigation. Someone on the forum said they would never pay a nickel to a collector until they were ordered to by a judge and then the creditor would have to pry the nickel out of his clenched fingers. Now that is just dumb. It is also not me.

I have a bias that one should pay their bills if they can and if they cannot they should seek protection in bankruptcy and that there is no shame in finding oneself in that situation. There is only shame in not learning from the experience.

I have no tolerance for creditors or collectors who violate the law and they deserve to be punished harshly.

I have little tolerance for debtors who lie and manipulate to avoid their obligations. There is a fine line between using the protections of the law to insure that creditors "play fair" and some of the deception I've seen on the forum.

I am keenly sympathetic to people who need advice and help so long as their goal is honorable -- which is almost always the case. I devote a lot of time to help and educate because I think it makes a difference. I get a fair number of thank-you PMs and I always want to know how it worked out.

I am astonished and ashamed at the level of financial irresponsibility of consumers in our country where most people have a mindset of "immediate gratification" and "shop till you drop" and are one paycheck away from financial disaster. They have no savings to backstop a job loss or an illness. They have a mindset that their life wouldl be better if they could only get one more credit card. That is no way to live your life.

I am disgusted at the polices of our government that encourage foolish consumption as a key driver of our economy. I am disgusted at our schools who cannot teach enough math so that people can figure out credit card interest and making minimum payments is a really stupid proposition. I am disgusted with Wal-Mart and their like for creating a culture where one goes shopping to feel better.

I am especially disgusted at the credit card companies for their behavior in making too much credit available to people who are not good candidates for unsecured credit. That is especially so for the barely-prime and sub-prime credit card companies who prey on working families knowing they are probably damaging that consumer in the long run but betting they will make money on the proposition. Too much unsecured credit chasing too few qualified consumers is going to drive the nation to a real financial crisis where the taxpayers step in to bail out the banks like they did for Bear Stearns -- but the consumers won't get bailed out. That is wrong on so many levels.

Joey, if all that makes me a collector, well everyone will just have to live with it. It is not within me to change.

And, yes we disagree on some things. There is nothing wrong with disagreement.

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The first thing the OP needs to do is go to the court, clerks office and get a copy of the summons/complaint that the plaintiff filed.... thereby confirming that a suit has actually been filed. It wouldn't be the first time a collector used a "fake" summons to scare the alleged debtor.

Next, if this is the 1st communication, by all means DV the lawfirm. Not that it's a big deal, but the key to combating collections is to use every tool available. This includes establishing the predicates for collector violations. The DV requires a specific response, which is to obtain debt validation FROM the OC and forward it to the alleged debtor. If the lawfirm doesn't follow the required proceedures... violation, even if there is also a lawsuit on going. Lets face it, if the lawfirm/plaintiff cannot meet the very minimal requirement of validation, they will have a hard time meeting the burden of proof for the suit. It also racks up more billable's for the plaintiff making the pursuit more expensive.

Rarely would the court award legal fee's generated by the defendant pursuing his legitimate rights under the law.

As for lawyers violating the FDCPA and FCRA... here's an example from my own experience.

The lawyer filed claiming a debt amount 1/2 the amount the plaintiff(OC) was alleging was owed in thier reports to the 3 CRA's on the same debt. So either the OC was violating the FCRA or the lawfirm was violating the FDCPA. Given the extra hoops over the FCRA, best to counterclaim the FDCPA violation on the part of the lawfirm. In my case it was deliberate, as they were seeking a a default judgment in small claims, and the actual amount of the debt w/interest from the OC was well above the MAXIMUM threshold for small claims. Since 95% of alleged debtors result in a default judgment OR consent to judgment/payment plan, they were playing the percentages.... as most collection attorneys do.

The violation is FDCPA false/misleading claims about the amount and character of a debt, and communicating false and misleading information, as well as commonlaw defamation and commonlaw fraud. My state law also has FDCPA equivalent statutes, so there were state law counterclaims as well.

There was also the FCRA issue of the lawfirm obtaining copy of my consumer credit report (and generating a hard pull). See, in MA, it is illegal for a debt collector to obtain a consumer credit report in its own name. Extra problematic for collection attorneys who have to file PER CASE a specific certificate with the CRA's specifying permissible purpose.

Since it is illegal to obtain it, they obtained the CR under false pretenses... the FCRA violation that includes a built in PRIVATE RIGHT OF ACTION and statutory penalty of $1K as well as punative damages allowance at the descretion of the judge AND both state and federal CRIMINAL violations. A very very serious matter. Disbarrment, fines, jail. At this point you file a complaint with the district attorney, attorney general and US attorney for your jurisdiction... just for good measure, leverage. If they did it to YOU, they did it to dozens/hundreds/thousands and could be facing $MILLIONs in fines if investigated and prosecuted.

It is also illegal in most states to obtain a CR for litigation purposes. So this issue could apply to more than just MA and other states with specific prohibitions.

The goal for the OP and anyone seeking enlightenment fighting collections is to be in the 5% who fight back.

If it is a real suit, then read the rules of civil proceedure for the court, and forumate an answer/counterclaim based on what you have to at this point. Some states require you include affirmative defenses up front and can't amend them later, if this is true for you, make sure you include any and all plausible defenses up front. For other states you can generally amend once wihtout leave, and otherwise ask the court for leave to amend as the case proceeds.

Prep discovery for as soon as the rules allow. For OP.... is this REALLY CapOne? Or did they sell it to a JDB? If it is C1 then yes they have excellent records and it will be hard to fight.... NOT impossible, just hard. If it is a CA or a JDB then it will be harder for them to get the documentation (COne will charge them alot$$ for it) etc. You need to determine exactly WHO you are really fighting. Sometimes COne sues for a few hundered, sometimes they sell the little crap off to JDBs.

If it is assigned, you will want to attack the assignment with all that entails. If its a JDB, you want to attack the sale, chain of custody, etc.

Even if it is COne, and they cough up a ****load of paperwork, you will want to attack the legitamcy of any computer generated records. You will want to force them to fly a records clerk out to testify. Lawyers cannot testify, in court if he tries... "OBJECTION, Counsel is Testifying", if he tries to get the paperwork entered into evidence, object to the varacity of the documents and force them to produce a first hand witness who can testify to personal knowledge of the truthfulness and accuracy of the documents.

You even have more desperate last ditch effort possibilities. Did they WRITE the debt OFF thier taxes? Find out with discovery. If they did, you can argue "payment and tender"... they took money from a third party to settle the debt (28% of the full amount), and the IRS code says pretty unambiguously that a debt written off is DISCHARGED with the same definition as a debt DISCHARGED in bankruptcy. I bring this up because "Payment and Tender" is an affirmative defense that may need to be claimed in your initial answer. Time barred by the statute of limitations is another affirmative defense that may have to included up front in the answers.

Hope this helps.

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I've never quite been able to figure out what a collector sounds like. Exactly what is it that a collector would say that differentiates?

I know. I've had this conversation before. Typically there is some interpretative difference of opinion. As best I can figure out I guess I offend people in that I don't exhibit the typical vituperative rhetoric and venom that is so common on the forum.

I will admit that i have not read everyone of your posts, but it seems to me that you only wish to keep people out of court. Thats what any collector would wish to happen. They dont want anyone to fight for the rights the are afforded. If I have missed some posts in which you state differently then i apologize for this, but i am just going on what i read. I dont know you, just as you dont know me. Anyone on the interenet can be who ever they want to be. But know matter who people are or how they think, things can be picked up and/or interepreted differently through writing and typing then is maybe the intention of the speaker, either consciously or unconsciously.

I've spent untold millions of dollars on lawyers and untold hours in the courtroom (on both sides of the aisle). Some of that rubs off. It causes me to realize that very little that is good comes out of the courtroom and that it is mostly a good thing to avoid being there. It also causes me to look for practical and pragmatic solutions to problems. I understand that some people on the forum think it is major macho to to establish ones bona fides in fight to the death litigation. Someone on the forum said they would never pay a nickel to a collector until they were ordered to by a judge and then the creditor would have to pry the nickel out of his clenched fingers. Now that is just dumb. It is also not me.

I too have had my fair share of the US court system and have seen how the system works and the tricks that savey lawyers use to win cases or obtain the outcome they are seeking. I am still somewhat new to this area of the law, but still see the same tricks. And i am not one who suggest a fight to the death litigation, but i do abide by the theory that if the CA/JDB wants to file the suit then they better be ready to back up their claims. If the defendant wants to deal with them outside court that's anyones choice, but if they want to fight the claim, AND THEY HAVE A LIGITIMATE CLAIM, then i will be the first to stand behind them and help. But if that person chooses to take the chance in court, then they must be willing to accept the outcome no matter how it works out. And they must understand the possibilites prior to entering into their choice.

I have a bias that one should pay their bills if they can and if they cannot they should seek protection in bankruptcy and that there is no shame in finding oneself in that situation. There is only shame in not learning from the experience.

Agreed completely

I have no tolerance for creditors or collectors who violate the law and they deserve to be punished harshly.

And this is where i think we start to either disagree or misunderstnad one another on the steps that should be taken to "punish" the ones breaking the law. Hence the point of this whole conversation.

I have little tolerance for debtors who lie and manipulate to avoid their obligations. There is a fine line between using the protections of the law to insure that creditors "play fair" and some of the deception I've seen on the forum.

Absolutely. I agree that the laws are there to help the people and keep things fair and right and i too agree that there are people who attempt to pull the same tricks on the CA's and JDB's that they try to pull on the people which is not a good thing.

And, yes we disagree on some things. There is nothing wrong with disagreement.:cool:

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I will admit that i have not read everyone of your posts, but it seems to me that you only wish to keep people out of court. Thats what any collector would wish to happen. They dont want anyone to fight for the rights the are afforded. If I have missed some posts in which you state differently then i apologize for this, but i am just going on what i read. I dont know you, just as you dont know me. Anyone on the interenet can be who ever they want to be. But know matter who people are or how they think, things can be picked up and/or interepreted differently through writing and typing then is maybe the intention of the speaker, either consciously or unconsciously.

Joey,

I think it is just a matter of perspective. Admittedly, I think ending up in court is not a good proposition for the consumer and if they can stay out of court, they should.

To understand my reasoning, one must separate the sheep from the goats, so to speak. I don't use those terms to be derogatory but because it is the easy way to describe a sharp differentiation. A goat is someone who is highly motivated and has the time, energy and talent to be a pro se warrior. A sheep is someone who does not have a clue what they are doing and thinks court is where one goes to find fairness or justice. Sheep invariably get slaughtered.

I have no philosophical opposition to anyone (sheep, goat or whatever) standing up for themselves. My constant mantra has been to just make sure they understand what they are getting into as a bargain.

Take for example, whack who posted just before you today. In my view, s/he is wrong on so many levels. But, ignoring my disagreement with what s/he says, rookie sheep can't tell the difference and not knowing what they are doing can create greater and more expensive problems for themselves. I just hate to see that happen. Now, if they go into it with both eyes open and get slaughtered, well, they did it to themselves and they will surely learn from the lesson.

Sheep can become goats. Good for them -- to the degree it allows them to make the CA/DB play fair. I've never been able to look at a sheep and figure out whether or not they would make a good goat. So, if I care for the sheep then I will do what I can to counsel and make sure they understand what they are getting into, the risks and the rewards and the alternatives. It is their decision. If I did my best to educate and the sheep comes back with a handful of bloody entrails, I'll feel badly for them but that is all.

I hope this makes sense to you. None of what is said seems at odds with what you posted they must be willing to accept the outcome no matter how it works out. And they must understand the possibilites prior to entering into their choice. I just take more words to say it. If my thoughtfulness and concern makes me a "collector" then you've got a pretty weird dictionary.

A final thought regarding the possible difference of opinion about punishing violative DB/CA. You said And this is where i think we start to either disagree or misunderstnad one another on the steps that should be taken to "punish" the ones breaking the law.

I can only think of a limited number of ways to punish violations.

The one everyone thinks of is to sue them. I wish that were not the case because suing is not always easy and is a pain in the patoot and can be expensive. But, if that is what it takes, then that is what it takes. But, in this situation also, I counsel sheep to make sure they understand what they must do to be successful and to go into it fully aware.

The other punish that occurs to me is to complain. Last fall the FTC called a meeting of the major DB/CAs and basically told them that they needed to clean up their act and do a better job of responding to consumer complaints. They veiled threat was that if the industry did not self-regulate someone else would do it for them and they probably would not like it.

There is a model for self-regulation of an industry -- NASDAQ created a system to keep broker-dealers in line rather than have the SEC get more involved and it seems to have worked decently well.

The ACA seems to have taken this threat seriously and is pushing their members to be more responsive. Most larger members have set up a Consumer Complaint Officer who actually is something more than a clerk in the mailroom. The ACA is also working with the BBB to partner the creation an a dispute arbitration/mediation program. While I think the BBB is a toothless organization who exists to further the interests of their business members, they do deserve credit for a reputable and working mediation program. I hope the ACA is on to something here.

I have recently seen more and more comments that consumers are having some favorable results from complaints to ACA and BBB. To me that also says the DB/CA are being more responsive. I'm not sure that means the consumer is getting the answer they wanted but they do seem to be getting answers.

I am more and more encouraging consumers to try the complaint process as a first effort and then decide what, if anything, they want to do next.

My last thought is to work for reform. If everyone would write to the FTC and their congressweasel and make suggestions for changes -- not just bitch and whine but serious and thoughtful suggestions for changes -- we might get somewhere. For what it is worth here are the 10 recommendations I made:

1. Change the maximum judgment for violation of FDCPA to $10,000 per action.

2. Change FDCPA to define a standard for validation to be at minimum a regular account statement or application from the files of the OC or an affidavit signed by an officer of the OC.

3. Change FDCPA to make all DVs timely.

4. Change FDCPA to allow a CA to make a maximum of 3 contacts or 3 messages in a 7 day period. Allow CAs to make contact on cell phones and to leave messages on voicemail or answering machines.

5. Prohibit CAs from contacting a 3rd party more than 1 time in a 30 day period when seeking location information.

6. Clarify that consumers do not have the right to a limited cease and desist. Retain the right of consumers to forbid phone calls at their place of work and during a 10 hour daily sleep period.

7. Change FCRA to require that all disputes of inaccuracies be made under oath and penalty of perjury.

8. Change the bankruptcy code to "go back" to the Chapter 7 rules in effect before the last reform legislation.

9. Require that lenders fully reserve any unsecured loan outstanding to any person that has an unpaid or undischarged charged-off unsecured debt.

10. Require that lenders fully reserve any unsecured loan outstanding to any person who has been discharged in bankruptcy during the previous 24 months.

That list of 10 changes contains something that absolutely everyone would love and everyone would hate. To me, that is the measure of changes that are "fair and balanced". In truth, the list leans toward the interest of the consumer, as it should.

If I could add one more thing to my wish list it would be to somehow to convince FICO to adjust their algorithm to reward (instead of punish) consumers to pay a charged-off debt -- I don't think they should "PFD the debt" but give the consumer half a bump or something. I did not add that to my letters since I don't think that is a regulatory issue and thus Congress cannot intrude.

That is all I can think of.

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The changes that need to be made... and it is CONGRESS that must make them...are the following:

Change FDCPA to be $1,000 PER VIOLATION, period.

Change FCRA to provide a clear private right of action for consumers to sue data furnishers and CRA's.

Change "validation" to specify an accounting of the debt with a complete breakdown of the charges/fees/interest/atty fees/etc sought. Identification of WHO the original creditor was and who owns the debt now.

Create a NATIONAL USURY limit of 10% above prime maximum. The critical flaw in the National Bank Act overiding state usury limits was not providing any national replacement.

Change rule 5000 to require the OC to SUE within 6 months of charge off or write the debt off thier taxes (forgiveness) transfering the debt to the IRS with a 1099.

Reverse the collector friendly alterations made in the recent bankruptcy law update.

The rest of it is irrelevent. OBEY THE LAW and the collector will have no problem, but OBEY IT or else. The entire point of the FDCPA and FCRA is to make the consumer the prosecutor for violations, so the government doesn't have to keep an army of whomever onboard to police the collection industry. Properly equip the consumer to fulfill this task.

OBEY the law and you will have no trouble collecting on the debt. The problem comes from trying to maximize PROFITs in collection, by cutting corners and breaking the law. The only way to stop such behavior is to punish it.

The OC should default you, charge you off, and SUE, and do it asap, not 2 weeks before the SOL expires. Years later with you having long since gotten rid of any exculpatory records, wirnesses etc. It just dont cut it, there is a concept in law for this:

Defendant invokes the Doctrine of Latches as the Plaintiff waited too long to file this lawsuit, making it difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant’s defense has been lost or destroyed.

As for having any changes made to help collectors... no. Collectors can go #@$% themselves. They already have massive advantages over a mere humble citizen, clearly seen by the fact 95% of suits end in default judgment or consent judgments.

As I pointed out to you DGuy, the consumer's RIGHT to have the collectors refrain from telephone communications is written in stone in section 805 of the FDCPA and is well established in the caselaw. All the consumer must do is inform the collector that it is "inconveneint" to contact the consumer by telephone at any time and any place. Period.

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