Help, i am being sued by collection agency/law firm

[hami]

I received a letter back in may from a collection agency to collect a debt on behalf of Discover card. The letter doesn't have any account info. just a file no. I send DV letter to the collection agency which they received it. That collection agency never responds to my request. On August 28, I received a summon from a different CA/law firm for Discover card. I went to the court on September 8 and the case is assigned for trial on November 10. Even if I am being sued I send another DV letter to the second law firm which they haven't responded. Please give me some advice or share some info. what I need to do to defend my self.

Thank you,

[LUEser]

You'll want to drive their legal bills through the roof.

File an answer.

You can find a template here: http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

post 8

And possibly (if applicable) an objection to complaint

same url, post 6

And if you want, after you file your answer, you can start discovery if the court allows it.

You'll want to look at the Rules of Civil Procedure for your state, and your local court rules to find out if you can begin discovery.

And if you have any violations, you can add a counterclaim to your answer.

You say you DV'ed. Was it timely (i.e. 30 days from the letter)?

If so, You'll use discovery to find out who transferred the account to the second lawfirm. If it was the first one, then we have vicarious liability.

Continued collection activity in the face of a legitimate DV.

And you're sure they didn't respond with validation?

(This is assuming you're looking to do this pro se).

[hami]

Yes, i am sure they didn't respond with the validation. I went to the court web site to find out if they allow discovery and this is the only thing i find. I am not sure if it is the same thing as a discovery method. The court did gave me the Grounds of Defense form to reply to the court before or by october 15. Does that mean i need to put my discovery on that form?

"2:16 Requirements for Filing of Bill of Particulars and Grounds of Defense

Upon request, the judge may require the plaintiff to file with the Court a written bill of particulars and the defendant to file with the Court a written grounds of defense, also mailing copies of these filings to the opposing party. The bill of particulars and grounds of defense shall be due on specific dates and should be under oath or notarized. The failure of either party to comply may be grounds for awarding summary judgment in favor of the adverse party. Upon trial, the judge may exclude evidence as to matters not described in any such pleading."

Thank you for your help!

[Robert Nashville/Savannah]

They don't have to respond to a DV...the creditor can sue you at any time.

Sending any DV's at this point is a waste of time and effort...you have to address the lawsuit by filing your answer.

Whether or not the attorney for the creditor is covered by the FDCPA (and therefore may have violated ("continued collection activity") is not an automatic by any means - it's a matter for the court to decide...in any case, however, that does not deal with the underlying problem; the lawsuit.

The questions you need to be asking yourself are...

1. Do I owe this debt (is it mine)?

2. Can the plantiff prove it to a court's satisfaction?

Different elements come into play here but if the answer to both questions above is "yes" then you may need to consider reaching a settlemtn out of court rather than fighting.

[CreditFixCD]

Sending any DV's at this point is a waste of time and effort...you have to address the lawsuit by filing your answer.

That's not entirely true. well maybe by law in most cases, but you can use the dv letter to show the judge that you don't know about this account and you kindly asked for them to provide the info.

This may help in small claims.

It depends on what the OP told the judge the first time he (or she) went in front the judge.

Its not as much as the law, as it is which law you can convince the judge applies.

hami,

it's a little too late tonight , but I will help you thu this.

Provide me with a little more info:

When did they file suit?

When did you make last payment or charge last item to this account?

On your warrent in debt, do they have Open Account checked?

What did you tell the judge on the first day of court?

When are their Bill of Particulars due?

When are your Grounds of Defense due?

Who owns this account?

Have you look at your credit reports?

Who is suing you, the OC , a CA for the OC or a JDB?

[Robert Nashville/Savannah]

....

It might have some bearing if this case is in small-claims court (although even then it's doubtful). However, there is no reason to assume that it is in small-claims (I'd suggest that most creditors and their attorney's would rather be and would fild in other than small-claims court.

[admin]

Some smaill claims, some not.

Keep in mind that these guys have a 99% chance of failure in court if you respond properly and object to all documents and testimony which can be labeled hearsay. And most evidence presented in court will fall into that category. Some lawyers have even brought witnesses (flown them in) and the testimony has been tossed out by a consumer representing themselves pro per.

[Robert Nashville/Savannah]

...Keep in mind that these guys have a 99% chance of failure in court

Maybe...if Discover doesn't still own the debt...if they do, they certainly won't have any difficulty proving their case unless they simply choose not to do so.

Even so, I've known a lot of attorney's in my life and I've never yet known or met one that would give either side a 99% change of a win in the courtroom irrespective of the "evidence" available or how well prepared one side is for the trial.

[admin]

Maybe...if Discover doesn't still own the debt...if they do, they certainly won't have any difficulty proving their case unless they simply choose not to do so.

Even so, I've known a lot of attorney's in my life and I've never yet known or met one that would give either side a 99% change of a win in the courtroom irrespective of the "evidence" available or how well prepared one side is for the trial.

How about 95%

And I haven't seen Discover in the court house this year. Their method of attack seems to change month to month.

[hami]

When did they file suit?

It doesn't have an Issued date on the warrent except the return date and time which was September 08.

When did you make last payment or charge last item to this account?

I had couple of Discover card and i am not sure which account is this. But to my knowledge i haven't used any of their card since last year sept. or october.

On your warrent in debt, do they have Open Account checked?

Yes

What did you tell the judge on the first day of court?

I told the judge i am not aware of this account. She asked me if i need any info. from them and i said yes. She then gave me the ground of defense paper and told me it needs to be file with the court before or by 10/15/08.

When are their Bill of Particulars due?

There is no date on that part on the Grounds of defense form.

When are your Grounds of Defense due?

By 10/15/2008

Who owns this account?

On the case no. side it has Discover Bank and on the bottom Mann Bracken is listed as their attorney for plaintiff.

Have you look at your credit reports?

No, i have not.

Who is suing you, the OC , a CA for the OC or a JDB?

I am thinking it is the JDB, because the first communication letter came from Wolpoff & Abramsonn back in may 08 and now the warrent has Mann Bracken as attorney for plaintiff.

I thank you all for your help and advice.

[CreditFixCD]

I had couple of Discover card and i am not sure which account is this. But to my knowledge i haven't used any of their card since last year sept. or october.

that rules out the SOL defense

On your warrent in debt, do they have Open Account checked?

Yes

I'm glad to see that Discover knows that CC's are Open Accounts in Va.

But in your case it doesn't matter , your still well within the SOL.

I told the judge i am not aware of this account. She asked me if i need any info. from them and i said yes. She then gave me the ground of defense paper and told me it needs to be file with the court before or by 10/15/08.

When are their Bill of Particulars due?

There is no date on that part on the Grounds of defense form.

Let me see if I can explain this.

First, I'm not an attorney, I'm only explaining from my court experence.

I'm a little confused. In my cases the judge ordered 2 things.

1- for the plaintiff to provide me with a Bill of Particulars

2- for me to provide a Groungs Of Defense

Their BOP was due about 2 weeks before my GOD.

This gives them a chance to provide me with everything they have and gives me about 2 weeks to write up any defense I may have against whatever they provided.

I got to run for a few. I'll be back a little later to add more.

plus i can ony do 1500 characters per post

[CreditFixCD]

In 2 of my cases, ( cap1 and LVNV ) didn't provide a BOP. I checked with the court several times to be sure.

Since they didn't provide me the BOP I didn't have to do a GOD. I just filed a Motion For Summary Judgment pursuant to Va rules of civil procedure 7B:2.

Back to your case.

What did the plaintiff provide with the warrant in debt?

Was any paper work attached with it?

If they have already provided a written contract with your sig and payment history then maybe the judge doesn't see where a BOP is needed and only wants to see what your GOD is against what they have already provided.

I can't remember if you posted how much this was for. If it's for a lot maybe you should think about contacting an attorney.

I also believe that Discover owns this debt and Mann Bracken is a CA.

Mann Bracken specializes in the representation of creditors in collection matters. Since 1979, we have focused on the state representation of national credit card companies. In 1997, we expanded through acquisition state representation in Maryland, Virginia, and the District of Columbia. In 2005, this model was expanded to include offices in Charlotte and Nashville. Effective September 1st, 2006 we will have expanded into the state of Texas after opening up another office in Dallas.

Let me know what they provided with the warrant in debt and we'll go from there.

[hami]

They have attached Affidavit in support of judgment and some paper that has a file#, Media#, 4 digit acct#, my name which the middle name is in correct, chg off date - 03-31-08 and the balance on the account. I am not sure if it helps but after i recived this i send them a letter to provide me a signed contract and the full acct# which they haven't.

[flacorps]

Discover is known to use their computer data to print off reconstructed bills (on their current paper stock, in their current format) and try and pass 'em off as originals. Once they admit they're reconstructed they become very hard to prove and a judge will be angry that the reconstructions weren't made clear at the get go.

YMMV

[CreditFixCD]

I can't tell you what exactly to put on your grounds of defense. I don't have all your paper work in front of me and I haven't studied your situation.

You got to decide if you want to fight and take a chance of getting a judgement against you or you can try to work out a payment plan.

This is up to you.

If you want to fight, here are a few ideas on what you might put on your GOD.

1-

something like your very first post. You sent a timly DV and they never responded to your request.

I hope you have the green card to show proof that they received it. Include a copy of it as exhibit 1

also say according to the FDCPA they are suppose to stop all collections untill validated. Exhibit 2

exhibit 2 would be a copy of section 809 of the FDCPA with the words ( the debt collector shall cease collection of the debt.)

2-You do not believe this is your account.

Where is the orginal CC agreement you signed. you would like to see your sig.

3- If this your debt , you would like to know how they came up with this amount?

Exhibit 3

Google Fields vs Wilber law firm, I'm sure you'll find something in there to use as exhibit 3.

If I remember correctly there are 5 spaces on your GOD.

I try to find enough to fill out all 5 spaces. But just don't make stuff up. try to always include exhibits to back up what you say.

also google GREG A. SPEARS v. TIMOTHY L. BRENNAN

and

stolicker v. muller, muller, richmond, harms

This is a lot of reading , but if you want to win this case, throw everything you can find at them and make them work for their win.

Hope this helps ,

now get busy , you have 2 weeks , get the GOD done

[CreditFixCD]

oh yea, a few more things.

go to the court clerk and get a copy of your case and see if a Bill Of Particulars was ordered and when is the due date.

It should have been.

If there BOP is due before your GOD , and it should be, then you really have to wait till you get there BOP to do your GOD. But while your waiting you can be geting all your info together.

another thing you should think about, You are dealing with the OC or a CA for the OC and if discover is anything like Cap1. they will produce the orginial agreement with your sig.

But really they don't have to:

§ 8.01-32. Action on lost evidences of debt.

A. A civil action may be maintained on any past-due lost bond, note, contract, open account agreement, or other written evidence of debt, provided the plaintiff verifies under oath either in open court or by affidavit that said bond, note, contract, open account agreement, or other written evidence of debt has been lost or destroyed.

[hami]

Hi everyone,

Thanks for all the info. you provide me. I have learned a lot from all of you. Back to my case the law firm has sent me the BOP and a print out showing the balance, acc# etc. I contacted discover and they told me this account has been placed with the law firm and i need to contact them and pay the law firm. Basically the guy said discover doesn't have the account any more.

Suddenly today some guy from the law firm called me at work and said i should just pay them, it is going to cost a lot if i went to the court. I told the guy that they still didn't VD and he said we did. He told me the only thing they need to provide is the name & addre. for the OC and he said that is on the warrent. I google the address and got their 800 # which is there branc office for their banking acctivities. My question is can they just put a street address and claim it as the OC address? Sorry for the long email.