Trial Tomorrow with FIA Card Services

[2fightback]

Hi all:

I have posted previously about my case, which is set for trial tomorrow. As an update, I filed my RFP with help from one of the attorney's on the forum and was told by PA that they were going to file a Motion to Compel, as I cannot simply deny their requests, blah, blah (I posted the contents of their RFP in a previous post and denied most citing it was their burden of proof).

I never received a response to my RFP from PA, which they received on 11/26/08 (I just realized yesterday that they never filed their response). I was in phone contact with the PA on Monday and he offered to settle for about 60% of the current balance. Seeing as I am extremely busy with work this time of year and I can afford it, I told them I would agree, but only if they deleted the debt from my CR. They supposedly checked with FIA, who responded that they could not legally do that because it is a valid debt (says who???). I told him all bets were off then and I would see him at the trial. He asked me to send a copy of my CR to him so he could use that to convince his client to agree (I only send the relevant listing to him), but I haven't heard a word from him since and the trial is set for tomorrow. After reading through the forums, I'm really kicking myself for ever even considering a settlement offer with them....afterall, this was my ex's CC and I have no recollection of ever applying for the card, and I know dang well they don't have any proof other than statements with my name on them.

The only documents FIA ever produced were credit card statements in mine and my ex's name from Fleet Card Services, then there was a sudden two year gap, and then the statements change over to Bank of America and list my ex's address and say "charged off" with a $0 balance. They can't find my ex, so they've come looking for me. They also attached a Cardholder Agreement, which I understand means nothing. I had previously disputed this debt with three other CA's (NCO, and a couple of collection attorneys). It appears FIA has no signed agreements, receipts, etc., but PA says they don't need those to win (of course he's going to say that). I know that Fleet merged with MBNA, then to BOA, which is now FIA. The chances of them having anything in writing are slim to none.

So, what can I do, short of showing up for the trial? Can I file a MTD today, or is it too late? I am not prepared for the trial, although I could be if I stayed up late and got all my ducks in a row. I know the OC has a good 3 or 4 hour drive over icy mountain roads and the attorney on the case was on vacation for 10 days and just got back in the office on Monday. I'm guessing he is NOT prepared either, but at the same time, this could be some sort of tactic to show and hope that I do not. What do I need to say/do at the trial to squash this thing? Any advice or help would be greatly appreciated!

[2fightback]

I forgot to mention that PA never did file a Motion to Compel. I also believe that they list a witness for FIA out of NC, but never filed the request to allow telephone testimony. I also don't know if PA ever filed the required Trial Management Order, which was due 12/10/08. Shouldn't I have received a copy if they had? I suppose I need to verify with the Clerk, but if they haven't, what does that mean?

[admin]

PA? What does this acronym mean?

Why don't file a motion to compel? It sounds like me like you requested Discovery.

[2fightback]

PA = Plaintiff's Attorney (saw it on another forum)

I'm assuming there wouldn't be enough time to file a Motion to Compel with the trial being tomorrow. They wouldn't even have time to reply, correct?

I was going through my pre-trial conference notes and the Judge had ordered all disclosures were due by 12/26/08. If they received my RFP on 11/26, I'm assuming I covered that deadline requirement. That gave them until 12/26 to file their response. That is 30 days, which I believe covers the Colorado requirement.

As an update, the PA called again and said FIA has agreed to remove the item from my CR if I settle, however, they have to check with BOA (which is who it is reported under on my CR), as they are still their own entity. They are checking whether they can include them in the stip as well. Any thoughts on that? That seems strange.....I thought FIA was f/k/a BOA?

[henry1018]

Kristy, to clarify- You file a motion for discovery then if you are not provided with what you requested (in part or in it's entirety) then you file a motion to compel discovery??

[merrybucks]

Chances are only the PA will show up. He will probably offer you a settlement prior to your case being heard. Object to any documents they try to introduce that they didn't provide to you in discovery. Object to any affadavits from anyone, other than the OCs, as heresay. Object if the PA trys to testify. Let the judge know that the PA failed to respond to your RFP ask for a continuance or make a MTD.

[Nurse2Be]

Yesterday I spoke to an attorney about my case, which is very similar to yours. He said the burden of proof is on the Plaintiff, and they are expected to provide a signed contract and receipts - otherwise, the case is likely to get dismissed.

I'd think that with your debt being transferred from bank to bank, it will be very difficult for the PA to prove you owe anything.

Oh, and the attorney I am working with said that the people they defend almost always win, because it is usually impossible for CAs to validate the debt adequately. He said every once in awhile, a CA is able to get the documents needed from the OC, but it is very rare.

Good luck to you!

[2fightback]

From what I gather, the PA will probably file for a continuance, or even a motion to vacate with a 30-day review provision since they think there's a chance for settlement. I have pretty much decided that I will NOT settle (they don't know this yet), as it seems like I'd just be throwing money out the window when it's pretty apparent that they don't have a solid case....I'm just going to take my chances and hope that the Judge rules in my favor.

So, if they try to file for a continuance of some sort, will it automatically be granted, or would I have to agree with it? Just curious how that might play out. Of course if I don't hear anything from them by tomorrow morning, I will just automatically be in court prepared for the trial just in case. If they don't show, I presume the case will be dismissed, but would that be with or without prejudice? Could they start the whole process over again?

Thanks for all the help and advice

I'll post updates as they become available.

[2fightback]

Update on case: My DH talked me into just settling the case for a pretty comfortable amount just to avoid the stress of constantly battling the attornies, preparing for the trial, etc.

I told the attorney I would settle as long as FIA and BOA removed all listings from my credit reports, etc. The attorney gave me a little bit of a run-around about how BOA was another entity and FIA couldn't agree to those conditions on their behalf, but he would check with his client. He asked if I had proof the item was being reported on my CR, so I then faxed a copy that showed the negative item being reported by BOA as a "charge off". It never has shown up being reported by FIA. The original account was through Fleet Credit Card, then supposedly they sold to BOA, who then merged everything with FIA.

The morning of the trial, the attorney filed a motion to vacate and then emailed me a settlement letter to sign (interesting that he vacated the case before he even had my signature). Of course the settlement letter said nothing about removing the credit bureau items, so I took it upon myself to draft another one up (with lots of help from the forum of course) and sent it back to him. The attorney said it looked fine and that he would get it approved by his client the following week. The funny thing is, I never heard another word from them. It has been like six weeks now. Not sure what gives Did they forget about my little lowly case? Hmmmm......only time will tell.

Any thoughts from anyone? I almost think it had something to do with their admission that BOA was its own separate entity and that FIA could not remove the item from my CR on their behalf, so maybe there was no proof of chain of ownership or something along those lines. Of course my main question is can they open this whole thing up again? If so, would the Court treat it as a review of the original case, or would it have to go through the whole procedure again (service, answer, discovery, etc.)?

Thanks in advance for any insight

[astiman]

I dont understand....

he filed a motion to VACATE?

Or was it a dismissal? If so, why exactly?

Also, if he's arguing who is the separate entity and all, it sounds as if something shady is going on....I'd be VERY careful......get further legal help if necessary....

[2fightback]

I just pulled out my copy from my files. It was indeed a "Motion to Vacate Trial" and reads as follows:

COMES NOW PLAINTIFF, by and through its counsel, Mickey Mouse, LLP, and respectfully request the Court Vacate the Trial currently scheduled for xx/xx/xxxx at specified time, as grounds therefore:

1. Parties have agreed to settle this case and entered into a Stipulation for Payment and Dismissal. Upon receipt, Plaintiff will file the same with the Court. Plaintiff believes that it would be in the best interest of all parties concerned that the Trail be vacated.

The order was granted and signed five hours before the trail was set to begin.

This is a large firm in CO that handles all kinds of collection cases. In fact, I was just served about four weeks ago on another of my ex's credit card accounts that this firm is handling, but this time the Plaintiff is definitely a JDB. I never heard anything from them after I filed my answer...no notice of a pre-trial, no request for interrogatories, no anything. I do keep getting the automated phone calls despite my request for validation, in fact I received one this morning.

[legal_loansharking]

Now, how close were you to the SOL running out?

If in the amount of time it took for the court papers and them playing around with it the SOL expired, I would tell them to go fly a kite.

They would have to refile a case against you and you can use the SOL as your defense.

[2fightback]

Last known payment was 09/2003. Date case was filed was 04/2008. It seems like a slam dunk on the SOL defense, however Colorado has absolutely no case law on anyone winning based on the 3 year SOL. The Statutes are not clear and credit cards can be argued as a "contract", which falls under a 6 year SOL. If anyone ever comes across a Colorado case that shows otherwise, please, please, please post it!

[Recovering Attorney]

The lawyer is pulling your leg. FIA will not agree to remove anything. And it is likely they can/will do nothing vis a vis the BoA entry. I'd simply dipsute that one til the cows come home.

[2fightback]

Ok, so basically the attorney was not able to add the CR removal provision in the stip for payment, so that's probably why I never heard back from him. He knows that was the only way to resolve the matter, short of going all the way through trial with it, which he certainly wasn't guaranteed to win anyway.

I'm hoping that they will simply disappear into the night and I'll be done with this one for good. But something tells me they could do something sneaky, like maybe file for a default judgment with the Court on the basis that I defaulted on the stip for payment, although I never signed one. I'll keep updating as things change, if ever.

As always, any further thoughts as to what they may try next would be welcomed.

Thanks again for the responses.

[2fightback]

Hi everyone:

This case has popped up again. The attorney for the Plaintiff, whom I thought had simply vanished forever, suddenly sent me an email today with a revised settlement Stip that shows FIA will remove all taglines, blah, blah. However, since the tagline on my credit report shows Bank of America, their settlement offer means nothing in my eyes. History is FIA CARD SERVICES, N.A., was formerly BANK OF AMERICA, who bought up MBNA,, who had merged with OC, FLEET CARD SERVICES. The chain of title should be a nightmare.

I am obviously going to just ignore his email. He did say that the firm went through a name change (looks like one of the partners is now gone), so I don't know how the affects things either.

Since he filed the motion months ago to the vacate the trial, what will happen from here? Will he/they need to re-serve me and go through the whole process again? Or can he just re-activate the case? After helping my spouse with his current two lawsuits, I now am confidant that I can easily beat this one. I just need to know what happens once a motion to vacate is filed.

Thanks!

[ballparks]

One thought is to challenge that they have legal jurisdiction to collect and hit them with a ton of discovery items and interogatories. Make the judge doubt they have legal jurisdiction and you need answers to your questions.

Tell the judge " I am not sure they are who they claim to be, there is a lot of fraud with collection companies" "There are many cases where different collectors are trying to collect on the same debt".

Also, subpoena for a copy of the default insurance policy on the credit account from the original creditor and what the proceeds were when it was paid in full.

[admin]

Did you pay the settlement?

[2fightback]

Did you pay the settlement?

No, I did not. I was going to settle back in January because I just didn't have the time to deal with the case. The Plaintiff's attorney filed the motion to vacate trial before we even went into the details of the proposed settlement (he messed that one up big time IMHO).

I hadn't heard anything else about the case until today. Now just wondering what might happen next. Will we have to start all over? We had already gone through the whole Interrogatories and Admissions, disclosure, etc.

[astiman]

Depends on what you are trying to achieve.

After re-reading this entire thread, IMHO you were on the verge of possibly prevailing in court,and then suddenly you seem to have acknowledged the debt (perhaps in its entirety) by proposing a 'settlement.'

You may have lost any sort of real leverage you had when you did that. If it were ME, I'd consult an attorney (NACA) before taking any further steps.

But that's just me.

[admin]

I'm with astiman.

[sfo75004]

They also attached a Cardholder Agreement, which I understand means nothing. I had previously disputed this debt with three other CA's (NCO, and a couple of collection attorneys). It appears FIA has no signed agreements, receipts, etc., but PA says they don't need those to win (of course he's going to say that).

Hello, I'm being sued by FIA for a Bank of America CC debt. Can you provide me a copy of the cardholder agreement you received? Is arbitration an option?

[jkg3]

Depends on what you are trying to achieve.

After re-reading this entire thread, IMHO you were on the verge of possibly prevailing in court,and then suddenly you seem to have acknowledged the debt (perhaps in its entirety) by proposing a 'settlement.'

You may have lost any sort of real leverage you had when you did that. If it were ME, I'd consult an attorney (NACA) before taking any further steps.

But that's just me.

Offering a settlement is not acknowledging a debt.

Opposing parties often offer settlements, without admitting fault, to avoid litigation.

It would be helpful if you write FOR SETTLEMENT PURPOSES ONLY at the top of your letter. Should a judge be shown that letter later, it is as good as a blank piece of paper.

[2fightback]

Would love to, but I handed everything over to my attorney and no longer have access to it. I have seen where others were able to download them off of the internet. Just keep in mind that they constantly send out addemdums, etc.

Hello, I'm being sued by FIA for a Bank of America CC debt. Can you provide me a copy of the cardholder agreement you received? Is arbitration an option?