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Sued by Unifund, appearance date Friday


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**************EDIT: UPDATE ON CASE ON PAGE 4*****************

I received a summons for an old BoA credit card in Dupage County, IL for $6000 - summons date is Friday. http://www.dupageco.org/emplibrary/Small_C...nstructions.pdf says that no written answer is required for my defense, but I've written one anyway. Also, the only paperwork they sent along with the summons was an affidavit from an employee, no statements or contracts. I'm assuming this is a good thing, because from what I've read those affidavits are generally regarded as hearsay in court and can be dealt with via a motion to strike - correct? Is there anything else I should do regarding Unifund (send them letters/paperwork, etc) or their lawyer (Adler & Associates) prior to the appearance date? Unifund, to the best of my knowledge, has not tried to contact me prior to this summons, and since IL Small Claims doesn't allow for discovery, I don't want to get surprised/gotchad by anything in court if this ends up going through to trial. Note: The debt IS within SOL.

Copies of their Complaint and Affidavit are below, as well as my Answer. I also have a Motion to Strike for the affidavit and a Motion to Dismiss ready to file - should I also make a Motion for Summary Judgment? Also, any revisions or tips on my Answer would be greatly appreciated, because I'm thinking all they're trying for is a default judgment and will fold to any pushback on my part.

Now comes the Plaintiff, Unifund CCR Partners, by and through its attorneys, ADLER & ASSOCIATES, LTD., and for its complaint against the Defandant, XXXXX XXXXXX, (hereinafter referred to as "Defendant") alleges and states as follows:

1. Plaintiff acquired by purchase on April 10, 2009 for good and valuable consideration, the account of Defendant, and is now the bona fide holder of this claim, as set forth in the attached affidavit.

2. On information and belief, the Defendant utilized a certain credit card/revolving charge (open end consumer credit) account and/or line of credit issued directly or through a retail merchant BANK OF AMERICA NA, bearing account number XXXXXXXXXXXXXXXX, as set forth in the attached affidavit.

3. On information and behalf, Defendant subsequently defaulted by failing to pay for the indebtedness incurred on said account since the date of issuance and, after accounting for payments made, there remains and unpaid and past due balance in the sum of $6,305.72, as set forth in the attached affadavit.

4. Demand for payment has been made upon the Defandant but Defendant has failed or refused to pay said remaining balance.

WHEREFORE, Plantiff, Unifund CCR Partners, prays judgment be entered in its favor and against the Defendant in the amount of $6,XXX.XX, plus costs.

ADLER AND ASSOCIATES, LTD.

AFFIDAVIT OF SALE/ASSIGNMENT AND OF ACCOUNT BALANCE DUE

I, Bobby Carnes, an employee of UNIFUND CCR PARTNERS, being duly sworn on oath say:

I am acting in the capacity of legal liason of my employer UNIFUND CCR PARTNERS, a partnership organized under the laws of the state of New York, and doing business under the laws of the state of Illinois. I am familiar with the manner and method of which UNIFUND CCR PARTNERS maintains the books and records of its accounts and its affiliates' accounts.

In the normal course of business, UNIFUND CCR PARTNERS maintains computerized account records for accountholders who have delinquent credit accounts purchased by or assigned to UNIFUND CCR PARTNERS. UNIFUND CCR PARTNERS maintains such records in the ordinary and routine course of business and is charged with the duty to accurately record any business act, condition or event into the computer record maintained for the accounts, with the entries made at or near the time of any such occurrence. I have reviewed the relevant computer record as it relates to the above accountholder's credit account, and I make this declaration based upon information from that revew, together with a review of any and all records provided by the assignor or prior holder of the account, if any, and if called as a witness, I could testify to the following based on that review.

1) That the claim and cause of action against Defendant, bearing account number XXXXXXXXXXXXXXXX, is due and owing the total balance of $6,305.72, as more fully stated in the Complaint (and attached exhibits [ed. note: what attached exhibits?]) filed against Defendant. The debt continues to accrue interest at the legally permitted rate of 0%, from June 10, 2009 to the date of judgment; after which interest shall accrue at 9% per annum together with attorney fees where applicable and provided in the contractual agreement, if attached. [ed. note: not attached.]

2) Said agreement and said account was sold or transferred or assigned and set unto, UNIFUND CCR PARTNERS, with full power and authority to do and perform all acts necessary for the collection, settlement, adjustment, compromise and satisfaction of the said claim. Further, Affiant states to the best of Affiant's knowledge, information and belief, there were no uncredited payments, just counterclaims, or offsets against the said debt when sold. Further, the Affiant acknowledges that in making this Affidavit UNIFUND CCR PARTNERS (current holder or assignee) has complete authority to settle, adjust, compromise and satisfy the same.

3) That the Defendant, if an individual, is not believed to be an active member of any branch of the armed forces of the United States of America, which belief is based upon Plaintiff's personal knowledge, communication to or from the Defendant and review of credit application and/or credit reports and documents.

Under oath, I am authorized to make this affidavit for UNIFUND CCR PARTNERS, and am informed and believe the above statements are true and correct.

This affidavit executed this 12th day of June, 2009.

Bobby Carnes (with a signature of a block MW?)

Answer is below.

NOW COMES the Defendant, XXXXX XXXXXX in answer to Plantiff Unifund CCR Partners’ complaint.

Defendant is without information or knowledge sufficient to form an opinionas to the truth or accuracy of the allegations contained in paragraphs 1-4 of the Complaint, and based on that denies generically and specifically each and every allegation contained therein.

AFFIRMATIVE DEFENSES

1. Plaintiff’s Complaint violates the Statute of Frauds as the purported contract or agreement alleged in the Complaint was not in writing or signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.

2. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

3. Plaintiff’s Complaint includes references to alleged agreements made outside the alleged written contract, violating the Parole Evidence Rule.

4. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called “FDCPA”, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by agreement.

5. Plaintiff’s complaint fails to allege a valid assignment and there are no averments as to the nature of the purported agreement or evidence of valuable consideration; Plaintiff’s complaint fails to allege whether or not the purported agreement was partial or complete and there is no evidence that the purported agreement was bona fide.

6. Plaintiff’s complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

7. Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.

8. Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties.

9. The Plaintiff is not a collection agency licensed or authorized to conduct a collection agency business in this state in accordance with 225 ILCS 425/3-4.5

10. The Plaintiff is not authorized to collect claims for others in this state, solicit the right to collect or receive payment of a claim of another.

11. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise, the right to collect or receive payment of a claim for another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.

12. The Complaint fails to allege or prove that Plaintiff is licensed and has procured a bond as required by law.

13. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

WHEREFORE, the Defendant prays that the Plaintiff’s action be dismissed in its entirety, with prejudice.

Edited by roflcopter
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Unifund, to the best of my knowledge, has not tried to contact me prior to this summons

They say they did:

4. Demand for payment has been made upon the Defandant but Defendant has failed or refused to pay said remaining balance.

It is not uncommon for the JDB to include the dunning letters with the summons. Did they? If they did not then you can argue a violation of the FDCPA for a counterclaim.

The first thing I would do is to send a request for DV. I would not go into great detail. Simply dispute the debt and ask for DV.

I don't want to get surprised/gotchad by anything in court if this ends up going through to trial

If this happens you can get a continuance to study the new material.

should I also make a Motion for Summary Judgment?

Answer first then MSJ. The affidavit is junk so the plaintiff has failed to state a claim for which there is any relief. You should include some counterclaims in your answer to add a little bite.

As far as the affirmative defenses go...

I would first put in that the plaintiff has failed to state a claim.

I would leave out #3 because this one assumes that a contract or agreement has been provided and that the plaintiff is attempting to enforce a stipulation outside of that contract or agreement.

In addition to an affirmative defense, you can use #4 for a counterclaim.

You can leave out #7 because #5 and #6 already covers this point.

#8 works when the JDB lists the OC as plaintiff which, I believe, is not true in your case. I would leave this one out.

Unless Adler & Associates is also not licensed to do business in the state then leave out #10, #11, and #12.

If you want the judge on your side, or at least not against you, get straight to the point and leave the excess baggage at home.

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Bank of America has defunct arbitration choices. NAF out of business.

Unifund would have to find alternate arbitration firm that you could agree on.

It takes me 6 months to consider their arbitration suggestions and research them before I reject them and ask for other suggestions.

BEAT THIS SUMMARY JUDGEMENT JUST TO UPSET UALBANY18! He's a trolling debt collector!

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Bank of America has defunct arbitration choices. NAF out of business.

Unifund would have to find alternate arbitration firm that you could agree on.

It takes me 6 months to consider their arbitration suggestions and research them before I reject them and ask for other suggestions.

Interesting idea. How would I go about seeking arbitration at the hearing? Is there a pleading I'd have to go through or is this something I just ask the judge for? In the end, is this basically a stall/frustrate tactic?

It is not uncommon for the JDB to include the dunning letters with the summons. Did they? If they did not then you can argue a violation of the FDCPA for a counterclaim.

The first thing I would do is to send a request for DV. I would not go into great detail. Simply dispute the debt and ask for DV.

They did not include any dunning letters - the affidavit and complaint were the only items attached to the summons. In terms of the DV letter - do I send this to the law office, Unifund, or both?

Also, do you need to pay the filing fee to include counterclaims in the answer? At this point I'm not sure I want to put down $295 to counter-sue (at least, I think I have to pay - I'll call the court clerk today and will post back with more info.)

Answer first then MSJ. The affidavit is junk so the plaintiff has failed to state a claim for which there is any relief. You should include some counterclaims in your answer to add a little bite.

As far as the affirmative defenses go...

I would first put in that the plaintiff has failed to state a claim.

I would leave out #3 because this one assumes that a contract or agreement has been provided and that the plaintiff is attempting to enforce a stipulation outside of that contract or agreement.

In addition to an affirmative defense, you can use #4 for a counterclaim.

You can leave out #7 because #5 and #6 already covers this point.

#8 works when the JDB lists the OC as plaintiff which, I believe, is not true in your case. I would leave this one out.

Unless Adler & Associates is also not licensed to do business in the state then leave out #10, #11, and #12.

If you want the judge on your side, or at least not against you, get straight to the point and leave the excess baggage at home.

I've taken out the defenses you've suggested and added as the first defense the failure to state a claim. In terms of counterclaims, since this is my first dealing with Unifund, do I include them now or wait to win the case/allow further violations to build up, then file suit?

I've also typed up a Motion to Strike re: the affidavit. Any advice/additions/fat trimming needed on this?

Comes now, Defendant XXXXX XXXXXX and respectfully states the following:

1. Plaintiff has submitted into evidence Exhibit “A” which consists of an “AFFIDAVIT OF SALE/ASSIGNMENT AND OF ACCOUNT BALANCE DUE”, hereinafter known as “Affidavit of Debt”.

2. Said document pertains to acts and events that allegedly occurred between Defendant and a third party, Bank of America.

3. At no time was the creator of the “Affidavit of Debt”, nor any of Plaintiff’s employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and Bank of America.

4. As such said affidavit falls under the hearsay rule and is inadmissible as evidence.

5. Defendant further states that the affidavit is not subject to the hearsay business records exemption because it was not made at or near the time of the alleged acts or events, and;

6. The information contained in the document is merely an accumulation of hearsay, and;

7. Upon information and belief, the creator of the document in Plaintiff’s Exhibit “A” is not currently and has never been employed with Bank of America and therefore cannot have personal knowledge of how Bank of America’s records were prepared and maintained, and;

8. Is unqualified to testify as to the truth of the information contained in Plaintiff’s Exhibit “A”.

WHEREFORE, the Defendant prays that Plaintiff’s Exhibit “A” be stricken from evidence in the above action.

for what it is worth, there is no way in hell you would ever win a motion for summary judgment.

Thanks for your support!

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Read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1025339#post1025339

My advice (and newryman's) will be the same.

AND BONUS!

this case was dismissed! (IL small claims too!)

Take note of the brash, stick to your guns, Defendant!!!!!

Ok, this makes sense, but I'm still a little confused. Since Unifund hasn't attached a contract. how do I go about exercising an arbitration clause? Then again, if they can't cite a contract, I'm pretty sure I'll win anyway, so do I wait for them to produce the contract THEN move to show that arbitration has to occur and they have no standing to sue?

Also, I phoned the county clerk's office today and the deputy clerk on the other end was... confusing and rude, to say the least.

"Oh, you don't have to file an answer"

"If you want to file an answer it'll cost you $200"

"If you were going to file an answer you should have done that weeks ago"

"You'll probably just settle at the courtroom, I wouldn't worry about it"

I've looked over the county website and I can't find anywhere where it says that filing motions/answers/counterclaims costs money - is this normal? Was the clerk just incorrect?

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Just file a written answer send it in and to opposing attorney.

If they send letter back demanding money, ask for an indigency waiver.

At first hearing they just want to know that you are contesting the suit.

(I'd still file a formal, written, answer)

What will happen is attorney will get in your face at small claims intake and ask how much you are willing to settle for? (I always say, 'You give me $1000, you dismiss with prejudice, and I'll agree NOT to sue you and your firm.")

But I'm confrontational.

If you do not come to agreement, the process of what happens is detailed well on other thread I linked to.

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Also, I phoned the county clerk's office today and the deputy clerk on the other end was... confusing and rude, to say the least.

"Oh, you don't have to file an answer"

"If you want to file an answer it'll cost you $200"

"If you were going to file an answer you should have done that weeks ago"

"You'll probably just settle at the courtroom, I wouldn't worry about it"

County clerk employees tend to be very agitated people. They hold off their aggression if you show up in person and ask them precisely what you need to do, over the phone they can be prety tough to deal with.

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Just file a written answer send it in and to opposing attorney.

If they send letter back demanding money, ask for an indigency waiver.

At first hearing they just want to know that you are contesting the suit.

(I'd still file a formal, written, answer)

What will happen is attorney will get in your face at small claims intake and ask how much you are willing to settle for? (I always say, 'You give me $1000, you dismiss with prejudice, and I'll agree NOT to sue you and your firm.")

But I'm confrontational.

If you do not come to agreement, the process of what happens is detailed well on other thread I linked to.

Alright, I'll do that - since the court date is Friday, would it work better just to bring about 5 copies of the answer to the courtroom and file it/give a copy to the lawyer in person? I'm assuming I could file the indigence waiver then as well, if it's necessary. Same thing with the motions - file them in person and hand off a copy to their lawyer, or file after the appearance and send a copy certified mail?

Either way, I'm 90% sure they're just looking for a default - I'm sure they would have attached a lot more if they had any real case. Most of the battle at this point is the confidence to not be steamrolled by the plaintiff's lawyer, and reading the forum has helped out a lot with that.

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Alright, I'll do that - since the court date is Friday, would it work better just to bring about 5 copies of the answer to the courtroom and file it/give a copy to the lawyer in person? I'm assuming I could file the indigence waiver then as well, if it's necessary. Same thing with the motions - file them in person and hand off a copy to their lawyer, or file after the appearance and send a copy certified mail?

Either way, I'm 90% sure they're just looking for a default - I'm sure they would have attached a lot more if they had any real case. Most of the battle at this point is the confidence to not be steamrolled by the plaintiff's lawyer, and reading the forum has helped out a lot with that.

I just went to small claims court in Illinois. Here's how it works. It's very informal. You don't need anything on Friday. Just show up, deny by saying I don't have enough information to confirm or deny your honor, so I'm denying. The judge will set a trial date, depending on how jammed the court docket is probably 2 months from now, maybe longer if you are in a larger county. He will tell you, if he's a good judge, that they have to bring their evidence against you at that time. So, don't sweat Friday, just show up and have a blast pissing off the plantiff's attorney who expects you to sign your life away before you see the judge or not show so he can get a default. After the trail date is set, the real work begins.

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Court date was this morning. Showed up well before my case was to be called (didn't really matter, since I was near the bottom of the docket anyway) and got to watch as at least 50 default judgments were entered. As for the defendants who actually showed up, only four (myself included) chose to deny. Seeing anyone walk up to the judge and admit to owing $6000-9000 then agree to pay that full amount PLUS nearly $1000 in attorney fees and court costs made me pretty sad - I wanted to pull them aside and at least have them try to go through the motions of defending themselves.

One person's denial was 'well, that's my account, but that's the wrong amount' and he seemed all but begging to be out of there with whatever settlement he could get.

The second guy asked for time to hire a lawyer, and the third lady seemed to know what she was doing and asked the judge to tell the plaintiff to mail her copies of statements/contracts, etc. We finally get to my docket.

I go up there and the judge asks if I confirm or deny the amount and I both deny and ask to have my written answer filed with the court (IL small claims doesn't require one) and hand a copy to the lawyer. The judge raised his eyebrows at it and the lawyer, well, she just stared at the answer and affirmative defenses, looked up at the judge and said she wanted time to look at the answer before proceeding. Judge agreed and set a status hearing for 30 October, and then I casually mentioned that I had both a motion to strike the affidavit and a motion to dismiss the case to file, and if he could point me in the direction of the clerk's office to take care of that. In the end, there's some paperwork I need to file with the clerk in order to file the motions (and they want something like $400 to do it, but I think I can claim indigence with their standards - not to mention that just the threat of motions made their lawyer do a double take) and they moved on to the next docket. Judge didn't even ask me, as he did all the others, if I wanted/needed help in hiring a lawyer. I'd like to think he was impressed, but I'm sure he doesn't care much one way or the other.

Overall, I feel really good. I tried to get their attorney to speak with me outside of chambers but she refused, saying she had other cases on the docket coming up - I think she knows their case is weak and we'll see if they even try to contest my motions to strike/dismiss.

I was also sent this information from a user on another credit help board. From how I understand it, they need to provide me with enough information to prove they've got full assignment of the debt within 10 days of me asking, or I can have the case dismissed for failure to comply with this Uniform Commercial Code:

State law rights are better. The sale of accounts receivable is regulated by Article 9 of the Uniform Commercial Code.

1. Send a certified or faxed letter requesting assignment or assignments

necessary to show title in plaintiff under UCC §9-406, 810 ILCS 5/9-

406. The way §9-406 is written the debt buyer is not entitled to payment

unless it provides a copy of the assignment(s). Wait about 10 days after

receipt and then move to dismiss on the ground that there is no obligation

to pay.

2. Section 9-210 of the Uniform Commercial Code gives right to accounting,

defined as breakdown of what debt consists of. Debt buyer does not have

option to cease collection. There is $500 statutory damages for

noncompliance, albeit only individually.

Thanks everyone for the help - it was a lot easier than I expected. Hopefully I'll be hearing from their firm about their loss of interest in trying to fight this with me!

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This is interesting:

A person that receives a request for an accounting or a request regarding a statement of account, claims no interest in the obligations when it receives the request, and claimed an interest in the obligations at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record:

(UCC 9-210)

Wouldn't, then, any consumer who requested validation of a debt via a DV letter also be asking for a request regarding a statement of account? Or would the consumer, in addition to asking for DV, need to cite UCC 9-210 to cover this request?

I think that if the consumer cited neither the FDCPA or the UCC and simply asked for verification of account that both would be covered. The other alternative would be to specifically cite both.

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Court date was this morning. Showed up well before my case was to be called (didn't really matter, since I was near the bottom of the docket anyway) and got to watch as at least 50 default judgments were entered. As for the defendants who actually showed up, only four (myself included) chose to deny. Seeing anyone walk up to the judge and admit to owing $6000-9000 then agree to pay that full amount PLUS nearly $1000 in attorney fees and court costs made me pretty sad - I wanted to pull them aside and at least have them try to go through the motions of defending themselves.

One person's denial was 'well, that's my account, but that's the wrong amount' and he seemed all but begging to be out of there with whatever settlement he could get.

The second guy asked for time to hire a lawyer, and the third lady seemed to know what she was doing and asked the judge to tell the plaintiff to mail her copies of statements/contracts, etc. We finally get to my docket.

I go up there and the judge asks if I confirm or deny the amount and I both deny and ask to have my written answer filed with the court (IL small claims doesn't require one) and hand a copy to the lawyer. The judge raised his eyebrows at it and the lawyer, well, she just stared at the answer and affirmative defenses, looked up at the judge and said she wanted time to look at the answer before proceeding. Judge agreed and set a status hearing for 30 October, and then I casually mentioned that I had both a motion to strike the affidavit and a motion to dismiss the case to file, and if he could point me in the direction of the clerk's office to take care of that. In the end, there's some paperwork I need to file with the clerk in order to file the motions (and they want something like $400 to do it, but I think I can claim indigence with their standards - not to mention that just the threat of motions made their lawyer do a double take) and they moved on to the next docket. Judge didn't even ask me, as he did all the others, if I wanted/needed help in hiring a lawyer. I'd like to think he was impressed, but I'm sure he doesn't care much one way or the other.

Overall, I feel really good. I tried to get their attorney to speak with me outside of chambers but she refused, saying she had other cases on the docket coming up - I think she knows their case is weak and we'll see if they even try to contest my motions to strike/dismiss.

I was also sent this information from a user on another credit help board. From how I understand it, they need to provide me with enough information to prove they've got full assignment of the debt within 10 days of me asking, or I can have the case dismissed for failure to comply with this Uniform Commercial Code:

Thanks everyone for the help - it was a lot easier than I expected. Hopefully I'll be hearing from their firm about their loss of interest in trying to fight this with me!

So far, so good. Keep up the good work.

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Do you see why debt attorneys, a good chunk of the time cannot handle an actual, articulated, defense?

They are mostly there to grind out default judgments!

46 out of 50 cases down without a fight. Only 1 of 4 had an actual answer. 1 knew what he was doing without a written answer (which I don't advise ever), and sounds like other 2 essentially admitted the claim.

Just think of how much time you waste for this "grind 'em up and spit 'em" out default judgment attorneys if you file motions, SJ's against them, or exercise arbitration!

They couldn't possibly deal with it all!

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Don't forget to file your Own affidavit:

http://attorney-in-alabama.com/not-pay-debt.html

This puts them in an untenable position.

STEP TWO

The second step is to file a SWORN DENIAL. This step is vital, especially if you don't owe all the money for which you are being sued. Don't lie to the court; if you owe the amount in question, you cannot deny the debt. However, seldom does the collection attorney sue for a correct amount. I'll explain why in another article, but for now take it on faith that seldom can the collection lawyer justify in an accounting the complete debt sued for.

The sworn denial is a simple statement filed with the court once you are sued. This needs to be a statement in WRITING that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, filed with the clerk of the court, and a copy sent to the collection lawyer. It needs to be a graduated denial. In other words, it needs to say, "I deny that this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount".

The sworn denial is a powerful tool! It eliminates the Sworn Affidavit of Account that the collection attorney has. The vast majority of collection suits proceed without a witness for the creditor. The collection attorney enters an affidavit, signed by the creditor, that the debtor owes the debt and that this is the amount. With that affidavit in hand, the court gives the creditor a judgment. When a sworn denial is filed, the debt collection attorney cannot rely upon a sworn affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again

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Don't forget to file your Own affidavit:

http://attorney-in-alabama.com/not-pay-debt.html

This puts them in an untenable position.

STEP TWO

The second step is to file a SWORN DENIAL. This step is vital, especially if you don't owe all the money for which you are being sued. Don't lie to the court; if you owe the amount in question, you cannot deny the debt. However, seldom does the collection attorney sue for a correct amount. I'll explain why in another article, but for now take it on faith that seldom can the collection lawyer justify in an accounting the complete debt sued for.

The sworn denial is a simple statement filed with the court once you are sued. This needs to be a statement in WRITING that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, filed with the clerk of the court, and a copy sent to the collection lawyer. It needs to be a graduated denial. In other words, it needs to say, "I deny that this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount".

The sworn denial is a powerful tool! It eliminates the Sworn Affidavit of Account that the collection attorney has. The vast majority of collection suits proceed without a witness for the creditor. The collection attorney enters an affidavit, signed by the creditor, that the debtor owes the debt and that this is the amount. With that affidavit in hand, the court gives the creditor a judgment. When a sworn denial is filed, the debt collection attorney cannot rely upon a sworn affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again

Is this gospel ?

btw: Our guy Andy, ..not doing so good. http://creditdebtlife.com/6095/debt-settlement-attorney-keith-nelms-with-allegro-law-gets-sued-in-alabama

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Thats from a quick google, the info is the same and applicable, if you file your own affidavit. It Always defeats the CA as they do not have personal knowledge. Period. Now, as the defendant you have the Right to cross the person who signed the affidavit. They could not have worked for the OC and have personal knowledge of the accounting processes in effect there. There is quite a list of questions to pose to them here if you do a search on this site, its a way to embarass em in court if you are so inclined and if it even gets that far after your sworn denial!

p.s., make sure you object to the affiant appearing via phone..., tell the judge a persons demeanor, attitude and reactions/emotions during cross are as important as their oral testomony and bring up the fact that you are dealing with a a junk debt buyer and don't want the JDB to have an attorney 'whispering' into the ear of them' on every answer.

Yep, you can win 8-)

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AG's are prosecuting them and consumer attorney's are filing class actions all over the place on these companies.

Andy Nelm's advice on that page of his web site is still sound.

Its unfortunate he was conducting a form of "debt settlement" operation as part of his law practice, catching the eye of AL AG.

A lot of so called consumer attorneys do this. Send letters to debtors that get sued from court records offering their services, you call them, and all they want to do is help you settle. That kind of stuff jacks me off! I can settle on my own. I called you to see if you are a fighting rabinnis pit bull!

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A lot of so called consumer attorneys do this. Send letters to debtors that get sued from court records offering their services, you call them, and all they want to do is help you settle. That kind of stuff jacks me off! I can settle on my own. I called you to see if you are a fighting rabinnis pit bull!

Yep --- we received our share of these and I am still trying to FIND an atty who'll actually defend a suit. Is all the nobility of the profession gone ? ...or do I have to be a mob boss w/ a ton of jack to get a fair shake ??

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@Credit This:

I've actually been using that page as a guideline, because it is one of the few that address defending lawsuits coming from orginal OC's based on a 'valid' (use the term loosely there) debt versus the standard JDB'er types.

If I actually had a jdb type case, ... I'd give 'em the prescribed pounding.

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I had to travel 3 hours across my state to dig out courthouse pleadings from top consumer attorney in my state. (He would not represent me because of proximity.) I did next best thing, took his ideas and used them myself!

I picked up other various ideas from other consumer attorneys around the state.

There may not be a good consumer lawyer in your area!

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