marl4

Got STATEMENTS!

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Copy of statements came from the attorney for DC, I called them asking about a settlement, they only cut about $1000.00 off the balance. I do not have a garnishable income since I am self employed. Court is still pending! I still have to give my answers and stuff to the court by the end of the month. The attorneys office letter say they are debt collectors. I still have not got a letter saying that the debt was assigned to them for collection. The person I spoke to said they would get me a letter saying that they were able to collect for DC.

What should I do now while I am waiting to get the letter. I will still be filing those "answers" papers at the court house.

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Clearly cases vary, but in a general sense what angle should you take to "keep fighting" if you are you are presented with statements by a JDC.

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Is it usually time to admit defeat when the JDB produces past statements on you?

NO! First they must prove to me that the are able to collect for DC, I'm not just going to hand out money to anyone and then it come back to haunt me years down the road. I have little money if any at all, so I need a settlement for the lowest amount possible, and payments are not an option. Like I said before, I have no to little income, no bank accout, no car in my name etc.

What else can they do?

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What else can they do?

Judgments are good for a long time, and can often be renewed. Just because you have don't have money now does not mean you will not have money 10 years from now. At the very least it's another major ding on a credit report for 7 years.

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Judgments are good for a long time, and can often be renewed. Just because you have don't have money now does not mean you will not have money 10 years from now. At the very least it's another major ding on a credit report for 7 years.

If I get any income it will be SSI, I have be self employed/unemployed do to restrictions do to scolisosis, can't sit, stand, lift, twist or anything without constant pain that puts me down. I just need to get an attorney to get the SSI for me, I have filed and they say since I work for my husband, he would have to hire someone to do what I do in the office, so I basicly make minum. wage if I have any customers. I say, If I worked any where else they would not allow me to lay around with a heating pad on my back, do stretching exercises or let me be wired to a muscle stimulator while I worked just to temporarily numb the pain.

At least I'm trying to make an income. It's just the Dam* economy that is jacked up. I had perfect credit before the economy went bad.

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A statement is not proof that you agreed to pay what they say you owe. Nor is it proof that you ever received any of those statements that they produce. They must prove the obligation first based on a writing, not a writing as a basis for proving a contract that the terms of which the court is left to guess.

The law is clear that a cause of action based on an “account stated” is not proper when used to support a claim for a credit card debt. This theory of recovery of a credit card debt was roundly discredited and denied by Judge Wettick, Administrative Judge of the Allegheny County Court of Common Pleas in Target National Bank v. Samanez, et al., Case Nos. AR07-009777 and AR06-009418, 156 P.L.J. 76 (Allegheny Cty. C.P. December 26, 2007).

Judge Wettick’s well-reasoned opinion meticulously and thoroughly analyzed the case law discussing the “account stated” action and ultimately found it to be inapplicable to the types of consumer credit accounts at issue in this current case.

At its basics, “the law recognizes a lawsuit based on an account stated where the complaint describes discussions between the parties or other back and forth communications as to the amount that is due.” Target, 156 P.L.J. at 77.

However, it is only once the parties have reached a “meeting of the minds” and agreement as to the amount that will satisfy a debt that the account stated “constitutes a new and independent cause of action superseding any antecedent cause of action.” Id. Silence can be a tacit agreement to pay an amount, but “failure to object cannot be construed as assent to pay the amount set forth in the statement unless the creditor can plead facts in addition to the failure to object . . . which show an express or implied agreement to pay the amount set forth in the invoice.” Id. In such a case, the silent acceptance must be implied from the circumstances surrounding the account and the invoice. Silence can be acceptance where the debtor had a chance to meaningfully and reasonably review the account, but “something more than mere acquiescence by failing to take exception to a series of statements of account received in the mail is required to create an account stated.” Id., at 78, citing Pennsylvania Law Encyclopedia (2d), Contracts, §§ 512 and 513.

Judge Wettick summed up the case law and treatises by finding that “there cannot be an account stated without evidence showing an agreement (express or implied) that the defendant owes the amount set forth in the account.” Id.

However, Judge Wettick was also compelled to investigate the particularities of consumer credit transactions and statements sent by card issuers to cardholders. Judge Wettick refused to acknowledge the theory that a cardholder is legally estopped or prevented from requiring proof of the amounts claimed by a creditor if the cardholder did not object to or question the monthly statements. Id., at 78.

Relying on the United States Government Accountability Office’s September 2006 report on the credit card industry and his own experience, Judge Wettick found that as a general, practical matter, most cardholders have not read the whole cardholder agreement, let alone any amendments, and would be unable to understand them if they did in fact read them, as many of these agreements are written at a 13th- to 15th-grade reading comprehension level. Id., at 79.

As a result, a cardholder does not know the intricacies of the writings governing the accounts, the calculations upon which the interest rate or fee schedule is based, and therefore, is not in a position to meaningfully or reasonably challenge the amounts claimed to be due in the monthly statements.

In his conclusion, Judge Wettick held that, “f cardholders cannot be expected to know whether the information in the monthly statement accurately states what they owe, there cannot be an express or implied agreement that their silence means that they have agreed to the amount claimed is correct.” Id., at 80.

In such a consumer credit case, there must be factual allegations that the cardholder agreed to pay the amount alleged to be due, and these factual allegations must be more than mere silence or the cardholder’s failure to object.

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If I get any income it will be SSI, I have be self employed/unemployed do to restrictions do to scolisosis, can't sit, stand, lift, twist or anything without constant pain that puts me down. I just need to get an attorney to get the SSI for me, I have filed and they say since I work for my husband, he would have to hire someone to do what I do in the office, so I basicly make minum. wage if I have any customers. I say, If I worked any where else they would not allow me to lay around with a heating pad on my back, do stretching exercises or let me be wired to a muscle stimulator while I worked just to temporarily numb the pain.

At least I'm trying to make an income. It's just the Dam* economy that is jacked up. I had perfect credit before the economy went bad.

The alleged Plaintiff needs to prove they own the alleged debt. Just some law firm saying they represent so and so doesn't cut it if you challenge it in your answer and affirmative defenses. The alleged debt needs to be authenticated from the accounts inception with a zero balance until the amount sued upon with evidence of all purchase slips, all authenticated payments and all accounting of interest authenticated. Sorry to hear of your health situation but stand tall and make them PROVE everything.

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The alleged Plaintiff needs to prove they own the alleged debt. Just some law firm saying they represent so and so doesn't cut it if you challenge it in your answer and affirmative defenses. The alleged debt needs to be authenticated from the accounts inception with a zero balance until the amount sued upon with evidence of all purchase slips, all authenticated payments and all accounting of interest authenticated. Sorry to hear of your health situation but stand tall and make them PROVE everything.

Funny thing is I think the whole suit thing is just them trying to scare me. I look on the website daily and they still have not notifed the court the day I was served, which was on April 7th,. Is that normal? I have check out other cases and they serve and post within days. And in the VD letter he says If I do not hear from you within ten (10) days or I may be forced to proceed with further legal action. Isin't that what he did in the first place, by not notifing me of the debt in writing in the first place! He sued me without notifing me of the debt & did not even attached a contract to the petion, I have contaced the Attorney General & the FTC and placed a complaint against the Attorney a few days ago.

P.S. Also when the attorney sent me VD letter it had an amount about $1.380.00 more than the suit is for. Has anyone had this happen before and is that a violation of FDCPA, maybe called overshadowing?

Edited by marl4

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P.S. Also when the attorney sent me VD letter it had an amount about $1.380.00 more than the suit is for. and is that a violation of FDCPA, maybe called overshadowing?

Nope.

I have seen it before done to stay in a certain courts jurisdiction. Example: District Courts here have a subject matter jurisdiction of $15,000.00 and it only costs $45.00 to file a summons.

For amounts <15k one must file suit in the Supreme Court and that can costs upwards of $400.

So say there is a debt that is $16,500.00, plaintiff may elect to sue for 15k to avoid the higher court costs.

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Nope.

I have seen it before done to stay in a certain courts jurisdiction. Example: District Courts here have a subject matter jurisdiction of $15,000.00 and it only costs $45.00 to file a summons.

For amounts <15k one must file suit in the Supreme Court and that can costs upwards of $400.

So say there is a debt that is $16,500.00, plaintiff may elect to sue for 15k to avoid the higher court costs.

He paid $216.00 I think. Maybe If he thinks I will settle before the court makes a date, and if he does not file the returned summon info he get's a refund or something for court cost?

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Is this a JDB???

He claims he's an attorney! But I looked him up on the internet and It say's his practice is like 60% - 80% debt collections. So I think that makes him a JDB! What I trying to see if it is an assigned debt or if it was bought.

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He claims he's an attorney! But I looked him up on the internet and It say's his practice is like 60% - 80% debt collections. So I think that makes him a JDB! What I trying to see if it is an assigned debt or if it was bought.

If the plantiff is not the OC then it's a jdb, which is good news for you becuase its going to be hard for them to prove it.

btw, when did you last start paying. Technically, you should only owe the balance when you stopped paying plus 10% interest for every year since and resonable attorney fees: TO THE OC.

I heard from senior members that a JDB can only get what they paid for the debt, wish is nowhere close to what I just mentioned (but I could be wrong, ask the senior members, or I'm sure they will chime in).

As to what to do from here, deny everything, remember they still have to provide an agreement, with a an assignment clause and the testimony of the "custodian of records', so deny everything in the summons, even that you owe them $$. You don't owe them a penny till they prove they bought the debt and they provide a contract with an assigment clause, and prove that the OC never breached.

This might be a long shot, but as a self-employed person you know that you can't misrepresent a debt. Make them prove every penny which they probobly won't be able to, so you can get them on FDCPA violations for misrepresenting the debt. You might threaten to report them to Fedral Trade Commission or Counter sue for FDCPA violations. Read around on those who sued JDBS and OC for for FDCPA violations.

Good luck and ask alot of questions, don't let the statements scare you, they have a long way to go. Worst case you can force the to come up with an agreeement and go to arbitration.

I think you will do fine, self-employeed people don't give up easy. ;)

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