Being Sued a Second time

[sskains]

I was sued by a Junk debt buyer in 2007/2008 on a debt from 2004. At the time, the statute of limitation for GA was 4 years. But the court "clarified" it in January of 2008. My last payment on the debt was Dec 04. So I am 3 months shy of it being pass the SOL.

Anyway, I was sued in 2008 for the same debt. I fought it and was awarded a dismissal as the plaintiff had no evidence and didn't even show up to court. When I motioned to have it dismissed with prejudice, the judge denied it as "Moot". Well, it has now been sold to another JDB now. They sent me a letter about a month and half ago telling me it was for 17k, I was originally sued for 15k. I sent a debt validation letter and recieved a basic response that didn't answer any of my questions. They only said the original credit was Bank of America and gave me the address of the creditor in Charlotte, NC as well as the original account number. No other evidence was given.

In the summons/complaint I recieved, the first item just states my county and that I am a resident, the second is stating a complaint that I owe them 15k(Not the 17K they claimed in the original letter).

Here is a list of the complaints:

1. Defendant is a resident of county, subject to jurisdiction.

2. Defendant entered into a credit card agreement with Bank of America, and in the usual course of business said account was ultimately assigned to resolution financial corp. Said account is in default.

3. Defendant is indebted to plaintiff in the principal sum of 15,286.75, balance due on contract.

4. Plaintiff is entitled to interest on the aforesaid principal sum in the amount of 271.40 plus additional interest at the rate of 18% per annum.

5. Defendant is notified that the provisions contained in contract, whereby he/she agreed to pay reasonable attorney's fees will be enforeced. (In summary).

6. Defendant is notified that unless withing 30 days of this notice he/she disputs the validity of this debt or any portion hereof, the debt will be assumed to be valid by this office. If the defendant disputes this debt within 30 days, then verification of the debt will be obtained and a copy of the verification will be provided to the defendant, along with the name and address of the original creditor if different from plaintiff.

My first question is, since I have been sued once, can I use that to my benefit in any way? Also, what is the likelyhood of this creditor having any verifiable documents if the previous one didn't?

And last, I am looking for some advice on affirmitive defenses for my response. I have a few prepared but wanted to see what advice I can get.

Thanks in advance! All advice is very much appreciated!

[KentWA]

Since it has been sold at least one more time, the likelyhood of the JDB having any wisper of evidence is significantly lower. I bet when you answer and show up for the first hearing they will dismiss.

[sskains]

Another note, they also reported collections on my credit report about 4 months ago before ever making any contact with me. They reported the debt as 15,287 on my credit report, the same amount they are sueing for.

[WhoCares1000]

I would get the files you have for the first court case and review that and outside the SOL stuff, do the same thing. If you run into the same situation where the attorney does not have evidence and does not show up, move for a dismissal with prejudice on grounds of abuse of judicial process as this is the 2nd time you have been sued for the same debt and cite the first case as evidence.

[FL4answer58]

There are reported cases in which debtors have been subjected to litigation

because they settled with A, and then B claimed to own the debt. Smith v.

Mallick, 514 F.3d 48 (D.C.Cir. 2008) (commercial debt purchased and

resold by debt buyer, debt buyer (possibly fraudulently) settles debt it no

longer owns, settlement held binding because notice of assignment not

given, but obligor subjected to litigation as result). See also Miller v.

Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2008 U.S.Dist. LEXIS

12283 (N.D.Ind. Feb. 19, 2008), in which a debtor complained he had been

sued twice on the same debt; Dornhecker v. Ameritech Corp., 99 F.Supp.2d

918, 923 (N.D.Ill. 2000), in which the debtor claimed he settled with one

agency and was then dunned by a second for the same debt; and Northwest

Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 818 N.E.2d 753 (1st Dist.

2004), in which a commercial debtor paid the creditor only to be subjected

to a levy by a purported debt buyer.

In Wood v. M&J Recovery LLC, No. CV 05-5564, 2007 U.S.Dist. LEXIS

24157 (E.D.N.Y. Apr. 2, 2007), a debtor complained of multiple collection

efforts by various debt buyers and collectors on the same debt, and the

defendants asserted claims against one another disputing the ownership of

the portfolio involved. Shekinah alleged that it sold a portfolio to NLRS,

that NLRS was unable to pay, that the sale agreement was modified so that

NLRS would only obtain one fifth of the portfolio, and that the one fifth did

not include the plaintiff’s debt. Portfolio Partners claimed that it, and not

Shekinah, was the rightful owner of the portfolio..

ALSO if a debt buyer knowingly purchased a debt (previously litigated on question of assignment - controversy SJ)

then attempts to bring claim, in chain of assignment --- this may be a FDCPA violation.

Read: “Collecting Consumer Debts: The Challenges of Change: A Federal Trade

Commission Workshop Report (February 2009),” pp. iii-iv, states:

“The FTC believes that there are currently two major problems in

the flow of information in the debt collection system. The first

major problem is that debt collectors have inadequate

information when they seek to collect from consumers. This

increases the likelihood that collectors will reach the incorrect

consumer, try to collect the wrong amount, or both. . . .

A related information problem is that the limited information

debt collectors obtain in verifying debts is unlikely to dissuade

them from continuing their attempts to collect from the wrong

consumer or the wrong amount. If a consumer disputes a debt,

the collector is required to obtain verification of the debt and

provide it to the consumer before renewing its collection efforts.

Many collectors currently do little more to verify debts than

confirm that their information accurately reflects what they

received from the creditor. This is not likely to reveal whether

collectors are trying to collect from the wrong consumer or

collect the wrong amount. The FTC therefore concludes that

collectors need to do more to increase the likelihood that the

information they acquire during the verification process will

correct errors. . . . .”

“Assignment” documents must show transfer of particular account

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.

Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt

buyer “assignment” that does not refer to specific accounts does not

establish ownership by the plaintiff, nor is testimony based on a computer

screen sufficient.

Rushmore Recoveries X, LLC v. Skolnick, 15 Misc. 3d 1139A; 841

N.Y.S.2d 823 (Nassau Co. Dist. Ct. 2007):

“. . . the documents upon which the Plaintiff relies do not

support the Plaintiff's claim. While the Plaintiff alleges that it is

the assignee of this account, the Plaintiff fails to provide proper

proof of the alleged assignment sufficient to establish its

standing herein. The Plaintiff has made no effort to authenticate

the alleged assignments, NYCTL 1998-2 Trust v. Santiago, 30

AD3d 572, 817 N.Y.S.2d 368 (2nd Dept. 2006); [**9] and, there is

a break in the chain of the assignments from Citibank down to

the Plaintiff. The purported assignment from NCOP Capital,

Inc. to New Century Financial Services, Inc., Plaintiff's alleged

assignor, is not signed at all on behalf of NCOP Capital, Inc.

There being no competent proof that the assignment to New

Century Financial Services, Inc. was valid, the Plaintiff cannot

establish the validity of the assignment from New Century

Financial Services, Inc. to the Plaintiff, preventing [*4] the

granting of summary judgment for this reason as well. . .”

Citibank (South Dakota), N.A. v. Martin , 11 Misc 3d 219,

226, 807 N.Y.S.2d 284 [Civ. Ct. New York County 2005].

Id at 227 (collecting cases) (internal citations omitted)

(emphasis added).

“Because multiple creditors may make collection efforts for the

same underlying debt even after [*6] assignment, for any

variety of reasons (i.e. mis-communication or clerical error)

failure to give notice of an assignment may result in the debtor

having to pay the same debt more than once or ignoring a notice

because the debtor believes he or she has previously settled the

claim. Further, debtors are often left befuddled as they get the

run-around from a panoply of potential creditors when

inquiring about their defaulted accounts, [**16] during which

time they lose the ability to negotiate payments with the current

debt owner (whoever that may be at the time) and therefore

incur additional fees and penalties. Courts in other states,

reviewing general principles of assignment, have noted that

notice to the debtor is an explicit requirement to a valid

assignment. 22. .”

Edited October 2, 2010 by FL4answer58

[ADSOFT]

There are reported cases in which debtors have been subjected to litigation

because they settled with A, and then B claimed to own the debt. Smith v.

Mallick, 514 F.3d 48 (D.C.Cir. 2008) (commercial debt purchased and

resold by debt buyer, debt buyer (possibly fraudulently) settles debt it no

longer owns, settlement held binding because notice of assignment not

given, but obligor subjected to litigation as result). See also Miller v.

Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2008 U.S.Dist. LEXIS

12283 (N.D.Ind. Feb. 19, 2008), in which a debtor complained he had been

sued twice on the same debt; Dornhecker v. Ameritech Corp., 99 F.Supp.2d

918, 923 (N.D.Ill. 2000), in which the debtor claimed he settled with one

agency and was then dunned by a second for the same debt; and Northwest

Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 818 N.E.2d 753 (1st Dist.

2004), in which a commercial debtor paid the creditor only to be subjected

to a levy by a purported debt buyer.

In Wood v. M&J Recovery LLC, No. CV 05-5564, 2007 U.S.Dist. LEXIS

24157 (E.D.N.Y. Apr. 2, 2007), a debtor complained of multiple collection

efforts by various debt buyers and collectors on the same debt, and the

defendants asserted claims against one another disputing the ownership of

the portfolio involved. Shekinah alleged that it sold a portfolio to NLRS,

that NLRS was unable to pay, that the sale agreement was modified so that

NLRS would only obtain one fifth of the portfolio, and that the one fifth did

not include the plaintiff’s debt. Portfolio Partners claimed that it, and not

Shekinah, was the rightful owner of the portfolio..

ALSO if a debt buyer knowingly purchased a debt (previously litigated on question of assignment - controversy SJ)

then attempts to bring claim, in chain of assignment --- this may be a FDCPA violation.

Read: “Collecting Consumer Debts: The Challenges of Change: A Federal Trade

Commission Workshop Report (February 2009),” pp. iii-iv, states:

“The FTC believes that there are currently two major problems in

the flow of information in the debt collection system. The first

major problem is that debt collectors have inadequate

information when they seek to collect from consumers. This

increases the likelihood that collectors will reach the incorrect

consumer, try to collect the wrong amount, or both. . . .

A related information problem is that the limited information

debt collectors obtain in verifying debts is unlikely to dissuade

them from continuing their attempts to collect from the wrong

consumer or the wrong amount. If a consumer disputes a debt,

the collector is required to obtain verification of the debt and

provide it to the consumer before renewing its collection efforts.

Many collectors currently do little more to verify debts than

confirm that their information accurately reflects what they

received from the creditor. This is not likely to reveal whether

collectors are trying to collect from the wrong consumer or

collect the wrong amount. The FTC therefore concludes that

collectors need to do more to increase the likelihood that the

information they acquire during the verification process will

correct errors. . . . .”

“Assignment” documents must show transfer of particular account

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.

Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt

buyer “assignment” that does not refer to specific accounts does not

establish ownership by the plaintiff, nor is testimony based on a computer

screen sufficient.

Rushmore Recoveries X, LLC v. Skolnick, 15 Misc. 3d 1139A; 841

N.Y.S.2d 823 (Nassau Co. Dist. Ct. 2007):

“. . . the documents upon which the Plaintiff relies do not

support the Plaintiff's claim. While the Plaintiff alleges that it is

the assignee of this account, the Plaintiff fails to provide proper

proof of the alleged assignment sufficient to establish its

standing herein. The Plaintiff has made no effort to authenticate

the alleged assignments, NYCTL 1998-2 Trust v. Santiago, 30

AD3d 572, 817 N.Y.S.2d 368 (2nd Dept. 2006); [**9] and, there is

a break in the chain of the assignments from Citibank down to

the Plaintiff. The purported assignment from NCOP Capital,

Inc. to New Century Financial Services, Inc., Plaintiff's alleged

assignor, is not signed at all on behalf of NCOP Capital, Inc.

There being no competent proof that the assignment to New

Century Financial Services, Inc. was valid, the Plaintiff cannot

establish the validity of the assignment from New Century

Financial Services, Inc. to the Plaintiff, preventing [*4] the

granting of summary judgment for this reason as well. . .”

Citibank (South Dakota), N.A. v. Martin , 11 Misc 3d 219,

226, 807 N.Y.S.2d 284 [Civ. Ct. New York County 2005].

Id at 227 (collecting cases) (internal citations omitted)

(emphasis added).

“Because multiple creditors may make collection efforts for the

same underlying debt even after [*6] assignment, for any

variety of reasons (i.e. mis-communication or clerical error)

failure to give notice of an assignment may result in the debtor

having to pay the same debt more than once or ignoring a notice

because the debtor believes he or she has previously settled the

claim. Further, debtors are often left befuddled as they get the

run-around from a panoply of potential creditors when

inquiring about their defaulted accounts, [**16] during which

time they lose the ability to negotiate payments with the current

debt owner (whoever that may be at the time) and therefore

incur additional fees and penalties. Courts in other states,

reviewing general principles of assignment, have noted that

notice to the debtor is an explicit requirement to a valid

assignment. 22. .”

Great post.

That is why I started the thread on CONSIDERATION (AKA, the plaintiff has to prove that they gave up something to involved in the contract: i.e, own the debt).

This is why it's important to ask that they own the debt. .... I will probobly use this in my trail if it comes to that.

I have to go through this post with a fine tooth comb, but I hope you don't mind if I copy your post to the thread I started on CONSIDERATION.

thanks, great post.

[ADSOFT]

FL4answer58

What would be considered proper documentation that they own the debt?

[sskains]

These are what I am planning to use as Affirmitive Defenses in my response. Please give me an feedback if I should add or remove any. I really appreciate the help!

As and for a First Defense,

Plaintiff’s complaint 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.

As and for a Second Defense,

Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Third Defense,

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendant.

As for a Fourth Defense,

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

As a Fifth Defense,

Plaintiff’s complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

[FL4answer58]

FL4answer58

What would be considered proper documentation that they own the debt?

A proper 'chain of assignment' to include everyone that had hands on the debt. Highly unlikely. Even less likely to produce a bill of sale from each assignment to include the particular account number.

[sskains]

I am being sued by Resolution Financial corp AAO.. NA Bank of America.

Another company named Associated Receivables has been posting serious delinquincies on my Credit Report for a couple months now. I can't find anything that says these companies are related in any way. I am wondering if two companies are trying to collect on the same debt. I plan to call the one on my CR tomorrow to find out if they are the same company or not. They filed an update today with Experian.

How should I approach this? I am still waiting to submit my summons response.

Also, what does AAO stand for?

Edited October 6, 2010 by sskains

[KentWA]

An affirmative defense:

On information and belief, Plaintiff is not the proper party of interest. Other parties have and are asserting claim of ownership in aleged debt.

You do not have to figure out who all these compaines are, make them prove who they are and that they have the right to sue.

[kingair41]

A proper 'chain of assignment' to include everyone that had hands on the debt. Highly unlikely. Even less likely to produce a bill of sale from each assignment to include the particular account number.

And what the JDB paid for the assignment...

[sskains]

After looking further into the credit report/plaintiff, I found that Resolution Financial corp and Associated receivables are the same company. However, should I still include this affirmitive defense:

On information and belief, Plaintiff is not the proper party of interest. Other parties have and are asserting claim of ownership of alleged debt.

My reason would be because I was previously sued for the same debt about 2 years ago. If I do include it, should I cite the previous case as well?

Thanks in advance!

[admin]

I would still claim time-barred debt - have they proven it's within the statute of limitations? I would guess not

[sskains]

They didn't provide anything regarding it in the complaint. I have called and asked if it was pass the SOL, and they said no, it is 6 years in GA, and they had the correct last date of activity, Dec 4th, 2004.

My only concern in using the SOL defense is I that I may show more knowledge of the debt than I wanted to lead on.

If I state that it is past the SOL, and they ask me to prove it, what would my response be? That the burden of proof is on the plaintiff?

[BV80]

A proper 'chain of assignment' to include everyone that had hands on the debt. Highly unlikely.

I used to think that was a "proper" chain of assignment, as well, but I don't anymore. The only thing Bills of Sale or Assignments prove is that portfolios were sold and purchased. They show nothing in relation to your alleged debt. Many of the Bills of Sales these guys produce could be easily typed up by anyone. Some aren't even signed.

Even less likely to produce a bill of sale from each assignment to include the particular account number.

You're so right. I saw one JDB include an account number on a separate page to try to prove the account was part of the sale. Again, it was something that anyone with a computer (or even an old-fashioned typewriter) and blank piece of paper could create.

Even if they could prove they own the debt, in my opinion, you don't OWE the debt. Your agreement was with the OC. You owe the JDB nothing. You never had an agreement with the JDB, and they never provided a service to you for which they should be paid.

Edited October 18, 2010 by BV80

[BV80]

If I state that it is past the SOL, and they ask me to prove it, what would my response be? That the burden of proof is on the plaintiff?

That might depend on whether or not you are denying any knowledge of the debt. If you deny knowledge of the debt, it's difficult to claim knowledge of the SOL.

If you haven't denied knowledge, then claiming the debt is outside the SOL wouldn't be a problem. If you know for a fact that the debt is not past the SOL, you would have to take the chance that they can't prove it...that they have no statements showing the last payment. If they can't prove it, well...neither can you.

I would also use Lack of Standing as a defense. If they can't prove they own the debt, then they are not the real party in interest. Therefore, they have no standing upon which to make a claim.

[Prosay]

There are reported cases in which debtors have been subjected to litigation

because they settled with A, and then B claimed to own the debt. Smith v.

Mallick, 514 F.3d 48 (D.C.Cir. 2008) (commercial debt purchased and

resold by debt buyer, debt buyer (possibly fraudulently) settles debt it no

longer owns, settlement held binding because notice of assignment not

given, but obligor subjected to litigation as result). See also Miller v.

Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2008 U.S.Dist. LEXIS

12283 (N.D.Ind. Feb. 19, 2008), in which a debtor complained he had been

sued twice on the same debt; Dornhecker v. Ameritech Corp., 99 F.Supp.2d

918, 923 (N.D.Ill. 2000), in which the debtor claimed he settled with one

agency and was then dunned by a second for the same debt; and Northwest

Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 818 N.E.2d 753 (1st Dist.

2004), in which a commercial debtor paid the creditor only to be subjected

to a levy by a purported debt buyer.

In Wood v. M&J Recovery LLC, No. CV 05-5564, 2007 U.S.Dist. LEXIS

24157 (E.D.N.Y. Apr. 2, 2007), a debtor complained of multiple collection

efforts by various debt buyers and collectors on the same debt, and the

defendants asserted claims against one another disputing the ownership of

the portfolio involved. Shekinah alleged that it sold a portfolio to NLRS,

that NLRS was unable to pay, that the sale agreement was modified so that

NLRS would only obtain one fifth of the portfolio, and that the one fifth did

not include the plaintiff’s debt. Portfolio Partners claimed that it, and not

Shekinah, was the rightful owner of the portfolio..

ALSO if a debt buyer knowingly purchased a debt (previously litigated on question of assignment - controversy SJ)

then attempts to bring claim, in chain of assignment --- this may be a FDCPA violation.

Read: “Collecting Consumer Debts: The Challenges of Change: A Federal Trade

Commission Workshop Report (February 2009),” pp. iii-iv, states:

“The FTC believes that there are currently two major problems in

the flow of information in the debt collection system. The first

major problem is that debt collectors have inadequate

information when they seek to collect from consumers. This

increases the likelihood that collectors will reach the incorrect

consumer, try to collect the wrong amount, or both. . . .

A related information problem is that the limited information

debt collectors obtain in verifying debts is unlikely to dissuade

them from continuing their attempts to collect from the wrong

consumer or the wrong amount. If a consumer disputes a debt,

the collector is required to obtain verification of the debt and

provide it to the consumer before renewing its collection efforts.

Many collectors currently do little more to verify debts than

confirm that their information accurately reflects what they

received from the creditor. This is not likely to reveal whether

collectors are trying to collect from the wrong consumer or

collect the wrong amount. The FTC therefore concludes that

collectors need to do more to increase the likelihood that the

information they acquire during the verification process will

correct errors. . . . .”

“Assignment” documents must show transfer of particular account

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.

Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt

buyer “assignment” that does not refer to specific accounts does not

establish ownership by the plaintiff, nor is testimony based on a computer

screen sufficient.

Rushmore Recoveries X, LLC v. Skolnick, 15 Misc. 3d 1139A; 841

N.Y.S.2d 823 (Nassau Co. Dist. Ct. 2007):

“. . . the documents upon which the Plaintiff relies do not

support the Plaintiff's claim. While the Plaintiff alleges that it is

the assignee of this account, the Plaintiff fails to provide proper

proof of the alleged assignment sufficient to establish its

standing herein. The Plaintiff has made no effort to authenticate

the alleged assignments, NYCTL 1998-2 Trust v. Santiago, 30

AD3d 572, 817 N.Y.S.2d 368 (2nd Dept. 2006); [**9] and, there is

a break in the chain of the assignments from Citibank down to

the Plaintiff. The purported assignment from NCOP Capital,

Inc. to New Century Financial Services, Inc., Plaintiff's alleged

assignor, is not signed at all on behalf of NCOP Capital, Inc.

There being no competent proof that the assignment to New

Century Financial Services, Inc. was valid, the Plaintiff cannot

establish the validity of the assignment from New Century

Financial Services, Inc. to the Plaintiff, preventing [*4] the

granting of summary judgment for this reason as well. . .”

Citibank (South Dakota), N.A. v. Martin , 11 Misc 3d 219,

226, 807 N.Y.S.2d 284 [Civ. Ct. New York County 2005].

Id at 227 (collecting cases) (internal citations omitted)

(emphasis added).

“Because multiple creditors may make collection efforts for the

same underlying debt even after [*6] assignment, for any

variety of reasons (i.e. mis-communication or clerical error)

failure to give notice of an assignment may result in the debtor

having to pay the same debt more than once or ignoring a notice

because the debtor believes he or she has previously settled the

claim. Further, debtors are often left befuddled as they get the

run-around from a panoply of potential creditors when

inquiring about their defaulted accounts, [**16] during which

time they lose the ability to negotiate payments with the current

debt owner (whoever that may be at the time) and therefore

incur additional fees and penalties. Courts in other states,

reviewing general principles of assignment, have noted that

notice to the debtor is an explicit requirement to a valid

assignment. 22. .”

THANKS ! GOOD INFO !

[Chapel Hill]

Do you think they will sue you a third time?