how to proceed

[ezrunner]

Im just looking for some advice/ guidance

my grounds of defense are due by friday. I recently located in a box in my attic the entire statement history for the CC in question. i know I owe this money but is Cach LLC entitled to collect said money. I am not sure. i think the Law firm has provided sufficient docs to show I owe but not sure that cach owns frankly i've become lost. I have done some research and a lot of reading and frankly I have not been able to dedicate enough time and energy to this matter due to life events.

Obviously I need to file a response to avoid a default judgement, I think I would like to avoid going to court and just take care of the debt.

I am not sure of what to say for GoD.

How should I go about making arrangements with law firm. Do I wait until court date, Do I wait until they have received GoD then contact and advise I no longer wish to dispute and would like to make payment arrangements?

I've looked into ARB but not sure that is the route to go.

This mat be beyond SOL they show a payment last may however no payment came from my bank accounts? did they re-age? how do I prove so.

I just don't know and think I am in over my head

any guidance is appreciated

I have another thread entitled "served a warrant in debt in Virginia" with most any other info

Edited December 8, 2010 by ezrunner

[ezrunner]

1. Defendent is indebted to Plaintiff by reason on nonpayment of open-ended credit card account, originally a METRIS Consumer account, account number xxxxxxxxxxxxxxxx

2. The Metris Consumer account was assigned to CACH LLC

3. The current balance due on the account is 4180.09 together with interest and costs

4. Copies of Statements for August 2009 and May 2009 collectively attached as "Exhibit A."

5. A copy of the certificate of Assignment and the Affidavit of Claim has been hereto attached as "Exhibit B."

[BV80]

Does the "assignment" say that Cach purchased a portfolio from Metris? If Cach is the Plaintiff, they own the account.

Do the copies of statements they sent you show any activity by you?

What is the SOL in your state?

[ezrunner]

Cach is listed as plaintiff

SOL is 3 years in VA

one of the statements shows a payment in may of 2009 however neither of my bank accounts reflects this payment

[BV80]

Cach owns the account.

If it were me, I'd check my credit report to see what Metris reports as the date of my last payment. If your bank accounts don't show the payment, you could have made a payment from another source, OR Cach could be trying to pull a fast one.

Also, see when Metris charged off the account. Many OCs charge off accounts 6 months after a default.

[ezrunner]

I had no other source to make payment at the time

credit report reflects may 2009 payment

[ezrunner]

Metris=HSBC now

HSBC purchased Metris in 2005

[BV80]

I read your other thread. You don't know who Metris is??? Is Metris reporting on your CR or is it Cach?

At the very least you have Lack of Standing:

Lack of Standing...Cach must prove they own the account in order to be the "real party in interest".

If they submitted an affidavit about personal knowledge, motion to strike the affidavit. They have no personal knowledge of the account because they are not the OC. They only have the few documents provided to them by the OC.

[ezrunner]

they have provivded affidavit they also have an affidavit from Hsbc from the debt sale manager

I googled his name he is in fact an employee at HSBC

I dont recall metris I remeber the card always being from HSBC that could be just my lack of memory

[BV80]

I know I'm asking a bunch of questions, but bear with me.

What does the affidavit from HSBC say?

Is HSBC on your cr? Did you make payments to HSBC?

[ezrunner]

In no way to a mind the questions

HSBC is on CR and shows that debt was sold to collection company

Affidavit states

I am a represetative of HSBC Card Services, Formerly Metris Companies Inc {the seller} which owned the account of the customer names below under the account number specified

the statements in this affidavit are based on the computerized and hard copy books and records of the Seller, maitained in the ordinary course of business, the entries having been made by a regularly operated business. the affiant is authorized to make the statements and represetations herein.

Customer: my name

Account Number: xxxxxxxxxxxxxxxx

A computerized ending balance was maintained on the Seller's database.

The end balance showing on the books and records of the Seller at the time of the assignment of the account to CACH LLC was 4180.09

signature

title

notarization

[ezrunner]

also have a Certificate of Assignment from employee of CACHllc

Also a Business record affidavit signed by same person as above cert of assignment

[BV80]

In my opinion, this is your call.

If it were me, I'd fight, but that's just me.

If the assignment or bill of sale to Cach does not show your account number or name, they have not proven they bought your account.

If the affidavit from the OC does not state it SOLD YOUR ACCOUNT to Cach, again, Cach still hasn't proven they bought your account.

If you decide to fight this, your defense would still be Lack of Standing. If your statements show no payments to HSBC or Metris, you could have Identity Theft. It would be good to have a number of years worth of statements to show you made no payments.

An OC's affidavit may have more weight with a judge. If necessary, you could request to question the representative of HSBC. I'm not sure if you would have to issue a subpoena. In any case, Cach would then have to arrange for him to be a witness or to be deposed.

By answering the Complaint, you won't get a default judgment. Then any one of several things could happen.

1. If you feel things are not going your way, you could reach a settlement.

2. Cach may get worried, and offer to settle.

3. Cach may not feel this is worth their time, and could drop the suit.

Right now, just answer the Complaint. Read your RCPs, and find out when you can send your own Requests for Production of Documents, Admissions, and Interrogatories.

[ezrunner]

absolutely I am going to respond

but I am not sure how to respond to each part of BoP

the affirmative defenses dont seem to make sense to me in response to each item on BoP

Frankly i dont have the time or energy to put into fighting

I know this is my debt

I just want to answer intelligently to buy time and try to settle

on affidavit from OC it doesnt state it was sold merely positioned HSBC as Seller and assigned to CACH

Edited December 8, 2010 by ezrunner

[ezrunner]

when served warrant in debt they attached affidavit of claim as well which I do believe would be hearsay but it was not included in the Bill of Particulars

[BV80]

I have never received a Bill of Particulars, so since I don't know what it says, I'm not sure how to respond. Surely one of the members here does.

[ezrunner]

Post #2 in this thread are the items listed in BoP

my understanding is my defenses should respond to each accordingly

most affirmative defenses i read dont seem to logically correlate with the items in the BOP

[ezrunner]

okay i have found some info

For the items listed Ive got to file a response deny/admit to each

then at the end list my affirmative defenses

[ezrunner]

Cach owns the account.

If it were me, I'd check my credit report to see what Metris reports as the date of my last payment. If your bank accounts don't show the payment, you could have made a payment from another source, OR Cach could be trying to pull a fast one.

Also, see when Metris charged off the account. Many OCs charge off accounts 6 months after a default.

CR does not show as charged off just shows acct closed and gives date

[ezrunner]

1. Defendent is indebted to Plaintiff by reason on nonpayment of open-ended credit card account, originally a METRIS Consumer account, account number xxxxxxxxxxxxxxxx

2. The Metris Consumer account was assigned to CACH LLC

3. The current balance due on the account is 4180.09 together with interest and costs

4. Copies of Statements for August 2009 and May 2009 collectively attached as "Exhibit A."

5. A copy of the certificate of Assignment and the Affidavit of Claim has been hereto attached as "Exhibit B."

Apparently I have 1 of 3 responses to each of the above

A) defendant admits all of the allegations in paragraph__ of the Bill of Particulars

B)defendant denies all of the allegations in paragraph__ of the Bill of Particulars

C)defendant lacks knowledge or information to admit or deny all of the allegations in paragraph__ of the Bill of Particulars

then I would list my Affirmative defenses

I am considering the following defenses:

1)Defendant alleges that this action is time-barred under §8.01-246 of the laws of Virginia.

2)Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

3)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.

4)Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

5)Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

is this okay or am I way off base

[BV80]

CR does not show as charged off just shows acct closed and gives date

When did they close it? What does the "assignment" say.

Here's some examples of answers to the B of P.

1. You have to decide if you're going to admit or deny having the account.

2. Denied.

3. Denied.

4. Do they look like CC statements?

5. Admit

Now you list your defenses. Some of them might be:

Lack of Standing. Plaintiff has failed to prove they are the real party in interest.

Lack of Privity. Defendant has never entered into a contractual agreement with the Plaintiff.

Failure of Consideration. No exchange of money or goods occurred between the plaintiff and the defendant.

Plaintiff has failed to prove the alleged debt was part of the purchased portfolio of debts.

Plaintiff has failed to provide a complete accounting of the balance of the alleged debt.

These are just some examples. If you're looking to delay, you should find out when you can send out your own discovery requests.

Do you have a copy of the CC agreement or terms of service?

[BV80]

then I would list my Affirmative defenses

I am considering the following defenses:

1)Defendant alleges that this action is time-barred under §8.01-246 of the laws of Virginia.

2)Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

3)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.

4)Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

5)Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

is this okay or am I way off base

Works for me.

[Guest usctrojanalum]

I'm actually dumbfounded that they actually have an affidavit from someone at HSBC

[BV80]

I'm actually dumbfounded that they actually have an affidavit from someone at HSBC

The highlighted words below bother me:

"Affidavit states

I am a represetative of HSBC Card Services, Formerly Metris Companies Inc {the seller} which owned the account of the customer names below under the account number specified

the statements in this affidavit are based on the computerized and hard copy books and records of the Seller, maitained in the ordinary course of business, the entries having been made by a regularly operated business. the affiant is authorized to make the statements and represetations herein.

Customer: my name

Account Number: xxxxxxxxxxxxxxxx

A computerized ending balance was maintained on the Seller's database.

The end balance showing on the books and records of the Seller at the time of the assignment of the account to CACH LLC was 4180.09"

Has anyone ever seen an OC say "Seller" in their own affidavit? If HSBC sold a portfolio, did they provide an affidavit for every account in the portfolio?

[ezrunner]

It was closed in 2006

Cahc llc's Certificate of asignment says charge off date of 8/31/2009