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DISASTER during Phone Scheduling Conference - Plz Help!


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Just completed a JOKE of a Phone Scheduling Conference through Montgomery County Common Pleas Court in Ohio. I'll do a quick run through of events. PLEASE let me know if you have any suggestions or words of advice:

EQUABLE ASCENT FINANCIAL LLC (Hillco Receivables) w/Attorneys Morgan & Pottinger

JDB files for Summary Judgment on 2/8/11

I file my Answer w/8 Affirmative Defenses on 2/16/11

Case referred to Magistrate on 2/24/11

I file Motion to Strike Affidavit on 3/8/11

Phone Scheduling Conference today at 9am.

Magistrate NOT on the phone - handled by "assistant". Assistant informs Attorney, they can file a Summary Judgment in 30 days, and I must file answer by April 21st. Blah, blah, Trial end of July, then asks if there are any questions.

I indicate I have yet to receive any documentation proving it is a legitimate debt, no contracts, statements, signatures, nothing. No response to Debt Validation, which Attorney signed for on Thursday. Assistant says a debt buyer has the same rights to collect as an original creditor! WHAT!?!?!?!

I was stunned, didn't say anything else, and call ended.

Did some additional research to back myself up and called Assistant back. Let her know that JDB's are 3rd party collectors and covered under the FDCPA, even if that party actually purchases the accounts from the original creditor. She was obviously clueless, and fell back on the "cannot give legal advice" statement.

Then told her that Summary Judgment had already been filed, along with my Answer and asked her if anyone had even read my case!

She said she was just asked to schedule the dates, just looked at the Title, saw it was a credit card issue, and made the calls. No she did not read my case. I asked her if the Magistrate had read my case, because I did not feel my case was getting the attention it deserved!

She assured me Magistrate would/has reviewed the case. I then asked if she knew when he would rule on my Motion to Strike Affidavit. She did not know. Said I could file an Amendment to my Answer but didn't think the Magistrate would entertain it! Call ended.

Wow, ok...so...don't know if my case has even been read or reviewed - Attorney may file ANOTHER Summary Judgment - Court doesn't even seem to know the difference between an Original Creditor and a JDB.

Any suggestions? Comments?? What would you do next if this was you?!

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I've been sued by them in Texas (different law firm). I DV'd them first to their internal collection company before the law firm (no response) then to the law firm. All they responded was that it was valid and then they filed suit. I answered the complaint and their request for admissions. Just received an unsolicited offer to settle for 60% provided I send $1,000 a month on a debt for which they have provided no documentation whatsoever. Getting ready to reply to their offer to settle with my own request for admissions, interrogatories and request for production.

I may end up going down in flames but I won't go without a fight!

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Jen,

Read your court reals carefully to find out exactly what you're allowed to do. Do you have case law to include in your opposition to the summary judgment?

@dvintexas Good Luck! I agree, don't go down without a fight!!

@BV80 Thank you for your comments/questions!

I continual review the Court Rules...and even referred to them in my Motion to Strike Affidavit.

At this point I do NOT have case law to use in my Answer to their next Summary Judgment.

How many times can a JDB file a Summary Judgment? I thought once and done, but I guess I'm wrong??

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I indicate I have yet to receive any documentation proving it is a legitimate debt, no contracts, statements, signatures, nothing. No response to Debt Validation, which Attorney signed for on Thursday.

It's really to late to DV at this point. Did you send discovery requests after you filed your Answer to the Complaint?

At this point I do NOT have case law to use in my Answer to their next Summary Judgment.

How many times can a JDB file a Summary Judgment? I thought once and done, but I guess I'm wrong??

You need to find case law, if possible. It bolsters your argument...makes your defense stronger. Case law can be from your state court, your Circuit Court of Appeals (which I believe is the Sixth Circuit), and the Supreme Court of the U.S.

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There is plenty of case law available for JDB's. Here is one for your district that I posted in another thread and I'll post it here for your convenience:

http://www.sconet.state.oh.us/rod/docs/pdf/4/2004/2004-ohio-623.pdf

Litigants are free to file summary judgments for as long as the cause underlying the msj is valid. Welcome to the word of JDB harassment until you "just pay the debt". They usually cannot produce a valid assignment due to the nature of how they purchased the debt. They have no direct connection to the OC and would have to pay dearly for said proper assignment.

The JDB's, rather, choose to go down the path of intimidation because it is cheaper...and works against uninformed consumers.

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jen-jen, if pleadings are public record in your particular county, I would suggest that you search cases similar to yours and see if you can find an objection to the MSJ that matches your situation. I found one that was filed by an attorney in another case that matches my case to a tee (JDB's documents are all the same boiler plate forms in all of the similar cases).

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Admin, I agree that, as far as attacking the court proceedings, dv is powerless but, if the op is still within the 30 day window, the op should send dv anyway. The JDB then has to stop its collection activites, including court proceedings, until they do validate.

This is a minefield for them. There is a pretty good chance that they will do some sort of collection simply because they don't pay attention to details. The op can them submit counterclaims for the FDCPA violations.

But I agree, dv'ing the JDB would not have an affect on the current court proceedings. It just sets the trap for possible counterclaims.

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I would suggest that you search cases similar to yours

Good suggestion. Do a county search on your state's courts online for the attorney who the JDB has hired. This will give you some clue as to what to expect from this particular attorney. You can expand the search if this search is not conclusive.

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Admin, I agree that, as far as attacking the court proceedings, dv is powerless but, if the op is still within the 30 day window, the op should send dv anyway. The JDB then has to stop its collection activites, including court proceedings, until they do validate.

Unless the poster never received anything from the JDB before the suit, more than likely, the 30 day window has already passed.

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Thank you very much for the case law and your advice! I was able to get this far based on research on your site. We must give credit where credit is due!

I was flabbergasted at the ignorance of the "ASSistant" at the court, and have serious doubts if I will even receive a fair judgment from the Magistrate. I knew this is where I needed to post my questions.

My plans are to file my 1st set of Interrogatories & Request for Production of Docs.

LAST Q FOR NOW: Should I continue with this, OR wait to see what the JDB does next?

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LAST Q FOR NOW: Should I continue with this, OR wait to see what the JDB does next?

You should read the court rules carefully to see if there's a time limit for discovery. I don't know if there would be, but you need to make sure. If there's no time limit, then it's your call as to whether you want to wait to see if they do anything else or not.

But first go ahead and prepare your opposition to an MSJ just in case they file one. Discovery requests don't take as much time to prepare.

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You should read the court rules carefully to see if there's a time limit for discovery. I don't know if there would be, but you need to make sure. If there's no time limit, then it's your call as to whether you want to wait to see if they do anything else or not.

But first go ahead and prepare your opposition to an MSJ just in case they file one. Discovery requests don't take as much time to prepare.

Will do! I've saved my Answer to the first MSJ, so with some added case law, I should be in GREAT shape! Will stop back by with any additional questions & updates!

Have a great week all! :)++

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more than likely, the 30 day window has already passed.

Doesn't look like it:

No response to Debt Validation, which Attorney signed for on Thursday.

Op is still waiting for answer to dv. All court proceedings that the attorney has been involved in after the signing of the green cards are violations.

I did not catch this before. I was just responding to admin's comment that dv was useless after a summons. Dv is useless for court proceedings concerning the Answer and Affirmative Defenses but very useful for Counterclaims.

Admin's point should be taken seriously in that the Answer is the main thing to take care of before getting lost in other matters. However, if the Answer is done, the op could spend a little time formulating Counterclaims. Actually, I think it is allowable in most states for the Counterclaims to be submitted at a slightly later date than the Answer. After that, leave of court is necessary.

If the op can get enough solid Counterclaims then the JDB may contact the op about a mutual dismissal. The op can also bring the attorney into the mess because they are a separate entity.

I think a lot of consumer make the mistake that the JDB and the JDB's attorney are one in the same. They are not. The attorney's violations of the FDCPA are not the JDB's violations and vice versa. The op could not Counterclaim the attorney's violations in the JDB's claim. The op would have to either file a cross claim, if it is allowed by her state's Rules, or, the sure way, file a separate claim against the attorney.

The way I read her short sentence about dv, the dv was sent to the attorney...not the same as sending dv to the JDB. The op may have missed that window.

Edited by Downto0
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I second what BV80 said.

Some of the questions asked of the assistant are issues for discovery. I am confused about your "answer" was the answer to the initial claim and summons against you, or did they actually file a "Motion for Summary Judgement"? In Ohio, they have to file a "leave to file motion for summary judgement".

As far as the assistant handling the call and not reading the case, that is normal. This was just a scheduling conference. The only issue they were responsible for was what days certain things would take place and make sure there are not scheduling conflicts and that is all.

I think that is why some of the posters pointed you to the rules. There are steps that need to be followed in a certain order and by certain times.

Sounds like it is time pursue discovery of the JDB.

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Op is still waiting for answer to dv. All court proceedings that the attorney has been involved in after the signing of the green cards are violations.

I don't think I understand what you're saying. The 30 day dispute period is after the 1st communication from the CA or JDB. Just because the OP sent a DV to the attorney doesn't mean the DV was timely. Also, I"ve never heard of a DV letter holding up court proceedings.

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If the CA never provides you with an opportunity to exercise your right to DV by sending an initial demand letter when the file is placed in his office, then the CA is not only in violation of the FDCPA but is also still obligated to validate the debt - regardless of whether a lawsuit has been filed or not. Good thing too or all CA's would just immediately file suit on everything and completely skip initial contact completely to avoid the pesky DV process.

Edited by bbell
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In Recker v Central Collection, the court said:

Courts have found that both filing a new lawsuit and continuing an existing lawsuit without providing requested verification violates § 1692g(B). Regarding existing lawsuits, the Seventh Circuit Court of Appeals observed, “[t]he debt collector is perfectly free to sue within [the thirty-day verification period]; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor.” Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997). See Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 416 n.5 (7th Cir. 2004) (stating that a debt collector is free to bring a lawsuit within the validation period but must suspend its collection if the debtor disputes the debt); Anderson v. Frederick J. Hanna & Assocs., 361 F. Supp. 2d 1379, 1383 (N.D. Ga. 2005) (holding that because a lawsuit was a collection activity, a debt collector could not bring a lawsuit without first providing verification).

§ 1692g

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

http://www.debtorboards.com/index.php?action=dlattach;topic=8489.0;attach=1242

The moment the collector signs the green card for a dv they must cease all collection activities. There are no exceptions. This would include all hearings, trials, depositions, etc. The collector can do nothing with the debt except send for validation and deliver that dv to the US mail for the consumer.

The op hasn't exactly opened up the file of facts so that we know what has happend to date. That's fine because all eyes are watching and some of them won't be friendly. There have been times that some posters have related tales of going into court and the collector had copies of what they have said on this very site.

That being said, one has to work with the information provided and make assumptions. From what the op has said, a JDB bought the debt and has hired a collection attorney to file suit for the collection of the debt. It is likely that the JDB has already sent their inital letter and we are in the dark as to whether the op had sent for dv from the JDB.

This doesn't matter. In comes the collection attorney. The op said that the attorney signed the green for the dv.

No response to Debt Validation, which Attorney signed for on Thursday.

We don't know when the op sent for dv, only that the collection attorney did sign a green card for the receipt of the dv. The very same moment that the collection attorney signed that green card was the very moment that the collection attorney was informed that they were to cease collection activities...until they sent for validation and delivered it to the US mail for the op.

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My point was about the 30 day dispute period. I know we can DV at any time, but it's if we DV during the 30 days that the collector or JDB must cease collection efforts. If we DV after that period, they do not have to stop trying to collect. In fact, unless we're disputing through the FCRA or requesting discovery, there's nothing that says they have to validate at all.

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I've gone back through the thread a couple of times but I cannot see where the op said or indicated where the dv was timely. It would seem that the op thinks it was. Do you see where the op said something which would indicate that the dv was not timely?

Court action does not count as inital contact. It's in the amended FDCPA. Are you assuming that since they have arrived at the msj stage that the 30 days have passed?

Theoretically, a collector could sue and receive favorable judgment without ever being required to send dv. All court proceedings are not considered contact with the consumer. The consumer would have to initiate first contact to cause the collector to be required to send the mini-miranda. Then the consumer could ask for dv.

If it weren't for sites like this one consmers would not know how to defend themselves.

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I've gone back through the thread a couple of times but I cannot see where the op said or indicated where the dv was timely. It would seem that the op thinks it was. Do you see where the op said something which would indicate that the dv was not timely?

I simply assumed the OP had heard from them before. I also assumed if the poster hadn't heard from them, he/she would have mentioned it. Also, some believe that sending a DV at any time, stops the collection process.

Court action does not count as inital contact. It's in the amended FDCPA.

I don't think I implied that a court action is an initial contact. If it came across that way, that was not my intention.

Theoretically, a collector could sue and receive favorable judgment without ever being required to send dv.

The defendant can ask for the documentation in discovery.

If it weren't for sites like this one consmers would not know how to defend themselves.

Agreed.

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Really outrageous. People can justify it to themselves I guess, you know making a living, supporting their families, whatever, but I simply couldn't get up everyday and look in the mirror knowing that I help to facilitate a system that is so offensive. Amorality, simple as that, is a prerequisite for anyone who could know how blatantly unsubstatiated these claims by the JDB's who still hold people up for months on end and still conduct themselves in the evasive and unsympathetic way they do. I am sure that ASSistant doesn't lose a wink of sleep over the countless people who have defaults levied against them for not showing up to contest a suit that would have been backed with no proof.

They can't even hold the hearing in person, the idiot that took the place of the judge in your case just has diarhhea of the mouth talking nonsense about the JDB having the right to collect when you say that they have provided no documentation, your perception that they haven't even looked at your case, and then the old trusty "we can't give legal advice" cop-out. And remember, your tax dollars go to fund this stuff.

If my case ever goes to court I am going to put the most energy behind keeping my composure if this nonsense starts to transpire in front of my eyes. I guess it is just the rampant individialism of this society that allows people to act like that ASSistant did to you, "hey its not me that are going to have to pay money to people who aren't propely proving their claim, so who cares."

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