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Trial Date set, Discovery underway but DV shows address I've never lived at.


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My fight against Equable Ascent Financial (Hillco Receivables) has received a Trial date for July. We are already well into the Discovery phase.

Yesterday, I received a response to my DV from their Attorney (finally). Included was a copy of a Credit Card Statement from Chase. The name on this statement was the same, but the address was in San Diego, CA. I have never lived in San Diego, let alone California! This debt is NOT mine!

What do I do next?

  • Do I CALL their Attorney and tell them they are Misrepresenting the Debt and Cease and Desist or do I WRITE a letter to this affect? (and how do I write it?)
  • Do I file a Motion to Vacate with the Court and use the DV as my evidence (and how do I write such a thing).
  • What information do I need to prove I've never lived in California, W-2s? Tax filings? What??

I know that JDB's hear it's not my debt all of the time. With a trial date already set - and since we are already into the Discovery phase, I want to do this RIGHT!

Please clearly explain what my next steps should be! Thank you!!

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I'm just going to throw something out here. I've never been in your situation, but I'll give it a try.

I'm wondering if you could file a Motion to Dismiss? Include copies of anything that shows where you were living during the date on the statement as evidence (exhibits). In fact, if you've lived at the same address for a long time, include copies of anything that shows dates before and after the date on the statement, as well. I don't know if it would be safe to include W-2s, but I would make copies of bills, property tax receipts, etc. If you feel it would help, include an affidavit or 2 from people who know you've never lived in San Diego. A good one might be from your employer if you've been employed by the same company for a number of years, and if you feel comfortable asking your employer to sign an affidavit.

Did the statement show any charges? This may be out there, but if you have any old cell phone bills from the time on the statement that show where calls originate, that would help prove you couldn't have made those charges.

I don't know if this would be best or not. If it's not, or if there's something better that you could do, hopefully people will offer advice.

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Guest usctrojanalum

Drop the misrepresenting the debt term from your vocab for the time being because you are not using it correctly in the context of this litigation. And I rather not derail your thread with what misrepresentation means. I agree with BV in attempting a motion to dimiss, I would base it on the JDB not having the right person. What is the date of the statement? Get proof that you did not live in Cali at that time by either getting tax returns, a lease, a mortgage payment, any utility bills with your name and the address you had at that time.

Did you ever have an account with the OC? Who is the OC? Is the OC showing a charge off along with sold/transferred to another lender on your CR?

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Did you ever have an account with the OC? Who is the OC? Is the OC showing a charge off along with sold/transferred to another lender on your CR?

usctrojanalum I apologize for the misuse of the term misrepresenting :? and appreciate you pointing that out.

Date of the statement is 12/11/09 to 01/10/10 with the California address and I have tons to show I live in Ohio.

Chase is the original creditor. Yes Chase is showing it charged off. In the DV there is an Affidavit of Sale which uses my name, an account number and saying the account was sold and transferred to Hilco/Equable Ascent on or about 2/5/10 yadda, yadda, and that Chase has no further interest in said account for any purpose. Do not know what it states on my CR.

What else can I site in the Motion to Dismiss due to wrong person? I greatly appreciate your help!

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Chase is the original creditor. Yes Chase is showing it charged off. In the DV there is an Affidavit of Sale which uses my name, an account number and saying the account was sold and transferred to Hilco/Equable Ascent on or about 2/5/10 yadda, yadda, and that Chase has no further interest in said account for any purpose. Do not know what it states on my CR.

Is the account number on the statement the same as your former account with Chase?

You mention an Affidavit of Sale. Did they include a Bill of Sale or Assignment between Chase and Hilco? If so, does that bill of sale reference your name and account number?

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Is the account number on the statement the same as your former account with Chase?

You mention an Affidavit of Sale. Did they include a Bill of Sale or Assignment between Chase and Hilco? If so, does that bill of sale reference your name and account number?

I have no record of an Acct with Chase.

In the response to my DV, they included the following:

1. A copy of the Chase Statemant from 12/11/09 to 01/10/10 with name; California address & an Acct #

2. A copy of the back of the same statement listing Info on Your Account etc.

3. Copy of NCO Financial Systems screen with my Name & Current Ohio Address; Client as Hilco; Acct # from Chase Statement; Interest, Principle and Total Balance

4. An Affidavit of Sale

There is NO Bill of Sale OR Assignment between Chase and Hilco.

This Affidavit is from someone at Chase, and is DIFFERENT than the one they filed with the Court. The Affidavit they filed with court was from someone at Hilco - which I already Moved to Strike based on Heresay.

This Affidavit of Sale from Chase does state "in making this affidavit that Hilco Receivables is now the owner of said account"

In their lawsuit the first paragraph states "Plaintiff acquired and was assigned, for valuable consideration, all right, title & interest"

I written a rough draft of my Motion to Dismiss which I can post if you would like to review/comment.

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If they are coming after you for an account that you are sure you never held, and they have somehow mistaken you for someone else, then I would almost be happy. You are going to be able to nail them after this is over, I would say that is a big fat violation of federal consumer law.

You are going to be put to some time and trouble doing it, but I am sure in the end you will be able to leave them with egg on their face. Did you file a counter claim??

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lol...almost happy...it's still been a pain, and noone every believes you!

No, I did not file a counterclaim with my Answer - and I am in Ohio.

From my reading here, it appears I will have up to a year to sue them for violation of FDCPA. I would like to get it dismissed from my local common pleas court - and then go after them. Who knows what else they'll try to pull between now and then - and I'm keeping track of everything!

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I would appreciate any suggestions/comments. Thank you!

IN THE CIRCUIT COURT OF THE ______________ JUDICIAL CIRCUIT

_____________________ COUNTY

____________________, )

) Case No. ________________

Plaintiff, )

vs. )

)

____________________, )

)

Defendant. )

MOTION TO DISMISS

The Defendant, Xxxxx Xxxxx, moves this court to dismiss her from the Plaintiff’s action in that Plaintiff has mistakenly sued the wrong person. As such, Defendant cannot be made a party to Plaintiff’s claim.

1. Defendant, Xxxxx Xxxxx resides at xxxxxxxxx, OH 4xxxx and has lived there since November 2009.

2. Prior to November 2009, Defendant lived in xxxxxx Ohio for 5 years.

3. Defendant has never in her lifetime resided in the State of California, specifically 12707 High Bluff Drive Ste 200, San Diego CA 92130

4. Plaintiff, Equitable Ascent Financial LLC, alleges Xxxxx Xxxxx has failed to pay, and is owning on an “Account” acquired from WAMU Chase.

5. As proof of Debt Validation on said “Account”, Plaintiff provided Defendant a copy of an “Account” Statement dated 12/11/09 – 01/10/10 which indicates a Xxxxx Xxxxx, with an address of 12707 High Bluff Drive Ste 200, San Diego CA 92130. (Exhibit A) Plaintiff’s own hand indicates Defendant is the wrong person to bring suit against.

6. Defendant submits an Electric Bill (Exhibit B), a Phone Bill, (Exhibit C) and a Gas Bill (Exhibit D) as indicators of her residence in the State of Ohio during the timeframe indicated on Exhibit A.

7. Defendant respectfully asks the court to recognize she is not the same Xxxxx Xxxxx indicated in “Exhibit A”, and therefore the wrong person to bring suit against.

WHEREFORE, defendant moves this court to remove her from this action and dismiss, with prejudice the claim.

_____________________________

Signature

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I would sent two ITS letters. One to the collection attorney and one to the JDB. Make sure that the two get copies of the electric bills and the other documents establishing your address during the time the charges were made on the Chase account.

Tell the collectors that if they don't immediately dismiss their claim that you will begin legal action against each of them for willful violations of the FDCPA and TCPA. Mistaken collection calls are violations of the TCPA... assuming they did make calls. Do a search for "Watson".

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