Jump to content

being sued by Midland Asset Acceptance


Recommended Posts

I have a court date on 9/9 in Rutherford County TN for a credit card I supposedly had with Citi Bank that I have never taken out. I was told by the Court Clerk that an answer letter is not usually filed in General Sessions Court and to just appear and make my statement.

I have sent a DV letter to the Law Firm Mendelson Law Firm. They replied today with a copy of the Sworn Affidavit from someone at Asset Acceptance none of the other information I requested was included in their response. What should I do next?

Below is a copy of the letter I mailed to them Via certified mail and faxed to them

Thank you for your time.

Asset Acceptance LLC. as Succor in interest to Citi Bank.

c/o Mendelson Law Firm

799 Estate Place, P.O. Box 17235,

Memphis, TN 38187-0235

August 4, 2011

Re: Asset Acceptance LLC/Citi Bank File # XXXX for XXXXXXXXXXXX Debt Verification

To Whom It May Concern:

This letter is being sent to you in response to Telephone calls and previous Debt Verification letter dated 07/17/2011. Be advised that this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (B) that your claim is disputed and validation is requested.

This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you.

If there is an underlying arbitration clause associated with this claim, I hereby exercise it, and waive your litigation rights to this claim, per the underlying arbitration clause.

Please provide me with the following:

• What the money you say I owe is for;

• Explain and show me how you calculated what you say I owe;

• Provide me with copies of any papers that show I agreed to pay what you say I owe;

• Provide a signed copy of any contract and a copy of any underlying arbitration clause;

• Identify the original creditor;

• Prove the Statute of Limitations has not expired on this account

• Show me that you are licensed to collect in my state

• Provide me with your license numbers and Registered Agent

At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau’s (Equifax, Experian or TransUnion) this action might constitute fraud under both Federal and State Laws.

Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following:

• Violation of the Fair Credit Reporting Act

• Violation of the Fair Debt Collection Practices Act

• Defamation of Character

If your offices are able to provide the proper documentation as requested in the following Declaration, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist.

Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.

If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.

I would also like to request, in writing, that no telephone contact be made by your offices to my home or to my place of employment. If your offices attempt telephone communication with me, including but not limited to computer generated calls and calls or correspondence sent to or with any third parties, it will be considered harassment and I will have no choice but to file suit. All future communications with me MUST be done in writing and sent to the address noted in this letter by USPS.

It would be advisable that you assure that your records are in order before I am forced to take legal action. This is an attempt to correct your records, any information obtained shall be used for that purpose.

Best Regards,

Link to comment
Share on other sites

According to the FDCPA, all that is required to validate a debt is the name of the original creditor and the amount of the debt.

What was written in the affiavit?

Thank you for your reply. All te affidavit says is :

The name of the person making the affidavit

That they are employeed as a Legal Spe******t with Assett Acceptance

They are familure with the Way Assett Acceptance keeps records

That they were assigned the rights to the account from the OC

The ammount they say I owe

They have reviewed the record of the account

that they are 18 and "Competent"

Link to comment
Share on other sites

According to the FDCPA, all that is required to validate a debt is the name of the original creditor and the amount of the debt.

What was written in the affiavit?

Os what you are saying is they do not have to prove that I owe money jsut that their system says I do? No real evidence is needed?

Link to comment
Share on other sites

The affidavit can be precluded as it is hearsay.

Look up the name of the "spe******t" - either Google or LinkedIn (best bet). Print a copy of their employment history and write a motion to preclude based on the fact that they never worked for and cannot know how the original creditor created the records for the account.

Link to comment
Share on other sites

Os what you are saying is they do not have to prove that I owe money jsut that their system says I do? No real evidence is needed?

I simply told you what what was required in response to a debt validation request under the FDCPA.

In a court of law, they must provide some evidence. When you're sued, if your court rules allow, you can make discovery requests for documents such as the bill of sale between the OC and the JDB, account statements, etc.

Link to comment
Share on other sites

The affidavit can be precluded as it is hearsay.

Look up the name of the "spe******t" - either Google or LinkedIn (best bet). Print a copy of their employment history and write a motion to preclude based on the fact that they never worked for and cannot know how the original creditor created the records for the account.

Thank you for the great Idea. Yeah her las job was a Crew Member at Taco Johns.

Link to comment
Share on other sites

I simply told you what what was required in response to a debt validation request under the FDCPA.

In a court of law, they must provide some evidence. When you're sued, if your court rules allow, you can make discovery requests for documents such as the bill of sale between the OC and the JDB, account statements, etc.

Thank you. Sorry I misunderstood

Link to comment
Share on other sites

The affidavit can be precluded as it is hearsay.

Look up the name of the "spe******t" - either Google or LinkedIn (best bet). Print a copy of their employment history and write a motion to preclude based on the fact that they never worked for and cannot know how the original creditor created the records for the account.

Unless the information on "LinkedIn" specifies the affiant works for the JDB, it would be difficult to use the information as evidence to strike an affidavit.

Also, not all affidavits from JDBs are attesting to the accuracy of documents. Some that are included with Complaints are merely attesting to the accuracy of the Complaint itself. You and I know the affiant doesn't know a thing about the account, but many states hearsay rules are not very specific about "knowledge".

A JDB's affidavit attesting to the accuracy of documents are a different story.

Link to comment
Share on other sites

Unless the information on "LinkedIn" specifies the affiant works for the JDB, it would be difficult to use the information as evidence to strike an affidavit.

Also, not all affidavits from JDBs are attesting to the accuracy of documents. Some that are included with Complaints are merely attesting to the accuracy of the Complaint itself. You and I know the affiant doesn't know a thing about the account, but many states hearsay rules are not very specific about "knowledge".

A JDB's affidavit attesting to the accuracy of documents are a different story.

The exact wording is

1. I ___ am an amployee of Assett Acceptance LLC ("Asset"), and am compenent to testify to the matters stated herein.

2. I am familiar with the manner and method by which Asset creates and maintains its business records, including computer records of its accounts.

3. Asset's business records demonstrate that Accet purchased the receivable at issue in the case from CitiBank.

4. The business records associated with the receivable demonstrate that our claim against Devendant is in the ammount of $XXXX.XX

She signed it and it is notorized.

Link to comment
Share on other sites

The exact wording is

1. I ___ am an amployee of Assett Acceptance LLC ("Asset"), and am compenent to testify to the matters stated herein.

2. I am familiar with the manner and method by which Asset creates and maintains its business records, including computer records of its accounts.

3. Asset's business records demonstrate that Accet purchased the receivable at issue in the case from CitiBank.

4. The business records associated with the receivable demonstrate that our claim against Devendant is in the ammount of $XXXX.XX

She signed it and it is notorized.

The affiant attests that she has knowledge of Asset's records, not the OCs. If she's employed by Asset, she's telling the truth.

BUT, she states "the business records demonstrate that Accet purchased the receivable at issue in the case from CitiBank." Did they include a bill of sale from Citibank?

If not, you need to request it in discovery, if your court rules allow. More than likely, the bill of sale will not have your name or account number. If the bill of sale, which is a business record, does specify your name and account number, THEN I would move to strike the affidavit. Her testimony that Asset's records demonstrate they purchased your account would be hearsay, because that business record does not specify the receivable (your account) at issue.

Link to comment
Share on other sites

The affiant attests that she has knowledge of Asset's records, not the OCs. If she's employed by Asset, she's telling the truth.

BUT, she states "the business records demonstrate that Accet purchased the receivable at issue in the case from CitiBank." Did they include a bill of sale from Citibank?

If not, you need to request it in discovery, if your court rules allow. More than likely, the bill of sale will not have your name or account number. If the bill of sale, which is a business record, does specify your name and account number, THEN I would move to strike the affidavit. Her testimony that Asset's records demonstrate they purchased your account would be hearsay, because that business record does not specify the receivable (your account) at issue.

It does not contain a bill of sale

Thank you great info. How can I find out if discovery is allowed. I plan to govto GS court an deny to get a trial.

Link to comment
Share on other sites

It does not contain a bill of sale

Thank you great info. How can I find out if discovery is allowed. I plan to govto GS court an deny to get a trial.

Read your court's Rules of Civil Procedure. They'll have information on preparing your Answer to the Complaint as well as information on discovery requests. Some rules allow for a Bill of Particulars, while others allow for Requests for Production of Documents, Requests for Interrogatories, and Requests for Admissions.

Link to comment
Share on other sites

Read your court's Rules of Civil Procedure. They'll have information on preparing your Answer to the Complaint as well as information on discovery requests. Some rules allow for a Bill of Particulars, while others allow for Requests for Production of Documents, Requests for Interrogatories, and Requests for Admissions.

Thanks again for the great advise!!!!!!!!

Are you a lawyer or just experienced?

Edited by Imconfused
Link to comment
Share on other sites

Thanks again for the great advise!!!!!!!!

Are you a lawyer or just experienced?

Oh, I'm definitely not an attorney. I have been sued and had to learn from scratch. Almost everything I've learned has come from the knowledgeable people on these boards. They've provided guidance and useful links to research. Researching case law can help, as well.

We've all learned that most JDB cases are very similar. The big differences are the individual state statutes, rules of the courts in each state, and procedure. Case law varies in states, as well. What a higher court in one state may rule is sufficient evidence, a court in another state may decide is not.

That being said, with all there is to learn about the legal system, everything I know could fit on the head of pin.

Link to comment
Share on other sites

This is from the County Website. What I take from it is I need to be very precise in what I want discovered and why... Anything else to take from it?

RULE 10.

DISCOVERY IN CIVIL CASES

10.01 FILING REQUIRED ONLY FOR USE BY COURT

Interrogatories or Requests for Admissions or Production or other discovery material need not be filed

with the Clerk unless and until it is to be considered by the Court for some purpose. Interrogatories and

Depositions must be filed before they may be used for any purpose during the trial of the case, including

impeachment of a witness or introduction for substantive proof.

10.02 NUMBER OF INTERROGATORIES

No party shall serve on any other party more than thirty (30) single question interrogatories, including

subparts without leave of Court. Parties seeking to serve a greater number of interrogatories may do so with

leave of Court. Any motion seeking permission to serve additional interrogatories shall contain the proposed

interrogatories and shall be accompanied by a memorandum establishing good cause for such service. If a

party is served with more than thirty (30) interrogatories without an order of the Court, he or she shall respond

only to the first thirty in the manner provided by the Tennessee Rules of Civil Procedure.

10.03 MOTIONS TO COMPEL DISCOVERY

Motions to Compel Discovery shall either quote verbatim the interrogatory, request or question and any

objection or response thereto, or be accompanied by a copy of the interrogatory request or excerpt of a

deposition which shows the question and objection or response. This requirement shall not apply when a party

has failed to answer or object to an entire set of discovery requests. Nonetheless, a Motion to Compel shall be

accompanied by a statement certifying that counsel has conferred with opposing counsel in good faith, in an

effort to resolve by agreement the issues raised and that counsel have not been able so to agree.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.