What to do next (FIA Card) .Please Help.

[ladyelainefairchild]

Hi All,

So I have my answers ready. Got a recording of the lawyer stating the original owner of the debt as (Dell Computer) not FIA. However, I just received in the mail and affidavit stating that the lawyer was "mistaken" and FIA is the owner. No other paperwork. What do I do now? Can I no longer answer with a failure to state a claim? They still haven't attached any paperwork at all, other than the affidavits. I'm supposed to turn in my stuff today or tomorrow. Please help.

Thanks

[Coltfan1972]

What "stuff" are you supposed to turn in today or tomorrow. The answer to the lawsuit, motions, some other pleading? All depends on what "stuff" you have to turn in on what you should do.

If it is just an answer to the lawsuit, at this stage, won't really matter who allegedly owns the debt. I assume your denying no matter who allegedly owns the debt.

[ladyelainefairchild]

Hi Coltfan,

I'm turning in my answers and affirmative defenses, which I have to state at least one here in Indy.

[ladyelainefairchild]

Yes, I am denying as I really don't know who the heck is suing me.

[Coltfan1972]

Your answer I would assume is a denial no matter who owns the debt, correct? I don't see any big deal on how you would handle any different. It's not like your going to rely on the other side for true and correct info.

So they made a mistake or they are messing with you. Discovery is where you will find out what hand they are really holding. Just file your answer and get on with discovery. I don't see how the lawyer making a "mistake" changes anything.

Unless you were going to fight tooth and nail against a junk debt buyer and now that you believe it is with the original creditor, and want to settle, is the only thing I can think of. A JDB is very beatable and an OC is harder to beat. If that is the case then enter into settlement talks. Those discussions can't be used against you.

The issue of affirmative of defenses I won't even bother with. If you think you those that apply use them.

[ladyelainefairchild]

Basically, I'm inquiring if I should change my affirmative defense in failing to state a claim. I had put in there that due to the rep over the phone saying FIA finances for Dell that they failed to mention all parties and failed to state their relationship to alleged debt. Now that they "fixed" this with just an affidavit from the plaintiff lawyer I don't think I can stand on this. They still don't prove the owner of the debt however, just sent a copy of the first affidavit from FIA again along with theirs.

[ladyelainefairchild]

Your answer I would assume is a denial no matter who owns the debt, correct? I don't see any big deal on how you would handle any different. It's not like your going to rely on the other side for true and correct info.

So they made a mistake or they are messing with you. Discovery is where you will find out what hand they are really holding. Just file your answer and get on with discovery. I don't see how the lawyer making a "mistake" changes anything.

Unless you were going to fight tooth and nail against a junk debt buyer and now that you believe it is with the original creditor, and want to settle, is the only thing I can think of. A JDB is very beatable and an OC is harder to beat. If that is the case then enter into settlement talks. Those discussions can't be used against you.

The issue of affirmative of defenses I won't even bother with. If you think you those that apply use them.

Understandable. Thank you for your help Coltfan Do I have to request discovery or does that come next naturally? I assume discovery happens before the trial no?

Problem is that I am still unsure of who the original creditor is. My credit reports don't say that it was sold or transferred. Original account was opened in 2000 with BofA.

[ladyelainefairchild]

I just double checked the paperwork. The lawyer addendum to affidavit is dated friggin October 12, 2011

[Linda7]

What is the ballpark amount they are trying to collect?

It sounds like you are dealing with an original creditor and they can be hard to beat in court.

However, I just happen to have a BOA agreement with JAMS.

And if you elect it "now" and file a MTC with the court, you will then have a good affirmative defense.

[ladyelainefairchild]

Ok, I'm sorry for being confusing. I feel like I'm in a whirlwind.

:slap face:

I originally had an affirmative defense of failure to state a claim and my proof was that I called the attorney which the rep advised me that FIA finances for Dell Computers. I got this recorded. Here they failed to name all parties and relationships.

Now I get a letter from them saying it's a mistake. The attach the original Affidavit of Debt dated and notarized on Nov 1, 2011. Along side, they now attach an Addendum to the Affidavit dated on October 12, 2011. How can an Addendum be dated before the Affidavit?

What is going on? I am really confused.........

[ladyelainefairchild]

What is the ballpark amount they are trying to collect?

It sounds like you are dealing with an original creditor and they can be hard to beat in court.

However, I just happen to have a BOA agreement with JAMS.

And if you elect it "now" and file a MTC with the court, you will then have a good affirmative defense.

Around 11,000 is what they are trying to get. How do I get the BofA agreement? I've read up on stickies about arbitration, is that what you mean by electing MTC?

[Coltfan1972]

Stop worrying about the affirmative defense. Even if that would work they will just re-sue you or the Judge will order them to amend (cure).

Discovery does come next and it has to be initiated. Discovery, as the name states, is where you discovery all of the questions you have.

11K with an original creditor? You're in for a battle.

[legaleagle]

If you do need to list one, use lack of standing to sue. Discovery will come next, both parties can "propound" interrogatories, requests for admissions, and production of documents. All you need is production of documents at this point.

What was the date of the last payment?

[Linda7]

Here's the 2003 BOA agreement with JAMS - 2003 BofA Agreement[1]-1.zip - 4shared.com - online file sharing and storage - download

If I were you, I'd also post your information at debtorboards Debtorboards - Sue Your Creditor and Win! - Index and post in the arbitration forum.

Be sure to double space/paragraph over there.

Get as much advice from here and over there and then it will be easier to make your decision on what would be best for you.

[ladyelainefairchild]

If you do need to list one, use lack of standing to sue. Discovery will come next, both parties can "propound" interrogatories, requests for admissions, and production of documents. All you need is production of documents at this point.

What was the date of the last payment?

Last payment was made in April of 2009. I found out from the clerk that I have to file a motion for discovery here, so I have to get cracking on that. Is it true that the judge can dismiss that motion?

[ladyelainefairchild]

Here's the 2003 BOA agreement with JAMS - 2003 BofA Agreement[1]-1.zip - 4shared.com - online file sharing and storage - download

If I were you, I'd also post your information at debtorboards Debtorboards - Sue Your Creditor and Win! - Index and post in the arbitration forum.

Be sure to double space/paragraph over there.

Get as much advice from here and over there and then it will be easier to make your decision on what would be best for you.

Thank you for your help. Got homework lol!

[legaleagle]

Discovery is limited in some venues due to the amount sued for. Your state rules are on line, look under discovery to see what applies. All you need is production of documents, see my posts from today and you'll see a nice list.