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HELP!!!!!


RNT
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Allright guys and gals I have a friend who was just served with a summons yesterday so we dont have much time. He checked the date of deliquency and it is not over the statute of limitations. He was called by a CA and told them that he did not know who they were and that they needed to send all corospondences via mail. He claims he never heard from them either by mail or phone after that.

He was never given the opportunity to demand verification of the debt since they never sent the letter or any letter informing him of his rights as prescribed by federal law. So what can he do at this point? Should he put in a motion for discovery to see if they have any proof they followed the FDCPA? Or is it they dont have to send out that letter after 5 days of the initial communication?

Help.....

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If that is the case and the same CA or JDB is suing, then you file a counter-claim as part of the answer for FDCPA violations. Make sure your friend has proof that the validation letter was sent (hopefully CMRRR) and no response was provided.

Hopefully your friend has the collection letters from the CA showing that the mini-miranda was never provided in the letters.

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Is your friend in Nebraska?

You need to find whatever state's rules are applicable, for example a search for:

Nebraska rules of civil procedure

or

how to answer a summons in nebraska

This will tell you what the procedure your friend needs to follow.

For example, some states require an answer to the summons be filed within 20-30 days. Some states require the defending party show up to an appearance hearing as an answer to the summons.

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Also, answering the questions in this thread will help other members help you help your friend.

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

ps, wish I had a friend who would do all my legal research for me ;);) haha

Edited by notgoingdown1
for some humor
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If that is the case and the same CA or JDB is suing, then you file a counter-claim as part of the answer for FDCPA violations. Make sure your friend has proof that the validation letter was sent (hopefully CMRRR) and no response was provided.

Hopefully your friend has the collection letters from the CA showing that the mini-miranda was never provided in the letters.

Unfortunately, it appears no DV was ever sent.

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Hi all, there have been no mailings to him by the debt collector and/or the attorneys in this case. The only thing he claims is the ca called him months ago with no letters whatsoever. So I am going to have to look all this stuff up and possibly prepare his motions and/or answers.

Edited by RNT
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You can counter sue for not sending the initial notice, but they will likely say they sent it and get off the hook. HOWEVER that being said, there is a lot of power in counter suing for FDCPA violations. Suddenly their insurance company is pulled into the case and they want to just settle the thing out. If you craft a well written answer that obviously shows there is going to be a battle, they are going to look at getting rid of the case quickly.

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Also be advised that if your "friend" walks into court with masterfully drafted pleadings and can't even tell the judge what "motion" means, he's in trouble and so is the guy who prepared all his work. Unless that guy happens to have a law license. This happens all the time, people want to help their friends, but the friends are the ones who have to go to court and fight. Unauthorized practice of law can get you into trouble.

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Also be advised that if your "friend" walks into court with masterfully drafted pleadings and can't even tell the judge what "motion" means, he's in trouble and so is the guy who prepared all his work. Unless that guy happens to have a law license. This happens all the time, people want to help their friends, but the friends are the ones who have to go to court and fight. Unauthorized practice of law can get you into trouble.
I agree with Legaleagle. If you help your friend with the Answer, make sure your friend understands and can explain every detail. If one doesn't understand a response, defense, or request and can't explain it, don't use it.

I am fully aware of that ::idea2:: and I informed him that he could go through my material but he would have to put it together and know it as he is the one who is going to have to do all of the talking. The debt is for approximately $800. I am going to call him and tell him he cant read the laws and court cases and understand them then he needs to pay them unless we all here can come up with some sort of method that would hopefully persuade them to withdrawl. The council the CA hired is Brumbagh and Quandale (spelling) in Omaha Nebraska and they are ruthless and dishonest as they can get.

Edited by RNT
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800 bucks? Transfer this to small claims court if it isn't there already. Or file for arbitration and watch them dismiss. You just made your job 100% easier. Very informal, no lawyers, etc. Usually this short circuits all the hard stuff like motions and discovery.

You got me interested but I always thought arbitration is a lose lose situation in most cases for the non lawyer. I also am curious why small claims may shut this down as well.:confused:

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I don't know why he is saying to file in small claims (maybe it is easier there) but the reason he says arbitration is that it is very expensive to go there. For $800 they proabably wouldn't want to spend all that money and maybe they would dismiss the case. Especially if you can pick JAMS as the arbiter. And if you are low income they may have to pay the fees also depending on your contract.

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You got me interested but I always thought arbitration is a lose lose situation in most cases for the non lawyer. I also am curious why small claims may shut this down as well.:confused:

It would cost them more to do arbitration than what they could win. That is before arbitration even gets going.

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Hi all, there have been no mailings to him by the debt collector and/or the attorneys in this case. The only thing he claims is the ca called him months ago with no letters whatsoever. Hey notgoingdown1 I wish I didnt have to help him but he has difficulty understanding and retaining anything he reads in the law. So I am going to have to look all this stuff up and possibly prepare his motions and/or answers.

Doing this stuff for him will kick the can down the road, but eventually he himself will have to argue it, That is why it is doubly important for him to learn the points you(oops I mean he) is arguing in court.

You are a good friend to help like this but if he goes in to the lions den without legal weapons we all know how that is gonna turn out.

he can post and we can help him to understand.

It is for this very reason I am thinking of withdrawing the pleadings and trial briefs I have posted previously, where people use them for formatting purposes they do well. When people just touch them up, file them, and have no understanding of the things the papers are trying to accomplish they are subject to bad outcomes.

I only posted this as a cautionary advisory, and not to impune anyone, For a good outcome you have to understand the many topics involved.

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You got me interested but I always thought arbitration is a lose lose situation in most cases for the non lawyer. I also am curious why small claims may shut this down as well.:confused:

Your friend should get a copy of the credit card agreement that was in effect at the time of default, and see what it says regarding arbitration. If it mentions JAMS (an arbitration forum), that's good.

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