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Do I have a counterclaim?


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I could use anyones advice.... I am trying to answer a summons and I'm not sure if I have the correct affirmative defense and whether or not I have a counterclaim. This is what the case is:

1. Who is suing you?

Attorney for collection agency suing for two seperate small medical bills.

2. For how much?

$326.66 + interest & $401.00 + interest and $242.00 in attorney fees

3. Who is the original creditor?

Two seperate medical offices

4. How do you know you are being sued?

Summons

5. How were you served? Were you served?

My husband was served when he pulled up at home from work

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

The only correspondence I had was with disputes through the credit bureaus. I tried sending them a PFD CMRRR to the address listed on my credit report but it was returned saying "moved"

7. Where do you live?

Idaho

8. When is the last time you paid on this account?

Late in 2008

9. What is the status of your case

5 years I believe

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes, Multiple times with the credit Bureaus. They are actually reporting one debt for over $728 on my credit report. It says original amount $326 in 2009 and new balance $728 which is much more than evn allowed to be charged with interest etc.. in our state. Every time I disputed it, It came back verified or updated with an even higher amount. Now they are only suing for the legally allowed amount...$326 + 12.5% interest.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

Tried. Letter sent CMRRR was returned to me. It was sent to address that is still being used on my credit reports though.

12. Does your summons require a response in writing?

Yes within 20 days

13. What evidence did they send with the summons?

A signed affidavit from the Vice President of the collection agency saying the info is correct......

14. What is the SOL on the debt? To find out:

5 years

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The only defense I could think of right now was lack of standing because I have nothing showing that these people have any right to collect for either of the OC's. I was trying to find some defense as to the amounts owed because I have no idea how they came to those amounts (especially since they are reporting different amounts on my credit reports.)

And no, they are not tied together in any way. I guess the collection agency just got lucky to get them both. I was under the understanding that my insurance had covered both of these except for my co-payment that they had me pay at time of service.

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Lack of standing is a good argument. The part about how they got to the amounts they are alleging is something you will get from them, assuming you ask, in discovery.

You defiantly want to get them to explain and show documents on how they are arriving at the amount they allege. You might want to counter their affidavit with your own. Sometimes undisputed or unchallenged evidence can be deemed admitted, even if not sadmissible at trial, if you fail to dispute.

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Thank you for the replies. If I counter their affidavit with my own, is that something I need to do now with my answer?

I would counter it in the same way they offered their affidavit. So in your case, yes. However, in my opinion, not required, just a timely dispute/counter argument.

What you're wanting to stop is them using that affidavit in a motion for summary judgment. The very fact you file your own counter affidavit makes that an issue of dueling affidavits and therefore an issue for trial, on that specific issue of what is contained in the affidavit.

I would not spend a bunch of time and energy on it. It's just to defeat summary judgment. Like their affidavit, nobody is going to pay attention to your affidavit. It's just part of the game. The same reason the other side will ask you in an admission if you admit to owing the amount in the complaint. They don't expect you to admit it, they hope you will not address it and it become deemed as admitted.

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  • 1 month later...

I filed my answer to this suit using lack of standing as a defense. I received a letter back from the attorneys office with their evidence attached. I would love any advice. This case was for two seperate small medical bills, they sent me a statement from both offices showing how my balance reached that amount but the last note on each statement just said "charged off" nothing about it going to the collection agency. They also sent in a copy of their agreement with these doctors offices to collect on their behalf (half of it was blacked out) but it was a general agreement, nothing showing my name or my account specifically was sold or transferred to them. One was even dated 4 years before my account was even active.

Do you believe this still proves they are in ownership of my account? Also I have been trying to see if I am allowed to file a counterclaim after my original answer was submitted. I cant find this info anywhere (I'm in Idaho.) The documents they sent me clearly shows the balance as $326 which is what they are suing me for plus interest but they have been reporting the balance as over $700 on my credit report. I have disputed this with all three bureaus a couple times and they always come back verified. I thought I may have a chance at an FCRA violation for reporting incorrect information, but Im not sure if it's too late.

If anyone has any ideas, I would appreciate it.

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It is not clear who is suing you. The plainitff on the summons is who? The lawyers who represent them in court are not the plaintiff. Collection agencies hire lawyers to sue, but they do not own the debt as a rule, they are hired guns for the owner. They get a percentage.

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Guest usctrojanalum

You need to tell us who is listed as the plaintiff on your summons.

I have a feeling that you confusing the difference between a plaintiff's attorney, collection agency and a JDB.

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You need to conduct discovery if you have been sued. Send them these requests for documents. The format for discovery should be on line, or someone here can provide it. Also, start reading the rules of procedure for your state.

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

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