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I'm gonna get sued by Discover & Guglielmo


scarab
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I didn't take these guys seriously until I started Googling them. I then decided I better get proactive and start researching this, just as I would any of my other projects.

I bought the full monty package from credit info center, and joined this forum as part of that pro-active thing I am now doing with my debts.

I would like your opinions and advice about what I should do and what I should expect.

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Received a letter dated December [early], 2011 stating that "Attorney placement pending" by Discover

Balance: $XXXX.XX [over $5000, less than $7500 small claims limit in my area]

Deadline was January [late], 2012. I admit, I did not take them seriously. It was before I found this site and educated myself and found out about the FDCPA (that they cannot threaten this unless they really intend to follow thru).

Last week, a new letter was received.

Letter is as follows:

Guglielmo & Assoc, dated Feb [early], 2012

PO Box 41688, Tucson AZ 85717

addressed to me

Creditor to whom the debt is owed: DB Servicing Corporation, the servicing affiliate for Discover Bank.

Original creditor: DB Servicing Corporation, the servicing affiliate for Discover Bank.

Debtor No: XXXXXX.XXX (Always use this number as a reference when calling or mailing our offic)

Principal Balance Due: $XXXX.XX [a couple of hundred $ more than the Dec letter]

This office has been retained to collect the above-referenced claim against you. THis is to notify you that Discover Bank has retained this firm to collect its claim against you for the balance owing on your Discover Card account.

Unless, within thirty days after receipt of this notice, you dispute the validity of the debt or any portion thereof, we will assume the debt to be valid.

If, within thirty days of your receipt of this notice, you notify us in writing that the deb or any portion thereof is disputed, we will obtain a verification of the debt or, a copy of the judgment against you, and we will mail to you a copy of such verification or judgement. If the original creditor is different from the current creditor named above, then upon your written request within thirty days of the receipt of this notice we will provide you with the name an address of the original creditor. We have not, nor will we, review the details of your account status, unless you do so request in writing. Please direct full payment to this office.

If you do not understand or have questions concerning your legal rights or obligations related to the debt, you should seek legal advice.

You are put on notice that we are attempting to collect a deb and any information obtained will be used for that purpose.

Guglielmo & Associates, PLLC

Attorneys for the plaintiff

---------------------------------

Bold, underline, italics are just like in the actual letter.

Here are some facts:

  1. I'm in Nevada
  2. One of the attorneys listed on the letter was admitted to NV state bar in 2010 (I checked). I found her address, phone and fax. She's in Las Vegas (Clark county).
  3. I called the NV Financial Institutions Division and they said says that if the lawyer says that they “have been retained to collect” the debt, and the lawyer is licensed by the NV state bar, they do not have to have a collections agency license in NV (NRS 649.020 section 2g -- I would link but I am new to this forum so it won't let me link).
  4. Wed or Thurs of last week I found this site and forum. I found the other posts related to Discover and Gugliemo. Apparently, they send out the letter I quoted above, then promply sue.
  5. Using the VOD strategy listed, I send the long VOD letter via certified mail (return receipt) to the Tucson address, and directly to the NV attorney that Gugliemo has on staff. I mailed these out last week. I also faxed the letter to the NV attorney.
  6. I pulled my credit report and my SO's from the big 3. Found inquiries by Gugliemo.
  7. As of today, I have not been served. I am going to the courthouse tomorrow to check to see if I have been sued yet, but I doubt it. In light of advise below, I will try to pull other similar cases.

If this goes to court, I think it will be small claims. I checked the court website and it says small claims limits are $7500 and that the plaintiff must use a licensed process server.

Questions for you all:

Should I expect to be sued and get served?

How likely is it that Discover/Gugliemo can prove VOD?

What exactly do they need to prove VOD in court?

My Significant Other and I have other debt that is in collections. THe next 2 questions have to do with that.

From what I can tell, its mostly JDB collection agencies. Will putting a "Freeze" on our credit histories at the big 3 credit bureaus prevent JDB collections companies from listing the debt that they buy from a previous JDB collection company (causing the same debt to be listed twice)?

One large debt is a medical bill from the hospital. A collections company has now listed that on my credit report. I am going to send a VOD letter, but we are already beyond the 30 days

--------------------------

Forum Required Questions (I will edit this post as my situation progresses)

--------------------------

1. Who is the named plaintiff in the suit?

DB Servicing Corporation/Discover bank

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Guglielmo & Associates

3. How much are you being sued for?

more than $55xx.xx less than $7500

4. Who is the original creditor? (if not the Plaintiff)

DB Servicing Corporation/Discover bank. May 10 2012 update: Summons says Discover Bank

5. How do you know you are being sued? (You were served, right?)

Hasn't happened yet (will edit this post as my situation develops)

May 10 2012 update: was served a summons today

6. How were you served? (Mail, In person, Notice on door)

Hasn't happened yet (will edit this post as my situation develops)

May 10 2012 update: served in person

7. Was the service legal as required by your state?

May 10 2012 update: I don't know if it was legal, but I am pretty sure it was. It was served on me personally (and I am of legal age).

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

See beginning of this post

9. What state and county do you live in?

Washoe county, Nevada. A search of the local courthouse shows lawsuits by G&A and this attorney.)

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Around July or June of 2011

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

4 years according to NRS 11.190

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

May 10 2012 update: suit served today. I don't know yet what motions were filed.

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

Sent VOD letter to Gugliemo late last week, waiting for my return receipts to come back

Sending the credit bureau dispute is next on my list of to-do items

EDIT: received my green cards back. Received a validation from G&A a few weeks later. See my posts below (03/24/2012)

May 10 2012 update: Have not disputed with the CRA's yet. Should I do this?

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

I hope I sent the VOD before the suit was filed. I am unsure how to check to see if the the suit was filed. I definitely did it before I was served. So far, nothing filed with the courthouse. I will keep checking regularly.

EDIT: Yes, I was able to send VOD letter before being sued.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

May 10 2012 update: I have 20 days starting tommorow. Paperwork says "do not count the day of the service".

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

May 10 2012 update:I was just served. Nothing included with the summons. See my post #67 in this thread.

http://www.creditinfocenter.com/forums/1166671-post67.html

I will check later for paperwork they filed to show evidence of service

Edited by scarab
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you can prep an answer just in case and use previous complaints in your local court as a guide.

Go on the courts website and check for recent cases then go over there and get a copy of the complaint from another case and make an answer to the complaint(we can help) also you may want to use any other kinds of pleadings to make them skirm. when looking at the case file find out the name of the default declaration signer this will probably be the same one in your potential case.

If you are not putting any new credit or doing any refinancing put a credit freeze to your credit reports. Notify that you request validation and basically have to wait for it. OR you can go with the Linda 7 arbitration strategy and crush them.

It sounds to me like they know you are on CIC and covering their azzez. So you are in a better position than 99% of the people that first come here.

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It sounds to me like they know you are on CIC and covering their azzez. So you are in a better position than 99% of the people that first come here.

I apologize if I gave that impression. THey definetely don't know as the above is my first post and I sent the VOD late last week. THey might know if they check CIC tommorow. I just edited out a lot of info that could be used to identify me, however, my city and county are not very large in population, so I suspect they aren't collecting on a lot of people in my area. They might be able to guess just because of the small number. I could be wrong.

Also, as a nice mid finger at Discover: I told my mother what was going on and she promptly cancelled her account yesturday 8-) She had a zero balance at that moment, so hopefully, they won't try to claim she owes money and then sue her. I would not be surprised if they tried.

They gave her a real hard time about cancelling, and tried to scare her about "it could affect your credit history" or something like that but maybe less neutral sounding (I wasn't party to the conversation with Discover, but suffice to say, they really did not want her to cancel). The way they treated her just confirmed for both of us that Discover are real &*($#

Edited by scarab
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you can prep an answer just in case and use previous complaints in your local court as a guide.

Go on the courts website and check for recent cases then go over there and get a copy of the complaint from another case and make an answer to the complaint(we can help) also you may want to use any other kinds of pleadings to make them skirm. when looking at the case file find out the name of the default declaration signer this will probably be the same one in your potential case.

If you are not putting any new credit or doing any refinancing put a credit freeze to your credit reports. Notify that you request validation and basically have to wait for it. OR you can go with the Linda 7 arbitration strategy and crush them.

Awesome info, thank you!

I just checked the court website and I could not find anywhere to search cases. I may have to go to the courthouse in person and request files.

I have searched the county courthouse files before, but I always knew the case number and got that from legal notices in the paper. Small claims court is at the city courthouse, and not the county courthouse. I have never searched or pulled files from that court. Anybody know the general procedure?

I will have to research the "Linda 7 arbitration strategy". I have no idea what that is. I have heard that arbitration panels/judges are in the pockets of the creditors or CAs, so is arbitration advisable?

We don't plan on refinancing anything for some time. Truth be told, we were ready to write off our credit histories for the next 7 years. This site and forum gives me renewed hope, however, its lower priority. We will freeze our histories for now (and dispute).

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Discover has private arbitration that is available to you...most likely JAMS. This means if and when you are sued, that will need to file a motion to compel arbitration per the cardholder agreement.

It's horrifically expensive for the creditor - but your fees are capped - generally $250.

It puts them in a corner - if they fight to have to attempt to have the court void the arbitration clause...if they are successful, then you raise the point that you need to void parts of the agreement too...

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Discover has private arbitration that is available to you...most likely JAMS. This means if and when you are sued, that will need to file a motion to compel arbitration per the cardholder agreement.

It's horrifically expensive for the creditor - but your fees are capped - generally $250.

It puts them in a corner - if they fight to have to attempt to have the court void the arbitration clause...if they are successful, then you raise the point that you need to void parts of the agreement too...

Good to know, thanks! How do I know which agreement they are using? I mean, from what others have said on this forum, they try to use the most recent version of their agreement, even if it is one I have never agreed to.

May 10 2012 update: the contexte CourtConnect site linked to in the previous post did not help me in my case. I kept checking there, but that site only returns county cases filed. My case was filed at Reno Justice Court, probably because the small claims limit is $7500, and their complaint is below that.

Edited by scarab
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Many of Discover's other cases list other lawyers and other law firms besides G&A

The system allows me to search via bar number, so I did that for the specific attorney listed on the G&A letter.

In one case, I found the name/address of an attorney local to me, in addition to the G&A attorney. Looks like they refer to a local attorney

Edited by scarab
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Ok, I have gone through a number of their cases. The situation I cited above: referring the case to a local attorney, appears to be unusual. Usually the Las Vegas attorney is listed as the only attorney for the plaintiff.

Most of the cases I found were either still open, or there was a default judgement against the defendant. They list the amount + statutory interest from date of judgement, atty's costs and atty's fees, which are sometimes very high. I'm not sure about this, but it appears to me that default judgements against the defendant always result in them paying attorney's fees and costs?

Also, most of the cases were above the small claims court limit of $7500, so I assume these went to 'regular' civil court?

If I go to small claims court and lose, am I automatically stuck for atty's costs and fees?

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Ok, I went to the courthouse and looked through some past files. Found a couple that were dismissed without prejudice (no cases with this plantiff that were dismissed with prejudice). Its a bit hard to tell, but I think they were dismissed because the defendant could not be served, so the plaintiff's attorney moved for default judgement, but the judge gave them 30 days to serve, and they could not, so the judge dismissed.

Found out a lot of other stuff, but all of it I had to infer from the filed cases.

Anyway, I also pulled a recent complaint and summons as seadragon asked. I posted it to a PDF filesharing site. I will attempt to post the link here, but I will have to modify the link because this forum software will not let me post an actual hyperlink.

I blanked out the identifying information in this file. Its not my suit, but I wanted to protect the innocent 8]

G_andA_example1

Edited by scarab
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  • 1 month later...

Ok some updates.

I've been checking the court often and nothing filed against me. Did find other new lawsuits filed by G&A against other people, so they haven't slowed or stopped suing people in my area.

Weeks ago, received a response to my VOD letter.

As an aside note: I belive there is a G&A employee reading this forum, and posting on this forum. Post #4: http://www.creditinfocenter.com/forums/there-lawyer-house/312121-being-sued-guglielmo-associates-portfolio-recovery-associates-need-advice.html

Re: Discover Bank

Orig Creditor: Discover Bank

Debtor No: XXXXX

Pursuant to your request, enclosed please find a validation of the above-referenced deb. The amount which as been demanded is what Discover Bank is claimin is owed. Please contact _____[someone at G&A] at ext ___ to discuss your account.

Sincerely

[illegible signature]

GUGLIELMO & ASSOCIATES

[mini miranda at bottom]

Items in [] are added by me.

Included was a statement from Discover Card, showing an Internal Charge off earlier this year, for the amount they claim I owe. It wasn't a photocopy, and appears to have come from Discover directly.

That was all. Nothing with my signature on it.

Edited by scarab
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Some time later, I then received another letter:

items in [] are comments I added. Bolded stuff is as it appears on letter.

Re: Discover Bank

Balance Due: $______ as of today [same amount as before]

Debtor No: XXXXX (always use this number as a reference when calling or mailing our office.

We recently sent you a letter in an attempt to collect the above outstanding balance. As you should be aware our office was hired to collect the debt you owe. We have received information that you are employed, own property, or you fit criteria which makes your account otherwise suit worthy.

Additionally, we tried to contact you by telephone and were unsuccessful in making arrangements for payment. Our client has authorized us to file a lawsuit if necessary. However, we would like to offer you the opportunity to take care of your financial obligation during these tough times. Settling this matter before suite will avoid having you serviced with the lawsuit at work or at home.

if our office determine that you are unwilling to pay, and it is necessary to file a lawsuit against you, we will request the court to enter a judgement ageist you. If a lawsuit is filed, our office will request court costs for filing fees incurred and service of process fees. Further, if authorized by our client we would also request the court to aware any attorney's fees recoverable.

Should you decide you would lie to avoid unnecessary litigation and the related costs, you should contact our office to discuss your options. Your prompt attention to this matter is imperative.

You recently received a letter, which referenced your rights under the Fair Debt Collection Practices act. This letter does not limit your rights under this act. If you wish to exercise your rights under the fair debt collection practices act please do so in writing to our office.

[Mini Miranda here]

Sincerely,

Gugliemo & Associates, PLLC

Mar 28 2012 EDIT: I received this most recent letter more than 30 days after G&A received my DV letter (I have green cards with date).

Edited by scarab
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Problem is that Nevada is a community property state. They can come after either one of you for marital debts. Going up against an OC with a one year old default? Chances of winning? Not very good. They will have the paperwork to beat you if this account is less than ten years old. What is your defense?

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Some more background info:

I've been unemployed since Oct of 2011. G&A can call my previous employer (which I am sure they found when they ran my credit report, as it is on there) all they want to confirm.

My previous employment did not include W-2 wages, therefore, I did not pay into unemployment, therefore, I am not eligible for unemployment, so I haven't bothered to apply for it.

I'm doing various odd jobs to make ends meet now. Still no w-2 wages to garnish.

I homesteaded my home back in 2006. Homestead exemptions in NV is $550,000.

it doesn't matter too much, however, because I am upsidedown by $125,000 to $150,000.

I've been busy over the past month. I have a couple of rentals (one my mother lives in), and have moved title into a trust. In both cases, they are underwater anyway. One by $155,000, and the other by $10,000. For non-financial reasons, I cannot sell either property, so moving them into a trust made the most sense.

That leaves vehicles and personal property. NV has some exemption amounts, for this, but here is the reality. Our newest vehicle was made before 2000, with a book value of around $4000. All of our other vehicles are much older, including one car that has no engine, trans, left headlight assembly (popup headlights), or right side front axle/hub/brakes/bearings, and no rear axles at all. I estimate its worth $200, though it books at $2000-$3000. I paid $800 for it before removing the trans/engine, headlight, and axles and interior. Good luck towing that one. Actually be doing me a favor there!

I found out that costs to have the Sheriff seize vehicles can be $2,000 to $3,000 per vehicle.

Edited by scarab
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Problem is that Nevada is a community property state. They can come after either one of you for marital debts. Going up against an OC with a one year old default? Chances of winning? Not very good. They will have the paperwork to beat you if this account is less than ten years old. What is your defense?

I've looked at their prior filings against other people in my area. I have only found cases where they filed a recent cardmember agreement (nothing signed, just a copy of the booklet) and mulitple months of credit card statements. I haven't found any cases where the person being sued fought back. They received the summons by process server, didn't respond or go to court, so Discover won default judgement.

I didn't find any cases where Discover filed a copy of a signed application.

I'm not sure that's a good enough defense, but I don't see many options.

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I should mention something else for the G&A employees that seem to be reading and posting to this forum:

Part of the reason for my financial difficulties is because a previous employer of mine provided fraudulent (and unlicensed in NV) heath insurance to me. I had an accident, and have HUGE HUGE medical debt now, as the "insurance" did not pay. The amount of med debt is enough to buy a house.

I have sued the previous employer (found contingency attorneys), and we have a lawsuit pending. Recently received an offer (not enough), but we are going to push for mediation.

In other words, I'm not afraid to fight.

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Had 2 dealings with Discover. They will probaly have the original signed application and all the statements. (At least they did of mine).

We beat them on appeal in Ky by ownership. They sued me as Discover c/o DFS Services, Inc. The agreement Discover sent did not confirm that DFS services could sue me because Discover did not assign or authorize DFS to do so.

That may be your only defense, and a bad case in court will be a bad case in JAMS. Discover does have JAMS in its' agreements.

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Good to know, thanks! How do I know which agreement they are using? I mean, from what others have said on this forum, they try to use the most recent version of their agreement, even if it is one I have never agreed to.

Cardmember agreements state that your use of the card indicates your acceptance of the terms and conditions. Have you ever received one of those little folded up papers along with your cc statement or in a separate letter from Discover? That paper contains amendments to the terms and conditions.

Every time you use your card, you agreed to the terms of the applicable agreement. The applicable agreement to your case would be the one that was in effect when your account went into default.

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If you sent them a DV letter and they sent you the letter in post #12, you've got an FDCPA violation - continued collection in violation of 1692g.

I'd consider filing suit against G&A.

I hope you are right about this. They also pulled my credit and that's a violation of the FCRA

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I hope you are right about this. They also pulled my credit and that's a violation of the FCRA

They validated the debt when they sent you the statement from Discover. They didn't violate the FDCPA when they sent the second letter.

When did they pull your credit report?

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They pulled it when they sent their first letter (the date they put on their first letter). One of the credit bureaus says they pulled it 2 times in one day, and one time a couple of days later. This is listed on my report in the section: "Inquiries only shared with you".

I don't know if they pulled my credit with the other 2 bureaus. I don't see them anywhere on those reports.

I'm not sure if they pulled it again after that. I froze my credit since then, and I haven't checked it since.

Edited by scarab
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