Jump to content

Being sued in Texas by Debt Collector, they didn't Validate when requested within 30d


Recommended Posts

See below (other notes: I live in Collin County, TX, .. both Midland and the attornys suing me are in Lubbock, TX which is about 350miles away from me)

1. Who is the named plaintiff in the suit?

Midland Funding LLC

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

Jenkins, Wagnon & Young, P.C.

3. How much are you being sued for?

$50,000 or less is sought, ($20,xxx.xx + interest from 11/14/11 + attorney's fees + post judgement highest interest rate allowed

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

Chase Bank (Cardmember Services)

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

I was served

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

In person

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

I believe so

Process Service Requirements by State - Summons Complaint

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

They (Jenkins, Wagnon, & Young) sent me a demand letter on 11-15-11. I sent a written letter of validation of debit on 11-30-11 (registered mail). I received a response saying " I have received and reviewed your letter and I am now advising you of the denial of any inaccuracy regarding your account....... YOU ARE PUT ON NOTICE THAT WE ARE ATTEMPTING TO COLLECT A CONSUMER DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR.".... no other letters and no validation was sent to me. The next I heard from them was being served with the lawsuit.

9. What state and county do you live in?

Texas, Collin county

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

Around June of 2009

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

I believe four years

Statute of Limitations on Debts

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).

Pending

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

I disputed with the bureaus against Chase and Midland Funding LLC (company that bought the debt from Chase)

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.

YES, see #8 above

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?

I was served on 2-18-12 and I have 20days + Monday to file an answer (should be 3-12-12 as the deadline)

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

They did not add any evidence at this point. In the lawsuit they just named the credit card number

Edited by Chevy_Muscle
Link to comment
Share on other sites

What are my options? Any help would be greatly appreciated?

Can I sue (or counter sue) for vilation of the FDCPA? I read USC Title 15 Chaper 41 Subchapter V 1692g(B) seems to require that they stop collection ativities until they validate. Right?

They sent the letter attached (not a validation) and they sued me on Jan 20th. Is that two collection ativities that they should not have been able to do until they validated the debt?

What do I do at this point?

Link to comment
Share on other sites

They're supposed to sue you in the county in which you reside. You would either request a change of venue, or file a dismissal based upon improper venue. Others here on the boards would know better about that than I do.

Regarding the validation, they don't have to respond in 30 days. The 30 day notice has to do with your request being sent in that time frame. You did that. In addition, the law doesn't state that they can't file suit if they haven't validated.

Did the attorney's letter include the name of the original creditor and the amount of the debt? If so, the debt has been validated. They are not required to include the other things you requested in your letter.

Link to comment
Share on other sites

They're supposed to sue you in the county in which you reside. You would either request a change of venue, or file a dismissal based upon improper venue. Others here on the boards would know better about that than I do.

They did sue me in my county. I'm sorry if that was a missunderstanding.

Regarding the validation, they don't have to respond in 30 days. The 30 day notice has to do with your request being sent in that time frame. You did that. In addition, the law doesn't state that they can't file suit if they haven't validated.

Okay, thank you for that information. Isn't fling suit an act of debt collection?

Did the attorney's letter include the name of the original creditor and the amount of the debt? If so, the debt has been validated. They are not required to include the other things you requested in your letter.

They did indeed name the original creditor and "As of this date you owe $22,xxx.xx" .. that's all they need to validate? Just name a company and a number?

Edited by Chevy_Muscle
Link to comment
Share on other sites

That is all they are required to furnish as debt validation. Name and address of the original creditor and the amount. By the way, I'd change that number pronto in your post, round it off. Their lawyers monitor this site. Suing is not debt collection. If you want the real info as to how to pursue FDCPA claims, look at Coltfan1972's posts, he has sued numerous creditors for violations.

Link to comment
Share on other sites

Okay, thank you for that information. Isn't fling suit an act of debt collection?

We might consider an act of collection, but courts have ruled that nothing in the FDCPA prevents a lawsuit when a debt has not been validated. But, in your case, the debt was validated.

They did indeed name the original creditor and "As of this date you owe $22767.84" .. that's all they need to validate? Just name a company and a number?

Yep, that's all that's needed. The purpose of validation is to make sure that a debt collector is contacting the correct debtor and that the information regarding the debt is correct. That information would be the name of the OC and the amount.

Requesting that they prove the existence of a contract or date of last payment has nothing to do with whether or not you're the correct person, had an account with the OC, or that the amount is accurate.

Link to comment
Share on other sites

Just to make sure its clear...what they provided is all that is required by the FDCPA. That doesn't mean its sufficient for them to win a lawsuit. You have a right to request (i.e., "discover") much more information in court. Its up to the judge to decide, by the preponderance of evidence, whether or not you owe these people any money...and, whether or not they have broken any laws in trying to collect it.

Link to comment
Share on other sites

I can't recall the exact facts, but, under TX law I belive that when you DV someone and you cite a certain TX statue, they must respond within the 30 day period. I have it on my computer some where, will try and find it.

Found it, it goes as follows:

Write out a TEXAS style DV.

Mine go something like this:

your address

acct number xxxxx

To whom it may concern,

I received a (letter, reviewed my credit reports etc) on xx day for an alleged debt you say I owe.

I am a resident of Texas

I demand validation under the Texas Finance Code 392.

All calls to my home or work are inconvenient.

Any prior express consent to call my cell phone is now REVOKED.

You have 30 days to validate OR remove the derogatory trade lines per my demand.

Any alleged debts possibly owed would be considered time-barred.

Govern yourselves accordingly.

PRINTED NAME HERE.

You can leave out the SOL defense and let them prove to you that it is time barred. Also place a call to the TXSOS to see if they are current on their franchise taxes, and IF they're bond is current, and the name they are collecting under is also registered as an "alias"

Sent the letter CMRRR

Hope this helps someone. :wink:

Edited by TomnTex
Link to comment
Share on other sites

Tom,

You're referring to Sec. 392.202. CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. I searched some case law and couldn't find anything that connected that statute to debt validation. It could be the reason is because the statute doesn't mention validation. It's about disputing inaccuracies in a debt collector's files.

I'm not a TX resident, so it might be best to contact a consumer attorney to ask about the statute as related to debt validation...not disputes of inaccuracies. Maybe the following link to the TX Attorney General's website would help. It mentions disputing what information about collectors have about you, but it doesn't say that the law includes validation.

https://www.oag.state.tx.us/consumer/debt_collection.shtml

Link to comment
Share on other sites

Thanks BV I was in a rush to get to town and only read it through without thinking. If I am not mistaken though, there is something about DV'ing withing the thirty days and getting a responce back within that time frame. I will continue to look because I had to use it.

SOL is the statute of limitation in which they can try and sue you. For TX it is four years. Do not pay or promise to pay unless you want to restart the SOL clock. Look in the headings above to find things. CMMRR is certified mail return receipt, the green card. Always use this as proof of mailing.

GO HERE for a list of abbrevations:

http://www.creditinfocenter.com/forums/please-read-before-posting-board-announcements/247970-commonly-used-abbreviations.html

Edited by TomnTex
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.