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Need advice trying to shut down case quickly


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Being sued by JDB for an amount not owed. I purchased $2,200. in furniture in 2003. The company went Bankrupt the next month. I purchased $500. in extended lifetime warranties for the care of the furniture which is part of the debt they are suing me for(which were not honored; I have proof of this with original receipts) Needless to say I was very angry, I would not have purchased that expensive of furniture without warranties. After only a month the sofa needed repair and I couldn't get anyone to help only the liquidators were at the store. I then tried to give the furniture back but there was no one to give it to. Damages to sofa that would have been covered by the warranty were approximately $900.( I have receipts of this also) I also have the original written warranty that shows what is covered and what is not, my damaged are.

I also signed an agreement with the OC for 0% interest for 36 months. Once the new company took over that was not honored either. I was told after numerous attempts to get the original agreement in 2003 that they did not have it. I was young and naive and believed that nothing else could be done at the time. I disputed the debt and interest rates but kept paying as they told me it would negatively affect my credit if I didn't. So I paid for 5 years on the acct. In that time I paid upwards of $2,000 or more in interest including the amount they are suing me for as well as paid for warranties I never received and damages to my sofa.

Health problems developed 3 years ago and I was no longer able to pay the monthly payments, the amount they are suing for is $1,000.( with the zero percent interest this debt has been paid) Nothing is owed on this acct. Sorry for the rambling, my question is...I know I can go through Discovery and make them produce the documents and eventually get the case dismissed but with recent health problems and a upcoming surgery I need to close this fast.

I have filed an answer and Sworn Denial, the only evidence they submitted is an affidavit that is hearsay. I plan to file a Motion to Strike. What else can I do with this to get this dismissed faster? They do not have the original agreement I requested it many time years earlier which is required by the Statute of Frauds I know they do not have anything else, the amount they are claiming isn't even the last amount claimed by the first JDB that had this debt. It is now $300-400 more.

Would a BOP work in this situation? I do not know anything about it or how to use it. Any advice would be greatly appreciated. How do I get this case dismissed now for lack of evidence/ reality quickly? They also just sent me their first Discovery. I have also explained this situation to the atty representing the JDB but he is not interested if the money is owed or not. An original agreement exists in this case and it is required by law that when a valid original agreement exists they can not get more than is provided for in the original agreement. If it were produced they would owe me money.Thanks for any help.

Edited by Justicewanted
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If they are scared of you, they might go running, but the real answer to your question is that there is no surefire way to make things go away quickly. If you get in a rush to get this taken care of, they will take advantage of you. If you want to win, slow down and prepare to make them bleed money for a case that they are not guaranteed to win. If they have no original agreement stating that they're entitled to attorney's fees, they'll probably have a hard time collecting them from you. They're suing you for $1k? Make them spend $30k collecting it.

Also, most states do not have a BOP. Before you send one, you need to make sure IL has provisions for it. If not, you still have discovery to hammer them with.

Edited by usagi555
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The only way to get a case resolved quickly is to settle. Getting the JDB to dismiss can happen, but it doesn't always happen quickly.

The JDB must prove they own the account. If they can't prove they purchased your specific account, game over. They have no standing to sue.

Who is the JDB claiming is the original creditor? The bankrupt company from whom you bought the furniture, or the company who took them over?

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When a new company takes over and still continues to service the old accounts they are bound by the contracts of those accounts, and they can not change the terms.

Hit them with breech of contract suit.

I am not real good with contract law I have not taken that class as of yet. But I think that if you sue for breech you can sue for the total dollar amount you have given them during the contract.

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The breach of contract basically what I was going to get at. :) That's why I asked who the JDB claimed is the original creditor. If the JDB claims to step into the shoes of the original creditor and is afforded all the rights of the original creditor, the JDB should be bound by the terms and conditions of the contract just like the OC.

If they can't provide a copy of the contract, they have no proof a contract existed, nor do they have proof that they stepped into the shoes of the creditor with the same rights as the OC.

Also, since this was with a furniture company, is this the type of contract that's required to be in writing and signed and would fall under the statute of frauds?

Edited by BV80
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The breach of contract basically what I was going to get at. :) That's why I asked who the JDB claimed is the original creditor. If the JDB claims to step into the shoes of the original creditor and is afforded all the rights of the original creditor, the JDB should be bound by the terms and conditions of the contract just like the OC.

If they can't provide a copy of the contract, they have no proof a contract existed, nor do they have proof that they stepped into the shoes of the creditor with the same rights as the OC.

Also, since this was with a furniture company, is this the type of contract that's required to be in writing and signed and would fall under the statute of frauds?

beat me to the punch but here is another thing conditions precedent, this will offset the recovery because you have an insurance claim they have to honor it. You can counter claim for breach of contract, fraud, and any other good things. You said you made a large number of payments, were those consistant with paying the amount due without interest? then you have quite a case. I would, if in your shoes, demand a full accounting because according to your calculations the debt was payed.

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beat me to the punch but here is another thing conditions precedent, this will offset the recovery because you have an insurance claim they have to honor it. You can counter claim for breach of contract, fraud, and any other good things. You said you made a large number of payments, were those consistant with paying the amount due without interest? then you have quite a case. I would, if in your shoes, demand a full accounting because according to your calculations the debt was payed.

If no copy of the contract can be provided, wouldn't it be difficult to use breach of contract as a counterclaim? Don't you have to be able to show there was a contract and the terms in it? It's the same as the JDB claiming breach of contract, but they don't have copy of it.

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The JDB suing is a 5th party debt collector to the original. When the original company went Bankrupt all accts were transferred to another company. Then when I defaulted 5 years later it was sold to several JDBs. Lacks standing was one of my defenses; however I am sure that a Affidavit written by someone that works from the law firm suing is not enough, and I am sure that there is some way to file a MTD along with my Motion to Strike on grounds that they have nothing and this is a waste of my time and the courts time.

At Zero percent interest, that was the agreement I signed. The Debt was payed off 2 years before I quit making payments. As far as a counter claim goes if anyone can tell me exactly how to do that or direct me where to go to see examples etc. I have never done one. I have several violations to use, if I had time to research how to file one properly and with my upcoming surgery do not have the time. I also should tell you that I did receive a settlement from the Bankruptcy court in the amount of $1,000. the problem is, that did not cover all my costs or address the zero percent interest not being honored. I was told since I did not have the agreement it could not be addressed by the Bankruptcy court. With the Bankruptcy settlement I Don't think I am able to sue for the issues addressed in the settlement.

Thanks to all who answered let me know if you have any other ideas. I still need advice. With everything I ended up paying $1,200 too much in interest not counting the $1,000 or so they are suing me for, then $900. on repairs that should have been covered by my warranty. $500. in extended warranties never honored.If they were to win their suit I would have overpayed a total of $3,600.00. Subtract the $1,000 settlement. I overpayed $1,600 not including their $1,000 suit amount. I am also filing complaints with the BBB and the FTC for violations after my surgery when I have time. I am really getting pissed off, when this is all done I am going to write about this collection company wherever I can and file complaints everywhere that will take them.

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If no copy of the contract can be provided, wouldn't it be difficult to use breach of contract as a counterclaim? Don't you have to be able to show there was a contract and the terms in it? It's the same as the JDB claiming breach of contract, but they don't have copy of it.

It is a type of contract that has to be in writing. The Statute of Frauds applies here. I would guess for the counterclaim Evidence would be required, I have the warranty info and receipts but no contract, by the time I realized I didn't have one in the stack of papers they gave me it was a month later and they were Bankrupt and closed.

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The JDB suing is a 5th party debt collector to the original. When the original company went Bankrupt all accts were transferred to another company. Then when I defaulted 5 years later it was sold to several JDBs. Lacks standing was one of my defenses; however I am sure that a Affidavit written by someone that works from the law firm suing is not enough, and I am sure that there is some way to file a MTD along with my Motion to Strike on grounds that they have nothing and this is a waste of my time and the courts time.

At Zero percent interest, that was the agreement I signed. The Debt was payed off 2 years before I quit making payments. As far as a counter claim goes if anyone can tell me exactly how to do that or direct me where to go to see examples etc. I have never done one. I have several violations to use, if I had time to research how to file one properly and with my upcoming surgery do not have the time. I also should tell you that I did receive a settlement from the Bankruptcy court in the amount of $1,000. the problem is, that did not cover all my costs or address the zero percent interest not being honored. I was told since I did not have the agreement it could not be addressed by the Bankruptcy court. With the Bankruptcy settlement I Don't think I am able to sue for the issues addressed in the settlement.

Thanks to all who answered let me know if you have any other ideas. I still need advice. With everything I ended up paying $1,200 too much in interest not counting the $1,000 or so they are suing me for, then $900. on repairs that should have been covered by my warranty. $500. in extended warranties never honored.If they were to win their suit I would have overpayed a total of $3,600.00. Subtract the $1,000 settlement. I overpayed $1,600 not including their $1,000 suit amount. I am also filing complaints with the BBB and the FTC for violations after my surgery when I have time. I am really getting pissed off, when this is all done I am going to write about this collection company wherever I can and file complaints everywhere that will take them.

You have good issues on this and may get alot of money for this case. For the counterclaims I would have to look inti the requirements for your state. Google is a good resource and try the consumer protection attorneys on the NACA site for your state.

If you don't have time then this could go bad for you, It is going to take time to straighten this all out.

You could list some affirmative defenses like Accord and Satisfaction, Lack of standing, and some of the contract based ones. also I don't think counterclaims are that hard to do.

But with an attorney the court and the plaintiff's are going to fast track this into a check for you.

This shows counterclaim must be plead in answer or near it.

Is a Defendant Barred from Filing a Counterclaim After a Delay of One Year from the Filing of Second Amended Complaint by the Plaintiff? — Legaloutsourcing,LegalEaseSolutions,LegalResearch

http://www.querrey.com/assets/attachments/229.pdf

Edited by Seadragon
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The breach of contract basically what I was going to get at. :) That's why I asked who the JDB claimed is the original creditor. If the JDB claims to step into the shoes of the original creditor and is afforded all the rights of the original creditor, the JDB should be bound by the terms and conditions of the contract just like the OC.

If they can't provide a copy of the contract, they have no proof a contract existed, nor do they have proof that they stepped into the shoes of the creditor with the same rights as the OC.

The JDB claimed the original creditor to be the company the debt was transferred to after the OC went Bankrupt they do not even know who the OC really was. You are right they should be bound by the contract also but getting it is the problem. I explained more about my situation in my last post.

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The JDB suing is a 5th party debt collector to the original. When the original company went Bankrupt all accts were transferred to another company. Then when I defaulted 5 years later it was sold to several JDBs. Lacks standing was one of my defenses; however I am sure that a Affidavit written by someone that works from the law firm suing is not enough, and I am sure that there is some way to file a MTD along with my Motion to Strike on grounds that they have nothing and this is a waste of my time and the courts time.

At Zero percent interest, that was the agreement I signed. The Debt was payed off 2 years before I quit making payments. As far as a counter claim goes if anyone can tell me exactly how to do that or direct me where to go to see examples etc. I have never done one. I have several violations to use, if I had time to research how to file one properly and with my upcoming surgery do not have the time. I also should tell you that I did receive a settlement from the Bankruptcy court in the amount of $1,000. the problem is, that did not cover all my costs or address the zero percent interest not being honored. I was told since I did not have the agreement it could not be addressed by the Bankruptcy court. With the Bankruptcy settlement I Don't think I am able to sue for the issues addressed in the settlement.

Thanks to all who answered let me know if you have any other ideas. I still need advice. With everything I ended up paying $1,200 too much in interest not counting the $1,000 or so they are suing me for, then $900. on repairs that should have been covered by my warranty. $500. in extended warranties never honored.If they were to win their suit I would have overpayed a total of $3,600.00. Subtract the $1,000 settlement. I overpayed $1,600 not including their $1,000 suit amount. I am also filing complaints with the BBB and the FTC for violations after my surgery when I have time. I am really getting pissed off, when this is all done I am going to write about this collection company wherever I can and file complaints everywhere that will take them.

BBB & FTC are useless. The FTC only goes after companies that have many, many complaints against them or for violations that are far more serious. The BBB does nothing. The most effective kind of complaint is the kind that you send to the courts, then send to them.

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If you don't have time then this could go bad for you, It is going to take time to straighten this all out.

You could list some affirmative defenses like Accord and Satisfaction, Lack of standing, and some of the contract based ones. also I don't think counterclaims are that hard to do.

But with an attorney the court and the plaintiff's are going to fast track this into a check for you.

I used the Accord and satisfaction also and lacks standing. I will try contacting one of the Attys next week on the NACA website. The problem for the counterclaim is I do not have the original agreement, I do have a pamphlet I saved from the OC. I don't think this will help much but it does have the six month period the promotion was valid for listed on it. Months and year and it was during that time period I purchased the furniture. Thanks

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I used the Accord and satisfaction also and lacks standing. I will try contacting one of the Attys next week on the NACA website. The problem for the counterclaim is I do not have the original agreement, I do have a pamphlet I saved from the OC. I don't think this will help much but it does have the six month period the promotion was valid for listed on it. Months and year and it was during that time period I purchased the furniture. Thanks

They usually show the 0% for 3 years language in the print ads in the paper. also check for other lawsuits against the OC they may have the contract exhibit. a really good look for the paperwork could help also. The payments you made shoud havehad billing statements originally that show it. There could be an action for spoilation of evidence. and any dispute would show that the payments were paid under protest. The BK action could have good evidence in it. More than one way to skin a cat.

This is looking better and better for you. I would also throw in IIED, and failure of fair dealing and some violations of FCBA(fair credit billing act) just to up the ante.

So showing the terms would help alot.

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You have good issues on this and may get alot of money for this case. For the counterclaims I would have to look inti the requirements for your state. Google is a good resource and try the consumer protection attorneys on the NACA site for your state.

If you don't have time then this could go bad for you, It is going to take time to straighten this all out.

You could list some affirmative defenses like Accord and Satisfaction, Lack of standing, and some of the contract based ones. also I don't think counterclaims are that hard to do.

But with an attorney the court and the plaintiff's are going to fast track this into a check for you.

This shows counterclaim must be plead in answer or near it.

Is a Defendant Barred from Filing a Counterclaim After a Delay of One Year from the Filing of Second Amended Complaint by the Plaintiff? — Legaloutsourcing,LegalEaseSolutions,LegalResearch

http://www.querrey.com/assets/attachments/229.pdf

just updating

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