Preparing for possible collection lawsuit

[softwareguy]

Being sued by a lawyer representing a certain credit card company for an account I have no recollection of. Not yet served a summons. Discovered by looking at court records. I want to get a head start on formulating my defense. I plan to vigorously defend this one as I do not want a default judgement on an account that I have no recollection of AND that would most likely be out of SOL if it were proven to be my account somehow.

Facts on complaint:

1) Dollar amount they claim I owe

2) No account number

3) Claims I entered into WRITTEN agreement with credit card company on or around March 2008

4) No evidence of written agreement

5) No evidence of account (copy of statement, etc)

My defense:

1) I have a single charged off account from said credit card company on my credit report. Nothing about this lawsuit matches this account (amount owed, date opened, etc). This charged off account is already time barred.

2) It would have been impossible for me to have obtained a new credit card from anyone from the period of late 2007 until today because, due to some unfortunate circumstance at that time, I ended up blowing my credit, resulting in several charged off accounts and two default judgements against me.

3) I stopped payment on all my credit cards around the November 2007 timeframe. So even if this were my account somehow, it would be SOL (in my state) which would prevent them from suing me at this time.

Given the above information, I have the following questions:

1) How should I respond to the lawsuit once served?

2) If I end up having to go to court, what is my defense? Should I request evidence of debt owed, like copy of statement showing last time I made a payment? If they are able to produce that, there is no doubt in my mind it would show the debt is SOL. In that case, how do I present this to the judge to have case dropped?

Any and all help would be appreciated.

complaint_pg1_2.zip

complaint_pg3_4.zip

Edited March 21, 2012 by softwareguy

[KentWA]

3) I stopped payment on all my credit cards around the November 2011 timeframe. So even if this were my account somehow, it would be SOL (in my state) which would prevent them from suing me at this time.

How does less than 6 months make any credit card SOL? I hope that is a typo, other wise you have a lot of learning to do.

You need to get a copy of the complaint so you have more information to work with. Is it OC or JDB? What are the cause of actions? It is best to post the complaint with the amounts rounded off and personal information redacted.

[softwareguy]

How does less than 6 months make any credit card SOL? I hope that is a typo, other wise you have a lot of learning to do.

You need to get a copy of the complaint so you have more information to work with. Is it OC or JDB? What are the cause of actions? It is best to post the complaint with the amounts rounded off and personal information redacted.

Sorry, typo. OP fixed. I meant November, 2007. I will redact and post copy of complaint. As to OC or JDB, it is a Lawyer directly representing the OC. I'd prefer not to give specific names in case they are monitoring this forum.

[KentWA]

You do not need to be so close lipped with the name of an OC, as they have literally thousands of cases out there. If they are suing you for $5,234.17 and you post that amount they might figure it out, but if you just say $5k, they will have no idea.

[legaleagle]

We can't do much for you unless we know who we're dealing with. The SOL is according to the state the creditor is located in per the cardholder agreement. For instance, Citibank is in South Dakota with a 6 year SOL. Chase is Delaware, 3 yrs. So is Discover. Bank of Americas (FIA) is also DE. Cap 1 is in VA and uses either their SOL or yours, whichever is longer. Sometimes the courts will try to impose their own state SOL, which can be argued as a contractual issue.

Claims I entered into WRITTEN agreement with credit card company on or around March 2008

This is interesting, it mirrors Citibank's interest rate statute language. If you want to start the ball rolling now, ask them for a bunch of information, specifically this written agreement and some proof of the account.......application, billing statements, etc. Tell them you never applied for any cards in that year, so you want some debt validation per the FDCPA. See what they say.

[usagi555]

You do not need to be so close lipped with the name of an OC, as they have literally thousands of cases out there. If they are suing you for $5,234.17 and you post that amount they might figure it out, but if you just say $5k, they will have no idea.

In a country where there are over 300,000,000 people, I live in a state with about 2,000,000 of them, or less than 1%. Crap1 and Crap1 Auto filed 4600 cases in my state alone last year. BofA filed about 1400 in mainly foreclosures while their subsidiary, FIA filed about 600 cases for CC debt. If you count all of the Citi subsidiaries (mortgages, CC debt, etc...) it's about 1800 cases. Midland Credit Management filed about 1300 cases. In fact, out of about 36000 cases filed in NM District Courts in 2011, about 14,500 were for "Debt and Money Due." A majority of that is CC Debt. There were just under 3,200 breach of contract cases, many of which are going to be some sort of unsecured loan. About 8500 cases were foreclosures. Compare that to about 1350 cases filed for "Tort: Personal Injury Auto." And this is only District Court. It doesn't count Metro/Magistrate (Small Claims) courts. A vast majority of those cases are handled by less than 1% of the attorneys actually involved in litigation in the state. One law firm filed roughly 9000 of those cases, and it only has 4 attorneys licensed in the state.

Extrapolate those numbers for a rough idea of how many cases there are over debt in the country. So yes, they will monitor, but if you don't give anything unique or anything personal, they are not going to identify you.

If they are monitoring for me, they've probably figured out who I am by now. I hope you boys like those numbers, because I can back them up, and I will use a 200 page list where it is one case per line, single spaced, against you. I can get an entire record for an entire year for our district courts in about 4-6 hours.

Edited March 21, 2012 by usagi555

[debtorshusband]

Given the above information, I have the following questions:

1) How should I respond to the lawsuit once served?

2) If I end up having to go to court, what is my defense? Should I request evidence of debt owed, like copy of statement showing last time I made a payment? If they are able to produce that, there is no doubt in my mind it would show the debt is SOL. In that case, how do I present this to the judge to have case dropped?

Any and all help would be appreciated.

OK, the wheels of the judicial system move at a glacial pace. This is a marathon, not a sprint. You can't do everything at once. Take it one step at a time. It will be over a year before you're going to trial. There will be numerous hearings (Case Managment Conferences) along the way to keep the (crawling) process moving.

Step one will be to file an Answer to the lawsuit, wherein you will deny their claims and assert your Affirmative Defenses. California offers easy-to-use forms on-line, here: California Courts - Browse All Forms

Look at either General Denial, PLD-050, or Answer-Contract, PLD-C-010.

Note that there is a high fee (>$300) to file your Answer, unless you're destitute and qualify for a fee waiver.

After filing your Answer, you will engage in Discovery: each side must show the other what evidence they will present at trial. I recently learned there's a handy form for that too: DISC-015

California also offers the opportunity to request a Bill of Particulars. Others on this board can advise you better about this.

Besides researching the unfamiliar terms here, other things you can do to prepare are:

Get a copy of the book Win Your Lawsuit by Judge Roderic Duncan.

Look at case filings online to get a feeling for what documents are filed and how long things take. If your own county court cases aren't online, I recommend the Alameda County Superior Court site.

Good luck.

DH

Edited March 21, 2012 by debtorshusband

[Coltfan1972]

Note that there is a high fee (>$300) to file your Answer, unless you're destitute and qualify for a fee waiver.

This still is mind boggling. Somebody sues you and then you have to pay $300.00 to defend yourself. It's just beyond all logic and fairness. Maybe, maybe a small "admin fee" for copying like, $10.00, but $300.00 just to defend a claim somebody else makes against you. WOW.

[softwareguy]

We can't do much for you unless we know who we're dealing with. The SOL is according to the state the creditor is located in per the cardholder agreement. For instance, Citibank is in South Dakota with a 6 year SOL. Chase is Delaware, 3 yrs. So is Discover. Bank of Americas (FIA) is also DE. Cap 1 is in VA and uses either their SOL or yours, whichever is longer. Sometimes the courts will try to impose their own state SOL, which can be argued as a contractual issue.

Hmmm. don't know that is true. I'm pretty sure the SOL is what state the consumer resides in at time of contract.

[softwareguy]

Note that there is a high fee (>$300) to file your Answer, unless you're destitute and qualify for a fee waiver.

Wow! $300 just to defend myself against a bogus claim? Wow, something really unfair about that. If we go to court, and I win, can I sue them for this amount?

[usagi555]

Wow! $300 just to defend myself against a bogus claim? Wow, something really unfair about that. If we go to court, and I win, can I sue them for this amount?

I believe there are procedures in Cali to get your costs back without having to sue.

[debtorshusband]

The comments about fees inspired me to look up the latest fee schedule.

Fee Schedule - County of Alameda - Superior Court of California

Hold on to your hats. (But I guess I forgot that the amount was lower for suits <$10,000)

For amounts less than $10,000, cost to file is $225

For amounts between $10,000 and $25,000, cost to file is $370

For amounts over $25,000, cost to file is $395

Note that these are the same costs the plaintiff pays to sue you.

And Yes, if you win, or the other side gives up and dismisses, you can recover these filing fees from the plaintiff without suing. You file for a Judgment for Costs.

Regards,

DH

Edited March 21, 2012 by debtorshusband

[rambler]

Hmmm. don't know that is true. I'm pretty sure the SOL is what state the consumer resides in at time of contract.

SOL is never an easy question, but if a choice of law provision is in the contract (as is with most all CC contracts/agrrements) you are bound to that unless you find good case law to wiggle out of it.

If you sign a consumer contract with a company in DE and you live in CA with no choice of law, you have a good arguement that CA sol applies UNLESS you were in DE at the time of the contract, and whatever happens to the contract applies more to DE than CA (Money borrowed and spent in DE, DE could claim they have a more vested interest).

I'll try and find it, but I had a case where a choice of law in CA was actually overriden by CA on this reason. It was a CA resident, borrowed money from an internet loan place based in NV the contract had a NV choice of law provision. But since the moeny was sent to a CA resident, in a CA bank and spent in CA, they argued and won that CA laws prevailed over vested interest.

So, SOL is never an easy question

edit

Actually the case is a little different than I remembered. The guy in CA (non resident military) sued the loan people for violations and they claimed choice of law protected them. Court ruled in their favor, was overturned in applete court. So one might still could use this to get around choice of law provisions in contracts...Brack v. Omni Loan Company, Ltd. (D049198)

Edited March 21, 2012 by rambler

[softwareguy]

Update: I have attached the first 4 pages of the redacted Complaint.

Edit: Wow, very hard to attach anything here as the size restriction really limits you. I'll have to get creative I guess... Stand by...

Update: Ok, split it up into two zips with compressed jpg images.

Edited March 21, 2012 by softwareguy

[softwareguy]

Update:

After requesting DV from the lawyer for this, I just received in the mail what I believe to be a very poor excuse for DV. It's a one page plain text print out from what looks like an old terminal type computer system. The title says "Crap1 Cycle Facsimile Report."

The interesting thing to note on this is the date range is 2/20/2008 to 3/19/2008 and there is a "Past Due Fee" of $35.00 listed on 3/19/2008. If you look at my original post, they claim I entered into agreement with Crap1 "on or around March 2008." So if I just entered into agreement on or around 3/2008, why does this letter show a date prior to that (2/20/2008) and a late fee already posted on 3/19/2008? A late fee is usually imposed 30 days AFTER the last period, not the current period. It also shows a "previous balance" so that would imply a balance PRIOR to 2/20/2008. So again, if I just entered agreement with Crap1 on or around 3/2008, how in the world would I have a balance previous to 30 days before the agreement entry date?

For DV, I was expecting something a little more legitimate, like a copy of an actual statement and/or receipts showing a purchase with my signature on it to prove last activity date. This thing smells really fishy, like it was a complete fabrication. Can I use this as a defense in court??

They also redacted all but the last 4 digits of the credit card number, which again does not match ANY on my credit report.

[Coltfan1972]

Can I use this as a defense in court??

Can't use the defense that it's not proper validation, but you can for sure use any conflicting figures they have provided in the past with what they have provided now.

They also redacted all but the last 4 digits of the credit card number, which again does not match ANY on my credit report.

That will be inadmissible as credit reports are unreliable and even if they were not, are hearsay.

[BV80]

We can't do much for you unless we know who we're dealing with. The SOL is according to the state the creditor is located in per the cardholder agreement. For instance, Citibank is in South Dakota with a 6 year SOL. Chase is Delaware, 3 yrs. So is Discover. Bank of Americas (FIA) is also DE. Cap 1 is in VA and uses either their SOL or yours, whichever is longer. Sometimes the courts will try to impose their own state SOL, which can be argued as a contractual issue.

Claims I entered into WRITTEN agreement with credit card company on or around March 2008

This is interesting, it mirrors Citibank's interest rate statute language. If you want to start the ball rolling now, ask them for a bunch of information, specifically this written agreement and some proof of the account.......application, billing statements, etc. Tell them you never applied for any cards in that year, so you want some debt validation per the FDCPA. See what they say.

I'm not understanding what you're saying. Usually the SOL of the state where the defendant resides or where the default took place is applicable. You're talking about choice of law or conflict of laws again.

The OP is in CA. If that's where he opened the account and where the default took place, Citi would have to prove the SD SOL applies. Otherwise it's 4 years.

[legaleagle]

Usually the SOL of the state where the defendant resides or where the default took place is applicable.

The cardholder agreement has a choice of law provision. Sometimes this works for the OC, sometimes against. The choice of law would include the SOL of the OC's state. My argument has always been that no court should modify a contract for no good reason. If both parties agreed to a certain set of laws, so be it. OCs and JDBs try to invoke other state SOLs when they blow the deadline, this is highly prejudicial. Chase lost a bunch in Florida trying this. Just imagine you going to court and demanding to change the interest rate provision to match some other state's, where it would be lower. They would go crazy and fight you, but they think it's okay to pick and choose what part of THEIR agreement they now don't like.

[BV80]

I know the cardholder agreement has a choice of law provision. You stated in your other post "The SOL is according to the state the creditor is located in per the cardholder agreement." That's not true.

In credit card cases, the vast majority of the time, the SOL of the state where the defendant resides and/or the default took place is the applicable SOL. The choice of law provision is only used under certain circumstances, and, even then, certain criteria must be met.

[legaleagle]

BV80, we should look further. Choice of law is arguable, especially when there is a contract to which both parties agreed. SOL just happens to be one of the laws the parties agreed to, since it is part of the body of law of the home state forum. I read so many cases on lex fori I wanted to fall asleep. None of them were credit card cases. Most were car wrecks and contracts where both parties agreed to the choice of law, a lot of them were divorce cases. Where controversy arose is when there was no contract and the laws of the two states differed so much so as to be unfair to one party, and the court had to decide which one applied. You could actually argue that the "agreement" took place in Delaware if you signed up with Chase, because that is where they operate from and send their applications from, process them, take payments, deliberately moved there so they could take advantage of DE law, etc. (Ministerial activities) They demand that you accede to their laws. You accept. This comes under interstate commerce if you want to push it that far, altho nobody has. (Oh God, Coltfan will do this, LOL) Then all of a sudden, you get this: "We want to use your SOL because we were TOO STUPID to file in time under the one we INSISTED you agreed to.

I understand your argument, but this goes beyond any technicality. My argument goes toward fairness and the fact that no court has a dog in this fight. Let's keep working on this. We fixed the permissible purpose, let's fix this.