girlwonder Posted October 31, 2012 Report Posted October 31, 2012 I received an amended summons in the mai with an affadavit of debt and an assignment of debt. I know I need to file a motion to strike the affadavit of debt, however, the assignment of debt is completely false. The debt is for karate lessons for my son back in 2007. My question is can I file a motion to strike the assignment? Here is my reasons: 1. The assignment states the account against my son's name not mine and he is a minor. 2. The assignment does not have a signature of the original creditor and the Atlas Collections. All the assignments says is--- for valuable consideration, I hereby assign and transfer to Atlas Collections, Inc. the account against (Minor Child's name) of Gas City, Indiana, evidenced by the annexed statement, together with all my right, title, and interest in and to the same. And I warrant to the said Atlas Collections, Inc. that said accound is just and due and that I have not received any payment of the same, except as set forth upon said statement.No signatures, no witness signatures, no date of signing.Please advise how to handle the assignment.
BTO429 Posted November 1, 2012 Report Posted November 1, 2012 I received an amended summons in the mai with an affadavit of debt and an assignment of debt. I know I need to file a motion to strike the affadavit of debt, however, the assignment of debt is completely false. The debt is for karate lessons for my son back in 2007. My question is can I file a motion to strike the assignment? Here is my reasons: 1. The assignment states the account against my son's name not mine and he is a minor. 2. The assignment does not have a signature of the original creditor and the Atlas Collections. All the assignments says is--- for valuable consideration, I hereby assign and transfer to Atlas Collections, Inc. the account against (Minor Child's name) of Gas City, Indiana, evidenced by the annexed statement, together with all my right, title, and interest in and to the same. And I warrant to the said Atlas Collections, Inc. that said accound is just and due and that I have not received any payment of the same, except as set forth upon said statement.No signatures, no witness signatures, no date of signing.Please advise how to handle the assignment.This is typical of Atlas, I have dealt with them myself. First of all they can not sue your son he is a minor.I would file a motion to dismiss because the Defendant is a minor and can not be sued. Ask for dismissal with prejudice.
1stStep Posted November 1, 2012 Report Posted November 1, 2012 Then sue for an FDCPA violation on his behalf...
BTO429 Posted November 1, 2012 Report Posted November 1, 2012 semper necessitas probandi incumbit ei qui agit,"the necessity of proof always lies with the person who lays charges." ei incumbit probatio qui dicit, non qui negat, "the burden of proof rests on who asserts, not on who denies")Failure to make a reasonable inquiry The Plaintiff failed to make a reasonable inquiry as to whether or not the Defendant was of legal age to be sued, proceeding with an assumption places a person in a position where he may step over the line and place him/her self in a position where they may violate a law.A person who sues the wrong person without performing due diligence first may place them selves in a position where sanctions and damages are appropriate in a counter suit.
Coltfan1972 Posted November 1, 2012 Report Posted November 1, 2012 Proceeding with an assumption places a person in a position where he may step over the line and place him/her self in a position where they may violate a law. “It does not seem unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” See, FTC v. Colgate-Palmolive Co., 380, Supreme Court of the United States, U.S. 374, 393, 85 S. Ct. 1035, 13 L.Ed. 2D 904 (1965).
girlwonder Posted November 1, 2012 Author Report Posted November 1, 2012 The Summons and suit is in my name, however, the (falsified) assignment is in my son's name. I have countersued for violation of FCRPA as they did not follow the debt validation procedure. They actually ignored my request for validation of debt. I sent a few certified mail requests. I actually pulled my credit and disputed the information with the credit bureau throughout the validation request process. They never indicated to the credit bureaus "consumer disputes" and they verified the debt during the validation request process. I have copies of everything.****As for yesterday's amended summmons**They actually sued me on 10/9/2012 but failed to comply with the Indiana Small Court Rules as they did not attach the required paperwork (Affadavit of debt, etc.) I filed motion to dismiss for failure to comply with small claims court rules on 10/10/2012.The amended summons has an affavdavit of debt signed and dated 10/2/2012 HOWEVER, part of the affavidavit requires them to pull an active military status report. Which they attached and was dated 10/16/2012....which indicates the affavdavit of debt was "backdated" (falsified). The amended summons also includes the assignment of debt which again is falsified as they "assigned" the debt back in 2009 which indicates my employer (which is my current employer and not the employer I had in 2009). The assignment is in my son's name not mine and there are not signatures or dates signed by orginal creditor or Atlas. I called the Court this morning and explained this to them. Even though she did not feel comfortable discussing these issues, she indicated that she would have the Judge look at the amended claim and let me know whether we will proceed tomorrow for court (as I got the amended claim yesterday) or whether the judge will contact the creditor and indicate the case will not continued based on Small Claims Rules.I want to cover myself I know I need to file a motion to strike the Affadavit of debt but do I need to file a motion to strike assignment and motion to dismiss? I know with an assignment they are not a real party of interest and I indicated that on the answer to complaint but what do I need to do with the assignment?P.S. I see how shady Atlas is......Makes me sick!
Flyerfan Posted November 1, 2012 Report Posted November 1, 2012 You can't file a motion to strike until it is offered as evidence. To get rid of it before then you would file a motion to preclude.
Recommended Posts