Summons with Multiple Issues - Law Firm/CACH/MBNA Please help!!!

[MissK05]

Hello,

I received telephone messages from a law firm early this year and I called the law firm back. They said I owed money to a credit card company. I told them I haven't had a credit card since '04 and I required something sent to me in writing regarding the details of this. I also asked for verification. The woman was very nice and when I asked how long verification would take, told me that she wasn't sure...that "it sometimes takes forever!"

I never received anything in the mail from this law firm, or from anyone regarding this supposed debt to MBNA. Then, out of nowhere, I receive a summons in the mail (not registered or certified mail, but from the courthouse) stating that I owe CACH over $3000.00 and I am to respond to this law firm (the same firm as above). Also, the date of supposed last payment listed is within my state's SOL.

Now here are my questions:

1. Since the law firm representing CACH (who never mentioned CACH in the one call I had with them --- they mentioned only an MBNA) never mailed me anything at all, and never sent the validation I requested, do they have a case? Isn't there a time period in which they must send requested validation? And if they do send it, shouldn't it be sent by registered mail or by FedEX or UPS or something?

2. The summons was mailed without being registered or certified. How on earth would they know I actually received it, as it was not served in hand?

3. I put off responding to the summons and it is due in a few days. Problem is, I can't find it. I put it somewhere in my place and now have no clue where it is. What do I do?

4. Even though I was never provided any proof in writing, or proof at all, of this alleged debt, what do I say if they still say I owe the money? I am currently unemployed and have no money in the bank. I am not a homeowner and all that I have is a really really old rusty car, with regard to assets. What happens then?

Thank you all so much!!!

Edited November 2, 2012 by MissK05

[bmc100]

MBNA was bought by FIA card services back in 2004-2005.

Chances are that this account is outside the statute of limitations in your state. If that is the case, you have FDCPA violation. Trying to collect on a debt that they cannot legally collect on.

Two, you have a nice FDCPA counter-suit against the law firm from not following the law by sending you a dunning letter 5 days after first contact.

[MissK05]

Thank you for the info.

But the problem is, how do I prove that I was not sent a dunning letter within 5 days of contact? Also, I didn't even know that was required. What would I cite in court with regard to that issue?

With regard to your dunning statement, "Two, you have a nice FDCPA counter-suit against the law firm from not following the law by sending you a dunning letter 5 days after first contact."

Should I contact the law firm about this and possibly counter-sue? If so, what do I say to them and how do I go about this (if it is even worth it).

Mostly I am concerned about actually being in court (as well as the summons that I can't find at the moment...). I am researching, but am having little luck with regard to what I am literally to state to the judge when defending myself in court.

P.S. MBNA did change to Bank of America, I believe. However the summons stated my alleged debt to CACH, with MBNA as the original creditor.

I really need everyone's help on this, and so greatly appreciate your time!!!

Edited November 1, 2012 by MissK05

[bmc100]

First, call the court and ask for a copy of the complaint and summons.

Second, post the complaint minus your information on this thread and people will respond with ideas and suggestions.

Third, look up NH Rules of Civil Procedure online and start reading through them.

Fourth, Even if Cach filed the suit, they would still have to properly plead the chain of title in their complaint. I need to correct myself, MBNA was bought by Bank of America which was finalized on January 1, 2006. The news came out in June 2005. BOA Card Services changed its name to FIA Card Services after that.

[MissK05]

I don't quite understand what you mean by posting a copy of the complaint. While I cannot find the summons right now, I do know it was just one carbon copy sheet stating the law firm and MBNA as the the original creditor with CACH as the person behind the law firm, suing I assume.

There were no attachments to this. It just came in the regular mail from the courthouse.

I have so many questions about all of this, and wish I could afford to hire a lawyer to answer them -- but then again, the people on this board seem to be very intelligent/insightful, so I ask for their assistance.

[georgejonesfan]

The Complaint is usually with the summons; it's a document from the Plaintiff and lays out their specific claims against you.

Hope this helps some!

[MissK05]

Okay I found the summons and on it is the complaint which states CACH, LLC as the plaintiff and under description of claim it says:

Original Creditor MBNA America, N.A. Last Payment Date: April 8, 2010

The plaintiff brings this action as assignee and successor in interest to the original creditor with regard to the above referenced account. Defendant established this account and incurred charges that have not been paid. Plaintiff brings this action to recover the balance, plus interest and costs. Further, following accepted credit card practices and regulations, the original creditor sent defendant regular statements against which defendant paid. Because of the regular submission of statements retained without protest and defendant's payments, plaintiff alleges account stated as further grounds for recovery.

Does it matter that this is not signed by the plaintiff? In the spot where it says Plaintiff's signature, all there is is a rubber stamp naming the lawyer, the law firm and their address and phone #.

I am so desperate for help and so very much thank you all for any insight you can offer!

[BV80]

Okay I found the summons and on it is the complaint which states CACH, LLC as the plaintiff and under description of claim it says:

Original Creditor MBNA America, N.A. Last Payment Date: April 8, 2010

The plaintiff brings this action as assignee and successor in interest to the original creditor with regard to the above referenced account. Defendant established this account and incurred charges that have not been paid. Plaintiff brings this action to recover the balance, plus interest and costs. Further, following accepted credit card practices and regulations, the original creditor sent defendant regular statements against which defendant paid. Because of the regular submission of statements retained without protest and defendant's payments, plaintiff alleges account stated as further grounds for recovery.

Does it matter that this is not signed by the plaintiff? In the spot where it says Plaintiff's signature, all there is is a rubber stamp naming the lawyer, the law firm and their address and phone #.

I am so desperate for help and so very much thank you all for any insight you can offer!

Check your rules of civil procedure, but in my state, an attorney is required to sign the complaint because he represents the Plaintiff. I believe that's common practice. The plaintiff doesn't have to sign it.

What you posted is all that was written? Were the allegations numbered?

If they weren't separate, numbered allegations, I would simply state that Defendant denies the allegations set forth in Plaintiff's complaint. One affirmative defense could be Lack of Standing. Since you said you haven't had a cc since 2004, I'd also use the statute of limitations as a defense.

If you can show no payment was made when they claim, there's your best defense. They'll then have to show you did make a payment. That's what the discovery process is for. But you have to do your research now and find out if you made a payment when they claim.

Check your bank records to confirm the date of last payment if you haven't already done so. Even though you said you haven't had a cc since 2004, you still need to check that date. Don't assume that you couldn't have made a payment, but also don't assume that they are correct.

[MissK05]

Thank you for your response.

I did go back and check my bank records. It appears that the MBNA (or who ever owned it at the time) did take out 80.00 a month from my bank account under what they called "Phone Pay."

I most certainly did not call anyone to authorize this payment.

I have the awful habit of not looking at my checking account ledger when it arrives in the mail, as I sometimes just don't want to know (hangs head), which is why I never knew about this "Phone Pay."

To respond to your question: That is literally all that is written on the "Small Claims Complaint"

Nothing is numbered. If were to be even more specific, it states the courthouse address at the top and the case number (handwritten). Below that is says, "Small Claim Complaint"

Below that is says:

Name CACH, LLC

Street/No. 4340 SOUTH MONACO ST

City/State DENVER, CO 80237

Below this it states:

The Plaintiff claims that the Defendant named below owed the Plaintiff $ 3,155.13 because (description of the claim)

After this is what I wrote in my post above. That is all that there is, aside from the last 4 digits of my alleged account #.

I did not receive any attachments to this. The only other things in the envelope are a letter from the NH Circuit Court that states my case name: CACH LLC v. [my name]

and my case number below that. It then says only, "Enclosed is a small claims complaint."

It states the name of the Clerk of Court without any signature on it. it also has a C: [the lawyer representing CACH]

There is also a photocopied "Notice to the Defendant" sheet, which basically is something clearly sent to all defendants that lets a person know what to do next, which states it serves as notice that this action has been filed against you in the District Court. It gives the court web address and tells you that if you don't respond then the rule will be in favor of the plaintiff, etc...

Nothing else is included in this.

Also, you stated that in your state the plaintiff doesn't have to sign the complaint/summons. My issue is that the attorney for CACH didn't sign it either. There is no signature whatsoever. Just the rubber stamp with the attorney's info, as stated in an earlier post. Is that acceptable?

Thank you to all who read this, and please please help me with this.

[howucan2]

Did the complaint name CACH as plaintiff?

CACH changed its name in 2010 to Two Square Financial LLC , I have seen a good consumer attorney in my state filed a nice complaint for deceptive practices on this issue.

second read this: Bank of America Sold Card Debts to Collectors Despite Faulty Records - American Banker Article

[BV80]

Also, you stated that in your state the plaintiff doesn't have to sign the complaint/summons. My issue is that the attorney for CACH didn't sign it either. There is no signature whatsoever. Just the rubber stamp with the attorney's info, as stated in an earlier post. Is that acceptable?

Electronic signatures are acceptable in my state. I honestly don't know if a stamped signature is the same thing as an electronic signature. Again, check your rules of civil procedure.

If there's no information regarding that issue, you can contact your state's bar association. They should have a lawyer referral service. If you request the name of a consumer attorney in your area, that attorney will give a consultation at a reduced fee. You could get some procedural questions answered accurately and have a better idea of how to proceed.

[MissK05]

Okay, so I sent my response to the mailed summons and quickly received a Notice of Hearing. It says CACH LLC v. (my name) and below that is the case #.

Then it says, "The above referenced case(s) has/have been scheduled for:

Merits/Mediation

It then continues on with the court date, address and time; and then the standard stuff about appearing in court.

The CACH local lawyer is C'd at the bottom of this.

So my questions are now:

What is Merits/Mediation?

How does that differ from regular small claims court?

Does this impact my ability to fight CACH and it's local lawyer in this?

Since I never received anything from CACH (no dunning letter...nothing) and only heard about this when I got a voicemail message from the local creditors rights lawyer (I called back and spoke with a woman who was not a lawyer and that was when I told her I didn't recall having any MBNA card and I needed something sent to me in writing to prove that I had this alleged debt -- This was the ONLY time I spoke with the law firm. They left voicemails for months after, but I never responded because I didn't receive proof in the mail that this was in fact a debt I owed.

Is there a time frame in which the law firm must send proof of alleged debt, after my requesting it over the phone (law firm never sent me a letter or anything prior to phone calls -- never sent anything via mail)?

Can I use above time frame as a defense in this Merits/Mediation?

Also, I looked at one of my credit reports recently and saw that CACH had put a negative on my report, but said in the notes that "Consumer disputes the debt" or something like that. I still sent in a dispute to Experian, via their online dispute system, claiming this creditor debt as "Not mine" as I have no evidence of my owing this CACH anything at all. There is a charged off account from MBNA and it says charged off/transfer but doesn't state to who it was transferred. Does this help or hurt me?

***Most importantly, what is my absolute best defense in my Merits/Mediation, in your opinion/experience? I am so desperate for help here, and I thank you all so much for you guidance!!!***