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Being sued in Virginia and have a few questions


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I have been served or my wife has anyway by Aa and have a return date of the first week in march. I have been preparing for this for over a month and I still can't get my head wrapped around what our best chance of survival will be in this case. The claim is under $3000.00 but at this time it would probably mean we would be in danger of losing our home if they was to get a judgement and then take part of her pay check until it was paid. We simply don't have any money left at the end of the month right now for this to happen without major problems.

 

We found the papers on our front door and in them they contained: 1) warrant in debt with their complaint. 2) A service member Affidavit stating that she was not a service member. 3) A paper marked Exhibit A which is an affidavit of account from Aa stating they own the account that was stamped by a notary public on or around the 6th of Dec. 4) Then there were 6

 copies of what seem to be bills of sale from where this account has been traded/sold/bargined for bla bla bla. Some of these were notarized but a couple were not. 7) There was 4 pages of what I assume is the said credit agreement. It is hard to read because it is a bad copy but I do see a privicy policy effective date of Nov 2006. I don't know if that is the copy right date that someone suggested I check for or not but it is the only date I can find on it. 8) Then there was this ledger that was what seems to be a print out of the account in question with purchases/charges and what not with my wife's name/address/ss#/an account number/even a home phone number and her birth date. The only thing it didn't have was anything saying where or by who the billing was from.

 

There was nothing else in the pile of papers and I assume the affidavit or exhibit A, that they sent is the actual form I need to answer. It has 7 numbered paragraphs that basically  state that an employee of Aa  is competent to testify that he/she knows about how his company maintains their business accounts that are kept in the normal course of business pretaining to this account and they were created at or near the time of event. That she opened the account then incurred charges. Defaulted on said account. Upon information and belief, plaintiff's predecessor(s)-in-interest preformed all of the conditions of the contract required by said contract. thereafter,plaintiff purchased said account for value and is now the owner of said account. And finally, That as a result of defendant(s) payment default, the defendant(s) named herein is/are justly indebted to the plaintiff in the account of $$$$$$$$$.

 

According to the ledger the last payment made to the account was inthe beginning of march 2010 so this just got in just  before the SOL ran out so we can't fall back on that defense. It looks to me like the only thing I have to rely on is to try to attack the Affidavits of accounts leading up to where Aa took over this said account.

 

The thing is we never had but one account with the OC and that was a business account that was just discharged in a BK in my business and my name.....I operated as a sole proprietor. My wife was not named in the BK because she didn't have any interest in the business other being married to me. She did help out where she could, answered phones, ordered parts, general book keeping chores and such. There may have been a time or two that she ordered equipment for the business that is now showing up under her name for some strange reason. We never heard anything about this account until my BK was discharged.

 

The problem is when my business went belly up just about all my records were destroyed in a fire and the ones that were left, most of which got soaked by rain water, in storage are all scattered out because we went through a 3 year ordeal with Chase in trying to get our home mortgage modified. That is a story in itself and once this is over and I have the time I'm going to work on trying to see if what they did was shady and if I may have some recourse there as well. 

 

Also I need to be careful because they could say if they find out this stuff was used in business then it would not be protected by consumer protection laws that I may have grounds to sue them over. I don't mind stirring up a little mud but I would rather not go this route if I don't have to because I really don't know how I would be able to prove that this should have been in my BK. My BK lawyer said good luck but other than that he has been no help nor does he want to help in this matter.

 

What do you think?

 

 

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Firt of all, take a deep breath and relax. They cannot take your house over 3000 or lessm your homestead exemption is more that that.

 

They cannot garnish any wages until they get a court order, which means they need to prove their case first.

 

Was your business credit backed by personal guarantees or were you incorporated? This will make a big difference in your defense and how they can sue you.

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Firt of all, take a deep breath and relax. They cannot take your house over 3000 or lessm your homestead exemption is more that that.

 

They cannot garnish any wages until they get a court order, which means they need to prove their case first.

 

Was your business credit backed by personal guarantees or were you incorporated? This will make a big difference in your defense and how they can sue you.

Well gunny I'm really trying to keep the business part of this out of the topic. I only mentioned that part because we only had one dealing with this party and that was the one business account I had. As I stated in my OP I was operating as a sole proprietor and was the reason I had to do a personal BK when the business tanked. This was an account that I had for several years to buy computer equipment and supplies. They are not suing on that account, at least from what I have been able to find out it is not the same account number as the one they sent papers on. From the looks of the items on their summary sheet they sent in the case file they are stuff that we used at my business but it's showing a different account number. The only thing I can figure is that when my wife ordered one of these things they made her a new account rather than put it on the already established business account. My wife can't remember now because it's been years ago when this stuff was bought. Shortly after that the economy started to go downhill and when the price of gas got up to $5.00 a gal it was over. By then my wife found another job thankfully and I was back to doing what she was doing along with the rest of the stuff I normally had to do.

 

I never paid any attention to account numbers when paying the bills I just saw X computer company and paid what I could at the time until there was nothing else for me to give them. Bills came in and got thrown on the pile and when I had money I would take the next one off the bottom of the pile and send them what I could. At the time I was running about 25 days behind and I never could catch up.This went on for like 41/2 years until one day I started looking at some of them and I owed more on them then than I did to begin with after paying on them for all that time and I just started paying the ones that I absolutely had to pay and the rest got put on the bottom of the pile and it went on like this until I finally called it quits, closed the shop and moved all my stuff back home. At that point I didn't even have a business checking account any more and we were using our personal checking account to operate out of until I could decide what I needed to do. My hopes was to lay low for awhile and when the economy came back I could start back up but that never happened. At the end of 09 I decided to give it one more summer and if things did not get better I was going to cash it in for good and start collecting what SS I had coming.

 

Evidently, from what they are showing we made a payment to this account in question in march of 2010 and that was the last payment that was made. This argument will be too hard to argue over because I don't have any records to go back to look at to try and figure out what happened. We never heard anything from this until my BK was discharged and one day the phone was ringing and like a fool I answered it and it was this lawyer claiming my wife owed this bill. Shortly after that She got the summons to appear in court.

 

I wasted over a month trying to get some help on a couple of the other boards and I tried once here but something was wrong with the site and I never could figure out if the thread ever got posted so I wondered around until one day I found my way back. My biggest problem with all of this is we are in VA and this state along with a few others have some pretty old outdated ways of doing things and all the information that's out there is from more progressive states with regard to the law. There is just not that much info with gard to case law or opinions and trying to figure out what is written in those rule books and state codes is all voo doo to me. I was hoping to put up enough fight to let them know I was going to fight this so they would just drop it with hopes by the time they sold it to someone else the SOL would be past.

 

Oh, From an old salt.....Thanks for your service, SEMPER FI    HOOooo RAHhhhhhhhh

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Fill out RACECAR's Questions in this format. It is easier to read and will help others help you. Just leave out personal info and exact numbers.

 

1. Who is the named plaintiff in the suit? 

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

3. How much are you being sued for? 

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

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

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

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

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? 

9. What state and county do you live in? 

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

11. What is the SOL on the debt? 

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). 

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

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. 

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? 


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

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Fill out RACECAR's Questions in this format. It is easier to read and will help others help you. Just leave out personal info and exact numbers.

 

1. Who is the named plaintiff in the suit? AA

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

3. How much are you being sued for? 2700.00+/-

4. Who is the original creditor? (if not the Plaintiff)  dell financial/Cit online

5. How do you know you are being sued? (You were served, right?)  served notice 13 days ago

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

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

Process Service Requirements by State - Summons Complaint Yes, I believe it was.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 1 phone call maybe a letter

9. What state and county do you live in? VA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 03/2010

11. What is the SOL on the debt? Not sure they had both boxes check marked, one for open....one for contract. I'm thinking 3 years though

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). Already dis was filed on 1/23/2013 and served on or about 2/08/2013

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No not until today. I wrote a DV letter just now and are about to send it to their lawyer.

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. OH I guess that saves me a trip to the post office. I was thinking it might be a good idea because there might be some Fed or state violations that could be dug up.

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? 1) In VA you don't have to file an answer before the return date or I'm hoping that is the way I read it. Not sure if there needs to be anything done before that date in order to file counter charges though. I've read that stuff until I blue in the face and still can't figure all that mess out.

2) As I stated there are several bills of sale affidavits some notarized some not. Then there is an affidavit marked Exhibit A that is an affidavit of account that I assume is the affidavit exhabit A/ complaint. I will try and add that to the end of this chain of questions

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

Yes as stated.....bills of sale, an account summary from when the account was opened til it was charged off. Had wifes name, addy, ss# account number everything accept who drew it up. There was a half readable 3 or 4 page of what I assume is the credit contract or terms, and of-course the warrant in debt. I might note that they have both boxes checked for open account and the contract box is checked also. I guess they are really covering their bases with this little debt of mine. That is about all that was with the papers. there was only one thing that was marked as an exibit and that was the affidavit of account saying I owed them and not dell.

 

Well I tried to upload the affidavit but it wouldn't let me do it. It told me I could not upload that kind of file. What format will it allow?

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Thanks racecar, for the links. Most of them are old friends and I have read them over a time or two. It's cool because they are all together in one place so I can find these later on. That has been my biggest challenge; trying to come up with some way to get everything I have read in some form that I can go back to when I need it. It seems that everything I have tried comes up short because I still have to go through page after page of cut and pasted phrases, paragraphs or other file matter and it has been so flustrating to know you have read something but can't get back to where it was you read it for reference.

I know I have a problem with getting straight to the point. That's an ADD thing I've struggled with all my life. My lack of education has also gotten in the way and the fact that I didn't know how to cut a computer on until I was 50 years old has also led to the problems I am having. I know this stuff seems simple to you guys and it is hard for you to believe anyone could possibly not understand all the stuff that gets posted about this site.

My main concern with this whole thing is that we are going to get to the return date and the judge has had a bad day and looks at the plaintiff's complaint with all the damning evidence they sent with the warrant in debt and just give the plaintiff a summory judgment regardless of what we deny, It has happened before in cases and like these.

Then if the judge is in a good mood and does decide to set up a court date with orders for a Bill of particulars for the plaintiff and an answer or grounds for defense from us to be returned within 10/15 days We'll still be screwed at that point because I have been working on this for a month and a half now and haven't come up with a good reason for the judge to grant favor in our direction in that amount of time how will I accomplish this in 10 days or 30 for that matter? LOL

I wanted to have our whole defense ironed out before the return date so I can have a few days to get my wife up to speed.

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I don't know why I'm having such a hard time getting this file to post to the thread.

 

That is a pretty weak affidavit. There aren't any dates regarding default or sale (which might somehow link it to the bill of sale). No specific records mentioned. Was anything attached to the affidavit as an exhibit?

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That is a pretty weak affidavit. There aren't any dates regarding default or sale (which might somehow link it to the bill of sale). No specific records mentioned. Was anything attached to the affidavit as an exhibit?

The affidavit was marked exhibit A as noted on the copy. There was no formal complaint form other than this exhibit A and the actual warrant in debt. All the warrant amounts to is, a few boxes to fill in with information as to how much the debt is, plus court cost and interest and the return date. There is also 4 boxes for checking what the type of account the supposed debt is, Open, contract, Note, other. They have both the open account and the contract boxes checked.

Then there was the chain of bills of sales where the account was transferred from several different companies to them. Some of these were not even notarized. They also included a few pages of what was supposed to be the account from it's opening til it was charged off. It had all of her personal information on it but there was nothing saying who had created the files.

Then they had a really bad copy of 4 pages that is supposed to be the credit contract for the account, you can't read a lot of it.

As I said there are 6 different papers of transfers/bills of sales or what not and some of these are notarized and some are not. None of these mention this account # and all accounts are described as pools of accounts, file transfers, records or what ever and noted herein as transferred without recourse of collectability or otherwise, expressed or implied, except as may be specifically provided in the program documents.

So what does it look like to you.....do I have any chance of getting this thrown out.

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Look into arbitration through JAMS, I believe Citi has that in their agreement, that should get rid of AA. They paid maybe $50.00 for your account, they won't want to spend upwards of 10K (JAMS is expensive and they have to pay for it) to collect (maybe) 2700. Would you? They usually dismiss when informed consumers use arbitration. See Linda7's posts for the procedure.

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I have another issue that I need to figure out what to do about. They have this account listed on all three credit reporting agencies as what looks like to me as new debt with a whole different account number (Aa own account number). They are showing the account as opened in:

(1) 06/2012 with a bal. of $26xx.00

(2) then the date reported as of 07/2012

(3) last reported 12/2012 now with a bal. of $27xx.00.

(4) For account history the account is listed as in collection as of 7/2012 to 12/2012.

Is this nornal? There is nothing on the reports about the OC/charge off, no refference to the old account at all, just what they seem to be saying is a brand new account. Can they do this?

This was why I was thinking about sending off a DV letter and something to the CRA's even though it is said to be of no use at this point. From what I understand you have to do this first or you have no recourse if they have done something wrong.

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Look into arbitration through JAMS, I believe Citi has that in their agreement, that should get rid of AA. They paid maybe $50.00 for your account, they won't want to spend upwards of 10K (JAMS is expensive and they have to pay for it) to collect (maybe) 2700. Would you? They usually dismiss when informed consumers use arbitration. See Linda7's posts for the procedure.

Yeah I can see that in the contract they have sent to me. Is that something I have to partition for or will the judge do this?

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The affidavit was marked exhibit A as noted on the copy. There was no formal complaint form other than this exhibit A and the actual warrant in debt. All the warrant amounts to is some boxes to fill in with information as to how much they think they should get plus court cost and interest and the return date. There is 4 boxes for checking what the type of account in question is, Open, contract, Note, other. They have both the open and the contract boxes checked.

Then there was the chain of bills of sales where the account was transfered fron several different companies to them. Some of these were not even notarized. They also included a few pages of what was supposed to be the account from it's opening til it was charged off. It had all of her personal information on it but there was nothing saying who had created the files.

Then they had a really bad copy of 4 pages that is supposed to be the credit contract for the account, you can't read a lot of it.

As I said there are 6 different papers of transfers/bills of sales or what not and some of these are notarized and some are not. None of these mention this account # and all accounts are described as pools of accounts, file transfers, records or what ever and noted herein as transfered without recourse of collectability or otherwise, expressed or implied, except as may be specifically provided in the program documents.

So what does it look like to you.....do I have any chance of getting this thrown out.

 

It sounds like a "standing" nightmare for them. Definitely what you want to attack whether it goes to court or arbitration.

 

Arbitration is a good route as Bruno suggested. It is usually good for scaring them off and, even if it doesn't scare them away, their standing is going to be very difficult for them to prove if it has been bought and sold 6 times.

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I believe you file a motion to compel private arbitration in lieu of an answer. Attach a copy of the agreement. I don't think there is much else involved. Linda7 posted all this tuff.

Ok, thanks I'll check it out. I was reading yesterday in another thread about the same JDB and how it ended up in arbitration but his debt was for quite a bit more than mine. He was in OR and the debt was created in Cal and the OC was stationed in My home state of VA. It was a pretty good read but didn't add to any positives on my part other than it was nice to know that he prevailed in the end.

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It sounds like a "standing" nightmare for them. Definitely what you want to attack whether it goes to court or arbitration.

 

Arbitration is a good route as Bruno suggested. It is usually good for scaring them off and, even if it doesn't scare them away, their standing is going to be very difficult for them to prove if it has been bought and sold 6 times.

Well the fact that it has been bought and sold/transfered 6 times may look like a really big thing but all of thes transfers were basically between the same bunch. Dellfinancial/Cit bank online/Webbank are all as it seems run by the same people from the way it looks in the bills of sales I have. It's sorta like a tin can that has a little dirt inside along with a big ol fat night crawler. just by shaking the can and peeking in it looks like there is a whole bunch of worms in the can, but when you reach in and grab one you find its just one big ol fat cat worm you are dealing with.LOL

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I would forget all about the business side of it since it was not her business. If she never had a personal account with the OC the easy way is to file an ID theft claim. If it was me I would work them to death in discovery to find out details about the debt before filing, but that is the way I roll making them spend more and more money to pursue the claim.

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I would forget all about the business side of it since it was not her business. If she never had a personal account with the OC the easy way is to file an ID theft claim. If it was me I would work them to death in discovery to find out details about the debt before filing, but that is the way I roll making them spend more and more money to pursue the claim.

I agree I think I know what happened but I can't prove it so it's no point fighting something you can't prove and I dont have the time anyway. I think I'm better off just looking for screwups they have made and get it either thrown out that way or just wearing them down until they move on to easier fish to catch.

It's just figuring out how to go about it with Va laws the way they are.

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I had to take a couple days to clear my head with all of this. Hopefully this afternoon or tomorrow I will get back to the task.

While I am thinking about it though could someone tell me why and how do you counter the way they said this debt was setup. They have it as being an open account as well as a contract. How do those defenses differ or better yet why do they do it this way? I'm sure it's to their favor but just can't wrap my head around it.

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I have another issue that I need to figure out what to do about. They have this account listed on all three credit reporting agencies as what looks like to me as new debt with a whole different account number (Aa own account number). They are showing the account as opened in:

(1) 06/2012 with a bal. of $26xx.00

(2) then the date reported as of 07/2012

(3) last reported 12/2012 now with a bal. of $27xx.00.

(4) For account history the account is listed as in collection as of 7/2012 to 12/2012.

Is this nornal? There is nothing on the reports about the OC/charge off, no refference to the old account at all, just what they seem to be saying is a brand new account. Can they do this?

This was why I was thinking about sending off a DV letter and something to the CRA's even though it is said to be of no use at this point. From what I understand you have to do this first or you have no recourse if they have done something wrong.

 

They are allowed to report and use the account number they have applied to the account. 

 

The opening date they've provided is the date they opened the account in their records.   That doesn't mean it's the date you opened the account with the OC, and it has nothing to do with how long the entry remains on your CR.  The date that determines how long a negative entry remains on your CR is the "date of first delinquency" (DOFD).  

 

Is AA reporting a DOFD?

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Open account is a term that appears in the Truth in Lending statute. You can find it on line, it's at the FDIC site. It is also known as Regulation Z. Open accounts are those which are defined by TILA as "open ended credit." This means they have no set number of payments, like a car loan. Those are "closed end credit" accounts. That's all it means.

 

Credit cards are considered accounts founded upon a contract. It's a loose version, they don't send a notary and a lawyer to your house to have you sign it, that's not the type of contract they mean. It's an implied contract based upon a written instrument.....the cardholder agreement. They supposedly send you the agreement with the card you applied for. You read it, (sure) and if you agree to the terms, you use the card. That's the way it works. One of the things in the "contract" says that you'll make the payments. When you don't, you breached the contract. This is not where you want to focus your defense if this is a junk debt buyer. Nobody has ever won a credit card case by claiming they never "signed" a contract, or that they never made a contract with the junk debt buyer. You don't have to, it's in the cardholder agreement, they have the right to sell your account. The dude who buys it assumes all the rights of the seller.

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They are allowed to report and use the account number they have applied to the account. 

 

The opening date they've provided is the date they opened the account in their records.   That doesn't mean it's the date you opened the account with the OC, and it has nothing to do with how long the entry remains on your CR.  The date that determines how long a negative entry remains on your CR is the "date of first delinquency" (DOFD).  

 

Is AA reporting a DOFD?

Thanks I kinda figured that was the way it was but just couldn't get an answer. I've been working on trying to figure out the numbers on the account ledger they sent. They claim she made a payment on 3/2010 and I have been trying to figure out if that payment brought the account up to date. Just looking at it I don't think so because over the 40 odd months the account was open (up to the date of last payment) I counted 19 late charges and only see 34 payments made the whole time. I wish I was smart enough to go through the numbers and see how far back the account was not current when the last payment was paid. Correct me if I am wrong but the SOL goes by the last date the account was up to date not just when the last payment was made. Right?

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