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Need some help figuring out where to go-- being sued by junk debt collector


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Hi, everyone. I'm new here, so in advance, apologies if I seem a little stumbly.

 

About six years ago, I had awful money problems. I wrote off paying for two credit cards and let them go into collections. It was stupid, but I did it, and yes, it's my debt. However, obviously, the debt has since ballooned from 500 or so dollars to 1600 due to random fees and collection charges. I'm currently being sued for $1600 by a collection agency and I'm seeking some (hopefully) easy answers. 

 

Here's where I am. I received in the mail a packet from the collection agency showing me "proof" that they own the account. Some of the items are legit: old statements and my original application. However, they have also included a notarized affidavit that states they legally purchased the account. I have a hunch that this document is either invalid or perhaps even forged.

 

First of all, the document uses the affiant's name as "N. Burns." According to the affidavit, N. Burns is a custodian of the records of the bank. It does not, however, give this person's title or even the company for which he works. Also, this mysterious "N.Burns" did not actually sign the affidavit. His name is simply printed on the bottom. I'm ready to submit a motion to strike the affidavit and am considering requesting a subpoena for this "N. Burns." If I can have this affidavit thrown out, I may have a chance at winning the case, or at least decreasing the prayer amount significantly. 

 

Another question I have regarding the affidavit is the age of the account. According to the affidavit, the original creditor (First National Credit Card) was the transferrer of this account to the junk debt buyer (Lewis Hastie Receivables). Given the age of the debt, I highly doubt that LHR was the first debt collector on the case, which should mean that I should have received multiple affidavits from each time this old debt changed hands. Right? 

 

Also-- I have NOT been served in this matter. Despite the fact that the suing party has my address (heck, they emailed me the packet with all that info in it just prior to suing), they chose to serve me at an old address and the notice was unable to be forwarded. I only found out about this lawsuit because I searched in the wrong field when looking up a speeding ticket! To date, I have NOT been served.

 

I'm looking for feedback on my defense technique. Is there anything else I should know before submitting my answer and motion to strike the affidavit? Am I taking the correct route here? 

 

Any advice is highly appreciated. I'm in Ohio. Thanks!

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Answer these questions, and I am sure you will get lots of help.  It helps to know these, and to advise on the best direction to go if we know the particulars.

 

 


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Posted 21 July 2005 - 11:22 AM

For everyone that posts here, it will help us out if you can provide the following information: (revised 02-09-2012)

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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? To find out: 

Statute of Limitations on Debts

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? 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

17. Read this article: 
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Another thing about SOL.  If the SOL runs out and they are trying to collect, they can keep trying to collect forever.  As long as they don't file a lawsuit, it is legal for them to try and collect.  If you KNOW the SOL is up, I would send them a debt validation letter stating that also.  They sent you statements and original agreement? really?  Does it have your signature on it? If not, it is only a copy of the agreement on the back of a cc statement.  If the affidavit isn't verified, then I would pay much attention to it.  You can wait until they file, or send a DV stating exactly what you want, and then you will consider paying the debt.  You want copy of all assignees to the account, with affidavit's from each assignee on how the account was kept and maintained.  You want them from the original creditor to to the person demanding payment.  You want a copy of the original signed agreement.  You want a copy of a zero balance account up to the present of what they are asking for.  That should keep them busy for awhile.  If they refuse, oh well, they will either go away, or they will file suit, and then you can get it through discovery--if they don't have it, you win.

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Thank you so much for the response. I will upload the docs of what they gave me later today after work. Thanks so much for your help.

 


If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit?

LHR, Inc.; assignee of First National Bank

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

Mason, Schilling and Mason, LP 

3. How much are you being sued for?

$1,621.85

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

First National Credit Card 

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

I happened to stumble across the filing on a public court docket. I have yet to be served. 

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

n/a (see #7)

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

I have not been served. They sent the summons to an old address, where it was not forwarded. However, the docket has since been updated to this:

 

 

04/01/2013 D1 SR INSTRUCTION FOR SERVICE ON COMPLAINT SENT BY CERTIFIED MAIL TO ****** ******** FILED.   03/07/2013 D1 SR CERTIFIED MAIL RECEIPT NO. 20886018 RETURNED 03/07/2013 FAILURE OF SERVICE ON DEFENDANT ****** ****** - UNABLE TO FORWARD NOTICE MAILED TO PLAINTIFF(S) ATTORNEY   02/19/2013 D1 SR SUMS COMPLAINT(20886018) SENT BY CERTIFIED MAIL. TO: *********** ****address here, Cleveland, OH*****


I'm not sure if this means they're re-serving me or not. My real address was not added in the same way it was the first time. It says it was sent via Certified Mail (or at least I assume it does), but that was on the first. It's now the third and I still haven't received anything.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They sent me a packet containing statements, an affidavit, the contract (just a copy-- not a signed one) and a letter saying my account had been placed with their office. This WAS sent to my home address-- but they forwarded the summons to another address. Is this their way of trying to land a default judgment? I'm confused on this, because clearly they do have my correct address.

9. What state and county do you live in?

Ohio, Cuyahoga County. 

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

02/2009. It is within the SOL. 

11. What is the SOL on the debt? To find out: 

Six years. 


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).

 

Here is the complete docket (SENSITIVE INFO HAS BEEN EDITED OUT): 

 

04/02/2013 D1 CS WRIT FEE   04/01/2013 D1 SR INSTRUCTION FOR SERVICE ON COMPLAINT SENT BY CERTIFIED MAIL TO ********** FILED.   03/07/2013 D1 SR CERTIFIED MAIL RECEIPT NO. 20886018 RETURNED 03/07/2013 FAILURE OF SERVICE ON DEFENDANT ***** ****** - UNABLE TO FORWARD NOTICE MAILED TO PLAINTIFF(S) ATTORNEY   02/19/2013 D1 SR SUMS COMPLAINT(20886018) SENT BY CERTIFIED MAIL. TO: ****** ****  ADDRESS WAS HERE, CLEVELAND, OH*****   02/12/2013 D1 CS WRIT FEE   02/08/2013 P1 SR COMPLAINT FILED. SERVICE REQUEST - SUMMONS BY CERTIFIED MAIL TO THE DEFENDANT(S).   02/08/2013 N/A SF JUDGE HOLLIE L GALLAGHER ASSIGNED (RANDOM)   02/08/2013 P1 SF LEGAL RESEARCH   02/08/2013 P1 SF LEGAL NEWS   02/08/2013 P1 SF LEGAL AID   02/08/2013 P1 SF COURT SPECIAL PROJECTS FUND   02/08/2013 P1 SF COMPUTER FEE   02/08/2013 P1 SF CLERK'S FEE   02/08/2013 P1 SF DEPOSIT AMOUNT PAID MASON SCHILLING & MASON CO LPA   02/08/2013 P1 SF DEPOSIT AMOUNT PAID MASON SCHILLING & MASON CO LPA   02/08/2013 N/A SF CASE FILED


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

No.

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.

No, but they sent it to me anyway (or at least what I'm assuming it is. It's a packet of statements, the credit card contract (unsigned), an affidavit and a letter saying my account was placed with them. 

15. How long do you have to respond to the suit? (This should be in your paperwork). 

I believe I'll have 30 days if I get served, but as of yet, I have not been officially served. Please see docket above for more info-- and maybe you can help me understand what the latest entries mean.

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

While they did send me a packet through regular mail with a contract, statements, affidavit and letter, these were not listed as exhibits because I have yet to be served.  I assume these will be their exhibits, however. 

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I should add that I *think* the latest docket entry-- instruction for service on complaint-- means that they're trying to have the summons hand delivered or something. This is extremely fishy to me, because as I said, they clearly have my correct address as they mailed a packet of junk to my house before filing suit. 

 

Could this possibly be a way for them to sneakily seek a default judgment?

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I should add that I *think* the latest docket entry-- instruction for service on complaint-- means that they're trying to have the summons hand delivered or something. This is extremely fishy to me, because as I said, they clearly have my correct address as they mailed a packet of junk to my house before filing suit. 

 

Could this possibly be a way for them to sneakily seek a default judgment?

Even if somehow, they got a default judgement on you.

You would be able to file a motion to vacate judgement on the grounds you were improperly served.

Keep checking with the court on the status. I would definately give them a call.

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Even if somehow, they got a default judgement on you.

You would be able to file a motion to vacate judgement on the grounds you were improperly served.

Keep checking with the court on the status. I would definately give them a call.

 

I'm reluctant to contact the court because I've heard that knowledge of the suit can be viewed as being "served," per say, because you had time to file an answer and build a defense. I plan to continue to watch the docket. I've read that there is a term called "gutter service" that is used by JDBs that basically states they try not to serve you directly so they get a default. I'm hoping this happens, and filing a motion to vacate judgment seems pretty cut and dry. I'll keep my eye on it. God, I hate JDBs and their slimy ways. 

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They have to personally serve you. Nothing fishy there. That is how it is done. They just have to catch you or someone over 18 who lives there at home.

 

You are correct to question whether they are the legal owners of the debt, called standing. Look at this link and read it while you have time.

 

http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/?hl=standing

 

It is possible they are the first JDB to buy the debt. Not guaranteed, but possible.

 

When you get served, the complaint should have more docs in it and we can help you formulate an answer.

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