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Answer suit by OC???


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I am being sued by the OC for approx. $4,000 and it is not my debt.  It is part of a large identity theft, but AMEX is horrible to work with.  I've provided them with everything they asked & still they are suing.  Debt was from 2010, and they sued once before in 2011 & I thought they won the judgement.  Well, now it is not on my credit report anymore, and they are suing again!  Should I answer or should I try to call their atty's to explain it is identity theft.  I have a police report and have filled out oodles of affadavits with other companies.  AMEX is very hard to deal with & even if I ever get my credit restored I will NEVER do business with them again.  That is probably not likely, since my credit score is in the 300's because of this identity theft mess.

 

Thanks for any & all help

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calling them will do no good.  Motion to dismiss in leiu of an answer (check this to make sure it is an option in your rules, some states you have to answer and file the motion)  When you file the motion, include all of your documentation from everyone, other creditors that have dismissed, police reports, et all.  That is the only way to get them to dismiss with prejudice.

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Below is what I was going to file, does this sound right?

 

 

State of Indiana                              ]                              Clark Circuit Court

County of Anytown                        ]SS                          123 E Blah Ave Rm 456  

Me & Mine                                      ]                              Anywhere, IN  xxxxx

Defendant                                                                       Phone: xxx-xxx-xxxx

 

- vs  -                                                                                Case No   xxxxxxxxxxxxxxxx

 

American Express

Centurion Bank

Plantiff

 

ANSWER

 

Defendant, Me & Mine, 789 W My Street Dr, Anywhere, IN  xxxxx, by way of answer to Plaintiff's Complaint states as follows:

 

 1.           Defendant denies indebtedness to American Express Centurion Bank, as Defendant is a victim of identity theft, and such amount as listed is a part of that reported theft.

 

2.            Defendant does not argue venue, although irrelevant since debt is not defendant's.

 

Wherefore Defendant respectfully replies the following:

 

1.            Defendant states the sum of $4,896 is invalid, stated amount is not owed by Defendant due to identity theft.

 

2.            Defendant denies any cost to Plaintiff.

 

3.            Defendant denies any and all relief to Plaintiff.

 

 

Me & Mine, Defandant

 

---------------------------------------------------------------

 

cc:

Attorney Name

Firm Name PLC

Attorney for Plaintiff

PO BoxXXXXX

Another town, KY  xxxxx-xxxx

xxx-xxx-xxxx

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I think your answer is fine except I would just enter "general denials to numbered paragraphs" and then have separate paragraphs where you state "Defendant denies incurring any indebtedness to plaintiff as defendant was a victim of identity theft and never had an account with the plaintiff."

 

Either way works though.

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Yes, this is the same law firm that originally sued on 2011.

 

I did have an account with them, but these are not my charges.  This was the first card used in the identity theft.  The thieves also ran up all my other cards & opened around 60 more cards/accounts.  Many of these only required sending them the police report & they dropped any attempts to collect.  Some have been stubborn & tried collections up to the point of suing me, then I again sent the police report & in a few an affidavit & they dropped collection efforts.  Only AMEX has been so stubborn as to actually sue me.  I just want them to resolve this properly.

 

I also need to start getting these off my credit report.  Hopefully after I get the AMEX resolved, I can just start at the top of the CR & send info to those companies who reported to the credit bureaus & they will remove appropriately.

 

Thanks for all the help, I will amend my answer as you suggested.

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@tooty

 

If it were me, I'd contact an attorney just to see if you need to include any documentation of the ID theft with your answer.  Did you file a police report at the time?

 

In my state, I can contact the state bar association and ask for the Lawyer Referral Service.  They'll provide me with a name of an attorney in my area.  As a result, that attorney will give me a consultation at a reduced rate.   By doing that, you could get answers to any questions you might have about the proper procedure.

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BV80,

I'll give that a try on Monday.  I really can't afford a lot in legal fees, but a reduced rate to get my questions answered would be great. And yes, I did file a police report.  After all that has happened, I have more than one report, some OC's have required a report with their name specifically on it, so I went back to the police & they gave me a report for just that OC.

Thanks!

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  • 2 weeks later...

I was not able to get an atty thru a referral service, my hubby makes too much money (wish I knew how to pay bills with that 'too much').  Anyway, when I filed the answer at the county clerk's office, clerk told me that AMEX almost always wins & will begin proceedings to garnishee right away.  She said that is just what she has seen them do.  My only hope apparently is that the judge will hear the case & acknowledge that we should not have to pay for Identity Theft. 

 

Does anyone have any suggestions for what else I might do?

 

A relative told me to file BK, but that seems drastic & kind of illegal, because as I understand it, we would have to declare the debt has ours and it isn't.  Also, that would put all we own in jeopardy.  I don't want to do that over a $4,000 debt, so should I make arrangements to make payments?  Should I try to win before the judge & then make payment arrangements if I lose? 

 

The debt is in my hubby's name, I have only disability income, so they can't get me, but he works so if I understand it right, he can be garnished. 

 

I may have done something wrong in this process to get to where we are, but I just need to get us out of this mess.  I've given AMEX everything they've asked for in terms of the identity Theft, but they are just ignoring that & trying to collect.

 

Any help is appreciated.

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I find that many clerks are idiots and do not know what they are talking about.   In her case, she probably sees all the default judgments and eventual garnishments after the default judgment.   If you have already filed your answer alleging identity theft then it is time to start gathering documents to establish your defenses and requesting documentation from them.   Did you inform them of the identity theft once you discovered the problem?  During the first lawsuit?

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I informed them first, since they were the card it all started with.  After that they tried to collect anyway, bombarded us with phone calls (it got so bad my hubby had to block them from his phone they were calling his cell phone all day at work).  We were served the first lawsuit last year, about the same time. 

 

During the first lawsuit, I filed an answer & attached all my info on the ID theft & they got a judgment anyway.  However, the judgment fell off my hubby's credit report, I didn't know about that until we were served with this suit.  Don't know what happened, but I have the CR showing the previous judgment & the current showing no judgment.  I didn't file that with the answer, just hoped to use it in court if I get to go before the judge.

 

This is the nightmare that never ends.  Most of the other creditors took our info & some were decent to deal with.  Others just charged off the account, essentially wrecking our credit.  I found out how many had done this when I went to buy a car in Jan 2012. I wound up with an awful interest rate to get a car (I had previously been unable to drive due to seizures, when I got my miracle drug, the happiness was marred by this mess).  Car financed thru Santander, not a very reputable company I have since learned.  I pay every payment on time, hoping this would help my credit, but I think just financing thru them hurt my credit.

 

Anyway, I just need to deal with this lawsuit right now, then begin the process of cleaning up my credit.  In the middle of finding out about my credit & now I was diagnosed with Lymphoma, so I've been kind of busy & tired from chemo.  I'm in remission now & ready to tackle my credit mess after dealing with this suit.

 

Thanks for your help.

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I'm sorry for all this Tooty.  I would fight this the best I could, with help here.  If you lose, and if your medical bills are really high, I would consider BK--it would wipe everything out, charge offs, et all, and you can start over.  With the on going reporting for 7 years, it will be a long time to get your credit back.  After a BK--yes it is on your credit for 10 years, but lenders will give you credit after 2, and your score will be higher then instead of all this that will keep dragging you down.  Just a consideration.

I wonder why the judgement was vacated.  Did you go thru court last time, or did they get a default?

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I went thru court when the judgment was filed, but after they granted the judgment I didn't do anything to have it vacated.

 

As for medical bills, I have almost none, I have 3 insurances, so what 1st & 2nd don't cover, my 3rd does.  1st ins is my hubby's thru his job, 2nd medicare & 3rd mine thru my disability pension.

 

To file BK I guess I could file against all those on the credit report, but that seems kind of underhanded because I thought I'd have to state those were my debts & technically they aren't.  However I guess since they show on my report, they look like mine.

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http://www.indianaconsumerlawgroup.com/lawyer-attorney-2055625.html

 

 

  The FDCPA does not apply to original creditors

No it doesn't, but; you can find a lot the same laws that they are not supposed to break in other bodies of law, such as business and commerce codes, as well as banking and creditor codes that you can look up in your states statutes and codes. The FDCPA just made it easier on consumers, and people that were less informed. The lawyer told me that FDCPA would do nothing for me (being sued as a business), but I was able to make much of  the same arguments using other codes and statutes, including the state bar model rules on ethics and conduct, as well as some business codes that were in effect even before the FDCPA. It just takes a little more research.

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http://www.indianaconsumerlawgroup.com/lawyer-attorney-2055625.html

 

 

Contact this lawyer, and see if he can help.  The FDCPA does not apply to original creditors, but it is illegal for Amex to sue you for debt that is not yours.  That would be malicious prosecution or abuse of process or some other tort.

 

I am contacting him now.  I've just gotten around to reading replies to my pleas for help.  Sorry but I've been too sick to get to the computer, but still need to handle this somehow. 

 

Thanks so much for posting this & I'll let you know how this works out.

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