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Can someone knowledgeable in the FDCPA procedures help with lawsuit questions?


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You may remember the tread about my aunt., but a recap.

 

My Aunt would like to bring suit against a collection agency, Allied, along with LVNV Funding who claims to own her "debt" and even  Asset Acceptance who used to "own her debt", or even Kaplan attorneys who sued her for the "debt"  Here is the story, please tell me what you think.

2005 she defaulted on a credit card.  The debt was sold to AA, and Kaplan out of Az. sued her in 2007, and received a default judgement.  The Judgement was for 7800.00.  My Aunt took a laughable settlement for this of 6400.00.  She paid the judgement, and received a Paid In Full stipulation letter from Kaplan after the judgement was paid.  She has kept a copy of this.

My Aunt has 2 homes.  in the winter, she lives in sun city arizona, and in the summer she lives in Colorado.  She was sued in Az. and it was during the time she was in colorado, so she didn't know about the lawsuit, hence the default judgement.  OK, fast forward to present day 2013.

Allied a CA for LVNV is trying to collect on this same debt today.  They state she owes 4,586.00, and is due an payable now, what sort of payment arrangements would she like to make?  They have sent her 3 letters, she knew she didn't owe it, so she ignored the letters. (2 of them, 3rd one came today)  She is presently in colorado, and these letters came to her colorado address.  I will say that they have a disclaimer that says the debt is past the SOL, and they will not sue, but she still owes it.

She contacted a couple of consumer attorney's here in colorado and did not receive a response, one from AZ. responded and said he would like to take her case.  No upfront money to him, but he would need 1200.00 up front to pursue for filing fees to bring suit against 1. kaplan, 2. asset, 3. LVNV, and 4. allied, and money for copying paper work, yada yada yada.  He projected if we won she would receive 4500.00 (I don't know where he got that figure)

Anyway does that 1200.00 figure seem high? She cannot afford to do that. I know there would be filing fees, but 300.00 each defendant?  It is usually 65.00 per case here to file a lawsuit.  I personally would like her to take a poke at the JDB's for all the misery, and unfair credit practices they practice.

So my questions are, can she bring this suit herself?  What venue would she use, we have small claims, magistrate, and district court here locally, federal court house is 250 miles away.  Can one case be filed listing all of the defendants? or does there need to be 4 separate cases?  I can look up the charges, but I don't know about the venue, I know when they file against us it has to be where we live, so can she file against them locally, or does it have to be where they have their place of business?  Thanks for your insight!

 

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Filing an FDCPA suit is not quite as easy as some make it out to be, especially when you're including so many entities.   A case can be dismissed on the basis of an incomplete or inadequate complaint.  

 

I assume she wants to include Asset for selling the account after it was considered paid in full?   I'm not sure how Kaplan would be included in this.  They merely represented Asset and had nothing to do with the sale of the account after it was paid.

 

I don't know if the 1200.00 figure is high or not.  If the attorney wants to file in federal court, the fees may be higher.   As far as her statutory damages are concerned, it's possible the attorney would be claiming $1000 from each entity.   But that doesn't add up to $4500.  Also, as I previously stated, I don't know how Kaplan could be included.  Shop around for some other attorneys.  It's just like looking for a doctor.  Get other opinions.

 

Also contact NACA.

 

http://www.naca.net

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It looks like the fees to file a Federal Case are 400.00 each for both states. With the limited amount of info it really depends if the attorney is sure she can win or is just fishing for a client. I am all for going for an FDCPA case if she thinks she can win. The question is does she have solid cases. If she wins or most likely if they settle then she should get 1k per case plus her cost. Just make sure the attorney she is talking with has experience and has the proven cases to back it up. 

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Did you ever contact that CO atty named Larson or Larsen I mentioned to you a while back?    He has handled many suits.  You can also try national lawfirms such as www.attorneysforconsumers.com  www.krohnandmoss.com  or www.lemberglaw.com

 

Most consumer lawyers don't require anything up front if they think you have a solid case.

 

You could do it pro se and file in small claims, but the defendants will likely remove it to federal district court.  You will need to do a lot of study, preparation and research if you go that route.  Keep trying to find a lawyer.  I had to contact 6 before I found one to take my case.

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The debt was sold to AA, and Kaplan out of Az. sued her in 2007, and received a default judgement.  The Judgement was for 7800.00.  My Aunt took a laughable settlement for this of 6400.00.  She paid the judgement, and received a Paid In Full stipulation letter from Kaplan after the judgement was paid.  She has kept a copy of this.

 

Did your aunt receive a Satisfaction of Judgment from Asset? Is it filed in the official records? If she does not have one, she needs to contact opposing counsel and request one. If in fact Asset accepted $6400 in full settlement, there shouldn't be any problem getting one. If there is a problem (they won't do it), her case starts to look better.

Allied a CA for LVNV is trying to collect on this same debt today.  They state she owes 4,586.00, and is due an payable now, what sort of payment arrangements would she like to make?  They have sent her 3 letters, she knew she didn't owe it, so she ignored the letters. (2 of them, 3rd one came today)  She is presently in colorado, and these letters came to her colorado address.  I will say that they have a disclaimer that says the debt is past the SOL, and they will not sue, but she still owes it.

 

Send a cease communication instruction to Allied and to LVNV at their home office. Include a copy of the the stipulation in your letter. Right now, you don't have a real strong case (this strikes me as something that might make effective use of BFE defense). If you send cease communication and they continue to contact you, then you have a good claim; both under 1692c and 1692f. Until then, I would not want be in a hurry on this one.

She contacted a couple of consumer attorney's here in colorado and did not receive a response, one from AZ. responded and said he would like to take her case.  No upfront money to him, but he would need 1200.00 up front to pursue for filing fees to bring suit against 1. kaplan, 2. asset, 3. LVNV, and 4. allied, and money for copying paper work, yada yada yada.  He projected if we won she would receive 4500.00 (I don't know where he got that figure)

 

If she files suits, she need only file suit in Colorado (1 filing fee) and serve all the defendants. I think she potentially has a good argument for jurisdiction in Colorado (I don't see Kaplan being involved in this, however). 

 

There is no need to pay more than the filing fee and the cost of service up front (most FDCPA attorneys won't even ask for that). $1200 seems excessive. This case should not come close to accruing that much in costs. And, again, the attorney should advance the costs of litigation. Unless there is a claim for actual damages (which is not apparent here), the maximum recovery is $1K. Nothing in the statute would support an award of $4500 for purely statutory claims.

 

 

 

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You may remember the tread about my aunt., but a recap.

 

My Aunt would like to bring suit against a collection agency, Allied, along with LVNV Funding who claims to own her "debt" and even  Asset Acceptance who used to "own her debt", or even Kaplan attorneys who sued her for the "debt"  Here is the story, please tell me what you think.

2005 she defaulted on a credit card.  The debt was sold to AA, and Kaplan out of Az. sued her in 2007, and received a default judgement.  The Judgement was for 7800.00.  My Aunt took a laughable settlement for this of 6400.00.  She paid the judgement, and received a Paid In Full stipulation letter from Kaplan after the judgement was paid.  She has kept a copy of this

 

Does this agreement stipulate that the balance was never to be sold.  NOTHING prevents them from doing so if it is not in that agreement.  

My Aunt has 2 homes.  in the winter, she lives in sun city arizona, and in the summer she lives in Colorado.  She was sued in Az. and it was during the time she was in colorado, so she didn't know about the lawsuit, hence the default judgement.  OK, fast forward to present day 2013.  

 

If she only lives in CO part time then she cannot use the CO courts as she is not a legal resident.  Not to mention that a FCDPA case is a long haul proposition and only being in the state a few months a year would make pursuing it very hard.  File in the state of primary residence.  

Allied a CA for LVNV is trying to collect on this same debt today.  They state she owes 4,586.00, and is due an payable now, what sort of payment arrangements would she like to make?  They have sent her 3 letters, she knew she didn't owe it, so she ignored the letters. (2 of them, 3rd one came today)  She is presently in colorado, and these letters came to her colorado address.  I will say that they have a disclaimer that says the debt is past the SOL, and they will not sue, but she still owes it.  

 

Ignoring that first letter was a HUGE mistake.  That is when they had to legally validate what they are collecting on if she requested it within 30 days of receiving that letter.  The first thing I would do is send a letter indicating that the debt was settled in full years ago through Kaplan Law Firm and tell them to FOAD.  It isn't illegal to send a letter stating "you owe money do you want to pay" and until she tells them "I don't owe this debt and don't contact me" it isn't a violation to ask her if she wants to pay it again.

She contacted a couple of consumer attorney's here in colorado and did not receive a response, one from AZ. responded and said he would like to take her case.  No upfront money to him, but he would need 1200.00 up front to pursue for filing fees to bring suit against 1. kaplan, 2. asset, 3. LVNV, and 4. allied, and money for copying paper work, yada yada yada.  He projected if we won she would receive 4500.00 (I don't know where he got that figure)

 

Kaplan was only the firm of record in the original suit.  They are not responsible for the new CA/creditor actions now.  If the debt deficiency was legally sold then Asset isn't responsible either.  

Anyway does that 1200.00 figure seem high? She cannot afford to do that. I know there would be filing fees, but 300.00 each defendant?  It is usually 65.00 per case here to file a lawsuit.  I personally would like her to take a poke at the JDB's for all the misery, and unfair credit practices they practice.

 

UNFAIR does not automatically equal ILLEGAL.  It takes WAY WAY more than unfair to sustain a FDCPA case and get it wrong and she could end up having to pay their lawyer fees which will be way more than $1200.

So my questions are, can she bring this suit herself?  What venue would she use, we have small claims, magistrate, and district court here locally, federal court house is 250 miles away.  Can one case be filed listing all of the defendants? or does there need to be 4 separate cases?  I can look up the charges, but I don't know about the venue, I know when they file against us it has to be where we live, so can she file against them locally, or does it have to be where they have their place of business?  Thanks for your insight!

 

Can she?  Yes.  Should she? No.  Clearly she is already in over her head as she ignored the first and most important letter and doesn't even know which venue to pursue the action in.  If she doesn't know the basics then she needs skilled counsel.  I don't think this particular AZ attorney is competent and would interview a few more and find out if there is even a case to pursue.

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"It isn't illegal to send a letter stating "you owe money do you want to pay" and until she tells them "I don't owe this debt and don't contact me" it isn't a violation to ask her if she wants to pay it again."

What about 15 USC 1692e ( 2 ) ( a )?

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

( 2 ) The false representation of --

( a ) the character, amount, or legal status of any debt; or

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"It isn't illegal to send a letter stating "you owe money do you want to pay" and until she tells them "I don't owe this debt and don't contact me" it isn't a violation to ask her if she wants to pay it again."

What about 15 USC 1692e ( 2 ) ( a )?

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

( 2 ) The false representation of --

( a ) the character, amount, or legal status of any debt; or

 

They don't know that it is false.  The letter even indicates they will not sue so that is not misrepresenting the legal status.  Right now based on the facts at hand since no validation was done with the initial contact we don't know they violated anything.  It may actually be legal if this is an attempt to collect on that deficiency balance that was sold.

 

If I had received that first letter I would have sent a DV letter stating "WTH?  This was settled in 2005 and paid to KLF (see enclosure).  C&D all contact you have no legal standing to collect on a settled debt and further attempts will be in violation of the FCDPA."  Any attempt to collect after that letter would be a violation.   

 

If the deficiency balance was sold that is still collectible and subject to post judgment interest which can add up quickly.  

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If the deficiency balance was sold that is still collectible and subject to post judgment interest which can add up quickly.  

 

That is precisely why the details of the $6400 settlement are important. If the agreement was to accept $6400 in satisfaction of the judgment, there is no remaining balance. If the aunt was misled as to the effect of her "settlement" payment, we've got some other issues. In any event, the balance due makes no sense. Even if a $1400 balance remained on the judgment, there is no way that statutory interest on the remaining balance could add up to $4586. I have no doubt something illegal is going on here. We just need to figure it out.

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deficiency balance was less than 1000.00, but what they are asking for was the amount of the original charge off.  Kaplan got 2500.00 more in the judgement for interest, legal fees etc.

Yes the stipulation letter says on it's face that she cannot be sued again, payment is in full, so I guess that would be a satisfaction of judgement?

 

She lives in colorado 50% of the time, and AZ. 50% of the time.  She lived in colorado for 35 years, and about 10 years ago bought another home in AZ, so I don't know what would be considered her primary residence.  Her taxes are filed in colorado.

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deficiency balance was less than 1000.00, but what they are asking for was the amount of the original charge off.  Kaplan got 2500.00 more in the judgement for interest, legal fees etc.

Yes the stipulation letter says on it's face that she cannot be sued again, payment is in full, so I guess that would be a satisfaction of judgement?

 

She lives in colorado 50% of the time, and AZ. 50% of the time.  She lived in colorado for 35 years, and about 10 years ago bought another home in AZ, so I don't know what would be considered her primary residence.  Her taxes are filed in colorado.

 

Proper venue under 28 U.S.C. 1391 does not depend upon residency of the plaintiff. It is irrelevant whether she lives in Arizona most of the time or vice-versa. The letters were sent to her in Colorado, hence the judicial district in which a substantial part of the events or omissions giving rise to the claim occurred is Colorado.

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Proper venue under 28 U.S.C. 1391 does not depend upon residency of the plaintiff. It is irrelevant whether she lives in Arizona most of the time or vice-versa. The letters were sent to her in Colorado, hence the judicial district in which a substantial part of the events or omissions giving rise to the claim occurred is Colorado.

 

She was sued in AZ and that is where the judgment was from.  That could potentially complicate the issue.

 

deficiency balance was less than 1000.00, but what they are asking for was the amount of the original charge off.  

 

Yes the stipulation letter says on it's face that she cannot be sued again, payment is in full, so I guess that would be a satisfaction of judgement?

 

She lives in colorado 50% of the time, and AZ. 50% of the time.  She lived in colorado for 35 years, and about 10 years ago bought another home in AZ, so I don't know what would be considered her primary residence.  Her taxes are filed in colorado.

 

So at this point the new CA likely bought a portfolio which did not include that this matter had already been litigated and settled.  Until your Aunt sends them a DV letter, C&D collections, along with proof that the debt no longer exists they are probably clueless that this is over and done.  In order to sort this out and determine if they are breaking the law she is going to have to contact them.  

 

If it were me I would send a sarcastic/snotty letter stating "No, I do now wish to make payments on a debt that had a judgment in (court) and was settled IN FULL with the Kaplan Law Firm on (date) see enclosed documentation.  I would like to discuss payment from you for your violations of the FCDPA in attempting to collect on a debt that does not exist and you do not own.  How would you like to pay me?"

 

Now if they still try to collect after being informed of the facts then bleed them dry.

 

If she files taxes in CO then that would be her primary residence.  

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@shellieh98

 

Yes the stipulation letter says on it's face that she cannot be sued again, payment is in full, so I guess that would be a satisfaction of judgement?

 

 

Clydesmom makes a point.  LVNV may not know that the account was settled.  If they bought it in a portfolio of debts, that's not their fault. 

 

If the letter says the account was paid in full, there should be no balance left.  Asset is the one who's to blame.  They should not have sold the account.

 

Has your aunt check the court records where the judgment was obtained to see if the records reflect that the judgment was satisfied?  What does the letter say about the judgment?

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This is the documentation she has

Copy of the judgement from state of AZ

copy of a letter from kaplan to pay or they would bring her in for a debtors exam

copy of the letter back to them stating she did not know about the judgement, but would like to settle it. (she went to the court and that is when she got a copy of the judgement)

copy of the cashiers check made payable to kaplan and a letter stating she wants the stipulation letter as agreed to for settlement payment.

copy of the stipulation letter stating the debt is paid in full and she cannot be sued again for this debt.

copy of the courts judgement satisfaction under stipulation.

 

This woman saves everything lol, they are all from 2005 (when judgement was entered to 2007 when judgement was paid.

 

The judgement references the case number and account number, the letters reference the case and account number, the letters she has from them, and that she sent all reference at least the account number.

Then she has 1 copy of a letter from allied collections, and they have been calling her 2-3 times a day for the last 2 weeks.  I was going to help her draft a c and d letter but wanted to find out options before I did that. I even thought about doing like clydesmom said, filling out a complaint and sending a copy of all the paperwork and intent to sue letter to them.  The thing is, I dont think she could afford the filing fees right now, so didnt know if she should send that if she didnt follow through with it.

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You guys are making this much more complicated that it is . . .

 

@Clydesmom, The fact the underlying judgment was issued in Arizona is irrelevant. The judgment is the "debt" within the meaning of 15 U.S.C. 1692a(5). Dont' forget, it is the collection of the debt that we're concerned with here, not the debt itself. 

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@shellieh98

 

@nascar

 

I'm just not sure she has a claim against Allied and LVNV right now.  Again, the account should not have been sold.  Unless Asset boo-booed and included the account in a portfolio along with the settlement agreement, LVNV would have no way of knowing that the account is not valid.  Your aunt hasn't let them know that the account has been paid and settled.

 

Also, Allied is collecting for LVNV.  If LVNV doesn't know the account is settled, how would Allied know?

 

I'm thinking that the violation is only with Asset.  If you include LVNV and Allied in a lawsuit, you'd have to show they knew about the settlement.

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Just want to add that $1200 upfront for filing fees seem excessive. $400 to file then figure $75 to serve each party. I think reasonable filing fees should be more in the range of $700-$800 

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@BV80

 

In my dealings with Allied and LVNV I found that they are most likely both part of the Sherman Companies. They have over a dozen different companies, usually with few to zero employees and a P.O. Box. A lot of them also collect in many states without a collection licence. In Tennessee alone it would cost hundreds of thousand of dollars if they operated legally. 

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@ArtVandelay

 

@BV80

 

In my dealings with Allied and LVNV I found that they are most likely both part of the Sherman Companies. They have over a dozen different companies, usually with few to zero employees and a P.O. Box. A lot of them also collect in many states without a collection licence. In Tennessee alone it would cost hundreds of thousand of dollars if they operated legally. 

 

Good to know.  Thank you.

 

However, I'm still not sure that there could be a claim against LVNV and Allied.  It would have to be proven that LVNV knew that the account had been settled with Asset. 

 

Considering the fact that the debt was paid in full, Asset Acceptance is the culprit because they sold an account that was paid.

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However, I'm still not sure that there could be a claim against LVNV and Allied.  It would have to be proven that LVNV knew that the account had been settled with Asset. 

 

Considering the fact that the debt was paid in full, Asset Acceptance is the culprit because they sold an account that was paid.

 

The problem with Asset being the culprit is there was a balance.  If the settlement agreement did not stipulate that the remainder balance was in dispute and/or could not be sold then they didn't sell a paid account.  They sold an account with a collectible balance if the creditor opted to pursue it.  Asset simply sold a large chunk of debt as one portfolio and any account with a balance would be eligible.  This judgment has a balance outside of the settlement.  

 

So far I don't see a claim at all.  It appears the settlement agreement did not contain language that stated the remaining balance could not be sold or collected.  It simply said that the debt itself could not be litigated again which is entirely different.  There is no proof Allied or LVNV had any idea the account was settled prior to sale and the Aunt has yet to send them communication documenting this and telling them to FOAD.  Kaplan isn't responsible for the actions of the new debt buyer as they merely represented Asset in the original litigation.  Since there was a balance between the judgment and settlement I am not convinced that Asset did anything wrong in selling that debt.  

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@Clydesmom

 

The problem with Asset being the culprit is there was a balance.  If the settlement agreement did not stipulate that the remainder balance was in dispute and/or could not be sold then they didn't sell a paid account.  They sold an account with a collectible balance if the creditor opted to pursue it.  Asset simply sold a large chunk of debt as one portfolio and any account with a balance would be eligible.  This judgment has a balance outside of the settlement.

 

Shellie said that the agreement stated that the account was paid in full.  As far as I know, there's only one definition of "paid in full".   In addition, the court is reporting the judgment as satisfied.

 

 

 

 It appears the settlement agreement did not contain language that stated the remaining balance could not be sold or collected.

 

 

It doesn't have to contain that language.  Again, "paid in full" means just that.  It doesn't mean "paid in part".

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