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Didn't file answer in time, but not default judgement.... yet.


Rhody
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I received a Summons (hand served by constable, in Rhode Island) on April 17th of this year (almost 7 whole months ago) from LVNV Funding LLC for an alleged debt of $3,XXX.xx. The only thing attached to the summons was a complaint listing 5 things (1) Where I live, 2) who I opened a credit card with, 3) The account was purchased by LVNV, 4) I owe LVNV $3,XXX.xx, and 5) Despite demand, balance remains unpaid.

No account number was specific (just a credit card company name) and nothing else was attached (no evidence or anything else). So basically a very basic complaint for a debt and that's it.

At the time, I was naive, and like 90% of the people in this situation I didn't submit an answer. I didn't think I could win and I can't afford a lawyer. Since then I have done a lot of research and realized I should've at least submitted an answer to the court. I did not do that though, I just ignored it, and that's my fault.

So skip ahead to now, 7 months later. I receive something in the mail from the attorney. But all it says is "Our client has placed the above debt with this office for collections. Accordingly, you must arrange payment with this office. We accept credit cards, etc". So a basic debt collection notice, nothing to do with the case they filed. It didn't say they have a default judgement, and it says this is a communcation from a debt collector attempting to collect a debt. It also says "At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. However, if you fail to contact this office, our client may consider additional remedies to recover the balance due"

How can they say no attorney with the law firm has reviewed the circumstances when they FILED A LAWSUIT 7 months ago? I know that's common verbage to put in a debt collection letter, but it's false.

ANYWAY.... I finally man up and call the county clerk and ask for information about my case. This is how it went:

Clerk: "We have nothing except the complaint filed on 4/17/13 and a notice that it has been served"
Me: "So... there's no judgement?"
Clerk: "No, and it isn't scheduled on the court calendar"
Me: "Are there any other papers or evidence.. anything other info?"
Clerk: "No, nothing has happened since it was filed"
Me: "I know it's way overdue, but I didn't file an answer with the court"
Clerk: "Well technically we'll still accept one"

I'm shocked! How has nothing happened with the case at all? I looked up the court calendar, and it's full of LVNV and this lawfirm sueing people and getting default judgements and wage garnishments. How did my case slip through the cracks?

My question is: What should I do now? File an answer with the court, right? That way if/when it goes before a judge, I have SOMETHING. Or will this just alert them about a case they forgot and cause them to file for default judgement (since I didn't answer).

 

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I would immediately file an ANSWER denying everything. LVNV is famous for it's delaying tactics usually filing suit's weeks prior to the Statute of Limitations in order to collect maximum interest.  This may have fallen through the cracks but more then likely LVNV is just intentionally delaying for some reason involving increased interest. LVNV files so many lawsuits it's easy to understand the confusion. Maybe the original attorney went out of business or retired and they are starting over?? Whether you are late or not doesn't matter if the Court will accept your answer.  Usually if there is no action on a case within a certain time established by your local rules of civil procedure the case can be motioned to be dropped. Usually one year in many states. 

 

Just to cover all bases send LVNV a request for debt validation (DV).  See how they react to that.  Nothing like a litte more obfuscation to hold them off a while longer and add to the confusion.  Maybe they will try to sue you twice on the same account and you can easily get that thrown out.

 

HP

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Ok, I will definitely file an answer tomorrow, and send a copy to their lawyers certified mail.

 

I'm wondering if anyone can tell me if they screwed up by saying "no attorney with this firm has personally reviewed the particular circumstances of your account" months after filing the lawsuit. Can i hold that up in court and say "Their laywers admit to not reviewing the case before filing". Or is there no issue with a law firm / debt collector filing a suit without reviewing the account first. I may be splitting hairs, but I'm just trying to find an edge to use.

 

I've done a lot of research on LVNV and I will be firing all guns (figuratively) at them. I will file with the BBB, send a DV letter, complain to their state's attorney general, dispute each item in the tradeline, and more. Hopefully they will realize I'm not worth the hassle.

 

One l last thing. They filed the suit in April saying I owe $3,400 but the collection letter this month says $3,800... that's a huge difference and seems like they are tacking on interest like crazy. Is this illegal (20% APR on a charged off debt they bought for pennies?)

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I'm wondering if anyone can tell me if they screwed up by saying "no attorney with this firm has personally reviewed the particular circumstances of your account" months after filing the lawsuit. Can i hold that up in court and say "Their laywers admit to not reviewing the case before filing". Or is there no issue with a law firm / debt collector filing a suit without reviewing the account first. I may be splitting hairs, but I'm just trying to find an edge to use.

 

It's a form letter, they don't tailor those to suit each individual situation. Why spend more money than you have to.

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I get that it's a form letter, but that's not an excuse to say something false. I'm trying to find out if this will help if I need to bring it up later in court.

 

They can't threaten any action they are not going to or cannot legally take.  Since they have already sued you it is unlikely the court would give the letter much weight other than to question if they know what they are doing.  If anything I would use it to attack their credibility that if they can't even remember they sued you already and sent another collection letter how can the prove their evidence is accurate either?

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I get that it's a form letter, but that's not an excuse to say something false. I'm trying to find out if this will help if I need to bring it up later in court.

I suppose technically it's a violation of §1692e but since it's the only one you seem to have, they will easily weasel out of it on bona fide error so, as others have said, don't burn any calories on this angle.  File your answer and move forward with your affirmative defenses.

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