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And now for something a little different....not a JDB suit


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Hi,

 

So, first thread for a new guy.  And I have been sued by a local small-time auto loan lender.  I have had a dispute with this lender since October 2012 regarding the way they have reported on my credit reports.  I have gone through the steps there, done the dispute through CRA, and the lender verified as accurate. 

 

Fast forward to last month.  The vehicle that is the subject of the suit was involved in a wreck.  I was found to be 100% not at fault.  The car is totaled, nothing left.  Three days after the accident, I get served with papers for this lawsuit.  I filed a basic denial as my answer, figuring that it would buy enough time for my insurance to declare the car a total loss and pay accordingly.  This is what happened.  Ins company totaled the car around 10/21 and notified the lender to get payoff info.  More than a week after being notified that the payoff amount will be paid in full, the lender through their attorney files a motion for summary judgment!  By the time that I received a copy of this motion, insurance had already paid them in full for the balance owed on the loan.  They actually were overpaid, because they did not give a correct payoff to my insurance company. 

 

My original plan was to file an opposition motion to their MSJ, because they are still claiming almost $1500 in inflated charges as owed.  I then got to wondering if I should not just file a motion to dismiss, showing that they have already been paid in full....? 

 

More details--the inflated balance is legal fees and court costs.  I am presently pursuing their attorney for FDCPA violations--mostly for ignoring a timely DV letter and continuing collection efforts anyways.  I have proof of their letters and proof that they got my DV request within 20 days of the date of their initial letter.  Any guidance here would be appreciated!

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Sorry, guess I need to do this right:

 

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

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

3. How much are you being sued for? $7500

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

 

It is the plaintiff

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

 

I was served properly

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

 

in person

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

 

yes

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

 

Dispute over the phone and in person, dispute with credit bureau, dispute letter to plaintiff's attorney, all went unanswered

9. What state and county do you live in?

 

Louisiana, St. James

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

 

Payments were made through most of this year, so current on SOL

11. What is the SOL on the debt?

 

still within SOL

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).

 

First trial date set, but then just received MSJ to be ruled upon that same day.

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

 

yes, with both.  Creditor maintains there are no errors even though I have them on tape during a phone call admitting I was current when they marked me late.

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.

 

Yes, DV sent to their attorney.  The attorney ignored it completely, then sent more collection letters and then filed suit.

15. How long do you have to respond to the suit?

 

I already answered.  This is a breach of contract suit on a promissory note.  being the OC, I am confused as to why they do not just produce the note.  Twice they claimed to attach it and did not do so either time.

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

 

In the complaint, they stated that they had attached the original signed promisory note, but did not attach it.  I referenced this in my answer.  In their MSJ, they again claimed that they had attached it as "Exhibit A".  There was no Exhibit A attached, though there was an affidavit as Exhibit B. 

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File an Objection to Motion for Summary Judgement. Detail the facts of the accident and the payoff. This will defeat the MSJ because there will be triable facts. Include an affidavit of the facts as you know them. (Do not try to include hearsay)

Once the MSJ is defeated then consider the motion to dismiss.

If you ignore the MSJ, they may get a judgement for the full amount.

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Lawyer is going to want his fees how ever over inflated they are. I would check my rules of civil procedure, and see if I could amend my answer so you can include cross claims for the fdcpa violations. File the opposition to the summary judgement. If you can get some leverage on them they will be more likely to dismiss.

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Lawyer is going to want his fees how ever over inflated they are. I would check my rules of civil procedure, and see if I could amend my answer so you can include cross claims for the fdcpa violations. File the opposition to the summary judgement. If you can get some leverage on them they will be more likely to dismiss.

Thanks for this---I will be filing a cross complaint this coming week, after the holiday.  Was just served with the MSJ today.  My cross complaint will be against the attorney.  We actually have a LOT more issues than what I posted with the lender, and we are already mapping out a fresh suit against them separately from this.  My reasoning behind keeping it separate is because I believe that their case will be dismissed totally.  Once that happens, they will have nothing to try to leverage with.  Aside from that, they filed their case in a local city court and my research shows that this city court does not like to deal with federal law issues such as FDCPA claims.  The cross complaint, they will more readily accept, since it ties in with the case already filed against me there. 

 

I do understand that their attorney will come looking for his fees, but unless they provide a signed promissory note, showing the stipulation of 25% of the owed balance being tacked on as "legal fees", then they can pound sand as far as I am concerned.  This is not a number for actual legal fees.  It is a claim that the lender makes, according to their finance agreements, where 25% of the total outstanding balance is added on and classified as "legal fees".  If the attorney writes one letter and does nothing more, they try to tack that on.  The way I see that, is basic contract law--no contract, no $$$.  Twice now, they have referenced this promissory note and claimed in both the complaint and the MSJ that it was attached as a named exhibit...both times, there was no such exhibit attached.  I am really confused by this, as I would expect the original creditor to have this document.  As for the attorney's fees, there is nothing in our CCP that would automatically put those fees upon the defendant.  They have not won their case by any means as of yet, and so it is quite premature for them to try to force those fees upon me now.  As it is, I will be petitioning the court for the overpayment to be refunded.  Same as with attorney's fees, the court costs are to be paid by the party that the court orders, am I correct there?  Because when my ins company requested a payoff, my lender padded the actual payoff amount by adding the court costs they already incurred into it.  I see that as very improper, since they are not guaranteed to be awarded those costs by any stretch.  In addition, they are still asking the court to order me to pay those costs--and they have already been paid for them.

 

More detail--I filed an answer denying their claims.  My answer made specific mention of the Plaintiff's statements making note of the promissory note and its terms, but not providing any proof of these terms.  Plaintiff then fired off the MSJ, in which they are trying to pretend to the court that because I specifically did not deny signing a note--they never asked such a question or stated that I did in their filings--that the court must accept their claim as fact.  But they never made that claim until the MSJ itself.  So, my opposition motion will again point out the fact that they never supplied the note, and that their claims require such evidence.  I also will point out that since they never claimed that I signed a note or asked me to answer that question, that I cannot be penalized for not specifically denying whether or not I signed the thing.  It is the plaintiff's job to prove their claim, it is not the defendant's job to prove the contrary of their claim, am I correct in that? 

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A couple of things:

1. You cannot file a cross complaint only against the attorney and not the plaintiff. The attorney is not a party to the suit, just the counsel. If you want to sue the attorney individually, you will need to file a separate FDCPA suit against him.

2. Do not get into a fight about whether you admitted to signing the contract. This is a losing fight and make you look dishonest and petty. Since you have argued that you have performed your duty in the contract, the payment from the insurance, arguing a signature on the contract is a moot point.

But do argue that they have not presented the contract that shows they are allowed to add additional fees. Use this argument in your objection to MSJ. Bring up the issue you believe that the contract was fulfilled by the insurance payment and that you believe they owe you a refund. And since they have presented no contract to specify the fees, there are still triable issues.

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A couple of things:

1. You cannot file a cross complaint only against the attorney and not the plaintiff. The attorney is not a party to the suit, just the counsel. If you want to sue the attorney individually, you will need to file a separate FDCPA suit against him.

....

I thought cross-claims were for other-than-the-opposing-party and counter-claims were for the opposing party. If it is the same subject matter I am not sure why it would not be possible to bring a 3rd part cross-claim against an attorney or any other party causing one damages. I could be wrong as I don't have my Jurisdictionary flowcharts at my fingertips.

 

Whether it would be better to bring Federal Act claims in federal court instead of state court is probably a more important question.

 

Happy Thanksgiving to all. :)

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I thought cross-claims were for other-than-the-opposing-party and counter-claims were for the opposing party. If it is the same subject matter I am not sure why it would not be possible to bring a 3rd part cross-claim against an attorney or any other party causing one damages. I could be wrong as I don't have my Jurisdictionary flowcharts at my fingertips.

 

Whether it would be better to bring Federal Act claims in federal court instead of state court is probably a more important question.

 

Happy Thanksgiving to all. :-)

 

 

--that was my understanding as well.  Down here, there is no such thing as a "counterclaim"....it's called a "reconventional demand".  Means the same thing, but LA uses terms and rules sometimes that no other state uses.  Since the attorney's actions arise out of this same account, and this same dispute, I do not see why a cross complaint could not be filed against them in this same action. 

 

That being said, there is a larger issue at hand here which will be dealt with in a separate suit.  The lender, while ignoring my disputes, contracted with a guy to try to secure a voluntary repossession.  In my state, you must be licensed to conduct involuntary repos, but not to do vonuntary repos.  His only job was to contact me and ask if I would be willing to surrender the car.  He would then have me sign the voluntary form and take possession of the car from me.  But instead, the guy they contracted with called me up pretending to be a state law enforcement officer.  He claimed to have a court order signed by "District Judge John Ducrest", as he told me on the phone, and this order demanded that I surrender the car.  He then tried to get me to meet with him at the lender's office to sign a promissory note that he said the lender would have no choice but to honor.  I now know that this was just a ploy to get me to bring the truck to him.  They would then have blocked the truck in and refused to let me leave with it.

 

Some problems with this.  First, this man is not a state government employee.  Second, he is not law enforcement.  Third, "John Ducrest" is not even a judge....he is the commissioner of our state office of financial institutions.  Oh, and the court order that he claimed to have was not even for the right vehicle!  The best part of this is that I have the whole conversation on tape.  It's legal here, I am in a one-party state.  And none of the people involved are aware that the calls were recorded.  This same individual, by the way, was attempting a "voluntary" repossession early last month and somehow got into a physical fight with the car owner.  He was arrested for aggravated assault and serious bodily harm!  This is not a nice guy.    So, in a separate action, I will be bringing the lender and the individual to court.  I want to wait until this one is cleared up first and then we are going to drop the hammer on this.  I do have a local attorney that will be taking that case on, but he did not see any reason to charge me money to represent me in this current case since it never should have been filed to begin with and I have all the documentation I need to get it chucked out. 

 

iheart, thanks for your comments.  I do wish to clarify, I am not getting into a fight over the signing issue.  I was only indicating what the plaintiff told the court.  They keep trying to say that since I did not deny actually signing it, that the court must consider that an admission on my part.  But they never made any statement regarding me signing it, did not submit any interrogatories to me, or ask me to answer that question in any of this.  So, why would the rule of evidence apply when the point about the signature has not ever been asked or established in any way?  I keep asking for them to produce the note because they have not, and if they do not, that should be cause for dismissal right there.  The one and only thing they have produced is an affidavit from an employee of the OC which basically says that we entered into an agreement and that there is a balance unpaid.  The affidavit also claims that I have never disputed any of their claims, which is ridiculous because I have documented proof from credit bureau, my DV to the attorney, and recorded phone calls in which I even caught them admitting I was current when they still claim I was late. 

 

I know, the focus needs to be on getting this dismissed.  But the contract does come into play because they are claiming an additional 25% of the total balance for legal fees.  This is provided for in the agreement.  But isnt there a legal doctrine that says something like "one who consents to a legal wrong has no legal right"?  My contention on the attorney's fees is that the attorney never should have filed this case for his client because he violated federal law by doing so--so why should he collect attorney's fees when his actions are 100% in violation of federal law?  Even his letters to me state that if I dispute with him within 30 days that he is required by law to stop all activity until he provides me validation.  But because he did not do this, this case itself is an FDCPA violation. 

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I would think a good consumer lawyer would take this case on contingent, you might consult one, especially since the note is paid.  (over paid.)  And I would file the cross complaint, it is much better to get leverage when they have something at stake.  Might motivate that attorney to check what he did, and decide it isn't worth it. ;) 

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Present your insurance paper work to the court, that will satisfy the court that the car has been paid by the insurance. If they think they have been injured in some way then they are suing the wrong person, You were not at fault so you did not injure them, the person who totaled your car injured them. In all actuality they have no claim at all since the insurance paid the loan. It would be unjust enrichment for them to be paid twice for the same issue. As far as a counter suit you should see an attorney, this is to complicated for someone with no experience to handle. It will get complicated if you file a counter suit. I would not worry about paying your attorney he can collect from the other party. That is how it works ,,,loser pays/ 

 

I would tell your insurance what is going on they may help you with an attorney. If the suit continues it will eventually involve the insurance company. This suit is purely spiteful and erroneous, everyone knows how insurance works and that it takes a few weeks to get paid by an insurance company. A purposeful, fraudulent and spiteful lawsuit that is wasteful of the courts time constitutes sanctions that can be imposed by the court against the plaintiff of this type of case. I am not sure of their thinking or motive in filing a suit so early in the stage of an insurance claim, but if you bring the issue up in court the judge may have some words and fines for them. Make sure you mention to the court that a purposeful, spiteful, suit is a waste of the courts time. Get the judge involved deeper in the case.

 

Courts work like this, in the courts eyes you have no rights until you stand up and assert them, they do not freely assert them for you. If you want the court to be aware of any thing you make to state it for the record.

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Hi,

 

So, first thread for a new guy.  And I have been sued by a local small-time auto loan lender.  I have had a dispute with this lender since October 2012 regarding the way they have reported on my credit reports.  I have gone through the steps there, done the dispute through CRA, and the lender verified as accurate. 

 

Fast forward to last month.  The vehicle that is the subject of the suit was involved in a wreck.  I was found to be 100% not at fault.  The car is totaled, nothing left.  Three days after the accident, I get served with papers for this lawsuit.  I filed a basic denial as my answer, figuring that it would buy enough time for my insurance to declare the car a total loss and pay accordingly.  This is what happened.  Ins company totaled the car around 10/21 and notified the lender to get payoff info.  More than a week after being notified that the payoff amount will be paid in full, the lender through their attorney files a motion for summary judgment!  By the time that I received a copy of this motion, insurance had already paid them in full for the balance owed on the loan.  They actually were overpaid, because they did not give a correct payoff to my insurance company. If you believe they were over paid then you need to bring that to the attention of the insurance company, if the insurance company proves it that is insurance fraud.

 

My original plan was to file an opposition motion to their MSJ, because they are still claiming almost $1500 in inflated charges as owed.  I then got to wondering if I should not just file a motion to dismiss, showing that they have already been paid in full....? You need to claim unjust enrichment, the insurance totaled the car and it is the insurance that tells a person what the vehicle is worth. The court will look it up in their black book, and I guarantee that amount will be way less than what the insurance paid off. Anything above and beyond what you still owed on the car is unjust enrichment. You need to go see the insurance company and tell them what is going on, this suit will eventually bring the insurance company into it to prove how the claim was handled.

 

More details--the inflated balance is legal fees and court costs.  I am presently pursuing their attorney for FDCPA violations--mostly for ignoring a timely DV letter and continuing collection efforts anyways.  I have proof of their letters and proof that they got my DV request within 20 days of the date of their initial letter.  Any guidance here would be appreciated! They do not get legal fees and courts costs unless they get a judgment against you. If you believe they are inflating their costs you ask for an accounting of their claim. But until the case is over they have no claim as to the fees and costs.

Can you post their claim, minus any identifying information, I am curious how they pleaded this. In order for the court to have subject matter jurisdiction the pleadings have to be sufficient to invoke the authority of the court. Just because some one files a piece of paper and says I have a claim does not make it so. Sufficiency of the pleadings makes it a claim. If they cannot establish in their pleadings that they even have a claim they have failed to state a claim for which relief can be granted. What I would do is involve your insurance company by subpena and have them show the court how they calculated the payment and that they actually paid the plaintiff. 

 

This is fraud upon the court and fraud upon you. They are trying to influence the court in such a way, by fraudulent means, to collect more than they are allowed under the law. Damages for a fraudulent claim are usually three times what the plaintiff in a fraudulent action claims and what ever the court determines for punitive damages. Punitive damages are awarded by the trier of fact, if their is no jury.

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I thought cross-claims were for other-than-the-opposing-party and counter-claims were for the opposing party. If it is the same subject matter I am not sure why it would not be possible to bring a 3rd part cross-claim against an attorney or any other party causing one damages. I could be wrong as I don't have my Jurisdictionary flowcharts at my fingertips.

 

Whether it would be better to bring Federal Act claims in federal court instead of state court is probably a more important question.

 

Happy Thanksgiving to all. :-)

If you file a counter-claim against the Plaintiff for FDCPA claims, you can absolutely cross-claim a related 3rd party on FDCPA claims as well.  If you don't counter-claim the Plaintiff, cross-claims against a 3rd party are (IMO) not "the same subject matter" in that you are being sued on an alleged debt, and cross-claiming the 3rd party on FDCPA violations.  While the alleged FDCPA violations stem from the alleged debt, and may be allowed to be pursued, I can also see how a judge would dismiss them as a separate issue.  The problem you have then is if the judge dismisses with prejudice, your hands are tied under res judicata unless you can get the ruling changed to 'without prejudice' on a motion to reconsider or appeal.

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If you file a counter-claim against the Plaintiff for FDCPA claims, you can absolutely cross-claim a related 3rd party on FDCPA claims as well.  If you don't counter-claim the Plaintiff, cross-claims against a 3rd party are (IMO) not "the same subject matter" in that you are being sued on an alleged debt, and cross-claiming the 3rd party on FDCPA violations.  While the alleged FDCPA violations stem from the alleged debt, and may be allowed to be pursued, I can also see how a judge would dismiss them as a separate issue.  The problem you have then is if the judge dismisses with prejudice, your hands are tied under res judicata unless you can get the ruling changed to 'without prejudice' on a motion to reconsider or appeal.

 

 

 

The claim against the plaintiff will not be FDCPA, because plaintiff is the original creditor and FDCPA does not apply to original creditors.  That claim will be FCRA as well as some state statutes.  Because of this lender's involvement with the fraudulent repossession tactics and unlicensed repo agent, complaints have also been filed with appropriate state agencies by others besides me.  They actually could lose their license and no longer be able to operate as a lender.  They are regulated by the OFI in my state, and the OFI does not take too kindly to their commissioner's name being used to commit fraud, it would appear.  The repo agent/fake state law enforcement official is facing criminal charges for this and other encounters.  All in all, it's a really ugly scene for them.

 

But the claim against the attorney is definitely relevant IMO, since this attorney performed the action of filing this suit on plaintiff's behalf.  Legally speaking, there should be no suit until the attorney--who is bound by the FDCPA--follows the law and response to a DV request.  One could try to say that the plaintiff could just hire another attorney, and they could have.  But they did not.  They were even aware that I disputed with their attorney and all involved decided to proceed anyways.  There's a very real dispute about the numbers that they all were made aware of and that none of them chose to follow the law about.  Seeing that the attorney's actions were directly related to the filing of this case, I do not see how it could be considered separate.  I do appreciate your comments, please dont think that I am just blowing off what youre saying. 

 

Consider it this way.  Suppose a third party debt collector contacted you about an old debt.  You send them a dispute letter/DV request.  They ignore it and continue to try to collect.  Then they sue you.  You can go after them for FDCPA violations there.  The court may or may not rule on both claims in the same action.  The court might decide to rule separately on them.  Either way, I believe that filing this cross claim will give me added leverage.  The lender hopes to recover that money as legal fees.  And their attorney would have to turn around and give it right back to me as a result of their FDCPA violations.  I think that this would be a good place to make the argument that the court would save time for itself and all parties involved if the cases were allowed to be heard and decided together.  "In the interest of expedient justice" or something along those lines.

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The claim against the plaintiff will not be FDCPA, because plaintiff is the original creditor and FDCPA does not apply to original creditors.  That claim will be FCRA as well as some state statutes.  Because of this lender's involvement with the fraudulent repossession tactics and unlicensed repo agent, complaints have also been filed with appropriate state agencies by others besides me.  They actually could lose their license and no longer be able to operate as a lender.  They are regulated by the OFI in my state, and the OFI does not take too kindly to their commissioner's name being used to commit fraud, it would appear.  The repo agent/fake state law enforcement official is facing criminal charges for this and other encounters.  All in all, it's a really ugly scene for them.

 

But the claim against the attorney is definitely relevant IMO, since this attorney performed the action of filing this suit on plaintiff's behalf.  Legally speaking, there should be no suit until the attorney--who is bound by the FDCPA--follows the law and response to a DV request.  One could try to say that the plaintiff could just hire another attorney, and they could have.  But they did not.  They were even aware that I disputed with their attorney and all involved decided to proceed anyways.  There's a very real dispute about the numbers that they all were made aware of and that none of them chose to follow the law about.  Seeing that the attorney's actions were directly related to the filing of this case, I do not see how it could be considered separate.  I do appreciate your comments, please dont think that I am just blowing off what youre saying. 

 

Consider it this way.  Suppose a third party debt collector contacted you about an old debt.  You send them a dispute letter/DV request.  They ignore it and continue to try to collect.  Then they sue you.  You can go after them for FDCPA violations there.  The court may or may not rule on both claims in the same action.  The court might decide to rule separately on them.  Either way, I believe that filing this cross claim will give me added leverage.  The lender hopes to recover that money as legal fees.  And their attorney would have to turn around and give it right back to me as a result of their FDCPA violations.  I think that this would be a good place to make the argument that the court would save time for itself and all parties involved if the cases were allowed to be heard and decided together.  "In the interest of expedient justice" or something along those lines.

If the lawyer shows the judge a letter he claims he sent in response to your DV, can you prove he did not in fact send it to you? Right now that is your only FDCPA claim against the lawyer, and he will get around that by either lying or claiming bona fide error.

And as @BV80 was hinting at, if the lawyer does not regularly engage in the business of debt collection, the FDCPA doesn't apply to him anyway.

I don't think you have much of an FDCPA case with the one violation. I would focus on getting the case dismissed with costs as incurred and forget the FDCPA angle. You didn't give details about the FCRA violations, but you may have more success with that against the lender than FDCPA against the lawyer.

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@kraftykrab

 

Does the attorney regularly engage in debt collection?

Yes, he routinely does.  He also puts a statement into his letters indicating that he is fully aware of his status for FDCPA purposes as a debt collector, and includes the required "mini-miranda".  No less than three times in his letter, he identifies that this communication is from a debt collector.  Funny, he goes to great lengths to meet the FDCPA conditions there but then ignores his actual responsibility when it comes to validation.

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 Funny, he goes to great lengths to meet the FDCPA conditions there but then ignores his actual responsibility when it comes to validation.

 

Here is the problem you may have:  the level of proof for a DV letter is so low you can trip over it.  It only has to contain the amount owed and the names of the creditor and the date.  That is it.  They only have to present a letter of response to the court.  They do NOT have to prove you ever received it.  If they produce that letter your violation on that part is dead in the water.

 

The second problem I see is that the car was totaled AFTER they sued.  Once the suit was filed they were entitled to reasonable legal and collection fees.  While the automatic 25% may violate  your state's laws, it doesn't mean they can't collect reasonable fees.  It would be entirely legal for the court to award them reduced fees for the work they have done.  

 

Before you get in way over your head and end up paying them thousands in legal fees for filing a frivolous FCDPA case you might want to take EVERYTHING you have to a seasoned consumer attorney and get a professional opinion.  If there really is a basis to go after them they will take it on contingency where you will get the same amount in damages and the lawyers and defendant will pay your attorney fees.

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If the lawyer shows the judge a letter he claims he sent in response to your DV, can you prove he did not in fact send it to you? Right now that is your only FDCPA claim against the lawyer, and he will get around that by either lying or claiming bona fide error.

 

 

I can show it due to his follow-up letter.  His first letter was your basic dunning letter.  His second letter stated that he had previously sent a letter asking for my reply but that I had chosen to ignore his attempts to contact me.  He would look pretty silly in front of a judge claiming that "yes, your Honor, I got his DV and responded appropriately", when his own second letter claims that I am ignoring him and refuse to contact him about the matter. 

 

And as @BV80 was hinting at, if the lawyer does not regularly engage in the business of debt collection, the FDCPA doesn't apply to him anyway.

This is a good point, and one that I see people locally ignoring too frequently.  I have been looking for cases involving this same attorney in similar circumstances, and have seen more than one person get their case thrown because of a point like this.

 

I don't think you have much of an FDCPA case with the one violation. I would focus on getting the case dismissed with costs as incurred and forget the FDCPA angle.

 

I appreciate your thoughts.  I am indeed focusing first on the dismissal.  The FDCPA case is really only a leverage move at best, if nothing else I could use it to try to offset the claim for attorney's fees. 

 

 

You didn't give details about the FCRA violations, but you may have more success with that against the lender than FDCPA against the lawyer.

Here are the basics, please let me know your thoughts.

 

Last fall, I noticed that the lender had incorrectly reported on my credit report.  Went from "pays as agreed" to "90 days late" in just one month.  An obvious error, as this is not possible.  I contacted them about it last November.  I was told "that's just the way our computer reports it".  There was no interest on their part in fixing it.  A month later, I went to their office in person, an hour's drive for me one way.  I discussed it at that time, and was told that they would look into it. 

 

1/2013, we were current and paid three days prior to payment due date.  They agree that payment was received.  But reported me 30 days late.  Did the same for December 2012.  I asked about it, they said they would look into it.  Fast forward a few months, now, to June 2013.  I was considering trading this car in for a truck.  I went to a bank that we had had three vehicles financed through in the past.  No issues ever.  They denied us because this lender was now reporting us as seriously past due--120 days.  Yet we had made our payments and I have the bank statements to prove it.  Upon learning this, I filed written dispute with the credit bureau.  The lender removed their reporting from my wife's report but verified their reporting as accurate on mine.  The following month was when I first got a letter from the lender's attorney, demanding payment for nearly $1800 that they claimed was past due.  So I sent a written DV to the attorney.  Never heard anything back about the DV other than verification from the attorney that they did receive it.

 

Early August, I get the phone call from the repo guy claiming he was a state law enforcement official.  To date, they still report the same on my credit report--now show me as having been 180 days past due for the last couple months.  Of course, now that they have filed suit, they treat it like a foreclosure, and I have been notified that they will not accept regular payments until the case is ironed out. 

 

Recorded phone calls--I have two calls recorded with the fake repo guy.  The first, he's running his fake law enforcement scam, and the second, he cursing me out like a dog--another FDCPA violation against him, which the attorney did tell me applies to him.  I have one call recorded with the lender, in which they tell me I was current on my loan, and in the same call they claim that their reporting was correct, that the credit bureau is to blame.  And I have one call with their attorney recorded, in which I verified that they did in fact receive my dispute letter/DV request, and that it was in my file with them.  So they have no way of trying to tell me that this was "bona fide error" or that they did not receive it. 

 

The FCRA case involves every month from last December to now, and will be filed in the next couple weeks most likely.  They report on the last day of the month, so I would have until the end of December to meet the one year SOL, otherwise I would have to file a complaint based upon starting with January 2013.  This is actually the smaller issue, though if successful they will end up paying me a nice chunk.  The larger issue involves our state laws.  There is a big question about this fake repo guy.....and under our state laws, this lender could be charged wth fraud and using unlicensed repo agents.  There is at least one other complaint about this guy with the motor vehicle commission in my state--and that complaint involved him blocking a woman's car in and forcibly removing her from her car while flashing a fake badge in her face.  Remember now, this guy is only legally allowed to contact the owner and ask them to surrender the car, he is not allowed to force someone to give it up.  A licensed repo agent in my state is not even allowed to do that! 

 

The attorney I spoke with is already working to find if they are still using this guy--they told the state authorities that they "had no idea" of what tactics he was using, even though his plan with me was to lure me to THEIR office to try to block me in, etc.  I have no doubt that they are complicit....I just need to prove it.  If we can show that they were made aware and still call him anyways, the state will likely pull their business license and they would possibly face criminal charges too.  I think I mentioned that this fake repo guy was arrested in October on some serious felony charges stemming from his attempt to repo someone's car....if they hired him to repo that car, they can be held liable for any injuries or damage that he caused. 

 

Ok, someone asked for the complaint.  I will type it up in a bit, and explain my response as well.  Sorry to make this so long, and thanks for all the great input!

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Plenty of case law that say an attorney who regularly engages in the collection of debt is a debt collector under the FDCPA. I still think there is more going on here. Why would he file a suit so fast. Everyone knows insurance takes a few weeks to pay off. I do not think Plaintiff is entitled to any more than the balance of the loan. He is not an injured party, the insurance paid.

 

First of all what needs to be examined is how plaintiff pleaded the case. If the complaint was not pleaded factually enough to invoke the autority of the court, the court has no jurisdiction, plaintiff has no standing to sue.

 

Can you please post the pleadings of the complaint for review, Jurisdiction of the court, and plaintiffs standing to sue can be challenged at any time during the case.

It is hard to know where to go until we know how he pleaded the case and what evidence he used to justify the suit. Who is the witness in the case and how does plaintiff presume he is an injured party.

 

First a valid cause of action is a right to bring a lawsuit, often referred to as standing to sue. The cause of action MUST be pleaded in the complaint. A cause of action must also have a legal remedy. If the plaintiff does not state with concrete facts that are plausible there is no valid cause of action, standing. Without standing the court has no jurisdiction to even hear the case. This is why you must review the complaint and argue why the case fails as a matter of law. Allegations are presumed, by the court, to be true if not rebutted.

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Right now lets stop debating over whether or not the attorney is/is not a debt collector, lets deal with whether or not there is a valid suit. We can deal with the counter claim after we discuss the pleadings of the claim. There may not even be a legitimate cause of action. If a suit is brought in bad faith then you have an another reason to sue him.

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Here is the problem you may have:  the level of proof for a DV letter is so low you can trip over it.  It only has to contain the amount owed and the names of the creditor and the date.  That is it.  They only have to present a letter of response to the court.  They do NOT have to prove you ever received it.  If they produce that letter your violation on that part is dead in the water.

 

I understand what you are saying.  The real problem for their case is this--I have them contradicting themselves regarding my DV.  I have them on tape during a phone call, admitting that they received my DV request and that it was placed in my file.  And then I have a letter from them, dated after that conversation, in which they state that they have made attempts to get me to respond, but that I have ignored them and not contacted them to reply.  They would have one hard time trying to tell the judge, IMO, that they sent off a response to my DV letter, while at the same time sending me letters saying "we have made efforts to contact you to resolve this issue; however you have not responded to us.  This matter will not simply go away if you continue to ignore us."  That letter came two weeks after the phone call in which they admitted receiving my DV.  When you put those two together, it paints a picture that they will have a hard time trying to defeat, IMO.  After all, why would you send someone a letter saying "you have ignored all of our attempts to contact you", if you would then claim "he did contact us with a dispute and we answered it"? 

 

 

The second problem I see is that the car was totaled AFTER they sued.  Once the suit was filed they were entitled to reasonable legal and collection fees.  While the automatic 25% may violate  your state's laws, it doesn't mean they can't collect reasonable fees.  It would be entirely legal for the court to award them reduced fees for the work they have done.  

 

I respectfully disagree.  They are not entitled to anything because they sue.  They are only entitled to an amount if the court awards it.  And they cannot impose that fee or charge upon the consumer legally without the court awarding it to them--which they did already.  They inflated the payoff balance that they gave to my ins company by the exact amount of the filing fees that they had to pay the court when they filed the case.  They cannot just say "you owe us because we sued you".  True, they did file the claim before the wreck.  But here's the thing--I was served a summons a few days AFTER the wreck.  They were duly notified, even by my insurance company, that the vehicle was a total loss.  They were aware that the vehicle was totaled and knew that they were getting the full loan balance paid in full by my insurance BEFORE they filed for suimmary judgment.  That makes that filing questionable.  Their MSJ seeks the FULL BALANCE that they claimed was owed when they filed--yet, when they filed it, they were already fully aware that the full balance of the loan was about to be paid in one lump sum by insurance.  That is a pretty big misreprentation to the court, IMO.

 

The vehicle was officially totaled on 10/25.  My insurance spoke with the asst mgr of the lender.  That is the same exact person that went to the court house and swore an affidavit four days later for the MSJ.  She KNEW that this was already being taken care of through insurance.  Her affidavit was a total lie anyways--she stated in this affidavit that "defendant has repeatedly acknowledged the correctness of the amount claimed".  They claim that I never disputed anything....despite my multiple disputes to them personally, my disputes with the credit bureau, and my dispute to their attorney.

 

 

Before you get in way over your head and end up paying them thousands in legal fees for filing a frivolous FCDPA case you might want to take EVERYTHING you have to a seasoned consumer attorney and get a professional opinion.  If there really is a basis to go after them they will take it on contingency where you will get the same amount in damages and the lawyers and defendant will pay your attorney fees.

 

I already have spoken to a good attorney.  He is taking up my FCRA case against this lender.  He did not want to pursue the attorney, but only on professional grounds.  He said that he deals with that attorney fairly often, and that it would hurt more than it would help in the long run if he were to pursue them.  He advised me that it would be a waste of my money to hire him to defend me in this current case, which the FDCPA cross claim would end up being a part of, because I would just end up getting a dismissal due to the accident.  Also, he said it is common in this court in cases like this that the judge would order each party to cover their own legal costs.  That would make me responsible for paying my attorney's fees, and he said he would not feel right charging me for something this cut and dry.  He did say that going after their attorney would be worth a shot, and that it would likely end up just being a leverage move, which is fine. 

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OK, here is their petition:

 

 

1: Made defendant herein is ME, person of the full age of maturity and domiciled in MY COUNTY, LOUISIANA, who is justly and truly indebted unto your petitioner in the full sum of $5,477.84, togehter with interest at the rate of 29% annum from August 22,2013 until paid in full, plus the additional cost of 25% of principal and interest as attorney's fees and for all costs of these proceedings.

 

2: Plaintiff is the holder and payee, for valuable consideration of one (1) certain promissory note executed by defendant dated August 3, 2011, in the original amount of $13,197.00 and providing for interest and attorney's fees as described above.

 

3: Said note contains a secured interest in a Vehicle granted to your petitioner by defendant, all of which will more fully appear from the copy of said combination promissory note, truth in lending disclosure statement, and security agreement, wich is attached hereto and made a part hereof and marked "Exhibit 1".

 

(My addition here--there was no exhibit attached at all to their petition).

 

4: In said security agreemenr, defendant did specifically mortgage, affect and hypothecate unto and in favor of any future holder or holders of the note the following described property:  THE CAR, THE CAR'S VIN #.

 

5: That said promissory note provided for monthly payments to be paid to the holder of the note and provides that failure to pay any installment when due would at the option of the holder, without demand or notice, mature all remaining installments together with the attorney's fees and all costs of these proceedings.

 

6: The defendant, defaulted and failed to pay said monthsly intsllments due on the balance on the said note and under the terms of the said note, the entire unpaid principal balance became due and exigible, after rebate, as provided by law, leaving the principal balance described hereinabove due and owing.

 

WHEREFORE, petitioner prays for judgment herein against defendant, in the full sum of $5,477.84, together with interest at the rate of 29% per annum from August 22, 2013 until paid in full, plus additional amount of 25% of the principal aind interest as attorney's fees and for all cost of these proceedings.

 

PETITIONER FURTHER PRAYS for judgment recognizing its mortgage, lien, and privilege on moveable property more fully described in paragraph 4 of thie petition; and that after all due and legal proceedings be had, that this property seized and sold to satisfy plaintiff's claim herein by preference and priority over all otehrs persons whomsoever.

 

 

 

Now, as mentioned, they did not provide Exhibit 1.  They claimed it was attached, but there was no attachment. 

 

I responded with my answer:

 

 

Comes now the Defendant, ME, PRO SE, and answers as follows:

 

1: Defendant affirms plaintiff's statement regarding being domiciled within MY COUNTY, LOUISIANA, but denies all other statements.

 

2.  Defendant DENIES Plaintiff's statements.

 

3: Defendant DENIES Plaintiff's statements.  Contrary to Plaintiff's statement, no such note or agreement was attached to their petition.

 

4: Defendant DENIES Plaintif's statements.

 

5: Defendant DENIES Plaintiff's statements.

 

6: Defendant DENIES Plaintiff's statements.

 

AFFIRMATIVE DEFENSES

 

1: Plaintiff has failed to state a claim upon which relief can be granted

 

2: Defendant invokes the Doctrine of Equitable Estoppel.

 

3: Defendant asserts that Plaintiff's claim alleges damages that are the result acts or ommissions committed by the Plaintiff.

 

4: Defendant reserves the right to amend and/or add additional answers or defenses at a later date.

 

WHEREFORE, Defendant prays for judgment in its favor, thus dismissing Plaintiff's claim in its entirety.  Defendant further prays that each party is to pay for its own respective costs in this action.

 

 

 

Their MSJ goes on for two pages about how I did not specifically deny signing a promissory note....and they claim since I did not specifically deny signing such a note, that the court must accept as fact the concept that I did sign one.  But as you can see, I was never specifically asked if I signed one.  I denied all of their claims, and I do not see where that would lead to any such assumption needing to be accepted as fact.  The MSJ also once again claims to have two exhibits attached....Exhibit 1 is the promissory note, and Exhibit 2 is an affidavit from an employee of the plaintiff.  But once again, there was no Exhibit 1 attached....only the affidavit.  I am very confused as to why they did not simply provide the note.  There has been no exchange of discovery--they did not send any to me and I did not send any to them.  So what we have is the plaintiff claiming that I did not specifically deny a question that has never been asked.  Our pretrial hearing date is at the end of January, and according to the MSJ, I am to show up at that hearing date to respond to this MSJ.  I intend to file my own motion, instead of waiting for that appearance. 

 

Here is the meat of their MSJ:

 

 

I: FACTS

 

This action is a suit on a promissory note.  In response to plaintiff's petition, defendant has filed a general denial.  Pursuant to District Court Rules 9.10, attached to thie memorandum as "Exhibit A" is the original promissory note and security agreement signed yb the defendant.  Attached as "Exhibit B" is the affidavit of Plainitff setting forth the balance due on the promissory note.  It is not disputed that defendant signed the promissory note in favor of plaintiff.  In accordance with Louisiana CCP 996, Plaintiff has filed this motion for summary judgment on the grounds that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law.  This is presented upon the grounds that no affirmative defenses have been raised to the promissory note and when this note is presented mover shall be entitled to judgment as a matter of law.

 

II. LAW

 

Unless specifically denied in the pleadings the signature on an instrument is admitted.  Once signatures are admitted or established a holder makes out his case by mere production of the instrument and is entitled to recover in the absence of any further evidence.  American Bank v. Saxena 553 So.2d 836 (La. 1989).

 

 

 

So, in other words, they have twice declared an exhibit of the promissory note, but failed to produce it both times.  Then they say "when we produce it, we win".  This seems very fishy to me, since they should undoubtedly have the note....why would they not have produced it when they claimed twice to be doing so?

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