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458-Italia

Two suits by Suttell & Hammer

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We are being sued by Suttell & Hammer on behalf of Citbank\Sears.

Does anybody know first if they will travel out of state to pursue a case? Over 500 miles away.

They filed the suit but not with a local attorney. One of their cronies with a membership in another state has her name on it.

 

Next question is, they represent Citibank as the plaintiff, but I have been reading the web, that they are notorious for falsifying documents when they are really the owner of the debt. Wouldn't that would make it fraud? FDCPA 812.

 

How can you verify that Citibank is still the account holder and not S&H?

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@458-Italia

 

Check Citi's entry on your credit report.  If the entry shows the account is only charged off, not sold or transferred, and still has a balance, then Citi still owns it.   Also, if Citi still owns it, they'd be updating their information, so check the date they last updated.

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And if Citi still owns it, FDCPA may not apply since they are the OC.

As far as the distance, usually they will send a local attorney for the appearances to save the travel time.

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Thank you all for your replies.

Another bit of information is that I had sent a billing error dispute letter which the creditor failed to answer properly. When the attorney sent notice they also sent an affidavit with some Citibank signature and notarized. We sent a response that the account was disputed and we were still waiting for the investigation by Citibank on the previous billing error dispute. Also included in that letter was a notice to cease communication pursuant to 15 USC sec. 1692c©. After our response they waited past 30 days and filed the complaint.

 

We have never received any letter from Citibank as to the final outcome of the requested investigation.

 

I'm filing my answers along with requests for discovery today. Guess we'll see what transpires.

I'm thinking that first they jumped the gun since Citibank never provided us with the requested written response, Citibank is the plaintiff but the account is Sears Card so shouldn't that make Citibank not the original creditor or because they service Sears accounts they can claim OC?

 

Looking for some legal way to shut this down on a technicality due to Citibank proceeding with a suit during a dispute. What is the time frame for a dispute if they never send a letter stating that they have done the investigation?

 

As far as I am concerned they are in default of the FTC for not doing the investigation and responding back in writing as was requested.

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There is also no legal way to "shut this down…"  The lawsuit is filed, you sill need to defend it.  The fact that they did not respond to the billing error can help you with the amount they may be claiming, but it does not stop the lawsuit.

 

Citi is likely the OC. A lot of store Credit Cards are just bank cards issued in the stores name.  Since you said you disputed with Citi over the previous billing, they are likely the OC.

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Additionally I have discovered that Suttell & Hammer are not licensed in my state to collect debt and the complaint repeatedly states that this is an attempt to collect a debt. They are debt collectors. Grounds for dismissal since they are breaking the state law? 

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Additionally I have discovered that Suttell & Hammer are not licensed in my state to collect debt and the complaint repeatedly states that this is an attempt to collect a debt. They are debt collectors. Grounds for dismissal since they are breaking the state law? 

grounds for more than that if you can prove no license.

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Additionally I have discovered that Suttell & Hammer are not licensed in my state to collect debt and the complaint repeatedly states that this is an attempt to collect a debt. They are debt collectors. Grounds for dismissal since they are breaking the state law? 

 

In most states, law firms are not required to have a license to collect debt.  Their law license allows them to pursue this activity.  They are liable under FDCPA because that federal law defines them as a Debt Collector, which is why the include the language on the documents.

 

Check with your state laws to see if a law firm needs to be licensed as a debt collector. I doubt they need to.

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Looking for some legal way to shut this down on a technicality due to Citibank proceeding with a suit during a dispute. What is the time frame for a dispute if they never send a letter stating that they have done the investigation?

 

As far as I am concerned they are in default of the FTC for not doing the investigation and responding back in writing as was requested.

 

Absolutely NOTHING requires them to delay filing a lawsuit because you dispute the amount.  They only need to prove the amount they are suing for in court in pursuing the lawsuit.  There is also NOTHING that says they have to resolve the dispute before suing.  As long as you are in default they can sue you regardless of whether you agree with the amount owed.  

 

Once you issued the C&D they could not respond to you so I am not clear how you expected them to respond to your dispute without violating the C&D.  

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OK some clarification. First the C&D was directed at S&H not Citibank which is whom the dispute letter was sent. CitiBank are the ones that have not responded.

 

S&H filed the suit anyway so they did not cease action.

I went to my state finance website and checked the registry, they are not listed on the licensed registry under either Suttell & Hammer or Suttell & Assoc.

They do have attorneys licensed in my state as attorneys, but if they are deemed "debt collectors" then that wouldn't matter and they are in violation as I see it.

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OK some clarification. First the C&D was directed at S&H not Citibank which is whom the dispute letter was sent. CitiBank are the ones that have not responded.

 

S&H filed the suit anyway so they did not cease action.

I went to my state finance website and checked the registry, they are not listed on the licensed registry under either Suttell & Hammer or Suttell & Assoc.

They do have attorneys licensed in my state as attorneys, but if they are deemed "debt collectors" then that wouldn't matter and they are in violation as I see it.

 

What is the timeline for all of this?  If you did not dispute within 30 days of the first contact from Citi then they are not in violation.  Once that initial 30 days has elapsed they do not have to respond to you and by your own words S&H waited beyond 30 days to sue.  The problem you have is that if the law firm was hired to simply pursue the debt and Citi still owns the account then the C&D applies to the OC as well as S&H as their representative.  You shot yourself down on this one.

 

If the account was sold to the law firm then Citi no longer owns it or has to respond to a billing dispute.  WHO owns the account?

 

Another issue is that the creditor only needs to show that they responded to your dispute NOT that you ever received it.  If they produce copies of a response to your dispute that claim is done from that point too.

 

If the attorneys are licensed in your state that may be sufficient.  

 

Another issue is courts are split on whether a lawsuit is collection activity.  The creditor has the right to hire a law firm to sue a consumer who defaults.  

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They do have attorneys licensed in my state as attorneys, but if they are deemed "debt collectors" then that wouldn't matter and they are in violation as I see it.

 

How you see it is not state law.  You need to look up state law or case law that says an attorney filing suit in a debt case needs to registered in your state as a debt collector.  

 

I have already explained under FDCPA they are considered Debt Collectors, but that does not define or create state law concerning licensing. 

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@Clydesmom

 

 

What is the timeline for all of this?  If you did not dispute within 30 days of the first contact from Citi then they are not in violation.  Once that initial 30 days has elapsed they do not have to respond to you and by your own words S&H waited beyond 30 days to sue.

 

 

If you're referring to the FDCPA, it doesn't apply to Citibank.

 

Under the Fair Credit Billing Act, a consumer must send a notice of dispute of a billing error within 60 days of either when the billing statement was issued or when he receives the statement.

 

The creditor then has 30 days to respond.

 

@458-Italia

 

If you didn't do the above within 60 days, Citi could assume the billing was correct.

 

In regard to whether S & H must be licensed, your state collection laws will probably have exceptions to the licensing requirement.  That's what you need to check.

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Thank you all for your replies.

Another bit of information is that I had sent a billing error dispute letter which the creditor failed to answer properly. When the attorney sent notice they also sent an affidavit with some Citibank signature and notarized. We sent a response that the account was disputed and we were still waiting for the investigation by Citibank on the previous billing error dispute. Also included in that letter was a notice to cease communication pursuant to 15 USC sec. 1692c©. After our response they waited past 30 days and filed the complaint.

 

We have never received any letter from Citibank as to the final outcome of the requested investigation.

 

I'm filing my answers along with requests for discovery today. Guess we'll see what transpires.

I'm thinking that first they jumped the gun since Citibank never provided us with the requested written response, Citibank is the plaintiff but the account is Sears Card so shouldn't that make Citibank not the original creditor or because they service Sears accounts they can claim OC?

 

Looking for some legal way to shut this down on a technicality due to Citibank proceeding with a suit during a dispute. What is the time frame for a dispute if they never send a letter stating that they have done the investigation?

 

As far as I am concerned they are in default of the FTC for not doing the investigation and responding back in writing as was requested.

The Fair Credit Billing Act 15 U.S.C. §1666 ("FCBA") details the responsibilities for the consumer and creditor. If the consumer properly and timely files a billing dispute it is *my* understanding that the creditor either corrects the error or must timely respond with an acknowledgment and a response or possibly forgo any pursuit of the disputed amount. YMMV

 

I would think disputing the entire balance without specific reasons would not likely be a valid dispute under the FCBA, but one's attorney would know for sure.

 

I am not sure how one would shutdown a collection lawsuit on a "technicality". By generating enough leverage, risk, and pain opposing might agree to a favorable settlement or dismissal. The case law and underlying statutes in most states and Federal, in particular, are not realistically powerful enough for embattled consumers dealing with litigious DC and their attorneys to use a technicality to shut down a suit IMHO. To clarify a bit, I would not consider standing or real party in interest issues as mere "technicalities".

 

If attempting to enforce compliance with the FDCPA I would read it and understand it as well as review case law to understand its interpretation in my district. The same would apply if I was looking to enforce compliance with the FCBA.

 

Interesting FCBA case in the CoA Ninth Circuit: http://law.justia.com/cases/federal/appellate-courts/ca9/10-35230/10-35230-2011-08-30.html

We reverse and remand for further proceedings. The trial

court erred in holding that Appellants failed to state a claim

under the UDCPA. We decline to certify Appellants’ pro-

posed question to the Oregon Supreme Court regarding this

claim because existing state precedent guides our decision. As

to Lyon’s FCBA claims, the trial court erred in requiring evi-

dence of detrimental reliance to support actual damages and

in limiting statutory damages for Chase’s multiple violations

of the FCBA to a single recovery. Finally, the trial court

abused its discretion in denying any award of attorneys’ fees

related to Lyon’s successful claim under the FCBA.

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I filed my error dispute within the allotted time frame. Citbank never properly responded to the dispute, they just started sending the account to 3rd party debt collectors. At every contact by a debt collector they were sent a C&D letter. The account was sent back to Citibank and they would send it to a different debt collector. 3 or 4 until S&H filed suit. So accordingly Citibank never performed the required investigation.

 

Sample letter of billing dispute...

 

Regular Mail & Certified Mail#: XXXX-XXXX-XXXX-XXXX

 

[bank Name]

[bank address]

[City, State, Zip]

 

[DATE]

 

RE: Billing Error on Account # XXXX-XXXX-XXXX-XXXX

Amount in Dispute: $[AMOUNT OF LAST STATEMENT, PLEASE ENSURE ALL CHARGES HAVE POSTED TO THE CARD AND ANY AUTOMATIC BILLINGS HAVE BEEN CANCELED]

 

Dear [Credit Card Company]:

 

I am writing regarding the above account. I believe that my most recent statement, [DATE OF LAST STATEMENT YOU RECEIVED, AND IT MUST BE WITHIN 30 DAYS OF RECIEVING IT, OTHERWISE CALL THE BANK AND ASK FOR A COPY OF THE LAST STATEMENT] is inaccurate.

 

I am disputing the above amount because I believe that you failed to credit my account for prepayments you agreed to credit on the statement dated [DATE OF LAST STATEMENT YOU RECEIVED]. It was my understanding that when I entered into the agreement with you that you would accept my signed note(s) or other similar instrument(s) as money, credit or payment for previous account transactions, and then reflect those credits in the statement dated [DATE OF LAST STATEMENT YOU RECEIVED]. They do not appear in the statement and I am wondering why. The amount of the credits on the prepayments of money or credit accepted by you should be the approximate amount that I list above. I am making this billing inquiry since I am uncertain of all the dates of the prepaid credits and also since there may be additional credits that I am entitled to. Please provide me with a written explanation why these credits are not showing.

 

I am requesting that you provide me with an acknowledgement of this billing error and complete a full investigation by sending me a written explanation report related to the subject matter of this billing error.

 

I am also requesting additional documentary evidence of indebtedness of the account showing that you did not accept any note or similar instrument from me without properly crediting my account as agreed, which includes copies of the account entries that made you arrive at the recent balance shown on my statement.

 

I may exercise my right to withhold the disputed amount until you comply. Thank you for your time and consideration in this matter. If you have any questions please contact me immediately at the address below, but make sure your questions reference an acknowledgement to this billing error dispute.

 

Lastly, please remove my phone number(s) [iNSERT HOME AND OR WORK NUMBERS HERE] from your solicitation list as I do not wish to do any business with [Credit Card Company] over the phone. I am requesting that all communications be conducted in writing, and I appreciate your honoring my request.

 

Sincerely,

 

[Your Name]

[Your address]

[City, State, Zip]

 

 

Now according to the Summons and Complaint it clearly states S&H are debt collectors. "This communication is from a debt Collector."

 

My state law under state department of finance is clear on rules...

Collection Agency Section

Under the [state] Collection Agency Act, the following activities cannot be conducted in [state] without obtaining a collection agency permit:

  • Operating as a collection agency, debt counselor, credit counselor, credit repair business or debt buyer,
  • Engaging, either directly or indirectly, in the business of collecting or receiving payment for others of any account or bill,
  • Soliciting or advertising for the right to collect or receive payment for another of any account or bill,

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So the way I see this, it is irrelevant if Citbank responded correctly or not. The real issue here is S&H are in direct violation of the state law for doing business as a debt collector without being licensed. Even if they are using state attorneys, they are debt collectors and in violation.

I see several charges that can be filed against them in regards to them willfully and knowingly filing false claims, false representation, out of jurisdiction, deceptive forms and the state department of finance rules and regulations of operating within the state without a license.

 

The argument that they are state attorneys I think would be null and void since they claim they are debt collectors in the summons and complaints that they filed.

 

Comments are welcomed. 

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@458-Italia

 

So the way I see this, it is irrelevant if Citbank responded correctly or not. The real issue here is S&H are in direct violation of the state law for doing business as a debt collector without being licensed. Even if they are using state attorneys, they are debt collectors and in violation.

 

 

It doesn't matter if S & H are debt collectors.  They are also attorneys.

 

Have you checked your state law and the exceptions to the collection license requirements to see if debt collection attorneys are required to be licensed as debt collectors?  

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So the way I see this, it is irrelevant if Citbank responded correctly or not. The real issue here is S&H are in direct violation of the state law for doing business as a debt collector without being licensed. Even if they are using state attorneys, they are debt collectors and in violation.

I see several charges that can be filed against them in regards to them willfully and knowingly filing false claims, false representation, out of jurisdiction, deceptive forms and the state department of finance rules and regulations of operating within the state without a license.

 

The argument that they are state attorneys I think would be null and void since they claim they are debt collectors in the summons and complaints that they filed.

 

Comments are welcomed. 

Whether a creditor (like Citi) has responded properly under a billing dispute would likely be irrelevant if I did not wish to attempt rely on or enforce the FCBA.

 

If the applicable jurisdiction has controlling case law for the above bolded claims there should be no significant barriers to a competent litigant moving forward on those claim IMHO. Assuming that the case law indicates a private right of action and it is not solely up to a state agency to enforce.

 

Assuming I have:

1.) a private right of action (or clear and winnable common law claims);

2.) non-distinguished controlling case law; and

3.) admissible evidence to prove up each and every one of the required elements for any causes of action,

I would think it should be possible to find a competent consumer attorney that could be handed the case law + evidence and then proceed to pursue all of my causes of action.

 

The first thing *I* would probably want to do is break out the causes of action supported by the case law and identify each required element per the applicable jurisdiction's stare decisis

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I'm done. None are so deaf as those who don't want to hear.

Your going to lose. They don't put they are debt collectors on the filing because they call themselves that, the FDCPA says they are. But the FDCPA definitions do not define your state licensing requirements.

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I'm done. None are so deaf as those who don't want to hear.

Your going to lose. They don't put they are debt collectors on the filing because they call themselves that, the FDCPA says they are. But the FDCPA definitions do not define your state licensing requirements.

I know that the FDCPA does not define the state licensing requirements, as I stated the requirements are on the state department of finance website. I will check and see if attorneys have to be licensed to be debt collectors. I was hopeful that because S&H is the out of state debt collector that they would have to be licensed regardless of the attorneys.

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@458-Italia

 

 

It doesn't matter if S & H are debt collectors.  They are also attorneys.

 

Have you checked your state law and the exceptions to the collection license requirements to see if debt collection attorneys are required to be licensed as debt collectors?  

I'll call the department of finance and ask. Thanks for the tips everyone.

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There you go.  Information is power.  I will warn you, most states allow attorneys to collect debt for another through their law license.  If that is the case in your state, give us a little more information once you find out and maybe we can help you come up with another way to beat this in court.

 

Welcome to the board. We are tough, but only because the courts and the other attorneys will not show you any mercy.

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More information would really help us on this one, italia....

 

You said "two suits"....how many lawsuits have been filed?  I see two mentioned in the title, but only one being discussed. 

 

What state do you live in?  We can possibly help you find good case law, but not without knowing your state.

 

You need to put aside all that you believe that you know in this case and start at the beginning.  You need to focus on what can be proven, not what you know.  Court does not care what you know, only what you prove.  Likewise, your battle now is showing that S&H cannot prove what they claim.  A good place to start would be making sure that they really are suing on behalf of the OC.  There are a few ways to do this.  First, check your credit reports.  If the OC still owns the debt, they will often continue updating your credit report.  If you see that the debt was charged off and sold on your credit report, then you have ammunition to use to dig deeper.  Your goal right now is to gather information, and to do it fast.  You have a very limited amount of time to respond to a lawsuit being served on you.  If you do not respond, they win by default.  Trust me, you do not want that. 

 

There is a thread in this section that has a list of information that we ask you to fill out when posting that youve been sued.  It helps us because we cannot really provide much help to you without knowing these answers.  Here is the thread:

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/#entry582650

 

If you could please answer those questions in a post on this thread, we would be better able to help you. 

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