robnjesk

Being Sued by Kenosian and Miele and need help....

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Thanks in advance for any help anybody could give cause I really, really need it....

 

My husband was served papers for a lawsuit by Kenosian and Miele.  I have read these forums and just don't understand a few things.

1. Does the BOP have to be filed through the court?

2. On what form do I respond to the complaint?  I have read that the law firm can get a default judgement if I respond on the general form so I'm not sure if that is how I do it.

3. Has anybody ever used the "produce the assignment" method.  I read about this on another website and because my husband received notices from serveral other collection agencies for the same account would this method apply and work?

4. One last thing the courthouse website stated that the hearing to show why sanctions should not be imposed is scheduled for 1/23/2018.  Why would it be for four years from now?  I am so confused.

 

Anyways I am sure I will have plenty more questions as time goes on but this is all for now.  Any help or suggestions would be GREATLY appreciated.  I was served last Thursday so I really don't want to waste a whole lot of time for fear of running out of time. 

 

Thanks again!!

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Answer these questions, will make it easier to help you.

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

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).

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

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.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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


 

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1. Does the BOP have to be filed through the court?  No, send a demand for a BOP, make a copy for yourself, send it certified mail return receipt requested, do not file it with the court.

 

2. On what form do I respond to the complaint?  I have read that the law firm can get a default judgement if I respond on the general form so I'm not sure if that is how I do it. Unless the complaint is verified, you can use the general denial form found on your courts website.  I am not talking about the lawyer verification that they sent it to you, it is for the complaint itself.  They seldom are unless the amount is over 25k.

 

3. Has anybody ever used the "produce the assignment" method.  I read about this on another website and because my husband received notices from serveral other collection agencies for the same account would this method apply and work? Don't know what you are talking about, but as we go along, you will request documents that ask for assignment as well as other things.

 

4. One last thing the courthouse website stated that the hearing to show why sanctions should not be imposed is scheduled for 1/23/2018.  Why would it be for four years from now?  I am so confused.

Their cases as so backed up, they put it on the calendar so that if nothing has happened they can dismiss it and get it off the books.  Some jdbs file so they don't miss the sol deadline, then sit on the case unitl they are good and ready.  Don't worry, you are going to make them work, so they won't be sitting on it, they will either proceed, or dismiss.

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1. Who is the named plaintiff in the suit?  Unifund CCR, LLC (Who I have never heard of or had any correspondence with)

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Kenosian & Meile

3. How much are you being sued for?  Damages of 7000.00 plus interest, attorney's fees, cost of suit and other relief as is fair, just and equitable

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

5. How do you know you are being sued? (You were served, right?) I was served not my husband who is actually the one being sued

6. How were you served? (Mail, In person, Notice on door)  A process server came to my door and I took it

7. Was the service legal as required by your state?  Yes, it was legal

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  Have had zero communication with them or the law firm

9. What state and county do you live in? California, Los Angeles County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  8/2010

11. What is the SOL on the debt? To find out:  4 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).Last Thursday (before I was served it said summons filed and issued, collections case complaint filed and case file forwarded to records re: file storage (whatever that means)

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No, it is not longer even on my husbands credit report anymore

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. No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  First cause is "Breach of Contract", second cause is "Monies Had and Received", third cause is "Open Book", fourth cause is "Account Stated".  I did not get an interrogatory regarding the lawsuit.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I received the summons, civil case cover sheet, civil case cover sheet addendum and statement of location, the complaint and a page that says verification at the top of it.  Other then that they sent me nothing. 

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Here is another interesting note:  I have two bills from the lawyer dmanding payment.  One is dated 1/8/2014 for 8441.04 the other is dated 1/9/2014 for 8442.83 and they also have my husband listed with an aka name that he never went by.  It was his teenage girlfriends last name so I don't know how they got that all mixed up either. 

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Does he recall this account? Does he recall when the account was defaulted on? If it is not on his credit report that would be suspicious. Could the ex girlfriend opened this account using his ssn, but change his last name, or used the card under her own name?

They did not send any account statements?

First change your amount sued, round it off up above.

I would file a general denial and use expired SOL as an affirmative defense. They could be using the date they bought the account, or the charge off date as their last payment date. You need to pin down the real last payment. If you can do that before your 30 days to answer the suit, you could file a counter claim for suing you on a time barred debt.

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Unifund may or may not report you to the credit bureau.  They reported me but when I filed a dispute with the credit bureaus they were removed. I dealt with them last year and successfully beat them back.  See my PM.

 

SkippieB

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The last payment was made in August of 2010 so I am out of luck for the SOL defense.  My husband does not remember this debt and does not know how it got so high or why they are using the name hemme as he has never used this name for anything. 

 

I also have a question about one of the statements in their complaint.  they wrote the following: 

7.  The within action in not subject to the provisions of California Civil Code Section 1788.50 et seq (1788.50-1788.64) as the obligation sued upon is an obligation sold or resold to plaintiff before  January 1, 2014.  

When I read that civil code it said nothing about being sold or resold before January 2014 and this particular civil code is the one that states all the things they have to include in the complaint which they included none of that stuff.  They attached no billing, no account statements, no list of other buyers of this debt (which there have been a few), no address for the original creditor.  None of that.  How come they are not subject to that civil code? 

 

Also Shellieh98 I will start to work on the general denial.  Thank you for telling me what to file.  I am also sending out the BOP.  I really, really appreciate all the help that you are giving.  I am not so nervous now and actually starting to feel a little at ease!! 

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As HomelessinCalifornia says "Keep asking questions."  Ask Ask Ask!! and understand what all the awesome people on here mean. you'll get mixed responses based on the info you provide. What I've learned so far is to give all the info if you expect the best response. if you only tell partially, most likely response will be partial. But people on here are great i can't stretch this enough. You have found this forum, a good start n you are in a good hands. It all depends on your input and how hard you willing to work to see the results.

 

I was all freaking out (still do every time i receive something looks like a legal letter) when i received the summon in the mail, spent 20+ days reading all the cases and suggestions on here and specifically Kenosian and Miele LLP @eyoung27 @yellowmate posts. 

I answered on a pleading form to make it look more professional and deny each allegation using the mixture of the following statements;

 

1. Deny the allegation on information and belief. Plaintiff provided no admissible evidence establishing ownership or liability.

2. Deny the allegation because Defendant does not have enough information at this time to make certain denial. Plaintiff’s statement is conclusory and offered without admissible evidence. Defendant demands for strict proof.

3. Deny the allegation. Plaintiff’s statement is conclusory and offered without admissible evidence. Defendant demands for strict proof.

4. Deny the allegation. No admissible evidence provided.

1. Defendant is without the knowledge to form a belief as to the truth of the allegation and therefore must respectfully deny.

5. Deny on information and belief.

6. Deny the allegation because Defendant does not have enough information at this time to make certain denial.

7. Deny on Information and belief.

8. Deny the allegation because Defendant is without knowledge and insufficient information at this time to make certain denial.

9. Deny the allegation on information and belief. Plaintiff provided no admissible evidence establishing ownership or liability.

10. Deny the allegation because Defendant does not have enough information at this time to make certain denial. Plaintiff’s statement is conclusory and offered without admissible evidence. Defendant demands for strict proof.

11. Deny the allegation. Plaintiff’s statement is conclusory and offered without admissible evidence. Defendant demands for strict proof.

12. Deny the allegation. No admissible evidence provided.

 

You can pick just one and use that, some lawyers do that keeping things short and simple. 

 

I struggled with AFFIRMATIVE DEFENSES, and listed total of 10 to cover my a$$.

 

Again try to read this forum and ASK questions, make sure you don't miss the 30 days  deadline to file your answer with the court. Call the court to see how was he served maybe he has 35 days to answer, since it server sub-served the summon.

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Thank you so much for all your responses.  I really appreciate it.  I think I have the answer complete.  I had received an email that stated I needed to have a verification page if there was a verification page attached to the summons.  Is that true?  If so what does the verification page need to say.  I am hoping to drive the 50 something miles next Tuesday or Wednesday to file the papers so want to make sure that everything is done correctly. 

 

I only listed three affirmative defenses.  They are:

1. Statute of Limitations

2. Plaintiff in filing this complaint has not produced a copy of the alleged agreement

3. Plaintiff does not have standing and lacks the chain of custody paperwork

 

Do you think this enough defenses and are they good enough?  Again any input and guidance is greatly appreciated. 

 

Thank you everybody!!

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You don't have to put lacks the chain of custody paperwork, just plaintiff lacks standing will do.

You only need the verification page if his was verified. Not the one about venue, and it is usually for debts that are unlimited over 25 k

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Thank you very much shellieh98.  I took your advice and changed the wording.  Just so I am clear the verification at the end of the summons does not mean its a verified summons that's just a verification for the lawfirm to be suing on behalf of Unifund. 

 

I am so grateful to all of you for all the help and guidance and helping me to feel more at ease with all of this.  Thank you all so very much!!

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Hi Everybody,

 

I reveived my BOP back from the law firm.  They sent me one statement from 2011 when they allege that my husband defaulted in 2010 and that is evident on the statement.  There was nothing else attached to their response.  This is the only documentation that has been provided to me at all.  I didn't even get documentation with the summons.  What do I do now? 

 

I have not filed my answer yet, that will be tomorrow.  Should I add something in there or just wait?  This is the third or fourth jdb that has had this debt and I really believe that they have nothing. 

 

Any advice or direction would be greatly appreciated here.

 

Thank you. 

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My advice would be #1....make sure you answer their complaint.  #2  either hire a lawyer or dig into these forums (there is a ton of good information that will help you win in your fight against them).  Your only recourse for the BOP is a Meet and Confer letter that they will most likely not respond to...they do not typically respond to meet and confer correspondences and as far as a motion to compel....I'm not sure this is the best road to go down.  I have some experience with this jdb and this is their MO....After you answer, they are going to send you Request for Admissions and Request for production of Documents to which you have 30 days to answer.  They are looking for you to either incriminate yourself on the admissions or not return them....they can then file a summary judgement....so make sure you know how to answer and return them on time.  Send them additional discovery responses.  Typically they answer your requests promptly, but send unverified responses (which is a red flag that they don't have their ducks in order to go to trial).  Occasionally, they screw up or miss responding....to which if they do...you can pounce and either win your case immediately or make them look bad in court....which I can tell you from experience...these people are not very apt litigators.....I recently had a motion heard and I was the only defendant who opposed them in court (out of 10) and I can tell you their argument was foolish.  If you do nothing, they can introduce their garbage evidence at trial and win....However, there are steps you can take to prevent this from happening.  which gets back to my original point answer on time and either hire an attorney or read through these forums.

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One more thing....I wanted to put your mind at ease about the trial date....its by no means imminent....they won't assign the date until you answer and its typically 12-16 months out (LA is log jammed right now due to all the cost cutting the city is doing). 

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@credit_limbo that is awesome!! Thank you so much!  I just filed my answer to the summons/complaint and have spent the last five hours reading and pouring over all kinds of posts on this forum.  It's making me feel real nervous that I will not be able to do this.  Also I am not the one being sued so I am going to have to train my husband in what to say if this all goes to court because I am sure they are not going to let me talk for him.  There are so many things that I feel I do not understand and things that I won't get right and just basically a lack of confidence in myself.  I feel that as this goes on and I continue to read and educate myself and ask a million questions it will be fine but....

 

Anyways now that I have filed the answer what would be my next step?  I would like to get working on it so that I am not so rushed for time.  Caoptout had said that next they are going to send a request for admissions and a request for production of documents.  In my hours of reading I didn't see any information on that,  maybe I missed it or I am taking in too much information.  Can anybody tell me where to look or how I go about answering those two things?

 

Thanks again to all of you.  You cannot imagine how grateful I am for all the help and wealth of information you all have shared!! 

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OK. so by filing your answer you just prevented JDB and their Lawyer from getting a default against your husband. Next you are going to receive a letter from the court about your case management conference (CMC) date (what i've been told and read, is nothing to stress about, mine is in a month & honestly i am nervous) on which both parities tell the judge about status of the case and according to C.C.P both parties need to meet and confer and discuss the CMC. lawyer in my case has failed to answer my calls so far.

 

if you have send them Bill of particulars (BOP); which is not a discovery and have read that some judges deny your Motion to Compel. So I would suggest you start prroper discovery  n work on "REQUEST FOR PRODUCTION OF DOCUMENTS [sET ONE]" (RFP),  n follow this rule "CCP 2031.030. ( c ) Each demand in a set shall be separately set forth, identified by number or letter ..."

Use this http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/#entry1202922 

proven RFP template many others have.

 

Here's the recommendation i got from @Anon Amos: Read and understand these

"The CA rules of court, CCP, Rules of evidence and authentication, and probably your local court rules can be googled. The law library is very good, when you are there you can see the "CA forms and pleadings" and "CA jurisprudence" and also there is a "judges opinions" book where you can look up your judge and It may show his/her opinions on different topics. Sometimes they talk about how they like motions etc. Also look up your cause of action / common counts in the CA jury instructions (CACI) it will tell you all the elements to the claim they must prove to win their case, and It has case law. In the rules of evidence: Hearsay, business records exception to it, rules of authentication, best evidence rule (when challenging things as untrustworthy) and the rule of completeness. Watching live court cases is very helpful as well."

if you live close to your county's court law library go in there with your husband and do the research there's more than enough books and resouces. especially books from Nolo's  publications. Their books are like Law books for dummies :-)

 

Good Luck!

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@credit_limbo again thank you so much.  The thread that you sent for me to look over really put my mind at ease.  It doesn't seem so daunting when you have a timeline per se of how things should be done.  I am going to send discovery next.  I did send a BOP and received one statement from the account they allege is my husbands and is almost a year after they allege I defaulted. 

 

I do have a few questions. 

Do I have to send them my proof of service or just file it with the court?  I already sent the answer and had the proof of service filed.  If I have to send it to the lawyers I want to make sure to do that. 

 

Also just to make sure I am sending everything to the lawyers not to Unifund right?  Cause I have no address to Unifund and have never even heard of them before this summons came up.

 

I really want to make sure that I do everything by the book and give them no reason to get a judgement because of my lack of doing or not doing something.   

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@credit_limbo again thank you so much.  The thread that you sent for me to look over really put my mind at ease.  It doesn't seem so daunting when you have a timeline per se of how things should be done.  I am going to send discovery next.  I did send a BOP and received one statement from the account they allege is my husbands and is almost a year after they allege I defaulted. 

I read that for them to send you even just one statement can meet the requirement of  as a proof you opened the account and owe money on the alleged account. So read the about the rule of evidence.  

 

I do have a few questions. 

Do I have to send them my proof of service or just file it with the court?  I already sent the answer and had the proof of service filed.  If I have to send it to the lawyers I want to make sure to do that. 

In my county court clerk told me to file the POS with the court so they have it on file for my Discovery documents. also i think you do send the  POS-30 along with whatever you send them. (call your court to confirm)

 

"Your opponent is entitled to a served copy of everything the court gets—and you’re about to begin filing a lot of documents with the court. When you prepare a document for filing with the court, you should also: • Make at least two copies of the document that’s going to the court (one for each opponent and one for yourself). • Fill out the Proof of Service by First-Class Mail and ask the person who will be mailing the documents to the opponent to sign it (remember, this can’t be your husband). Make a copy for each opponent and one for yourself. • Attach the original Proof of Service to the original document going to the court, and file them together. • Attach a copy of the Proof of Service to the copy of the document you filed in court, and send both to your opponent • keep the second copy for yourself."

 

But for Discovery items (request for productions of Documents, Request for admissions..etc) don't get filed with the court.

 

Also just to make sure I am sending everything to the lawyers not to Unifund right?  Cause I have no address to Unifund and have never even heard of them before this summons came up.

Unifund doesn't have physical presence in Cali, this law firm works for them. This Lawyer is your Point of contact. I'm keeping all the contact with them via writing so there's no dispute over, "I said, we said..blah blah"  

 

I really want to make sure that I do everything by the book and give them no reason to get a judgement because of my lack of doing or not doing something.   

 

Search and Read this awesome forum also sent you a PM for some suggestion of books/ that you might want to read over. 

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@credit_limbo again thank you so much.  The thread that you sent for me to look over really put my mind at ease.  It doesn't seem so daunting when you have a timeline per se of how things should be done.  I am going to send discovery next.  I did send a BOP and received one statement from the account they allege is my husbands and is almost a year after they allege I defaulted. 

I read that for them to send you even just one statement can meet the requirement of  as a proof you opened the account and owe money on the alleged account. So read the about the rule of evidence.  

 

I do have a few questions. 

Do I have to send them my proof of service or just file it with the court?  I already sent the answer and had the proof of service filed.  If I have to send it to the lawyers I want to make sure to do that. 

In my county court clerk told me to file the POS with the court so they have it on file for my Discovery documents. also i think you do send the  POS-30 along with whatever you send them. (call your court to confirm)

 

"Your opponent is entitled to a served copy of everything the court gets—and you’re about to begin filing a lot of documents with the court. When you prepare a document for filing with the court, you should also: • Make at least two copies of the document that’s going to the court (one for each opponent and one for yourself). • Fill out the Proof of Service by First-Class Mail and ask the person who will be mailing the documents to the opponent to sign it (remember, this can’t be your husband). Make a copy for each opponent and one for yourself. • Attach the original Proof of Service to the original document going to the court, and file them together. • Attach a copy of the Proof of Service to the copy of the document you filed in court, and send both to your opponent • keep the second copy for yourself."

 

But for Discovery items (request for productions of Documents, Request for admissions..etc) don't get filed with the court.

 

Also just to make sure I am sending everything to the lawyers not to Unifund right?  Cause I have no address to Unifund and have never even heard of them before this summons came up.

Unifund doesn't have physical presence in Cali, this law firm works for them. This Lawyer is your Point of contact. I'm keeping all the contact with them via writing so there's no dispute over, "I said, we said..blah blah"  

 

I really want to make sure that I do everything by the book and give them no reason to get a judgement because of my lack of doing or not doing something.   

 

Search and Read this awesome forum also sent you a PM for some suggestion of books/ that you might want to read over. 

 

Thank you for your response.  I will send another copy of the answer with the completed stamped filed POS attached tomorrow.  I guess I kinda knew I had to do that but wanted to make sure before I did.  I am also going to start discovery on Monday.  I have had no time to do it today and spent most of yesterday reading in these forums.  It's amazing how you sit down to only read a few things and before you know it six hours have passed and your head/brain hurts from all the information that you have just taken in.  I am on a mission to make sure that I am as much ahead as I can get so that I am not stressed or rushed to do anything.  With the help that I have received from people here I am well on mhy way to accomplishing that. 

 

I did go out yesterday and get a binder and things to make this whole process a little more organized which helps a bunch.  I need to really get my husband on board so that he can read and educate himself since he will be the one going to trial not me.  The binder will help him a lot to be able to find what he needs easily. 

 

Anyways enough rambling.  Thanks again everybody and I know I have said it before but I am so grateful for all of you.  You all help to set my mind at ease!!

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My suggestion is to make two copies of everything, for your husband, on one copy highlight the important section(s) along with your comments and keep the others for refrence. if you don't have a laser printer printing all these documents will end up costing you alot in terms of inkjet printer ink.

So you can choose one of the two options:

1) Use Microsoft Word and copy paste stuff in there and use its highlight and comment function to leave notes for your husband, save that document for him to read.

2) buy a laser printer (off of craigslist) or new one (under $100) which comes with toner and use that for printing. 

 

Also if your husband is a fast reader, it shouldn't take him more than few hours to read  and understand those books I suggested. 

 

you don't need to rush things, The big thing was answering the summons, which you did. I filed mine on the 29th day to disappoint the JDB lawyer, incase they were gonna get default judgment.  ::BigGun::

Understand each and every step you decide to take, you will read and get mixed suggestion on here from each one of us based on own experience(s). In the end it's YOU, have to decide which side you agree with. There's no such thing "one size fit all" model in law. In discovery the quality matters not the quantity. If you can take apart their complaint, will know exactly what to ask for in terms of discovery. Most likely their response to your BOP request will be some statement, inadequate, under the law. but they know you probably get scare after receiving those and think they have proof, which trust me they don't and aren't going to spend $24-$50/statement from the Original creditor unless you own them some thing like $xxx,xxx,xxx.xx. but then those type of accounts get handled by "UNiFUND CCR Partners"  these few grands accounts on which they paid less than $100. not worth for them to fight unless they want those purchase record / Bill of sale to be public. They have to provide proof to every claim they've made on original complaint. It's our job to make sure that they can't say, "Your Honor, s/he didn't object, so it is true".

Again bookmark Astmedic's thread ()%C2'> it's a good starting point and reference.

 

Look at the positive side of this suit, now you and your hubby have another excuse to spend time together and work as a team, so show your support and cheer one an other.

 

sorry for going off topic. :idea:

 

Best of luck and get to work.

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I was denied for the court fee waivers.  I cannot afford to pay the court fees so I don't know what I am going to do now.  I actually cried when I opened the envelope and read that I was denied.  Now that I am over that I am going to file request for hearing form and hope that something comes of that.  I am just feeling overwhelmed again and I don't like that feeling at all. 

 

Anyways enough of the pity party and on to moving forward.  Thanks again!!

 

@credit_limbo thank you for all your suggestions about how to help my husband out.  I really appreciate it and learned some new things about my word program that I didn't know.  This has been a learning experience in more ways then one.   

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