syctaz

Complaint on credit card account from Unifund CCR, LLC

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Hello everyone,

Can I please get all your help to answer this Complaint the best possible way.

Here is exactly what it states verbatim:

 

COMPLAINT ON ACCOUNT/CONTRACT

 

COMES NOW, UNIFUND CCR, LLC, as Assignee of Citibank, Na, Plaintiff in the above-styled action, and herewith brings this action against "myself", Defendant, for money owed on an account/contract, and respectively shows this Court as follows:

 

1.  Defendant "myself" resides and may be served at "my address" and is subject to the jurisdiction and venue of this court.

 

2.  Defendant is indebted to Plaintiff in the sum of $XXX principal on an account/contract, as shown with particularity by the documentation attached hereto.  Furthermore, Plaintiff is also entitled to recover interest at the rate provided for in the original contract or at the legal rate.

 

WHEREFORE, Plaintiff demands judgment against Defendant for the principal sum of $XXX, plus court costs and other such relief as the Court deems just and appropriate.

 

Respectfully submitted,

 

"signed by attorney"

 

 

Now, for what's stated above, they don't reference any account number that I alleged owe against.  Plus, there was no documentation attached to this Complaint that they reference in number 2.  Also, they hand wrote another dollar amount at the end of the Complaint that is more than what is typed in the Complaint.

 

Please provide any inputs as to how I should best answer this Complaint and what I should do from here on out.

 

I appreciate all the help.

Thank you, Steve

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@syctaz

 

Is this is in Magistrate Court? 

 

Whatever court it's in, read the rules for that court.  Does the court require documentation to be attached?

 

I'd find out if there's any documentation attached to the complaint in the court file.  If there's not, it's possible that you could file a motion to dismiss for failure to state a claim for which relief can be granted.  In other words, you have no idea for what account your being sued.   They've failed to provide enough details (and documentation if the court requires it) for the court to be able to render a ruling.

 

If they did  attach documentation to the complaint that's filed with the court, then you might go ahead and answer the complaint.  It would your word against theirs that no documentation was attached to the copy you received.

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@syctaz

 

I know that in GA Magistrate court, you cannot request discovery without permission from the court (unless the rules have changed).  That shows that Magistrate Court rules are different from higher GA court rules.

 

Be SURE to check your rules about a motion to dismiss and "failure to state a claim upon which relief can be granted".  Also, be sure to check with what's been filed with the court.

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@syctaz

 

First, if it were me, I'd see what was filed with the court.  If NO DOCUMENTS were filed with the court, then you have no account number or original creditor to go by. 

 

If no documents were filed with the court, then I'd check to see if the magistrate court rules allow me to file a motion to dismiss based upon "failure to state a claim upon which relief can be granted' because you have no idea as to the account for which they're suing.

 

What is in the court file?   What do your magistrate court rules say about filing a motion to dismiss instead of an answer to a complaint?

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@BV80

 

Thank you so far with your help on this.  There was no other documentation filed with the Complaint and I would like to proceed with the Motion to Dismiss for failure to state a claim upon which relief can be granted.

 

Can you please help me on how I should draft this Dismissal?  I've tried looking online and can't find any good examples.  I want it to look very well when I file it and send a copy to the Plaintiff.

 

Thank you for your help!!

Steve

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@syctaz

 

I've never had to draft a dismissal.

 

First, have you checked to see if your magistrate court allows for a dismissal based upon a failure to state a claim?  If the court doesn't allow it, it would be a waste of time.

 

Also, check to see if your court has rules about what documentation (if any) needs to be attached to a complaint such as an affidavit or any type of evidence.  If the rules have such a requirement, it would help you if you're allowed to motion to dismiss.

 

In regard to the allegations in the complaint, if you can file a motion to dismiss, it would usually be instead of answering the complaint.  This is something else that should be in your rules.

 

Courts are really picky about their rules.

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Magistrate Court does not require the account number or the attachment of ANY supporting documents in the original complaint.  The reason the amount at the bottom is probably different is it may be the total of the amount alleged owed, court fees, and attorney fees.  The fees are stated separately.  

 

If you look on the MC fom requires they check off a claim because that is GA version of small claims court.  There are 3 choices:  suit on note, suit on account, and other.  Superior Court requires the formal statement of cause and what relief is sought in GA.

 

Also you can file an answer two ways:  in writing or orally.  You only need show up and defend yourself once you do.  

 

The Magistrate is not going to dismiss because all of that is handled at trial.  That is where you can challenge it.  MC also does not allow discovery prior to the trial except in very limited narrow circumstances and requires the permission of the court.  

 

I lived in GA for almost 20 years, what will happen is you show up on the day and they will be handling cases most of which will be no-show default judgments.  At some point the court will determine you have showed for trial and send you and the attorney out in the hall or to a conference room for a "chat" where he/she will try to convince you to sign a consent judgment and admit to the debt.  This is where if you have done your homework you can get them to back down.  If they realize you have done your homework and are prepared to fight they may dismiss.

 

Whether a dismissal will work or not depends on what court you are in.  Which county is this case in?

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@Clydesmom

 

This is in Decatur County, GA.

Can you please let me know how I should best answer the 2 statements in their Complaint that I will turn in to the Court:

 

1.  Defendant "myself" resides and may be served at "my address" and is subject to the jurisdiction and venue of this court.

 

2.  Defendant is indebted to Plaintiff in the sum of $XXX principal on an account/contract, as shown with particularity by the documentation attached hereto.  Furthermore, Plaintiff is also entitled to recover interest at the rate provided for in the original contract or at the legal rate.

 

Also, can you please let me know how I can best make them back down and dismiss?  I'm not sure what homework I need to do to prepare to make dismiss this.  I'm very unfamiliar with Magistrate Court rules.

 

Thank you,

Steve

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Steve

 

Did you save any of Unifund's or their attorney's collection letters? 

 

Unifund, from my own personal experience, sends a collection letter one month before they send you off to their lawyers for collection who usually follow-up with a second collection letter. 

 

Both collection letters will ask for X amount of dollars which they do not break down into principal, interest and other fees.  Here is where you can nail them.

 

You should be advised that after charge-off,  Citibank generally holds on to their accounts for one or two years prior to selling the defaulted accounts to Unifund.  During that time period Citibank seldom charges post charge-off interest even if they hold onto the account and sue you themselves.  However, Unfiund will ask you for that post charged-off interest anyway (prior to them owning the account) which they can not do unless and until a court so orders. 

 

You should also be advised that a court can award Unifund statutory (established by law) interest from the date of charge-off even if Citibank did waive interest prior to them selling the account to Unifund.   But until the court so orders, Unifund is anticipating something that may or may not occur which is a violation of the Fair Debt Collection Practices Act -misrepresenting the amount that you really owe.  You can then sue them for FDCPA violation(s) and turn up the heat in which case they will more than likely turn tail and run.  They want an easy default.

 

Hopefully you saved those collection letters. 

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Steve,

 

     Are you sure you didn't pitch their letters?  Unless they changed things up since last summer, if they are going to sue you, then they follow the procedure outlined in my previous post.  In any event you obviously don't have any collection letters.   Best to answer the complaint and fight them tooth and nail.  JDBs want easy defaults.

 

     

 

Skippie

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@SkippieB

 

Would you know how to best answer the two Plaintiff's statement's in their Complaint:

 

1.  Defendant "myself" resides and may be served at "my address" and is subject to the jurisdiction and venue of this court.

 

2.  Defendant is indebted to Plaintiff in the sum of $XXX principal on an account/contract, as shown with particularity by the documentation attached hereto.  Furthermore, Plaintiff is also entitled to recover interest at the rate provided for in the original contract or at the legal rate.

 

Thank you,

Steve

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@Clydesmom

 

This is in Decatur County, GA.

Can you please let me know how I should best answer the 2 statements in their Complaint that I will turn in to the Court:

 

1.  Defendant "myself" resides and may be served at "my address" and is subject to the jurisdiction and venue of this court.

 

2.  Defendant is indebted to Plaintiff in the sum of $XXX principal on an account/contract, as shown with particularity by the documentation attached hereto.  Furthermore, Plaintiff is also entitled to recover interest at the rate provided for in the original contract or at the legal rate.

 

Also, can you please let me know how I can best make them back down and dismiss?  I'm not sure what homework I need to do to prepare to make dismiss this.  I'm very unfamiliar with Magistrate Court rules.

 

Thank you,

Steve

 

You admit the first one.  There is no danger to admitting you are John Doe who lives at 1313 Mockingbird Lane and the suit is in the correct venue.  

 

The second one you simply deny.  I would even go so far as to state there was no documentation attached to the complaint and defendant lacks sufficient knowledge to verify any of plaintiff's claims.  

 

There is NO 100% reliable method to make them back down and dismiss.  ALL you can do is your best job in standing up to them.  

 

Now the good news: 

 

You are in a large county court professionally run by actual judges and not a rural one that is likely inbred elected Magistrates that simply do their buddy a favor while ignoring the law.

 

JDBs are typically looking for the default judgment.  A defendant who challenges their standing to sue, ownership, documents as evidence, and anything else tends to make them back down.  There is NO guarantee this will happen.

 

Now the bad news:

 

You are in a large county court professionally run by actual judges that know the law.  A little over a year ago GA changed its business records laws and made it EASIER for creditors to sue and collect in the courts.  However, that does not make it impossible just more difficult.

 

Another member of this forum just got his JDB to dismiss last week in Cobb County.  I HIGHLY recommend you do what he did (and I ALWAYS suggest) which is go sit in the court for a day and WATCH how they try these cases.  That will tell you exactly what to expect from the law firm and the judge that you will be dealing with.

Have your dismissal paperwork filled out and WITH you.  Also have your appeal paperwork filled out and WITH you in case you do lose.  That appeal stays their ability to garnish or collect until the appeal is over.

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@Clydesmom

 

Thank you for the information.  I will go ahead and answer the Complaint.  Also, they are just sueing for about $1,000, which I think is not much, but I could be wrong.

 

Can you please let me know the dismissal and appeal paperwork your referring to.  Is this something I need to complete now, or do I wait to see if this goes past the Complaint?

 

Thank you,

Steve

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@Clydesmom

 

Thank you for the information.  I will go ahead and answer the Complaint.  Also, they are just sueing for about $1,000, which I think is not much, but I could be wrong.

 

Can you please let me know the dismissal and appeal paperwork your referring to.  Is this something I need to complete now, or do I wait to see if this goes past the Complaint?

 

Thank you,

Steve

 

Unless you get a miracle and they dismiss before court this WILL go to trial.  

 

All the forms needed for MC are here:  http://www.georgiacourts.org/councils/magistrate/forms.html

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Look to see if Unifund is in your credit reports if they are check to see if the imformation is correct if not send a dispute letter to Unifund and a dispute letter to all 3 credit agencies you may have FCRA violations they rack up fast. even if you lose you maybe able to get the judgment withdrawn in a settlement agreement with Unifund and put some money in your pocket.

 

Won't work in the GA courts.  Wisconsin has VERY debtor friendly laws and GA is VERY creditor friendly.  Unless there are FCDPA violations significant enough to support a counter claim the court will not even consider it and neither will a JDB with a judgment.  GA allows wage and bank account garnishment and once they have a judgment from the court it is a rubber stamp form to start garnishing both.  A year ago GA made it easier for creditors to due and recover.  If they have a judgment they will go for the entire amount and are unlikely to to be scared by a FCRA threat.  They will simply correct their reporting to be in compliance and collect their money.

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I can almost guarantee that Unifund won't be on the credit report, and neither will the OC account.  Unifund pulls both when they commence litigation.  Sadly, it's not illegal, as they are not required to report, but it always indicates some underhanded dealings on their part.  I find it odd that they are even allowed to pull the OC account off the report.

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I find it odd that they are even allowed to pull the OC account off the report.

 

Most likely they have a contractual agreement to do so with the OC.  Another reason could be that some OCs stop reporting once they sell the debt.  What the OC reports would have no affect on the lawsuit by the JDB anyway.  Their violations are their own responsibility and the JDB has no responsibility for the violations of someone else.

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Look to see if Unifund is in your credit reports if they are check to see if the imformation is correct if not send a dispute letter to Unifund and a dispute letter to all 3 credit agencies you may have FCRA violations they rack up fast. even if you lose you maybe able to get the judgment withdrawn in a settlement agreement with Unifund and put some money in your pocket.

 

Once you fight them, Unifund will stop reporting anything to the credit bureaus.

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Once litigation starts it's illegal to do anything with the credit reports , then it's a criminal matter and also a violation and you bar griv the lawyer for Unifund

 

Post one statute that says it is illegal for them to amend credit reporting once they file suit.  Where in the FCRA or FCDPA does it say it is a violation.

 

if Unifund stops reporting thats good then you can prove your FCRA violations

 

How are you going to prove it?  Credit reports are hearsay and inadmissible.  Plus in arguing this you essentially have to admit to the debt thus proving their case for them.  

 

This has to be one of the worst plans I have ever seen or read about in defending a lawsuit.

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www.creditinfocenter.com/eBooks/PoorMansClassActionLawsuit.shtml              legalcatch.wordpress.com/2008/08/30/unauthorized-access-of-credit-reports-your-rights-under-the-law/

 

www.foxbusiness.com/personal-finance/2013/03/05/has-your-credit-report-been-viewed-illegally/       www.experian.com/connect/attorneys-check-clients-credit-report-and-score.html

 

Now I m not going to explain all this to you, You can't seem to take any constructive advise, just shoot the messenger, People with any insight or not take all advise with a grain of salt.

anyone reading this will understand how uninformed you really are and should take a backseat.

 

 

www.avvo.com/legal-guides/ugc/fair-credit-reporting-act-in-litigation  

 

NOTHING in any of those articles gives a legal statute in ANY state of federal law that says it is illegal for a creditor to alter a trade line once they have filed suit.  They are nothing more than articles that repetitively say the same thing:  IF a creditor violates the law you have rights that can protect you.  Articles 2 and 3 are about impermissible pulls on credit and ID theft.  The last link is to Experian and is aimed at CREDITORS advising attorneys to check the credit of their clients.  NONE of them support your claim that amending a trade line is illegal.

 

So I will ask AGAIN:  which statute specifically says it is illegal for a creditor to change or amend a trade line once there is litigation pending?

 

@rink21

 

It would be helpful to know to which post and/or poster you are addressing.

 

It is aimed at me because I challenged the fact that there is no law that supports his claim.  Wisconsin has some state consumer laws with some teeth to them but none of that has any bearing on a case in the state of Georgia.  Apparently precedence and jurisdiction are two concepts @rink21 does not get.

 

He was attacking Willingtocope when she challenged him and now because she won't take the bait he has decided I am a good target.

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Chicamaria said pull I said amend should have been pull..... I never said anything about Wisconsin   I stated file in Federal Court and nothing here has anything to do with the debt it has to do with HOW the JDB broke the law so clydesmom is not a rational clear thinker below post:

 

Your understanding of the law is nil.  It is not a violation of the FCDPA for a creditor to do a pull on the consumer's credit.  Once the trade line already exists they do not have to mark it as disputed either.  

 

The JDB is not breaking the law that we know of and this case is not in Federal Court.  You have NO knowledge of the GA courts and what you are suggesting is going to get the OP railroaded to a summary judgment.  

 

I stand by my assertion that your suggestion to bait them to an alleged violation based on your misunderstanding of the law is the worst plan I have ever read in defending a lawsuit.

 

 

@rink21

 

If one disputes an entry on a credit report directly with the furnisher, the FCRA does not say that the furnisher must report the entry as disputed.   You are referring to the FDCPA.

 

Let it go #BV80 he isn't interested in facts or the law only being nasty and arguing.  I am certain the OP is smart enough not to follow his bad advice to file a counter claim on a non-existent violation and hope they back down.

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