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Asset Acceptance sues in Colorado now mediation ordered


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Good evening,

Not sure of how to proceed but I have spent sixty hours scouring the website for information.

Asset Acceptance is using MACH&JOH out of Denver to sue me. I was served March 10, 2104 at my house at X pm. Told to be in court March 24. I studied everything on website related to me. The complaint alleged I owed $8992 plus attorney fees of $700 plus interest on debt at 8%compounded. I thought extra interest was illegal.

I moved to CO 3 years ago to rebuild my life from losing everything in July 2008 real estate bubble in another state. I have been in CO 3 years no letters or anything. Asset served me without any letter of verification. I did not even recognize their name. The alleged account is Citibank Credit Card. Last payment was May 2008 I believe. I am still somewhat insolvent but working. I have no large amount to pay anything yet. I do believe in paying my debts when I actually can. I called Citibank they stated could not help me anymore told to see Asset Acceptance. I did have card with them years ago so will not admit.

I asked the court and filed papers for indigent filing without payment and they took entire household income and is little over $1600 a month so I was denied. I had little cash in bank. I received court letter stating if I paid filing fee and answer would be considered in 7 days that was March 25 so paid April 1. I filed motion to dismiss and affirmative defense (lack of standing so thanks to all for that) (denied) and answer (accepted) I denied sections 2-3-4. I filed counter suit for $96 including case law (I do know how to IRAC a case from University work. SOL is 3 years in CO on contracts and could be 6 years on credit cards.

Judge denied I paid on time April 7 and issued default judgment. I filed April 9 motion for court clarification/reversal as I had a court clerk paid receipt and asked judge to rescind striking my answer and plaintiff disposition papers. Today April 16 I got court letter stating court erred and defendant was correct so we are back at stage 1 filing and clock reset to April 11.

I am now ordered by court to go to mediation or other ADR pursuant to CO CRS 13-22.311. This goes beyond my expertise. Order is dated April 11 2014 and I just got it today April 16. Consulted private attorney who wants $3500 cash to start so not happening.

Box 1b is checked CO Judicial Department office of Dispute resolution i.e. private mediator and so forth.

Box d states a party has a right within 10 days of April 11 so April 20 deadline to file motion objecting to mediation or ADR and compelling reasons for mediation not to be ordered.

Item 5. All parties are ordered TO APPEAR and participate. Failure to appear has consequences. I assume Asset will want a phone conference. Additionally people you can send a regular letter through USPS for .47 as long as letter included stating you served the plaintiff to court include that also.

I have filed a complaint at FTC and Consumer Financial Protection Bureau for not sending verification letter and including the case law and fine $1000 I request in my countersuit also.

Question: Not sure how to proceed ProSe from this point and thinking of talking to Judge XXXX who is a certified judge mediator as I have a right to choose. Also hearing will be in my town. Just not sure how to proceed from here. Who initiates and I chose no contact from Asset except by mail or certified mail. I have read they can be very dishonest.

Not sure what Asset will do. I have not paid anything to Asset and had them removed from credit report as owner of alleged debt. Thank you for any help. Awesome website and knowledgeable folks.

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By verification, do you mean dunning letter? There is, to my knowledge, no law that requires that they dun you before suing you.

 

If they DO dun you, and if you DO send a DV in response, in a timely fashion, at that point they must cease collection efforts until they respond to your DV.

 

Make a decision on what a fair settlement looks like to you. Start with the balance at CO by Citi, and work backwards from there. It's unlikely that the mediator will give them nothing, but if you strike hard at standing, based on what you currently know, you MIGHT get the better of the deal.

 

I have not participated in debt mediation, but I have participated in civil mediation in family court. One thing I learned there is that, for a mediator to believe that s/he has done the job well, both parties need to feel that they got a raw deal. It's just the way that they think.

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Good day,

Q: By verification, do you mean dunning letter.

A: No I mean Verification of debt letter showing that defendant is liable for debt. I received nothing from Asset Acceptance until suit filed.

 

I filed a complaint with FCPB document with court in my answer showing case violated and asking for counter at $1000. Heard nothing from court

except they have accepted answer and restarted clock to April11. I have until June 13 to have a mediation session before non compliance. Still no letter of verification. Federal law states they must stop but judge is overlooking that in my opinion. Asset ACC thought they had won default judgment but now it is Court ordered mediation or arbitration. Not sure route to go as mediation in non binding and arbitration is binding.

 

Mediation judge charges $400 upfront retainer and $200 an hr. I spoke with him and he wants an email to him and Asset Acceptance asking for date I chose June 6 (D-Day). This also allows me to get past last CC payment at Citibank (SOL) showed by JDB on their information provided to FCPB. I will update that today on FCPB stating still no letter of V. I am attaching docs filed by M&J attorney for Asset in letter dated April 7 just got them April 14 and object to affidavit on various grounds today. JDB has very little information and affidavit is on their own letterhead : )

 

Have not traveled this mediation path before.

 

Thanks for any reply.

 

 

 

 

 

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Filed response to Order for Mediation and included objection of their affidavit, asked for numerous discovery items, disclosed Asset Acceptance had wrong mailing address to court so possibly missing some letters. Started process for mediation. I will keep all posted.

Thanks

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Ok saw you did post a thread. Is the 2 items above the only thing they sent you? No bill of sale? No other statements?

Wins the battle is right, they do not have to verify if they went straight to a law suit, so no violation there.

Also you said you filed a counter suit, did you pay a separate filing fee for this? If not then you may have just put that as part of your answer, if you filed a counter suit, paid the filing fee, and had it served on the other party, they need to answer it or you could get a default judgement on them. If they do answer it, you probably won't win that one.

You said you asked for discovery items? Colorado does not have discovery unless ordered by the judge. That means you have to have a special pre trial hearing and give the judge a good reason why you need it.

Here we have disclosure. So basically they send you a tidbit here and there, ask you to settle, then about 2 weeks before your court date they send one big packet with everything they have to use against you. That is when you spring into action and refute each piece one by one.

If you can object to mediation, I would. They will basically think you owe it, and the mediator is there to help figure out how much you will be paying them. As I said before, I will research this and get back to you. You do not want it if it can be helped.

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I have been in CO 3 years no letters or anything. Asset served me without any letter of verification. I did not even recognize their name. 

I have filed a complaint at FTC and Consumer Financial Protection Bureau for not sending verification letter and including the case law and fine $1000 I request in my countersuit also.

 

The requirement that they validate or even verify the debt under the FCDPA is only when they have sent you the first dunning letter and you request it within 30 days of receiving that letter.  NOTHING in the FCDPA law requires they validate before suing you.  As @shellieh98 said there is no violation.  You might want to withdraw that counter claim because you could end up paying their attorney fees and costs for having to defend a frivolous claim.

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Good day Shellieh98 and Clydesmom,

 

Thank you for the reply. April 17 I filed a response to Order for Mediation. I am somewhat new to Civil Procedure so I am basing my work on what I read here and in CO Civil Law. Today was objection deadline to Mediation. Being I am somewhat still insolvent trying to rebuild my life I am unable to afford all of the extra legal fees and so forth. My original answer included the Item #1. The amount of damages to be due to Plaintiff by the complaint in this action is not due and owing for the following reasons: I have no accounts or agreement with Plaintiff and they have no standing. I deny complaint sections 2-3-4.

 

Item #2: If applicable The Defendant asserts the following counterclaims or setoffs against the plaintiff: Violation of 15 USC 16(f) Sec 808 (I) allows $1000 for violation by Plaintiff.

 

Defendant requests a trial to court. Yes, the two thumbnails (above) is all they have shown me so far. An affidavit and a credit card copy. I disputed their claim on my credit report and it was removed. The judge reversed the default motion and now we stand with the original answer going on to mediation. Nothing from M&J (Asset Acceptance) yet as I imagine they thought it was a slam dunk and now mediation is ordered.

 

I paid $96 for this filing (answer) I have not paid an extra filing fee to get a counter suit at this time. I am being brutally honest when I state I may owe the original creditor from six years ago I am arguing for paying a JDB whom I do not owe. However, I think the judge has figured this out and therefore ordered mediation. This is where I stand. Mediation may or may not save me money but I am in a difficult position.

 

Thanks again,

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Good evening,
Wins the Battle. My motion filed to waive fees was denied as I make a little over 1600 a month. I did demonstrate my insolvency and it did not matter. Some judges only practice in certain areas from what I understand hence a default mode on rulings.
 
I will load my Order and response form (blacking out some material tomorrow) as to my response to mediation. I tried to cover all bases all of you have mentored others on subject matter.
 
I expect to get and asked for June 6 2014 as mediation date. Ironically it is also D Day. : )
 
I am applying cut and paste from PM so others can learn.

 Q: Western slope, Mesa county?

A: Western slope

I have not heard of mandatory mediation here in colo. Before, but it might be just like pre trials, I will research it a bit and get back to you on that.

Q: Did you admit to the debt at all in your answer?

A: Denied all

Q: You filed a counter suit? What were the charges for that?

A: Just original answer including counterclaim in answer sorry for misleading about counter suit as that is an extra charge and filing where I am Plaintiff. Did not do that.

Asset only would have had to verify if they sent you a dunning letter, and you asked for verification. If they went straight to a lawsuit, they don't have to validate the debt.

Q: Did they send you any evidence with the complaint, or since?

A: Just the original credit card statement showing account number and amount. Also a frivolous affidavit using their employee.

Q: I'll look into the mediation today and get back to you. Is this a simple civil suit, or small claims?

A: County Court simplified Civil Procedure for $8600 plus their atty fees $700 and 8% interest

Q: You are going to want to start a thread in the is there a lawyer in the house, as even though each states rules are different, many are the same. We can get feedback, case law, lots of help.

A: I can start a new thread but already responded to court yesterday that I am complying with court ordered mediation as the deadline was upon me. The knowledge that I possibly owe the original creditor (just never had enough to pay debts after losing all in 2008) makes me just want this to be over even as broke as I am now. Tomorrow is a new day though and there is hope.

I think mediation will save some money as there might be a stipulation to pay debt over time and that is a judgment on my credit record. Don't like it but. I have not read where Asset Acceptance went for mediation. It is of my opinion they do not want to attend any mediation or ADR. I could be wrong. I also think they may not get what they want in mediation. The mediation judge is fair from what I read,

Q or point: Thank you I think worry is a waste of good energy.

Try not to worry to much, court is a game, and the better you play, the more likely they will back down. The fact that it is a JDB is even better.

Q: Do not talk with the other side unless it is in writing, or in court. Any mail needs to be sent Cmrrr.

A: All mail so far to them is signed for certified USPS. I sent response yesterday that I started compliance with Court Order for Mediation by unsigned USPS because I objected to their affidavit in it and if they do not answer in five days it might be denied. I did not want Asset choosing the mediator. Or at lease my thoughts on the matter.
 
Thank you

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Well they will not send you any of your requested items. They are suing you in breach of contract, and if they can't get it that way, they threw in a count stated.

They will send you probably a week before arbitration the following items.

1. A bil, of sale from oc to asset, it will not reference your specific account.

2. A data sheet that has every thing blacked out except your name, and charged off amount.

3. As many cc statements that they have on hand probably the last few that shows the charge off.

4. That affidavit that says their employee says it's true and correct.

So plan and prepare to fight those things.

Bill of sale does not reference your account, and refers to a purchase agreement that is not part of what they gave you, it is incomplete. If it has no warranties expressed or implied written on its face, you contest it saying there is no warranties except those as provided by the purchase agreement, you need that agreement.

To fight account stated they need no show you never disputed the balance. You dispute the debt, and in addition you may have had account once with oc, but you thought that one was pAid off. By doing this you are disputing the balance owed should they prove up this is your account. They still have to prove standing.

If they motion for telephone appearance, for a witness, you object to it.

Make them prove the last payment date, claim sol as a defense.

Do you know the exact date of last payment? Not looking for the charge off date.

I have a mil around here somewhere that has some case law to back up these things your going to dispute.

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Good evening,

 

Nothing to report yet as the mediation judge states they (Plaintiff) also must agree to use him/her. Anyone dealt with any Plaintiff not agreeing to use a mediator in a court ordered situation? Additionally, Shellieh98 I read in Colorado Civil Procedure where if I as defendant object to a phone appearance and demand physical appearance (the court judge stated in his order that both sides must appear and I take that as physical) I could end up paying for their presence if I should ultimately lose. Planning a strategy at this point.

 

Thank you

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Good afternoon Shellieh98,

 

After scouring many old boxes I could not find anything with last payment date. I am assuming it was April, May or June 2008. Colorado is a 3 years SOL on contracts (breech of contract) and 6 years SOL on some other types of agreements.

 

Have heard nothing from Asset as they are supposed to be facilitating according to Court Order. Attached below is CO for Mediation and Response to my Court response that also included my objection to an alleged affidavit regarding their employees knowledge. I understand the timeline for a Motion to strike my objection and that has gone by.

 

The Court O Mediation stands. I will do my part and if Plaintiff fails then it will be their problem. To me this is not a game as I always play to win but I understand your context.

 

Thank you

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No it is not a game to us, but one we are forced to play anyway.  If you learn the rules, and don't let them get around the rules which they will always try to do because they count on the consumer not knowing the rules, then you have a good chance beating them at their own game. 

SOL on any credit card debt in CO is 6 years.  M and J sued using everything they could think of so if one count is lost, they could use another.  As long as you have objected to the affidavidt, they will need a live witness to testify to the records.  BUT I am not sure how it will work in mediation, the rules say they are not as strict with the rules. I would still play by them, and use any case law that may apply to anything in my case.

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  • 2 weeks later...

Good evening,

 

Just received a letter from Asset attorneys May 3, 2014 using my earlier reply to the court ordered mediation. Asset's attorneys want to change the mediation judge to Colorado Office of Dispute Resolution. The original court order states "The mediation may be set up with...CODP or "In the alternative, (paraphrase) set up with a private mediator agreed to by both. So since the court order on April 11, 2014 Asset (attorneys) were ordered to facilitate and they did not call or send a letter until today. I contacted a mediation judge to get an idea of what I would be required to do. I did not set up any date just proposed one to Asset's attorneys.

 

I would like your response Shellieh98 or anyone else to this change and challenge by Asset. Asset's attorneys even included a ready to sign order for the judge. I will respond Monday to this. See attached.

 

Thank you

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Some citibank cards have an arbitration clause. Find your card here https:://www.citicards.com/cards/acq/cma.do?screenId=13461&locale=en_US and see if there is a clause for JAMS. I would take my chances on ams rather than CODR. Plus the fees would cost them about 5 k, many won't go there and will fight you on it. If it has a clause, object to that and ask for jams

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Hi Shellieh98,

I found the original credit card agreement (thank you for the link):

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT

CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE

RESOLVED BY BINDING ARBITRATION.

ARBITRATION REPLACES THE RIGHT TO GO TO COURT,

INCLUDING

THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE

IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION,

A DISPUTE IS RESOLVED BY AN ARBITRATOR

INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES

ARE SIMPLER AND MORE LIMITED THAN COURT

PROCEDURES.

Agreement to Arbitrate: Either you or we may, without the

other’s consent, elect mandatory, binding arbitration for any

claim, dispute, or controversy between you and us (called

“Claims”).

Claims Covered

What Claims are subject to arbitration? All Claims relating

to your account, a prior related account, or our relationship

are subject to arbitration, including Claims regarding the

application, enforceability, or interpretation of this Agreement

and this arbitration provision. All Claims are subject to arbitration,

no matter what legal theory they are based on or what

remedy (damages, or injunctive or declaratory relief) they

seek. This includes Claims based on contract, tort (including

intentional tort), fraud, agency, your or our negligence,

statutory or regulatory provisions, or any other sources of

law; Claims made as counterclaims, cross-claims, thirdparty

claims, interpleaders or otherwise; and Claims made

independently or with other claims. A party who initiates

a proceeding in court may elect arbitration with respect to

any Claim advanced in that proceeding by any other party.

Claims and remedies sought as part of a class action, private

attorney general or other representative action are subject to

arbitration on an individual (non-class, non-representative)

basis, and the arbitrator may award relief only on an individual

(non-class, non-representative) basis.

Whose Claims are subject to arbitration? Not only ours and

yours, but also Claims made by or against anyone connected

with us or you or claiming through us or you, such as a

co-applicant or authorized user of your account, an employee,

agent, representative, affiliated company, predecessor or

successor, heir, assignee, or trustee in bankruptcy.

What time frame applies to Claims subject to arbitration?

Claims arising in the past, present, or future, including Claims

arising before the opening of your account, are subject to

arbitration.

Broadest interpretation. Any questions about whether Claims

are subject to arbitration shall be resolved by interpreting this

arbitration provision in the broadest way the law will allow it

to be enforced. This arbitration provision is governed by the

Federal Arbitration Act (the “FAA”).

What about Claims filed in Small Claims Court? Claims filed

in a small claims court are not subject to arbitration, so long

as the matter remains in such court and advances only an

individual (non-class, non-representative) Claim.

What about debt collections? We and anyone to whom we

assign your debt will not initiate an arbitration proceeding to

collect a debt from you unless you assert a Claim against us

or our assignee.

We and any assignee may seek arbitration

on an individual basis of any Claim asserted by you, whether

in arbitration or any proceeding, including in a proceeding to

collect a debt. You may seek arbitration on an individual basis

of any Claim asserted against you, including in a proceeding

to collect a debt.

How Arbitration Works

How does a party initiate arbitration? The party filing an

arbitration must choose one of the following two arbitration

firms and follow its rules and procedures for initiating and

pursuing an arbitration: American Arbitration Association or

JAMS. Any arbitration hearing that you attend will be held

at a place chosen by the arbitration firm in the same city as

the U.S. District Court closest to your then current billing

address, or at some other place to which you and we agree in

writing. You may obtain copies of the current rules of each of

the arbitration firms and forms and instructions for initiating

an arbitration by contacting them as follows:

American Arbitration Association

800-778-7879 (toll-free)

Website: www.adr.org

JAMS

800-352-5267 (toll-free)

Website: www.jamsadr.com

At any time you or we may ask an appropriate court to

compel arbitration of Claims, or to stay the litigation of Claims

pending arbitration, even if such Claims are part of a lawsuit,

unless a trial has begun or a final judgment has been entered.

Even if a party fails to exercise these rights at any particular

time, or in connection with any particular Claims, that party

can still require arbitration at a later time or in connection

with any other Claims.

What procedures and law are applicable in arbitration?

A single, neutral arbitrator will resolve Claims. The arbitrator

will be either a lawyer with at least ten years experience or a

retired or former judge, selected in accordance with the rules

of the arbitration firm. The arbitration will follow procedures

and rules of the arbitration firm in effect on the date the

arbitration is filed unless those procedures and rules are

inconsistent with this Agreement, in which case this Agreement

will prevail. Those procedures and rules may limit the

discovery available to you or us. The arbitrator will take

reasonable steps to protect customer account information

and other confidential information if requested to do so by

you or us. The arbitrator will apply applicable substantive law

consistent with the FAA and applicable statutes of limitations,

will honor claims of privilege recognized at law, and will have

the power to award to a party any damages or other relief

provided for under applicable law. You or we may choose to

have a hearing and be represented by counsel. The arbitrator

will make any award in writing and, if requested by you or us,

will provide a brief statement of the reasons for the award. An

award in arbitration shall determine the rights and obligations

between the named parties only, and only in respect of the

Claims in arbitration, and shall not have any bearing on the

rights and obligations of any other person, or on the

resolution of any other dispute.

Who pays? Whoever files the arbitration pays the initial filing

fee. If we file, we pay; if you file, you pay, unless you get a

fee waiver under the applicable rules of the arbitration firm.

If you have paid the initial filing fee and you prevail, we will

reimburse you for that fee. If there is a hearing, we will pay

any fees of the arbitrator and arbitration firm for the first day

of that hearing. All other fees will be allocated as provided by

the rules of the arbitration firm and applicable law. However,

we will advance or reimburse your fees if the arbitration firm

or arbitrator determines there is good reason for requiring

us to do so, or if you ask us and we determine there is good

reason for doing so. Each party will bear the expense of that

party’s attorneys, experts, and witnesses, and other expenses,

regardless of which party prevails, but a party may recover

any or all expenses from another party if the arbitrator,

applying applicable law, so determines.

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You know what?  It looks good to me, but I am NOT experienced in Arbritration, I just know they HATE JAMS, and if a jdb is forced to go to JAMS, they usually dismiss.  I would ask @Linda7 for her input, I am not sure about giving the choice for the judge you wanted or jams, I think if their hand is forced to choose, they would choose the judge.  That is why it may be important to drop using the judge, and motion for a stay to pursue JAMS.  You might be able to call JAMS, because if you can initiate JAMS and then ask, they may be forced to do so.Linda may know, or someone more experienced in the ARB forum. 

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