essexjet Posted May 12, 2014 Report Share Posted May 12, 2014 First off hello, this is my very first post here. I was served on April 23rd from Jefferson Capital Systems, LLC, original creditor was Tribute Bank I will be filling my answer tomorrow - May 12 I listed many defenses but one being that this was time barred by statue of limitations. I do not know when my first missed payment but Tribute closed the account in Sept 2009. California is 4 years. The complaint is for: 1. Breach of Contract2. Account Stated So my question is, can I send them a BOP? Since one of the complaints is for Account Stated would this work? This is my case: 1. Who is the named plaintiff in the suit? - JEFFERSON CAPITAL SYSTEMS, LLC2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) -JOHNSON MARK, LLC Sandy, UT3. How much are you being sued for? - $574 (yup that right)4. Who is the original creditor? (if not the Plaintiff) - Tribute Bank5. How do you know you are being sued? (You were served, right?) - Summon served6. How were you served? (Mail, In person, Notice on door) - In person to an adult in my home7. Was the service legal as required by your state? - Yes8. What was your correspondence (if any) with the people suing you before you think you were being sued? - None9. What state and county do you live in? - California, Riverside10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) - Prior to 09/200911. What is the SOL on the debt? - 4 years in California12. 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) - Complaint filed: 04/04/14; Summons & Complaint served: 04/23/14 - General denial (PlD-C-010 form) Answer filed: 05/12/14 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) - Yes, it has been deleted from all Credit Reports14. 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.) - No15. 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. - Answer needs to be filed prior to 5/23/201416. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment. - Breach of Contract, Account Stated 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury. - No. The complaint is not verified.18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit? -Not that far19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.There is no evidence with the summons or complaint. Thank you very much for your assistance. Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted May 12, 2014 Report Share Posted May 12, 2014 You can send the BOP. You may also be able to find consumer lawyer who will take this case without charge due to the SOL. Quote Link to comment Share on other sites More sharing options...
essexjet Posted May 12, 2014 Author Report Share Posted May 12, 2014 You can send the BOP. You may also be able to find consumer lawyer who will take this case without charge due to the SOL.Oh, I did not know that. I will make some calls. Thank you Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted May 12, 2014 Report Share Posted May 12, 2014 Did they send you a dunning letter before they sued you? They don't have to, but if they did; we have new laws here that require the letter to include specific language under the Leno law. Quote Link to comment Share on other sites More sharing options...
essexjet Posted May 13, 2014 Author Report Share Posted May 13, 2014 Did they send you a dunning letter before they sued you? They don't have to, but if they did; we have new laws here that require the letter to include specific language under the Leno law.yes they did Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted May 13, 2014 Report Share Posted May 13, 2014 SB 233 was recently passed enacting the Fair Debt Buying Practice Act (Leno Law) which mandates that if a debt is passed the SOL that the following language must be included in the dunning letter "the law limits the amount of time on which you can be sued on a debt. This debt is time barred and we will not sue you for it". If it doesn't say something like that then you have an FDBPA violation as well as an FDCPA violation, both pay damages including attorney fees. Quote Link to comment Share on other sites More sharing options...
BV80 Posted May 13, 2014 Report Share Posted May 13, 2014 @essexjet 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) - Prior to 09/2009 In their complaint, did PRA state what they claim was the date of last payment? Quote Link to comment Share on other sites More sharing options...
essexjet Posted May 14, 2014 Author Report Share Posted May 14, 2014 @essexjet In their complaint, did PRA state what they claim was the date of last payment?No they did not. Quote Link to comment Share on other sites More sharing options...
essexjet Posted May 14, 2014 Author Report Share Posted May 14, 2014 Well I guess my case was just thrown out because Jefferson Capital Systems did not pay the correct filling fees. Minutes Ordered The documents are corrected Nunc Pro Tunc to reflect that the filing of the Complaint, Summons, Certificate of Counsel, and Declaration Re: Reduction in Filing Fee, by Jefferson Capital Systems, LLC, filed on 04/04/14, is hereby voided for non-payment of filing fees pursuant to the California Civil Code of Procedure, Section 411.21. Add: VOIDED STAMP Nunc Pro Tunc Hearing concluded. Clerk's Certificate of Mailing re: VOID DOCUMENTS Notice sent to JOHNSON MARK LLP on 5/13/14 Under status is say: Complaint Status: Complete 05/13/2014Screen Shot: Quote Link to comment Share on other sites More sharing options...
essexjet Posted May 14, 2014 Author Report Share Posted May 14, 2014 So with this, do I still have reason to file a suit with them? Or just leave it alone? Quote Link to comment Share on other sites More sharing options...
BV80 Posted May 14, 2014 Report Share Posted May 14, 2014 @essexjet First, I would check my own bank records to make sure that the last payment was prior to 9/2009. If it was, then contact an attorney. The FDCPA is a strict liability statute. In other words, once a debt collector violates, he can't take it back. I would think you still have a claim, but ask an attorney. Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted May 14, 2014 Report Share Posted May 14, 2014 I don't think it was dismissed. I would keep close eye on it. "nunc pro tunc" (in short) means that for now the action is allowed to continue, even though it may technically be past the point of correction. I think you still have an ongoing case and a reason to file suit. If it does get dismissed this early in litigation I don't believe you have a suit against them, but I would want to hear this (in a free consultation) from an FDCPA or consumer lawyer, before I abandoned that idea. 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted May 14, 2014 Report Share Posted May 14, 2014 It's definitely necessary to speak to an attorney and get his opinion. Just an FYI though: Dismissing the action would not undo the violation. That's what's meant by strict liability. The FDCPA is a strict liability statute that "makes debt collectors liable for violations that are not knowing or intentional." Reichert v. Nat'l Credit Sys., Inc., 531 F3d 1002, 1005 (9th Cir 2008), citing Clark v. Capital Credit & Collection Servs., Inc., 460 F3d 1162, 1176 n11 (9th Cir 2006). A debt collector would have to prove a bona fide error.However, the bona fide error defense provides a "narrow exception to strict liability." Clark, 460 F3d at 1177. 1 Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted May 14, 2014 Report Share Posted May 14, 2014 I can get on board with that. So, regardless of dismissed or not; you have a valid claim against them. Call some consumer or FDCPA lawyers. You may be able to get a lawyer to defend your case and sue them (getting $1k for you) as I don't believe your current case has been dismissed. Quote Link to comment Share on other sites More sharing options...
essexjet Posted May 15, 2014 Author Report Share Posted May 15, 2014 I have an attorney reviewing it now, I'll keep you posted Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted May 15, 2014 Report Share Posted May 15, 2014 Good job. Looking forward to hearing the result. Quote Link to comment Share on other sites More sharing options...
essexjet Posted July 25, 2014 Author Report Share Posted July 25, 2014 Guess who is back?? Looks like they filled on the 7th of July but I have yet to be served. So in the mean time do I prepare a general denial or fill out an answer with affirmative defense that this debt is timed barred? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted July 25, 2014 Report Share Posted July 25, 2014 If you have the affirmative defense that the SOL is expired USE IT. I would be filing a counter claim for the FCDPA violation x 2 for filing twice past the SOL and making them pay me. Quote Link to comment Share on other sites More sharing options...
Anon Amos Posted July 25, 2014 Report Share Posted July 25, 2014 You can assert the affirmative defense with the general denial, but first you need to be served a complaint. If the complaint is verified then you have to use the answer form.I take it the lawyer wasn't interested in your case? Quote Link to comment Share on other sites More sharing options...
essexjet Posted July 25, 2014 Author Report Share Posted July 25, 2014 If you have the affirmative defense that the SOL is expired USE IT. I would be filing a counter claim for the FCDPA violation x 2 for filing twice past the SOL and making them pay me. You can assert the affirmative defense with the general denial, but first you need to be served a complaint. If the complaint is verified then you have to use the answer form.I take it the lawyer wasn't interested in your case?Ok, so I will wait to be served and then file my answer. I spoke to an attorney and he said that it would cost close to $4000 in his fees to win $1000, so I didn't pursue it as the claim was dropped by the courts. So now, I want to file a counter claim on their harassment of these time barred suits. Do a little research last night, I came across this and wanted your input: http://www.ellislawgrp.com/article05time.html I live in CA and according to this article, says that suing time barred accounts is not a violation of FDCPA. Whats your thoughts? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted July 25, 2014 Report Share Posted July 25, 2014 Do a little research last night, I came across this and wanted your input: http://www.ellislawgrp.com/article05time.html I live in CA and according to this article, says that suing time barred accounts is not a violation of FDCPA. Whats your thoughts? I think the last line of his article says it all: "Recognize also that my personal legal opinion on this issue is likely to be controversial." I think it is his personal opinion which carries the weight of wet toilet paper and he is an idiot. He states it does not violate CA STATE law. The FCDPA is a FEDERAL law. If you file in Federal Court I think you would prevail. I would not be afraid of the attorney fees because under the FCDPA when they commit a violation the JDB is liable for your attorney fees in pursuing the case. Quote Link to comment Share on other sites More sharing options...
essexjet Posted July 31, 2014 Author Report Share Posted July 31, 2014 OK so I was served today. Do you recommend that I file my answer and then file a counter claim in federal court? Also, does anyone have any recommendations on a good lawyer for the FDCPA violations? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted July 31, 2014 Report Share Posted July 31, 2014 File the answer. If you file in Federal Court it is not a counter claim it is its own case. If you file in the same court in response to their claim it is a counter claim. Federal Court carries more weight and gives you more leverage. You can find a good consumer attorney at www.naca.net Quote Link to comment Share on other sites More sharing options...
essexjet Posted July 31, 2014 Author Report Share Posted July 31, 2014 File the answer. If you file in Federal Court it is not a counter claim it is its own case. If you file in the same court in response to their claim it is a counter claim. Federal Court carries more weight and gives you more leverage. You can find a good consumer attorney at www.naca.netThank you Clydesmom 1 Quote Link to comment Share on other sites More sharing options...
string Posted August 1, 2014 Report Share Posted August 1, 2014 Be sure to file your cross-complaint at the same time that you file your answer (or general denial). 1 Quote Link to comment Share on other sites More sharing options...
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