Jump to content

JDB Lawsuit in NH - Mediation Started and Extended


Recommended Posts

WHEN did they file the lawsuit?  NOT the day you were served but the day they filed the case with the court.   It is entirely possible they waited too long to file and you have a FDCPA violation that could lead to a dismissal.  If the suit is time barred you have a gold plated defense.

Link to comment
Share on other sites

WHEN did they file the lawsuit?  NOT the day you were served but the day they filed the case with the court.   It is entirely possible they waited too long to file and you have a FDCPA violation that could lead to a dismissal.  If the suit is time barred you have a gold plated defense.

 

The Writ of Summons has a date of ****/14 that looks like it was typed in by the law firm.  There's a "Received" stamp, presumably from the court, that's dated *****/14.  Finally, there's the date of *****/14 from the sheriff/officer who served the summons that day.  Does this help shed any more light?  I'm not familiar with the time-barred aspect you mentioned.  Thanks for the reply

Link to comment
Share on other sites

The Writ of Summons has a date of 8/15/14 that looks like it was typed in by the law firm.  There's a "Received" stamp, presumably from the court, that's dated 8/19/14.  Finally, there's the date of 8/22/14 from the sheriff/officer who served the summons that day.  Does this help shed any more light?  I'm not familiar with the time-barred aspect you mentioned.  Thanks for the reply

 

Unfortunately they filed before the SOL expired.  RIGHT before it expired.  That defense is likely not available to you.  

 

For the amount they are suing for I would be hiring a lawyer to defend it or speaking to a bankruptcy attorney ASAP.

Link to comment
Share on other sites

Thank you for the replies. Certainly not encouraging, but not necessarily unexpected either.

As a DIY'er with limited funds, I'm inclined to attempt to represent myself even though it's perilous.

Do I have the right to request and/or be told the amount that Cav-alry paid for this specific debt?

I understand these companies often pay pennies on the dollar for these accounts. I also presume that they will "turn the hounds loose" based on the potential margin they have built into this. If they're purchasing an $18k debt for $1,800 then there's an awful lot of room in there for time, travel, etc. However, is it unwise to argue that Cav-alry would essentially be unjustly enriched by collecting near the full dollar amount rather than a reasonable figure related to the actual cost they paid plus fees? I know it's a stretch but I'm trying to make the leap of: why is it seemingly ok for Cav-alry to benefit dramatically from this whereas the consumer is damned regardless?

I'm obviously still interested in hearing from anyone who may believe there is some sort of defense that can be attempted but in lieu of that, I would also like to hear thoughts with respect to the settlement process and whether or not it's worth trying that prior to trial or ultimately having the court decide.

Thank you

Link to comment
Share on other sites

I would not acknowledge the debt, you never made a deal with Calvary . That being said, what are the options in arb? Settle or go to trial? May as well skip the arb then.

Start reading your NH rules of evidence. Fight this based on standing. Get a document request together and ask for the bill of sale. (Is that what they sent you?). Read it carefully. Does it mention that it is part of a bigger agreement? Ask for it. Did they give you an affidavit saying this is your account and it is correct? Post it, then we can help you pick it apart. You will need to learn how to fight them trying to authinticate the records. It's a word game, and they usually don't get it right. You will refute it so far they will need a live witness from the OC to authinticate. .

So if your in arb, I would do a document request, if it's not allowed, then skip arb all together.

  • Like 1
Link to comment
Share on other sites

Thanks Shellie. I'm currently reading through some CFPB materials and also reviewed the Bill of Sale which DOES refer to another agreement which I will request.
No affidavit was provided or asked to be signed by me to acknowledge the debt. The mediator asked if I was comfortable acknowledging the debt to which I did not answer. I redirected back to disputing the case in total,based on Cav-alry's standing or lack thereof. That led to the 90 day extension for me to review the info they provided (bill of sale, statements and single line from Excel spreadsheet with the account info).

I will review the rules of evidence to see what options I have. I do believe that I will be able to request additional docs but will obviously confirm this.

Cheers

  • Like 1
Link to comment
Share on other sites

In reviewing the CFPB's examination procedures of debt collectors (DC) and a section on time-barred debt it got me thinking about something:

Is there any basis to stating that Cav-alry never contacted/notified me and provided an initial communication informing me of their attempt to collect on a debt?
The CFPB is clear that a DC is required to provide that info and allow the consumer 30 days to respond. If this is the case and I received the summons as the initial communication, does that not give me any defense to say that I was not given 30 days to respond? (Which would ultimately put the debt beyond the SOL and therefore be time-barred) Wishful thinking on my part?

Link to comment
Share on other sites

If they contacted you, they needed to give you the 30 days. But they didn't, they went straight to the suit. Some states gave rules that they need to contact you first, most do not. I don't know if NH is one of them. Are you positive of your last payment date? Don't go by what they say pull your bank records to find out for sure.

  • Like 1
Link to comment
Share on other sites

@Simpleton

 

Well, all right, maybe we can put a muzzle on those hounds!  

 

1. If you live in Sullivan or Belknap county , the Univ of NH Law School runs a consumer law clinic and will represent debtors in collection cases if they are below a certain income. Call for more info:

 

http://law.unh.edu/academics/clinics/clinic-services

 

2.  The New Hampshire Bar Assoc runs a pro bono program and will accept debt collection cases.  There is a number to call.

 

 

http://www.nhbar.org/for-the-public/free-legal-services.asp

  • Like 1
Link to comment
Share on other sites

  • 3 weeks later...

Hi Folks!

Hope everyone has had a good start to 2015. Thank you for the replies and sorry for the absence over the Holidays.

@debtzapper - I'm not in Sullivan or Belknap county but I'll check out the NH Bar's info you provided. I just get the feeling everyone is going to push for settlement but I'm not there at this time...

@Shellie - I've been doing some more research specific to debt collection in NH and found a few things that I thought may be helpful. I would certainly like to have someone confirm or deny that it helps me at all. Here are some points of interest:

Everything was found here: http://doj.nh.gov/consumer/sourcebook/credit-debt-collection.htm

This link says the "Law" is:

"Debt collection practices are governed by two laws: New Hampshire's Unfair, Deceptive or Unreasonable Collection Practices Act (RSA 358-C) (State Act) and the federal Fair Debt Collection Practices Act (15 U.S.C. § 1692-1695) (FDCPA). In addition, the Federal Trade Commission (FTC) has guidelines for the collection industry describing specific acts and practices the FTC considers to be in violation of the FDCPA."

To me, that says that FDCPA rules apply which I think is a good thing. For example, doesn't this preclude that the JDB must send notice giving me 30 days to respond?

To confirm the first quote further, the link also says this:

"The State Act and the FDCPA provide nearly parallel protections for consumers. Debt collectors who are operating in New Hampshire must comply with the requirements of both the State Act and FDCPA. The redresses offered to consumer debtors who find themselves harassed by unscrupulous debt collects are somewhat different."

Most importantly, there was this piece from the link:

"What Debt Collectors Must Do

The debt collector must disclose in any written or telephone communication to the consumer:

Its identity and business address

The name of the person making the telephone call

The identity of the person or company for whom the debt collector is attempting to collect the debt.

In addition, under FDCPA, debt collectors must follow up an initial phone contact with a written communication within 5 days containing the following information:

The amount of the debt

The identity of the person or company for whom the debt collector is attempting to collect the claimed debt

****A statement that the consumer may make a written request within 30 days that the debt collector identify the original creditor, if different from the current creditor (this provision is intended to identify the original source of the debt if it has been sold or assigned to a collection agency)****

***A statement that the consumer may notify the debt collector in writing within 30 days that he or she is disputing the debt, and that the debt collector must furnish the consumer with documents verifying the disputed debt or a copy of any judgment against the consumer***

***A statement that if the consumer does not notify the debt collector within 30 days that she or he disputes any or all the claimed debt, the debt collector will assume that the debt is valid.***"

The asterisk's were put in by me. The JDB did put in the summons that FIA Card Services was the original creditor however, does that exempt them from the three items notated above?

If not, how can or should I leverage that to my benefit?

At first blush I'm reading it as they violated FDCPA rules but I'm not sure if the Judge would care. I say this for two reasons (again, info taken from that link).

The first is this piece that speaks to a Debtors rights (again reiterating the quotes above):

"Consumer-debtors are given several legal rights upon being contacted by a debt collector.

The debtor has the right to dispute the existence or validity of the amount of the debt. The debtor must be informed of this right by the debt collector. The debtor who wishes to dispute all or any portion of the alleged debt must notify the debt collector that all or part of a claimed debt is disputed. The notice about the disputed debt must be:

In writing

Postmarked or delivered in-hand within 30 days of receiving the follow-up notice from the debt collector

A disputed debt could be:

A debt that you believe that you do not owe, or that you believe that you do not owe the amount stated

A debt that you have already paid

A debt related to being hospitalized. If you informed the hospital that you could not pay for the care, the hospital should have considered payment under a charitable care policy

A debt the collection of which you believe is barred because too much time has passed

A debt that was previously discharged in bankruptcy."

And this is the big one regarding JDB's violating state law or FDCPA:

"What a Debtor Can Do if a Debt Collector Violates the Law

Both the State Act and FDCPA permit consumers to sue debt collectors who engage in improper collection practices. Both Acts provide for injunctive relief in the form of court orders forbidding a debt collector to continue any improper practice. In addition, each Act provides actual and statutory damages for individual consumers, as well as costs and attorney's fees. The State Act permits for the greater of actual damages or $200, while the FDCPA provides for actual damages plus statutory damages of up to $1,000.

Under the State Act, the debtor may raise a counterclaim in any suit brought by a creditor or debt collector, relative to the debt collector or creditor violating the State Act. ***Upon proof of a violation by the debt collector or creditor, the court will award damages to the debtor-consumer, and will reduce the debt owed by the amount of the damages.***

Consumers may seek remedies through a court action in either superior or small claims court for violation of the State Act, or in federal court for violation of the FDCPA. The statute of limitations (the time during which an action may be brought in court) under these statutes is different: no more than 3 years after the violation in state court and 1 year in federal court."

Please note the sentence I put between the asterisks above.

I interpret that to mean that, sure, a JDB can break the law and a debtor can countersue, but in the end all it does is reduce the total debt owed by the amounts given.

Sounds like a damned if you do, damned if you don't situation.

Am I interpreting this correctly?

Thank you all for continued info, opinions, etc.

Link to comment
Share on other sites

@Simpleton - A big mistake that people make in these cases is to go into the process thinking the debt buyer is somehow a criminal enterprise and that you are a victim.

 

From everything you have posted it sounds like Cavalry paid for the "deluxe package" in terms of evidence, and you know the debt is yours. Unfortunately saying "I read that some guy on the internet won a case once," is not a defense. Is sounds like the mediator has seen this movie enough to be giving you a strong hint.

 

There was someone here earlier last year - I want to say it was in NH - who went to court to fight. She saw everyone else go into the hall and make settlement agreements. She fought and lost at trial. The plaintiff then told her pay up, in full, or they will start garnishing, etc. She broke into tears and asked about the deals everyone else got. Plaintiff's lawyer said "you should have thought about that when you had the chance."

 

The advice about getting a lawyer is sound, but if you can't afford it you can't afford it. You owe it to yourself to see what type of offer the plaintiff is willing to make.

Link to comment
Share on other sites

@Goody - Thank you for the reply. I appreciate it.
No denying I'm bitter about the whole thing. It's simply based on the fact that the big banks are/were able to make horrendous financial decisions and then be given a vehicle and opportunity to get back on their feet (essentially seamlessly and without repercussions) whereas Joe Sixpack isn't afforded the same opportunity. I know it's not fair and that it's not supposed to be and things are what they are, but I'm still jaded.

Re: the settlement process - Is there any opportunity to learn just how much was paid for the debt and if so, can that be leveraged in the settlement?

Link to comment
Share on other sites

@Simpleton - I know how you feel. I'm facing the same mess from when everything fell apart. I have been lucky enough to win everything, so far, with a good lawyer, but when we got sued on a case like yours his one word was "settle." We are still engaged in that process.

 

Another big mistake is worrying about what they paid. If you found you had bought a million dollar painting for a dollar at a garage sale would you sell it for two bucks to "double your money?" All that matters to Cavalry is that you owe them 18K, plus whatever it costs them to get a judgement. It used to be common for them to take half in a lump sum, without arguing. Now they seem much more interested in getting you on a payment plan. I assume that is because it's like the mortgage market - they then buy and sell accounts that are secured with stipulated judgments.

 

Your next move should definitely be to http://www.consumeradvocates.org/ to find some lawyers for free consultations.

Link to comment
Share on other sites

Based on the statement here, I would guess that they paid about $1500 - $3000 for the debt if they got the deluxe package with all the evidence needed at trial. If you can put together $9k, then start a settlement discussion at $6k and see what they say. I would talk to an attorney though and see what options you really have.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.