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1TNgirl
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Hello Everyone,

I need help, please! I received an affidavit in General Sessions Court in my county listing Bank of America as the Plaintiff and names  an attorney with Javitch Block LLC, located in Cleveland, OH. This was sent through regular mail, not certified and not in person. It just says Notice of Filing on the page. There is also a Certificate of Service signed by their attorney  that says an exact copy was sent to me by US mail. At the bottom it says, This is a communication from a debt collector. 

The actual affidavit says an officer of the bank (Bank of America) made this affidavit,

It says, Defendant's current account number is ........    As of execution of this affidavit, Defendant is indebted to BANA on the account for $12,890.38, which includes pre-charge-off interest allowed under the agreement. The account charged off on 1/31/2015. The last payment of $500.00 was posted to the account on or about 9/24/2014. The account is not accruing post charge-off interest and all payments and credits have been applied. 

Attached to the affidavit  is a copy of a Bank Statement from BofA dated Dec. 10 - Jan 9, 2015.

The statement or exhibit "A" does not show the $500 payment, and I don't remember making that payment. 

It also states In accordance with federal regulations, monthly periodic statements reflecting the amount due on the account have been provided to the defendant. Attached hereto is the Exhibit "A" is a true and correct copy of the last periodic statement provided to defendant prior to charge-off. Based on BANA's records, there are no unresolved billing disputes regarding the account.

I am in TN and the SOL is 6 years. 

It also says, Pursuant to its standard practice BANA changed the account number at the time of charge-off. Immediately prior to charge-off, defendant's account number was ................

Then it is signed by the officer of the bank  and by a notary in the state of NC.

 

My questions are:

Is this a summons? There isn't a court date anywhere on the document. 

If the account has been charged off, how can a third party attorney collect the debt for Bank of America?

Can I fight this, if so, how and what do I do?

Thank you all in advance for your advice and help!

 

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Sorry, not familiar with Tennessee and this sounds like an original creditor which is a harder battle than a JDB. I'd do a search of Tennessee threads under @TNConsumerLawyer which will also give you contact info for a consult and read this paper. One thing that caught my eye was you mentioned an Ohio attorney sent this to you so you could research the licensing although I'm sure they have offices in TN, (see Unlicensed Practice of Law) http://www.nationallist.com/image/cache/Tennessee_White_paper.pdf

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Thank You for that!

I just read this...   "  Unlicensed Practice of Law An attorney can only collect in Tennessee if he/she is licensed to practice in Tennessee. An attorney from another state can, on an individual case-by-case basis, be admitted before the court to practice in this state for that individual case. However, an attorney cannot actively practice law or collections in this state without a Tennessee law license. Additionally, there are penalties for an attorney practicing in Tennessee if he/she is not licensed to do so in accordance with the Tennessee Supreme Court Rule 7, the Licensing of Attorneys. Specifically, the penalties for the unauthorized practice of law per the Rules of Professional Responsibility are that the person could be found guilty of a crime, could be responsible for damages suffered by his/her “client” or, if the person is an attorney, could be disciplined by the Board of Professional Responsibility. Rules of Prof. Resp. Rule 8 TSCR, Section 5.5."

Does that mean I can get the case dismissed?

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@1TNgirl

@CCRP626

Rule 19 of the TN Supreme Court Rules:

A lawyer not licensed to practice law in Tennessee, licensed in another United States jurisdiction, and who resides outside Tennessee shall be permitted to appear pro hac vice, file pleadings, motions, briefs, and other papers and to fully participate in a particular proceeding before a trial or appellate court of Tennessee, or in a contested case proceeding before a state department, commission, board, or agency (hereinafter “agency”), if the lawyer complies with the following conditions:

(a) A lawyer not licensed to practice law in Tennessee and who resides outside Tennessee is eligible for admission pro hac vice in a particular proceeding pending before a court or agency of the State of Tennessee:

(1) if the lawyer is licensed, in good standing, and admitted to practice before the court of last resort in another state or territory of the United States or the District of Columbia in which the lawyer maintains a residence or an office for the practice of law;

(2) if the lawyer is in good standing in all other jurisdictions in which the lawyer is licensed to practice law; and

(3) if the lawyer has been retained by a client to appear in the proceeding pending before that court or agency.

Also, TN law exempts attorneys from the requirement to be licensed as debt collectors.

 

 

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2 hours ago, 1TNgirl said:

Does that mean I can get the case dismissed?

No.  It is not uncommon for a contracted law firm in one state to file the case on behalf of their client and then if it goes to trial turf the actual case to a local law firm.  ANYONE can file in the courts whether they are licensed as a lawyer in the state or not.

You can reach @TNConsumerLawyer here:  Barnette Law  I would highly recommend doing a free consult with him.  While a lawsuit from an original creditor is VERY hard to beat it is not impossible and he can review your facts and give you some advice on the best course of action.

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Thank you, @BV80 & @Clydesmom for the information!  How can I know for sure if they have been retained by BANA or if they are an attorney acting as a debt collector since the account has been charged off? 

I thought a charge-off meant the bank pretty much wrote off the debt. But the debt can still be purchased by a debt collector who can then try to collect on the debt. 

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46 minutes ago, 1TNgirl said:

How can I know for sure if they have been retained by BANA or if they are an attorney acting as a debt collector since the account has been charged off? 

They are debt collection attorneys which makes them debt collectors, but they're still attorneys who can represent plaintiffs.

An original creditor can still retain possession of an account that it charges off and attempt to collect the balance.   Check your credit report.   If BANA still owns the account, it will show that it's charge off, but it will NOT show that it has been sold or transferred.

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10 hours ago, 1TNgirl said:

How can I know for sure if they have been retained by BANA or if they are an attorney acting as a debt collector since the account has been charged off?

They sued you that is how you are sure.

10 hours ago, 1TNgirl said:

I thought a charge-off meant the bank pretty much wrote off the debt. But the debt can still be purchased by a debt collector who can then try to collect on the debt. 

Charged off is only an accounting term meaning your account is no longer an asset but is a bad debt (liability) it does not mean they cannot collect on it or sell the debt.  

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@1TNgirl before you give the Plaintiff a call, read this thread. 

You mention $500 payments are not shown and you don't want to contact an attorney for a consultation? Trial is not the first thing that happens after you answer and you haven't even been served to do that. If you answer and make an appearance you can settle at that time as well if your consult shows that's the best course of action but at this point do some other steps before calling the Plaintiff to send a check. Time is on your side now to set up an appointment with an attorney looking out for you whereas the clock will be ticking to answer and find one after you've been served.

You should also figure out the total amount of accounts out there within statute of limitations you can still be sued on, if they're original creditor or JDB and how much you can offer as a lump sum or in installments.

In addition to Barnette to call above you can also find consumer attorneys at http://www.consumeradvocates.org/find-an-attorney

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Thank You, @CCRP626!  That was very helpful information. This is the only account I have that is delinquent. I looked on my credit report and it shows this account is still owned by BANA, unless they haven't changed or reported it yet. Should I call BANA and confirm?

They said the last payment I made was 9/2014 of $500. There wasn't an attachment with this payment on it. I don't remember making the payment. I don't know if that would be significant or not, though. 

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23 minutes ago, 1TNgirl said:

Thank You, @CCRP626!  That was very helpful information. This is the only account I have that is delinquent. I looked on my credit report and it shows this account is still owned by BANA, unless they haven't changed or reported it yet. Should I call BANA and confirm?

They said the last payment I made was 9/2014 of $500. There wasn't an attachment with this payment on it. I don't remember making the payment. I don't know if that would be significant or not, though. 

Check your bank records for September and October of 2014.   I don't remember every payment I made 6 months ago much less 2 years ago.

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At this stage, I'm not seeing the significance of the $500 payment, unless you believe the last payment before the alleged $500 was some time before Sept 2010 to put this past SOL.

If it's just a matter of them making claims you believe to be false, that will get sorted out over the course of the lawsuit.  Even if it turns out they can't prove the $500 payment, at best this amount would be deducted from the nearly $13,000 they claim.

Because BoA is an original creditor the FDCPA does not apply directly to them.  While you may have a claim against the lawyers representing BoA, the max you can collect in FDCPA statutory damages is $1,000.  Not enough to offset the $13k and has no leverage effect on BoA because you would be suing the lawyer and not BoA.

Being that it is an original creditor suing, and also because this is a relatively large debt, your odds of winning a lawsuit against them are slim.  Basically they would have to have lost all of your account records on an account on which they claim a payment was made within the last 2 years.

I wouldn't make a move to contact them until you have actually been served, but you should be thinking about your strategy in the mean time.  To avoid a court battle, your options would basically be settlement or bankruptcy.  If you end up in court, the strategy will depend on what evidence they eventually produce, but you need to be prepared for the possibility of having a judgment against you.

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Thank you, @Harry Seaward. I did some research & I did make the $500 payment, it was through another bank account. Does it make a difference if the SOL had already passed before the payment was made? 

Should I contact BofA & ask if they still own the debt, or if it has been sold?

Also, I know you said not to contact them, but if they know that I know what I'm talking about, will they possibly back off?  I was thinking of sending them these requests:

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document  produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

 

It would seem to me, if they are not representing BofA, and they purchased the debt, they would not be able to produce these documents. 

 

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32 minutes ago, 1TNgirl said:

I did some research & I did make the $500 payment, it was through another bank account. Does it make a difference if the SOL had already passed before the payment was made? 

Yes, but not in a good way.  When you made that $500 payment you reset the SOL all over again and gave them a whole new 6 years to sue you.  You would have been better off not making that payment because once the SOL had lapsed then you had a gold plated defense to a lawsuit if they filed one.  

33 minutes ago, 1TNgirl said:

Should I contact BofA & ask if they still own the debt, or if it has been sold?

If BoA is the Plaintiff then they do still own the debt and there is no point to contacting them to ask.

33 minutes ago, 1TNgirl said:

1. The original signed application establishing the account

The court won't expect it for BoA to prove their case and knows it likely does not exist in the online application era.

34 minutes ago, 1TNgirl said:

2. Charge slips bearing defendant's signature which establish use of the account

This is futile as well.  ALL that is required to show that you used the account is bank statements that are at least 6 months old.  You only have a limited time to dispute the charges and if you didn't dispute them then they are presumed valid by the creditor (and the court) and therefore you agree with them.

The charge slip with a signature is only needed by the merchant if you dispute the charge.

35 minutes ago, 1TNgirl said:

3. The original written agreement in which defendant allegedly assented to the terms of the account

That was mailed to you and the court would expect YOU to produce it or a copy thereof.  By accepting, activating and using the card you agreed to those terms.  That is in that card agreement.

36 minutes ago, 1TNgirl said:

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

Unless they are suing for account stated they won't need this either.  6 months to a year's worth of statements prior to default will be sufficient in an original creditor case.

37 minutes ago, 1TNgirl said:

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

39 minutes ago, 1TNgirl said:

 

This is good to demand.

39 minutes ago, 1TNgirl said:

10. Proof of mailing of monthly statements

NO creditor is required to prove this and it is a waste of time.  DO NOT go there.

40 minutes ago, 1TNgirl said:

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

This is complete garbage.

Most of those demands show that you can use Google and cut and paste from the internet.  I would NOT use them.  

41 minutes ago, 1TNgirl said:

It would seem to me, if they are not representing BofA, and they purchased the debt, they would not be able to produce these documents. 

BoA is listed as the Plaintiff which means they very much ARE representing them and have not purchased that debt.  

BoA's affidavit will be admissible because they can have an affiant testify to their own records.  BoA is an aggressive litigator and in the past few years has not been selling their bad debt portfolios but instead suing themselves.  It isn't that an original creditor lawsuit can't be won but it is a LOT harder and 90% of the information you read on sites like this is based upon defending actions by junk debt buyers not original creditors.

I highly recommend you get that free consult from Barnette Law ASAP.  He may be able to assist you with this at a very reasonable cost.

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On 9/20/2016 at 10:15 AM, 1TNgirl said:

Can I do anything to fight this or stop it from going to trial?

The only way to stop this from going to trial is to either declare and file bankruptcy or settle it before it gets to court.  Now that they have filed the lawsuit is in motion.

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Thank You so much, @Clydesmom!

I will contact Barnett Law, in the meantime, should I request the following:

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

 

Or wait and see what Barnett Law recommends?

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