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Summons from court regarding a JDB purchased debt


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23 hours ago, crawlin said:

 

I have been served by a JDB, for a debt of an amount under $3,000 and am working on making my response.

One of my situation is that I already have an existing state tax lien of a large amount that I have difficulty paying off, should I include this in my answer to summons?

Thanks in advance for help!

No, I would not include that in the answer.   Your inability to pay another debt isn't relevant to whether you owe this debt.  I would look into the arbitration strategy.  JDBs HATE arb because of the high costs.

 Who was the OC?  How old is the debt?  Who is the JDB?  Some more information will help us help you.

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Go here and scroll down. There is a large archive of agreements going back to late 2011. You want the last agreement that was in effect before the account charged off. If that one doesn't have arbitration, look to see if there's an earlier one that does that also has a statement that the arbitration clause will survive any agreement modifications.

http://www.consumerfinance.gov/credit-cards/agreements/

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In my opinion if you try arbitration in any capacity in California you will most likely end up in a court ordered arbitration or some other arbitration you will want nothing to do with and lose the case. If you are going to fight it without asking for arbitration then there are a lot of people here who can help, and a lot of threads from CA victories.

If it were mine I would research BOP here and send a demand for BOP right away, and then answer the complaint closer to the deadline.  This is only if you are not planning on arbitration.

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11 hours ago, crawlin said:

Thanks all for help!

My last payment was before 2015.  JDB only shows records from 2014 to 2016 so don't know what are there before.

I'm trying to write up BOP. 

In POS-040 what should I put for the "case name" box?  My name?

 

I'm also working on the summons too still wonder if there is something to put for affirmative defenses.  Also wonder should I use answer form or general deny form.

I the complaint is not verified, you can use a general denial.  That is MUCH better because you do not have to go paragraph-by-paragraph admitting or denying each one.

Your complaint is probably not verified.  A verified complaint has a page attached where someone swears under penalty of perjury, that the complaint is true and correct.  I have posted exemplars in the past but my links to past posts no longer work.  If you search my posts for "verified", you will probably find it.

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Thanks calawyer!

So PRA contacted me regarding two debts or two accounts, with the first one older the second one newer.

One collector ever used threatening and false representations in his attempt to collect from me on the first (older) account, which, among other things, in my understanding are violations of FDCPA.  The one I currently being served summons on is on the second (newer) account.

Should I bring about the FDCPA violation somewhere on my response to the summons or sometime along the line in my dealing with this second account I'm currently being summoned on?

Thanks again in advance.

 

 

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54 minutes ago, crawlin said:

 

Thanks calawyer!

So PRA contacted me regarding two debts or two accounts, with the first one older the second one newer.

One collector ever used threatening and false representations in his attempt to collect from me on the first (older) account, which, among other things, in my understanding are violations of FDCPA.  The one I currently being served summons on is on the second (newer) account.

Should I bring about the FDCPA violation somewhere on my response to the summons or sometime in my dealing with this second account I'm currently being summoned on?

Thanks again in advance.

 

 

When ( date) did the violations occur?

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Even with that, I'm still interested in bring that issue in my defense indirectly like I wrote.

Since, like, their past dealing with me especially that threatening and misrepresentation does brought distrust among other issues.  There are also no SOL on things like distrust.


Say Mark owed John some money, John had sympathy for Mark that he was in a hardship so John didn't pursue Mark much on the debt and the SOL passed.  One year after the SOL passed, Mark became rich and it's John who got into some difficulty and borrowed from Mark.  For a year John still can't get out of his trouble and still unable to repay.  Mark has no consideration at all for the kindness John ever lent to him and he has no considered for what he owed John in the past but just went to court and sued John, how does this look like for Mark?

--------------------------------------------------------

 

CODE OF CIVIL PROCEDURE 431.70 
Where cross-demands for money have existed between persons
at any point in time ....    If the cross-demand would otherwise be
barred by the statute of limitations, the relief accorded under this
section shall not exceed the value of the relief granted to the other
party. 

 

source

http://law.justia.com/codes/california/2005/ccp/431.10-431.70.html

 

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THe statute you cite does permit an otherwise time-barred suit to alleged as a cross-complaint if you are sued by the same party.

 

But it is a lot more difficult to file and litigate a cross-complaint than it is to just defend against a JDB's collection case.  If you wish to go this route, I would strongly suggest that you find a lawyer to help you.  PM me whether you are in northern or southern California and I will try to help you find someone.

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19 hours ago, crawlin said:

Even with that, I'm still interested in bring that issue in my defense indirectly like I wrote.

Since, like, their past dealing with me especially that threatening and misrepresentation does brought distrust among other issues.  There are also no SOL on things like distrust.


Say Mark owed John some money, John had sympathy for Mark that he was in a hardship so John didn't pursue Mark much on the debt and the SOL passed.  One year after the SOL passed, Mark became rich and it's John who got into some difficulty and borrowed from Mark.  For a year John still can't get out of his trouble and still unable to repay.  Mark has no consideration at all for the kindness John ever lent to him and he has no considered for what he owed John in the past but just went to court and sued John, how does this look like for Mark?

Or one question come to mind is say Sam owed Joe some money, Joe got severely sick afterwards and was hospitalized for a long time or was too weak to stand trial for a while and so unable to stand sue in time nor was he able to find representative for him and missed the SOL to collect from Sam.  If Joe try to collect a debt that is out of SOL from Sam that is not fine but if Joe said Sam ever owed him a debt in the past, or simply said Sam ever wronged him financially in the past is that ok?  Isn't that a true statement still with no SOL?  And can Joe says since what he did in the past I have issue of trust with him?   

--------------------------------------------------------

 

I found this, what is this?

"


CODE OF CIVIL PROCEDURE 431.70.   

Where cross-demands for money have existed between persons
at any point in time ....    If the cross-demand would otherwise be
barred by the statute of limitations, the relief accorded under this
section shall not exceed the value of the relief granted to the other
party. 

"

socure 

http://law.justia.com/codes/california/2005/ccp/431.10-431.70.html

 

I know that @calawyer would know, but I don't think 431.70 would apply to an FDCPA violation.  The reason is because an FDCPA violation is not the same as a demand for money (breach of contract, account stated, etc.).

If an FDCPA violation were considered a "demand for money", it could hurt CA residents because any resident who filed a lawsuit for a violation of the FDCPA or CA collection law on a time-barred debt would then be subject to a cross-complaint for the debt.   I'm not sure it was intended that  CA residents be held liable for time-barred debts simply because they file lawsuits for consumer violations.

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7 minutes ago, crawlin said:

Example of existing reliefs for FDCPA violation does come in monetary forms don't they?

Or what other forms of relief can be offered?

An example of a demand for money would be a breach of contract where money is still owed on a contract.  That's not the case with an FDCPA violation.   The cause of action in an FDCPA complaint has nothing to do with money being owed to the consumer.

Like I said, if CCP 431.70 applies to FDCPA violations, then it would seem that every CA consumer who files a lawsuit against a debt collector because the debt collector committed a violation collecting on a time-barred debt, then the debt collector could then file a cross-complaint to collect on that time-barred debt.

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On 12/25/2016 at 0:28 AM, crawlin said:

On FTC's site I found it mentioned civil liabilities regarding FDCPA violations.  I'm trying to know more here.

The civil violations to which you refer are in 1692k of the FDCPA. 

Statutory damages allowed are up to $1000.   That means the court can award less than $1000.

Other damages such as emotional distress are considered to be actual damages and require proof of such distress.

The court could award punitive damages, but to do so would probably also require proof of reckless disregard.

 

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13 minutes ago, crawlin said:

Maybe more options will come later but for right now it seems any amount awarded is valuable?

And $1000 per violation from what I read?

 

 

The statute says "up to" $1000 dollars.  That means the judge can award less than that amount.

You REALLY need to contact an attorney because the violation you claim is not based upon your current lawsuit. 

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