RockyRoad

Arbitrate v. Defending Account Stated Claim

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1 hour ago, RockyRoad said:

I thought they purchased the debt, so I requested validation to which they responded with statements.

Lets start here.  The only information required to comply with the FDCPA is the name (and address if you request it) of the original creditor (which they were representing) and the amount you are alleged to owe.  That is IT regardless of any other information you requested.  They actually do not have to provide statements at all but if they did they likely went above and beyond in meeting the threshold for validation.

WHY do you believe they did not validate? 

1 hour ago, RockyRoad said:

They have now put in a motion to dismiss for failure to state a claim.  I based my decision on the Haddad v Alexander case where the won in appeals on failure to validate.

If they have validated as I believe if I were you I would let it dismiss.  If they motion the court for attorney fees and costs this could end up costing you thousands of dollars in the neighborhood of five figures for filing a frivolous suit.

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55 minutes ago, RockyRoad said:

The current lawsuit was by an OC through a law firm that stated I defaulted on the credit card.  The law firm said they did not purchase the debt.  I thought they purchased the debt, so I requested validation to which they responded with statements.  I then sued them in the fed for failure to validate and collecting a wrong amount.  They have now put in a motion to dismiss for failure to state a claim.  I based my decision on the Haddad v Alexander case where the won in appeals on failure to validate.

Haddad v. Alexander is a 6th Circuit Court of Appeals ruling which is not precedent in your court.   You are in the 11th Circuit.  Your court can take the ruling under consideration, but it doesn't have to abide by it.

Just for the sake of looking into it, what credit card statements did the attorney send to you to validate the debt?  What did they show?   For instance, did they show when you missed payments?

 

 

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It showed transactions since 2015.  The card application they sent with it was from 2013.  There was a previous balance from 2013-2015 that was unaccounted for.  The firm won summary judgment in the state case they filed while my fed suit was pending

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1 hour ago, RockyRoad said:
 

It showed transactions since 2015.  The card application they sent with it was from 2013.  There was a previous balance from 2013-2015 that was unaccounted for.  The firm won summary judgment in the state case they filed while my fed suit was pending

The court awarded summary judgment to the plaintiff, not the law firm  

Here's what the 6th Circuit stated in Haddad.

"The verification provision must be interpreted to provide the consumer with notice of how and when the debt was originally incurred or other sufficient notice from which the consumer could sufficiently dispute the payment obligation. This information does not have to be extensive. It should provide the date and nature of the transaction that led to the debt, such as a purchase on a particular date, a missed rental payment for a specific month, a fee for a particular service provided at a specified time, or a fine for a particular offense assessed on a certain date."

I'm thinking the statements probably showed a missed payment which led to the default.

 

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On 4/22/2018 at 5:14 PM, BV80 said:

@RockyRoad

It's common for consumer defendants to jump in head first without researching the proper way to answer a complaint, what constitutes an FDCPA violation, etc.

For instance, when sued by an OC, some defendants mistakenly assume the plaintiff is actually the law firm and not the OC.  They might request proof that the OC sold or assigned the debt to the law firm.  In fact, there are sites on the internet that tell people that OCs rarely ever sue.  It's just not true.

Law firms/attorneys merely represent their clients in court. The plaintiff has not assigned the debt to the law firm.  If a consumer were to sue someone, he could hire an attorney to represent him and do all the work..  The consumer would still be the plaintiff.

I'm not implying that you made that mistake.  I just cite it as an example of how consumers may make assumptions and mistakes without doing the proper research.

Why don't you give us some information on the current lawsuit against you, and maybe we can help.

You are correct, I in fact did assume the law firms bought the debt and used the OC’s name, which was a big mistake.  I lost both state cases against the OC’s and now have judgments in both to pay the full amount in both plus court costs in one.  A lesson in doing research before making conclusions.  I have worked out a settlement with one and the other, which I sued in the fed under FDCPA & FCCPA, I plan on calling to try and work something out to drop the case and settle the debt.  I have until two weeks to respond to their motion to dismiss.  Word to the wise on anyone thinking of litigating, make sure you do your homework before taking action.

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2 hours ago, RockyRoad said:

You are correct, I in fact did assume the law firms bought the debt and used the OC’s name, which was a big mistake.  I lost both state cases against the OC’s and now have judgments in both to pay the full amount in both plus court costs in one.  A lesson in doing research before making conclusions.  I have worked out a settlement with one and the other, which I sued in the fed under FDCPA & FCCPA, I plan on calling to try and work something out to drop the case and settle the debt.  I have until two weeks to respond to their motion to dismiss.  Word to the wise on anyone thinking of litigating, make sure you do your homework before taking action.

I'm so sorry that you have judgments against you.   Hopefully, they're not large ones and you can handle payments.

Do you have any other accounts for which you might be facing lawsuits?  If so, start researching now.  We're here to help with questions.  

A word to the wise:  Be careful where you get your information because there's alot of misinformation out there.   On this site, we refer to laws and court rulings to back up information we provide and claims that we make..  There are many sites that offer information, but don't provide laws or court rulings to back any of it up.  In other words, they're only providing their own opinions.

When you get a chance, you might read the following thread.

https://www.creditinfocenter.com/community/topic/329546-beware-of-some-self-help-sites-and-articles/

If any questions, please don't hesitate to ask, and we'll help if we can.

Good luck!  :twothumbsup:

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1 hour ago, BV80 said:

I'm so sorry that you have judgments against you.   Hopefully, they're not large ones and you can handle payments.

Do you have any other accounts for which you might be facing lawsuits?  If so, start researching now.  We're here to help with questions.  

A word to the wise:  Be careful where you get your information because there's alot of misinformation out there.   On this site, we refer to laws and court rulings to back up information we provide and claims that we make..  There are many sites that offer information, but don't provide laws or court rulings to back any of it up.  In other words, they're only providing their own opinions.

When you get a chance, you might read the following thread.

https://www.creditinfocenter.com/community/topic/329546-beware-of-some-self-help-sites-and-articles/

If any questions, please don't hesitate to ask, and we'll help if we can.

Good luck!  :twothumbsup:

Thanks, the debt was pretty large, but manageable.  I still have my Fed Suit pending.  If I let it dismiss or voluntarily dismiss it how likely would the firm be to motion for attorneys fees?  Or does it vary.

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11 minutes ago, RockyRoad said:

Thanks, the debt was pretty large, but manageable.  I still have my Fed Suit pending.  If I let it dismiss or voluntarily dismiss it how likely would the firm be to motion for attorneys fees?  Or does it vary.

I'm not sure, but I don't believe they'd motion for attorney fees.   That would especially be the case if you arranged a settlement agreement and had details outlined in the agreement.

However, since they already have a judgment against, I'm not sure how much leverage you have, but you could mention to them that you will drop the FDCPA case and just want to settle the judgment.

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On 4/22/2018 at 7:58 PM, Clydesmom said:

Lets start here.  The only information required to comply with the FDCPA is the name (and address if you request it) of the original creditor (which they were representing) and the amount you are alleged to owe.  That is IT regardless of any other information you requested.  They actually do not have to provide statements at all but if they did they likely went above and beyond in meeting the threshold for validation.

WHY do you believe they did not validate? 

If they have validated as I believe if I were you I would let it dismiss.  If they motion the court for attorney fees and costs this could end up costing you thousands of dollars in the neighborhood of five figures for filing a frivolous suit.

I filed an extension of time to respond to their Motion to Dismiss.  If I let it dismiss, how long would they have to motion for attorneys fees?  Northern District of Florida

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On 4/22/2018 at 7:58 PM, Clydesmom said:

If they have validated as I believe if I were you I would let it dismiss.  If they motion the court for attorney fees and costs this could end up costing you thousands of dollars in the neighborhood of five figures for filing a frivolous suit.

Would it be better to let it dismiss or voluntarily dismiss?  And then how would they show the court the suit was frivolous?  

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Dismissing on your own could make a claim that the suit was frivolous easier.  If the court tosses it because you failed to make a claim you are in a position to refile and they will likely let it go.  Less of a chance they get attorney fees and costs as the court would view it as an expense of being in business. IMO

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5 minutes ago, Clydesmom said:

Dismissing on your own could make a claim that the suit was frivolous easier.  If the court tosses it because you failed to make a claim you are in a position to refile and they will likely let it go.  Less of a chance they get attorney fees and costs as the court would view it as an expense of being in business. IMO

Ok.  Today is the last day to answer their MTD.  I just emailed the attorney for the defendants and offered a settlement of the small claims case and voluntary dismissal with prejudice. Might should not have offered that and just let it dismiss, as they might use that against me.

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