sunshine75

Sued in Phildelphia/BOA

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1. Who is the named plaintiff in the suit?

  • Bank of A

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

  • Hyatt, Hyatt & Landau

3. How much are you being sued for?

  •  12,XXX

4. Who is the original creditor? (if not the Plaintiff)

  • Bank of A (the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

  • Hyatt told me on phone they had filed.

6. How were you served? (Mail, In person, Notice on door)

  • Served at home, summons given to doorman

7. Was the service legal as required by your state?

  • Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

  • I asked for debt validation- They sent old statements. They did not send information  showing they own the debt or I should be paying them- which confused me at the time.

9. What state and county do you live in?

  • Philadelphia, PA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

  •   July 2019

11. When did you open the account (looking to establish what card agreement may be applicable)? May 2016

 

12. What is the SOL on the debt? To find out:

  • Within statue of limitations

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

  • Active, court website still displays waiting on serve. Arbitation set for August 2020

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

  • No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

  • Yes. I also spoke on the phone with them in attempt to set up plan. They wanted $2k upfront.  I disputed the increase in late fee charges/fees effective 2018.

16. 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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

  • 20 Days
  • 1. Bank of America is a wholly-owned subsidiary of Ban of America Corportation...formerly known as MBNA American Bank, N/A. FIA was merged into and under her charter..
  • 2. At all times relevant hereto, the Defendant, XX, was the holder of a CC or other consumer finance account (the "Account") which, aththe request of the Defendant, was issue to the Defendant by Plaintiff, BANA, or a predecessor in interest.
  • 3. Defendant accepted a did thereafter use or authroize the use of the Account for
  • 4. A true and correct copy of the last periodic statement generated prior to charge-off of the Account is attached hereto, but will be filed seperately along with the Confidential Document Form prepared by Plaintiff's counsel.
  • 5. All credits to which the Defendant is entitiled have been applied to the Account an there remains a balance due in the amount of $12XXX on the account.
  • 6.Plaintiff has made demand upon the Defendant for payment of the balance due but he Defendant has failed and refused, and stillr efused, to pay the balance due. As such, the Defendant is in default pursuant to the terms of the Agreement.
  • The account was opened on or about 5/10/2016. The last payment made to he Account was made on or about 07/05/19.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

  • None. They state they attached the last periodic statement in #4 but it is not attached. The verification page is also dated Aug 30 2019 which is bizaree because it was filed much later.

18.  How did you find out about this site?

  • Google search

I am currently on hard times due to a significant decrease in child support in 2018. I will be getting a significant increase again in early 2020. I need to buy time as  in 3 monthsI  can settle this in lump sum (and hopefully for a lesser rate).

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Is your last payment date of July 2019 correct?  It seems unusual for a creditor to sue that quickly.

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4 hours ago, sunshine75 said:

Yes but I had been behind for many months. I was paying 200 a month to Bank of A, when payment should have been 350 for a year.

When ever you started paying less than the minimum due would be the date of first default.  Unfortunately from a legal perspective paying less than is due is still a default.

5 hours ago, sunshine75 said:

Also, I am confused when I can start to try to settle with them?

You can settle at any time prior to the court reaching a verdict.  You can settle after they get a judgment but would need a lump sum to do so.

5 hours ago, sunshine75 said:

Can you do a payment plan in a settlement?

You can but they will want what is known as a consent judgment.  That means you will sign a document stating you are settling for X amount in Y payments monthly for a fixed amount of time.  The issue with a consent judgment is if you are late, miss a payment or stop paying all together they no longer have to sue you to collect. They can file that consent judgment with the courts and go straight to bank levy.  Pennsylvania is one of the few states that does not allow wage garnishment so you would be safe from that.  So before you agree to a settlement via payments make darn sure you can afford them and follow through.

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Do I call Hyatt or Bank of A to try and settle?  I was going to try #9000 with payments of 300/monthly.

I have to file a response to their suit within 20 days. I do not want a default judgement- and if I can buy time untill arbitration I will have the funds. Can I anwser that they didnt provide statement or any attachments?

 

Also if I try to settle over the phone am I admitting ownership of the debt? And therefore making my Answer to their complaint fraud?

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1 hour ago, sunshine75 said:

Do I call Hyatt or Bank of A to try and settle?

You will have to call the law firm since the suit has already been filed and served.  All your dealings are directly with them now.

1 hour ago, sunshine75 said:

Can I anwser that they didnt provide statement or any attachments?

No.  You get evidence in discovery.  It is not attached to the complaint when filed.

1 hour ago, sunshine75 said:

Also if I try to settle over the phone am I admitting ownership of the debt? And therefore making my Answer to their complaint fraud?

No. Many legal cases are settled simply because it is easier and less expensive.  It does not mean that either party is admitting to anything.

1 hour ago, sunshine75 said:

I was going to try #9000 with payments of 300/monthly.

If you are going to make payments they chances are pretty high they will want the full amount.  Especially since it is such a large amount and you have defaulted once before.  You should try it but do not be disappointed if they reject it.

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I tried again at 300/month and they said no. 

 

I am am going to file an anwser. My goal is to postpone judgement until I get my tax refund in February. Or hopefully June when my circumstances completely change and I may be able to pay in full. 

My arbitration is schedule for August 2019. What will happen after I anwser? 

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15 minutes ago, sunshine75 said:

What will happen after I anwser?

The court will set a trial date.  Most likely the law firm will send you discovery which you have to answer.  Failure to answer means you are admitting to their claims.

16 minutes ago, sunshine75 said:

My arbitration is schedule for August 2019.

Looks like that is mandatory court mediation.  If that isn't until August 2020 then the chances trial happens before that are probably slim. 

16 minutes ago, sunshine75 said:

My goal is to postpone judgement until I get my tax refund in February. Or hopefully June when my circumstances completely change and I may be able to pay in full. 

Most likely if you answer now and arbitration isn't until August next year then you should be okay about not getting a judgment prior to your financial circumstances changing.  Just make sure to keep track of ALL deadlines and respond so that you don't end up with a default judgment.

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They accepted a payment of 250 and state they will do a payment plan. Nothing in wriitng yet (they said must be mailed not emails) so I still plan to anwser. How is this ( I know i need verfication, certificate service, vertification compliance)

 

  1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

  2. Admit

  3. Defendant is without knowledge of information sufficient to form a belief as to the truth of the avemrent

  4. Denied. No documents are attached to this pleading. 

  5. Defendant is without knowledge of information sufficient to form a belief as to the truth of the averment.

  6. Denied. Plaintiff has made payments. 

  7. Defendant is without knowledge of information sufficient to form a belief as to the truth of the averment

 

Defenses

  1. Plaintiff failed to adequately describe material terms or attach a copy of the contract as an exhibit to this complaint.Plaintiff has provided no sworn statement testifying to the accuracy and validity of their recollection of the alleged account

  2. Plaintiff has not proven that they are a real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Bank of America with all the original creditor’s rights and privileges intact. 

  3. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.


 

Dated: 12/10/19

 

 

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