HELP PLEASE! SUED BY UNIFUND IN CA!

[psz3s2143]

Hello everyone,

My mom who is widowed, speaks zero english, and has no income has been sued by Unifund LLC. I scrolled through other threads and was hoping to find some more help. 

I intend on serving Bill of Particulars by Certified Mail, RR Requested on Monday and filing a General Denial by the due date. What should I anticipate after? What are the odds of actually going to trial? My mom has a weak heart and would hate to put her through such anxiety of going to a courthouse before a judge. I am providing general info below. 

Thank you for all your help and any insight on past outcomes would be great. 

1. Who is the named plaintiff in the suit?

Unifund CCR LLC

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

Resurgence Legal Group

3. How much are you being sued for?

~$5,500

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

Barclays Delaware

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

Papers served

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

In person

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

Yes

Process Service Requirements by State - Summons Complaint

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

None

9. What state and county do you live in?

Los Angeles, CA

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

Oct 2016

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

Not sure, maybe 2014

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

4 years

Statute of Limitations on Debts

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

Suit served but no POS on file. Case status pending, OSC regarding service Oct 2021

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').

No

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?

30 days

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

Ex A - One Month Statement

Ex B - Bill of Sale (there were about four different debt buyers before them)

Ex C - Redacted rows showing name and last four credit card acct number

18.  How did you find out about this site?

Google

[nobk4me]

Barclay's uses Delaware law, where the SOL is 3 years. California has a borrowing statute.  Case law is Resurgence v Chambers.  When was the lawsuit filed?  If after October 2019, you have a good SOL defense.

[psz3s2143]

Hi @nobk4me

Thanks for your response. It was filed October 9, 2020. Should I list the SOL as an affirmative defense?

[BackFromTheDebt]

I am usually a DIY sort of fellow, and didn’t use any attorneys in my debt defenses.   That being said, I think you should consult a good consumer attorney.  
 

If you do, a possible result would be a dismissal of the charges, a few hundred in your pocket for the FDCPA and/or Rosenthal violations of filing a case they are not legally entitled to collect, and a few grand to your lawyer for his legal fees.  
 

Or, you could file a MTD for failure to state a claim.  Since the case is SOL, they don’t have a valid claim.  

[psz3s2143]

Thanks for your response @BackFromTheDebt

My mom doesn't want to visit any attorneys. I was hoping I can just deal with them on her behalf and maybe get her case dismissed like a handful of people on this sight. Any advice on how to go about it? Would I still send out my BOP and file a general denial?

[RyanEX]

Looks like you have some time to file your answer. 30 days from the date of service. Your mom can use General Denial PLD-050 if the complaint is unverified.

I know you wrote your mom doesn't want to visit an attorney, but I would strongly suggest you call a consumer attorney if this action was filed after the SOL. It's a violation of federal law to do so. You don't need an attorney to assert the affirmative defense, but you can counter sue for $1000 and an attorney could help with that. At least speak to the phone and get an idea of what that would look like, it may not involve much if any work/visits on you and your mom's part.

 

[BackFromTheDebt]

You can do most of the leg work for your mother.
 

At some point either she will have to go to an attorney’s office or go to court and argue the case herself.  
 

There is the chance that you could have her sign a letter you write for her offering to not sue for FDCPA violations in exchange for them dismissing the case against her.  Send it to their attorney CMRRR.  If that works, your mother won’t get any money from an FDCPA claim, but at least she won’t have to visit an attorney.  
 

If that doesn’t work, she will either have to visit an attorney or go to the hearing in court and argue her case by herself.  

Edited October 20, 2020 by BackFromTheDebt

[psz3s2143]

Hello!

I spoke to several attorneys who were not willing to jump on the case as they say SOL seems within the CA four year. It doesnt look like they want to make a fight over it under the borrowing clause..

I am hoping to do the leg work and get the case dismissed before going to trial. Maybe the route would be MTC Arbitration? However, I do not have a copy of the credit card agreement so I am not sure if there was an arbitration clause. Is this something I can request from them? It looks like from the bill of sales, there were six different debt buyers, including the original creditor Barclays Bank Delware.

I would appreciate any kind of guidance! I am at a loss as to what to do. Thank you.

[alwayswinning36]

2 hours ago, psz3s2143 said:

Hello!

I spoke to several attorneys who were not willing to jump on the case as they say SOL seems within the CA four year. It doesnt look like they want to make a fight over it under the borrowing clause..

I am hoping to do the leg work and get the case dismissed before going to trial. Maybe the route would be MTC Arbitration? However, I do not have a copy of the credit card agreement so I am not sure if there was an arbitration clause. Is this something I can request from them? It looks like from the bill of sales, there were six different debt buyers, including the original creditor Barclays Bank Delware.

I would appreciate any kind of guidance! I am at a loss as to what to do. Thank you.

CFPB website, google "CFPB credit card agreements" and it should be the first link that comes up. Once there you can look for the card agreement. I would lean more toward the one that was in effect at the time the debt was charged off, as the collector or debt buyer will be doing that.

[RyanEX]

How are things going, psz3s2143?

[psz3s2143]

12 hours ago, RyanEX said:

How are things going, psz3s2143?

Hi @RyanEX

Thanks for asking.

Well, I served my General Denial with Affirmative Defenses. So far crickets..

I did receive a response to the Bill of Particulars. 

It was a packet including the following:

Exhibit 1 - Monthly account statments (Apr 2016-Aug 2017)

Exhibit 2 - Bill of Sales

Is this everything they are required to give me? It only seems like what was included in the Complaint and it doesnt seem like it was signed under penalty of perjury. I am not sure if I should meet and confer or send discovery?

Trial date is October of next year...

[psz3s2143]

If anyone is reading this, my trial was set for October 15, 2021. I sent them my CCP96 on August and they did not reply. I was in the middle of preparing my defense for trial but received a Request for Dismissal without Prejudice. I was skeptical so I checked the court's website and what dk you know.. It was filed and trial taken off calendar. Huge sigh of relief!

I want to thank everyone on this forum for helping out and answering any questions. I couldn't have done it without the people and information available on here. ??

 

[BackFromTheDebt]

For the benefit of lurkers looking for information:

 

A dismissal without prejudice is a significant victory.   The case is rarely re-filed. 
 

What that means in this case: the Junk Debt Buyers (JDB) usually look for the low hanging fruit. 
 

Lesson 1:  the OP showed they weren’t low hanging fruit.  That is often good enough to scare off a JDB  Don’t be the low hanging fruit  

 

Lesson 2:  There are strategies available to consumers in California that make life difficult for the JDB.  Use them. 

[Bulldoger]

15 hours ago, psz3s2143 said:

If anyone is reading this, my trial was set for October 15, 2021. I sent them my CCP96 on August and they did not reply. I was in the middle of preparing my defense for trial but received a Request for Dismissal without Prejudice. I was skeptical so I checked the court's website and what dk you know.. It was filed and trial taken off calendar. Huge sigh of relief!

I want to thank everyone on this forum for helping out and answering any questions. I couldn't have done it without the people and information available on here. ??

 

Since this is now well pass the 4 yrs SOL it's as good as a dismissal with prejudice.  Tell your Mom it's over. 

[RyanEX]

22 hours ago, psz3s2143 said:

If anyone is reading this, my trial was set for October 15, 2021. I sent them my CCP96 on August and they did not reply. I was in the middle of preparing my defense for trial but received a Request for Dismissal without Prejudice. I was skeptical so I checked the court's website and what dk you know.. It was filed and trial taken off calendar. Huge sigh of relief!

I want to thank everyone on this forum for helping out and answering any questions. I couldn't have done it without the people and information available on here. ??

 

Congrats!

If you want to stick it to them you can reclaim your costs, specifically the filing fee. Process server fee as well but it sounds like you didn't get that far.